EXHIBIT 10(e)
STOCK CONTRIBUTION EXCHANGE AGREEMENT
This Stock Contribution Exchange Agreement (this "Agreement") is made
and entered into as of the 7th day of January, 2002, by and among Corniche Group
Incorporated, a Delaware corporation ("Corniche"), Strandtek International,
Inc., a Delaware corporation ("Strandtek"), and Xxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxxxxx X. Xxxxxxx, Xx., Xxxx Palm, Xxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxx Xxxxxxx, Xxx Xxxxx, Xxx Xxxxx and Xxxx Xxxxxx (collectively, the
"Principal Shareholders"), and Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxx
(collectively, the "Non-shareholder Loan Holders").
PRELIMINARY STATEMENTS
A. Corniche desires to acquire control of the business operated by
Strandtek through the acquisition of substantially all of the common stock of
Strandtek, and the Principal Shareholders, Non-shareholder Loan Holders, and
Cash Investors (as hereinafter defined) desire to acquire control of Corniche
through the transactions contemplated and referenced in this Agreement. The
Principal Shareholders own approximately 97% of the outstanding capital stock of
Strandtek. The Principal Shareholders and the Non-shareholder Loan Holders
(collectively the "Investor Loan Holders") own all of the Non-Institutional Debt
Securities owed by Strandtek ("Investor Loans"). Upon satisfaction of the
conditions hereinafter specified, the Principal Shareholders have agreed to
exchange their Strandtek capital stock for Corniche Common Stock and Corniche
Series D Preferred Stock, as more fully provided herein, and the Investor Loan
Holders have agreed to exchange the principal amount of, their Investor Loans
for Corniche Series C Preferred Stock, as more fully provided herein. Strandtek
thereby would become a majority owned subsidiary of Corniche, as more fully
provided herein, and upon the simultaneous closing of the Private Placement
Transaction (as hereinafter defined) the Principal Shareholders, Non-shareholder
Loan Holders and Cash Investors (as hereinafter defined) would control Corniche.
B. The Board of Directors of Strandtek has determined that this
Agreement is consistent with and in furtherance of the long-term business
strategy of Strandtek and that it is in the best interests of all of the holders
of shares of Strandtek's capital stock.
C. The respective Boards of Directors of Corniche and Strandtek have
determined that this Agreement, structured in the manner contemplated herein, is
desirable and in the best interests of their respective shareholders and, by
resolutions duly adopted, have approved and adopted this Agreement.
D. The Parties intend that the contribution and exchange of stock and
cash for capital stock of Corniche by the Principal Shareholders,
Non-shareholder Loan Holders and Cash Investors shall constitute a nontaxable
transfer of property pursuant to Section 351 of the Internal Revenue Code of
1986, as amended (the "Code") and that the stock for stock exchange described
above shall constitute a "reorganization" within the meaning of Section 368(a)
of the Code.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto (collectively, the "Parties" and each a "Party")
hereby adopt this Agreement as and for a plan
(the "Plan") under Section 368(a) of the Code, and in order to implement the
Plan, the Parties hereby represent, warrant, covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Specific Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall mean, with respect to any entity (the "Subject
Entity"), any Person which controls, is controlled by, or is under common
control with, the Subject Entity.
"Cash Investors" shall mean those entities and/or individuals providing
financing to Corniche pursuant to the Private Placement Transaction.
"Combined Material Adverse Effect" shall mean a material adverse effect
on the business, operations, assets or financial condition of Corniche and its
Subsidiaries (including Strandtek), taken as a whole.
"Corniche Common Stock" shall mean the common stock, par value $0.001
per share, of Corniche.
"Corniche Disclosure Schedule" shall mean the schedule of disclosures
separately delivered by Corniche to Strandtek simultaneously with the execution
and delivery of this Agreement and the Supplemental Disclosure Agreement.
"Corniche Material Adverse Effect" shall mean a material adverse effect
on the business, operations, assets or financial condition of Corniche and its
Subsidiaries (excluding Strandtek), taken as a whole, provided, however, that
(x) in no event shall any effect that results from (a) the public announcement
or pendency of the transactions contemplated hereby or any actions taken in
compliance with this Agreement, or (b) changes affecting the United States
economy generally constitute a Corniche Material Adverse Effect and (y) a
decrease in the market price of Corniche Common Stock will not constitute a
Corniche Material Adverse Effect (except with respect to an effect which,
independent of such decrease, would constitute an Corniche Material Adverse
Effect).
"Corniche Series C Preferred Stock" shall mean the Series C 7%
Convertible Preferred Stock, par value $0.01 per share, of Corniche, consisting
of 220,000 shares, carrying "as-if-converted" voting rights with the Corniche
Common Stock and a cumulative dividend of 7% per annum times the liquidation
preference hereinafter specified, with each share of Series C Preferred Stock
being convertible at the holders' option into 100 shares of Corniche Common
Stock (i.e., the liquidation preference of $100 hereinafter established divided
by a conversion price of $1.00 per share (the "Conversion Price")), and which
shall be automatically converted on the same terms if the Market Price (as
defined in the Certificate of Designation therefor) of the Corniche Common Stock
is equal to or higher than two times the Conversion Price for 20 consecutive
Trading Days (as defined in the Certificate of Designation therefor); provided,
however, in any such event the other conditions contained in the Certificate of
Designation annexed hereto as Appendix 1.1 to any such conversion
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are satisfied, with a liquidation preference of $100 per share and otherwise
containing the terms set forth in the Certificate of Designation annexed hereto
as Appendix 1.1.
"Corniche Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock, par value $0.01 per share, of Corniche, consisting of 640,000
shares, carrying participating dividends and "as-if-converted" voting rights
with the Corniche Common Stock as specified in the Certificate of Designation
annexed hereto as Appendix 1.2 (the "Series D Designation"), convertible at the
holder's option following satisfaction of certain conditions specified in the
Series D Designation into Corniche Common Stock at the ratio of 100 shares of
Corniche Common Stock for each share of Corniche Series D Convertible Preferred
Stock and convertible at the option of Corniche if certain conditions specified
in the Series D Designation are satisfied, and otherwise containing the terms
set forth in the Series D Designation.
"DGCL" shall mean the Delaware General Corporation Laws.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" shall mean United States generally accepted accounting
principles, consistently applied.
"Liens" shall mean liens, encumbrances, security interests, pledges,
title restrictions and other limitations on use, other than restrictions on
transfer imposed by federal or state securities laws.
"Non-Institutional Debt Securities" shall mean the Investor Loans
identified in Appendix 2.1 attached hereto.
"Person" means any individual, corporation, partnership, limited
liability company, business trust, sole proprietorship or other entity.
"Private Placement Transaction" means that certain private placement of
Corniche Common Stock to the Cash Investors by which Corniche will raise cash
net proceeds to Corniche sufficient to allow Corniche to satisfy the conditions
to Closing set forth herein, which Private Placement Transaction shall close
simultaneously with the stock exchange transactions contemplated in this
Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Strandtek Capital Stock" shall mean the Strandtek Common Stock.
"Strandtek Common Stock" shall mean the common stock, par value $0.0001
per share, of Strandtek.
"Strandtek Disclosure Schedule" shall mean the schedule of disclosures
separately delivered by Strandtek to Corniche simultaneously with the execution
and delivery of this Agreement and the Supplemental Disclosure Agreement.
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"Strandtek Material Adverse Effect" shall mean a material adverse
effect on the business, operations, assets or financial condition of Strandtek,
provided, however, that in no event shall any effect that results from (a) the
public announcement or pendency of the transactions contemplated hereby or any
actions taken in compliance with this Agreement, or (b) changes affecting the
United States economy generally constitute a Strandtek Material Adverse Effect.
"Subsidiary" when used with reference to a Person, shall mean any
entity (i) the accounts of which would be consolidated with those of such Person
in such Person's financial statements if such financial statements were prepared
in accordance with GAAP or (ii) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests or more than 50% of the profits or losses are owned, controlled or
held by such Person and/or one or more subsidiaries of such Person; provided,
however, notwithstanding the foregoing, that certain entity known as Strandtek
West, Inc., a Washington corporation ("Strandtek West") which has been dissolved
by the Secretary of State of the State of Washington prior to the draft hereof
prior to the date hereof shall not be deemed a "Subsidiary" of Strandtek.
"Supplemental Disclosure Agreement" shall mean the agreement among
Strandtek, Corniche, the Principal Shareholders and the Non-shareholder Loan
Holders executed this date with respect to the representations and warranties of
the Parties to each other.
1.2 Terms Defined in Other Sections. The following terms have the
respective meanings ascribed thereto in the following sections of this
Agreement:
Term Section
---- -------
Agreement Lead-in
Business Combination Restraints 5.9.6
Cash Amount 5.9.4
Closing 2.2
Closing Date 2.2
Code Recitals
Competing Transaction 5.13
Conversion Price 1.1
Corniche Lead-in
Corniche Business 5.3
Corniche/Strandtek Loan 5.6
Defaulting Party 7.4
Guarantors 5.6
Investor Loan Holders Recitals
Investor Loans Recitals
Key Holders Percentage 2.1
Non-Defaulting Party 7.4
Non-shareholder Loan Holders Lead-in
Note 2.4
Outside Date 7.3.3
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Parties Recitals
Plan Recitals
Premises 5.14
Principal Shareholders Lead-in
Registration Statement 5.4
Series D Designation 1.1
Strandtek Lead-in
Strandtek Parties 7.2
1.3 Interpretation. Unless otherwise indicated to the contrary herein
by the context or use thereof: (i) the words, "herein," "hereto," "hereof" and
words of similar import refer to this Agreement as a whole and not to any
particular Section or paragraph hereof; (ii) words importing the masculine
gender shall also include the feminine and neutral genders, and vice versa;
(iii) words importing the singular shall also include the plural, and vice
versa; and (iv) the word "including" means "including without limitation".
