EXHIBIT 10.1
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
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AMENDED AND RESTATED STOCK PURCHASE AGREEMENT (the "Agreement") made as of
June 18, 1998 among TOTAL RESEARCH CORPORATION, a Delaware corporation (the
"Company"), and XXXXX XXXXXXX, of Wellington, Florida, as the representative for
an entity or group to be formed (the "Purchaser").
BACKGROUND
A. The parties have entered into a Stock Purchase Agreement dated as of
April 16, 1998 (the "Original Stock Purchase Agreement"), providing, among other
things, for the sale by the Company to the Purchaser and his designees
identified on Schedule 1.1 to the Original Stock Purchase Agreement
(collectively, the "Designees") of one million (1,000,000) of the authorized but
unissued shares of Common Stock, $.001 par value per share, of the Company (the
"Purchased Securities").
B. Pursuant to Article VI of the Original Stock Purchase Agreement, during
the five (5) year period following the Closing Date, the Purchaser and the
Designees have agreed to provide or arrange for others to provide up to
$25,000,000.00 in debt or equity financing for the Company to complete
acquisitions and/or projects approved by the Board of Directors, subject to the
limitations contained in the Original Stock Purchase Agreement.
C. The Purchaser and the Designees have requested that the Original Stock
Purchase Agreement be amended and restated to modify the terms and conditions of
their financing obligations under Article VI thereof in consideration of other
modifications to the Original Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants herein
contained, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
SALE AND PURCHASE OF PURCHASED SECURITIES
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SECTION 1.1. Sale and Purchase. Subject to all of the terms and
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conditions hereof and in reliance on the representations and warranties set
forth or referred to herein, at the Closing the Company agrees to issue and sell
to the Purchaser and his designees, as listed in Schedule 1.1 (the "Designees"),
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at a price of $2.25 per share (the "Per Share Price"), and the Purchaser, for
himself and the Designees, hereby agrees to purchase, the Purchased Securities.
SECTION 1.2 Option Shares. In addition, at the Closing the Company shall
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issue and deliver to the Purchaser and the Designees an option to purchase an
aggregate of two hundred fifty thousand (250,000) shares of the authorized but
unissued shares of Common Stock of the Company at the Per Share Price. This
option shall be exercisable at any time within five (5) years from the Closing
Date; provided, however, that any shares of Company stock purchased upon the
exercise of the option shall be subject to the Company's right of repurchase in
Article VI until the earlier of (i) the date after the thirty (30) day period
following the twenty-four (24) month anniversary of the Closing Date described
in Article VI hereof has expired, or (ii) the date that the Company has
acknowledged in writing that the Purchaser and the Designees have fulfilled
their $5 million financing undertaking as set forth in said Article VI. The
grant of this option shall be evidenced by an Option Agreement between the
Company and the Purchaser and the Designees, in form satisfactory to the parties
and containing terms and conditions customarily found in option agreements of
like nature, including provisions for the adjustment of the number of shares
subject to the option and the Per Share Price in the event of a stock dividend,
stock split, reorganization, merger or other adjustment in the capitalization of
the Company. Any shares purchased pursuant to the option grant shall contain an
appropriate legend reflecting the restrictions contained herein.
SECTION 1.3. Closing. The closing of the purchase and sale of the
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Purchased Securities (the "Closing") will take place at the offices of the
Company, Princeton Corporate Center, 0 Xxxxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx,
at 10:00 A.M. on July 1, 1998 (the "Closing Date"); provided, however, that, to
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the extent necessary, the Company and the Purchaser may delay the Closing Date
up to August 1, 1998 if all conditions precedent in Article IV and V have not
been fully satisfied or waived. If the conditions precedent in Articles IV and
V have not been fully satisfied or waived by August 1, 1998, then such
conditions will be deemed waived on such date unless the Purchaser (in the event
of nonsatisfaction of a condition in Article IV) or the Company (in the event of
nonsatisfaction of a condition in Article V) gives written notice of termination
of this Agreement to the other party before 5:00 P.M. on August 1, 1998. At the
Closing, the Company will deliver to the Purchaser the Purchased Securities
against payment of the Per Share Price therefor for each Purchased Security by
wire transfer or check in immediately available funds on or before the Closing
Date. The Purchased Securities will be issued on or before the Closing Date, and
registered to the Purchaser and the Designees as he shall direct.
