Exhibit 10.2
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made as of November 20,
2002, by and between Swissray International Inc., a Delaware corporation (the
"Company"), SWR Investments LLC, a Delaware limited liability company (the
"Purchaser") and each of the Persons listed on Exhibit A attached hereto (each,
a direct or indirect "Stockholder" and collectively the "Stockholders"). All
capitalized terms used herein but not otherwise defined shall have the meanings
set forth in the Securities Purchase Agreement (as defined below).
WHEREAS, the Stockholders hold all of the outstanding Series C
Convertible Preferred Stock of the Company, par value $0.0001 per share (the
"Series C Preferred Stock");
WHEREAS, the Company, the Subsidiaries, the Purchaser and each of the
Persons listed on Exhibit A attached thereto are parties to that certain
Securities Purchase Agreement (the "Securities Purchase Agreement"), dated as of
November 15, 2002;
WHEREAS, the Company and the Stockholders desire to enter into an
agreement pursuant to which each of the Stockholders will exchange (i) the
shares of Series C Preferred Stock and shares of Common Stock (collectively, the
"Exchange Stock"), (ii) all existing debt obligations owed to such Stockholder
by the Company (the "Exchange Debt") and (iii) all expenses previously funded to
the Company by such Stockholder (the "Exchange Obligations" and together with
the Exchange Stock and the Exchange Debt, the "Exchange Consideration"), each as
set forth opposite such Stockholder's name on Exhibit A attached hereto in
exchange for shares of (i) Series D Redeemable Preferred Stock of the Company,
par value $0.0001 per share (the "Series D Preferred Stock") and (ii) Series H
Preferred Stock of the Company, par value $0.0001 per share (the "Series H
Preferred Stock") set forth opposite such Stockholder's name on Exhibit A
hereto;
WHEREAS, the execution of this Agreement by the Stockholders is a
condition to the Securities Purchase Agreement and the closing of the
transactions contemplated thereby; and
WHEREAS, the Stockholders and the Company each believe that it is in
their respective best interests to enter into this Agreement and consummate the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound, the
parties hereby agree as follows:
1. Securities.
(a) At, and simultaneous with, the closing of the transactions contemplated
by the Securities Purchase Agreement (the "Closing"), the parties hereto shall
consummate the following transactions:
(i) each Stockholder will deliver to the Company the certificates
representing the Exchange Stock set forth opposite such
Stockholder's name on Exhibit A hereto, together with stock
powers executed in favor of the Company;
(ii) each Stockholder will deliver to the Company all instruments (if
any) evidencing the Exchange Debt and Exchange Obligations to be
cancelled by the Company; and
(iii) the Company will deliver to each Stockholder the certificate
representing the Series D Preferred Stock and the Series H
Preferred Stock set forth opposite such Stockholder's name on
Exhibit A attached hereto.
(b) In connection with the purchase, sale and exchange of the Series D
Preferred Stock and the Series H Preferred Stock hereunder, and the execution,
delivery and performance of this Agreement and the other agreements contemplated
hereby to which it is a party (collectively the "Documents"), (x) the Company
represents and warrants to each Stockholder that (i) this Agreement and the
Documents to which it is a party constitute the legal, valid and binding
obligations of the Company, and are enforceable against the Company in
accordance with their respective terms (except as limited by general principles
of equity and bankruptcy) and (ii) the Series D Preferred Stock and Series H
Preferred have been duly and validly issued, and are fully paid and
non-assessable; and (y) each Stockholder represents and warrants to the Company
and the Purchaser that:
(i) the Series D Preferred Stock and the Series H Preferred Stock to
be acquired by such Stockholder pursuant to this Agreement will
be acquired for such Stockholder's own account and not with a
view to, or intention of, distribution thereof in violation of
any applicable securities laws, and the Series D Preferred Stock
and the Series H Preferred Stock will not be disposed of in
contravention of any such laws;
(ii) each Stockholder is an "accredited investor" as defined under
Rule 501 of Regulation D of the Securities Act of 1933, as
amended (the "Securities Act");
(iii) such Stockholder is sophisticated in business and financial
matters and is able to evaluate the merits, risks and benefits of
the investment in the Series D Preferred Stock and the Series H
Preferred Stock;
(iv) such Stockholder is able to bear the economic risk of its
investment in the Series D Preferred Stock and the Series H
Preferred Stock for an indefinite period of time because the
Series D Preferred Stock and the Series H Preferred Stock have
not been registered under any applicable securities
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laws and, therefore, cannot be sold unless subsequently
registered under all applicable securities laws or an exemption
therefrom is available;
(v) such Stockholder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the
offering of the Series D Preferred Stock and the Series H
Preferred Stock and has had full access to such other information
concerning the Company as he or it has requested;
(vi) such Stockholder's knowledge and experience in financial and
business matters are such that the Stockholder is capable of
evaluating the risks of making investments in the Company;
(vii) such Stockholder specifically acknowledges and warrants that it
has conducted its own independent evaluation, received
independent legal advice and made its own analysis as it has
deemed necessary, prudent or advisable in order to make its
determination and decision to enter into this Agreement and the
other Documents, to make the covenants, representations,
warranties and promises provided for herein and therein and to
consummate the transactions contemplated by this Agreement and
the Securities Purchase Agreement. Such Stockholder's
determination to enter into this Agreement and the other
Documents and to consummate the transactions contemplated by this
Agreement and the Securities Purchase Agreement, has been, and in
each case will be, made by such Stockholder relying entirely upon
its own independent evaluation, judgment and analysis and that of
its legal counsel and other advisors, regarding the proper,
complete and agreed upon consideration for and language for this
Agreement and the other Documents and the Securities Purchase
Agreement, without reliance upon any oral or written
representations and warranties of any kind or nature (other than
specific representations contained in this Agreement) by any
other Person (including, without limitation, the Purchaser and
its and their respective officers, directors, members, agents
partners, employees, equityholders, legal or other advisors and
its and their Affiliates) and independent of any statements or
opinions as to the advisability of such exchange or investments
or as to the properties, business, prospects or condition
(financial or otherwise) of the Company or any of its
subsidiaries, which may have been made or given by any such other
Person, and such is not being given or relying upon any legal,
accounting or tax advice by the Company, the Purchaser or its and
their officers, directors, members, agents partners, employees,
equityholders legal or other advisors or its and their
Affiliates;
(viii) such Stockholder has freely and independently bargained for
this Agreement and such other Documents at arms-length and such
Stockholder is receiving reasonably equivalent value and fair
consideration;
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(ix) no statements, representations, promises, warranties, threats or
inducements of any kind have been made outside this Agreement and
the other Documents that have influenced or induced such
Stockholder to execute this Agreement and such other Documents to
which it is a party; and
(x) each of this Agreement and the other Documents constitutes the
legal, valid and binding obligation of such Stockholder,
enforceable in accordance with its terms (except as limited by
general principles of equity and bankruptcy).
