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CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Between
AMNEX, INC.
and
SOUTHBROOK INTERNATIONAL INVESTMENTS, LTD.
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Dated as of September 19, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE AND SALE OF PREFERRED SHARES.........................-1-
1.1 Purchase and Sale.............................................-1-
1.2 Purchase Price................................................-2-
1.3 The Closings..................................................-2-
(a) The Series G Closings.................................-2-
(b) The Series H Closing..................................-3-
(c) The Series I Closing..................................-4-
(d) The Series J Closing..................................-4-
ARTICLE II REPRESENTATIONS AND WARRANTIES................................-5-
2.1 Representations, Warranties and Agreements of the
Company.......................................................-5-
(a) Organization and Qualification........................-5-
(b) Authorization; Enforcement............................-5-
(c) Capitalization........................................-6-
(d) Issuance of Shares....................................-6-
(e) No Conflicts..........................................-6-
(f) Consents and Approvals................................-7-
(g) Litigation; Proceedings...............................-7-
(h) No Default or Violation...............................-8-
(i) Intentionally Omitted.................................-8-
(j) Disclosure Materials..................................-8-
(k) Private Offering......................................-8-
(l) SEC Documents.........................................-8-
(m) Seniority.............................................-9-
2.2 Representations and Warranties of the Purchaser...............-9-
(a) Organization; Authority...............................-9-
(b) Investment Intent.....................................-9-
(c) Purchaser Status......................................-9-
(d) Experience of Purchaser...............................-9-
(e) Ability of Purchaser to Bear Risk of
Investment............................................-10-
(f) Prohibited Transactions...............................-10-
(g) Access to Information.................................-10-
(h) Non-Broker-Dealer Status..............................-10-
(i) Reliance..............................................-10-
ARTICLE III OTHER AGREEMENTS OF THE PARTIES...............................-10-
3.1 Transfer Restrictions.................................-10-
-i-
3.2 Stop Transfer Instruction.............................-11-
3.3 Furnishing of Information.............................-11-
3.4 Notice of Certain Events..............................-12-
3.5 Copies and Use of Disclosure Materials................-12-
3.6 Blue Sky Laws.........................................-12-
3.7 Solicitation Materials................................-12-
3.8 Subsequent Financial Statements.......................-12-
3.9 Certain Agreements....................................-13-
3.10 Purchaser Ownership of Common Stock...................-14-
3.11 Listing of Underlying Shares..........................-14-
3.12 Conversion Procedures.................................-15-
3.13 Purchaser's Rights if Trading in Common Stock is
Suspended.............................................-15-
3.14 No Violation of Applicable Law........................-15-
3.15 Repurchase or Redemption Restrictions.................-15-
3.16 Piggyback Registration Rights.........................-15-
3.17 Notice of Breaches....................................-16-
3.18 Confidentiality.......................................-16-
ARTICLE IV CONDITIONS.....................................................-17-
4.1(a) Conditions Precedent to the Obligation of the
Company to Sell the Series G Shares...................-17-
(i) Accuracy of the Purchaser's Representations
and Warranties................................-17-
(ii) Performance by the Purchaser..................-17-
(iii) No Injunction.................................-17-
(iv) Required Approvals............................-17-
(b) Conditions Precedent to the Obligation of the
Purchaser to Purchase the Series G Shares.............-17-
(i) Accuracy of the Company's Representations
and Warranties................................-17-
(ii) Performance by the Company....................-17-
(iii) No Injunction.................................-18-
(iv) Adverse Changes...............................-18-
(v) No Suspensions of Trading in Common Stock.....-18-
(vi) Listing of Common Stock.......................-18-
(vii) Legal Opinions................................-18-
(viii) Required Approvals............................-18-
(ix) Shares of Common Stock........................-18-
(x) Delivery of Stock Certificates................-18-
(xi) Registration Rights Agreement.................-18-
(xii) Warrant.......................................-19-
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(xiii) Underlying Shares Registration Statement......-19-
(xiv) Certificate of Amendment......................-19-
(xv) Company Certificates..........................-19-
4.2(a) Conditions Precedent to the Obligation of the
Company to Sell the Series H Shares, the Series I
Shares or the Series J Shares.........................-19-
(i) Series G Closing..............................-19-
(ii) Accuracy of the Purchaser's Representations
and Warranties................................-19-
(iii) Performance by the Purchaser..................-20-
(iv) No Injunction.................................-20-
(v) Required Approvals............................-20-
(b) Conditions Precedent to the Obligation of the
Purchaser to Purchase the Series H Shares, the
Series I Shares or the Series J Shares................-20-
(i) Series G Closing..............................-20-
(ii) Accuracy of the Company's Representations
and Warranties................................-20-
(iii) Performance by the Company....................-20-
(iv) Underlying Shares Registration Statements.....-20-
(v) No Injunction.................................-21-
(vi) Adverse Changes...............................-21-
(vii) Trading Volume................................-21-
(viii) Litigation....................................-21-
(ix) Management....................................-21-
(x) No Suspensions of Trading in Common Stock.....-21-
(xi) Listing of Common Stock.......................-22-
(xii) Legal Opinions................................-22-
(xiii) Required Approvals............................-22-
(xiv) Shares of Common Stock........................-22-
(xv) Delivery of Stock Certificates................-22-
ARTICLE V TERMINATION....................................................-22-
5.1 Termination by Mutual Consent.........................-22-
5.2 Termination by the Company............................-23-
5.3 Termination by the Purchaser..........................-23-
ARTICLE VI MISCELLANEOUS..................................................-24-
6.1 Fees and Expenses.....................................-24-
6.2 Entire Agreement; Amendments..........................-25-
6.3 Notices...............................................-25-
6.4 Amendments; Waivers...................................-26-
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6.5 Headings..............................................-26-
6.6 Successors and Assigns................................-26-
6.7 No Third-Party Beneficiaries..........................-26-
6.8 Governing Law.........................................-27-
6.9 Survival..............................................-27-
6.10 Execution.............................................-27-
6.11 Publicity.............................................-27-
6.12 Severability..........................................-27-
6.13 Delivery of W-8.......................................-27-
Exhibit A - Series G Terms
Exhibit B - Registration Rights Agreement
Exhibit C - Conversion Procedures
Exhibit D(1) - Form of Outside Counsel Legal Opinion
Exhibit D(2) - Form of Inhouse Counsel Legal Opinion
Exhibit E(1) - Form of Warrant
Exhibit E(2) - Form of Warrant
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CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement"), dated
as of September 19, 1996, between Southbrook International Investments, Ltd., a
corporation organized and existing under the laws of the British Virgin Islands
(the "Purchaser"), and Amnex, Inc., a corporation organized and existing under
the laws of New York (the "Company").
WHEREAS, the Company desires to issue and sell to the Purchaser and the
Purchaser desires to acquire shares of the Company's Series G Convertible
Preferred Stock, par value $.001 per share (the "Series G Preferred"), the
Company's Series H Convertible Preferred Stock, par value $.001 per share (the
"Series H Preferred"), the Company's Series I Convertible Preferred Stock, par
value $.001 per share (the "Series I Preferred") and the Company's Series J
Convertible Preferred Stock, par value $.001 per share (the "Series J
Preferred").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
ARTICLE I
PURCHASE AND SALE OF PREFERRED SHARES
1.1 Purchase and Sale. (a) Subject to the terms and conditions set forth
herein, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase (a) an aggregate of up to 125,000 shares of Series G Preferred
(collectively, the "Series G Shares"); (b) an aggregate of up to 125,000 shares
of Series H Preferred (collectively, the "Series H Shares"; (c) an aggregate of
up to 125,000 shares of Series I Preferred (collectively, the "Series I
Shares"); and (d) an aggregate of up to 125,000 shares of the Series J Preferred
(collectively, the "Series J Shares"). The Series G Shares, the Series H Shares,
the Series I Shares, and the Series J Shares are collectively referred to as the
"Shares." Notwithstanding anything to the contrary set forth in this Agreement,
the Company shall have no obligation to sell Series G Shares, other than in
accordance with Section 1.3(a), Series H Shares, Series I Shares or Series J
Shares.
