AGREEMENT
This Agreement, dated as of February 14, 2002 (the "Agreement"), is
entered into by and between Sedona Corporation, a Pennsylvania corporation
(together with its successors and permitted assigns, "SEDONA"), and Amro
International, S.A. (together with its successors and permitted assigns,
"AMRO").
Recitals
A. SEDONA and AMRO are parties to a Convertible Debentures and Warrants
Purchase Agreement, dated as of November 22, 2000 (as amended, the "Purchase
Agreement").
B. Pursuant to the Purchase Agreement, AMRO made a loan to SEDONA in
the original principal amount of US$3,000,000, which was evidenced by SEDONA's
5% Convertible Debentures Due March 22, 2001 (as amended by an Agreement, dated
as of April 26, 2001, the "Debentures").
C. SEDONA issued and delivered the following Warrants, including
Warrants acquired in conjunction with Equity Line transactions, to acquire
shares of SEDONA's Common Stock (collectively, the "Warrants"):
Warrants to AMRO for (x) 266,667 shares, expiring
November 22, 2003, (y) 400,000 shares, expiring
November 22, 2003, and (z) 153,846 shares, expiring
January 24, 2005;
Warrants to Roseworth Group, Ltd. for (x) 47,619
shares, expiring August 18, 2004 and (y) 95,238
shares, expiring October 23, 2004;
Warrant to Cambois Finance Inc. for 103,092 shares,
expiring December 5, 2004; and
Warrant to Ladenburg Xxxxxxxx & Co. Inc. for 167,576
shares, expiring November 23, 2003.
D. Immediately prior to effectiveness of this Agreement, there remains
outstanding US$670,000 principal amount of Debentures (without regard to any
redemption premium thereon and net of the rescission at the Closing of the
Pending Conversion Notices described below), plus interest and other amounts
owing thereon equal to US$73,520.06 (the sum of such amounts, the "Outstanding
Loan Balance").
E. On September 25, 2001 and October 15, 2001, AMRO tendered Notices of
Conversion (as defined in the Debentures) (collectively, the "Pending Conversion
Notices") to convert principal under the Debentures into Conversion Shares (as
defined in the Debentures). SEDONA has not delivered Conversion Shares to AMRO
on account of the Pending Conversion Notices.
F. The Debentures matured and the Outstanding Loan Balance became due
and payable on January 15, 2002.
G. As of the date of this Agreement, SEDONA has not paid AMRO the
Outstanding Loan Balance or honored the Pending Conversion Notices.
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H. AMRO and SEDONA wish to amicably resolve all matters pertaining to
the Debentures, Warrants and the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, SEDONA and AMRO, intending to be legally bound, hereby
agree as follows.
1. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will occur on the date of this Agreement first set
forth above at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP,
or at such other time and place as the parties may agree. At the Closing, (a)
AMRO will deliver to or as directed by SEDONA (i) a Notice of Conversion for
US$400,000 principal of Debentures, (ii) an executed copy of this Agreement, and
(iii) the balance of the Debentures for cancellation, together with a notice of
withdrawal of the Pending Conversion Notices, and (b) SEDONA will deliver to or
as directed by AMRO (i) a number of freely tradeable Conversion Shares on
account of the Notice of Conversion delivered at the Closing by AMRO as equals
the quotient obtained by dividing US$400,000 by 85% of the daily volume weighted
average of the Common Stock for the five Trading Days immediately preceding the
Closing (such shares, the "Closing Shares"), (ii) US$50,000, by wire transfer of
immediately available funds to an account designated by AMRO for such purpose,
(iii) an executed copy of this Agreement, and (iv) an executed promissory note,
in the original principal amount of US$348,651.61, in the form of Annex 1 to
this Agreement (the "Promissory Note").