(c) In connection with the exchange of the Exchange Consideration
hereunder, each Stockholder also represents and warrants to the Company and the
Purchaser that such Stockholder owns beneficially and of record and has good and
marketable title to the Exchange Consideration set forth opposite such
Stockholder's name on Exhibit A attached hereto. Each Stockholder further
represents and warrants that neither such Stockholder nor any of its Affiliates
has received any payments with respect to or in exchange for securities of the
Company. At the Closing, such Stockholder shall transfer to the Company good and
marketable title to the Exchange Consideration to be transferred by such
Stockholder, free and clear of all Liens, options, proxies, voting trusts or
agreements and other restrictions. There are no statutory or contractual
preemptive rights, anti-dilution protection or rights of refusal that have not
been waived with respect to the exchange of such Exchange Stock hereunder. After
giving effect to the consummation of this Agreement and consummation of the
transactions contemplated by the Securities Purchase Agreement, each Stockholder
shall not (a) have any right, title or interest in any debt or equity securities
of the Company or securities convertible into or exchangeable for, directly or
indirectly, equity securities of the Company, other than the shares of Series D
Preferred Stock and the Series H Preferred Stock listed across from such
Stockholder's name on Exhibit A attached hereto; and/or (b) be a party to or
bound by any agreement, document, instrument or arrangement with the Company or
any Affiliate thereof, other than this Agreement.
2. Stockholder Release. Each Stockholder, on its behalf and on behalf of
its Affiliates and each of its and their respective representatives, agents,
successors, assigns, officers, directors, shareholders, members, partners,
employees, attorneys, principals and each of them (collectively, the
"Stockholder Releasing Parties"), does hereby consent to the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby and by the Securities Purchase Agreement and does hereby
release absolutely and forever compromise, settle and discharge each of the
Company and the Purchaser, and each of its respective Affiliates, subsidiaries,
representatives, agents, successors, assigns, officers, directors, shareholders,
members, managers, principals, partners, employees, attorneys and principals,
past and present and their respective heirs, successors and assigns
(collectively, the "Stockholder Released Parties"), from any and all rights,
claims (including, without limitation, claims for diminution in value,
compensatory damages, liquidated damages, punitive or exemplary damages or any
special, indirect or consequential damages or other damages), charges,
controversies, cross-claims, counter-claims, demands, covenants, judgments,
debts, accounts, reckoning, obligations, actions and causes of action, fees,
costs, including, without limitation, claims for costs and attorneys' fees and
other liabilities of every kind and nature whatsoever in law or equity, whether
in administrative proceedings or in arbitration and whether
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known or unknown, suspected or unsuspected, material or immaterial, absolute or
contingent, direct or indirect or nominally or beneficially possessed or claimed
against the Stockholder Released Parties (collectively, "Actions") which the
Stockholder Releasing Parties have, or ever had, owned or held, or hereafter
can, shall or may have against any of the Stockholder Released Parties arising
out of, relating to, in connection with, caused by, or by virtue of, any events,
facts or circumstances through the date hereof, whether pursuant to the
Terminated Contracts, as a holder of debt or equity of the Company, in
connection with the transactions contemplated hereby or by the other Documents,
in connection with any prior transactions or otherwise. Each Stockholder, on its
behalf and on behalf of each Stockholder Releasing Party, expressly waives all
rights afforded by any statute which limits the effect of a release with respect
to unknown claims and acknowledges that he understands the significance of this
release of unknown claims and waiver of statutory protection against a release
of unknown claims. Each Stockholder understands and acknowledges (for itself and
all the Stockholder Releasing Parties) that it may discover facts different
from, or in addition to, those which it knows or believes to be true with
respect to the claims released herein, and agrees that this release shall be and
remain effective in all respects notwithstanding any subsequent discovery of
different and/or additional facts. Should any Stockholder Releasing Parties
discover that any fact relied upon in entering into this release was untrue, or
that any fact was concealed, or that an understanding of the facts or law was
incorrect, no Stockholder Releasing Parties shall be entitled to any relief as a
result thereof, and each Stockholder surrenders (for itself and all the
Stockholder Releasing Parties) any rights it might have to rescind this release
on any ground. This release is intended to be and is final and binding
regardless of any claim of misrepresentation, promise made with the intention of
performing, concealment of fact, mistake of law or fact, or any other
circumstances whatsoever. Each Stockholder, on behalf of itself and the other
Stockholder Releasing Parties, hereby warrants and represents that there has
been no assignment, conveyance, encumbrance, hypothecation, pledge or other
transfer of any interest or any matter covered by this release. If, for any
reason, any court of competent jurisdiction shall hold by final non-appealable
order that any Action purported to be released hereby is not so released, then
this release shall nonetheless be and remain effective with respect to each and
every other Action released hereby. Each Stockholder, on its behalf and on
behalf of each Stockholder Releasing Party, acknowledges and agrees that this
waiver is an essential and material term of this Agreement.