SECTION 1.4. Change of Designees. Any additions to the individuals listed
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as Designees in Schedule 1.1 shall be made only if the Company is reasonably
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satisfied that the individual to be added is of a character, status and
financial capability comparable to the Purchaser and the Designees.
SECTION 1.5. Use of Proceeds. Proceeds from the sale of the Purchased
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Securities hereunder shall be used for working capital and general corporate
purposes as determined from time to time by the Company's Board of Directors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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In order to induce the Purchaser to enter into this Agreement and to
purchase the Purchased Securities, the Company hereby represents and warrants
that:
SECTION 2.1. Organization and Good Standing. The Company is duly
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organized, validly existing and in good standing in its jurisdiction of
incorporation and is duly qualified as a foreign corporation and authorized to
do business in all other jurisdictions in which the nature of its business or
property makes such qualification necessary and where the failure to so qualify
would not have a material adverse effect on the Company's financial position or
results of operations.
SECTION 2.2. Authorization. The execution, delivery and performance by
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the Company of this Agreement, and the issuance and sale by the Company of the
Purchased Securities hereunder: (a) are within the Company's power and
authority; (b) have been duly authorized by all necessary corporate proceedings;
and (c) do not and will not result in the creation of any lien upon any of the
Company's property or conflict with or result in any breach of any provision of
the Company's charter or by-laws or any law, regulation, order, judgment, writ,
injunction, license, permit, agreement or instrument to which the Company is
subject.
SECTION 2.3. Due Issuance. When issued and paid for, the Purchased
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Securities will be validly issued and outstanding and will be fully paid and
non-assessable.
SECTION 2.4. Consents. The execution, delivery and performance by the
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Company of this Agreement, and the issuance and sale of the Purchased Securities
hereunder, do not and will not require the approval or consent of, or any filing
with, any governmental authority or agency or any other person other than a
Notice of Sale of Securities Pursuant to Regulation D under the Securities Act
of 1933, as amended, and any required state securities law filings relating to
the issuance and sale of the Purchased Securities which have been filed or are
permitted to be filed after the date of such issuance and sale.
SECTION 2.5. Reports and Financial Statements; Undisclosed Liabilities.
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(a) The Purchasers have heretofore been furnished with complete and
correct copies of all Form 10-K, 10-Q and 8-K filings with the Securities and
Exchange Commission in the past three years (the "SEC Reports").
(b) Except as otherwise specifically disclosed in the SEC Reports, the
Financial Statements set forth therein for the year ended June 30, 1996 and for
periods thereafter (the "Financial Statement") were prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods except as otherwise stated therein; each of the balance sheets
included in Financial Statements fairly presents the financial condition of the
as at the close of business on the date thereof; and each of the statements of
income included in the Financial Statements fairly presents the results of
operations of the Company for the fiscal period then ended. The Company has no
liabilities or obligations of any nature, whether absolute, accrued, contingent
or otherwise, which are required to be reflected or reserved against, but are
not so reflected or reserved against in the Financial Statements, except for
liabilities that may have arisen in the ordinary and usual course of business
and consistent with past practice
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and that individually or in the aggregate do not have and could not reasonably
be expected to have a material adverse effect on the financial position or the
results of operations of the Company.
SECTION 2.6. Tax Returns. The Company has filed all tax returns and
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reports which are required to be filed with any foreign, federal, state or local
governmental authority or agency and has paid all taxes which have become due,
and made adequate provision for the payment of all taxes that will become due,
under applicable foreign, federal, state or local governmental law or
regulations with respect to the periods in respect of which such returns and
reports were filed, and all assessments of taxes. The Company has made adequate
provisions for all current taxes.
