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EXHIBIT 10.7(H)
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
THIS PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT is made and entered
into as of the 3rd day of February, 1998, by and between COMPRESSENT CORP., a
Florida corporation maintaining its principal offices at 0000 Xxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 (the "Company"), and CALL NOW, INC., a Florida corporation
maintaining its principal offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000 (the "Purchaser").
WHEREAS, Purchaser desires to purchase and hold certain equity securities
of the Company and the Company desires to sell such securities to Purchaser, all
in accordance with, and subject to, the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. AUTHORIZATION AND SALE OF THE SHARES AND WARRANT.
1.1 Authorization. The Company has authorized the issuance pursuant to
the terms and conditions hereof: (i) 56,000 shares (the "Shares") of its
convertible preferred stock, par value $0.001 per share (the "Preferred Stock")
and (ii) the Company's Warrant to purchase 500,000 shares of the Company's
Common Stock (the "Warrant"). Such Shares and Warrant are further described in
Exhibit A hereto.
1.2 Purchase and Sale. Subject to the terms and conditions hereof, the
Company will issue and sell to Purchaser, and Purchaser will purchase from the
Company, the Shares and the Warrant (collectively, the "Securities") at an
aggregate purchase price of $3,500,500 (the "Purchase Price"), of which
$3,500,000 shall be allocated to the Shares and $500 shall be allocated to the
Warrant.
2. CLOSING AND DELIVERY.
2.1 Closing. The closing of the purchase and sale of the Securities (the
"Closing") shall be held at the offices of Purchaser on February 3rd, 1998 (the
"Closing Date") or at such other time and place as the Company and Purchaser
may agree in writing.
2.2 Delivery. At the Closing, subject to the terms and conditions of
this Agreement, the Company will deliver to Purchaser the Shares and the
Warrant against payment by Purchaser of the Purchase Price in the form of the
securities specified in Exhibit B hereto. In the event of any redemption of the
Preferred Stock, such securities may be utilized as valued herein.
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2.3 Conditions. The obligations of each of the parties to this
Agreement to be performed by it shall be subject to the satisfaction, on or
before the Closing Date of the following conditions:
(a) Representations and Warranties True. The representations
and warranties made in this Agreement by the other parties hereto, when
construed as representations and warranties made as of the Closing Date, shall
be true and correct as of the Closing Date except for any changes required,
permitted or contemplated by this Agreement or other transactions consented to
by the parties to whom the representations and warranties are made, and except
for other changes, the aggregate cumulative effect of which upon its financial
condition, results of operations, business and financial position, taken as a
whole, is not materially adverse.
(b) Performance of Agreements. The other parties and their
subsidiaries shall have substantially performed and complied with all material
agreements, obligations and restrictions required by this Agreement to be
performed or complied with by them or their subsidiaries at or prior to the
Closing Date.
(c) Approval of Shareholders and Others. The shareholders
of the Company shall have authorized the issuance of the Shares in the manner
required by applicable law; all material consents from third parties required
to consummate the sale shall have been obtained, and the Company shall have
obtained all authorizations and approvals of regulatory bodies or officials
necessary to permit the consummation of the sale.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in Exhibit C attached hereto, the Company hereby
represents and warrants to Purchaser as follows (unless the context otherwise
requires or admits, references herein to the Company include any Subsidiaries
of the Company):
3.1 Organization and Standing, Articles and Bylaws. The Company is
a corporation duly organized and existing under the laws of the State of
Florida and its status under such laws is active. The Company has the requisite
corporate power to own and operate its properties and assets and to carry on
its business as presently conducted and as proposed to be conducted. The
Company has furnished Purchaser with copies of its Articles of Incorporation
and Bylaws. Said copies are true, correct and complete and contain all
amendments through the date of this Agreement.
3.2 Corporate Power. The Company has now, or will have at the
Closing Date, all requisite legal authority and corporate power to enter into
this Agreement, to sell the Securities hereunder and to perform its obligations
under this Agreement.
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3.3 Subsidiaries. The Company has no subsidiaries other than
Softlink, Inc. The Company does not own, directly or indirectly, any shares of
stock or other equity interests in any other corporation, association, joint
venture or business organization.
