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EXHIBIT 10.40
AGREEMENT
This Agreement ("Agreement"), made and entered into on the 24th day of
January 1999 by and between Advantix, Inc., a California corporation
("Advantix"), and RBB Bank AG, a bank organized under the laws of Austria
("RBB").
RECITALS
A. RBB is the record holder of seven million eight hundred thirty
seven thousand three hundred thirty two (7,837,332) shares (the
"Common Shares") of common stock of Lasergate Systems, Inc., a
Florida corporation ("Lasergate") (the "Lasergate Common Stock")
and five thousand seven hundred (5,700) shares (the "Preferred
Shares," and together with the Common Shares, the "Shares") of
Series G Preferred Stock of Lasergate (the "Lasergate Preferred
Stock"), which are convertible into twenty four million eight
hundred eighteen thousand two hundred seventeen (24,818,217)
shares of Lasergate Common Stock. The term Shares shall include
appropriate adjustments for stock splits, recapitalizations,
combinations, conversions, exchanges and other similar events
relating to the Lasergate Common Stock and Lasergate Preferred
Stock.
B. RBB owns the Shares as nominee for its clients who are
beneficial owners of such shares.
C. Advantix desires to purchase all of the Shares and RBB desires
to sell all of the Shares on the terms and subject to the
conditions set forth in this Agreement (the "Purchase
Transaction").
D. Advantix has proposed to the Board of Directors of Lasergate
that Lasergate will merge (the "Merger") with a subsidiary of
Advantix ("New Subsidiary") whereby the outstanding Lasergate
Common Stock will be exchanged for $0.10 cash per share and the
outstanding shares of Lasergate Preferred Stock will be
exchanged for preferred stock of New Subsidiary (the "New
Subsidiary Preferred Stock").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the respective
mutual agreements, covenants, representations and warranties set forth herein,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
TERMS
1. RECITALS. The recitals set forth above are true and correct and are
hereby incorporated into and made a part of this Agreement.
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2. APPROVAL OF MERGER. RBB agrees to vote all of its Shares in favor of
the Merger and to actively support the Merger and to execute such documents and
take such steps as are reasonably necessary to consummate the Merger. On or
after May 15, 1999, at the option of RBB upon 15 days prior written notice to
Advantix, the New Subsidiary Preferred Stock to be received by RBB in exchange
for the Preferred Shares shall be convertible into either (i) cash in the amount
of U.S.$0.10 for each share of Lasergate Common Stock into which such shares
could have been converted immediately prior to the consummation of the Merger
(the "Cash Consideration") or (ii) 170.081 shares of Advantix Common Stock for
each Preferred Share that was exchanged for such shares pursuant to the Merger
(the "Stock Consideration"). On or after June 15, 1999, at the option of
Advantix upon 15 days prior written notice to RBB, the New Subsidiary Preferred
Stock to be received by RBB in exchange for the Preferred Shares shall be
redeemable for the Cash Consideration or the Stock Consideration.
3. PURCHASE OF SHARES. In the event that the Board of Directors of
Lasergate does not approve the Merger on or before January 31, 1999, RBB agrees
to sell, and Advantix agrees to purchase, the Shares upon the terms and
conditions hereinafter set forth. In the event that the Board of Directors of
Lasergate approves the Merger on or before January 31, 1999, the provisions
herein relating to the purchase and sale of the Shares (other than pursuant to
Section 2) shall not become effective and the acquisition and disposition of the
Shares shall be pursuant to the definitive agreements governing the Merger.
4. SALE OF SHARES. On the Closing Date (as defined in below), RBB shall
sell, transfer, convey and deliver to Advantix, and Advantix shall purchase and
accept delivery of, the Shares, and RBB shall deliver to Advantix stock
certificates representing the Shares, together with appropriate stock powers
endorsed in blank or as otherwise instructed by Advantix.
