Exhibit 6
STOCK AMENDMENT AND ISSUANCE AGREEMENT
This STOCK AMENDMENT AND ISSUANCE AGREEMENT (this "Agreement") is made and
entered into as of September 17, 2002, by and among XXXXXX XXXXXXX ("Xxxxxxx"),
XXXXX XXXXXXXXX ("XxXxxxxxx" and, together with Xxxxxxx, the "Shareholders") and
ZENASCENT, INC., a Delaware corporation ("Zenascent" and, together with Xxxxxxx
and XxXxxxxxx, the "Parties").
RECITALS
WHEREAS, the Shareholders are the legal and beneficial owners of all of the
issued and outstanding shares of Series B Convertible Preferred Stock, par value
$0.01 per share, of Zenascent (the "Series B Stock");
WHEREAS, the Parties have determined that it is in the best interests of
Zenascent to raise additional capital through the issuance of additional equity
securities;
WHEREAS, Zenascent has determined that such capital raising would be
facilitated by a reduction in the economic rights of the Series B Stock on the
terms and conditions set forth herein; and
WHEREAS, the Shareholders are prepared to consent to such reduction
provided that their voting rights as Zenascent shareholders are maintained at
current levels through the issuance to them of shares of Series D Preferred
Stock, par value $0.01 per share, of Zenascent (the "Series D Stock"), a new
class of non-participating preferred stock with enhanced voting rights, all on
the terms and conditions set forth herein.
NOW, THEREFORE, in reliance on and in consideration of the premises and of
the mutual benefits and covenants contained herein, the Parties, intending to be
bound, hereby agree as follows:
1. RIGHTS AND PREFERENCES OF SERIES B STOCK
On or as soon as practicable after the date hereof, the Certificate of
Designation, Preferences and Rights of the Series B Stock shall be amended by
the filing with the Secretary of State of the State of Delaware of a Certificate
of Amendment of such Certificate of Designation, Preferences and Rights in the
form attached hereto as Exhibit A (the "Amendment").
2. ISSUANCE OF SERIES D STOCK
Substantially contemporaneously with the filing of the Amendment, the
Company shall create the Series D Stock by filing with the Secretary of State of
the State of Delaware the Certificate of Designation, Preferences and Rights of
the Series D Stock attached hereto as Exhibit B (the "Certificate"). In
consideration for the Shareholders' approval of the Amendment, Zenascent shall,
as soon as practicable following the filing of the Certificate, and for no
additional consideration, issue to Xxxxxxx and XxXxxxxxx 339,788.66 and
59,962.71 shares, respectively, of Series D Stock.
3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
(a) Zenascent hereby represents, warrants and covenants to the
Shareholders that:
(i) it is a corporation organized, existing and in good standing
under the laws of the State of Delaware, and it has all necessary corporate
authority to execute, deliver and perform this Agreement and its
obligations hereunder;
(ii) its execution, delivery and performance of this Agreement and
the transactions contemplated hereby have been duly authorized by it and
constitute its legal, valid and binding obligation, enforceable against it
in accordance with its terms, except as such enforceability may be affected
by bankruptcy, insolvency, moratorium or similar laws affecting the rights
of creditors generally and by the application of general principles of
equity (whether in a proceeding, in equity, or at law);
(iii) its execution, delivery and performance of this Agreement
and the transactions contemplated hereby will not conflict with or
constitute a breach or default under or violate any agreement to which it
is a party or by which any of its properties is bound, or any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award applicable to it or its properties; and
(iv) The Series D Stock to be issued and delivered hereunder
shall, when so issued and delivered, be duly authorized and validly issued
and will be fully paid, non-assessable and free and clear of all claims,
liens or other encumbrances (collectively, "Encumbrances"), except those
required by law.
