EXHIBIT 10.73
SECOND AMENDMENT TO INVESTMENT AGREEMENT
This Second Amendment to Investment Agreement (this "AMENDMENT") is
made as of November 30, 2002 by and among INSCI, CORP., a Delaware corporation
formerly known as xxxxx-xxxxxxxxxx.xxx, corp. (the "COMPANY"), a Delaware
business corporation having its principal place of business at Two Xxxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, Selway Partners, LLC ("SELWAY") and CIP
Capital, L.P., a Delaware Limited Partnership ("CIP") and as acknowledged and
agreed to by Selway Management, Inc. a Delaware corporation ("SELWAY
MANAGEMENT").
RECITAL
WHEREAS INSCI, Selway and CIP entered into that certain Investment
Agreement dated as of November 28, 2000, as amended by that certain Amendment to
Investment Agreement among the Company, Selway and CIP (and as further amended
to date and from time to time the "SERIES A INVESTMENT AGREEMENT") pursuant to
which the Company issued certain Convertible Subordinated Debentures (the
"SERIES A DEBENTURES"); and
WHEREAS, INSCI, Selway, Selway Management and CIP entered into that
certain Investment Agreement dated as of June 21, 2001 as amended by that
certain First Amendment to Investment Agreement dated as of June 20, 2002, as
amended by the Second Amendment to Investment Agreement dated as of August 29,
2002, the Third Amendment to Investment Agreement dated as of November 11, 2002,
and the Fourth Amendment to Investment Agreement (the "FOURTH AMENDMENT") dated
of even date herewith (collectively, the "SERIES B INVESTMENT AGREEMENT")
pursuant to which the Company issued certain Convertible Subordinated Debentures
(the "SERIES B DEBENTURES"); and
WHEREAS, the Company has requested that Selway and CIP amend certain
provisions of the Series A Investment Agreement and the Series A Debentures in
anticipation of the Company not being able to repay such Series A Debentures on
the Maturity Date (as defined in such Series A Debentures) and Selway and CIP
have agreed to make such changes; and
WHEREAS, the parties hereto now desire to further amend or modify the
Series A Investment Agreement in certain respects, all as more particularly set
forth herein below.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Series A
Investment Agreement.
SECTION 2. AMENDMENTS TO SERIES A INVESTMENT AGREEMENT.
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(i) The following definition in Section 1.1 is hereby amended and
restated in its entirety to provide as follows:
"DEBENTURES" means the Company's Amended and Restated Convertible
Subordinated Debentures in the form attached as EXHIBIT A-1 and EXHIBIT A-2 to
the Second Amendment, which Amended and Restated Convertible Subordinated
Debentures shall include the amortization schedules attached thereto which will
total, in the aggregate, the amounts set forth on Exhibit B-1 to this Second
Amendment for each of the periods set forth thereon to be issued to Selway or
CIP, in each case as is appropriate, in accordance with the terms and conditions
of this Agreement, as the same may be modified, amended supplemented from time
to time.
(ii) The following definitions are added to Section 1.1 in their
appropriate alphabetical order:
"CHARTER ID" means the Company's Charter Identification
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Number.
"FIRST AMENDMENT" means the First Amendment to Investment
Agreement among the Company, Selway and CIP.
"SECOND AMENDMENT" means the Second Amendment to Investment
Agreement dated as of November 30, 2002 among the Company,
Selway and CIP.
"TAX ID" means the Company's federal tax identification
number.
(iii) Section 3.20 is amended and restated in its entirety as follows:
"Section 3.20 Corporate Status; Compliance With Listing
Requirements
(a) The Company's Charter ID is 2216826.
(b) The Company's Tax ID is 000000000.
(c) The Company's exact corporate name is "INSCI CORP."
(d) The Company's chief executive office and principal
place of business is Two Xxxxxxxxxxx Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000; and
(e) The Shares of Common Stock are duly listed for
trading on the Over-The-Counter Bulletin Board.
Except as set forth on Section 3.13 of SCHEDULE I to
this Amendment there are no proceedings pending or to
the Company's knowledge threatened against the
Company relating to its continued listing on the
Over-The-Counter Bulletin Board."
(iv) Section 3.1 CORPORATE ORGANIZATION. is amended by adding "Except
as set forth on Section 3.1 of SCHEDULE I to this Amendment" at the beginning of
the second sentence thereof.
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(v) Section 3.3 CAPITALIZATION subparagraph (a) is amended by replacing
"Schedule 3.3 hereto" in the first sentence thereof with "Schedule 3.3 to the
Second Amendment." Section 3.3 subparagraph (a) is further amended by deleting
"Schedule 4.3" in the last sentence thereof and replacing it with "Schedule
3.3".