5. PURCHASE PRICE.
A. PURCHASE PRICE. As consideration for this Agreement and as the
purchase price to be paid by Advantix for the Shares and all other obligations
of RBB under this Agreement, Advantix shall pay and deliver to RBB the following
consideration (the "Purchase Price"): (i) cash in an amount equal to U.S.$0.10
for each Common Share owned by RBB and being purchased by Advantix under this
Agreement, and (ii) subject to adjustment as set forth below, such number of
shares (the "Advantix Shares") of common stock of Advantix ("Advantix Common
Stock") as shall be equal to the Exchange Ratio (as defined below) multiplied by
the number of Preferred Shares owned by RBB and being purchased by Advantix
under this Agreement. The Exchange Ratio shall be 170.081 shares of Advantix
Common Stock for each share of Lasergate Preferred Stock.
B. ADJUSTMENT OF PURCHASE PRICE. In the event that prior to
Closing Advantix consummates a private offering of its equity securities which
results in gross proceeds to Advantix of not less than $5 million (the "Private
Financing"), and the pre-offering valuation of Advantix in connection with such
Private Financing is less than or greater than U.S.$190 million, then the
Exchange Ratio shall be increased or decreased, as the case may be, on a
proportionate basis.
C. PAYMENT OF PURCHASE PRICE IN CASH. In the event that Advantix
has not consummated a registered public offering of Advantix Common Stock on or
before May 15, 1999
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(the "Advantix IPO"), or such later date as Advantix and RBB may agree, then,
notwithstanding paragraphs A and B of this Section 3, the Purchase Price shall
be an amount equal to the sum of (i) U.S.$0.10 for each Common Share owned by
RBB and being purchased by Advantix under this Agreement and (ii) U.S.$0.10 for
each share of Lasergate Common Stock into which the Preferred Shares may be
converted on the Closing Date.
6. ADDITIONAL AGREEMENTS.
A. RIGHTS. From and after the date hereof, Advantix shall be
entitled to receive, and RBB shall promptly deliver to Advantix, all of RBB's
rights, title and interest with respect to any proceeds, revenues, dividends,
distributions, conversions, exchanges, penalties and all other economic benefits
arising from the ownership of the Shares, including without limitation any cash
penalties or other consideration payable on account of the Shares as a result of
Lasergate's failure to obtain shareholder authorization for the issuance of
additional shares of Lasergate Common Stock upon the conversion of the Lasergate
Preferred Stock.
B. PAYMENT OF PROMISSORY NOTE. Upon the consummation of the
Merger, Advantix shall cause Lasergate, or its successor, to pay to RBB all
amounts as they become due under the terms of that certain Promissory Note
issued by Lasergate in favor of RBB in the original principal amount of
$300,000.
C. CONTROL OF LASERGATE BOARD OF DIRECTORS. In the event that the
Board of Directors of Lasergate does not approve the Merger on or before January
31, 1999, RBB shall, as soon as possible thereafter, take all appropriate or
necessary actions, including without limitation making all appropriate filings
with the Securities and Exchange Commission, to elect a majority of the members
of the Lasergate board of directors. The members of the Lasergate board of
directors shall include Xxxxx X. Xxxxx and Xxxxxxx Xxxxx, or such other
individuals as are acceptable to Advantix, and Xxxxx X. Xxxxx shall be named as
Lasergate's business manager.
D. FUTURE ACTION. RBB agrees, and agrees to cause Lasergate, not
to take any action, including voting the Shares, inconsistent with the purposes
of this Agreement or the Merger or otherwise detrimental to Advantix.
E. CONVERSION. RBB agrees not to convert the Preferred Shares
into shares of Common Stock prior to the earlier to occur of the Closing and the
consummation of the Merger without the prior written consent of Advantix.