ARTICLE II
THE STOCK EXCHANGE
2.1 Exchange of Stock and Investor Loans. Upon the terms and subject to
the conditions of this Agreement, at the Closing, the Principal Shareholders
shall sell, assign, and deliver to Corniche in the aggregate 178,030,131 shares
of the Strandtek Common Stock constituting at least 97.8% (the "Key Holders
Percentage") of the issued and outstanding, and presently issuable capital stock
of Strandtek (treating stock options and warrants to purchase Strandtek Common
Stock as not being issued and outstanding, or issuable capital stock of
Strandtek), in exchange for (a) 640,000 times the Key Holders Percentage shares
of the Corniche Series D Preferred Stock and (b) 36,000,000 times the Key
Holders Percentage shares of the Corniche Common Stock, as further set forth on
Appendix 2.1. The 640,000 amount is subject to further adjustment (up or down)
pursuant to Section 2.5 below. Upon the terms and subject to the conditions of
this Agreement, at the Closing, the Investor Loan Holders shall sell, assign,
and deliver to Corniche the Non-Institutional Debt Securities in the aggregate
principal amount of not more than $22,000,000, in exchange for up to 220,000
shares of Corniche Series C Preferred Stock (i.e., 1 share of Corniche Series C
Preferred Stock for each $100 of Non-Institutional Debt Securities exchanged),
as further set forth on Appendix 2.1. Provided, however, notwithstanding
anything contained in this Agreement to the contrary, the Principal
Shareholders, Non-shareholder Loan Holders and Cash Investors shall in all
events receive as of the Closing at least eighty percent (80%) of the total
combined voting power of all classes of stock of Corniche entitled to vote, and
Corniche shall not have any other class of stock outstanding as of the Closing.
2.2 Closing Date. On the Closing Date, the Parties shall cause the
contribution and exchange of shares and Non-Institutional Debt Securities for
the Corniche Common Stock and Preferred Stock to be effected, along with the
simultaneous closing on the Private Placement Transaction, such that on the
Closing of such transactions, Corniche will own the shares of Strandtek Common
Stock constituting at least 97% of the issued and outstanding, and presently
issuable capital stock of Strandtek and the Principal Shareholders,
Non-shareholder Loan Holders, and Cash
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Investors shall own more than 80% of the total combined voting power of all
classes of stock of Corniche entitled to vote. A closing (the "Closing") shall
be held at the offices of Xxxxxxxxxx Xxxxxxx PC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 no later than the Outside Date, provided the conditions set
forth in Article VI have been satisfied or waived at or prior to such date. The
date on which the Closing takes place shall be mutually agreed to by Strandtek
and Corniche and is referred to herein as the "Closing Date"
2.3 Tax Consequences. It is intended that the contribution and exchange
of the Strandtek Common Stock, Non-Institutional Debt Securities, and cash in
exchange for the Corniche Common Stock and Preferred Stock shall qualify as a
non-taxable transfer of property pursuant to the provisions of Section 351 of
the Code. It is further contemplated and intended that the exchange of shares
shall constitute a "reorganization" within the meaning of Section 368(a) of the
Code, and that this Agreement shall constitute a "plan of reorganization" for
the purposes of the Code. All parties shall report, file, and treat the
transaction contemplated in this Agreement in a manner consistent with this
intent for all tax purposes.
2.4 Lost Certificates. In the event that any Certificate for Strandtek
Common Stock held by a Principal Shareholder or any note representing an
Investor Loan ("Note") held by a Principal Shareholder or Investor Loan Holder
shall have been lost, stolen or destroyed, upon Corniche's receipt of an
affidavit as to such loss, theft or destruction and as to the ownership of such
Certificate or Note by the Person claiming such Certificate or Note to be lost,
stolen or destroyed, and the receipt by Corniche of reasonably appropriate and
customary indemnification (which shall be in the form of a personal agreement to
indemnify but shall not include the posting of a bond or similar security),
Corniche shall deliver, in exchange for such lost, stolen or destroyed
Certificate or Note, shares of Corniche Common Stock and Series D Preferred
Stock or Series C Preferred Stock, as applicable, deliverable in respect thereof
as determined in accordance with the provisions of this Agreement.
2.5 Adjustment. The numbers 640,000 and 36,000,000 in Section 2.1 were
determined on the assumption that there would be exactly 36 million shares of
Corniche Common Stock issued and outstanding at the Closing. The 640,000 number
(but not the 36,000,000 number) will be increased or decreased to reflect the
entire proportionate adjustment due with respect to the 36,000,000 shares of
Corniche Common Stock and 640,000 shares of Corniche Series D Preferred Stock
that would occur if both amounts were proportionately increased or decreased to
compensate for the effect caused if there are more or less than 36,000,000
shares of Corniche Common Stock issued and outstanding at Closing. Thus, by way
of example and not in limitation, if there are 34,000,000 shares of Corniche
Common Stock issued and outstanding at the Closing, the number 640,000 in
Section 2.1 would be adjusted to 584,444 (computed as follows: (1) total "as if
converted" shares of Corniche Common Stock to be issued at closing:
((64,000,000+36,000,000) times (34,000,000/36,000,000)=94,444,444, (2) Decrease
in shares of Corniche Series D Preferred to be issued at closing: (a) Total
decrease in "as if converted" shares: 100,000,000-94,444,444=5,555,556 "as if
converted" shares of Corniche Common Stock; (b) Decrease in Corniche Series D
Preferred Shares: 5,555,556/100=55,556 shares). Thus, under the aforementioned
example, a total of 584,444 shares of Corniche Series D Preferred Stock and
36,000,000 shares of Corniche Common Stock times the Key Holders Percentage
would be issued
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to the Principal Shareholders at Closing. Corniche shall certify to the
Strandtek Parties at Closing the number of shares of Corniche Common Stock then
issued and outstanding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Strandtek, the Principal Shareholders and the Investor Loan Holders,
solely as to their individual interests and not jointly, represent and warrant
to Corniche, and Corniche represents and warrants to Strandtek, the Principal
Shareholders and the Investor Loan Holders, those matters specifically set forth
as being represented and warranted by them in the Supplemental Disclosure
Agreement being executed simultaneously with this Agreement in the form of
Appendix 3.1.
ARTICLE IV
INTENTIONALLY OMITTED
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Further Actions. Strandtek and Corniche agree to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and each of the Parties agree to assist and cooperate with the other
Parties in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable under the
circumstances (after taking into effect all such factors as shall reasonably
effect timing hereunder), the transactions contemplated by this Agreement,
including (a) the obtaining of all other necessary actions or non-actions,
waivers, consents, licenses, permits, authorizations, orders and approvals from
governmental authorities and the making of all other necessary registrations and
filings, (b) the obtaining of all consents, approvals or waivers from third
parties related to or required in connection herewith that are necessary to
consummate the transactions contemplated by this Agreement, (c) the closing of
the Private Placement Transaction simultaneous with the closing of the property
contribution and stock exchange transactions contemplated in this Agreement, (d)
the taking of all action necessary to ensure that the transactions contemplated
hereby and pursuant to the Private Placement Transaction constitute a
non-taxable transfer of property pursuant to Section 351 of the Code, (e) the
taking of all action necessary to ensure that the stock exchange transactions
contemplated hereby constitutes a reorganization within the meaning of Section
368(a)(1)(B) of the Code, and (f) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement. Each of the Principal
Shareholders and Investor Loan Holders that is a resident of the State of
Florida shall take such actions as are necessary to assure the expiration of any
right of rescission of such Person prior to the Closing.
5.2 Indebtedness of Employees and Shareholders. Strandtek will cause
any indebtedness in excess of an aggregate of $200,000 owing to it by any of its
employees (other than salespersons' normal draw) or by its shareholders (which
$200,000 amount will remain outstanding) to be paid in full at or before the
Closing. Strandtek will not make any loans to employees or shareholders prior to
the Closing that will result in the foregoing sentence being incorrect.
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5.3 Public Announcements. Unless otherwise required by applicable law,
the Parties shall not make any press release or other public announcement
regarding the transactions contemplated hereby or this Agreement without the
prior written consent of Corniche and Strandtek, provided that Corniche and
Strandtek may make such announcements that they deem necessary to comply with
applicable securities laws, after prior notice to the other Parties of such
announcement and a fair opportunity to comment thereon.
5.4 Post-Closing Covenants of Corniche, Strandtek and the Principal
Shareholders and Non-shareholder Loan Holders.
5.4.1 [Intentionally Omitted]
5.4.2 Strandtek shall timely provide Corniche with all
audited, unaudited and pro forma financial information and other information
required by Corniche (a) to timely file a current report on Form 8-K reporting
its acquisition of the Strandtek Common Stock and securities from the Principal
Shareholders and Non-shareholder Loan Holders, (b) to timely prepare and file
its annual report on Form 10-K for its current fiscal year, and (c) to prepare
and file a proxy statement with respect to the matters set forth in paragraph
5.4.4 below.
5.4.3 Corniche shall timely provide Strandtek with all
audited, unaudited and pro forma financial information as well as all other
information required by Strandtek (a) to timely file a current report on Form
8-K reporting Corniche's acquisition of the Strandtek Common Stock from the
Principal Shareholders and (b) to timely prepare and file its annual report on
Form 10-K for its fiscal year ended September 30, 2001.
5.4.4 Corniche shall, as promptly as practical following the
Closing Date and in all cases within 15 days of the Closing Date, (1) schedule
an annual or special shareholders meeting of the Corniche shareholders, for the
purpose of (a) (i) increasing the authorized common stock of Corniche from
75,000,000 shares to 200,000,000 shares, or (ii) subject to the consent of a
majority in number of the Principal Shareholders, effecting a reverse stock
split to provide for sufficient authorized Corniche Common Stock to allow
conversion of the Series D Preferred Stock and Series C Preferred Stock, and (b)
to elect a new board of directors of Corniche. Each Principal Shareholder and
Investor Loan Holder agrees to vote in favor of the matter referred to in (a)
above at such meeting. Corniche agrees that it shall not issue any shares of
Corniche Capital Stock, whether Corniche Common Stock or any series of preferred
stock, during the time period subsequent to the Closing and prior to the holding
of the aforementioned shareholders meeting and the election of a new board of
directors of Corniche, except pursuant to the exercise of outstanding options
and warrants.
5.4.5 Within 24 months after the Closing Date, Strandtek and
Corniche shall take all action in accordance with the federal securities laws,
the DGCL, Strandtek's Certificate of Incorporation, Strandtek's by-laws,
Corniche's Certificate of Incorporation and Corniche's by-laws necessary to
cause the shareholders of Strandtek other than the Principal Shareholders to
receive, in exchange for all remaining Strandtek shares and options and warrants
for Strandtek capital stock shares of Corniche Common Stock and options and
warrants to acquire shares of Corniche Common Stock, at an exchange rate not
less favorable than the exchange rate applicable to the Strandtek Common Stock
under Section 2.1.