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(b) The Series G Preferred shall have the respective rights,
preferences and privileges set forth in Exhibit A attached hereto (the "Series G
Terms"), which shall be incorporated into a Certificate of Amendment to be
approved by the Purchaser and filed by the Company with the Secretary of State
of New York (the "Series G Amendment"). The Series H Preferred, the Series I
Preferred and the Series J Preferred shall have respective rights, preferences
and privileges identical to the Series G Terms as set forth in Exhibit A,
mutatis mutandis, except that the Conversion Price for conversion of such Shares
shall be the lesser of the Market Price at the Original Issue Date of such
Shares or the percentage of the Market Price at the Conversion Date of such
Shares determined by reference to the following schedule:
Market Capitalization Percentage of Market Price
$40,000,000 - $89,329,999 80%
$89,330,000 - $95,142,999 82.5%
$95,143,000 - $134,329,999 84%
$134,330,000 or more 85%
The Series H Shares, the Series I Shares and the Series J Shares shall be
authorized pursuant to one or more certificates of amendment to the Company's
Certificate of Incorporation to be prepared by the Company, subject to the
approval of the Purchaser, and filed by the Secretary of State of New York (such
certificates of amendment, together with the Series G Amendment, are referred to
as the "Certificates of Amendment").
For purposes of this Agreement, "Conversion Price," "Original Issue
Date," "Conversion Date" "Trading Day" and "Per Share Market Value" shall have
the meanings set forth in the Series G Terms; "Market Capitalization" shall mean
the product of the Outstanding Shares at the Original Issue Date of the
particular series of Shares being issued and with respect to which the
computation is being made, multiplied by the average Per Share
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Market Value for the twenty (20) Trading Days immediately preceding the Original
Issue Date of the particular series of Shares being issued; "Outstanding Shares"
shall mean 24,000,000 plus the number of shares of common stock, $.001 par
value, of the Company ("Common Stock") theretofore issued to the Purchaser or
into which Shares theretofore issued to the Purchaser may then be converted; and
"Market Price" as at any date shall mean the average Per Share Market Value for
the five (5) Trading Days immediately preceding such date.
1.2 Purchase Price. The purchase price for the Shares shall be
$20.00 per share.
1.3 The Closings.
(a) The Series G Closings. (i) The initial closing of the
purchase and sale of Series G Shares (the "Initial Series G Closing") shall take
place at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
("Xxxxxxxx Xxxxxxxxx"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
immediately following the execution hereof or upon the satisfaction of the
conditions set forth in Section 4.1. The date of the Initial Series G Closing is
hereinafter referred to as the "Initial Series G Closing Date". At the Initial
Series G Closing, the Company shall sell and issue to the Purchaser, and the
Purchaser shall purchase, 100,000 shares of Series G Preferred (the "Initial
Series G Shares"), for an aggregate purchase price of $2,000,000.
(ii) At the election of the Company, a second
closing of the purchase and sale of Series G Shares (the "Second Series G
Closing") shall take place at the offices of Xxxxxxxx Xxxxxxxxx at such time,
which may not be later than the 30th day after the Underlying Shares
Registration Statement (hereinafter defined) relating to the Common Stock into
which the Initial Series G Shares may be converted has been filed and has been
declared effective by the Securities and Exchange Commission (the "SEC" or the
"Commission") in accordance with the Registration Rights Agreement, as may be
designated by the Company upon not less than ten (10) days notice to the
Purchaser given on or after the date such Underlying Shares Registration
Statement is declared effective by the Commission; provided that the Second
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Series G Closing may take place only upon satisfaction of the conditions set
forth in Section 4.1(a) and 4.1(b) and only if the Underlying Shares
Registration Statement relating to the Common Stock into which the Initial
Series G Shares may be converted has been filed and has been declared effective
by the SEC in accordance with the Registration Rights Agreement. The date of the
Second Series G Closing is referred to as the "Second Series G Closing Date." At
the Second Series G Closing, the Company shall sell and issue to the Purchaser,
and the Purchaser shall purchase, such number (but in no event more than 25,000)
of Series G Shares as may be designated by the Company in its notice of the
Second Series G Closing.
(iii) At each Series G Closing, (a) the Company
shall deliver to the Purchaser (1) one or more stock certificates representing
the Series G Shares being issued and sold at such closing, registered in the
name of the Purchaser and (2) all documents, instruments and writings required
to have been delivered at or prior to the Series G Closing by the Company
pursuant to this Agreement; and (b) the Purchaser shall deliver to the Company
(1) the purchase price for the number of shares of Series G Preferred being
purchased at such closing as determined pursuant to this Article I in United
States dollars in immediately available funds by wire transfer to an account
designated in writing by the Company prior to the particular Series G Closing
Date and (2) all documents, instruments and writings required to have been
delivered at or prior to such Series G Closing by the Purchaser pursuant to this
Agreement and the Registration Rights Agreement.
(b) The Series H Closing. (i) At the election of the Company,
the closing of the purchase and sale of the Series H Shares (the "Series H
Closing") shall take place at the offices of Xxxxxxxx Xxxxxxxxx at such time as
the Company may designate, provided, however, in no case shall the Series H
Closing take place until the conditions set forth in Section 4.2 have been
satisfied and (A) earlier than the later of December 1, 1996, or ten days after
notice from the Company to the Purchaser of its election to sell to the
Purchaser Series H Shares given on or after the date that the Underlying Shares
Registration Statements relating to the Initial Series G Shares, and, if there
has occurred a Second Series G Closing, the Series G Shares sold
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thereat have been declared effective by the Commission, or (B) later than March
31, 1997 (the "Series H Closing Expiration Date"). The date of the Series H
Closing is hereinafter referred to as the "Series H Closing Date".
(ii) At the Series H Closing, (a) the
Company shall sell and issue to the Purchaser, and the Purchaser shall purchase
from the Company, such number (up to 125,000) shares of Series H Preferred as
the Company may elect to issue and sell to the Purchaser, (b) the Company shall
deliver to the Purchaser (1) one or more stock certificates representing the
Series H Shares, registered in the name of the Purchaser and (2) all documents,
instruments and writings required to have been delivered at or prior to the
Series H Closing by the Company pursuant to this Agreement and the Registration
Rights Agreement and (c) the Purchaser shall deliver to the Company (1) the
purchase price for the Series H Shares being purchased as determined pursuant to
this Article I in immediately available funds by wire transfer to an account
designated in writing by the Company prior to the Series H Closing Date and (2)
all documents, instruments and writings required to have been delivered at or
prior to Series H Closing by the Purchaser pursuant to this Agreement and the
Registration Rights Agreement.
(c) The Series I Closing. (i) At the election of the Company,
the closing of the purchase and sale of Series I Shares (the "Series I Closing")
shall take place at the offices of Xxxxxxxx Xxxxxxxxx at such time as the
Company may designate, provided, however, in no case shall the Series I Closing
take place until the conditions set forth in Section 4.2 have been satisfied and
(A) earlier than the later of April 1, 1997, or ten days after notice from the
Company to the Purchaser of its election to sell to the Purchaser Series I
Shares given on or after the date that the Underlying Shares Registration
Statement covering Shares issued at the last prior Closing hereunder has been
declared effective, or (B) later than June 30, 1997 (the "Series I Expiration
Date"). The date of the Series I Closing is referred to as the "Series I Closing
Date."
(ii) At the Series I Closing, (a) the Company
shall sell and issue to the Purchaser, and the Purchaser shall
purchase from the Company, such number (up to 125,000) shares of
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Series I Preferred as the Company may elect to issue and sell to the Purchaser,
(b) the Company shall deliver to the Purchaser (1) one or more stock
certificates representing the Series I Shares being sold at the Series I
Closing, registered in the name of the Purchaser and (2) all documents,
instruments and writings required to have been delivered at or prior to the
Series I Closing by the Company pursuant to this Agreement and the Registration
Rights Agreement, and (c) the Purchaser shall deliver to the Company (1) the
purchase price for the Series I Shares being purchased, as determined pursuant
to this Article I, in immediately available funds by wire transfer to an account
designated in writing by the Company prior to the Series I Closing Date, and (2)
all documents, instruments and writings required to have been delivered at or
prior to the Series I Closing by the Purchaser pursuant to this Agreement and
the Registration Rights Agreement.