7. NON-SOLICITATION. From and after the date hereof until the earlier to
occur of the Closing and the consummation of the Merger, RBB shall not, and
shall not permit its officers, directors, employees, advisors, representatives
or agents to directly or indirectly, solicit, initiate, encourage (including by
way of furnishing information) or take any other action to facilitate any
inquiry or the making of any proposal which constitutes, or may be reasonably
expected to lead to, any acquisition or purchase of any of the Shares. If RBB
receives a proposal relating to the purchase of all or any portion of the
Shares, RBB shall immediately inform Advantix in writing of the terms and
conditions of such proposal and the identity of the person(s) making such
proposal, and keep Advantix fully and promptly informed of the status and
details of any such proposal and
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the response thereto.
8. REPRESENTATIONS AND WARRANTIES OF RBB. As an inducement for Advantix
to enter into this Agreement, RBB hereby represents and warrants to Advantix as
follows:
A. RBB has all requisite power and authority to enter into this
Agreement and to carry out its obligations hereunder. RBB has taken all action
necessary to authorize the execution and delivery of this Agreement, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by RBB and constitutes a legal, valid and binding obligation of RBB,
enforceable against RBB in accordance with its terms. RBB is not bound by any
contractual or legal restriction from selling the Shares pursuant to the terms
of this Agreement.
B. RBB is the record owner of the Shares, and as of the date
hereof and the Closing Date, such Shares are owned by RBB free and clear of all
liens, encumbrances, security interests, and restrictions of any kind.
C. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not (i) result in a
breach of any provision of, or the termination of, or constitute a default under
any agreement to which RBB is a party or by which it or any of its assets may be
bound, (ii) violate or conflict with any applicable law, statute, ordinance,
rule, regulation, decree, writ, judgment, injunction or order of any
governmental authority, or (iii) require the consent, approval, authorization or
permit of, or filing with or notification to, any governmental authority other
than the U.S. Securities and Exchange Commission.
D. As of the Closing Date, RBB will have the absolute right and
authority to transfer the Shares to Advantix as described herein without the
consent of any other party, including without limitation the beneficial owners
of the Shares, and no agreement or instrument will be violated as a result such
transfer.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ADVANTIX. As an
inducement for RBB to enter into this Agreement, Advantix hereby represents,
warrants and covenants to RBB as follows:
A. Advantix has all requisite power and authority to enter into
this Agreement and to carry out its obligations hereunder. Advantix has taken
all action necessary to authorize the execution and delivery of this Agreement,
the performance of its obligations hereunder and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Advantix and constitutes a legal, valid and binding obligation of
Advantix, enforceable against Advantix in accordance with its terms.
B. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not (i) result in a
breach of any provision of, or the termination of, or constitute a default under
any agreement to which Advantix is a party or by which it or any of its assets
may be bound, (ii) violate or conflict with any applicable law, statute,
ordinance, rule, regulation, decree, writ, judgment, injunction or order of any
governmental
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authority, or (iii) require the consent, approval, authorization or permit of,
or filing with or notification to, any governmental authority other than the
U.S. Securities and Exchange Commission.
10. INDEMNIFICATION OF ADVANTIX BY RBB. RBB agrees to indemnify, defend
and hold Advantix and its successors and assigns harmless against and in respect
of any and all liabilities, losses, damages, claims, penalties, fines, costs and
expenses of any kind which may be incurred (including, without limitation,
reasonable attorneys' and accountants' fees) (collectively, "Losses"), arising
out of or due to:
A. any and all liabilities arising out of any claims of ownership
to any of the Shares, whether absolute, accrued, contingent, liquidated or
unliquidated, existing or arising out of a state of facts existing at or prior
to the Closing, and expenses relating thereto;
B. any misrepresentation or any breach of any representation or
warranty on the part of RBB under, in or with respect to this Agreement;
C. any breach of any covenant or agreement on the part of RBB
under, in or with respect to this Agreement;
D. any and all and all liabilities arising out of any claims by
the beneficial owners of the Shares; and
E. any and all actions, suits, proceedings, demands, assessments
or judgments, costs and expenses incidental to any of the foregoing matters.