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5.4.6 Registration Rights. The Principal Shareholders
receiving Corniche Common Stock incident to the contribution and exchange
transaction contemplated by this Agreement, and the Principal Shareholders and
Investor Loan Holders receiving Series C Preferred Stock and Series D Preferred
Stock incident to the contribution and exchange transaction contemplated herein
will be entitled to demand registration of the Corniche Common Stock issued to
them and the Corniche Common Stock issuable upon conversion of the Corniche
Series C and Series D Preferred Stock as hereinafter set forth. At any time
after the date that is six months following the Closing, the Principal
Shareholders and Non-shareholder Loan Holders owning a majority of voting power
of the Corniche Common Stock, Series C Preferred Stock and Series D Preferred
Stock received at the Closing contemplated in this Agreement may deliver a
notice to Corniche demanding the registration of the Corniche Common Stock
received by the Principal Shareholders and the Corniche Common Stock underlying
the Corniche Series C and Series D Preferred Stock. Upon the receipt of such
notice, and to the extent permitted by SEC regulations, Corniche will cause a
registration statement (the "Registration Statement") on the appropriate form to
be promptly filed with the SEC covering the registration for resale of all of
the shares of Corniche Common Stock issued (and issuable upon conversion) to the
Principal Shareholders and/or Investor Loan Holders, as applicable. Corniche
will use its best efforts to cause such Registration Statement to be declared
effective as soon as reasonably possible after the filing thereof with the SEC,
which filing shall take place no later than forty-five (45) days after
Corniche's receipt of written demand requiring registration (but which shall not
be required after a fiscal year end until the Form 10-K for such year has been
filed. ). Corniche agrees to use its best efforts to keep the Registration
Statement continuously effective and current until at least two (2) years
following the date the applicable Registration Statement is declared effective.
Each Principal Shareholder and/or Investor Loan Holder desiring to include
shares of Corniche Common Stock in such a Registration Statement agrees to
provide Corniche with all information regarding such individual that Corniche
may reasonably request to include such owner's shares in the Registration
Statement. All obligations and agreements of Corniche contained in this Section
5.4.6 shall be performed at Corniche's sole cost and expense.
5.5 Affiliates of Strandtek. Strandtek shall provide Corniche with a
letter specifying all of the persons or entities who, in Strandtek's opinion,
may be deemed to be "affiliates" of Strandtek and who will continue to be
affiliates of Corniche after the Closing. Corniche shall be entitled to place
legends on the certificates evidencing any shares of the Corniche Common Stock
to be received by any such "affiliate" specified in such letter and to issue
appropriate stop transfer instructions to the transfer agent for the Corniche
Common Stock owned by such affiliate.
5.6 Interim Loan. Within five (5) business days after the execution of
this Agreement, Corniche shall advance to Strandtek a loan of $1.0 million
($1,000,000) on an unsecured basis but personally guaranteed by Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxx, Xxx Xxxxxx and Xxxxx Xxxxxxx (collectively, the "Guarantors")
and otherwise possessing the terms set forth in Appendix 5.6 attached hereto.
The guaranty by each Guarantor shall be a fractional guaranty (and not joint and
several) in the amount of $250,000 each. (Such loan may be referred to
hereinafter as the "Corniche/Strandtek Loan"). Such loan shall be evidenced by
the note included in Appendix 5.6 and such other loan documentation as is
reasonably requested by Corniche. Notwithstanding anything contained in this
Agreement to the contrary, the failure of Corniche to timely fund this interim
loan shall give Strandtek, the Principal Shareholders and the Investor Loan
Holders the right to terminate this Agreement upon written notice to Corniche.
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5.7 Non-Taxable Treatment. Each of the Parties shall use its best
efforts to cause the contribution and exchange of cash, shares, and Investor
Loans hereunder to qualify as a nontaxable transfer of property to a controlled
corporation under Section 351 of the Code and as a "reorganization" under
Section 368(a) of the Code. No Party shall take any action inconsistent with the
treatment of the contribution of cash, Strandtek Shares and Investor Loans in
exchange for Corniche Shares as a nontaxable transfer of property to a
controlled corporation under Section 351 of the Code and the acquisition of
Strandtek shares in exchange for Corniche voting shares as a "reorganization"
under Section 368(a) of the Code.
5.8 Access and Information. Prior to the Closing, Corniche and
Strandtek shall (with personnel acceptable to the other Party as the disclosing
party, which acceptance shall not be unreasonably withheld) be entitled to make
or cause to be made such reasonable investigation of the disclosing party, and
the financial and legal condition thereof, as it reasonably deems necessary or
advisable, and each of Corniche and Strandtek, as the disclosing party, shall
cooperate with any such investigation. In furtherance of the foregoing, but not
in limitation thereof, each of Strandtek and Corniche, as the disclosing party,
shall (a) permit the other Party and its agents and representatives to have
reasonable access to the premises, operating systems, computer systems (hardware
and software), computer equipment and books and records of the disclosing party
upon reasonable notice during regular business hours, (b) furnish or cause to be
furnished to the other Party such financial and operating data, forecasts,
business plans, strategic plans and other data relating to Corniche, Strandtek
and their businesses as the other Party shall reasonably request from time to
time and (c) cause its accountants to furnish to the other Party and its
accountants access to all work papers relating to any of the periods covered by
financial statements provided by the disclosing party to the other Party
hereunder, subject to the execution by the other Party of such reasonable and
customary documentation as the disclosing party accountants shall request to be
executed. Prior to the Closing, neither Corniche nor its representatives shall
use any information provided to it in confidence by Strandtek for any purpose
unrelated to this Agreement, and in no event shall such persons use the
information provided by Strandtek competitively. Prior to the Closing, neither
Strandtek nor its representatives shall use any information provided to it in
confidence by Corniche for any purposes unrelated to this Agreement, and in no
event shall such persons use the information provided by Corniche competitively.
Except with respect to publicly available documents, in the event that this
Agreement is terminated, (a) Corniche will deliver to Strandtek all documents
obtained by it from Strandtek in confidence or otherwise and any copies thereof
in the possession of Corniche or its agents and representatives or, at the
option of Corniche, Corniche shall cause all of such documents and all of such
copies to be destroyed and shall certify the destruction thereof to Strandtek
and (b) Strandtek will deliver to Corniche all documents obtained by it from
Corniche in confidence or otherwise and any copies thereof in the possession of
Strandtek or its agents and representatives or, at the option of Strandtek,
Strandtek shall cause all of such documents and all of such copies to be
destroyed and shall certify the destruction thereof to Corniche. No
investigation by Corniche or Strandtek heretofore or hereafter made shall modify
or otherwise affect the conditions to the obligations of Corniche and Strandtek
to consummate the transactions contemplated hereby.
5.8 Strandtek's Affirmative Covenants. Prior to the Closing, except as
otherwise expressly provided herein or except as would not result in a Strandtek
Material Adverse Effect, Strandtek shall and the Principal Shareholders shall
cause Strandtek to:
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5.8.1 conduct its business only in the ordinary and regular
course of business consistent with past practices;
5.8.2 use reasonable commercial efforts to keep in full force
and effect its corporate existence and all material rights, franchises, the
Strandtek Proprietary Rights (as defined in the Supplemental Disclosure
Agreement) and other intellectual property rights and goodwill relating or
obtaining to the business;
5.8.3 use reasonable commercial efforts to retain its
employees and preserve its present relationships with customers, suppliers,
contractors, distributors and employees, and, except as previously disclosed to
Corniche, continue to compensate its employees consistent with past practices;
5.8.4 use reasonable commercial efforts to maintain the
Strandtek Proprietary Rights (as defined in the Supplemental Disclosure
Agreement) and other intellectual property so as not to affect adversely the
validity or enforcement thereof; maintain its other assets in customary repair,
order and condition and maintain insurance reasonably comparable to that in
effect on the date of this Agreement; and in the event of any casualty, loss or
damage to any of its assets, repair or replace such assets with assets of
comparable quality;
5.8.5 maintain its books, accounts and records in accordance
with GAAP;
5.8.6 use reasonable commercial efforts to obtain all
authorizations, consents, waivers, approvals or other actions and to make all
filings and applications necessary or desirable to consummate the transactions
contemplated hereby and to cause the other conditions to Corniche's obligation
to close to be satisfied; and
5.8.7 promptly notify Corniche in writing if, prior to the
consummation of the Closing, to its knowledge (a) any of the representations and
warranties of Strandtek or the Principal Shareholders contained in the
Supplement Disclosure Agreement cease to be accurate and complete in all
material respects other than for changes in the ordinary course of business
prior to closing or (b) Strandtek or a Principal Shareholder or Investor Loan
Holder fails to comply with or satisfy any material covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 5.8.7 shall not limit
or otherwise affect the remedies available hereunder to Corniche.
5.9 Corniche's Affirmative Covenants. Prior to the Closing, except as
otherwise expressly provided herein or except as would not result in an Corniche
Material Adverse Effect, Corniche shall (and Corniche shall cause each of its
Subsidiaries to):
5.9.1 use reasonable commercial efforts to keep in full force
and effect its corporate existence;
5.9.2 maintain its books, accounts and records in accordance
with GAAP;
5.9.3 use reasonable commercial efforts to obtain all
authorizations, consents, waivers, approvals or other actions and to make all
filings and applications necessary or desirable to
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consummate the transactions contemplated hereby and to cause the other
conditions to Strandtek's and the Parties' obligation to close to be satisfied;
and
5.9.4 subject to obtaining all required information for
disclosure, use all reasonable commercial efforts to obtain additional capital
from the Cash Investors pursuant to the Private Placement Transaction such that
at the simultaneous Closing of the transactions contemplated hereunder and the
closing of the Private Placement Transaction, Corniche has $10 million of
unencumbered cash (counting advances from Corniche to Strandtek pursuant to
Section 5.6 as Corniche cash) (the "Cash Amount") in excess of all of Corniche's
liabilities, actual or contingent, accrued or nonaccrued, and all amounts
required to be paid by Corniche to redeem all of the shares of Series A
Preferred Stock and Series B Preferred Stock as contemplated in Section 5.9.6
hereinafter (such that, by way of example and not in limitation, if Corniche's
sole liabilities, actual or contingent, accrued or nonaccrued, at Closing are a
future lease obligation in the amount of $50,000 and attorneys fees due in
connection with this transaction/Agreement in the amount of $100,000 and all
amounts due to redeem the Series A Preferred Stock and the Series B Preferred
Stock shall have been paid, Corniche would be required to have cash in the
amount of $10,150,000 at Closing to satisfy this condition).
5.9.5 if any "control share acquisition", "business
combination", voting restriction or other form of takeover statute or regulation
(collectively, "Business Combination Restraint(s)") is or shall become
applicable to the transactions contemplated hereby or any shares of Corniche
Common Stock, Series C Preferred Stock or Series D Preferred Stock to be issued
pursuant to the stock contribution and exchange transaction, Corniche and its
board of directors shall grant such approvals and take all such actions as are
reasonably necessary so that the transactions contemplated hereby, including,
without limitation, the conversion of the Series D Preferred Shares and Series C
Preferred Shares, may be consummated as promptly as practical on the terms
contemplated hereby and thereby and otherwise act to eliminate the effects of
such Business Combination Restraints on the transactions contemplated hereby and
thereby.