(d) The Series J Closing. (i) At the election of the Company,
the closing of the purchase and sale of Series J Shares (the "Series J Closing")
shall take place at the offices of Xxxxxxxx Xxxxxxxxx at such time as the
Company may designate, provided, however, in no case shall the Series J Closing
take place until the conditions set forth in Section 4.2 have been satisfied and
(A) earlier than the later of July 1, 1997, or ten days after notice from the
Company to the Purchaser of its election to sell to the Purchaser Series J
Shares given on or after the date that the Underlying Shares Registration
Statement covering Shares issued at the last prior Closing hereunder has been
declared effective, or (B) later than September 30, 1997 (the "Series J
Expiration Date"). The date of the Series J Closing is referred to as the
"Series J Closing Date."
(ii) At the Series J Closing, (a) the Company
shall sell and issue to the Purchaser, and the Purchaser shall purchase from the
Company, such number (up to 125,000) shares of Series J Preferred as the Company
may elect to issue and sell to the Purchaser, (b) the Company shall deliver to
the Purchaser (1) one or more stock certificates representing the Series J
Shares being sold at the Series J Closing, registered in the name of the
Purchaser and (2) all documents, instruments and writings required to have been
delivered at or prior to the Series J Closing by the Company pursuant to this
Agreement and the
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Registration Rights Agreement, and (c) the Purchaser shall deliver to the
Company (1) the purchase price for the Series J Shares being purchased, as
determined pursuant to this Article I, in immediately available funds by wire
transfer to an account designated in writing by the Company prior to the Series
J Closing Date, and (2) all documents, instruments and writings required to have
been delivered at or prior to the Series J Closing by the Purchaser pursuant to
this Agreement and the Registration Rights Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations, Warranties and Agreements of the
Company. The Company hereby makes the following representations
and warranties to the Purchaser:
(a) Organization and Qualification. The Company is a
corporation, duly incorporated, validly existing and in good standing under the
laws of the State of New York, with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted. The Company has no subsidiaries other than as set forth in
the Schedule 2.1(a) attached hereto (collectively, the "Subsidiaries"). Each of
the Subsidiaries is a corporation, duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, with the
full corporate power and authority to own and use its properties and assets and
to carry on its business as currently conducted. Each of the Company and the
Subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
would not, individually or in the aggregate, have a material adverse effect on
the results of operations, assets, prospects, or financial condition of the
Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
10306-00006/387702.5
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(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated hereby and by the Registration Rights Agreement, dated the date
hereof, between the Company and the Purchaser, in the form of Exhibit B (the
"Registration Rights Agreement") and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement, the
Warrants (hereinafter defined) and the Registration Rights Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the part of the
Company. Each of this Agreement and the Registration Rights Agreement has been
duly executed and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) Capitalization. The authorized, issued and outstanding
capital stock of the Company is set forth in Schedule 2.1(c). No shares of
Common Stock are entitled to preemptive or similar rights. Except as disclosed
in Schedule 2.1(c), there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or,
except as a result of the purchase and sale of the Shares hereunder, securities,
rights or obligations convertible into or exchangeable for, or giving any person
any right to subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings, or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
Neither the Company nor any Subsidiary is in violation of any of the provisions
of its respective certificate of incorporation, bylaws or other charter
documents, except that annual meetings of shareholders have not always been held
in accordance with the respective bylaws.
(d) Issuance of Shares. The Shares are duly
authorized, and when paid for in accordance with the terms hereof
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shall be validly issued, fully paid and nonassessable. The Company has and at
all times while the Shares and the Warrants are outstanding will maintain an
adequate reserve of duly authorized shares of Common Stock to enable it to
perform its obligations under this Agreement, the Warrants and the Certificates
of Amendment and in no circumstances shall such reserved and available shares of
Common Stock be less than twice the number of shares of Common Stock which would
be issuable upon conversion of the Shares issued pursuant to the terms hereof
were such conversion effectuated on the Original Issue Date for such Shares.
When issued in accordance with the terms hereof and the Certificates of
Amendment, the shares of Common Stock into which the Shares may be converted
(the "Underlying Shares") will be duly authorized, validly issued, fully paid
and nonassessable; and when issued upon exercise of the Warrants in accordance
with their respective terms, the Common Stock issuable on exercise of the
Warrants (the "Warrant Shares") will be duly authorized, validly issued, fully
paid and nonassessable.
(e) No Conflicts. The execution, delivery and performance of
this Agreement and the Registration Rights Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of its
certificate of incorporation or bylaws (each as amended through the date hereof)
or (ii) subject to obtaining the consents referred to in Section 2.1(f),
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party, or (iii) to the
knowledge of the Company result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including Federal and
state securities laws and regulations, subject to the accuracy of the
Purchaser's representations herein), or by which any property or asset of the
Company is bound or affected, except in the case of each of clauses (ii) and
(iii), such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect. The business of the Company is not being
conducted in
10306-00006/387702.5
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violation of any law, ordinance or regulation of any governmental authority,
except for violations which, individually or in the aggregate, do not have a
Material Adverse Effect.
(f) Consents and Approvals. Except as specifically set forth in
Schedule 2.1(f), neither the Company nor any Subsidiary is required to obtain
any consent, waiver, authorization or order of, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other person in connection with the execution,
delivery and performance by the Company of this Agreement or the Registration
Rights Agreement, except for (i) the filings of the Certificates of Amendment
with respect to the Shares with the Secretary of State of New York, which
filings shall be effected prior to the Initial Series G Closing Date, the Series
H Closing Date, the Series I Closing Date and Series J Closing Date, as
appropriate, (ii) the filing of the registration statements contemplated by the
Registration Rights Agreement (the "Underlying Shares Registration Statements")
with the SEC, which shall be filed in the time periods set forth in the
Registration Rights Agreement, (iii) applications for the listing of the
Underlying Shares and the Warrant Shares with the Nasdaq Small Cap Market, and
(iv) other than, in all other cases, where the failure to obtain such consent,
waiver, authorization or order, or to give or make such notice or filing, would
not materially impair or delay the ability of the Company to effect the Series G
Closings, the Series H Closing, the Series I Closing or the Series J Closing and
to deliver to the Purchaser the Shares (and, upon conversion of the Shares, the
Underlying Shares) or the Warrants (and, upon exercise of the Warrants, the
Warrant Shares) in the manner contemplated hereby and the Registration Rights
Agreement free and clear of all liens and
10306-00006/387702.5
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encumbrances of any nature whatsoever (together with the consents, waivers,
authorizations, orders, notices and filings referred to in Section 2.1(f) and
Schedule 2.1(f), the "Required Approvals").
(g) Litigation; Proceedings. Except as specifically dis closed
in the Disclosure Materials (as defined below) or in Schedule 2.1(g), there is
no action, suit, notice of violation, proceeding or, to the best knowledge of
the Company, investigation pending or, to the best knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or any of
their respective properties before or by any court, governmental or
administrative agency or regulatory authority (Federal, State, county, local or
foreign) which (i) relates to or challenges the legality, validity or
enforceability of this Agreement, the Registration Rights Agreement, the
Warrants or the Shares, (ii) could, individually or in the aggregate, have a
Material Adverse Effect or (iii) could, individually or in the aggregate,
materially impair the ability of the Company to perform fully on a timely basis
its obligations under this Agreement, the Warrants or the Registration Rights
Agreement.
(h) No Default or Violation. Neither the Company nor any
Subsidiary (i) is in default under or in violation of any indenture, loan or
credit agreement or any other agreement or instrument to which it is a party or
by which it or any of its properties is bound, except such conflicts or defaults
as do not have a Material Adverse Effect, (ii) is in violation of any order of
any court, arbitrator or governmental body, except for such violations as do not
have a Material Adverse Effect, or (iii) is in violation of any statute, rule or
regulation of any governmental authority which could (individually or in the
aggregate) (x) adversely affect the legality, validity or enforceability of this
Agreement or the Registration Rights Agreement, (y) have a Material Adverse
Effect or (z) adversely impair the Company's ability or obligation to perform
fully on a timely basis its obligations under this Agreement or the Registration
Rights Agreement.