SECTION 2.7. Title to Assets. The Company owns all of its assets, and has
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good and marketable title with respect thereto, reflected in the Financial
Statements of the Company free and clear of all liens other than those disclosed
in the Financial Statements.
SECTION 2.8. Necessary Property; Condition of Property. To the best
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knowledge of the Company, the properties and assets owned, leased by or licensed
to the Company, and reflected in the Financial Statements constitute all of the
real and personal properties, tangible and intangible, which are necessary, used
or useful in the conduct of its business in the manner and to the extent
presently conducted or as presently contemplated to be conducted; and no other
material real or personal properties are required for the conduct of the
business of the Company as presently conducted.
SECTION 2.9. Necessary Licenses and Permits. To the best knowledge of the
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Company, the Company has all licenses, permits, consents, concessions and other
authorizations of governmental, regulatory or administrative agencies or
authorities, whether foreign, federal, state, or local, required to own and
lease its properties and assets and to conduct its business as now conducted
except where the failure to have such permits would not have a material adverse
effect on the results of operations or the financial position of the Company.
SECTION 2.10. Compliance with Law. The Company is in compliance in all
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material respects with all applicable laws, regulations, orders, judgments,
decrees, permits, licenses, franchises and authorizations.
SECTION 2.11. Litigation. Except as set forth in Schedule 2.11, there is
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no suit, claim, action, proceeding or investigation pending or, to the Company's
knowledge, threatened against the Company or any of its assets or properties,
and to the best knowledge of the Company, there is no reasonable basis for any
such suit, claim, action, proceeding or investigation.
SECTION 2.12. No Material Adverse Changes. Since the date of the latest
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of the Financial Statements, there has occurred no material adverse change in
the business, assets, properties (tangible and intangible), operations,
condition (financial or otherwise) or liabilities of the Company, whether or not
in the ordinary course of business, whether separately or in the aggregate with
other occurrences or developments, and whether insured against or not, and the
Company has no knowledge of any occurrence or development which might reasonably
be expected to result in any such material adverse effect.
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SECTION 2.13. Disclosure. No representation, warranty or statement made
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in this Agreement, or any agreement, certificate, statement or document
furnished by or on behalf of the Company in connection with the purchase of the
Purchased Securities contains or will contain any untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances in which they were
made, not misleading.
ARTICLE III
PURCHASER'S REPRESENTATIONS
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SECTION 3.1. Investment Intent. The Purchaser hereby represents and
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warrants to the Company that he is (and each such Designee will be) (i) an
"accredited investor" as defined in Regulation D of the Securities Act of 1933,
as amended (the "Securities Act") and (ii) acquiring the Purchased Securities
for investment and not with a view to the distribution thereof.
SECTION 3.2. Exemption. The Purchaser understands that the Purchased
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Securities are not, and will not be, registered under the Securities Act on the
grounds that the sale provided for in this Agreement and the issuance of
securities hereunder is exempt from registration under the Securities Act
pursuant to section 4(2) thereof, and that the Company's reliance on such
exemption is predicated on the Purchaser's representations set forth herein.
SECTION 3.3. Experience. The Purchaser represents that he is experienced
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in evaluating and investing in companies such as the Company, is familiar with
the risks associated with the business and operations of companies that operate
in the market research industry, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of his
investment, and has the ability to bear the economic risks of his investment.
The Purchaser represents that he has had, during the course of the transaction
and prior to his purchase of the Purchased Securities, the opportunity to
request information from and ask questions of the Company and its officers,
employees and agents, concerning the Company, its assets, business and
operations and to receive information and answers to such requests and
questions.
SECTION 3.4. Restrictions on Resale. The Purchaser understands that the
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Purchased Securities may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption therefrom, and
that in the absence of an effective registration statement covering the
Purchased Securities or an available exemption from registration under the
Securities Act, the Purchased Securities must be held indefinitely. The
Purchaser agrees that in no event will he make a transfer or disposition of any
of the Purchased Securities (other than pursuant to an effective registration
statement under the Securities Act), unless and until (i) the Purchaser shall
have notified the Company of the proposed disposition and (ii) if requested by
the Company, the Purchaser shall have furnished to the Company at the expense of
the Purchaser or his transferee, an opinion of counsel reasonably satisfactory
to the Company to the effect that such transfer may be made without registration
under the Securities Act.
