Exhibit 10.32
OMNIBUS AGREEMENT AND CONSENT OF
DIRECTORS OF XYGENT, INC.
This Omnibus Agreement (the "Agreement") is made as of this 19th day of
April, 2002 by and among Xygent Inc. (the "Company"), BNS Co. ("BNS"), Hexagon
Holdings, Inc. ("Hexagon") and Xxxxx & Xxxxxx, Inc. ("Xxxxx & Xxxxxx") and
Hexagon AB.
WHEREAS the parties are party to various agreements relating to the Company
(although not all parties hereto are party to each agreement); and
WHEREAS the parties have come to a certain understandings relating to
several issues relating to the Company and wish for these understandings to be
reflected in the various existing agreements among the various parties and in
the actions of their representatives as directors of the Company.
NOW THEREFORE, the parties agree as follows:
1. Debt Conversion Shares to be Issued to BNS. With respect to the
issuance of shares of common stock ("Common Stock") of the Company to BNS under
the 2002 Common Stock Purchase Agreement between BNS and the Company (the
"2002 SPA") in connection with the repayment of $1,500,000 of intercompany debt
owed by the Company to BNS, the parties agree that, notwithstanding the
provisions of the 2002 SPA (or any other agreement or action by them or their
representatives as directors of the Company), BNS shall be issued under the 2002
SPA such whole number (rounded) of authorized but unissued shares of Common
Stock as is calculated by dividing $1,500,000 by $113.58, resulting in the
issuance of 13,206 shares to BNS (the sale and issuance of such shares to BNS by
Xygent and the 2002 SPA, the "New Debt Conversion Transaction").
1.1 The 2002 SPA is hereby amended to give effect in all respects to
the New Debt Conversion Transaction.
1.2 The Consent of Hexagon and Xxxxx & Xxxxxx, dated April 8, 2002,
relating to 2002 SPA is hereby amended to consent in all respects to the
New Debt Conversion.
1.3 Hexagon and Xxxxx & Xxxxxx hereby waive any preemptive rights
that they may have under the Stockholders' Agreement (the "Stockholders'
Agreement"), dated as of April 27, 2001, by and among Xygent, BNS, Xxxxx &
Xxxxxx and Hexagon (pursuant to that certain Instrument of Accession, dated
February 20, 2002) relating to the New Debt Conversion Transaction.
2. Shares to be Issued to Hexagon Holdings at the Additional Closing. In
connection with the sale of Common Stock to Hexagon under the Stock Purchase
Agreement (the "2001 SPA"), dated as of April 27, 2001, by and among BNS, Xygent
and Hexagon (as assignee of Xxxxx & Xxxxxx pursuant to that certain Assignment
and Assumption Agreement, dated as of January 2002, between Hexagon and Xxxxx &
Xxxxxx), notwithstanding anything to the contrary in Section 1.02 of the 2001
SPA, the parties agree that at the next Additional
Closing Date (as defined in the 2001 SPA), which will occur on or about April
29, 2002, the number of "Additional Shares" (as defined) of Common Stock of the
Company to be purchased by Hexagon for $1,500,000 ($113.58 per share) shall be
13,206 shares, namely the same number of shares as is issued to BNS for
$1,500,000 under Section 1 above (such purchase and sale at the April 29, 2002
Additional Closing, the "New Closing Amount").
2.1 The parties agree that the 2001 SPA is hereby amended to give
effect in all respects to the New Closing Amount; it being understood that
the New Closing Amount shall only apply with respect to the April 29, 2002
Additional Closing.
3. Miscellaneous. This Agreement will be effective upon the signatures of
the parties set forth below and the approval of the Board of Directors of Xygent
by way of the Written Consent of Directors, attached as Annex A to this
Agreement. This Agreement will be governed by the internal laws of the State of
Rhode Island (without giving effect to its conflicts of laws). This Agreement
may be executed in counterparts. Headings are included only for the convenience
of the parties.
[signature page to follow]
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IN WITNESS WHEREOF, the undersigned parties have caused this instrument to
be executed by their respective officers thereunto duly authorized, all as of
the date first set forth above.
XYGENT INC. BNS Co.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------- -----------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President and CEO Title: President and CEO
HEXAGON HOLDINGS, INC. XXXXX & XXXXXX, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxx Xxxxxxx
------------------- -----------------------
Name: Xxx Xxxxxx Name: Xxxx Xxxxxxx
Title: Chairman Title: President and CEO
HEXAGON AB (signing as guarantor of
Hexagon Holdings, Inc. pursuant to the
Acquisition Agreement dated November 16,
2000 between Hexagon AB and BNS Co.,
then named "Xxxxx & Xxxxxx Manufacturing
Company")
By: /s/ Xxx Xxxxxx
--------------------
Name: Xxx Xxxxxx
Title: CEO
[Directors' consent to follow]
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Annex A
Votes of Board of Directors of Xygent Inc.
The undersigned, being all of the directors of Xygent Inc. ("Xygent"),
having been elected by written consent of all of the stockholders of Xygent, do
hereby adopt the following votes, representing corporate action, which shall
have the same effect as votes duly adopted at a meeting of the Board of
Directors:
VOTED: That the form, terms and provisions of the Omnibus Agreement (the
"Omnibus Agreement") between Xygent, BNS Co., Hexagon Holdings, Inc.
and Xxxxx & Xxxxxx, Inc. and Hexagon AB and the transactions
contemplated thereby are hereby approved in all respects.
VOTED: That upon execution and delivery of the Omnibus Agreement by an
authorized officer of this Corporation and upon receipt of
consideration payable thereunder for any shares of the Common Stock of
this Corporation to be sold thereunder, that the officers of this
Corporation are authorized and directed to issue and deliver to such
person or entity purchasing such shares a stock certificate for such
shares, which shares shall be fully paid and nonassessable, validly
outstanding shares, and that in addition, upon issuance of such shares
as are issued out of the authorized but unissued shares of the
Company, an amount equal to their aggregate par value shall be
credited to capital and the remainder of the consideration paid for
such shares shall be credited to surplus.
VOTED: That the proper officers are hereby authorized to execute all
documents and take all action from time to time necessary or desirable
to give effect to the foregoing votes.
VOTED: That this Board recognizes that the transactions contemplated by the
Omnibus Agreement had been previously approved by the Board but under
different terms and that these Votes shall supersede such prior votes,
to the extent that these votes are inconsistent with such prior votes.
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A-1
In WITNESS WHEREOF the directors have executed this consent (in
counterparts) as of this 19/th/ day of April, 2002.
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
/s/ J. Xxxxxx Xxxx
----------------------------
J. Xxxxxx Xxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxx Xxxxxx
----------------------------
Xxx Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx
A-2