(vi) Section 3.4 DELIVERY OF SEC FILINGS; BUSINESS is amended by
deleting "March 31, 2000" and replacing it with "March 31, 2002."
(vii) Section 4.3 INVESTMENT REPRESENTATIONS subparagraph (d) is
amended and restated in its entirety as follows:
"(d) Reserved."
(viii) Section 4.3 INVESTMENT REPRESENTATIONS subparagraph (g) is
amended and restated in its entirety as follows:
"(g) At the time of the execution of the initial Investment
Agreement dated as of November 28, 2000, Xxxx Xxxxx, Xxxx Xxxxx and Xxxxx
Xxxxxxxxxx (the "Former Directors") had recently joined the Company's Board of
Directors and were not familiar with the past operations of the Company. In that
regard, the Investors agree that while such Former Directors have voted to
approve the initial Investment Agreement dated as of November 28, 2000 and the
transactions contemplated thereby, nothing contained in the initial Investment
Agreement dated as of November 28, 2000 shall constitute any such Former
Director's personal certification of the accuracy or completeness of any of the
Company's representations or warranties contained in the initial Investment
Agreement dated as of November 28, 2000."
(ix) Section 5.3 INCREASE IN BOARD SIZE is amended and restated in its
entirety as follows:
"Section 5.3 Board of Directors. The Board shall consist of no more
than ten (10) persons. Selway shall have the right to nominate up to
three (3) persons who are elected to serve on the Board. The Board
shall also be comprised of up at least two (2) persons other than such
persons who have been nominated by Selway."
(x) Section 6.8 RIGHT OF THE INVESTORS TO PARTICIPATE IN FUTURE
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TRANSACTIONS is amended as
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follows:
The first sentence of Section 6.8 is hereby amended and
restated in its entirety as follows:
"The Investor will have a right to participate in future
non-public capital raising transactions in accordance with the
terms and conditions set forth in this Section 6.8 EXCEPT THAT
the foregoing shall not apply if any such capital raising
transaction was entered into by the Company for the purpose of
refinancing the Debentures
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and such capital raising transaction actually repays the then
current outstanding balance of the Debentures, including
without limitation any and all interest, fees and costs
related thereto."
Section 6.17 EXPENSES is amended by adding the word
"reasonably" in the first sentence thereof between the word "all" and
"expenses".
(x) Section 6.18 NEGATIVE COVENANTS subparagraph (a) (vii) is hereby
amended by deleting"$200,000" and replacing it with "$100,000."
(ix) Section 6.18 NEGATIVE COVENANTS subparagraph (a) (ix) is hereby
amended by deleting "$200,000" and replacing it with "$100,000."
(xi) Section 6.18 NEGATIVE COVENANTS subparagraph (a) (xii) is hereby
amended by adding the following at the end thereof:
"unless such appointment or compensation shall have been
approved by the Compensation Committee of the Board of
Directors, at least fifty percent (50%) of which Compensation
Committee shall have been comprised of persons nominated by
Selway. Notwithstanding the foregoing, it shall not be a
requirement that fifty percent (50%) of the Compensation
Committee be comprised of persons nominated by Selway in the
event that Selway has sent the Company written notice stating
that it has decided not to nominate any such persons to be a
member of such Compensation Committee,"
A new Section 6.19 is added as follows:
"Section 6.19 CORPORATE COVENANTS. The Company hereby
covenants and agrees that it shall not change its Charter ID,
its Tax ID, its corporate name as reflected in Section 3.20(c)
or its chief executive office or principal place of business
as reflected in Section 3.20(d) without giving the Investors
at least thirty (30) days prior written notice of such
change."
(xii) Section 11.4 GOVERNING LAW; JURISDICTION; VENUE is hereby amended
by replacing "federal courts of the State of New Jersey" with "federal court
sitting in Newark, New Jersey."
(xiii) Section 11.7 NOTICES AND DEMANDS is hereby amended as follows:
(a) by amending and restating the Company's address in its
entirety as follows:
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"INSCI CORP.
Two Xxxxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer;" and
(b) by adding Selway's and CIP's address immediately following
the Company's address in their entirety as follows:
"If to the Investor:
Selway Partners, LLC
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
CIP Capital L.P.
000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000"
SECTION 3. ADDITIONAL AGREEMENTS.
(a) OPTIONAL REDEMPTION RIGHTS. Selway and CIP each agree that they
will consider consenting to a waiver of its optional redemption rights pursuant
to Section 4.1 of each of the Debentures for additional periods in the event
that Selway receives an unqualified audit of the Company's fiscal year end
financial statements from its auditors during the term of this Agreement, which
consents and waivers, including without limitation the terms thereof, shall not
be unreasonably withheld.