(i) Intentionally Omitted.
(j) Disclosure Materials. The SEC Documents (hereinafter
defined) and the Schedules to this Agreement furnished by or on behalf of the
Company (collectively, the "Disclosure Materials") do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
(k) Private Offering. The offer and sale of the Shares, the
Warrants, the Underlying Shares and the Warrant Shares are exempt from
registration under Section 5 of the Securities Act of 1933, as amended (the
"Securities Act").
(l) SEC Documents. The Company has filed all reports required
to be filed by it under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period
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as the Company was required by law to file such material) (the foregoing
materials being collectively referred to herein as the "SEC Documents") on a
timely basis, or has received a valid extension of such time of filing. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Documents, when filed, 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 of the Company included
in the SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as may be otherwise indicated in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company as of and for the dates thereof
and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal year-end audit
adjustments. Since the date of the financial statements included in the
Company's last filed Quarterly Report on Form 10-Q, there has been no event,
occurrence or development that has had a Material Adverse Effect which is not
specifically disclosed in any of the Disclosure Materials.
(m) Seniority. No class of equity securities of the Company is
senior to the Shares in right of payment, whether upon liquidation, dissolution
or otherwise. The Shares will be pari passu in all respects as to dividends and
liquidation distributions with the Company's outstanding Series B, Series D,
Series E and Series F Convertible Preferred Stock.
2.2 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a corporation
duly and validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Purchaser has the requisite power and
authority to enter into and to consummate the transactions contemplated hereby
and by the Registration Rights Agreement and otherwise to carry out its
obligations hereunder and thereunder. The purchase of the Shares by the
Purchaser hereunder has been duly authorized by all necessary action on the part
of the Purchaser. Each of this Agreement and the Registration Rights Agreement
has been duly executed and delivered by the Purchaser or on its behalf and
constitutes the valid and legally binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity.
(b) Investment Intent. The Purchaser is acquiring the
Shares, the Warrants to be issued to it hereunder, the Underlying Shares and
the Warrant Shares issuable upon exercise of such Warrants for its own account
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for investment purposes only and not with a view to or for distributing or
reselling such Shares, Warrants, Warrant Shares or Underlying Shares or any part
thereof or interest therein, without prejudice, however, to the Purchaser's
right, subject to the provisions of this Agreement and the Registration Rights
Agreement, at all times to sell or otherwise dispose of all or any part of such
Shares, Warrants, Warrant Shares or Underlying Shares under an effective
registration statement under the Securities Act and in compliance with
applicable State securities laws or under an exemption from such registration.
(c) Purchaser Status. At the time the Purchaser was offered the
Shares and the Warrants to be issued to it hereunder, it was, and at the date
hereof, it is, at each Closing Date and each date of exercise of such Warrants
and the Underlying Shares, it will be, an "accredited investor" as defined in
Rule 501(a) under the Securities Act.
(d) Experience of Purchaser. The Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares, Warrants to be
issued to it hereunder, Warrant Shares relating thereto and Underlying Shares
and has so evaluated the merits and risks of such investment.
(e) Ability of Purchaser to Bear Risk of Investment. The
Purchaser is able to bear the economic risk of an investment in the Shares,
Warrants to be issued to it hereunder, Warrant Shares relating thereto and
Underlying Shares and, at the present time, is able to afford a complete loss of
such investment.
(f) Prohibited Transactions. The Shares, Warrants to be issued
to it hereunder, Warrant Shares relating to such Warrants and Underlying Shares
to be purchased by the Purchaser are not being acquired, directly or indirectly,
with the assets of any "employee benefit plan", within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended.
(g) Access to Information. The Purchaser acknowledges receipt
of the Disclosure Materials and further acknowledges that it has been afforded
(i) the opportunity to ask such questions as it has deemed necessary of, and to
receive answers from, representatives of the Company concerning the terms and
conditions of the offering of the Shares, the Warrants, the Warrant Shares and
the Underlying Shares and the merits and risks of investing in such securities;
(ii) access to information about the Company and the Company's financial
condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to
obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment and to verify the accuracy
and completeness of the information contained in the Disclosure Materials.
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(h) Non-Broker-Dealer Status. The Purchaser is not a
broker-dealer and is not affiliated or associated with any broker-dealer.
(i) Reliance. The Purchaser understands and acknowledges that
(i) the Shares and Warrants to be issued to it hereunder are being offered and
sold, and the Underlying Shares and the Warrant Shares relating to such Warrants
are being offered, to it without registration under the Securities Act in a
private placement that is exempt from the registration provisions of the
Securities Act and (ii) the availability of such exemption, depends in part on,
and that the Company will rely upon the accuracy and truthfulness of, the
foregoing representations and the Purchaser hereby consents to such reliance.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Transfer Restrictions. If the Purchaser should decide to dispose of
any of the Shares or Warrant to be purchased by it hereunder (and upon
conversion or exercise thereof, any Underlying Shares or Warrant Shares), the
Purchaser understands and agrees that it may do so only (i) pursuant to an
effective registration statement under the Securities Act or (ii) pursuant to an
available exemption from registration under the Securities Act. In connection
with any transfer of any Shares, the Warrant, Underlying Shares or Warrant
Shares other than pursuant to an effective registration statement, the Company
may require that the transferor provide to the Company an opinion of counsel
experienced in the area of United States securities laws selected by the
transferor, the form and substance of which opinion shall be, reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such Shares, Warrant, Underlying Shares or Warrant Shares under
the Securities Act or any State securities laws.
The Purchaser agrees to the imprinting, so long as appropriate, of the
following legend on certificates representing the Shares and the Underlying
Shares:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER.
The legend set forth above shall be removed following a resale of
Underlying Shares or Warrant Shares, as the case may be, pursuant to an
effective registration statement under the Securities Act or sooner if in the
opinion of counsel to the Company experienced in the area of United States
securities laws such legend is no longer required under applicable
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requirements of the Securities Act. The certificates representing the Shares and
the Underlying Shares and Warrant Shares shall also bear any other legends
required by applicable Federal or state securities laws, which legends may be
removed when, in the opinion of counsel to the Company experienced in the
applicable securities laws, such legends are no longer required under the
applicable requirements of such securities laws. The Company agrees that it will
provide the Purchaser, upon request, with a substitute certificate or
certificates, free from such legend at such time as such legend is no longer
applicable. The Purchaser agrees that, in connection with any transfer of
Shares, Underlying Shares or Warrant Shares by it pursuant to an effective
registration statement under the Securities Act, the Purchaser will comply with
all prospectus delivery requirements of the Securities Act. The Company makes no
representation, warranty or agreement as to the availability of any exemption
from registration under the Securities Act with respect to any resale of Shares,
Underlying Shares or Warrant Shares.
3.2 Stop Transfer Instruction. The Purchaser agrees that the Company
shall be entitled to make a notation on its records and give instructions to any
transfer agent of the Company in order to implement the restrictions on transfer
set forth in this Agreement.
3.3 Furnishing of Information. As long as the Purchaser owns Shares or
Underlying Shares, the Company will promptly furnish to it all reports filed by
the Company pursuant to Section 13(a) or 15(d) of the Exchange Act (or if the
Company is not at the time required to file reports pursuant to such sections,
annual and quarterly reports comparable to those required by Section 13(a) or
15(d) of the Exchange Act).
3.4 Notice of Certain Events. The Company shall (i) advise the Purchaser
promptly after obtaining knowledge thereof, and, if requested by the Purchaser,
confirm such advice in writing, of (A) the issuance by any state securities
commission of any stop order suspending the qualification or exemption from
qualification of the Shares or the Common Stock for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority, or (B) any event that makes
any statement of a material fact made in the Disclosure Materials untrue or that
requires the making of any additions to or changes in the Disclosure Materials
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, (ii) use its best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption
from qualification of the Shares or the Underlying Shares under any state
securities or Blue Sky laws, and (iii) if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Shares or the Underlying
Shares under any such laws, use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
3.5 Copies and Use of Disclosure Materials. The Company shall furnish
the Purchaser, without charge, as many copies of the Disclosure Materials, and
any amendments or supplements thereto, as the Purchaser may reasonably
request. The Company consents to the use of the Disclosure Materials, and any
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amendments and supplements thereto, by the Purchaser in connection with resales
of the Shares or the Underlying Shares other than pursuant to an effective
registration statement.