2. Certain Trading Agreements. AMRO agrees that it will refrain from
short-selling SEDONA Common Stock (as defined under the written rules of the
NASD or Securities and Exchange Commission), directly or through Rhino Advisors,
Inc., and will liquidate the Closing Shares in an orderly manner by not trading
during a trading day in excess of the greater of (x) 1/60th of the Closing
Shares issued at the Closing in any one trading day and (y) whichever is
applicable of (I) a number of Closing Shares as equals 12.5% of the aggregate
reported trading volume of SEDONA's Common Stock on such trading day, if less
than an aggregate of 175,000 shares of SEDONA Common Stock are traded on such
trading day (as reported by Bloomberg L.P. or any successor to its function of
reporting share information) or (II) a number of Closing Shares as equals 17.5%
of the aggregate reported trading volume of SEDONA's Common Stock on such
trading day, if an aggregate of 175,000 or more shares of SEDONA Common Stock
are traded on such trading day (as reported by Bloomberg L.P. or any successor
to its function of reporting share information).
3. Exercise of Warrants. SEDONA covenants and agrees to, and reaffirms
its obligation to, timely honor its exercise and other obligations under the
Warrants in accordance with their respective terms and irrevocably waives all
defenses that it may have against such obligations that has or may have arose
(whether or not known) prior to the date of this Agreement.
4. Representations and Warranties. Each party to this Agreement hereby
represents and warrants to the other that (x) it has the requisite corporate and
other authority to enter into, deliver and fulfill its obligations under this
Agreement and each other document delivered by it in connection herewith, (y)
that each of this Agreement and each other document to which it is a party that
is delivered to the other party hereto has been duly authorized and executed by
such party and, when delivered to the other party, will be its legal and binding
obligation, enforceable against it in accordance with its terms.
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5. Admissions; Press Releases. Neither party hereto will issue any
press release or make any other public announcement relating to this Agreement
unless the content thereof is mutually agreed by both parties, or if such party
is advised by its counsel that such press release or public announcement is
required by law, in which case the party making such statement shall endeavor to
provide the other party with a copy of such statement prior to its public
release. Notwithstanding the foregoing, the parties understand and agree that
SEDONA will issue a press release in substantially in the form attached to this
Agreement and make such filings as it deems required under the Securities
Exchange Act of 1934, as amended, in order to disclose that the debt represented
by the Debentures has been restructured as provided herein. This Agreement and
any payments made or documents delivered pursuant hereto are not an admission or
concession by either party or any of their respective affiliated entities,
predecessors, officers, employees, agents, advisors, representatives, successors
or assigns of any liability, fault, wrongdoing, or illegal acts or omissions.
Neither party or its agents shall directly or indirectly make any oral or
written statements that either party or any of their respective affiliated
entities, predecessors, officers, employees, advisors, agents, or
representatives, successors or assigns have made or implied any such admission
or concession.
6. Release. Concurrently with the execution and delivery of this
Agreement, AMRO and SEDONA are entering into and delivering releases to one
another in the forms of Annex 2 to this Agreement (the "Releases"). The Releases
are a material inducement to the willingness of the parties to enter into this
Agreement and the transactions contemplated hereby.
7. Miscellaneous. (a) The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
except in a writing executed by each of SEDONA and AMRO. No waiver of any term
of this Agreement shall be effective except if contained in a writing by the
party against whom such waiver is to be enforced, and no such waiver shall be a
continuing waiver or extend to any additional matters or further events, each of
which must be addressed in a separate writing.
(b) All notices or other communications or deliveries under this
Agreement shall be in writing, addressed to a party in accordance with the
information set forth by such party on its signature page to this Agreement, or
such other address as such party may hereafter indicate in a writing to the
other, given in accordance with this provision. All notices and other
communications shall be deemed to given and effective on the earliest of (i) the
date of transmission, if such notice or communication is delivered via facsimile
on a business day, (ii) the business day after the date of transmission, if such
notice or communication is delivered via facsimile on a day that is not a
business day, (iii) the business day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is given.
(c) A party may not assign its obligations under this Agreement without
the prior written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties. This Agreement is intended for the benefit of and may only be
enforced by AMRO and SEDONA and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person or entity.
(d) This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that
any signature is delivered by facsimile transmission, such signature shall
create a valid 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 were the original thereof.