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SECTION 3.5. Financial Ability. The Purchaser and the Designees together
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possess the financial resources to fulfill their obligations under this
Agreement.
ARTICLE IV
CONDITIONS TO THE PURCHASER'S OBLIGATIONS TO PURCHASE
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The Purchaser's obligation to purchase the Purchased Securities pursuant to
Section 1.1 of this Agreement is subject to compliance by the Company with its
agreements and representations herein contained, and to the satisfaction, on or
prior to the Closing Date, of the following conditions:
SECTION 4.1. Charter Documents; Good Standing Certificates. The Purchaser
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shall have received from the Company (a) a copy of the Company's Certificate of
Incorporation, certified by the Delaware Secretary of State to be true and
complete as of a date no more than five days prior to the Closing Date, (b) a
copy, certified by the Secretary of the Company to be true and complete as of
the Closing Date, of the by-laws thereof; and (c) a certificate, dated not more
than five days prior to the date hereof, of the relevant governmental authority
or other appropriate official of each state in which each of the Company is
incorporated or qualified to do business, as to the Company's corporate good
standing in such state or qualification to do business, as the case may be.
SECTION 4.2. Proof of Corporate Action. The Purchaser shall have received
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from the Company copies certified by the Secretary thereof to be true and
complete as of the Closing Date, of the records of all corporate action taken
(a) to authorize the execution, delivery and performance of this Agreement; (b)
to increase the size of the Board of Directors, to remove or accept the
resignations of existing members of the Board of Directors and to elect new
members to the Board of Directors, in such a manner so that the Board of
Directors immediately after Closing consists of eight (8) members, comprised of
Xxxxx Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), and Xxxxxx X.
Xxxxxxxxx, and five (5) of the Company's incumbent directors (collectively, the
"Director Slate"), as approved by resolution of the Board of Directors; (c) to
approve the Director Slate for submission to a vote of the stockholders of the
Company for election at the next annual or special meeting thereof; (d) to
designate an Executive Committee consisting of the Chief Executive Officer,
Xxxxxxx, Xxxxxxx and a fourth member with substantial experience in the market
research industry, to be selected by the majority vote of the other three
members of the Executive Committee; (e) to provide that, between the meetings of
the Board of Directors and while the Board of Directors is not in session, the
Executive Committee shall have the following primary responsibilities: (i) to
create opportunities in the form of acquisitions of other companies or
additional lines of business and (ii) to oversee strategic business planning and
shall also generally have the responsibility of acting on behalf of the Board of
Directors between meetings of the Board, subject to the Board's right at any
duly convened meeting to overrule any decision or act of the Executive
Committee; (f) to appoint Xxxxxxx as Chairman of the Executive Committee with
one additional vote if the Executive Committee is deadlocked on any matter; (g)
to designate a Nominating Committee consisting of Xxxxxxx and the Chief
Executive Officer; (h) to provide that, between the meetings of the Board of
Directors and while the Board of Directors
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is not in session, the Nominating Committee shall have the following powers: (i)
to nominate individuals to fill any vacancies on the Board of Directors, (ii) to
nominate, subject to Board approval, a slate of individuals to the Board of
Directors to be submitted to a vote of the stockholders of the Company at a
meeting where the election of Directors is to be voted upon, and (iii) to
perform such other duties and to exercise such other powers as may be determined
from time to time by resolution adopted by the Board of Directors; and (i) to
provide for the Executive and Nominating Committees to continue as so
constituted until the earlier to occur of (i) the Purchaser's and Designees'
undertakings in Article VI have been fully satisfied or (ii) the Company in good
faith determines that the Purchaser or the Designees have breached their
undertaking in Article VI.