3.4 Capitalization. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, of which there are issued and
outstanding 5,612,000 shares and 150,000 shares of Preferred Stock of which
none are issued and outstanding. All such outstanding shares of Common Stock
have been duly authorized and validly issued, and are fully paid and
nonassessable. There are no outstanding rights, options, warrants, conversion
rights or agreements for the purchase or acquisition from the Company of any
shares of its capital stock except as set forth in Exhibit C hereto. All shares
heretofore issued have been issued in full compliance with all applicable
federal and state securities laws.
3.5 SEC and Financial Statements. (a) The Company has filed with
the SEC all reports, forms, schedules and statements and other documents
required to be filed by it (the "SEC Documents"). As of their respective filing
dates, (i) the SEC Documents complied in all material respects with the
requirements of the Securities Act, or the Exchange Act, as the case may be,
and the rules and regulations of the SEC promulgated thereunder applicable to
such SEC Documents, and (ii) none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made not misleading. The financial
statements included in the SEC Documents complied, as of their respective
filing dates as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, were prepared in accordance with generally accepted accounting
principles ("GAAP") (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present,
in all material respects, the consolidated financial position of the Company
and its Subsidiaries as of the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Except as set forth on
Schedule 3.5 and except for liabilities and obligations incurred in the ordinary
course of business consistent with past practice since the date of the most
recent consolidated balance sheet included in the SEC Documents filed and
publicly available prior to the date hereof, neither the Company nor any of its
Subsidiaries has any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) required by GAAP to be set forth on a
balance sheet or in the notes thereto.
3.6 Taxes. The amount of the provision for liability for taxes on
the Company's Balance Sheet is sufficient for the payment of all unpaid
federal, state and local income, franchise and property taxes of the Company
accrued for or applicable to the period ended on the date of said Balance Sheet
and all years and periods prior thereto. The Company has collected or paid all
applicable local tax returns, intangible tax returns and other tax returns
which are required to be filed by it, and such returns and reports are true and
correct. The Company has prepared and filed all Federal, State and County and
local income, excise and other tax returns required to be filed by it
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and all such returns are true and correct. The Company has paid all taxes which
have become due pursuant to such returns or pursuant to any assessment received
by it. The Federal income tax returns of the Company have not been examined by
the Internal Revenue Service. The Company has not incurred any tax liabilities
other than in the ordinary course of business; there are no tax liens upon any
of the properties or assets, real, personal or mixed, tangible or intangible, of
the Company, (except for liens of taxes not yet due); and, except as reflected
in the Balance Sheet, there are no pending questions relating to, or claims
asserted for, taxes or assessments against the Company, and there is no basis
for any such question or claim.
3.7 Insurance. The Company has in force and effect and is covered under
policies of insurance covering such risks and in amounts adequate for the size
and scope of its business.
3.8 Other Material Contracts and Commitments. Set forth in Exhibit 3.18
and delivered to Purchaser are copies of all material contracts, agreements,
instruments and other commitments to which the Company is a party and which are
not included in other exhibits hereto. Except as included in said Exhibit 3.8
and such other exhibits to this Agreement, the Company is not a party to or
bound by any written or oral (a) material contract, agreement or other
instrument or understanding creating a liability; (b) material lease, mortgage,
pledge, conditional sales contract, security agreement, factoring agreement or
other similar agreement with respect to any real or personal property, whether
as lessor or lessee or otherwise; (c) material agreement or arrangement for the
borrowing of money or for a line of credit; (e) agreement or arrangement any for
the sale of the assets of the Company or for the grant of any preferential
rights to purchase any of the assets, property or rights of the Company or for
the transfer or the assignment thereof other than the ordinary course of
business of the Company; (f) guarantee, surety, subordination or other agreement
for related type of agreement or arrangement; (g) agreement of any kind with any
director or officer or with any associate of any such person; (h) material
agreement or commitment for capital expenditures or for the acquisition of fixed
assets. As used in this Section 3.18, the term "material" refers to any
contract, agreement, commitment, instrument or understanding involving a
liability, actual or potential, in excess of $5,000.
3.9 Performance of Obligations. The Company has performed all of the
material obligations required to be performed by it and is not in material
default under any of the agreements, leases, contracts or other documents to
which it is a party. No party with whom the Company has an agreement or
commitment is in material default thereof. As used in this Section 3.9, the term
"material" refers to a default involving more than $500 or which, when
aggregated with other defaults, would exceed $2,000, or which would give the
nondefaulting party a right to cancel or terminate such defaulted agreement or
obligation.