(b) Each of the Shareholders, severally and not jointly, hereby
represents, warrants and covenants to Zenascent that:
(i) he has full right, power and authority to execute and deliver
this Agreement and to perform his obligations hereunder;
(ii) his execution, delivery and performance of this Agreement and
the transactions contemplated hereby have been duly authorized by him
and constitute his legal, valid and binding obligation, enforceable
against him in accordance with its terms, except as such enforceability
may be affected by bankruptcy, insolvency, moratorium or similar laws
affecting the rights of creditors generally and by the application of
general principles of equity (whether in a proceeding in equity or at
law);
(iii) his execution, delivery and performance of this Agreement
and the transactions contemplated hereby will not conflict with or
constitute a breach or default under or violate any agreement to which
he is a party or by which any of his properties is bound, or any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to him or his properties;
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(iv) he understands that the offering and issuance of the Series D
Stock is intended to be exempt from registration under the Securities
Act of 1933, as amended (the "Securities Act") by virtue of the
provisions of section 4(2) of the Securities Act and Regulation D
adopted thereunder ("Regulation D"), and he is accepting the Series D
Stock solely for purposes of investment and with no present intention
to distribute such Series D Stock;
(v) he is an "accredited investor," as defined in Rule 501(a) of
Regulation D and he has such knowledge and experience in financial and
business affairs as to be capable of evaluating the merits and risks of
an investment in Zenascent; and
(vi) he understands that (A) the purchase of the Series D Stock
will be a speculative investment which involves a high degree of risk
of loss of such investment, (B) there are substantial restrictions on
the transferability of the Series D Stock pursuant to the provisions of
the Securities Act, (C) for an indefinite period following the issuance
of the Series D Stock there will be no public market for the Series D
Stock and, accordingly, it may not be possible to liquidate his
investment in the Company in case of emergency or otherwise and (D) the
restrictions described above in this Section 3(b)(v) will be reflected
in a legend to be placed on the certificates representing the Series D
Stock to be issued hereunder and, if applicable, in a stop-transfer
order in respect thereof.
(c) Xxxxxxx hereby represents, warrants and covenants to Zenascent that
he is the sole legal and beneficial owner of 339,788.66 shares of Series B
Stock, and he holds such shares free and clear of all Encumbrances except those
required by law.
(d) XxXxxxxxx hereby represents, warrants and covenants to Zenascent
that he is the sole legal and beneficial owner of 59,962.71 shares of Series B
Stock, and he holds such shares free and clear of all Encumbrances except those
required by law.
4. NOTICES
All notices requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given on the date if delivered personally, or
upon the next business day after it shall have been deposited with a nationally
recognized overnight courier (such as Federal Express), or sent by telecopier
(with receipt duly confirmed), as follows (or at such other address or
telecopier number for a Party as shall be duly specified by like notice):
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(a) If to Zenascent, to it at
0 Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000,
with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to Xxxxxxx, to him at:
c/o Zenascent, Inc.
0 Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
(c) If to XxXxxxxxx, to him at:
c/o Zenascent, Inc.
0 Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
5. MISCELLANEOUS
(a) This Agreement contains the entire agreement between the Parties,
and supersedes all prior agreements and understandings, oral or written, between
the Parties, with respect to the subject matter hereof.
(b) This Agreement shall inure to the benefit of, and shall be binding
upon, the Parties and their respective successors, permitted assigns, heirs and
legal representatives, including any corporation or other business organization
with which Zenascent may merge or consolidate.
(c) This Agreement shall not be assigned or otherwise transferred by a
Party (other than to an affiliate) without the prior written consent of the
other Parties.
(d) This Agreement may not be changed, modified or extended except upon
written amendment executed by each of the Parties. The waiver by a Party of a
breach of any of the provisions of this Agreement shall not operate or be
construed as a waiver of any subsequent breach hereof.
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(e) If any provision of this Agreement is held invalid or unenforceable
by any court or other tribunal of competent jurisdiction, the other provisions
of this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
(f) All questions or disputes pertaining to the validity, construction,
execution and performance of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
(g) Each of the Parties hereby agrees to (i) submit to the personal
jurisdiction of the United States District Court for the Southern District of
New York (and all appropriate appellate courts), or, if jurisdiction in such
court is lacking, any court of the State of New York of competent jurisdiction
sitting in New York County (and all appropriate appellate courts), in connection
with any action or dispute hereunder, and (ii) irrevocably waive any objection
it may now or hereafter have as to the venue of any proceeding brought in any
such court or that any such court is an inconvenient forum.