SECTION 4.3. Representations and Warranties; Officer's Certificate. The
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representations and warranties contained or incorporated by reference herein
shall be true and correct in all material respects on and as of the Closing Date
with the same force and effect as though made on and as of the Closing Date
except for those representations and warranties which relate specifically to a
particular date, provided that such representations and warranties were true and
correct in all material respects as of such date; and the Company shall have
performed and complied with all conditions and agreements required to be
performed or complied with by it prior to the Closing; and the Purchaser shall
have received on the Closing Date a certificate to these effects signed by an
authorized officer of the Company.
SECTION 4.4. Legality; Governmental and Other Authorizations. The
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purchase of the Purchased Securities by the Purchaser and the Designees shall
not be prohibited by any law or governmental order or regulation, and shall not
subject the Purchaser to any penalty, special tax, or other onerous condition.
All necessary consents, approvals, licenses, permits, orders and authorizations
of, or registrations, declarations and filings with, any governmental or
administrative agency, with respect to any of the transactions contemplated by
this Agreement, shall have been duly obtained or made and shall be in full force
and effect.
SECTION 4.5. Due Diligence. The Company shall have granted the Purchaser
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full access to the Company's records and its officers, immediately upon
execution hereof, in order to conduct a thorough due diligence review, and the
Purchaser shall have completed a legal, accounting and business due diligence
review of the Company (which he agrees to complete within 14 days of the date of
this Agreement, subject to an extension of 14 additional days, up to 28 days if
the Company is unable to provide the contemplated full access in said 14-day
period) and the results thereof shall not have revealed material liabilities or
significant issues adversely affecting the Company and not disclosed in the SEC
Reports.
SECTION 4.6. Management Contracts. The Company shall have entered into an
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employment agreements with members of the Company's Management Council and other
key employees to be identified by the parties, each agreement to contain terms
and conditions and to be in form satisfactory to the Purchaser, the Company and
the contracting employee.
ARTICLE V
CONDITIONS TO THE COMPANY'S OBLIGATIONS
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The Company's obligation to sell and issue the Purchased Securities
pursuant to this Agreement is subject to compliance by the Purchaser with the
agreements herein contained, and to the satisfaction on or prior to the Closing
Date, of the following conditions:
SECTION 5.1. Representations. The representations made by the Purchaser
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in Article III hereof shall be true and correct in all material respects when
made and shall be true and correct in all material respects as of the Closing
Date.
SECTION 5.2. Designee Documentation. The Purchaser shall identify each of
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the designees of the Purchaser who will purchase Purchased Securities and who
will have the same registered in his, hers or its name, and by the Closing each
such designee shall have executed and delivered to the Company an instrument, in
form reasonably satisfactory to the Company, by which he, she or it (a) agrees
to become a party to this Agreement, to make the representations and warranties
made by the Purchaser in Article III hereof as to himself, herself or itself
only and to be fully bound by the terms and conditions hereof, and (b)
specifically joins in the covenant the Purchaser has made in Article VI hereof.
SECTION 5.3. Company's Due Diligence. The Company shall have completed a
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due diligence review of the Purchaser and his designees who will acquire
Purchased Securities, shall have verified that the representations contained in
biographies submitted by them are accurate in all significant respects and shall
have made a determination, to be made in good faith, that having the Purchaser
and the Designees as shareholders will not adversely affect the Company or its
position and reputation in its industry.
SECTION 5.4. Management Contracts. The Company shall have offered to
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enter into employment agreements with the members of the Company's Management
Council and other key employees to be identified, each agreement so offered to
contain terms and conditions and to be in form satisfactory to the Purchaser and
the Company.
SECTION 5.5. Governmental and Other Authorizations. All necessary
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consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency, with respect to any of the transactions contemplated by this Agreement,
shall have been duly obtained or made and shall be in full force and effect,
provided that the Company shall have exercised its best efforts to obtain such
consents and approvals.
SECTION 5.6. Corporate Action. The corporate action contemplated in
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Section 4.2 hereof shall have been taken.