3. Company Release. Except with respect to the Non-Released Claims (as
defined below), the Company, on its behalf and on behalf of its Affiliates prior
to the date hereof and each of its and their respective representatives, agents,
successors, assigns, officers, directors, shareholders, members, partners,
employees, attorneys, principals and each of them (collectively, the "Company
Releasing Parties"), does hereby consent to the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and by the Securities Purchase Agreement and does hereby
release absolutely and forever compromise, settle and discharge each of the
Stockholders, the Purchaser, and each of their respective Affiliates,
subsidiaries, representatives, agents, successors, assigns, officers, directors,
shareholders, members, managers, principals, partners, employees, attorneys and
principals, past and present and their respective heirs, successors and assigns
(collectively, the "Company Released Parties"), from any and all Actions which
the Company Releasing Parties have, or ever had, owned or held, or hereafter
can, shall or may have against any of the Company Released Parties arising out
of, relating to, in connection with, caused by, or by virtue of, any events,
facts or circumstances through the date hereof, whether pursuant to the
Terminated Contracts, as a
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holder of debt or equity of the Company, in connection with the transactions
contemplated hereby or by the other Documents, in connection with any prior
transactions or otherwise. The Company, on its behalf and on behalf of each
Company Releasing Party, expressly waives all rights afforded by any statute
which limits the effect of a release with respect to unknown claims (that do not
constitute Non-Released Claims) and acknowledges that it understands the
significance of this release of unknown claims and waiver of statutory
protection against a release of unknown claims. The Company understands and
acknowledges (for itself and all the Company Releasing Parties) that it may
discover facts different from, or in addition to, those which it knows or
believes to be true with respect to the claims released herein, and agrees that
this release shall be and remain effective in all respects notwithstanding any
subsequent discovery of different and/or additional facts. Should any Company
Releasing Parties discover that any fact relied upon in entering into this
release was untrue, or that any fact was concealed, or that an understanding of
the facts or law was incorrect, no Company Releasing Parties shall be entitled
to any relief as a result thereof, and the Company surrenders (for itself and
all the Company Releasing Parties) any rights it might have to rescind this
release on any ground. This release is intended to be and is final and binding
regardless of any claim of misrepresentation, promise made with the intention of
performing, concealment of fact, mistake of law or fact, or any other
circumstances whatsoever. The Company, on its behalf and on behalf of each other
Company Releasing Party, hereby warrants and represents that there has been no
assignment, conveyance, encumbrance, hypothecation, pledge or other transfer of
any interest or any matter covered by this release. If, for any reason, any
court of competent jurisdiction shall hold by final non-appealable order that
any Action purported to be released hereby is not so released, then this release
shall nonetheless be and remain effective with respect to each and every other
Action released hereby. The Company, on its behalf and on behalf of each Company
Releasing Party, acknowledges and agrees that this waiver is an essential and
material term of this Agreement. Notwithstanding anything contained herein or
elsewhere to the contrary, neither the Company nor any Company Releasing Party
is releasing any Company Released Party from or against (i) any Losses or other
Actions arising out or relating to any events, facts or circumstances for which
the Stockholders have agreed to indemnify the Purchaser pursuant to Section 9
below or (ii) any breaches by the Purchaser under the Securities Purchase
Agreement (collectively, the "Non-Released Claims"). Without limiting the
foregoing, and notwithstanding anything contained to the contrary herein, all
rights to indemnification as set forth in Section 9 below shall remain in full
force and effect and shall not be otherwise modified or affected by this Section
3.
