Exhibit 2.1
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of December 17, 2003, by and between
Special Situations Private Equity Fund, L.P. (the "Seller") and Wireless Age
Communications, Inc. (the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller owns $1,700,000 in outstanding principal amount of the
8% Convertible Subordinated Promissory Notes Due December 31, 2004, represented
by Note 1 (the "Note"), of RELM Wireless Corporation (the "Company"); and
WHEREAS, the Seller desires to sell and transfer the Note to the
Purchaser, and the Purchaser desires to purchase the Note from the Seller all as
more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of the Note
Section 1.1. Purchase and Sale of the Note. Upon the terms and subject to
the conditions of this Agreement and on the basis of the representations,
warranties and agreements contained herein, the Seller shall sell, assign,
transfer, convey and deliver to the Purchaser the Note and the Purchaser shall
purchase such Note from the Seller for an aggregate cash purchase price of
$1,870,000 (One Million Eight Hundred Seventy Dollars) (the "Purchase Price").
Upon consummation of the transactions contemplated hereby, the Purchaser shall
pay the Purchase Price by wire transfer of immediately available funds to an
account or accounts previously specified by the Seller.
Section 1.2. Closing. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place on the later of (i) December 18,
2003 or (ii) such time as all of the deliveries required by Section 1.3 have
been made, at the offices of the Seller located at 000 X. 00xx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time and place as the parties
may agree to in writing (the date on which the Closing takes place, the "Closing
Date").
Section 1.3. Transactions to be Effected at Closing. At the Closing:
(a) The Seller shall surrender to the Purchaser the Note accompanied
by a duly executed bond power in the form of Attachment I to the Note endorsed
in blank, and the Purchaser shall deliver the Purchase Price to the Seller in
accordance with Section 1.1 by wire transfer of immediately available funds to
an account previously specified in writing by the Seller.
(b) The Seller shall deliver to the Company and its counsel, an
opinion from Seller's counsel (a copy of which shall be provided to the
Purchaser), addressed to the Company, that the sale of the Note by the Seller to
the Purchaser may be made as contemplated by this Agreement without registration
under the Securities Act of 1933, as amended (the "Act"), in reliance on Rule
144(k) promulgated thereunder and that a replacement Note may be issued to the
Purchaser without restrictive legends under the Act (the "New Note").
(c) The Seller shall deliver, or cause to be delivered, to the
Purchaser written confirmation from the Company that it will deliver the New
Note to the Purchaser promptly following the Closing, without any restrictive
legend under the Act.
(d) The Seller shall have complied in all material respects with all
covenants in the Note relating to the transfer of the Note. Without limiting the
generality of the foregoing, the Seller shall have endorsed on the Note the
amount of principal, if any, paid thereon and the last date to which interest
has been paid thereon and shall have notified the Company of the sale of the
Note to the Purchaser, all in accordance with Section 1.1 of the Note.
(e) Each of the parties shall execute and deliver to the other
parties hereto such other documents or instruments as any party hereto
reasonably requests to effect the transactions contemplated hereby.
Section 1.4. Termination. In the event that any of the deliveries
specified in Section 1.3 do not occur on or before December 31, 2003, either the
Seller or the Purchaser may terminate this Agreement upon written notice to the
other, provided that such failure is not the result of a breach by the party
delivering such notice of its obligations hereunder.
ARTICLE II
Representations and Warranties Regarding the Seller
The Seller hereby represents and warrants to the Purchaser (which
representations and warranties shall be true and correct as of the Closing) as
follows:
Section 2.1. Authorization. The Seller has the limited partnership power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder, all of which have been duly authorized by all requisite
limited partnership action. This Agreement has been duly authorized, executed
and delivered by the Seller and constitutes a valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 2.2. No Consents. Except for notice to the Company and the
issuance of one or more opinions of counsel to the Company as described above,
no notice to, filing with, or authorization, registration, consent or approval
of any governmental authority or other individual, partnership, corporation,
joint stock company, unincorporated organization or association, trust or joint
venture, or a governmental agency or political subdivision thereof (each, a
"Person") is necessary for the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby by the
Sellers.
Section 2.3. Ownership of the Note. The Seller owns the Note beneficially
and of record, free and clear of any liens, pledges, options, security
interests, claims, third party rights, charges or any other restrictions or
encumbrances of any nature whatsoever (collectively, "Encumbrances"), other than
restrictions upon transferability of the Note arising under the Act or state
securities laws. There are no agreements (i) granting any option, warrant or
right of first refusal with respect to the Note to any Person, (ii) restricting
the right of the Seller to sell the Note to the Purchaser, (iii) restricting the
Seller's right to convert the Note in accordance with its terms or (iv)
restricting any other right of the Seller with respect to the Note. Subject to
compliance with the requirements of the Act and the terms of the Note, the
Seller has the absolute and unrestricted right, power and capacity to sell,
assign and transfer the Note to the Purchaser free and clear of any Encumbrances
(except for Encumbrances arising under applicable federal and state
securities laws). Upon delivery to the Purchaser of the Note in exchange for the
Purchase Price, the Purchaser will acquire good, valid and marketable title to
the Note, free and clear of any Encumbrances other than Encumbrances created by
the Purchaser and other than restrictions upon transferability of the Note by
the Purchaser arising under the Act or state securities laws.
