EXHIBIT 10.32
IMSL, INC.
GUARANTY AND WARRANT AGREEMENT DATED DECEMBER 22, 1992
TABLE OF CONTENTS
PAGE
1. Guaranty............................................................ 1
2. Issuance of Warrant................................................. 1
3. Restrictive Legends.................................................
4. Investment Intent................................................... 2
4.1 Adequate Information....................................... 2
4.2 Unregistered Securities.................................... 2
4.3 Restrictions on Transfer................................... 2
4.4 Rule 144................................................... 2
4.5 Lack of Public Market...................................... 3
4.6 Limitations on Resale...................................... 3
5. The company's Representations and Warranties
5.1 Organization and Standing..................................
5.2 Authorization..............................................
5.3 Class A Common Stock.......................................
6. Miscellaneous.......................................................
6.1 Notices.................................................... 4
6.2 Assignment................................................. 4
6.3 Governing Law.............................................. 4
6.4 Waiver..................................................... 4
6.5 Agreement.................................................. 4
6.6 Counterparts............................................... 4
6.7 Waivers and Amendments..................................... 4
EXHIBITS
A Guaranty Agreements
B Stock Purchase Warrant
IMSL, INC.
GUARANTY AND WARRANT AGREEMENT
THIS AGREEMENT is made and entered into as of this 18th day of December,
1992 by and among IMSL, Inc., a Texas corporation (the "Company"), and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ("Investor").
NOW THEREFORE, the parties agree as follows:
1. Guaranty. To induce First Interstate Bank of Texas (the "Bank") to
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loan monies to the Company, simultaneous with the execution of this Agreement,
the Investor shall execute the Specific Guaranty Agreement and related Security
Agreement-Pledge (the "Guaranty Agreements") pursuant to which the Investor
shall guaranty the prompt and punctual payment and performance of the Companies
obligations to the Bank, all as described and limited by the Guaranty Agreements
which are attached hereto as Exhibit A.
.
If Investor is required to fulfill the Company's obligations pursuant to
the Guaranty Agreements, the Company agrees that it shall then be obligated to
pay Investor for all costs incurred by the Investor under the Guaranty
Agreements and shall forthwith issue to Investor a demand promissory note in the
principal amount equal to the amount paid by Investor to the Bank. Said
promissory note shall bear interest at the lesser of 12% per annum or the
maximum rate allowable by law.
2. Issuance of Warrant. In consideration for the assistance provided to
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the Company as set forth above, the Company agrees to issue to Investor a
warrant in the form attached hereto as Exhibit B. The Warrant will be
exercisable for 7,692 shares of Class A Common Stock at the price of $19.50 per
share.
3. Restrictive Legends. The Investor has been informed and understands
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that the Warrant and certificate(s) evidencing Class A Common Stock to be issued
upon exercise of the Warrant will bear the following legend:
THE SHARES (SECURITIES) REPRESENTED BY THIS CERTIFICATE (INSTRUMENT)
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING
SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER
THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER
OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING
THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM
THE REGISTRATION AND PROSPECTIVE DELIVERY REQUIREMENTS OF SUCH ACT.
and, if necessary, any other applicable state legends.
4. Investment Intent. The Investor represents and warrants
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that:
4.1 Adequate Information. Investor is aware of the Company's
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business affairs and financial condition and has acquired sufficient information
about the company to reach an informed and knowledgeable decision to acquire the
Warrant and the snares of Class A common Stock issuable upon the exercise
thereof (together, the "Securities"). Investor is purchasing the Securities for
his own account for investment purposes only and not with a view to, or for the
resale in connection with, any "distribution" thereof for purposes of the
Securities Act of 1933, as amended (the "Act").
4.2 Unregistered Securities. Investor understands that the
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Securities have not been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of its investment intent as expressed herein. In this connection,
Investor understands that, in the view of the Securities and Exchange Commission
("SEC"), the statutory basis for such exemption may be unavailable if his
representation was predicated solely upon a present intention to hold the
securities for a period of one year or any other fixed period in the future.