4. Restrictions on Transfer. No Stockholder shall sell, transfer, assign,
pledge, charge, encumber or otherwise dispose of (whether with or without
consideration and whether voluntarily or involuntarily or by operation of law)
(a "Transfer") any Stockholder Shares, now or hereinafter owned by Stockholder,
without the prior written consent of the Company's board of directors (the
"Board") (i) in its reasonable discretion, not to be unreasonably withheld for
so long as the Company has common stock quoted on the OTB or national or
regional stock market and (ii) in its sole discretion from and after such time
as the Company does not have any common stock quoted on the OTB or national or
regional stock market. Notwithstanding the foregoing, (x) a Stockholder may
Transfer shares of Company common stock (i) pursuant to Rule 144 as if an
affiliate of the Company for so long as the Company has common stock quoted on
the OTB or national or regional stock market or (ii) following a transaction in
which the Purchaser has Transferred greater than 40% of its Common Stock on an
as-if converted or exchanged and fully diluted basis; and (y) it shall be a
condition to any Transfer by a Stockholder
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of greater than 1% of any class of its Stockholder Shares (other than a Transfer
pursuant to clause (x) above) that its transferee agrees to be bound by Sections
1(b), 5 and 8 hereof as if originally a Stockholder party hereto. Without in any
way limiting the foregoing, each Stockholder agrees not to effect any public
sale or distribution (including sales pursuant to Rule 144) of any Stockholder
Shares, enter into a transaction which would have the same effect, or enter into
any swap, hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of such Stockholder Shares, whether any
such aforementioned transaction is to be settled by delivery of such securities
or other securities, in cash or otherwise, or publicly disclose the intention to
make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement (in each case, also "Transfer"),
in each case, during the period before and after the effective time of any
underwritten registration (except as part of such underwritten registration) in
which the Purchaser has agreed to be similarly bound. Each Stockholder hereby
agrees to execute any letters, agreements or other documents requested by the
Company or its underwriter with respect to such prohibitions on Transfers.
5. Approved Sale.
(a) Each Stockholder hereby agrees that if at any time the Board approves a
Sale of the Company (an "Approved Sale"), each Stockholder will vote for,
consent to, and raise no objections against such Approved Sale. If the Approved
Sale is structured (x) as a merger or consolidation, each such holder will waive
any dissenters rights, appraisal rights or similar rights in conjunction with
such merger or consolidation or (y) as a sale of equity, each such Stockholder
will agree to sell up to all of such Stockholder's Shares on the terms and
conditions approved by the Company, and (z) as a sale of assets, each such
Stockholder will vote in favor of any subsequent liquidation or other
distribution of the proceeds therefrom as approved by the Board. The Company and
each Stockholder will take all necessary or desirable actions in connection with
the consummation of the Approved Sale as requested by the Board, including the
execution of all agreements, documents and instruments in connection therewith
in the form presented by the Company.
(b) Upon the consummation of the Approved Sale, each Stockholder
participating in such Approved Sale will receive the same portion of the
aggregate consideration available to be distributed to the stockholders of the
Company (in their capacity as such) that such Stockholders participating in such
sale (in their capacity as stockholders of the Company) would have received if
such aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately before such Approved Sale
(a "Liquidation") (and, in the event of a sale of stock, assuming that the only
securities of the Company outstanding were those Stockholder Shares and other
shares of capital stock involved in such sale), and assuming that the holders of
convertible securities had converted their shares if by converting such holders
would have received more proceeds upon a Liquidation.
(c) Each Stockholder will be obligated to join on a pro rata basis (applied
such that after giving effect thereto, the aggregate consideration paid to each
Stockholder would comply with the provisions of Section 5(b)) in any purchase
price adjustments, indemnification or other obligations that the sellers of
Stockholder Shares are required to provide in connection with the
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Approved Sale (other than any such obligations that relate solely to a
particular Stockholder, such as indemnification with respect to representations
and warranties given by a Stockholder regarding such Stockholder's title to and
ownership of Stockholder Shares, in respect of which only such Stockholder will
be liable); provided that no holder will be obligated in connection with such
indemnification or other obligations with respect to an amount in excess of the
consideration received by such holder in connection with such transfer.
(d) If the Company enters into a negotiation or transaction for which Rule
506 (or any similar rule then in effect) promulgated by the Securities and
Exchange Commission may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization), the
Stockholder will, at the request of the Board, appoint a Stockholder
representative (as such term is defined in Rule 501) reasonably acceptable to
the Board. If any Stockholder appoints a Stockholder representative designated
by the Board, the Company will pay the fees of such Stockholder representative,
but if any holder of Stockholder declines to appoint the Stockholder
representative designated by the Board such holder will appoint another
Stockholder representative, and such holder will be responsible for the fees of
the Stockholder representative so appointed.
(e) If any Stockholder fails to deliver any certificates representing its
Stockholder Shares as required by this Section 5, such Stockholder (i) will not
be entitled to the consideration that such Stockholder would otherwise receive
in the Approved Sale until such Stockholder cures such failure by providing the
Company with reasonably satisfactory evidence (an affidavit of the registered
holder shall be satisfactory) of the ownership and the loss, theft, destruction
or mutilation of any certificate evidencing his Stockholder Shares, and
indemnify in respect thereto which is reasonably satisfactory to the Company
(provided that, after curing such failure, such holder will be so entitled to
such consideration without interest), (ii) will be deemed, for all purposes, no
longer to be a Stockholder of the Company and will have no voting rights,
(iii) will not be entitled to any dividends or other distributions declared
after the Approved Sale with respect to the Stockholder Shares held by such
Stockholder, (iv) will have no other rights or privileges granted to
Stockholders under this or any future agreement, and (v) in the event of
liquidation of the Company, such Stockholder's rights with respect to any
consideration that such holder would have received if such holder had complied
with this Section 5, if any, will be subordinate to the rights of any equity
holder.
(f) In order to secure each Stockholder's obligation to vote its
Stockholder Shares and other voting securities of the Company in accordance
with, and to take the other actions required by, the provisions of this Section
5 and of Section 8, each Stockholder hereby appoints the Purchaser as its true
and lawful proxy and attorney-in-fact, with full power of substitution, to vote
all of its Stockholder Shares and other voting securities of the Company for the
matters expressly provided for in this Section 5. The Purchaser may exercise the
irrevocable proxy granted to it hereunder at any time any Stockholder fails to
comply with the provisions of this Section 5. The proxies and powers granted by
each Stockholder pursuant to this Section 5(f) are coupled with an interest and
are given to secure the performance of such Stockholder's obligations under this
Section 5. Such proxies and powers shall be irrevocable and shall survive the
death, incompetency, disability or bankruptcy of such Stockholder and the
subsequent holders of its Stockholder Shares.