5.9.6 cause the conversion into Corniche Common Stock or
redemption of all shares of Corniche Series A Preferred Stock and Corniche
Series B Preferred Stock outstanding, such that the only Corniche Preferred
Stock to be issued and outstanding at and subsequent to Closing shall be the
Series C Preferred Stock and Series D Preferred Stock to be issued to the
Principal Shareholders and Investor Loan Holders as contemplated in this
Agreement.
5.9.7 promptly notify Strandtek in writing if, prior to the
consummation of the Closing, to its knowledge (a) any of the representations and
warranties of Corniche contained in the Supplemental Disclosure Agreement cease
to be accurate and complete in all material respects or (b) Corniche fails to
comply with or satisfy any material covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 5.9.7 shall not limit or otherwise affect
the remedies available hereunder to Strandtek.
Corniche may in its discretion sell or agree to sell all or
substantially all of the assets comprising the business currently being
conducted by Corniche (the "Corniche Business") provided the foregoing
conditions remain satisfied and adhered to.
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5.10 Strandtek's Negative Covenants. Prior to the Closing, without the
prior written consent of Corniche (which consent will not be unreasonably or
untimely withheld) or as otherwise expressly provided herein, Strandtek will not
(and each of the Principal Shareholders will use their reasonable best efforts
to prevent Strandtek from taking any such action) and Strandtek will cause its
subsidiary not to:
5.10.1 except as previously disclosed to Corniche, take any
action or omit to take any action which would result in Strandtek's (a)
incurring any trade accounts payable outside of the ordinary course of business
or making any commitment to purchase quantities of any item of inventory in
excess of quantities normally purchased in the ordinary course of business; (b)
increasing any of its indebtedness for borrowed money except in the ordinary
course of business and including the expansion thereof; (c) guaranteeing the
obligations of any entity not a Subsidiary of Strandtek; (d) making any
purchases of products other than from entities authorized to sell or distribute
such products; (e) merging or consolidating with, purchasing substantially all
of the assets of, or otherwise acquiring any business or any proprietorship,
firm, association, limited liability company, corporation or other business
organization; (f) increasing the rate of compensation of or paying any unusual
compensation to any officer, employee or consultant (other than regularly
scheduled increases in base salary and annual bonuses consistent with prior
practice); (g) entering into or amending any collective bargaining agreement, or
creating or modifying any pension or profit-sharing plan, bonus, deferred
compensation, death benefit, or retirement plan, or any other employee benefit
plan, or increasing the level of benefits under any such plan, or extending or
accelerating the exercisability of any outstanding stock option or increasing or
decreasing any severance or termination pay benefit or any other fringe benefit;
(h) making any representation to anyone indicating any intention of Corniche to
retain, institute, or provide any employee benefit plans; (i) declaring or
paying any dividend or making any distribution with respect to, or purchasing or
redeeming, shares of Strandtek capital stock; (j) selling, licensing or
disposing of any assets otherwise than in the ordinary course of business; (k)
taking any other action, or omitting to take any action, to the extent that such
action or omission is outside of the ordinary course of business; (l) granting
or issuing any stock, stock option, warrant or other right to purchase any
Strandtek securities (other than stock issued upon exercise of outstanding
disclosed options or warrants or certificates evidencing outstanding shares
already reflected on the schedules to the Supplemental Disclosure Agreement,
which actions shall be permissible hereunder notwithstanding any contrary
provisions of this Agreement); (m) organizing any subsidiary;
5.10.2 change any method or principle of accounting in a
manner that is inconsistent with past practice, except to the extent required by
GAAP as advised by Strandtek's regular independent accountants;
5.10.3 take any action that would likely result in the
representations and warranties of Strandtek or the Principal Shareholders or the
Investor Loan Holders set forth in the Supplemental Disclosure Agreement (other
than representations made as of a particular date) becoming false or inaccurate
in any material respect;
5.10.4 incur or create any Liens on any of its assets other
than Liens which are incurred in the ordinary course of business;
5.10.5 except as contemplated herein, take any action or omit
to take any action which would prejudice Corniche's rights to consummate each of
the transactions contemplated by
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this Agreement or to compel performance of each of the obligations of Strandtek
under this Agreement;
5.10.6 take or omit to be taken any action, or permit any of
its Affiliates to take or to omit to take any action, which would reasonably be
expected to result in a Strandtek Material Adverse Effect;
5.10.7 take any action or issue any shares of Strandtek
capital stock that would result in the Principal Shareholders owning less than
the Key Holders Percentage of the capital stock of Strandtek;
5.10.8 consummate the acquisition of any entity; or
5.10.9 agree or commit to take any action precluded by this
Section 5.10.
5.11 Corniche's Negative Covenants. Prior to the Closing, without the
prior written consent of Strandtek (which consent will not be unreasonably or
untimely withheld) or as otherwise expressly provided herein, including in the
last sentence of Section 5.9, Corniche will not and Corniche will cause its
Subsidiaries not to:
5.11.1 except as previously disclosed to Strandtek, take any
action or omit to take any action which would result in Corniche's (a) incurring
any trade accounts payable outside of the ordinary course of business or making
any commitment to purchase quantities of any item of inventory in excess of
quantities normally purchased in the ordinary course of business; (b) increasing
any of its indebtedness for borrowed money except in the ordinary course of
business; (c) guaranteeing the obligations of any entity; (d) making any
purchases of products other than from entities authorized to sell or distribute
such products; (e) merging or consolidating with, purchasing substantially all
of the assets of, or otherwise acquiring any business or any proprietorship,
firm, association, limited liability company, corporation or other business
organization; (f) increasing the rate of compensation of or paying any unusual
compensation to any officer, employee or consultant (other than regularly
scheduled increases in base salary and annual bonuses consistent with prior
practice); (g) entering into or amending any collective bargaining agreement, or
creating or modifying any pension or profit-sharing plan, bonus, deferred
compensation, death benefit, or retirement plan, or any other employee benefit
plan, or increasing the level of benefits under any such plan, or extending or
accelerating the exercisability of any outstanding stock option or increasing or
decreasing any severance or termination pay benefit or any other fringe benefit;
(h) making any representation to anyone indicating any intention of Corniche to
retain, institute, or provide any employee benefit plans; (i) declaring or
paying any dividend or making any distribution with respect to, or purchasing or
redeeming, shares of Corniche capital stock, other than the redemption of
Corniche Series A Preferred Stock and Corniche Series B Preferred Stock; (j)
making any capital expenditures; (k) taking any other action, or omitting to
take any action, to the extent that such action or omission is outside of the
ordinary course of business; (l) granting or issuing any stock, stock option,
warrant or other right to purchase any Strandtek securities (other than stock
issued upon exercise of outstanding disclosed options or warrants or
certificates evidencing outstanding shares already reflected on the schedules to
the Supplemental Disclosure Agreement); or (m ) organizing any subsidiary;
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5.11.2 change any method or principle of accounting in a
manner that is inconsistent with past practice, except to the extent required by
GAAP as advised by Corniche's regular independent accountants;
5.11.3 take any action that would likely result in the
representations and warranties of Corniche set forth in the Supplemental
Disclosure Agreement (other than representations made as of a particular date)
becoming false or inaccurate in any material respect;
5.11.4 except as contemplated herein, take any action or omit
to take any action which would prejudice Strandtek's or the Principal
Shareholders' rights to consummate each of the transactions contemplated by this
Agreement or to compel performance of each of the obligations of Corniche under
this Agreement;
5.11.5 take or omit to be taken any action, or permit any of
its Affiliates to take or to omit to take any action, which would reasonably be
expected to result in an Corniche Material Adverse Effect;
5.11.6 incur or create any Liens on any of its assets;
5.11.7 consummate the acquisition of any entity (by merger,
combination, purchase of more than a majority of the equity of such entity or
purchase 15% or more of the assets of such entity);
5.11.8 agree or commit to take any action precluded by this
Section 5.11; or
5.11.9 take any action or issue any shares of Corniche Common
Stock that would result in there being more than 39,000,000 shares of Corniche
Common Stock issued and outstanding as of the Closing.
5.12 Closing Documents. Strandtek, the Principal Shareholders and the
Non-shareholder Loan Holders shall, prior to or on the Closing Date, execute and
deliver, or cause to be executed and delivered, to Corniche the documents or
instruments described in Section 6.2, and all other documents contemplated in
this Agreement to be delivered incident to the Closing or reasonably required
incident to the Closing. Corniche shall, prior to or on the Closing Date,
execute and deliver, or cause to be executed and delivered, to Strandtek, the
Principal Shareholders and the Non-shareholder Loan Holders the documents or
instruments described in Section 6.3, and all other documents contemplated in
this Agreement to be delivered incident to the Closing or reasonably required
incident to the Closing. All such closing documents shall be in a form
reasonably acceptable to the respective legal counsel of the Parties.
5.13 No Solicitation. Strandtek and each of the Principal Shareholders
agrees that, during the term of this Agreement, it shall not, and it, and
Strandtek shall cause its officers, employees, agents or representatives, not
to, directly or indirectly, solicit, initiate, encourage or facilitate, or
furnish or disclose non-public information in furtherance of, any inquiries or
the making of any proposal with respect to any recapitalization, merger,
consolidation or other business combination involving Strandtek, or acquisition
of any capital stock of Strandtek (other than upon exercise of options or
warrants heretofore disclosed to Corniche by Strandtek) or 15% or more of the
assets of
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Strandtek in a single transaction or a series of related transactions, or any
acquisition by Strandtek of any material assets or capital stock of any other
Person, or any combination of the foregoing (a "Competing Transaction"), or
negotiate, explore or otherwise engage in discussions with any Person (other
than Corniche, or its respective directors, officers, employees, agents and
representatives) with respect to any Competing Transaction or enter into any
agreement, arrangement or understanding requiring it to abandon, terminate or
fail to consummate the stock exchange or any other transactions contemplated by
this Agreement. Strandtek will immediately cease all existing activities,
discussions and negotiations with any parties conducted heretofore with respect
to any proposal for a Competing Transaction. Notwithstanding any of the
foregoing provisions of this Section 5.13 to the contrary, nothing contained in
this Section 5.13 shall prohibit or inhibit the Board of Directors of Strandtek
from discharging its fiduciary duties vis-a-vis Strandtek in their role as
directors as determined in good faith after consultation with its outside legal
counsel; but, provided all terms and conditions contained in this Agreement to
the Principal Shareholders' and Non-shareholder Loan Holders' obligations to
close have been satisfied, the Principal Shareholders and Non-shareholder Loan
Holders must nonetheless proceed with the stock exchange regardless of any
position taken by such persons in their capacities as directors, and Strandtek
may not hinder the individuals from exchanging their Strandtek stock and notes
with Corniche or otherwise seek to cause the Principal Shareholders of
Non-shareholder Loan Holders to breach their obligations hereunder.