3.10 Conflict. Neither the execution of this Agreement nor the consummation
of the transactions contemplated hereby will conflict with or result in a breach
of, or give rise to, or termination of, or accelerate the maturity of or the
performance required by any terms of the Articles of Incorporation or By-laws or
any indenture, loan agreement, lease or other agreement or arrangement of the
Company, or constitute a default thereunder, or result in the creation of any
lien, charge or encumbrance upon any of the assets or properties of the Company.
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3.11 Litigation, etc. There is no investigation by any governmental
agency or any legal proceedings pending, or to the best knowledge of the
Seller, threatened against the Company, or the property, assets or good will
thereof, and there is no out-standing order, writ, injunction or decree of any
court or governmental agency against or affecting the Company, or against or
affecting its business, property, assets, good will or common stock.
3.12 Compliance with Laws. The Company has complied in all material
respects with all laws, regulations and orders applicable to the conduct of its
business, and the Company possesses all permits, licenses and other approvals
and authorizations of all governmental agencies which are necessary to the
conduct of its business and all said permits, licenses and other approvals and
authorizations are in full force and effect. The Company has not received any
notice of, and is not aware of any material violation of, any law, rule,
regulation or ordinance concerning zoning, environmental regulation, hazardous
substances or of any law, order, regulation or requirement relating to the
operation of its business which remains uncured or which has not been dismissed.
3.13 Recent Transactions. Except as shown on the Exhibits
delivered in connection herewith, the business of the Company has been conducted
diligently and only in the ordinary course and the Company has not (a) incurred
or become subject to any obligation or liability (absolute or contingent) except
current liabilities incurred in the ordinary course of business of the Company
and under contracts entered into in the ordinary course of business of the
Company, none of which involves potential liability in excess of $5,000 or is
not cancelable in thirty days or less notice without penalty or liquidated
damages; (b) discharged or satisfied any lien or encumbrance or paid any
obligation (tangible or intangible) other than liabilities shown on the Balance
Sheet and current liabilities incurred since the date of the said Balance Sheet
in the ordinary course of business of the Company; (c) mortgaged, pledged or
subjected to lien, charge or any other encumbrance, any of its assets, real or
personal tangible or intangible; (d) sold or transferred any of its assets,
property or rights or cancelled any debts or claims except in each case in the
ordinary course of business of the Company, or entered into any agreement or
arrangement granting any preferential rights to purchase any of its assets,
property or rights or which requires consent of any third party to the transfer
and assignment of any of its assets, property or rights; (e) suffered any
extraordinary losses (whether or not covered by insurance) or waived any rights
of substantial value; (f) made or permitted any amendment or termination of any
contract, agreement or license to which it is a party, otherwise than in the
ordinary course of business; (g) through negotiation or otherwise, made any
commitment or incurred any liability to any labor organization; (h) made capital
expenditures or entered into agreements therefor aggregating more than $5,000;
(i) issued any stock, bonds or any other corporate securities or granted any
options, warrants or other rights calling for the issuance thereof; (j) amended
its Articles of Incorporation or By-Laws.
3.14 Warranties. There are no pending claims against the Company or
its insurers for breach of any warranty or with respect to liability for
defective products or services.
3.15 Brokers and Finder. The Company has not entered into an
agreement with any person, firm or corporation, or become indirectly a party to
any such agreement nor has it taken any action or is it aware of any facts
which would result in the assertion of any liability or claim for the
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payment of any commission, brokerage or finder's fee in connection with the
execution of this Agreement or the consummation of transactions contemplated
herein.
3.16 Disclosure. All material facts regarding the assets, business,
operations, financial condition and prospects of the Company are reflected in
the Balance Sheet, or have been disclosed herein, or have been disclosed to
Purchaser in writing set forth as Exhibit 3.16 hereto. No representation or
warranty by the Company contained in this agreement and no statement contained
in any certificate, schedule, exhibit, list or other writing furnished to
Purchaser pursuant to the provisions hereof or in connection with the
negotiation hereof, contains any untrue statement of any material fact or omits
to state a material fact necessary in order to make the statements herein not
misleading.
3.17 Update. The Company will promptly advise the Purchaser in writing
of any changes in any of the representations, warranties or Exhibits herein and
these representations and warranties shall be true and correct as of the date
of the Closing as well as the date hereof, and the Company will provide
Purchaser with quarterly and annual balance sheets and income statements of the
Company from the date hereof until the Purchaser no longer owns any securities
of the Company.
