EXHIBIT 10.44
NOTE AND STOCK PURCHASE AGREEMENT AND RELEASE
THIS NOTE AND STOCK PURCHASE AGREEMENT AND RELEASE (this "Agreement")
is made as of November 6, 1998, by and among Oryx Technology Corp., a Delaware
corporation ("OTC"), Corus Investment Ltd., a Bahamas Company ("Purchaser") and
Oryx Instruments and Materials Corporation, a Delaware corporation ("I&M").
WHEREAS, OTC, Purchaser and I&M have previously entered into a Stock
Purchase and Reorganization Agreement (the "Reorganization Agreement"), a
Promissory Note (the "Promissory Note"), a Pledge Agreement (the "Pledge
Agreement") and a Stockholders Agreement (the "Stockholders Agreement") all of
which were dated February 27, 1998;
WHEREAS, OTC desires to sell to Purchaser, and Purchaser desires to
purchase from OTC, OTC's interest in the Promissory Note, the Pledge Agreement
and certain stock of I&M held by OTC; and
WHEREAS, in connection with such purchase and sale OTC and I&M have
agreed to modify their rights under the Reorganization Agreement and OTC has
agreed to modify its rights under the Stockholders Agreement as contained
herein.
NOW, THEREFORE, In consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth in this
Agreement, the parties to this Agreement mutually agree as follows:
1) SALE OF SHARES. OTC shall sell to the Purchaser and the Purchaser shall
purchase from OTC 1,000,000 shares of Class A Common Stock of I&M (the
"Shares").
a) DELIVERY OF STOCK CERTIFICATES. OTC shall deliver to I&M the stock
certificate possessed by OTC for 2,000,000 shares of Class A Common
Stock of I&M. I&M shall issue a new certificate for 1,000,000 such
shares to OTC and shall deliver a certificate representing the Shares
to the Purchaser.
b) OTC'S REPRESENTATIONS AND WARRANTIES. OTC hereby represents and
warrants to the Purchaser that it owns record and beneficial title to
and has possession of all of the Shares, and that after the
consummation of the transactions contemplated herein the Purchaser
shall own record and beneficial title to and have possession of all of
the Shares free and clear of all liens, encumbrances, security
agreements or otherwise.
c) PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser hereby
represents and warrants to OTC with respect to this purchase as
follows: (a) the Purchaser has a pre-existing business relationship
with I&M; (b) the Purchaser is acquiring the Shares for investment for
its own account and not with a view to, or for resale in connection
with, any distribution; (c) the Purchaser understands that the Shares
to be purchased hereby have not been registered under the Securities
Act of 1933, as amended (the "Securities
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Act") and are being sold by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon,
among other things, the bona fide nature of the investment intent as
expressed herein; (d) the Purchaser acknowledges that the Shares must
be held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available;
(e) the Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act which permits limited resale of shares
purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a
public market for the shares, the availability of certain current
public information about I&M (except as provided in Rule 144(k)), the
resale occurring not less than two years after a party has purchased
and paid for the security to be sold, the sale being through a
"broker's transaction" or in transactions directly with a "market
maker" (as provided by Rule 144(f)) and the number of shares being
sold during any three-month period not exceeding specified limitations
except as provided in Rule 144(d); (f) the Purchaser understands that
no public market now exists for any of the Shares and that it is
unlikely that a public market will ever exist for the Shares; and (g)
the Purchaser is aware of all financial information, including
operating results, balance sheets and projections of future results of
operations of I&M as of the date hereof.
2) SALE OF NOTE. OTC shall sell to the Purchaser its entire right, title and
interest in the Promissory Note, including but not limited to any right
that OTC may have to receive funds from I&M pursuant to the Promissory Note
and any security interest that OTC may have in I&M stock held by Purchaser.
a) DELIVERY OF NOTE. OTC shall deliver to the Purchaser the original
copy of the Promissory Note properly endorsed to Purchaser.
b) OTC'S REPRESENTATIONS AND WARRANTIES. OTC hereby represents and
warrants to the Purchaser that it owns the Promissory Note free and
clear of any liens, security agreements or encumbrances of any nature,
and that after the consummation of the transactions contemplated
herein the Purchaser shall own record and beneficial title to and have
possession of the Promissory Note free and clear of all liens,
security agreements or encumbrances of any nature.
c) I&M ACKNOWLEDGEMENT. I&M hereby (i) acknowledges that on the Closing
Date OTC will have transferred its interest in the Promissory Note to
the Purchaser and (ii) waives any notice to it that either OTC or the
Purchaser may be required to make. I&M agrees that (1) from and after
the Closing Date it shall make all payments, and perform all
obligations under the Promissory Note to the Purchaser and not to OTC
and (2) Purchaser shall have all rights to enforce the terms of the
Promissory Note under its terms. I&M further agrees that Purchaser
may assign its rights under the Promissory Note to any third party at
any time.