5.14 Environmental Matters. Prior to the Closing, Corniche shall have
the right, at its expense, to make such environmental studies of each of the
premises at which Strandtek conducts business (the "Premises"), including
reviewing records, inspecting the properties and testing the air, subsoil,
groundwater and building materials at the Premises, or otherwise obtain
environmental data from Strandtek as it deems necessary to determine whether the
Premises are in compliance with all applicable Environmental Laws and whether
any Regulated Substances are present at the Premises, and Corniche shall
indemnify and hold Strandtek and its Subsidiaries harmless from any loss, cost
or damage proximately caused by such inspection.
ARTICLE VI
CONDITIONS
6.1 Conditions to the Obligations of Each Party. The obligations of
each Party to consummate the stock exchange contemplated hereby shall be subject
to the satisfaction of the following conditions:
6.1.1 No governmental authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order which is in effect,
which would prohibit consummation of the transactions contemplated by this
Agreement or would result in a Combined Material Adverse Effect upon
consummation of such transactions.
6.1.2 There shall not be pending any legal proceeding by any
governmental authority or other third party (i) challenging or seeking to
restrain or prohibit the consummation of this Agreement, (ii) seeking to
prohibit or limit the ownership or operation by Strandtek, Corniche or any
Subsidiary of Corniche or Strandtek of, or to compel Strandtek, Corniche or any
Subsidiary
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of Corniche or Strandtek to dispose of or hold separate, any material portion of
the business or assets of Strandtek, Corniche or any Subsidiary of Corniche or
Strandtek, as a result of the transactions contemplated by this Agreement, (iii)
seeking to impose limitations on the ability of Corniche to acquire or hold, or
exercise full rights of ownership of, any shares of capital stock of Strandtek,
including the right to vote such capital stock on all matters properly presented
to the shareholders of Strandtek, (iv) seeking to impose limitations on the
ability of the Principal Shareholders and/or Non-shareholder Loan Holders to
acquire or hold, or exercise full rights of ownership of, any shares of capital
stock of Corniche, including the right to vote such capital stock on all matters
properly presented to the shareholders of Corniche, (v) seeking to prohibit
Corniche or any Subsidiary of Corniche or Strandtek from effectively controlling
in any material respect the business or operations of Corniche or the
Subsidiaries of Corniche or Strandtek or (vi) threatening the imposition of any
action which would result in a Combined Material Adverse Effect upon
consummation of the transactions contemplated by this Agreement.
6.2 Conditions to Corniche's Obligations. The obligations of Corniche
to consummate the transactions contemplated by this Agreement shall be subject
to the fulfillment prior to or at Closing of each of the following conditions:
6.2.1 The representations and warranties of Strandtek, the
Principal Shareholders and the Investor Loan Holders as applicable, set forth in
the Supplemental Disclosure Agreement shall be true and correct in all material
respects (other than representations and warranties which are qualified as to
materiality, which representations and warranties shall be true in all respects)
on the date hereof and on and as of the Closing Date as though made on and as of
the Closing Date (except for representations and warranties made as of a
specified date, which shall be measured only as of such specified date).
6.2.2 Strandtek, the Principal Shareholders and the Investor
Loan Holders shall have performed in all material respects each obligation and
agreement and shall have complied in all material respects with each covenant to
be performed and complied with by it under this Agreement at or prior to the
Closing.
6.2.3 Strandtek shall have (a) filed with the SEC its Annual
Reports on Form 10-K for the years ended September 30, 1998, 1999, 2000 and 2001
and all Quarterly Reports on Form 10-Q for the quarters ended December 31, 2000,
March 31, 2001 and June 30, 2001 and any other reports required to be filed for
periods after September 30, 2001, and (b) filed all federal and state tax
returns due as of or prior to the Closing Date, which returns shall show no
material liabilities due to any taxing authority and net operating losses
consistent with prior disclosures to Corniche. Since September 30, 2000, there
shall not have occurred, nor shall Corniche have discovered in its continued due
diligence any act, event or omission resulting in an Strandtek Material Adverse
Effect, nor any loss or damage to the assets of Strandtek, whether or not
insured, which materially affects the ability of Strandtek to conduct it
businesses. Corniche shall have received a certificate (executed by the
President or a Vice-President of Strandtek to such officer's best knowledge),
dated as of the Closing Date, to the foregoing effect and to the further effect
that any liabilities of Strandtek at the date hereof which were not reflected on
the Current Balance Sheet (as defined in the Supplemental Disclosure Agreement)
are either (a) liabilities or obligations incurred in the ordinary course of
business and consistent with past practice since the date of the Current Balance
Sheet that would not,
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singly or in the aggregate, be reasonably expected to have an Strandtek Material
Adverse Effect or (b) liabilities contemplated by this Agreement.
6.2.4 All material authorizations, consents, waivers,
approvals or other actions required in connection with the execution, delivery
and performance of this Agreement by Strandtek and Corniche and the consummation
by Strandtek and Corniche of the transactions contemplated hereby shall have
been obtained and shall be in full force and effect. Strandtek and Corniche
shall have obtained any authorizations, consents, waivers, approvals or other
actions required to prevent a material breach or default by Strandtek, Corniche
or any Subsidiary of Corniche or Strandtek under any material contract to which
Strandtek, Corniche or any Subsidiary of Corniche or Strandtek is a party or for
the continuation of any material agreement to which Strandtek, Corniche or any
Subsidiary of Corniche or Strandtek is a party. In particular, Strandtek shall
have obtained the consent of all customers, lenders and lessors, including those
listed on Schedule 3.19.2 to the Supplemental Disclosure Agreement, without any
material cost or adverse change in contract terms, including but not limited to
any acceleration of the obligations owed to any such Persons.
6.2.5 There shall not be pending any legal proceedings
relating to Strandtek which have a reasonable likelihood of being determined
adversely to Strandtek and, if so determined, would be reasonably likely to have
an Combined Material Adverse Effect after the Closing.
6.2.6 Prior to or at the Closing, Strandtek, the Principal
Shareholders and the Investor Loan Holders shall have delivered such other
closing documents as shall be reasonably requested by Corniche in form and
substance acceptable to Corniche (which acceptance shall not be unreasonably
withheld), including the following:
6.2.6.1 a certificate of the President or
Vice-President of Strandtek, dated the Closing Date, to the effect that (1) the
person signing such certificate is familiar with this Agreement, (2) with
respect to Strandtek, the conditions specified in Section 6.2.1, 6.2.2 and 6.2.9
have been satisfied or identifying any exceptions (in which case Corniche may
refuse to close based on any such exceptions), and (3) with respect to the
Principal Shareholders and Investor Loan Holders, to the knowledge of such
person, the conditions specified in Section 6.2.1 and 6.2.2 have been satisfied
or identifying any exceptions (in which case Corniche may refuse to close based
on such exceptions);
6.2.6.2 a certificate of the Secretary or Assistant
Secretary of Strandtek, dated the Closing Date, as to the incumbency of any
officer of such entity executing this Agreement;
6.2.6.3 a certified copy of (1) the Certificate of
Incorporation and by-laws of Strandtek and all amendments thereto, and (2) the
resolutions of Strandtek's Board of Directors authorizing the execution,
delivery and consummation of this Agreement and the transactions contemplated
hereby;
6.2.6.4 good standing certificates with respect to
Strandtek from such jurisdictions as Corniche shall reasonably designate;
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6.2.6.5 share certificates for the shares being
exchanged hereunder, free and clear of all Liens, duly endorsed by the Principal
Shareholders and accompanied by duly executed stock powers in form sufficient to
permit transfer of all such shares to Corniche;
6.2.6.6 evidence of the Investor Loans duly
surrendered for cancellation by the Investor Loan Holders; and
6.2.6.7 a certificate of each Principal Shareholder
and Investor Loan Holder, which certificates shall not survive Closing, to the
effect that the conditions specified in Sections 6.2.1 and 6.2.2 with respect to
such Principal Shareholder or Investor Loan Holder have been satisfied or
identifying any exceptions (in which case Corniche may refuse to close based on
any such exceptions).
6.2.7 Strandtek Loans.
6.2.7.1 The aggregate indebtedness of Strandtek at
the Closing Date to banks and other financial institutions (including interest
owed and unpaid thereon) and the principal amount of "Investor Loans" (excluding
the Corniche/Strandtek Loans, accrued and unpaid interest on the Investor Loans,
accounts payable, accrued expenses and the like) shall be less than $34 million
in the aggregate. Strandtek and the Investor Loan Holders represent that the
current amount due with respect to the Investor Loans described above is as set
forth on Appendix 2.1.
6.2.7.2 The aggregate principal indebtedness
(excluding accrued and unpaid interest on the Investor Loans) of Strandtek due
at the Closing Date to the Investor Loan Holders (the "Investor Loans") shall be
equal to or less than $22 million (after the Strandtek repayments contemplated
in Section 6.3.9). Strandtek and the Investor Loan Holders represent that the
current indebtedness of Strandtek to such individuals is as set forth in Section
3.2.3 of the Strandtek Disclosure Schedules.
6.2.8 Options and Warrants:
6.2.8.1 Except for Xxx Xxxxx, who will continue to
own 150,000 Strandtek Series B Warrants and 150,000 Strandtek Series C Warrants,
each Principal Shareholder and Investor Loan Holder shall have exercised or
canceled all options, warrants, or other securities convertible into, or
exchangeable or exercisable for Strandtek Capital Stock.
6.2.8.2 There shall be outstanding no options,
warrants, or other securities convertible into, or exchangeable or exercisable
for Strandtek Capital Stock, except as set forth on Schedule 3.2.2 to the
Supplemental Agreement, as follows -- up to 500,000 Series A Warrants
exerciseable at $.41 per share (with an expiration date of no later than
September 30, 2004), up to 300,000 Series B warrants exercisable at $.81 per
share, and up to 300,000 Series C warrants exercisable at $1.22 per share.