(h) Each of the Parties agrees to duly execute and deliver, or cause to
be duly executed and delivered, such further agreements, documents and
instruments, and do or cause to be done such further acts, as may be reasonably
necessary or proper to effectuate the provisions of this Agreement and the
transactions contemplated hereby.
(i) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
ZENASCENT, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxx
-------------------
XXXXXX XXXXXXX
/s/ Xxxxx XxXxxxxxx
---------------------
XXXXX XXXXXXXXX
Signature Page to Stock Amendment and Issuance Agreement
Exhibit A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
ZENASCENT, INC.
(Pursuant to ss.151(g) of the General Corporation Law of the State of Delaware)
Zenascent, Inc., a Delaware corporation (the "Corporation"), does hereby
certify as follows:
FIRST: The current name of the Corporation is Zenascent, Inc.
SECOND: The first sentence of Section 4(a) of the Certificate of
Designation is hereby amended and restated in its entirety to read as follows:
In the event of any liquidation, dissolution or winding up of the Company,
either voluntarily or involuntarily, the Holders shall be entitled to
receive, immediately after any distributions to Senior Securities required
by the Company's certificate of incorporation, as amended, or any
certificate(s) of designation, and prior in preference to any distribution
to Junior Securities, but on parity with any distribution to the holders of
Parity Securities, an aggregate amount equal to the sum of (i) $2,430,000
and (ii) any due but unpaid dividends on the Series B Preferred Stock (the
"Liquidation Preference").
THIRD: The first sentence of Section 6(a) of the Certificate of Designation
is hereby amended and restated in its entirety to read as follows:
Each Holder may, at any time at the sole option of the Holder, convert
whole shares of Series B Preferred Stock into fifty (50) fully-paid and
non-assessable shares of Common Stock, subject to adjustment as provided in
Section 6(d).
FOURTH: The amendments set forth above to the Corporation's Certificate of
Amendment of Certificate of Designation have been duly adopted and written
consent thereto has been given in accordance with the provisions of Sections 228
and 141(f) of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed as of the ___ day of ___________, 2002.
------------------------------
Xxxxxx Xxxxxxx, President
Exhibit B
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF
SERIES D PREFERRED STOCK
OF
ZENASCENT, INC.
__________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
___________________
IT IS HEREBY CERTIFIED that:
1. The name of the company is Zenascent, Inc., a Delaware corporation (the
"Company").
2. The certificate of incorporation of the Company authorizes the issuance
of Twenty Million (20,000,000) shares of common stock, $0.01 par value per share
(the "Common Stock") and Five Million (5,000,000) shares of preferred stock,
$0.01 par value per share (the "Preferred Stock"), and expressly vests in the
Board of Directors of the Company the authority provided therein to issue any or
all of said shares of Preferred Stock in one (1) or more series and by
resolution or resolutions to establish the designation and number and to fix the
relative rights and preferences of each series to be issued.
3. The Board of Directors of the Company, pursuant to the authority
expressly vested in it as aforesaid, and pursuant to the provisions of Section
151 of the General Corporation Law of the State of Delaware, has adopted the
following resolution creating a new series of preferred stock, Series D
Preferred Stock, which contains the rights and preferences set forth in this
Certificate of Designation:
RESOLVED, that up to 400,000 shares of the Five Million (5,000,000)
authorized shares of Preferred Stock shall be designated Series D
Preferred Stock, $0.01 par value per share, and shall possess the
rights and preferences set forth in this Certificate of Designation.
Section 1. Designation and Amount. The shares of such series shall have a
par value of $0.01 per share and shall be designated as Series D Preferred Stock
(the "Series D Preferred Stock") and the number of shares constituting the
Series D Preferred Stock shall be 400,000.