3.6 Blue Sky Laws. In accordance with the Registration Rights Agreement,
the Company shall qualify the Shares, the Underlying Shares and the Warrant
Shares under the securities or Blue Sky laws of such jurisdictions as the
Purchaser may reasonably request and shall continue such qualification at all
times through the third anniversary of the last Closing Date; provided, however,
that neither the Company nor its Subsidiaries shall be required in connection
therewith to qualify as a foreign corporation where they are not now so
qualified or take any action that would subject the Company to general service
in any such jurisdiction where it is not then so subject or subject the Company
to any material tax in any such jurisdiction where it is not then so subject.
3.7 Solicitation Materials. The Company shall not (i) distribute any
offering materials in connection with the offering and sale of the Shares, the
Underlying Shares or the Warrant Shares other than the Disclosure Materials and
any amendments and supplements thereto prepared in compliance herewith or (ii)
solicit any offer to buy or sell the Shares, the Underlying Shares or the
Warrant Shares by means of any form of general solicitation or advertising.
3.8 Subsequent Financial Statements. As long as the Purchaser owns Shares
or Underlying Shares, the Company shall furnish to the Purchaser, promptly after
they are filed with the Commission, a copy of all financial statements for any
period subsequent to the period covered by the financial statements included in
the Disclosure Materials.
3.9 Certain Agreements. (a) The Company covenants and agrees that it
shall not directly or indirectly, without the prior consent of the Purchaser,
offer, sell, grant any option to purchase, or otherwise dispose (or announce any
offer, sale, grant or any option to purchase or other disposition) of any of its
or its Affiliates equity or equity-equivalent securities to a third party (other
than in connection with a financing of an acquisition of assets or securities
and other than in connection with payment of services rendered to the Company by
such third party and other than securities issued upon exercise of any currently
outstanding options or warrants or upon conversion of any currently outstanding
convertible debt or preferred stock disclosed in Schedule 2.1(c) or shares of
Common Stock issuable upon conversion of Shares or upon exercise of the Warrant
in accordance herewith and the Warrant issued to Xxxxx Xxxxxxx, LLC in
connection with the sale of the Shares) at a price which is, on the face thereof
or implied therein, less than the market price or fair market value for such
securities (a "Subsequent Discounted Financing") for a period of 120 days after
the date of this Agreement without first offering the Purchaser the opportunity
(which shall remain open for a period of five business days from the date the
Purchaser receives notice thereof) to purchase all but not less than all of such
additional equity or equity- equivalent securities, unless (A) the Company
provides the Purchaser a written notice (the "Subsequent Financing Notice") of
its intention to effect such Subsequent Discounted Financing, which Subsequent
Financing Notice shall
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describe in reasonable detail the proposed terms of such Subsequent Discounted
Financing and the amount of proceeds intended to be raised thereunder and (B)
(i) the Purchaser shall not have notified the Company within five business days
of its receipt of the Subsequent Financing Notice of its willingness to enter
into good faith negotiations to provide (or to cause its sole designee to
provide) financing to the Company on substantially the terms set forth in the
Subsequent Financing Notice or (ii) if the Purchaser notifies the Company of its
willingness to provide such financing in accordance with paragraph (B)(i) of
this Section, the Purchaser does not provide such financing in a commercial
reasonably and expeditious period of time, provided that such failure is not
attributable to a failure by the Company to act reasonably and expeditiously
with respect to such negotiations. If the Purchaser shall fail to notify the
Company of its intention to enter into such negotiations within the time period
contemplated by paragraph (B)(i) of this Section or does not provide the funding
in accordance with paragraph (B)(ii) of this Section, the Company may effect the
Subsequent Discounted Financing substantially upon the terms set forth in the
Subsequent Financing Notice (to persons, or their Affiliates, specified in such
Subsequent Financing Notice); provided, that the Company shall provide the
Purchaser with a second Subsequent Financing Notice, and the Purchaser shall
again have the right of first refusal set forth above in this Section 3.9(a), if
the Subsequent Discounted Financing subject to the initial Subsequent Financing
Notice shall not for any reason have been consummated substantially on the terms
set forth in such Subsequent Financing Notice (or with persons different than
those specified in such Subsequent Financing Notice unless such different
persons are Affiliates of those persons specified) within 60 days after the date
of the initial Subsequent Financing Notice and the Company desires to consummate
such Subsequent Discounted Financing.
(b) The Company covenants and agrees that it shall not directly
or indirectly, without the prior consent of the Purchaser, offer, sell, grant
any option to purchase, or otherwise dispose (or announce any offer, sale, grant
or any option to purchase or other disposition) of any of its or its Affiliates
equity or equity-equivalent securities to a third party, at a price which is
equal to or greater than (both on the face thereof and implied in such
transaction), the market price or fair market value for such securities (a
"Subsequent Non-Discounted Financing") for a period of 120 days after the date
of this Agreement without providing the Purchaser a notice thereof which
describes the material terms of such Subsequent Non-Discounted Financing..
(c) From the date hereof through the final Closing Date, the
Company shall not and shall cause the Subsidiaries not to, without the consent
of the Purchaser, (i) amend its certificate of incorporation, bylaws or other
charter documents so as to adversely affect any rights of the Purchaser
(provided, that amendments to the Company's certificate of incorporation solely
to increase the authorized capitalization of the Company, or subject to the
other terms hereof, to effect stock splits or reverse stock splits of the Common
Stock, shall not require the consent of the Purchaser); (ii) declare, authorize,
set aside or pay any dividend or other distribution with respect to the Common
Stock; (iii) repay, repurchase or offer to repay,
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repurchase or otherwise acquire shares of its Common Stock; or (iv) enter into
any agreement with respect to any of the foregoing.
3.10 Purchaser Ownership of Common Stock. The Purchaser may not use its
ability to convert Shares hereunder or under the terms of the Certificates of
Amendment or to exercise its rights under the Warrant, to the extent that such
conversion or exercise would result in the Purchaser owning more than 4.9% of
the outstanding shares of the Common Stock; provided, however, that this Section
3.10 shall not affect the Company's right under Section 5(b) of each of the
Certificates of Amendment to force the Purchaser to convert Shares under the
circumstances set forth in such section. The Company shall, promptly upon its
receipt of a Holder Conversion Notice tendered by the Purchaser (or its
designee) under the Certificate of Amendment, and upon its receipt of a notice
of exercise under the terms of the Warrant, notify the Purchaser of the number
of shares of Common Stock outstanding on such date and the number of Underlying
Shares and Warrant Shares which would be issuable to the Purchaser (or its
designee, as the case may be) if the conversion requested in such Conversion
Notice or exercise requested in such exercise notice were effected in full,
whereupon, notwithstanding anything to the contrary set forth in the
Certificates of Amendment or the Warrant, the Purchaser may revoke such
conversion or exercise to the extent that it determines that such conversion or
exercise would result in the Purchaser owning in excess of 4.9% of such
outstanding shares of Common Stock.
3.11 Listing of Underlying Shares. The Company shall take all steps
necessary to cause the Underlying Shares and Warrant Shares to be approved for
listing in the Nasdaq Small Cap Market (or other national securities exchange or
market on which the Common Stock is listed) no later than the date required
thereby, and shall provide to the Purchaser evidence of such listing, and shall
maintain the listing of its Common Stock on such exchange.
3.12 Conversion Procedures. Exhibit C attached hereto sets forth the
procedures with respect to the conversion of the Shares, including the forms of
conversion notice to be provided upon conversion, instructions as to the
procedures for conversion, the form of legal opinion, if necessary, that shall
be rendered to the Company's transfer agent and such other information and
instructions as may be reasonably necessary to enable the Purchaser to exercise
its right of conversion smoothly and expeditiously.