3) RELEASE OF OBLIGATIONS UNDER REORGANIZATION AGREEMENT. As part of the
actions to be performed under this Agreement, and for good and valuable
consideration the sufficiency
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of which is hereby acknowledged, OTC, its successors, subrogees, and assigns
(the "OTC Group"), and I&M, its successors, subrogees, and assigns (the "I&M
Group"), shall completely and irrevocably release and forever discharge each of
Purchaser, I&M and OTC and their affiliates from any further obligation to
either of I&M or OTC under the Reorganization Agreement other than those
obligations specifically defined in Article 8 of the Reorganization Agreement
and other than any obligations under the Stockholders Agreement (as modified
pursuant to this Agreement). For purposes of clarification and not limitation
of the foregoing, each of OTC and I&M will agree, which agreement will be
evidenced by the consummation of the Closing, that as of the Closing Date no
member of the OTC Group or the I&M Group will have ever had any claim against
either I&M, Purchaser, OTC or any of their affiliates under any provision of the
Reorganization Agreement (including, without limitation, rights of set-off and
recoupment, demands, actions, obligations, indemnification and causes of action
of any and every kind, nature and character, known and unknown (such right, a
"Claim")) and that each party will have performed all obligations required to be
performed by them to the Closing Date in full.
4) CANCELLATION OF PLEDGE AGREEMENT. As part of the consideration being paid
by Purchaser to OTC hereby, and for good and valuable consideration the
sufficiency of which is hereby acknowledged, the OTC Group shall completely
and irrevocably release and forever assign to Purchaser any rights that any
member of the OTC Group has under the Pledge Agreement.
a) OTC RELEASE. OTC agrees to release and forever assign any and all
rights it may have in the Pledged Collateral (as defined in the Pledge
Agreement) to Purchaser. For purposes of clarification and not in
limitation of the foregoing, notwithstanding the fact that there are
continuing obligations owed to OTC by I&M which would be considered
"Obligations" under the Pledge Agreement, OTC agrees that no member of
the OTC Group shall have any further rights under the Pledge Agreement
and that OTC agrees that the obligations of I&M under the Pledge
Agreement shall be deemed paid in full and no further Obligations to
OTC will exist thereunder. On the Closing Date, OTC will agree, which
agreement will be evidenced by the consummation of the Closing that as
of the Closing Date no Event of Default (as defined in the Pledge
Agreement) will exist or has ever existed and that no member of the
OTC Group has ever had and as of the Closing Date will not have any
right to take possession of the Pledged Collateral under the Pledge
Agreement or any Claim under the Pledge Agreement.
b) RETURN OF DOCUMENTS. OTC agrees to return any certificates, voting
proxies, blank stock powers or other writings in its (or any
assignee's) possession evidencing the Pledged Collateral (as defined
in the Pledge Agreement) or its rights under the Pledge Agreement and
further agrees to release any security interest in the Pledged
Collateral it may have perfected.
5) MODIFICATION OF STOCKHOLDERS AGREEMENT. The parties to this Agreement,
being all of the parties to the Stockholders Agreement, hereby agree to
amend the Stockholders Agreement pursuant to Section 3.7 of the
Stockholders Agreement as set forth in subsections (a) and (b) of this
Section 5 below.
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a) DELETION OF SECTION 2.4. As of the Closing Date, the text of Section
2.4 of the Agreement shall be deleted and replaced with "Intentionally
Omitted."
b) MODIFICATION OF SECTION 2.5(g). As of the Closing Date, the reference
to Section 2.4 contained in Section 2.5(g) shall be deleted and
reference to the Promissory Note as being in favor of OTC shall now
refer to the Promissory Note as being in favor of Purchaser.
c) RESIGNATION OF OTC DIRECTOR. OTC shall furnish to I&M a letter of
resignation, duly executed by the Oryx Designee (as defined in the
Stockholders Agreement) as of the Closing Date.
6) PURCHASE PRICE. As full consideration for the actions to be taken by this
Agreement, Purchaser agrees to pay OTC the sum of $500,000 by wire
transfer.