(b) EVENTS OF DEFAULT.
(i) Selway and CIP each hereby agree to waive the Events of
Default (as defined in the Series A Investment Agreement) set forth on
SCHEDULE 1 to this Agreement; and
(ii) The failure of the Company to comply with any agreement,
covenant or provision in this Amendment shall constitute an immediate Event of
Default.
(c) REGISTRATION REQUIREMENTS. The Company hereby agrees to file a
Registration Statement with the Securities and Exchange Commission registering
the underlying shares of common stock issuable pursuant to the conversion of the
Series A Debentures and the Series B Debentures, and the exercise of the
warrants issued in connection with the Series A Investment Agreement on or
before September 1, 2003.
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SECTION 4. OUTSTANDING OBLIGATIONS. The Company hereby affirms and
acknowledges that (i) as of January 17, 2003, there are presently outstanding
Series A Debentures in favor of Selway in the aggregate principal amount of
1,100,000 and Series A Debentures in favor of CIP in the aggregate principal
amount of $1,100,000, in addition to, in each case, accrued interest thereon and
costs and expenses (collectively, the "AMOUNT") and (ii) the Amount is a valid
obligation of the Company and is due and owing without defense, claim, setoff or
counterclaim of any kind or nature whatsoever.
SECTION 5. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective upon satisfaction of the following conditions precedent: (i) Selway
and CIP shall each have received an original version of this Amendment executed
by the Company, Selway and CIP and consented and agreed to by Selway Management,
(ii) Selway shall have received $271,834.00 and CIP shall have received
$32,946.00, in each case in immediately available funds, which $304,779.00
aggregate amount represents a portion of the accrued and unpaid interest on the
Series A Debentures to and including January 17, 2003, (iii) Selway and CIP
shall each have received payment by the Company of all outstanding invoices for
professional fees, costs and expenses and all fees, costs and expenses including
without limitation any such costs related to this Amendment or the transactions
contemplated hereby in accordance with Section 11 hereof; (iv) the Selway and
CIP shall each have received an original version of an Omnibus Amendment and
Agreement dated of even date herewith (the "OMNIBUS AGREEMENT") among the
Company, Selway, CIP and as acknowledged and agreed by Selway Management
amending the terms and conditions of the Investment Documents (as hereinafter
defined) on terms and conditions satisfactory to Selway and CIP in all respects;
(v) Selway and CIP each shall have received an original $1,100,000 INSCI, Corp.
Amended and Restated Convertible Subordinated Debenture executed and delivered
by the Company in favor of each of them (each, an "AMENDED AND RESTATED
DEBENTURE"); (vi) Selway Management shall have received an original version of
Amendment No. 2 to Management Agreement dated of even date herewith between
Selway Management and the Company; (vii) Selway and Selway Management shall each
have received an original version of the Fourth Amendment to Investment
Agreement of even date herewith by and among the Company, Selway and Selway
Management executed and delivered by each of them; (viii) Selway Management
shall have received an original $165,000 INSCI CORP. Convertible Subordinated
Debenture executed by the Company in favor of Selway Management; (ix) Selway and
CIP shall have received such other certificates, instruments, documents,
agreements and opinions of counsel as may be required by Selway and CIP or its
counsel, each of which shall be in form and substance satisfactory to Selway and
CIP and its counsel including without limitation evidence of approval by the
independent Board of Directors of the transactions contemplated by this
Amendment; and (x) Selway and CIP shall have received an opinion of counsel to
the Company regarding the enforceability of this Amendment, the Amended and
Restated Debentures, the Omnibus Agreement and any and all related agreements
and such other matters as Selway, CIP or Selway Management shall reasonably
request.
SECTION 6. INVESTMENT DOCUMENTS RATIFIED AND CONFIRMED. The Series A
Investment Agreement, each of the other Investment Agreements (as defined in the
Series A Investment Agreement), including without limitation the Amended and
Restated Debentures and the Omnibus Agreement, and the Investment Agreements (as
defined in the Series B Investment Agreement) (collectively, referred to herein
as the "INVESTMENT DOCUMENTS"), as they may be
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specifically supplemented or amended by this Amendment, are and shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Investment
Documents and all of the collateral described therein, do, and shall continue
to, secure the payment of all obligations under the Investment Documents, in
each case as amended or supplemented pursuant to this Amendment. All references
to the "Series A Investment Agreement" or the "Investment Agreement" as the same
is intended to refer to the Series A Investment Agreement, contained in the
Investment Documents shall mean or refer to the Series A Investment Agreement as
amended and supplemented by this Amendment and as it may be further amended,
supplemented, modified and restated and in effect from time to time, including
without limitation any such amendment, supplement, modification or restatement
which increases the amount of Obligations (as defined in the Security Agreement
defined in the Series A Investment Agreement) owing by the Company thereunder.