3.13 Purchaser's Rights if Trading in Common Stock is Suspended. In the
event that at any time within the two-year period after the last Closing Date
trading in the shares of the Common Stock is suspended for three or more
consecutive days on the principal market or exchange for such shares (other than
as a result of the suspension of trading in securities on such market or
exchange generally or temporary suspensions pending the release of material
information), at Purchaser's option exercisable by written notice to the
Company, the Company shall repurchase all Shares and all Underlying Shares then
held by such Purchaser, at an aggregate purchase price equal to (A) the product
of the Market Price as of the Trading Day immediately preceding the day of such
notice multiplied by the number of shares of Common Stock into which the Shares
to be purchased are then convertible (or in the case of
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Underlying Shares, the number of Underlying Shares to be purchased), plus (B)
interest on such amount accruing from the 7th day to the 21st day after such
notice at the rate of 5% per annum, from the 21st day to the 60th day at 8% per
annum, from the 60th day to the 90th day at the rate of 12% per annum and from
the 90th day until paid at the rate of 24% per annum.
3.14 No Violation of Applicable Law. Notwithstanding any provision of
this Agreement to the contrary, if any repurchase or redemption of shares
otherwise required under this Agreement or the Registration Rights Agreement
would be prohibited by the relevant provisions of the New York Business
Corporation Law, such repurchase or redemption shall be effected as soon as it
is permitted under such law; provided, however, that, interest payable by the
Company with respect to any such redemption or repurchase shall continue to
accrue in accordance with Section 3.13 during any such period.
3.15 Repurchase or Redemption Restrictions. Notwithstanding any provision
of this Agreement to the contrary, if any repurchase or redemption of shares
otherwise required under this Agreement would be prohibited in the absence of
consent from any lender of the Company or the Subsidiaries, or by the holders of
any class of securities of the Company, the Company shall use its best efforts
to obtain such consent as promptly as practicable after the repurchase or
redemption is required. Interest payable by the Company with respect to any such
redemption or repurchase shall continue to accrue in accordance with Section
3.13 until such consent is obtained. Nothing contained in this Section 3.15
shall be construed as a waiver by the Purchaser of any rights it may have by
virtue of any breach of any representation or warranty of the Company herein as
to the absence of any requirement to obtain any such consent.
3.16 Piggyback Registration Rights. For each of the Series G Preferred,
Series H Preferred, Series I Preferred and Series J Preferred, as applicable,
which are issued pursuant to this Agreement, during the period commencing the
date hereof and ending on the earlier to occur of (i) the two-year anniversary
of such applicable Closing and (ii) the date the applicable Underlying Shares
Registration Statement required to be filed by the Company is declared effective
under the Securities Act by the SEC, the Company may not file any registration
statement that provides for the registration of shares of Common Stock to be
sold by other shareholders of the Company unless the Company provides the
Purchaser with not less than seven (7) Trading Days' notice of its intention to
file such registration statement and provides the Purchaser the option to
include any or all of the applicable Underlying Shares and Warrant Shares
therein. Such registration rights shall not apply to registration statements
relating solely to (i) employee benefit plans notwithstanding the inclusion of a
resale prospectus for securities received under such employee benefit plan, or
(ii) business combinations unless the registration statement relates to
securities to be received by the holders of the Common Stock of the Company.
Prior to the Initial Series G Closing Date, the Company shall withdraw its
pending registration statement on Form X-0, Xxxxxxxxxxxx Xxxxxxxxx Xx. 000-0000.
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3.17 Notice of Breaches. Each of the Company and the Purchaser shall give
prompt written notice to the other of any breach of any representation, warranty
or other agreement contained in this Agreement or in the Registration Rights
Agreement, as well as any events or occurrences arising after the date hereof
and prior to, with respect to a Series G Closing, the Initial or Second Series G
Closing Date or, with respect to the Series H Closing, the Series H Closing
Date, or, with respect to the Series I Closing, the Series I Closing Date or,
with respect to the Series J Closing, the Series J Closing Date, which would
reasonably be likely to cause any representation or warranty or other agreement
of such party, as the case may be, contained herein or in the Registration
Rights Agreement to be incorrect or breached as of such Closing Date. However,
no disclosure by either party pursuant to this Section 3.18 shall be deemed to
cure any breach of any representation, warranty or other agreement contained
herein or in the Registration Rights Agreement. Neither the Company, any
Subsidiary nor the Purchaser will take, or agree to commit to take, any action
that is intended to make any representation or warranty of the Company or the
Purchaser, as the case may be, contained herein or in the Registration Rights
Agreement inaccurate in any respect at the Series G Closing Date, Series H
Closing Date, Series I Closing Date or Series J Closing Date, as applicable.
Notwithstanding the generality of the foregoing, the Company shall
promptly notify the Purchaser of any notice or claim (written or oral) that it
receives from any lender of the Company to the effect that the consummation of
the transactions contemplated hereby or by the Registration Rights Agreement
violates or would violate any written agreement or understanding between such
lender and the Company, and the Company shall promptly furnish by facsimile to
the Purchaser a copy of any written statement in support of or relating to such
claim or notice.
3.18 Confidentiality. The Purchaser agrees to keep confidential any
acquisition agreement or term sheet relating thereto delivered to it by the
Company until such documents shall hereafter become publicly or generally known
through no action of Purchaser.
ARTICLE IV
CONDITIONS
4.1(a) Conditions Precedent to the Obligation of the Company to Sell the
Series G Shares. The obligation of the Company to sell the Series G Shares to
the Purchaser is subject to the satisfaction or waiver by the Company, at or
before the Initial or Second Series G Closing, as the case may be, of each of
the following conditions:
(i) Accuracy of the Purchaser's Representations and
Warranties. The representations and warranties of the Purchaser shall be true
and correct in all material respects as of the date when made and as of the
Initial Series G Closing Date or the Second Series G Closing Date, as
applicable, as though made on and as of such date (except that representations
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and warranties that are made as of a specific date need be true in all
material respects only as of such date);
(ii) Performance by the Purchaser. The Purchaser shall
have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Purchaser at or prior to such Series G
Closing;
(iii) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
or promulgated by any court or governmental authority of competent jurisdiction
which prohibits the consummation of any of the transactions contemplated by this
Agreement; and
(iv) Required Approvals. All Required Approvals shall
have been obtained other than those relating solely to the Series H Shares,
Series I Shares or Series J Shares.
(b) Conditions Precedent to the Obligation of the Purchaser to
Purchase the Series G Shares. The obligation of the Purchaser hereunder to
acquire and pay for the Series G Shares is subject to the satisfaction or waiver
by the Purchaser, at or before the Initial or Second Series G Closing, as the
case may be, of each of the following conditions:
(i) Accuracy of the Company's Representations and
Warranties. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Initial
Series G Closing Date (or the Second Series G Closing Date, as applicable) as
though made on and as of such date (except that representations and warranties
that are made as of a specific date need be true in all material respects only
as of such date);
(ii) Performance by the Company. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to such Series G Closing;
(iii) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
or promulgated by any court of governmental authority of competent jurisdiction
which prohibits the consummation of any of the transactions contemplated by this
Agreement;
(iv) Adverse Changes. Since the date of the financial
statements included in the Company's Quarterly Report on Form 10-Q last filed
prior to the date of this Agreement, no event which in the judgment of the
Purchaser had a Material Adverse Effect shall have occurred which is not
disclosed in the Disclosure Materials (for purposes hereof, changes in the
market price of the Common Stock after the Initial Series G Closing Date may
10306-00006/387702.5
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be considered in determining whether a material adverse change has occurred, and
a market price of $2.00 or less shall be a material adverse change);
(v) No Suspensions of Trading in Common Stock. The
trading in the Common Stock shall not have been suspended by the SEC or the
National Association of Securities Dealers, Inc. (except for any suspension of
trading of limited duration solely to permit dissemination of material
information regarding the Company);
(vi) Listing of Common Stock. The Common Stock shall have
at all times between the date hereof and such Series G Closing Date been, and on
such Series G Closing Date be, listed for trading on the Nasdaq Small Cap Market
or Nasdaq National Market;
(vii) Legal Opinions. The Company shall have delivered to
the Purchaser the opinion of Certilman Balin Xxxxx & Xxxxx, LLP, outside counsel
to the Company, and the opinion of its inhouse counsel (together with such
forementioned outside counsel, the "Company Counsel"), in substantially the
forms set forth in Exhibit D(1) and D(2) (the "Legal Opinions");
(viii) Required Approvals. All Required Approvals shall
have been obtained other than those relating solely to the Series H Shares, the
Series I Shares or the Series J Shares;
(ix) Shares of Common Stock. On such Closing Date the
Company shall have duly reserved for issuance on conversion of Series G Shares
sufficient Underlying Shares;
(x) Delivery of Stock Certificates. The Company shall
have delivered to the Purchaser or its designee the stock certificate(s)
representing the Series G Shares to be issued and sold at such closing,
registered in the name of the Purchaser, each in form satisfactory to Xxxxxxxx
Xxxxxxxxx;
(xi) Registration Rights Agreement. The Company shall
have executed and delivered the Registration Rights Agreement and shall have
complied in all material respects with its obligations thereunder;
(xii) Warrants. With respect to the Initial Series G
Closing, the Company shall have executed and delivered to the Purchaser common
stock purchase warrants (the "Warrants"), substantially in the forms attached
hereto as Exhibit E(1) and (E)(2), pursuant to which (a) the Purchaser shall
have the right, at any time from the Initial Series G Closing Date through the
fifth anniversary of such date, to purchase up to
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225,000 shares of Common Stock at an exercise price of $5.29 per share and (b)
Xxxxx Xxxxxxx, LLC shall have the right, at any time from the Initial Series G
Closing Date through the fifth anniversary of such date, to purchase up to
50,000 shares of Common Stock at an exercise price of $3.53 per share.