Section 2. Rank. The Series D Preferred Stock shall rank, as to the
distribution of assets upon liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (all such distributions being referred
to collectively as "Distributions"): (i) junior to the Series A Preferred Stock,
$0.01 par value per share, of the Company (the "Series A Preferred Stock"), the
Series B Preferred Stock, $0.01 par value per share, of the Company (the "Series
B Preferred Stock"), the Series C Preferred Stock, $0.01 par value per share, of
the Company (the "Series C Preferred Stock"), and any other class or series of
capital stock of the Company hereafter created specifically ranking by its terms
senior to the Series D Preferred Stock (the "Senior Securities"); (ii) prior to
all of the Common Stock now or hereafter authorized and issued; (iii) prior to
any class or series of capital stock of the Company hereafter created not
specifically ranking by its terms senior to or on parity with the Series D
Preferred Stock (collectively with the Common Stock, the "Junior Securities");
and (iv) on parity with any class or series of capital stock of the Company
hereafter created specifically ranking by its terms on parity with the Series D
Preferred Stock (the "Parity Securities").
Section 3. Dividends. The Series D Stock shall not be entitled to receive
dividends or other distributions from the Company.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Company, either voluntarily or involuntarily, those persons then holding the
Series D Stock (the "Holders") shall be entitled to receive, immediately after
any distributions to Senior Securities required by the Company's certificate of
incorporation, as amended, or any certificate(s) of designation, and prior in
preference to any distribution to Junior Securities, but on parity with any
distribution to the holders of Parity Securities, an aggregate amount per share
equal to the sum of two million four hundred and thirty thousand dollars
$2,430,000 divided by the number of shares of Series D Stock then outstanding
(the "Liquidation Preference"). If upon the occurrence of such event, and after
payment in full of the preferential amounts with respect to the Senior
Securities, the assets and funds available to be distributed among the Holders
and the holders of Parity Securities shall be insufficient to permit the payment
of the full preferential amounts due to the Holders and the holders of the
Parity Securities, respectively, then the entire assets and funds of the Company
legally available for distribution shall be distributed among the Holders and
the holders of the Parity Securities, pro rata, based on the respective
liquidation amounts to which each such series of stock is entitled by the
Company's certificate of incorporation, as amended, and any certificate(s) of
designation relating thereto.
(b) Upon the completion of the distribution required by Section
4(a), if assets remain in the Company, they shall be distributed to holders of
Junior Securities in accordance with the Company's certificate of incorporation,
as amended, and any certificate(s) of designation relating thereto.
B-2
(c) Each of (i) the sale, conveyance or disposition of all or
substantially all of the assets or Common Stock of the Company; (ii) the
voluntary or involuntary dissolution or winding up of the Company; and (iii) a
merger or consolidation of the Company in which the Company's stockholders do
not retain a majority of the voting power in the surviving entity, shall be
treated as a liquidation, dissolution or winding up of the Company (each, a
"Liquidation Event") within the meaning of Section 4(a).
Section 5. Redemption. The Holders shall not have any right, at any time
or under any circumstances, to require the Company to redeem any of the Series D
Preferred Stock.
Section 6. Conversion of Series D Preferred Stock. The Series D Preferred
Stock shall not be convertible into Common Stock or any other class of security
of the Company.
Section 7. Voting Rights. Except to the extent otherwise expressly
provided by the General Corporation Law of the State of Delaware, the Series D
Preferred Stock shall vote together with the Common Stock as a single class, and
each share of Series D Preferred Stock shall entitle the Holder thereof to fifty
(50) votes on all matters to be voted on by the stockholders of the Company.
Section 8. Miscellaneous.
(a) Amendment and Waiver. No amendment, modification or waiver will
be binding or effective with respect to any provisions of this Certificate of
Designation without the prior written consent or affirmative vote of the holders
of not less than a majority of the Series D Preferred Stock outstanding at the
time such action is taken.
(b) Notices. Except as otherwise expressly provided herein, all
notices referred to herein will be in writing and will be delivered by
registered or certified mail, return receipt requested and postage prepaid, or
by reputable overnight courier service, charges prepaid, and will be deemed to
have been given when so mailed or sent (i) to the Company, at its principal
executive office, and (ii) to any Holder, at such Holder's address as it appears
in the stock records of the Company (unless otherwise indicated by notice given
to the Company by any such Holder).
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation
to be executed as of the ____ day of September, 2002.
ZENASCENT, INC.
By:____________________________________
Xxxxxx Xxxxxxx, President