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6. Stockholder Participation Rights.
(a) At least 15 days before a Transfer (other than pursuant to Section 5, a
Public Sale or a Permitted Transfer) by the Purchaser of any shares of Common
Stock, the Purchaser will deliver a written notice (the "Type 1 Sale Notice") to
the Company and Hillcrest Avenue, LLC ("Hillcrest"), specifying the number of
shares of Common Stock to be transferred by the Purchaser and the price and
other material terms and conditions of the proposed Transfer, if known (or
attaching the agreement containing such terms and conditions). In addition, if
the Purchaser still owns shares of convertible preferred stock and the Purchaser
enters into an agreement or series of transactions to Transfer greater than 40%
of its Common Stock on an as-if converted or exchanged and fully diluted basis,
the Purchaser shall also deliver a written notice (the "Type 2 Sale Notice";
each of the Type 1 Sale Notice and Type 2 Sale Notice, a "Sale Notice") to the
Company and Hillcrest, specifying in the material terms and conditions of the
proposed Transfer, including, without limitation, the price which shall be
allocated to Common Stock (or attaching the agreement containing such terms and
conditions). The Purchaser will not consummate such proposed Transfer until at
least 10 days after the delivery of a Sale Notice, unless the parties to the
Transfer have been finally determined pursuant to this Section 6 prior to the
expiration of the 15-day period. In the event that any Stockholder holds any
shares of Common Stock or of Series H Preferred Stock, such Stockholder may
elect to participate in the contemplated Transfer by delivering written notice
to the Purchaser within 10 days after delivery of a Sale Notice. If any such
Stockholder has elected to participate in such Transfer (each a "Participating
Stockholder"), then the Purchaser and each Participating Stockholder will be
entitled to transfer in the contemplated Transfer, at the same price and on the
same terms specified in the Sale Notice with respect to shares of Common Stock
and of Series H Preferred Stock, a number of shares of Common Stock and Series H
Preferred Stock, equal to the number of shares of Common Stock to be transferred
in the contemplated Transfer (or allocated in the contemplated Transfer if a
Type 2 Sale Notice) multiplied by a fraction, the numerator of which is (A) the
number of shares of Common Stock and of Series H Preferred Stock held by such
Participating Stockholder at such time, and the denominator of which is (B) the
aggregate number of shares of Common Stock on an as-if converted or exchanged
and fully diluted basis.
(b) The Purchaser shall use its reasonable efforts to obtain the agreement
of the prospective transferee(s) to the participation of the Participating
Stockholders in any contemplated Transfer, and the Purchaser shall not Transfer
any shares of Common Stock or, as applicable, shares of convertible preferred
stock, to the prospective transferee(s) unless (A) the prospective transferee(s)
agrees to allow the participation of the Participating Stockholders at the same
price and on the same terms as specified in the Sale Notice, or (B) the
Purchaser agrees to purchase the number of shares of Common Stock and/or of
Series H Preferred Stock that any Participating Stockholder would have been
entitled to transfer pursuant to this Section 6 at the same price and on the
same terms as specified in the Sale Notice. In furtherance of the foregoing,
each Participating Stockholder will take all necessary or desirable actions
requested by the Purchaser in connection with the consummation of such Transfer,
including executing all agreements, documents, and instruments in connection
therewith in the form presented by the Purchaser. If, in response to the Sale
Notice, there are no Participating Stockholders, then the Purchaser will be
entitled to Transfer to the prospective transferee(s) specified in the Sale
Notice the number of shares of Common Stock specified in the Sale Notice on the
terms and conditions specified therein.
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(c) Each Stockholder Transferring securities pursuant to this Section 6
will pay its pro rata share (based on the number of shares of Common Stock
and/or of Series H Preferred Stock to be transferred by such Stockholder) of the
expenses incurred by the Stockholders in connection with such Transfer and will
be obligated to participate severally on a pro rata basis (based on the number
of shares of Common Stock to be sold) in any indemnification or other
obligations that the Purchaser agrees to provide in connection with such
Transfer (other than any such obligations that relate solely to a particular
Stockholder, such as indemnification with respect to representations and
warranties given by a Stockholder regarding such Stockholder's title to and
ownership of shares of Common Stock or of Series H Preferred Stock, in respect
of which only such Stockholder will be liable).
(d) Notwithstanding anything to the contrary in any other provision of this
Agreement, the restrictions contained in this Section 6 shall not apply to any
(i) Transfer of shares of Common Stock by the Purchaser to or among any of its
Affiliates or (ii) Transfer of less than 5% of the Common Stock held by the
Purchaser at such time (each a "Permitted Transfer").