6.2.9 Affiliate Agreements. All transactions and agreements
between Strandtek and its Affiliates (including the Principal Shareholders and
their Affiliates) have been terminated except the Management Agreement fully
described in Schedule 3.3.3 to the Supplemental Disclosure Agreement and the
group insurance trust, each of which shall continue and annual salaries of
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$25,000, $45,000 and $45,000 shall continue to be paid to Messrs. Xxxxxx,
Buckles and Xxxxxxx until new chief executive and chief financial officers are
elected.
6.3 Conditions to Strandtek's, the Principal Shareholders' and Investor
Loan Holders' Obligations. The obligations of the Strandtek, the Principal
Shareholders and the Investor Loan Holders to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing of each of the following conditions:
6.3.1 The representations and warranties of Corniche set forth
in Supplemental Disclosure Agreement shall be true and correct in all material
respects (other than representations and warranties which are qualified as to
materiality, which representations and warranties shall be true in all respects)
on the date hereof and on and as of the Closing Date as though made on and as of
the Closing Date (except for representations and warranties made as of a
specified date, which shall be measured only as of such specified date).
6.3.2 Corniche shall have performed in all material respects
each obligation and agreement and shall have complied in all material respects
with each covenant to be performed and complied with by Corniche under this
Agreement at or prior to the Closing, including, without limitation, the
redemption of the Corniche Series A Preferred Stock and the redemption and/or
conversion into Corniche Common Stock of the Corniche Series B Preferred Stock,
and the delivery to the Principal Shareholders and the Investor Loan Holders of
the Corniche Common Stock, Corniche Series D Preferred Stock, and Corniche
Series C Preferred Stock, respectively, to which they are entitled to pursuant
to the terms hereof, such that the only capital stock of Corniche outstanding as
of the Closing Date shall be shares of stock determined under Section 351 of the
Code to be voting stock of Corniche.
6.3.3 Since September 30, 2001 (the date of Corniche's most
recent filed Form 10-Q) there shall not have occurred, nor shall the Strandtek
Parties have discovered in their continued due diligence, any act, event or
omission resulting in an Corniche Material Adverse Effect, nor any loss or
damage to the assets of Corniche, whether or not insured, which materially
affects the ability of Corniche to conduct its business. Strandtek shall have
received a certificate (executed by the President or a Vice-President of
Corniche to such officer's best knowledge), dated as of the Closing Date, to the
foregoing effect and to the further effect that there are no liabilities, actual
or contingent, accrued or unaccrued, of Corniche at the Closing Date which were
not reflected on the Current Balance Sheet (as defined in the Supplemental
Disclosure Agreement), or disclosing any such liabilities, actual or contingent,
accrued or unaccrued, not reflected on the Current Balance Sheet of Corniche.
6.3.4 All material authorizations, consents, waivers,
approvals or other actions required in connection with the execution, delivery
and performance of this Agreement by Strandtek and Corniche and the consummation
by Strandtek and Corniche of the transactions contemplated hereby shall have
been obtained and shall be in full force and effect. Strandtek and Corniche
shall have obtained any authorizations, consents, waivers, approvals or other
actions required to prevent a material breach or default by Strandtek, Corniche
or any Subsidiary of Corniche or Strandtek under any material contract to which
Strandtek, Corniche or any Subsidiary of Corniche or Strandtek is a party or for
the continuation of any material agreement to which Strandtek, Corniche or any
Subsidiary of Corniche or Strandtek is a party.
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6.3.5 There shall not be pending any legal proceedings
relating to Corniche which have a reasonable likelihood of being determined
adversely to Corniche and, if so determined, would be reasonably likely to have
an Combined Material Adverse Effect after the Closing.
6.3.6 Prior to or at the Closing, Corniche shall have
delivered such other closing documents as shall be reasonably requested by
Strandtek in form and substance acceptable to Strandtek (which acceptance shall
not be unreasonably withheld), including the following:
6.3.6.1 a certificate of the President or a Vice
President of Corniche, dated the Closing Date, to the effect that (1) the person
signing such certificate is familiar with this Agreement and (2) the conditions
specified in Sections 6.3.1 and 6.3.2 have been satisfied or identifying any
exceptions (in which case Strandtek, the Principal Shareholders and the Investor
Loan Holders each may refuse to close based on any such exceptions);
6.3.6.2 a certificate of the Secretary or Assistant
Secretary of Corniche dated the Closing Date, as to the incumbency of any
officer of Corniche executing this Agreement;
6.3.6.3 a certified copy of (1) the Restated
Certificate of Incorporation and by-laws of Corniche and all amendments thereto,
and (2) the resolutions of Corniche's Board of Directors authorizing the
execution, delivery and consummation of this Agreement and the transactions
contemplated hereby;
6.3.6.4 good standing certificates with respect to
Corniche from such jurisdictions as Strandtek shall reasonably designate; and
6.3.6.5 share certificates for the shares being
issued hereunder, free and clear of all Liens, duly authorized and issued, fully
paid and non-assessable, and free from any voting limitations and/or
restrictions and/or Business Combination Restraints.
6.3.7 Corniche shall simultaneously close the Private
Placement Transaction and as a result thereof shall have unencumbered cash and
cash equivalents in excess of all Corniche liabilities, actual or contingent,
accrued or unaccrued, and after payment of all amounts required to be paid to
redeem to Corniche Series A Preferred Stock and Corniche Series B Preferred
Stock, of not less than the Cash Amount as of the Closing Date (such that, by
way of example and not in limitation, if Corniche's sole liabilities, actual or
contingent, accrued or unaccrued, at Closing are a future lease obligation in
the amount of $50,000 and attorney fees due in connection with this
transaction/Agreement in the amount of $100,000 and all amounts due to redeem
the Series A Preferred Stock and the Series B Preferred Stock have been paid,
Corniche would be required to have cash in the amount of $10,150,000 at Closing
to satisfy this condition).
6.3.8 There shall be no Corniche preferred stock issued or
outstanding at or subsequent to the Closing Date other than the Series C
Preferred Stock and Series D Preferred Stock to be issued to the Principal
Shareholders and Investor Loan Holders as contemplated in this Agreement. The
Principal Shareholders, Non-shareholder Loan Holders and Cash Investors shall
receive as of the Closing at least eighty percent (80%) of the total combined
voting power of all
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classes of stock of Corniche entitled to vote, and Corniche shall not have any
other class of stock outstanding as of the Closing.
6.3.9 The Investor Loan Holders and the Principal Shareholders
and/or their affiliates shall have received payment from Strandtek for all
accrued and unpaid interest owed to them and Mssrs. Xxxxxx, Buckles and Xxxxxxx
shall have received payment for all compensation owed to them, in an aggregate
amount not to exceed $2.5 million for such interest and compensation, and, Xx.
Xxxxxxx (as to $21,000) and Xx. Xxxxx Xxxxxxx (as to the remainder) shall have
received payment of the amount by which the principal balance of the Investor
Loans exceeds $22 million.
6.3.10 Strandtek, the Principal Shareholder and the Investor
loan Holders shall have received a tax opinion from Ernst & Young, LLP in form
and content acceptable to them opining that the stock exchange transactions
contemplated by this Agreement constitute a non-taxable transfer of property to
a controlled corporation pursuant to the provisions of Section 351 of the Code.
6.3.11 There shall be outstanding no more than 780,500
options, warrants or other securities convertible into, or exchangeable for
Corniche capital stock, common or preferred. No such options, warrants or
securities have an exercise conversion or exchange price less than $.31.
6.3.12 There shall be no more than 39,000,000 shares of
Corniche Common Stock issued and outstanding as of the Closing Date.
6.4 By closing, each Party shall be deemed to have irrevocably
represented and warranted that they have, with respect to any (a) covenants to
be performed by other Parties prior to Closing (but not with respect to
covenants or agreements to be performed post Closing) and (b) conditions
applicable to their obligation to close, waived or verified compliance with all
such covenants to be performed prior to Closing and such closing conditions, and
no such matters shall be a basis for any subsequent claims by any such Party,
except for claims based on fraud. All such covenants and agreements to be
performed post Closing shall survive the Closing for an indefinite period of
time.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Amendment. This Agreement may be amended by the Parties, in the
case of Corniche or Strandtek, by action taken or authorized by their respective
Boards of Directors (or authorized Executive Committees thereof).
Notwithstanding the foregoing, this Agreement may not be amended except by an
instrument in writing signed on behalf of each of the Parties.
7.2 Extension; Waiver. At any time prior to the Closing Date, Corniche
(with respect to Strandtek, the Principal Shareholders and the Investor Loan
Holders (collectively, the "Strandtek Parties") and the Strandtek Parties (with
respect to Corniche) by action taken or authorized individually by them, or by
their respective Boards of Directors (or authorized Executive Committees
thereof) in the case of Corniche and Strandtek, may, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations or
other acts of such Party, (b) waive any inaccuracies
-22-
in the representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a Party to any such
extension or waiver shall be valid only if set forth in a written instrument
signed on behalf of such Party except as otherwise provided to the contrary in
this Agreement.