(xiii) Underlying Shares Registration Statement. With
respect to the Second Series G Closing, the Underlying Shares Registration
Statement with respect to the Underlying Shares issuable on conversion of the
Initial Series G Shares and with respect to the Warrant Shares shall have been
filed with and declared effective by the SEC, and there shall be outstanding no
stop order suspending such effectiveness issued, pending or threatened to be
issued (it being agreed that the number of Underlying Shares to be initially
registered shall be determined in accordance with the provisions of the
Registration Rights Agreement);
(xiv) Certificate of Amendment. With respect to the
Initial Series G Closing, the Series G Amendment shall have been duly filed by
the Secretary of State of New York, and the Company shall have delivered a copy
thereof to the Purchaser certified by the Secretary of State of New York; and
(xv) Company Certificates. The Purchaser shall have
received a certificate, dated the appropriate Closing Date, signed by the
Secretary or an Assistant Secretary of the Company and certifying (A) that
attached thereto is a true, correct and complete copy of (I) the Company's
Certificate of Incorporation, as amended to the date thereof, (B) the Company's
By-Laws, as amended to the date thereof, and (C) resolutions duly adopted by the
Board of Directors of the Company authorizing the execution and delivery of this
Agreement, the Warrant and the Registration Rights Agreement and the issuance
and sale of the Series G Shares, the Warrant and the Underlying Shares and the
Warrant Shares, and (ii) the incumbency of the officers executing this
Agreement, the Registration Rights Agreement and the Warrant.
4.2(a) Conditions Precedent to the Obligation of the Company to Sell the
Series H Shares, the Series I Shares or the Series J Shares. The obligation of
the Company to sell the Series H Shares, the Series I Shares or the Series J
Shares to the Purchaser is subject to the satisfaction or waiver by the Company,
at or before the Series H Closing, the Series I Closing or the Series J Closing,
as applicable, of each of the following conditions:
(i) Series G Closing. The Initial Series G Closing shall
have occurred.
(ii) Accuracy of the Purchaser's Representations and
Warranties. The representations and warranties of the Purchaser shall be true
and correct in all material respects as of the date when made and as of the
Series H Closing Date, the Series I Closing Date and the Series J Closing Date,
as applicable, as though made on and as of such date (except that
representations and warranties that are made as of a specific date need be true
in all material respects only as of such date);
(iii) Performance by the Purchaser. The Purchaser shall
have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Purchaser at or prior to the Series H Closing,
the Series I Closing Date and the Series J Closing Date, as applicable;
(iv) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
or promulgated by any court or governmental authority of competent jurisdiction
which prohibits the consummation of any of the transactions contemplated by this
Agreement relating to the issuance or conversion of the Series H Shares, the
Series I Shares or the Series J Shares, as applicable; and
(v) Required Approvals. All Required Approvals shall
have been obtained.
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(b) Conditions Precedent to the Obligation of the Purchaser to
Purchase the Series H Shares, the Series I Shares or the Series J Shares. The
obligation of the Purchaser hereunder to acquire and pay for the Series H
Shares, the Series I Shares and the Series J Shares is subject to the
satisfaction or waiver by the Purchaser, at or before the Series H Closing, the
Series I Closing and the Series J Closing, as applicable, of each of the
following conditions:
(i) Series G Closing. The Initial Series G Closing shall
have occurred.
(ii) Accuracy of the Company's Representations and
Warranties. The representations and warranties of the Company contained herein
and in the Registration Rights Agreement shall be true and correct in all
material respects as of the date when made and as of the Series H Closing Date,
the Series I Closing Date and the Series J Closing Date, as applicable, as
though made on and as of such date (except that representations and warranties
that are made as of a specific date need be true in all material respects only
as of such date);
(iii) Performance by the Company. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement and the Registration Rights
Agreement to be performed, satisfied or complied with by the Company at or prior
to the Series H Closing, the Series I Closing or the Series J Closing, as
applicable;
(iv) Underlying Shares Registration Statements. With
respect to the Series H Closing, the Underlying Shares Registration Statement
with respect to the Underlying Shares issuable on conversion of all outstanding
Series G Shares and with respect to the Warrant Shares shall have been declared
effective under the Securities Act by the SEC; with respect to the Series I
Closing, the Underlying Shares Registration Statement with respect to the
Underlying Shares issuable on conversion of all outstanding Series H Shares
shall have been declared effective under the Securities Act by the SEC; and with
respect to the Series J Closing, the Underlying Shares Registration Statement
with respect to the Underlying Shares issuable on conversion of all outstanding
Series I Shares shall have been declared effective by the SEC; and in each such
case such Underlying Registration Statement shall remain effective and shall not
be subject to any stop order and no stop order shall be pending or threatened
(it being agreed that the number of Underlying Shares to be initially registered
shall be determined in accordance with the provisions of the Registration Rights
Agreement); and
(v) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
or promulgated by any court of governmental authority of competent jurisdiction
which prohibits the consummation of any of the transactions contemplated by this
Agreement relating to the issuance or conversion of any of the Shares;
(vi) Adverse Changes. Since the date of the financial
statements included in the Company's last filed Quarterly Report on Form 10-Q
last filed prior to the date of this Agreement, no event which in the judgment
of the Purchaser had a Material Adverse Effect shall have occurred which is not
disclosed in the SEC Documents (for purposes hereof, changes in the market price
of the Common Stock after the Initial Series G Closing Date may be considered in
determining whether a material adverse change has occurred, and a market price
of $2.00 per share or less shall be deemed to be material adverse change);
(vii) Trading Volume. For the period from the date hereof
through the applicable Closing Date, the average 30-day trading volume of the
Common Stock shall have been 50,000 or higher;
(viii) Litigation. No material litigation shall have been
instituted or threatened against the Company;
10306-00006/387702.5
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(ix) Management. Xxxxx Xxxx, Xx. and Xxxxxxx X. Xxxxxx
shall at all times remain substantially in their current function substantially
under their current managerial positions in the Company without a material
diminution of managerial responsibilities and without a material diminution, as
measured from the date hereof, in their respective current Common Stock
ownership positions.