7. Limited Preemptive Right.
(a) If the Company authorizes the issuance or sale of any New Securities to
the Purchaser or any Affiliates of Purchaser, the Company shall first offer to
sell to each Stockholder a portion of such stock or securities equal to the
quotient determined by dividing (1) the number of shares of Common Stock held by
such holder at such time on an as-if converted or exchanged and fully diluted
basis by (2) the total number of shares of Common Stock then issued and
outstanding immediately prior to such issuance on an as-if converted or
exchanged and fully diluted basis. Each Stockholder shall be entitled to
purchase such stock or securities on the same terms as such stock or securities
are to be offered to Purchaser or such Affiliates; provided that if the
Purchaser is required to also purchase other securities of the Company, the
Stockholders exercising their rights pursuant to this paragraph shall also be
required to purchase the same strip of securities (on the same terms and
conditions) that Purchaser or such Affiliates are required to purchase. Each
Stockholder will take all necessary or desirable actions in connection with the
consummation of the transactions contemplated by this Section 7 as reasonably
requested by the Board, including the execution of all agreements, documents and
instruments in connection therewith in the form presented by the Company.
(b) In order to exercise its purchase rights hereunder, a Stockholder must
within 15 days after receipt of written notice from the Company describing the
stock or securities being offered, the purchase price thereof, the payment terms
and such holder's percentage allotment deliver a written notice to the Company
describing its election hereunder.
(c) Upon the expiration of the offering period described above, the Company
shall be entitled to sell such stock or securities which the Stockholders have
not elected to purchase during the 180 days following such expiration on terms
and conditions no more favorable to the purchasers thereof than those offered to
such holders. Any stock or securities offered or sold by the Company to the
Purchaser or such Affiliates after such 180-day period must be reoffered to the
Stockholders pursuant to the terms of this paragraph.
10
(d) The provisions contained in this Section 7 shall terminate upon an
Approved Sale.
8. Voting. Each Stockholder hereby agrees to vote all of its Stockholder
Shares and any other voting securities of the Company over which such
Stockholder has voting control to (a) elect all members to the Board as
designated by the Purchaser and (b) amend the Company's Certificate of
Incorporation so as to authorize (i) additional classes of capital stock and
(ii) additional shares of common stock so that there is sufficient common stock
duly and validly authorized and reserved for issuance upon conversion or
redemption of the Series E Preferred Stock, Series H Preferred Stock and any
other securities which are convertible or exercisable, directly or indirectly,
into common stock.
9. Indemnification. A. Each Stockholder, jointly and severally, shall
indemnify the Purchaser, its Affiliates prior to Closing and each of its and
their respective officers, directors, stockholders, employees, agents,
representatives, successors, and assigns (but expressly excluding any
stockholders of the Company other than Purchaser, its Affiliates and
transferees)(collectively, the "Indemnified Parties") and hold each of them
harmless, on an as-incurred basis, from and against and pay on behalf of or
reimburse such Indemnified Parties in respect of any Loss or other Action which
any such Indemnified Party may suffer, sustain, or become subject to, as a
result of or relating to or arising out of (a) any stockholder claims (other
than such claims made by the Purchaser, its Affiliates and transferees not
pursuant to this Section 9) or other third-party claims as a result of relating
to, or arising out of, such Stockholder's or any of Stockholder Releasing
Party's investment or other interest in the Company on or prior to the Closing
Date, (b) any breach of any representation, warranty, covenant or agreement made
by such Stockholder contained in this Agreement or (c) any stockholder claims
(other than such claims made by the Purchaser, its Affiliates and transferees
not pursuant to this Section 9) or other third-party claims as a result of,
relating to, or arising out of, any actions or omissions of such Stockholder or
its respective officers, directors, stockholders, employees, agents,
representatives, or Affiliates in connection with such Stockholder's or any of
Stockholder Releasing Party's investment or other interest in the Company prior
to the Closing Date. The aggregate amount of all payments made by the
Stockholders in satisfaction of claims for indemnification pursuant to this
Section 9 shall not exceed $8,500,000. Effective as of the Closing, each
Stockholder hereby irrevocably covenants not to xxx and otherwise refrain from,
directly or indirectly, asserting any claim or demand or commencing, instituting
or causing to be commenced, any proceeding of any kind (whether based on
contract, rights under the certificate of incorporation or otherwise) against
any Released Parties, based on any matter purported to be released pursuant to
Section 2 hereof. If, for any reason, a court of competent jurisdiction holds
that this Section 9 is unenforceable, each Stockholder shall indemnify the
Indemnified Parties to the maximum extent permitted by law. The provisions of
this Section 9 shall be in addition to, rather than in lieu of, and shall not
affect any rights or remedies the Indemnified Parties may have pursuant to law,
contract or otherwise. Notwithstanding anything contained to the contrary
herein, Losses shall be reduced to the extent that such Indemnified Party
actually recovers any insurance proceeds, other amounts from third parties, or
tax refunds in respect of such Losses or other tax benefits in respect of such
Losses that are actually realized and actually reduce the amount of tax paid by
the Company, in each case net of Liabilities incurred to recover such amounts
(including, without limitation, increased premiums). B. The Company shall
defend, indemnify the Company Released Parties and hold each of them harmless,
on an as-incurred basis, from and against, and pay on behalf of or reimburse
such Company Released Parties in
11
respect of any brokerage fees due to or payable to Houlihan, Lokey, Xxxxxx &
Zukin Capital, in connection with the transactions contemplated by this
Agreement and the Securities Purchase Agreement .