7) CLOSING.
a) TIME AND PLACE OF THE CLOSING. The Closing of all of the transactions
contemplated by Sections 1 through 6 above (the "Closing") shall take
place on such date as is mutually agreeable to the Purchaser and OTC
but in no event later than November 25, 1998 at the offices of
Xxxxxxxx & Xxxxxxxx LLP at 000 Xxxxxx Xxxxxx in San Francisco,
California, at 12:00 P.M. (Pacific time) or at such other place as is
mutually agreeable to Purchaser and OTC (the "Closing Date").
b) PROCEDURE AT THE CLOSING. At the Closing, the following actions will
be taken by the parties and the completion of each action shall be a
further condition to the Closing:
i) OTC and I&M shall deliver the stock certificates as described in
Section 1(a) above;
ii) OTC shall deliver the Promissory Note as described in Section
2(a) above;
iii) OTC shall deliver the documents described in Section 4(b) above;
iv) The Oryx Designee shall have delivered his letter of resignation
as director of I&M as described in Section 5(c) above;
v) Purchaser shall deliver the monies referred to in Section 6
above;
vi) OTC's representations and warranties contained in Sections 1(b)
and 2(b) shall be true and correct; and
vii) Purchaser's representations and warranties contained in Sections
1(c) shall continue to be true and correct.
c) EFFECTS OF THE CLOSING. Legal and equitable title and risk of loss
with respect to the stock, Promissory Note and monies transferred on
the Closing Date shall pass to Purchaser on the Closing Date. The
releases and assignment and assumption and modifications of agreements
contemplated under this Agreement (as described in Sections 3, 4,
4(a), 5(a),
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5(b) and 8) and I&M's acknowledgement of certain events (as described
in Section 2(c)) shall become effective upon the Closing Date.
8) GENERAL RELEASE. Each of OTC and I&M acknowledge that it has been advised
by its attorneys concerning, and is familiar with Section 1542 of the
California Civil Code which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Each of OTC and I&M, in that regard, acknowledges that it may have
sustained damages, losses, costs or expenses which are presently unknown or
unsuspected and that such damages, losses, costs or expenses as may have
been sustained may give rise to additional damages, losses, costs or
expenses in the future. Each of OTC and I&M acknowledges that it has
negotiated this Agreement taking into account such presently unsuspected
and unknown damages, losses, costs and expenses and that each of them
hereby respectively expressly waives any and all claims, causes of action,
liabilities and/or rights of any kind or nature whatsoever against the
other up to and including the date hereof, excluding those arising out of
obligations assumed under this Agreement for which such party is obligated
under this Agreement, but including, without limitation, all rights that it
may have against another party under Section 1542 of the California Civil
Code or under any other state or federal statute or common law principle of
similar effect.
Each of OTC and I&M further acknowledges that it has respectively been
represented in negotiations for, and the preparation of, this Agreement by
counsel of its own choosing, that it has read this Agreement or has had it
read or explained by counsel, that it understands and is fully aware of its
contents and of its legal effect, and that it is voluntarily entering into
this Agreement upon the legal advice of its counsel.
9) AUTHORIZATION. Each of the parties hereto is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its formation and each of the parties hereto has all requisite corporate
power and authority to execute and perform its obligations under this
Agreement. Upon execution by each party, this Agreement will constitute
the legal, valid and binding obligation of such party enforceable against
such party in accordance with its terms.
10) TERMINATION. This Agreement and all rights and obligations hereunder shall
terminate on the mutual written consent of the Purchaser and OTC or if the
Closing has not occurred to the satisfaction of the Purchaser and OTC on or
prior to November 25, 1998.
11) SUCCESSORS AND ASSIGNS. The parties understand and agree that this
Agreement is and shall be binding upon and shall inure to the benefit of
the parties and their predecessors, affiliates,
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parent corporations, subsidiaries, successors, assigns, agents, officers,
employees, attorneys, shareholders, successors, subrogees, and assigns.
12) FURTHER ASSURANCES. Each party to this Agreement agrees to execute such
additional documents and perform such additional actions as may be
reasonably requested by any other party hereto in order to carry out the
intent of this Agreement.
13) MISCELLANEOUS. This Agreement shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements
among California residents and entered into and to be performed entirely
within California. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Note and Stock
Purchase Agreement and Release to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first written above.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title:Chief Financial Officer
ORYX INSTRUMENTS AND MATERIALS
CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: CEO
CORUS INVESTMENT LTD.
By: /s/ Xxxxxx Hofer
-------------------
Name: Xxxxxx Hofer
Title: Director
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