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(e) 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. Each party agrees that all legal
proceedings concerning the interpretation, enforcement and defense of this
Agreement and the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) (each a "Proceeding") shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan (the "New York Courts"). Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for all
Proceedings, and hereby irrevocably waives, and agrees not to assert in any such
Proceeding, any claim that it is not personally subject to the jurisdiction of
any of the New York Courts, or that such Proceeding is improper. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Agreement or the other documents delivered in connection
herewith. If either party shall commence a Proceeding to enforce any provisions
of this Agreement, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(f) 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. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
(g) If any provision of this Agreement is held to 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 that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
(h) This Agreement, together with the Annexes hereto, contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
this Agreement and its Annexes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
SEDONA CORPORATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------------
Title: President & CEO
-----------------------------------------
Address for Notice:
AMRO INTERNATIONAL, S.A.
By: /s/ X. X. Xxxxxxxx
----------------------------------------
Name: X. X. Xxxxxxxx
----------------------------------------
Title: Director
----------------------------------------
Address for Notice:
c/o Ultra Finance
Xxxxxxxxxxxxxxxxx 0
X.X. Xxx 0000
Xxxxxx XX-0000 Xxxxxxxxxxx
Facsimile: 011 411 262 5515
with a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
EXECUTION COPY
PROMISSORY NOTE
US$348,651.61 February 14, 2002
FOR VALUE RECEIVED, Sedona Corporation, a Pennsylvania corporation
("Maker"),with its primary offices located at 000 Xxxxx Xxxx Xxxx, Xxxx xx
Xxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to the order of Amro International,
S.A. or its registered assigns ("Payee"), upon the terms set forth below, the
principal sum of Three Hundred Forty-Eight Thousand Six Hundred Fifty-One and
61/100 Dollars (US$348,651.61). All references in this Promissory Note to "$" or
"dollars" shall be to US dollars (US$).
1. Payments. Maker will repay the principal and accrued interest under this
Promissory Note by making installment payments to Payee to the account
designated in Annex A hereto or such other account as may be hereafter
designated in writing by Payee for such purpose, by the dates and in the amounts
set forth below in this Section 1:
Date of Payment Amount of Payment
-----------------------------------------------------------------------
by March 15, 2002 US$50,000
by April 15, 2002 US$50,000
by May 15, 2002 US$50,000
by June 15, 2002 US$50,000
by July 15, 2002 US$50,000
by August 15, 2002 US$50,000
by September 15, 2002 (the "Maturity Date") US$48,651.61
Notwithstanding the foregoing, (a) Maker may voluntarily prepay all or
any portion of this Promissory Note until the Maturity Date, (b) if Maker shall
redeem or otherwise repurchase in excess of an aggregate of US$500,000 of its
equity securities or equity equivalent securities while this Promissory Note is
outstanding in one or more transactions, then Maker shall prepay an amount of
principal and interest outstanding under this Promissory Note equal to US$1.00
for each US$1.00 of such redemption or other repayment amount, commencing from
dollar one, and (c) if Maker shall consummate any loan transaction or any
financing in excess of an aggregate of US$500,000 through the sale or
subscription of its equity or equity-equivalent securities (including through
SEDONA Common Stock or convertible or exchangeable securities or other rights
that entitle the holder thereof to acquire SEDONA Common Stock), then Maker
shall prepay an amount of principal and interest outstanding under this
Promissory Note equal to 25% of the gross proceeds to the Company from each such
transaction. Any such prepayments will first reduce principal payments scheduled
closest to the Maturity Date (so that the payment scheduled to be made on the
Maturity Date will be affected prior to any earlier scheduled payments). If
Maker fails to timely make any payment due hereunder in full pursuant to the
terms hereof, Maker will pay interest thereon at a rate of 10% per annum (or the
lesser amount permitted by applicable law), accruing daily from the date such
payment is due until such amount is paid in full.