10. Termination of Contracts. Each Stockholder, on behalf of itself and the
other Stockholder Releasing Parties, hereby agrees and consents to the
termination in their entirety of all agreements entered into prior to the
Closing Date to which a Stockholder Releasing Party and the Company or an
affiliate of the Company prior to the Closing Date is a party, including the
following agreements (collectively, the "Terminated Contracts"), in each case,
without any Liability to the Indemnified Parties:
(a) Securities Purchase Agreement dated as of July 12, 2002 by and between
the Company and Kew Court, LLC ("Kew Court"); ---------
(b) Exchange Agreement dated as of August 14, 2002 by and between the
Company and Hillcrest;
(c) Exchange Agreement dated as of August 14, 2002 by and between the
Company and Kew Court;
(d) Registration Rights Agreement dated as of December 29, 2000 by and
among the Company and Hillcrest;
(e) Registration Rights Agreement dated as of August 14, 2002 by and among
the Company, Kew Court and Hillcrest;
(f) Series 2002 Convertible Note Due December 31, 2003 dated July 12, 2002
issued to Kew Court;
(g) Series 2002 Convertible Note Due December 31, 2003 dated August 30,
2002 issued to Kew Court;
(h) Agreement dated December 29, 2001 between the Company. and Hillcrest;
(i) Exchange Agreement dated December 29, 2000 between the Company and
Hillcrest; and
(j) Letter Agreement dated August 14, 2002 between the Company. and
Hillcrest.
11. Notices. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested), sent by facsimile (answerback confirmed)
or sent by reputable overnight courier service, if to the Stockholders, at the
respective addresses set forth on Exhibit A hereto, or such other address or to
the attention of such other person as the recipient party shall have specified
by prior written notice to the sending party. Any notice under this Agreement
will be deemed to have been given when so delivered or sent or, if mailed, five
days after deposit in the U.S. mail. Any notice to the Company shall be
delivered to the Company at the following address:
12
Swissray International, Inc.
c/o SWR Investments LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
12. General Provisions.
(a) Certain Definitions.
"Affiliate" of any particular Person means any other Person controlling,
controlled by or under common control with such particular Person, where
"control" means the possession, directly or indirectly, of the power to direct
the management and policies of a Person whether through the ownership of voting
securities, contract or otherwise.
"Common Stock" means the Company's common stock, par value $0.0001 per
share.
"Liability" means, with respect to any Person, any liability, obligation,
debt, deficiency, tax, penalty, claim, charge, investigation, complaint, cause
of action or other loss, cost or expense of any kind or nature of such Person of
any kind, character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined, determinable or otherwise.
"Lien" or "Liens" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale of receivables with recourse against such Person, any of its
subsidiaries or any Affiliate, any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party of property leased to such
Person under a lease which is not in the nature of a conditional sale or title
retention agreement, or any subordination arrangement in favor of another Person
(other than any subordination arising in the ordinary course of business).
"Loss" means, with respect to any Person, any damage, liability, diminution
in value, demand, claim, action, cause of action, cost, damage, deficiency, tax,
penalty, fine or other loss or expense, whether or not arising out of a third
party claim, including all interest, penalties, reasonable attorneys' fees and
expenses and all amounts paid or incurred in connection with any action, demand,
proceeding, investigation or claim by any third party (including any
governmental entity or any department, agency or political subdivision thereof)
against or affecting such Person or which, if determined adversely to such
Person, would give rise to, evidence the existence of, or relate to, any other
Loss and the investigation, defense or settlement of any of the foregoing.
"New Securities" shall mean (i) any Common Stock or other capital stock of
the Company (including, without limitation, Series D Preferred Stock, Series E
Preferred Stock,
13
Series F Preferred Stock, Series G Preferred Stock and Series H Preferred
Stock), whether now authorized or not, and (ii) rights, options or warrants to
purchase securities described in clause (i) above and (iii) securities of any
type whatsoever which are, or may become, convertible into securities described
in clauses (i) or (ii) above; provided, however, that the term "New Securities"
does not include: (i) securities issued pursuant to the Securities Purchase
Agreement (including, without limitation, pursuant to Section 1.4 and Section
7.5 thereof) (ii) securities offered to the public pursuant to a registration
statement filed by the Company (and, in the case of rights, options or warrants,
the securities issued or issuable upon exercise thereof and, if applicable, the
Common Stock issued or issuable upon conversion of such securities);
(iii) securities issued for the acquisition of another business by the Company
by merger, purchase of substantially all the assets of such business or another
reorganization resulting in the ownership by the Company of not less than a
majority of the voting power of such business (and, in the case of rights,
options or warrants, the securities issued or issuable upon exercise thereof
and, if applicable, the Common Stock issued or issuable upon the conversion of
such securities); (iv) securities issued to directors or employees of or
consultants to the Company pursuant to an equity incentive plan, stock option
plan, employee stock purchase plan, restricted stock plan or other employee
stock plan or agreement or otherwise, in all cases approved by the Board (and,
in the case of rights, options or warrants, the securities issued or issuable
upon exercise thereof and, if applicable, the Common Stock issued or issuable
upon the conversion of such securities); (v) securities issued in connection
with an equipment lease, commercial loan, or research, development or licensing
agreement or other similar business transaction, in all cases approved by the
Board (and, in the case of rights, options or warrants, the securities issued or
issuable upon exercise thereof and, if applicable, the Common Stock issued or
issuable upon the conversion of such securities); and (vi) securities issued as
a result of any stock split, stock dividend, capital reorganization,
recapitalization, or reclassification of the Company's Common Stock,
distributable on a pro rata basis to all holders of the Company's Common Stock.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Sale" means any sale of securities to the public pursuant to
an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act (or any similar provision then in force).