4.3 Restrictions on Transfer. Investor further understands that the
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Securities must be held indefinitely unless subsequently registered under the
Act or unless an exemption from registration is otherwise available. Moreover,
Investor understands that the Company is under no obligation to register the
Securities. In addition, Investor understands that the Securities will be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel for the Company.
4.4 Rule 144. Investor is aware of the provisions of Rule 144,
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promulgated under the Act, which in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly from the issuer thereof
(or from an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions, including, in case he has held the
securities less than three years or is an affiliate of the Company: (1) the
resale occurring not less than two years after the party has purchased and paid
for the securities to be sold; (2) the availability of certain public
information about the Company; (3) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); (4)
the amount of securities being sold during any three-month period not exceeding
certain specified limitations and (5) the filing of a Notice of Sale on Form 144
as appropriate.
4.5 Lack of Public Market. investor further understands that at the
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time he wishes to sell the Securities there may be no public market upon which
to make such a sale, and that, even if such a public market then exists the
Company may not be satisfying the current public information requirements of
Rule 144, and that, in such event, Investor would be precluded from selling the
Securities under Rule 144 unless (1) a three-year minimum holding period had
been satisfied and (2) he was not at the time of sale nor at any time during the
three-month period prior to such sale an affiliate of the Company.
4.6 Limitations on Resale. Investor further understands that in the
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event all of the applicable requirements of Rule 144 are not satisfied,
registration under the ACt, compliance with Regulation A or some other
registration exemption will be required; and that, notwithstanding the fact that
Rule 144 is not exclusive, the staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales and that such persons and their respective
brokers who participate in such transaction do so at their own risk.
5. The Company's Representations and Warranties. The Company represents
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and warrants to Investor as follows:
5.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Texas and is in
good standing as a domestic corporation under the laws of said state. The
Company has all requisite corporate power and authority to own and lease
property and to conduct its business as presently conducted.
5.2 Authorization. The execution, delivery and performance of this
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Agreement by the Company have been duly authorized by all requisite corporate
action, and the Agreement constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms, subject as to enforcement
of remedies to applicable bankruptcy, insolvency, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights.
5.3 Class A Common Stock. The Class A Common Stock issuable upon
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exercise of the Warrant has been duly and validly reserved for issuance. Neither
the Warrant nor the Class A Common Stock issuable upon exercise of the Warrant
is subject to preemp-tive or any other similar rights of the shareholders of the
Company or any liens or encumbrances; and, when issued in accordance with the
terms of the Articles of Incorporation, as amended, it will be validly issued
and outstanding, fully paid and nonassessable.
6. Miscellaneous.
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6.1 Notices. All notices and other communications required or
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permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, over night delivery
service or prepaid first class mail, addressed (1) if to Investor, at such
address as Investor shall have furnished the Company in writing or (2) if to the
Company at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention; President, or at such other address as the Company shall have
furnished to Investor in writing.
6.2 Assignment. No party shall assign this Agreement or any rights
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or obligations hereunder without the prior consent of the other parties. subject
to the foregoing, this Agreement shall bind and inure to the benefit of the
respective parties hereto and their successors and assigns.
6.3 Governing Law. This Agreement shall be construed and interpreted
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in accordance with the laws of the state of Texas applicable to contracts made
and to be performed within such State.
6.4 Waiver. The waiver of one ▇▇▇▇▇▇ or default hereunder shall not
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constitute the waiver of any subsequent breach or default. In case any provision
of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
6.5 Agreement. This Agreement contains the entire agreement between
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the parties with respect to the subject matter hereof. NO promises,
representations, warranties or covenants not included in this Agreement have
been or are relied upon by either party.
6.6 Counterparts. This Agreement may be signed in one or more
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counterparts, each of which shall be deemed an original, and all of which shall
constitute one instrument.
6.7 Waivers and Amendments. This Agreement may not be amended except
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by a written instrument signed by the Company and Investor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
IMSL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EXHIBIT A
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GUARANTY AGREEMENTS