SECTION 5.7. Nasdaq Approval. The Company shall have received approval of
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the transactions contemplated by this Agreement from The Nasdaq Stock Market,
Inc.
ARTICLE VI
SPECIAL COVENANT
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During the five (5) year period following the Closing Date, the Purchaser
and the Designees will, on a best efforts basis, assist in providing or
arranging for others to provide up to $25 million in equity financing, or debt
financing to the extent such financing exceeds $5 million in the aggregate, for
the Company to complete acquisitions and/or projects approved by the Board of
Directors, the form of the financing to be as determined by the Board of
Directors and to be on terms at least as favorable as the Company could obtain
from other sources not affiliated with the Purchaser; provided, that this
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covenant shall not be deemed to constitute an obligation to directly provide or
underwrite financing for the Company. Notwithstanding the foregoing, if during
the first twenty-four (24) months following the Closing Date, (i) The Board of
Directors has approved acquisitions and projects costing a minimum of $5 million
in the aggregate (the "Approved Acquisitions or Projects") and (ii) the
Purchaser or the Designees have either (x) not voted as a Board member in favor
of any Approved Acquisitions or Projects or (y) voted as a Board member in favor
of any Approved Acquisition or Projects and the Purchaser and the Designees
have not provided, or caused others to provide, the full $5 million in financing
as described above, then during a thirty (30) day period following the twenty-
four (24) month anniversary of the Closing Date, the Company shall have the
right to (x) purchase the Purchased Securities at ninety percent (90%) of the
then market price of the Company's Common Stock, and (y) cancel all options
under Section 1.2. In order for the Company to exercise its right described in
the preceding sentence, a majority vote of the Board of Directors (other than
the Purchaser and the Designees) must have approved such repurchase. For
purposes of this Article VI, market price is to be determined by averaging the
closing price of the Common Stock for the ten (10) trading days prior to the
exercise of the right to repurchase. To the extent the Purchaser and/or the
Designees have provided, or caused others to provide, at least $12,500,000 of
the financing undertaking described above, the Purchaser shall be entitled to
have the Purchaser and the Designees constitute one-half of the members of the
Director Slate for approval of the stockholders at the next annual meeting
called for such purpose and a majority of the Director Slate once the full $25
million undertaking has been satisfied. In the event of a breach by Purchaser
or Designees of the undertakings described in this Article VI, the Company's
sole and exclusive remedies hereunder shall be (i) the stock repurchase and
option cancellation remedies with respect to the nonsatisfaction of the above
described $5 million undertaking during the first 24 months and (ii) the right
to disband the Executive and Nominating Committees and have the Purchaser and
Designees ineligible for future Directors' Slates during the five (5) year
period covered by this Article VI, which ineligibility the Purchaser and
Designees consent to in the event that Purchaser or Designees have breached
their undertaking described in this Article VI and (x) the Board has determined
to implement the stock repurchase and option cancellation remedies (with respect
to the $5 million undertaking), or (y) following the first 24 months, the Board
has determined that the Purchaser and the Designees have breached the $25
million undertaking. A breach of this Article VI shall not exist unless and
until the Board has delivered to Purchaser a copy of a resolution duly adopted
by a majority of the Board at a meeting of the Board called and held for such
purpose, finding that a breach exists in the good faith opinion of the Board and
specifying the essential facts underlying its determination. This Article shall
not prevent Purchaser or the Designees from challenging in any court of
competent jurisdiction the Board's determination that a breach has occurred.
The Board must provide notice to Purchaser that it is intending to declare
Purchaser or Designees in breach of this Article at least 48 hours before the
Board meeting at which such action is to be voted upon, and, with respect to the
$25 million undertaking, the Board must provide the Purchaser and the Designees
with at least 30
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days written notice and an opportunity to cure in the event the Board determines
that the Purchaser and the Designees have breached such undertaking.