Notwithstanding the foregoing, RBB's aggregate liability for
indemnifiable Losses pursuant to clauses A or B of this Section shall not exceed
the Purchase Price.
11. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNIFICATION OBLIGATIONS. All representations, warranties, covenants,
agreements and indemnification obligations of RBB and Advantix contained in this
Agreement shall survive the Closing.
12. ATTORNEYS' FEES. In the event a suit or proceeding is brought by a
party to this Agreement to enforce its provisions, or to seek remedy for any
breach hereof, the prevailing party shall be entitled to receive its reasonable
attorneys' fees and disbursements incurred in connection with such suit or
proceeding, including fees and expenses incurred in any appellate proceedings.
13. CLOSING. The transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall take place not later than ten days following the
consummation of the Advantix IPO (the "Closing Date"); provided however, that in
the event that Advantix has not consummated the Advantix IPO on or before May
15, 1999, or such later date as Advantix and RBB may agree, May 15, 1999, or
such later date shall be the Closing Date. Time shall be of the essence with
respect to this Agreement.
14. CONDITIONS TO CLOSING. The obligations of the parties to consummate
the Purchase
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Transaction shall be subject to the following conditions, which may be waived in
whole or in part by the parties:
A. LASERGATE BANKRUPTCY. In the event that Lasergate (i) applies
for or consents to the appointment of a receiver, trustee or liquidator of all
or a substantial portion of its assets, files a voluntary petition in bankruptcy
or consents to an involuntary petition, makes a general assignment for the
benefit of its creditors, or files a petition or answer seeking reorganization
or arrangement with its creditors; or (ii) suffers any order, judgment or decree
to be entered by any court of competent jurisdiction, adjudicating Lasergate to
be bankrupt or approving a petition seeking its reorganization or the
appointment of a receiver, trustee or liquidator of Lasergate or of all or a
substantial part of its assets, then, unless RBB and Advantix otherwise agree in
writing, the Closing Date shall be postponed so long as such condition exists
for up to 180 days. This Agreement shall automatically be terminated in the
event that such condition continues for more than 180 days.
B. BREACHES. In the event that either party breaches any of its
agreements, covenants, representations or warranties under this Agreement, and
such breach can not be cured or remains uncured for more than ten days after
notice of such breach is delivered by the non-breaching party, then the
non-breaching party shall not be obligated to consummate the Purchase
Transaction.
15. EXPENSES. Each of Advantix and RBB shall bear its own expenses
(whether or not incurred prior to the date hereof) in connection with the
discussion, evaluation, negotiation and documentation of, or otherwise arising
out of, this Agreement and the transactions contemplated thereby.
16. ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
both written and oral, between the parties hereto with respect to the
transactions contemplated hereby.
17. FURTHER ASSURANCES. From and after the Closing, RBB shall, upon
request of Advantix and at no expense to Advantix, execute and deliver such
documents and instruments and perform such other acts as Advantix shall from
time to time reasonably request in order to confirm or more fully vest in
Advantix title to the Shares and allow Advantix to realize the benefits of this
Agreement.
18. AMENDMENT. No amendment, modification or termination of the
Agreement shall be effective unless in writing signed by the parties hereto.
19. NO WAIVER. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof, nor
shall any such waiver constitute a continuing waiver unless otherwise expressly
so provided.
20. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining
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portions of this Agreement, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall be
declared invalid, this Agreement shall be construed as if such word(s),
phrase(s), sentence(s), clause(s) or section(s) had not been inserted.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement and
each of which shall be deemed an original.
22. APPLICABLE LAW; VENUE; SPECIFIC PERFORMANCE. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. The parties agree to the jurisdiction of any court located in the State of
New York agree that the venue of any action or proceeding relating to this
Agreement shall be in New York. Advantix and RBB agree that each shall be
entitled to the equitable remedy of specific performance if at any time any such
party hereto shall desire to enforce any provision of this Agreement.