"Sale of the Company" means any transaction or series of transactions
pursuant to which any Person or group of related Persons (other than the
Purchaser and/or its Affiliates) acquire (i) equity securities of the Company
possessing the voting power under normal circumstances to elect a majority of
the Company's board of directors, or (ii) all or substantially all of the
Company's assets determined on a consolidated basis (in either case, whether by
merger, consolidation, sale or transfer of the Company's equity securities, or
sale or transfer of the Company's consolidated assets or otherwise).
"Stockholder Shares" means (i) any capital stock of the Company owned,
purchased or otherwise acquired by any Stockholder (including, without
limitation, the Common
14
Stock, the Series D Preferred Stock and the Series H Preferred Stock) whether
on, before or after the date hereof, (ii) any warrants, options, or other rights
to subscribe for or to acquire, directly or indirectly, capital stock of the
Company, whether or not then exercisable or convertible, (iii) any stock, notes,
or other securities which are convertible into or exchangeable for, directly or
indirectly, capital stock of the Company, whether or not then convertible or
exchangeable, and (iv) any capital stock of the Company issued or issuable upon
the exercise, conversion, or exchange of any of the securities referred to in
clauses (i) through (iii) above, and (v) any securities issued or issuable
directly or indirectly with respect to the securities referred to in clauses
(i) through (iv) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, reclassification, merger,
consolidation, or other reorganization.
(b) Consent. Each Stockholder hereby consents to all of the transactions
contemplated by the Securities Purchase Agreement, including, without limitation
the authorization and issuance of the Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock, Series H
Preferred Stock and Series I Preferred Stock and the filing of the Preferred
Designation.
(c) Acknowledgement. Each of the Company and the Stockholder acknowledge
that the Purchaser has retained Xxxxxxxx & Xxxxx to act as their counsel and
representative in connection with the transactions contemplated hereby and by
the other Documents and that Xxxxxxxx & Xxxxx has not acted as counsel or
representative for the Company or any Stockholder in connection with the
transactions contemplated hereby or contemplated by the other Documents and that
neither the Company nor any of the Stockholders has the status of a client of
Xxxxxxxx & Xxxxx for conflict of interest or any other purposes as a result
thereof.
(d) Expenses. The Company agrees to pay up to an aggregate of $25,000 of
reasonable out-of-pocket fees and expenses incurred by the Stockholders in
connection with the transactions contemplated hereby and by the Securities
Purchase Agreement.
(e) Fiduciary Duties. The Company acknowledges that the Board has certain
fiduciary duties pursuant to the General Corporation Law of the State of
Delaware, which may include the duties of care and loyalty relating to
transactions with Purchaser or other interested parties.
(f) Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by any Person and shall continue in full force and effect
until the fifth anniversary of the Closing Date.
(g) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed,
15
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(h) Complete Agreement. This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(i) Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(j) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Stockholders, the Purchaser, the Company and their respective successors and
assigns (including subsequent holders of Series D Preferred Stock and Series H
Preferred Stock); provided that the rights and obligations of the Stockholders
under this Agreement shall not be assignable except in connection with a
permitted Transfer pursuant to Section 4 hereof.
(k) Choice of Law. The construction, validity, enforcement and
interpretation of this agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(l) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY
COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR
ANY ANCILLARY AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION
OR ENFORCEMENT THEREOF.
(m) Equitable Relief. Each of the parties to this Agreement, and the
Purchaser, will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party, and the Purchaser, may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or present any violations of the provisions of this Agreement.
(n) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company, the Stockholders
and the Purchaser.
16
(o) Further Assurances. Each Stockholder shall execute and deliver such
further instruments, documents and agreements, and take such additional action
as the Company or the Purchaser may reasonably request to achieve or further the
purposes of this Agreement.
(p) No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(q) Delivery by Facsimile. This Agreement and any amendments hereto, to the
extent signed and delivered by means of a facsimile machine, shall be treated in
all manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. At the request of any party hereto,
each other party hereto shall reexecute original forms thereof and deliver them
to all other parties. No party hereto shall raise the use of a facsimile machine
to deliver a signature or the fact that any signature was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
* * * * *
17
IN WITNESS WHEREOF, the parties hereto have executed this Exchange
Agreement on the date first above written.
COMPANY:
SWISSRAY INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------
Its: Chairman & President
PURCHASER:
SWR INVESTMENTS LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------
Its: President
STOCKHOLDERS:
HILLCREST AVENUE LLC
By: Illegible
-----------------------------------
Its:
KEW COURT LLC
By: Illegible
-----------------------------------
Its:
Exhibit A
Shares of Shares of
Shares of Series C Shares of Series Series H Shares of
Common Stock Preferred Outstanding Exchange D Preferred Preferred Common Stock
Name and Address Exchanged Stock Exchanged Debt Exchanged Obligations Stock Received Stock Received Owned
---------------- ------------ --------------- -------------- ----------- ---------------- -------------- ------------
Hillcrest Avenue LLC 8,676,376 2,830 5,373.2 20,909.8864 0
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx Xxxxx
P.O. Box 973
Road Town
Totola, British Virgin
Islands
KEW Court LLC 370 $750,000 $175,000 1,626.8 2,733.1330 0
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx Xxxxx
P.O. Box 973
Road Town
Totola, British Virgin
Islands
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TOTAL 8,676,376 3,200 $750,000 $175,000 7,000 23,643.0194 0
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