4. SECURITIES ACT.
4.01 Investment Representation. Purchaser acknowledges that the
Company's Securities issuable pursuant to this Agreement will not have been
registered under the Securities Act of 1933 (the "Securities Act") and that the
Securities must be held indefinitely unless subsequently registered thereunder
or an exemption from registration is available. Purchaser represents and
warrants to Company that (i) Purchaser will acquire such Securities for
investment, and not with a view to the distribution thereof within the meaning
of the Securities Act, (ii) Purchaser will acquire such Securities for its own
account and has not offered, and as of the Closing Date will not have offered
and does not intend to offer any participation or interest of any kind in such
Securities to any other person (iii) the purchase of the Securities constitutes
an investment decision of any amount and type consistent with such Purchaser's
investment practices and objectives. Purchaser acknowledges that the Company
has offered it access to all information, financial and otherwise, regarding
the Company deemed relevant by Purchaser to its investment decision and an
opportunity to discuss such information with officers and employees of the
Company and to examine the Company's books and records.
4.02 Legending of Securities. The Securities issuable hereunder shall
not be transferable except upon the conditions specified in this Section 4,
which conditions are intended to insure compliance with the provisions of the
Securities Act in respect of the transfer of any such Securities.
Each certificate for a Security issued to Purchaser, and each certificate
for a Security issued to subsequent transferees of Purchaser, shall (unless
otherwise permitted by this Section 4) be stamped or otherwise imprinted in
substantially the following form:
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"The transfer of the shares represented by this certificate is
subject to compliance with the conditions specified in an
Agreement, a copy of which is on file at the office of the
Corporation, and no transfer of such shares shall be valid or
effective until such conditions have been fulfilled."
4.03 Restrictions on Transferability. Purchaser and any subsequent
holder of a certificate of Securities bearing the restrictive legend set forth
in Section 4.02 (hereinafter in this Section 4 called the "Holder") by
acceptance thereof agrees, prior to any transfer or attempted transfer of such
Security, to give written notice to the Company of such Holder's intention to
effect such transfer (the "notice of transfer"). Each such notice of transfer
shall describe the manner and circumstances of the proposed transfer in
reasonable detail and shall contain an undertaking by the person giving such
notice to furnish such further information as may reasonably be required by the
Company or counsel referred to below. Promptly upon receiving any such notice of
transfer, the following provisions shall apply:
(i) If such notice of transfer does not include an opinion of
counsel for the Holder concerning the transferability of the securities
without registration under the Securities Act, the Company shall promptly
submit copies of the notice of transfer to its counsel. If in the opinion
of such counsel, the proposed transfer of such Security may be effected
without registration under the Securities Act, the Company shall as
promptly as is practicable so notify the Holder and the transfer agent of
such Security and such Holder shall thereupon be entitled to transfer such
Security in accordance with the terms of the notice delivered by such
Holder to the Company. Each certificate representing a Security issued upon
the transfer of any such Security shall bear the restrictive legend set
forth above if in the opinion of such counsel such legend is required in
order to insure compliance with the applicable provisions of the Securities
Act;
(ii) If, in the opinion of such counsel, the proposed transfer of
such Security may not be effected without registration under the Securities
Act, the Company shall as promptly as is practicable so notify the Holder.
The Holder thereof, agrees, as to such Security, by acceptance thereof,
that if the proposed transfer cannot, in the reasonable opinion of such
counsel, be effected without registration under the Securities Act, such
Holder will not transfer such Security unless it has been registered under
the Securities Act, or unless the staff of the Securities and Exchange
Commission has stated in writing that it would raise no objection with
respect to the proposed transfer. The restrictions imposed by this Section
4 upon the transferability of any particular Security shall cease and
terminate concurrently with the sale or other disposition thereof pursuant
to and in the manner contemplated by an effective registration statement
under the Securities Act, or pursuant to and in accordance with Rule 144
promulgated under the Securities Act (or any similar rule or regulation
hereafter promulgated). Whenever the restrictions imposed by the Section 4
shall terminate, as hereinabove provided, the Holder of any Security as to
which such restrictions shall have terminated shall be entitled to receive
from the Company one or more new certificates of such Security not bearing
the restrictive legend set forth above and not containing any other
reference to the restrictions imposed by this Section 4.