2. Events of Default.
(a) "Event of Default", wherever used in this Promissory Note, means
any one of the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court, or any order, rule or regulation of any
administrative or governmental body):
(i) any default in the payment of any payment of principal or
interest under this Promissory Note, free of any claim of subordination, by the
fifth day following the date that such payment shall become due and payable
pursuant to the terms hereof;
(ii) Maker shall fail to observe or perform any obligation or shall
breach any term or provision of this Promissory Note other than as specified in
Section 2(a)(i) and such failure or breach shall not have been remedied within 5
days after the date on which notice of such failure or breach shall have been
delivered;
(iii) Maker shall fail to observe or perform any obligation or shall
breach any term or provision of either the Agreement of even date herewith
between Payee and Maker pursuant to which this Promissory Note was issued to
Payee, or Maker shall fail to timely honor or shall announce its intention (in a
legal proceeding, public statement or otherwise) not to honor or that it
contests its obligation to honor any exercise of any Warrant (as defined in such
Agreement) issued to Payee, or Maker shall commence or, other than to the extent
ordered by a court of competent jurisdiction to appear as a witness or
participate in discover, join in any legal proceeding adverse or against Payee
or Payee's affiliates, or Maker or any other party (other than Payee or an
affiliate of Payee) shall breach any terms of the Release of even date herewith
between, among others, Maker and Payee (a copy of which Release is attached to
the Agreement);
(iv) Maker shall commence or shall participate with its creditors in
the commencement of a case under any applicable bankruptcy or insolvency laws as
now or hereafter in effect or any successor thereto, or Maker commences a
proceeding to dissolve its existence;
(v) Maker shall default in any of its obligations under any other
indebtedness for borrowed money or other instrument under which there may be
issued, or by which there may be secured or evidenced any indebtedness for
borrowed money or money due under any long term leasing or factoring arrangement
of Maker, in any such event, in excess of an aggregate of US$300,000, whether
such indebtedness now exists or shall hereafter be created and such default
shall result in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable; or
(vi) Maker shall be a party to or suffer any Change of Control
Transaction. "Change of Control Transaction" means the occurrence of any of: (i)
the merger of Maker with or into another entity that is not wholly-owned by
Maker, consolidation or sale of 50% or more of the assets of Maker in one or a
series of related transactions, or (ii) the execution by Maker of an agreement
providing for any of the foregoing events.
(b) If any Event of Default occurs, the full principal amount and
interest of this Promissory Note shall become, immediately due and payable in
cash. Payee need not provide and Maker hereby waives any presentment, demand,
protest or other notice of any kind, and Payee may immediately and without
expiration of any grace period enforce any and all of its rights and remedies
hereunder and all other remedies available to it under applicable law. Such
declaration may be rescinded and annulled by Payee at any time prior to payment
hereunder. No such rescission or annulment shall affect any subsequent Event of
Default or impair any right consequent thereon.
3. No Waiver of Payee's Rights. All payments hereunder shall be made without
setoff, deduction or counterclaim. No delay or failure on the part of Payee in
exercising any of its options, powers or rights, nor any partial or single
exercise of its options, powers or rights shall constitute a waiver thereof or
of any other option, power or right, and no waiver on the part of Payee of any
of its options, powers or rights shall constitute a waiver of any other option,
power or right. Maker hereby waives presentment of payment, protest, and all
notices or demands in connection with the delivery, acceptance, performance,
default or endorsement of this Promissory Note. Acceptance by Payee of less than
the full amount due and payable hereunder shall in no way limit the right of
Payee to require full payment of all sums due and payable hereunder in
accordance with the terms hereof.
4. Modifications. No term or provision contained herein may be modified, amended
or waived except by written agreement or consent signed by the party to be bound
thereby.
5. Successors and Assigns. This Promissory Note shall be binding upon Maker and
its successors and shall inure to the benefit of Payee and its successors and
assigns.