ARTICLE VII
EXPENSES
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In the event the transactions contemplated by this Agreement shall be
consummated or if the transactions contemplated by this Agreement are not
consummated by reason of the failure by the Company to so consummate when
legally obligated to do so hereunder, the Company hereby agrees to pay all
reasonable out of pocket fees, costs and expenses incurred by the Purchaser
(such as travel, photocopy and telephone expenses and including the expenses of
one counsel for the Purchaser), up to a maximum of $50,000.00, which amounts
shall be treated as an adjustment to the purchase price for the Purchased
Securities.
ARTICLE VIII
NOTICES
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All demands, notices, requests, consents and other communications required
or permitted under this Agreement shall be in writing and shall be personally
delivered or sent by facsimile machine (with a confirmation copy sent by one of
the other methods authorized in this Section), commercial (including FedEx) or
U.S. Postal Service overnight delivery service, or, deposited with the U.S.
Postal Service mailed first class, registered or certified mail, postage
prepaid, as set forth below:
If to the Company, addressed to:
Total Research Corporation
Princeton Corporate Center
0 Xxxxxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Drinker, Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
If to the Purchaser, addressed to:
Mr. Xxxxx Xxxxxxx
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
with a copy to:
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Xxxxxx Xxxxx, Xxx.
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
If to any other holder of record of any security, to it at its address set
forth in the applicable register maintained by the Company with respect
thereto.
ARTICLE IX
SURVIVAL OF COVENANTS, AGREEMENTS,
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REPRESENTATIONS AND WARRANTIES
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All covenants, agreements, representations and warranties made herein or in
any other document referred to herein or delivered to any party pursuant hereto
shall be deemed to have been relied on by each such party, notwithstanding any
investigation made by such party or on its behalf. All representations and
warranties made herein shall survive the execution and delivery of this
Agreement.
ARTICLE X
AMENDMENTS AND WAIVERS
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Except as otherwise expressly provided herein, any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and the Purchaser.
Any amendment or waiver effected in accordance with this Article IX shall be
binding upon the Company and each holder of any Purchased Securities sold
pursuant to this Agreement.
ARTICLE XI
RIGHT TO PUBLICIZE
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Each of the parties hereto hereby agrees that it will not, except as
required by law, issue a press release or make any public statement regarding
the transactions contemplated hereby without the prior approval of the Company
and the Purchaser, provided, however, that following the Closing, the Purchaser
will have the right to publicize his investment in the Company as contemplated
hereby by means of a tombstone advertisement or other customary advertisement in
newspapers and other periodicals which advertisement shall be reasonably
acceptable to the Company. Further, the Company will make all necessary public
disclosures and filings with the Securities and Exchange Commission and will
have the right to inform actual or prospective customers and lenders of such
investment.
ARTICLE XII
ENTIRE AGREEMENT; COUNTERPARTS; SECTION HEADINGS, ETC.
------------------------------------------------------
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This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties hereto with respect to its subject matter. This Agreement supersedes
all prior agreements and understandings between the parties with respect to its
subject matter.
Any action or decision required or permitted to be made by the Company
under this Agreement shall be made by the Company's Board of Directors, unless
otherwise expressly stated herein.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
The descriptive headings of sections and paragraphs of this Agreement are
inserted for convenience only, and do not constitute a part of this Agreement
and shall not affect in any way the meaning or interpretation of this Agreement.
The termination of this Agreement shall not cause a termination or
cancellation of Confidentiality Agreements heretofore provided by the Purchaser
and the Designees.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the day and year first above written.
COMPANY:
TOTAL RESEARCH CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxx
----------------
Title: President
-------------------------
PURCHASER:
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: XXXXX XXXXXXX
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SCHEDULE 1.1
Designees
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XXXXXX XXXXXXXX
XXXXXX XXXXXXXX
XXXXXXX X. XXXXXXX
XXXXXX X. XXXXXXX
XXXXXX X. XXXXXXXXX
XXXX X. XXXXXX
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SCHEDULE 2.11
Litigation
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The Company has received notice of a Counterclaim in a suit filed by Company
against Agricultural Marketing Research Services, t/a AMRS and Xxxxxxx Xxxxxxxx,
pending in the Superior Court of New Jersey, Docket No. L-12206-97.
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