SECTION 7. RELEASE. The Company, solely on behalf of itself, hereby
releases, remises, acquits and forever discharges each of Selway, Selway
Management and CIP and each of Selway's, Selway Management's and CIP's
employees, agents, representatives, consultants, attorneys, fiduciaries,
officers, directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of the
foregoing hereinafter called the "RELEASED PARTIES"), from any and all actions
and causes of action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every character, known
or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or
nature, for or because of any matter or things done, omitted or suffered to be
done by any of the Released Parties prior to and including the date of execution
hereof, and in any way directly or indirectly arising out of or in any way
connected to this Amendment or the Investment Documents (all of the foregoing
hereinafter called the "RELEASED MATTERS"). The Company acknowledges that the
agreements in this Section are intended to be in full satisfaction of all or any
alleged injuries or damages arising in connection with the Released Matters.
SECTION 8. CONFLICTS. In the event of any express conflict between the
terms of this Amendment and the Series A Investment Agreement, this Amendment
xxxx govern.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants as follows:
(a) This Amendment and the Series A Investment Agreement, as amended
hereby, constitute legal, valid and binding obligations of the Company and are
enforceable against the Company in accordance with their respective terms.
(b) No affiliate of Selway or Selway Management that is a member of the
Company's Board of Directors participated in the meetings approving this
Amendment, the Fourth Amendment, the other Investment Documents or any other
documents related thereto or the transactions contemplated thereby.
(c) The Board of Directors of the Company has obtained a fairness
opinion of Xxxxxx Securities, Inc. stating that the transactions contemplated by
this Amendment, the
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Fourth Amendment and the other Investment Documents are fair to the stockholders
from a financial point of view.
(d) Upon the effectiveness of this Amendment, the Company hereby
reaffirms all covenants, representations and warranties made in the Series A
Investment Agreement and the other Investment Documents, except as set forth on
SCHEDULE I to this Amendment and agrees that all such covenants, representations
and warranties except as set forth on SCHEDULE I to this Amendment shall be
deemed to have been remade as of the effective date of this Amendment.
(e) No Event of Default or Default (as defined in the Series A
Investment Agreement) has occurred and is continuing after giving effect to this
Amendment or would exist after giving effect to this Amendment, except for those
Defaults or Events of Default listed on SCHEDULE I attached hereto.
(f) The Company has no defense, counterclaim or offset with respect to
the Series A Investment Agreement.
SECTION 10. EFFECT ON THE SERIES A INVESTMENT AGREEMENT.
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(a) Upon the effectiveness of Section 2 hereof, each reference in the
Series A Investment Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Series A
Investment Agreement as amended hereby.
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Selway, Selway
Management or CIP, nor constitute a waiver of any provision of the Series A
Investment Agreement, or any other documents, instruments or agreements executed
and/or delivered under or in connection therewith.
SECTION 11. FEES, COSTS AND EXPENSES. The Company agrees to pay on
demand, after reasonable documentation and itemization of the same, all the
costs and expenses of Selway, Selway Management and CIP not paid or payable
prior to the effectiveness of this Amendment, including all consultant and legal
fees and expenses, including without limitation all reasonable fees and expenses
of counsel in connection with the preparation, execution and delivery of this
Amendment and the other documents and instruments to be delivered herewith and
all UCC search and filing fees.
Section 12. DEMAND NATURE OF SERIES A DEBENTURES. No provision of this
Amendment, including, without limitation, any reference to Events of Default
shall derogate from the demand nature of the Series A Debentures.
SECTION 13. MISCELLANEOUS. This Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Amendment, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought. This Amendment is intended to take effect as
a sealed instrument and shall for all purposes be construed in accordance with
and
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governed by the laws of the State of New Jersey (excluding the laws
applicable to conflicts or choice of law).
SECTION 14. FACSIMILE. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as an instrument under seal as of the date first
above written.
INSCI, CORP.
By:
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Xxxxx Xxxxxx
Its: President
SELWAY PARTNERS, LLC
By:
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Its:
CIP CAPITAL, L.P.
By: CIP Capital Management, Inc.
By:
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Name:
Title:
ACKNOWLEDGED AND AGREED:
SELWAY MANAGEMENT, INC.
By:
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