6. Lost or Stolen Promissory Note. If this Promissory Note is lost, stolen,
mutilated or otherwise destroyed, Maker shall execute and deliver to Payee a new
promissory note containing the same terms, and in the same form, as this
Promissory Note. In such event, Maker may require Payee to deliver to Maker an
affidavit of lost instrument and customary indemnity in respect thereof as a
condition to the delivery of any such new promissory note.
7. Due Authorization. This Promissory Note has been duly authorized, executed
and delivered by Maker and is the legal obligation of Maker, enforceable against
Maker in accordance with its terms.
8. Governing Law. This Promissory Note 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. Each of Maker and Payee
agree that all legal proceedings concerning the interpretations, enforcement,
collection and defense of this Promissory Note (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) (each a "Proceeding") shall be commenced in the state and
federal courts sitting in the City of New York, Borough of Manhattan (the "New
York Courts"). Each of Maker and Payee hereby irrevocably submit to the
exclusive jurisdiction of the New York Courts for all Proceedings, and hereby
irrevocably waive, and agree not to assert in any such Proceeding, any claim
that it is not personally subject to the jurisdiction of any of the New York
Courts, or that such Proceeding is improper. Each of Maker and Payee hereby
irrevocably waive personal service of process and consent to process being
served in any Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Promissory Note or the Agreement
and agree that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. EACH OF MAKER
AND PAYEE HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT
OF OR RELATING TO THIS PROMISSORY NOTE.
9. Severability. If any provision of this Promissory Note is declared by a court
of competent jurisdiction to be in any way invalid, illegal or unenforceable,
the balance of this Promissory Note shall remain in effect, and if any provision
is inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances.
10. Cumulative Rights and Remedies. The rights and remedies of Payee expressed
herein are cumulative and not exclusive of any rights and remedies otherwise
available.
11. Collection Expenses. If Payee shall commence any suit, action or other legal
proceeding to enforce this Promissory Note, then Maker shall reimburse Payee for
its costs of collection and attorneys fees incurred with the investigation,
preparation and prosecution of such suit, action or legal proceeding.
IN WITNESS WHEREOF, Maker has caused this Promissory Note to be duly
executed and delivered as of the date set forth above.
SEDONA CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: President & CEO
Annex A
Wiring Instructions
Wire to: Citibank, N.A., 000 X. 00xx Xx., X.X., X.X. 00000
ABA# 021 000 089
Credit to Account of: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
Attorney Trust Account
Account Number: 37 204 103
Reference : 12009-5
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT AMRO International, S.A., Rhino Advisors, Inc., and Xxxxxx Xxxxxx in his
individual capacity (collectively, the "RELEASORS"), in consideration of good
and valuable consideration received from Sedona Corporation, its officers,
directors, affiliates, employees, agents, and advisors (as well as the officers,
directors, and employees of such affiliates and advisors) (collectively, the
"RELEASEES"), receipt of which is hereby acknowledged, in full satisfaction
hereby waive all claims, offsets, and defenses that they may have or have had
against RELEASEES and hereby release, forever discharge and agree to hold
harmless RELEASEES from and against all actions, causes of action, claims,
suits, contracts, controversies, penalties, offsets, or damages, whether in law
or equity, and whether known or unknown, that may have occurred prior to the
date of this Release, including, but not limited to, those arising in connection
with the Convertible Debentures and Warrants Purchase Agreement, dated as of
November 22, 2000, between AMRO International, S.A. and Sedona Corporation,
Sedona Corporation's 5% Convertible Debentures Due March 22, 2001 (as amended by
an Agreement, dated as of April 26, 2001), and related Warrants and those
asserted or that could have been asserted as a claim, counterclaim, offset or
defense in, the action captioned AMRO International, SA v. Sedona Corporation,
Index Xx. 00 Xxx. 0000 (XXX), which was pending in Federal District Court for
the Southern District of New York.
This RELEASE shall be governed by the laws of the State of New
York, without regard to conflict of laws principles, and may not be modified,
amended, changed, waived, or discharged, except by an instrument in writing
signed by all parties hereto. The words "RELEASOR" AND "RELEASEES" include all
releasors and all releasees, respectively, under this RELEASE.