(x) No Suspensions of Trading in Common Stock. The
trading in the Common Stock shall not have been suspended by the SEC or the
National Association of Securities Dealers, Inc. (except for any suspension of
trading of limited duration solely to permit dissemination of material
information regarding the Company);
(xi) Listing of Common Stock. The Common Stock shall have
been at all times between the Series G Closing Date and the Series H Closing
Date, the Series I Closing Date and the Series J Closing Date, as applicable,
and on the applicable Closing Date be, listed for trading on the Nasdaq Small
Cap Market or Nasdaq National Market;
(xii) Legal Opinions. The Company shall have delivered to
the Purchaser the opinions of Company Counsel in form and substance reasonably
satisfactory to the Purchaser, dated the applicable Closing Date;
(xiii) Required Approvals. All Required Approvals shall
have been obtained;
(xiv) Shares of Common Stock. On each of the Series H
Closing Date, the Series I Closing Date and the Series J Closing Date, as
applicable, the Company shall have reserved for issuance to the Purchaser
sufficient Underlying Shares for issuance on conversion of the Series H Shares
issued, sufficient Underlying Shares for issuance on conversion of the Series I
Shares issued, and sufficient Underlying Shares for issuance on conversion of
the Series J Shares issued; and
(xv) Delivery of Stock Certificates. The Company shall
have delivered to the Purchaser or its designee the stock certificate(s)
representing the Shares, being purchased at such Closing, registered in the name
of the Purchaser, each in form satisfactory to Xxxxxxxx Xxxxxxxxx.
ARTICLE V
TERMINATION
5.1 Termination by Mutual Consent. (a) This Agreement may be
terminated with respect to the transactions contemplated herein relating to both
the Shares and the Underlying Shares at any time prior to the Initial Series G
Closing by the mutual consent of the Company and the Purchaser.
(b) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series H Shares at any
time prior to the Series H Closing by the mutual written consent of the Company
and the Purchaser.
(c) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series I Shares at any
time prior to the Series I Closing by the mutual written consent of the Company
and the Purchaser.
(d) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series J Shares at any
time prior to the Series J Closing by the mutual written consent of the Company
and the Purchaser.
10306-00006/387702.5
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5.2 Termination by the Company. (a) This Agreement may be
terminated with respect to the transactions contemplated herein relating to both
the Shares and the Underlying Shares prior to the Second Series G Closing by the
Company, by giving notice of such termination to the Purchaser.
(b) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series H Shares prior to
the Series H Closing by the Company, by giving notice of such termination to the
Purchaser.
(c) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series I Shares prior to
the Series I Closing by the Company, by giving notice of such termination to the
Purchaser.
(d) This Agreement may be terminated with respect to the
transactions contemplated herein relating solely to the Series J Shares prior to
the Series J Closing by the Company, by giving notice of such termination to the
Purchaser.
5.3 Termination by the Purchaser. (a) This Agreement may be
terminated prior to the Second Series G Closing with respect to the transactions
contemplated herein relating to both the Shares and the Underlying Shares by the
Purchaser, by giving notice of such termination to the Company, if:
(i) the Company has breached any representation, warranty,
covenant or agreement contained in this Agreement and such breach is not
cured within five business days following receipt by the Company of
notice of such breach;
(ii) there has occurred an event since the date of the
financial statements included in the Company's Quarterly Report on Form
10-Q last filed prior to the date of this Agreement which could
reasonably be expected to have a Material Adverse Effect and which is not
disclosed in the Disclosure Materials;
(iii) trading in the Company's Common Stock has been
suspended by the SEC or the Nasdaq (except for any suspension of trading
of limited duration soley to permit dissemination of material information
regarding the Company); or
(iv) the Company's Common Stock shall have failed to be
listed for trading on the Nasdaq Small Cap Market and the Purchaser shall
have exercised its termination right herein provided within 10 business
days of obtaining knowledge of such delisting.
(b) This Agreement may be terminated by the Purchaser prior to
the Series H Closing with respect to the transactions contemplated herein
relating solely to the Series H Shares, or prior to the Series I Closing with
respect to the transactions contemplated herein relating solely to the Series I
Shares, or prior to the Series J Closing with respect to the transactions
contemplated herein relating solely to the Series J Shares, by giving notice of
such termination to the Company, if:
(i) after the Initial Series G Closing Date, the Company
has breached any representation, warranty, covenant or agreement
contained in this Agreement or in the Registration Rights Agreement and
such breach is not cured within five business days following receipt by
the Company of notice of such breach;
(ii) there has occurred an event since the date of the
financial statements included in the Company's Quarterly Report on Form
10-Q last filed prior to the date of this Agreement which in
10306-00006/387702.5
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the Purchaser's judgment has had a Material Adverse Effect and which is
not disclosed in the Disclosure Materials;
(iii) trading in the Company's Common Stock has been
suspended by the SEC or the Nasdaq (except for any suspension of trading
of limited duration solely to permit dissemination of material
information regarding the Company;
(iv) the Company's Common Stock shall have failed to be
listed for trading on the Nasdaq Small Cap Market or Nasdaq National
Market at any time after the Initial Series G Closing Date, and the
Purchaser shall have exercised its termination right herein provided
within 10 Trading Days of obtaining knowledge of such delisting.
(v) the Underlying Shares Registration Statement with
respect to the Underlying Shares into which the Initial Series G Shares
may be converted and with respect to the Warrant Shares is not declared
effective under the Securities Act by the SEC prior to the 90th day after
the Initial Series G Closing Date; or the Underlying Shares Registration
Statement with respect to the Underlying Shares into which the Series G
Shares issued at the Second Series G Closing may be converted has not
been declared effective under the Securities Act by the SEC prior to the
90th day after the Second Series G Closing Date; or the Underlying Shares
Registration Statement with respect to the Underlying Shares into which
the Series H Shares may be converted has not been declared effective
under the Securities Act by the SEC prior to the 90th day after the
Series H Closing Date; or the Underlying Shares Registration Statement
with respect to the Underlying Shares into which the Series I Shares may
be converted has not been declared effective under the Securities Act by
the SEC prior to the 90th day after the Series I Closing Date (it being
agreed that, in each case, the initial number of Underlying Shares to be
registered shall be as determined in the Registration Rights Agreement).
ARTICLE VI
MISCELLANEOUS
6.1 Fees and Expenses. Each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement, except as
set forth in the Registration Rights Agreement. The Company shall pay all stamp
and other taxes and duties levied in connection with the issuance of the Shares
pursuant hereto. The Purchaser shall be responsible for the Purchaser's own tax
liability that may arise as a result of the investment hereunder or the
transactions contemplated by this Agreement.
6.2 Entire Agreement; Amendments. This Agreement, together with
the Exhibits and Schedules hereto, and the Registration Rights Agreement contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters.
6.3 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been received (a) upon hand delivery (receipt acknowledged) or delivery by telex
(with correct answer back received), telecopy or facsimile (with transmission
confirmation report) at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
10306-00006/387702.5
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If to the Company: AMNEX, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
With copies to: Xxxx X. Xxxxxxx, Esq.
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
If to the Purchaser: Southbrook International
Investments, Ltd.
c/o Trippoak Advisors, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
With copies to Xxxxx Xxxxxxx, LLC
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Fax: (000) 000-0000
- and -
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
and Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
6.4 Amendments; Waivers. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Purchaser, or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
6.5 Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
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6.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns. Neither the Company nor the Purchaser may assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other.
The assignment by a party of this Agreement or any rights hereunder shall not
affect the obligations of such party under this Agreement.
6.7 No Third-Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
6.8 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principles of conflicts of law thereof.
6.9 Survival. The agreements and covenants contained in
Article III and this Article VI shall survive the delivery and conversion of the
Shares pursuant to this Agreement. The representations and warranties of the
Company and the Purchaser contained in Article II shall survive until a date
that is one year after the Closing.
6.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
6.11 Publicity. The Company and the Purchaser shall consult
with each other in issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and neither
party shall issue any such press release or otherwise make any such public
statement without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed.
6.12 Severability. In case any one or more of the provisions
of this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
6.13 Delivery of W-8. The Purchaser shall deliver to the
Company a completed and executed Form W-8.
10306-00006/387702.5
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized persons as of the
date first indicated above.
Company:
AMNEX, INC.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Purchaser:
SOUTHBROOK INTERNATIONAL
INVESTMENTS, LTD.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
10306-00006/387702.5
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