7.3 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
7.3.1 by mutual written consent of Corniche and the Strandtek
Parties;
7.3.2 by either Corniche or the Strandtek Parties if there
shall be any law or regulation that, as supported by the written opinion of
legal counsel, makes consummation of the transactions contemplated hereby
illegal or otherwise prohibited, or if any judgment, injunction, order or decree
of a court or other competent governmental authority enjoining Corniche or any
of the Strandtek Parties from consummating the transactions contemplated hereby
shall have been entered and such judgment, injunction, order or decree shall
have become final and nonappealable;
7.3.3 by either Corniche or the Strandtek Parties if the
transactions hereunder shall not have been consummated on or before January 30,
2002 (the "Outside Date");
7.3.4 by Corniche or the Strandtek Parties if, at or before
the completion of the Closing, it shall have discovered that any representation
or warranty made in this Agreement or in the Supplemental Disclosure Agreement
for its benefit, or in any certificate, exhibit or document furnished to it
pursuant to this Agreement, is untrue in any material respect (other than
representations and warranties which are qualified as to materiality, which
representations and warranties will give rise to termination if untrue in any
respect); provided, however, that in order to terminate this Agreement under
this Section 7.3.4, the terminating Party shall, upon discovery of such a breach
or default, give written notice thereof to the breaching or defaulting Party and
the latter shall fail to cure the breach or default by the earlier of thirty
(30) calendar days after receipt of such notice or the day immediately prior to
the Outside Date;
7.3.5 by Corniche if any of the Strandtek Parties shall have
defaulted in the performance of any material obligation under this Agreement;
provided, however, that in order to terminate this Agreement under this Section
7.3.5, Corniche shall, upon discovery of such a breach or default, give written
notice thereof to Strandtek and the Principal Shareholders and Strandtek or the
Principal Shareholders shall fail to cure the breach or default by the earlier
of thirty (30) calendar days after receipt of such notice or the day immediately
prior to the Outside Date;
7.3.6 by the Strandtek Parties, if Corniche shall have
defaulted in the performance of any material obligation under this Agreement;
provided, however, that in order to terminate this Agreement under this Section
7.3.6 with respect to any breach other than a breach of Section 5.6, the
Strandtek Parties shall, upon discovery of such a breach or default, give
written notice thereof to Corniche and Corniche shall fail to cure the breach or
default by the earlier of thirty (30) calendar days after receipt of such notice
or the day immediately prior to the Outside Date;
-23-
7.3.7 by Corniche or the Strandtek Parties if any
authorization, consent, waiver or approval required for the consummation of the
transactions contemplated hereby shall require the divestiture or cessation of
any of the present business or operations conducted by Corniche, its
Subsidiaries or Strandtek or its Subsidiaries, or shall impose any other
condition or requirement, which divestiture, cessation, condition or requirement
would constitute a Combined Material Adverse Effect upon consummation of the
transactions contemplated by this Agreement;
7.3.8 by Corniche, in the event that any of the conditions to
its obligations set forth in Article VI have not been satisfied or waived by the
Outside Date or in the event that any such condition cannot possibly be
satisfied prior to the Outside Date; or
7.3.9 by the Strandtek Parties, in the event that any of the
conditions to its obligations set forth in Article VI have not been satisfied or
waived by the Outside Date or in the event that any such condition cannot
possibly be satisfied prior to the Outside Date.
7.4 Effect of Non-compliance or Failure to Satisfy Conditions. In the
event any Party fails to comply or satisfy any of its covenants and agreements
to be performed prior to the Closing Date as herein provided, or if any Party's
representations and warranties hereunder or pursuant to the Supplemental
Disclosure Agreement shall be inaccurate in any respect, (hereinafter, any such
Party whose covenants, agreements, representations or warranties may not be
satisfied or accurate at the Closing Date may be referred to as a "Defaulting
Party" and all other Parties may be hereinafter referred to as the
"Non-Defaulting Party"), or if any conditions to a Party's obligation to close
the transactions contemplated in this Agreement are not satisfied prior to the
Closing Date, the Non-Defaulting Party's sole rights and remedies (or the
applicable Party's sole rights and remedies, in the case of a failure to satisfy
any condition to such Party's obligation to close) shall be either to (a) waive
any such non-compliance with such covenants, agreements, representations,
warranties and conditions and any claim to damages on account thereof and
complete the transactions contemplated in this Agreement subject to all such
waivers, inaccuracies and defects and without any liability for such
inaccuracies or defects and without any abatement of the consideration to be
exchanged hereunder, or (b) notify the Defaulting Party and other Parties that
it elects not to complete the transactions contemplated by this Agreement, in
which event of termination all rights and liabilities of the Parties each to the
other pursuant to this Agreement and any documents executed in connection
herewith, except for any provisions relating to the confidentiality obligations
of the Parties to each other and the provisions of Section 9.9, shall end and
terminate without liability to the others. The aforementioned options provided
to a Non-Defaulting Party, or a Party whose conditions to Closing have not been
satisfied, in the event of any such defect, matter, condition or item are the
sole and exclusive remedy of such Non-Defaulting Party (or Party whose
conditions to Closing have not been satisfied) with respect to any such matters,
and in no event shall a Party have the right to seek damages or specific
performance from another Party on account thereof, all such rights and claims
being hereby irrevocably waived and released. Notwithstanding any of the
provisions of this Section 7.4 to the contrary, if Closing occurs, all covenants
and agreements to be performed post-Closing shall survive the Closing for an
indefinite period of time and shall be enforceable by the applicable Parties.
-24-
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 Survival of Representations and Warranties. Other than the
representations of the Principal Shareholders and the Investor Loan Holders
contained in Sections 4.1 through 4.14 of the Supplemental Disclosure Agreement,
the representations of Strandtek pursuant to Section 3.2.1 and 3.2.2 of the
Supplemental Disclosure Agreement, and the representations of Corniche pursuant
to Section 5.2.1 and 5.2.2, and 5.26 of the Supplemental Disclosure Agreement,
as such representations are modified and updated as of the Closing Date, which
representations shall survive the Closing for an indefinite period, all
representations and warranties provided for herein or in the Supplemental
Disclosure Agreement shall not survive the Closing, and by Closing each Party
shall be deemed to have satisfied itself as to the accuracy of any such other
representations and warranties made by other Parties and/or waived any
inaccuracies contained therein, and no such other representations or warranties
shall be the basis for any claim by a Party against the others subsequent to the
Closing Date except for claims based on fraud.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, by telecopy, by
overnight courier or sent by certified or registered mail, postage prepaid, and
shall be deemed given when so delivered personally, or when so received by
facsimile or courier, or if mailed, three calendar days after the date of
mailing, as follows (or at such other address for a Party as shall be specified
by like notice):
9.1.1 if to Corniche:
Xx. Xxxxx Xxxx
Corniche Group Incorporated
00 Xxxxx'x Xxxxxx
Xxxxxx, Xxxxxxx XX0X0XX
Telephone: (00) 000-000-0000
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with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
9.1.2 if to Strandtek:
Strandtek International, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy:
and
Strandtek International, Inc.
000 X. Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx XxXxxxxx, Esq.
Xxxxxx X. XxXxxxxx, P.A.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000 x 0000
Telecopy: 000-000-0000
9.1.3 if to the Principal Shareholders or the Non-shareholder
Loan Holders:
To their respective addresses indicated on the
signature pages hereto with a copy (which shall not
constitute notice) to:
Xxxxxx X. XxXxxxxx, Esq.
Xxxxxx X. XxXxxxxx, P.A.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000 x 0000
Telecopy: 000-000-0000
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9.2 Interpretation. When a reference is made in this Agreement to an
Article, Section or Paragraph, such reference shall be to an Article, Section or
Paragraph of this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
9.3 Counterparts; Telecopied Signatures. This Agreement may be executed
in counterparts, which together shall constitute one and the same Agreement. The
Parties may execute more than one copy of the Agreement, each of which shall
constitute an original. A signed signature page telecopied by one Party to
another Party shall be deemed to constitute an original.
9.4 Entire Agreement. This Agreement (including the appendices,
documents and other instruments referred to herein), the Supplemental Disclosure
Agreement and the Confidentiality and Non-Disclosure Agreements between
Strandtek and Corniche dated on or about July 16, 2001 previously executed and
delivered by the Parties constitute the entire agreement among the Parties and
supersede all prior agreements and understandings, arrangements or
representations by or among the Parties, written and oral, with respect to the
subject matter hereof and thereof.
9.5 No Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended or shall be construed to create any third party
beneficiaries.
9.6 Governing Law. Except to the extent that the laws of the
jurisdiction of organization of any Party, or any other jurisdiction, are
mandatorily applicable to matters arising under or in connection with this
Agreement, this Agreement shall be governed by the laws of the State of
Delaware
without regard to conflicts of laws principles.
9.7 No Trial by Jury.
9.7.1 Each of the Parties irrevocably consents to the service
of any summons and complaint and any other process in any action or proceeding
relating to the transactions contemplated hereby, on behalf of itself or its
property, by the delivery of copies of such process to such Party in the same
manner as notice is to be provided pursuant to Section 9.1. Nothing in this
Section 9.7.1 shall affect the right of any Party hereto to serve legal process
in any other manner permitted by law.
9.7.2 Each Party acknowledges and agrees that any controversy
which may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore each Party hereby irrevocably and
unconditionally waives any right such Party may have to a trial by jury in
respect to any litigation directly or indirectly arising out of or relating to
this Agreement or the transactions contemplated by this Agreement. Each Party
certifies and acknowledges that (i) no representative, agent or attorney of any
other Party has represented, expressly or otherwise, that such other Party would
not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each
such Party understands and has considered the implications of this waiver, (iii)
each such Party makes this waiver voluntarily, and (iv) each such Party has been
induced to enter into this Agreement by the waivers and certifications in this
Section 9.7.2.
9.8 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the Parties (whether by
operation of law or otherwise) without the prior written consent of the other
Parties. Subject to the preceding sentence, this Agreement shall
-27-
be binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
9.9 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby and thereby shall be paid by
the Party incurring such expenses.
9.10 Severability. The invalidity of any portion hereof shall not
affect the validity, force or effect of the remaining portions hereof. If it is
ever held that any restriction hereunder is too broad to permit enforcement of
such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.
9.11 No Strict Construction. Each of Corniche and the Strandtek Parties
acknowledge that this Agreement has been prepared jointly by the Parties and
that there shall not be a presumption that ambiguities shall be construed
against any Party by virtue of this Agreement's preparation.
9.12 Knowledge. Any representation made herein or in the Supplemental
Disclosure Agreement which is qualified by the knowledge of, or notice given to,
Strandtek shall refer to the actual knowledge of, or notice actually given to,
any of the executive officers of Strandtek, after reasonable inquiry by such
executive officers. Any representation made herein or in the Supplemental
Disclosure Agreement which is qualified by the knowledge of, or notice given to,
Corniche shall refer to the actual knowledge of, or notice actually given to,
any of the executive officers of Corniche, after reasonable inquiry by such
executive officers. Any representation made herein or pursuant to any document
or certificate contemplated herein which is qualified by the knowledge of, or
notice given to, the Principal Shareholders or Non-shareholder Loan Holders
shall refer to the actual knowledge of such individual, without any duty of
inquiry.
(Signature Page Follows)
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IN WITNESS WHEREOF, Corniche, Strandtek, each of the Principal
Shareholders and the Non-shareholder Loan Holders have signed this Agreement as
of the date first written above.
CORNICHE GROUP INCORPORATED
By: /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Chairman
STRANDTEK INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President
PRINCIPAL SHAREHOLDERS:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------------
Xxxxx Xxxxxxx Xxxxxx Xxxxxx
000 X. Xxxxxx Xxxxx Xxxx 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxx Xxxxxx, XX 00000 Xxxx Xxxxx, XX 00000
/s/ Xxxx Xxxxxxx /s/ Xxx Xxxxxx
--------------------------- ---------------------------------
Xxxx Xxxxxxx Xxx Xxxxxx
455 N. Indian Rocks Road Longwood Road
Belleair Bluffs, FL 33770 Xxxxx Xxxxx, XX 00000
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------- ---------------------------------
Xxxxxx Xxxxx Xxxxxxx X. Xxxxxxx, Xx.