Section 2.4. No Prepayment of Note. No principal under the Note has been
prepaid.
Section 2.5. Status. The Seller is not an "affiliate" of the Company as
that term is defined in Rule 144 promulgated under the Act and has not been an
"affiliate" of the Company within the three months preceding the Closing Date.
The Note was acquired by the Seller directly from the Company in a transaction
not involving a public offering. More than two years has elapsed since the
Seller acquired the Note from the Company. The full purchase price for the Note
was paid at the time the Note was acquired by the Seller.
Section 2.6. Brokers. No Person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from the
Seller in connection with this Agreement or any of the transactions contemplated
hereby.
ARTICLE III
Representations and Warranties Regarding the Purchaser
The Purchaser hereby represents and warrants to the Seller (which
representations and warranties shall be true and correct as of the Closing) as
follows:
Section 3.1. Authorization. The Purchaser has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, all of which have been duly authorized by all requisite corporate
action. This Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and binding agreement of such Purchaser,
enforceable against such Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 3.2. Investment Decision. The Purchaser has received all
information regarding the Company that it deems necessary or advisable to
evaluate the risks and merits of an investment in the Note. The Purchaser
acknowledges that the Seller has made no representations or warranties regarding
the Note except as expressly set forth herein. The Purchaser further
acknowledges that the Seller has made no representations or warranties regarding
the business, condition, results of operations or prospects of the Company or
the merits of an investment in the Note. The Purchaser is relying solely on its
own investigation and the express representations and warranties of the Seller
set forth herein in making a decision as to whether to acquire the Note. The
Purchaser has considered and, to the extent it believed such discussion was
necessary, discussed with its professional legal, tax and financial advisers the
suitability of an investment in the Note for the Purchaser's particular tax and
financial situation and the Purchaser has determined that the Note is a suitable
investment for it.
Section 3.3. Brokers. No person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from the
Purchaser in connection with this Agreement or any of the transactions
contemplated hereby.
ARTICLE IV
Survival, Amendment and Waiver
Section 4.1. Survival. The representations and warranties contained
in this Agreement or any certificate delivered in connection herewith shall
survive the sale of the Note as contemplated hereby.
Section 4.2. Amendments. This Agreement (including the provisions of this
Section 4.2) may not be amended or modified except by an instrument in writing
signed on behalf of all of the parties affected by such amendment or
modification.
Section 4.3. Extension; Waiver. The parties hereto may (i) extend the time
for performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the agreements of the other
parties hereto or satisfaction of any of the conditions to such party's
obligations contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of a party hereto to assert
any of its rights hereunder shall not constitute a waiver of such rights.
ARTICLE V
Miscellaneous
Section 5.1. Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, when delivered by courier, three days
after being deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested), or when received by facsimile transmission
upon receipt of a confirmed transmission report, as follows:
If to the Seller: Special Situations Private Equity Fund, L.P.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Purchaser: c/o Wireless Age Communications, Inc.
00000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxx X0X0X0
Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Any party hereto, by notice given to the other parties hereto in accordance with
this Section 5.1 may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party.
Section 5.2. Expenses. Each of the parties hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated herein.
Section 5.3. Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the internal laws of the State
of New York, without reference to the choice of law principles thereof. Each of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of
any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 5.4. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be null and void. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors, permitted assigns and legal representatives. This Agreement shall be
for the sole benefit of the parties to this Agreement and their respective
heirs, successors, permitted assigns and legal representatives and is not
intended, nor shall be construed, to give any Person, other than the parties
hereto and their respective heirs, successors, assigns and legal
representatives, any legal or equitable right, remedy or claim hereunder.
Section 5.5. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original agreement, but all of which together
shall constitute one and the same instrument.
Section 5.6. Titles and Headings. The titles and headings in this
Agreement are for reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 5.7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the matters covered hereby and
thereby and supersedes all previous written, oral or implied understandings
among them with respect to such matters.
Section 5.8. 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.
Section 5.9. 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; and (iii) words importing the singular shall also include the plural, and
vice versa.
Section 5.10. No Strict Construction. Each of the parties hereto
acknowledges that this Agreement has been prepared jointly by the parties
hereto, and shall not be strictly construed against either party.
Section 5.11. Payments Improperly Received. In the event any payment
(including any prepayment) on account of principal of or interest on the Note
shall be received by the Seller before such time as the Purchaser has received
from the Company the New Note, such payment(s) shall be held in trust for, and
as the sole and exclusive property of, the Purchaser and, immediately upon
receipt thereof, the Seller shall notify the Purchaser in writing of such
receipt and shall remit the same in kind to the Purchaser in the manner
specified by the Purchaser.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
WIRELESS AGE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