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(iii) If the Holder delivers with the notice of transfer an opinion
of Holder's counsel confirming the transferability of the Securities
without registration under the Securities Act, the Company shall as
promptly as is practicable so notify the transfer agent, if any, of such
Security and such Holder shall thereupon be entitled to immediately receive
from the Company one or more new certificates of such Security not bearing
the restrictive legend set forth above and not containing any other
reference to the restrictions imposed by this Section.
4. REGISTRATION RIGHTS. Upon request of purchaser the Company will
register under the Securities Act for sale by purchaser or its assignees of the
Securities (including Common Stock issuable on exercise of the Warrant). All
expenses of such registration, other than commissions of broker/dealers shall be
paid by the Company.
5. CONDUCT OF THE BUSINESS OF THE COMPANY.
5.01 As long as the Purchaser owns any of the Securities, including any
Common Stock issuable on exercise of the Warrant the Company will;
(i) Establish and maintain adequate internal accounting controls.
(ii) Give Purchaser and its counsel, accountants and other
representatives full access during normal business hours to all of the
properties, personnel, books, tax returns, contracts, commitments and records of
the Company and the Purchaser shall be furnished with all such documents and
information with respect to the affairs of the Company as Purchaser or its
counsel or accountants may from time to time reasonably request. Such inspection
shall not extend to the confidential product development areas which the Company
protects as trade secrets.
(iii) Give the Purchaser five (5) days' prior written notice of all
meetings of the Board of Directors and any committee of the Board of the Company
and allow the Purchaser through its authorized representative to attend and
observe at any such meeting. Copies of the minutes of all such meetings all be
delivered to the Purchaser within ten (10) days after the date of each such
meeting. Company will not amend its Articles of Incorporation of By-laws without
the consent of the holders of a majority of the outstanding Preferred Stock.
(iv) Deliver to the Purchaser copies of all actions of the Board of
Directors and any committee of the Board or the shareholders taken by written
consent without a meeting within five (5) days after the effective date of such
action.
(v) Utilize the funds of the Company only for valid business
purposes on behalf of the Company. Deliver a copy of the Company's check
register showing disposition of the funds of the Company in reasonable detail
to the Purchaser upon request. All disbursements of funds of the Company in
excess of $250 shall require two signatures authorized by the Board of
Directors and approved by Purchaser.
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(vi) Provide Purchaser with quarterly and annual balance
sheets and income statements of the Company from the date hereof within 45 days
after the end of the first three fiscal quarters of each fiscal year and within
90 days after the end of each fiscal year and file all statements and reports
with the SEC required under the Securities Exchange Act of 1934.
(vii) Company will not issue any additional shares of its
Common Stock or any warrants, options or securities convertible into its Common
Stock without the written consent of Purchaser.
6. MISCELLANEOUS.
6.01 Notices. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given when
sent by certified mail, return receipt requested:
(i) If to Purchaser, addressed to:
Call Now, Inc.
X.X. Xxx 000000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
(ii) If to Company, addressed to:
Compressent Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000-0000
or such other address as the parties shall designate by notice given as
provided herein.
6.02 Public Announcements. The parties shall consult with each other
with respect to any public announcement of the transactions provided for herein
and no such public announcement shall be made by the Company unless the same
shall be approved in advance in writing by Purchaser.
6.03 Expenses. Except as otherwise expressly provided herein, each
of the parties hereto shall pay its own fees and expenses incident to the
negotiation, preparation, execution and consummation of this Agreement,
including all fees and expenses of their respective counsel and accountants
incurred in connection with this Agreement and all other agreements, documents,
certificates, applications and other instruments prepared in connection
herewith.
6.04 Successors. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns, and Purchaser and
its successors and assigns.
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6.05 Law to Apply. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida, and the parties hereby agree
that any action, suit or other legal proceeding by any party concerning this
Agreement or the construction or enforcement thereof shall be brought only in a
court of appropriate jurisdiction in the State of Florida.
6.06 Assignment. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other parties hereto.
6.07 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior arrangements, proposals or understandings, written
or oral, by or among any of the parties hereto with respect to such purchase and
sale or other transactions, which arrangements, proposals and understandings
shall be of no further force and effect. No waiver, amendment or modification
of this Agreement shall be effective for any purpose unless the same shall be
in writing signed by all of the parties hereto or their successors in interest.
6.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
CALL NOW, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chairman
COMPRESSANT CORP.
By: /s/ WON XXX XXXX
------------------------------------------
Won Xxx Xxxx
President
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