000 X. Xxxxxx Xxxxx Xxxx 000 X. Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxx, XX 00000 Xxxxxxxx Xxxxxx, XX 00000
/s/ Xxxxx Xxxxxxx /s/ Phil Palm
--------------------------- ---------------------------------
Xxxxx Xxxxxxx Phil Palm
c/o Desert Institute of Physical Therapy 000 X. Xxxxx X
00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
First signature page to
Stock Contribution Exchange Agreement
/s/ Xxx Xxxxx /s/ Xxxx Xxxxxx
--------------------------- ---------------------------------
Xxx Xxxxx Xxxx Xxxxxx
00 Xxxxxx Xxxxx 0 Xxxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
/s/ Xxx Xxxxx
---------------------------
Xxx Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX
NON-SHAREHOLDER LOAN HOLDERS
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxxx
--------------------------- ---------------------------------
Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx
0000 00xx Xxxxxx X. P. O. Xxx 00000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
Second signature page to
Stock Contribution Exchange Agreement
LIST OF APPENDICES
Certificate of Designation Appendix 1.1
for Corniche Series C Preferred Stock
Certificate of Designation for Appendix 1.2
Corniche Series D Preferred Stock
Security Holdings of Strandtek and Exchange Appendix 2.1
Ratios
Form of Supplemental Disclosure Appendix 3.1
Agreement
Form of Guaranteed Note Appendix 5.6
1
[STRANDTEK INTERNATIONAL, INC. LETTERHEAD]
February 11, 2002
Xx. Xxxxx Xxxx
Corniche Group Incorporated
00 Xxxxx'x Xxxxxx
Xxxxxx, Xxxxxxx
Re: Amendment and Waiver
Stock Contribution Exchange Agreement
Dear Xx. Xxxx:
This will confirm our conversations with respect to the
Stock Contribution
Exchange Agreement dated January 7, 2002 between Corniche Group Incorporated
("Corniche"), StrandTek International, Inc. ("StrandTek") and the Principal
Shareholders and Non-shareholder Loan Holders (the "Agreement"). Capitalized
terms used in this letter without definition shall have the respective meanings
given to them in the Agreement, and references to Section (s) without further
definition shall be to the applicable Section(s) of the Agreement.
You have advised us that to satisfy the financing contingency in the Agreement,
you intended to commence a private placement seeking to sell 16,500,000 shares
of Corniche Common Stock at a price of 70(cent) per share. You have also shown
us a draft of your private placement memo. Based on those numbers, and the time
needed to complete the private placement and redeem the Corniche Series A
Preferred Stock, you would not have been able to satisfy the following
conditions in the Agreement:
o the condition in Section 6.3.12 that there be no more than 39 million
shares of Corniche Common Stock outstanding as of the Closing Date
(excluding shares to be issued to the StrandTek Parties under the
Agreement); and
o the condition that the closing occur by January 30, 2002.
You have indicated that you do not want to include in the private placement
memorandum a risk that the transaction may not be consummated on account of the
failure of these conditions to be satisfied, and we would not want that result
either, as we still desire to proceed with the transaction contemplated by the
Agreement. In light of the delay in the closing, we have further discussed and
agreed that certain other modifications to the Agreement are appropriate, and
Corniche and the StrandTek Parties have agreed to execute this letter agreement
to evidence our
agreement in regard to such modifications and changes. Accordingly, Corniche and
the StrandTek Parties have agreed to the following modifications and changes to
the Agreement:
1. Corniche shall attempt to raise additional equity financing to better
capitalize the combined enterprise after closing and accordingly the private
placement shall be for a minimum of 16,500,000 shares and a maximum of
23,500,000 shares of Corniche Common Stock, all at a price of $.70 per share.
2. Any shares of Corniche Common Stock sold under the private placement at $.70
per share in excess of the amount necessary for Corniche to satisfy Sections
5.9.4 and 6.3.7 as reflected in the Agreement will not cause any increase in the
number of shares of Corniche Common Stock or Corniche Series D Preferred Stock
to be received by the StrandTek Parties under the Agreement, nor in any way be
used or factored into the adjustment formula of Section 2.5 of the Agreement. Of
course, such issued and outstanding shares of Corniche Common Stock for purposes
of the Section 2.5 adjustment shall include all shares of Corniche Common Stock
issued or issuable in connection with the Agreement (other than those shares of
Corniche Common Stock to be issued to the StrandTek Parties) and pursuant to the
private placement (other than those shares of Corniche Common Stock sold under
the private placement at $.70 per share in excess of the amount of such shares
sold that are necessary to satisfy Sections 5.9.4 and 6.3.7 as reflected in the
Agreement), and shall specifically include, without limitation, those shares of
Corniche Common Stock to be issued at Closing to Messrs. Xxxx, Xxxxxxxx and
Xxxxx as reflected in Section 5.2 of the Corniche Disclosure Schedule and those
shares of Corniche Common Stock contemplated to be issued to Cash Investors (but
only in the amount of shares sold necessary for Corniche to satisfy Sections
5.9.4 and 6.3.7 as reflected in the Agreement) and Corniche's broker incident to
the private placement. Corniche further agrees that it shall also possess at
Closing all of the net proceeds received from the sale of shares of Corniche
Common Stock that are not used or factored into the adjustment formula of
Section 2.5 of the Agreement pursuant to the foregoing provisions of this
paragraph.
3. The Outside Date shall be extended to March 15, 2002, in order to allow
enough time to consummate the private placement and effect the redemption of the
Series A Preferred Stock. The StrandTek Parties also agree to waive any default
or condition precedent under Sections 5.11.9 and 6.3.12 (and other like
provisions of the Agreement and Supplemental Disclosure Agreement), so long as
at Closing there are no more than 47.5 million shares of Corniche Common Stock
outstanding (as computed after the issuance of all shares of Corniche Common
Stock as contemplated in the Agreement and private placement, other than the
StrandTek Parties under the terms of the Agreement).
4. Corniche and the StrandTek Parties have further agreed that:
(a) Corniche shall provide an additional $250,000 of interim financing
to StrandTek promptly after the date of execution of this letter agreement, to
be evidenced by a promissory note in mutually agreeable form. StrandTek shall
use the proceeds of the loan for working capital and not for the repayment of
any sums due to Investor Loan Holders.
-2-
(b) The existing promissory note executed by StrandTek, among others,
in favor of Corniche in the amount of $1,000,000 pursuant to Section 5.6 shall
not be due or payable until 45 days after the termination of the Agreement.
(c) StrandTek shall not be required by reason of the Agreement to file
a Form 10-KSB for its fiscal year ended September 30, 1998, and StrandTek shall
be required to file a Form 10-Q for its fiscal quarter ending December 31, 2000
only in the event the Closing occurs and it is reasonably determined that
StrandTek is required to file such Form 10-Q.
(d) Corniche agrees to waive any default or condition precedent under
Section 6.2.7 (and other like provisions of the Agreement and Supplemental
Disclosure Agreement) so long as the aggregate indebtedness at Closing of
StrandTek referenced in Section 6.2.7.1 is less than $35.5 million in the
aggregate. Corniche further agrees that the StrandTek Parties shall be entitled
to adjust the respective amount of principal to be repaid to each of the
Investor Loan Holders at Closing and contributed by each of the Investor Loan
Holders in exchange for shares of Corniche Series C Preferred Stock, and the
provisions of Section 6.3.9 and Appendix 2.1 and like provisions of the
Agreement and Supplemental Disclosure Agreement accordingly, so long as the
aggregate principal amount of Investor Loans contributed to Corniche in exchange
for shares of Corniche Series C Preferred Stock equals $22 million.
(e) Corniche agrees to waive any default or condition precedent under
Sections 5.10 and 6.2.8 (and other like provisions of the Agreement and
Supplemental Disclosure Agreement), caused by StrandTek's issuance of additional
Series A Warrants exercisable at $.41 per share (with an expiration date no
later than three (3) years from the date of issuance) to the Principal
Shareholders, Non-shareholder Loan Holders and others, so long as the aggregate
number of StrandTek Series A Warrants outstanding at the Closing is not more
than 2,000,000 in the aggregate. Corniche further acknowledges and agrees that
such additional StrandTek Series A Warrants may be owned by the Principal
Shareholders, Non-shareholder Loan Holders and others at and subsequent to the
Closing, and waives any default or condition precedent under the Agreement and
Supplemental Disclosure Agreement associated therewith.
(f) The last sentence of Section 6.2.7.1 shall be modified to now read
as follows:
"StrandTek and the Investor Loan Holders represent that the current
amount due with respect to the Investor Loans described above is as set forth in
Section 3.2.3 of the StrandTek Disclosure Schedules."
(g) Section 6.3.9 shall be modified by substituting the amount of $2.7
million in place of the amount of $2.5 million referenced therein.
5. The StrandTek Parties further recognize that the additional stock issuances
permitted above would not leave sufficient authorized Corniche Common Stock
available for Corniche to issue the "Key Holder's Percentage" of the 36,000,000
shares to be issued to the StrandTek Parties pursuant to the Agreement at
Closing. Accordingly, the StrandTek Parties and Corniche agree to decrease the
number of shares of Corniche Common Stock to be received by the StrandTek
Parties under the Agreement by such number as they mutually determine at the
Closing to be
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reasonable, and the number of shares of Corniche Series D Preferred Stock to
otherwise be received by the StrandTek Parties at Closing shall be appropriately
increased by 1% of the amount of any reduction of Corniche Common Stock under
this paragraph. Thus, by way of example and not in limitation, if the StrandTek
Parties receive 33,000,000 shares of Corniche Common Stock at Closing instead of
36,000,000, the shares of Corniche Series D Preferred Stock to be received by
the StrandTek Parties as otherwise determined under the Agreement (as modified
by this letter), would be further increased by the amount of 30,000 shares.
It would be appreciated if Corniche would likewise execute and return a copy of
this letter to Xx. Xxxxxx on behalf of the StrandTek Parties to evidence
Corniche's agreement to the foregoing terms and provisions.
Very truly yours,
STRANDTEK INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx, President
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
/s/ Xxx Xxxxxx
-----------------------------------
Xxx Xxxxxx
/s/ Phil Palm
-----------------------------------
Phil Palm
-4-
/s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/s/ Xxx Xxxxx
-----------------------------------
Xxx Xxxxx
/s/ Xxx Xxxxx
-----------------------------------
Xxx Xxxxx
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxx
Reviewed and agreed to this 11th day of Febraury, 2002
CORNICHE GROUP INCORPORATED
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Chairman
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