23. JURY WAIVER. RBB AND Advantix HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED HEREIN, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, ANY OTHER DOCUMENTS OR INSTRUMENTS CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY.
NOW THEREFORE, the parties hereto have executed and delivered this
Agreement as of the date first written above.
RBB BANK AG
By: /s/ Xxxxxxx Xxxxxxx
Its: Managing director US Equity
ADVANTIX, INC.
By: /s/ Xxx Xxxxxx
Its: President & CEO
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FIRST AMENDMENT TO AGREEMENT
This First Amendment to the Agreement (the "Amendment") dated as of June
21, 1999 (the "Agreement") is entered into by and between Xxxxxxx.xxx, Inc., a
Delaware corporation ("Xxxxxxx.xxx", formerly known as Advantix, Inc.) and RBB
Bank AG, a bank organized under the laws of Austria ("RBB").
BACKGROUND
The parties have determined that it is in their mutual best interest to
amend the Agreement in order to permit Xxxxxxx.xxx to purchase the 5,700 shares
of Series G Preferred Stock (the "Preferred Shares") of Lasergate Systems, Inc.
("Lasergate") held by RBB prior to any merger between Xxxxxxx.xxx and Lasergate
(the "Merger"). Accordingly, in consideration of the mutual covenants and
agreements set forth below, the parties agree as follows:
TERMS
1. Purchase of Preferred Shares. Xxxxxxx.xxx agrees to purchase all
of the Preferred Shares within three business days (the "Closing
Date") of the execution of a definitive agreement and plan of
merger between Xxxxxxx.xxx, Advantix Acquisition Corp. and
Lasergate, in exchange for, at the election of RBB, (a) 170.081
shares of the common stock of Xxxxxxx.xxx for each outstanding
Preferred Share; or (b) $435.00 per each outstanding Preferred
Share, or a combination thereof. RBB shall make its election, in
writing, no later than 5:00 p.m. Eastern time on June 21, 1999.
If RBB elects to receive cash, it shall include its wire
transfer instructions with the notice of its election.
2. Sale of Preferred Shares. On the Closing Date, RBB shall sell,
transfer, convey and deliver to Xxxxxxx.xxx, and Xxxxxxx.xxx
shall purchase and accept delivery of, the Preferred Shares. RBB
shall deliver to Xxxxxxx.xxx stock certificates representing the
Preferred Shares, together with appropriate stock powers
endorsed in blank.
3. Purchase Price. In exchange for this transfer of the Preferred
Shares by RBB, Xxxxxxx.xxx shall transfer, convey and deliver to
RBB cash or shares of the common stock of Xxxxxxx.xxx, or a
combination thereof, pursuant to the election made by RBB on or
before June 11, 1999 in accordance with Section 1 above. If
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applicable, Xxxxxxx.xxx shall deliver to RBB a stock certificate
representing such shares of Xxxxxxx.xxx common stock.
4. Shares of Common Stock Held by RBB. The shares of common stock
of Lasergate held by RBB shall be purchased as part of the
Merger and not as part of this purchase transaction.
5. Conditions to Closing. The obligation of Xxxxxxx.xxx to purchase
RBB's Preferred Shares shall be subject to the following
conditions: (a) the execution of a definitive merger agreement
by Xxxxxxx.xxx and Lasergate; and (b) the resignation of
Xxxxxxxxxx X. Xxxxxxxx ("JES") as an officer and director of
Lasergate and the receipt by Lasergate of a release from JES
(reasonably acceptable to Xxxxxxx.xxx).
6. Effect of the Agreement. All other provisions contained in the
Agreement and not amended by this Amendment, remain in full
force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date set forth above.
XXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx,
Executive Vice President
RBB BANK AG
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Manager
U.S. Equities
