EXHIBIT 10.85
EXCHANGE AGREEMENT
------------------
This Exchange Agreement dated as of March 10, 2004, by and between
Ultrastrip Systems, Inc. (the "Company"), a Florida corporation having its
executive offices at 0000 X.X. Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx, 00000, and Mr.
Xxxxx Xxxxx, whose address is 00000 Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, XX 00000 (the
"Debt Holder").
WHEREAS, as part of its recapitalization plan, the Company proposes,
pursuant to its offer letter dated March 10, 2004 and subject to the terms and
conditions stated therein and herein, to issue shares of its Common Stock, $0.10
par value ("Common Stock") in exchange for the principal amount of the Company's
debt obligations , identified in Appendix A hereto (the "Debt Obligations").
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, and intending to be legally bound hereby, the parties
agree as follows:
1. Exchange of Shares for Debt Obligations. Subject to the terms and
conditions set forth in this Agreement, the Debt Holder agrees to deliver the
Debt Obligations held by the undersigned at the Time of Delivery (as defined in
paragraph 3) and the Company agrees to issue to the Debt Holder at the Time of
Delivery in exchange therefor the number of Shares (rounded to the nearest
share) equal to the quotient of (A) the Value (as hereinafter defined) of the
Debt Obligations divided by (B) the Exchange Value (as hereinafter defined) of
the shares of Common Stock.
2. Pricing. The pricing of one share of Common Stock for the purposes
of this exchange has been arbitrarily established by the Board of Directors of
the Company at $1.30 per share.
(a) The Debt Holder and the Company shall select a date and
time that is not earlier than March 10, 2004 nor later than April 10, 2004 (the
date and time selected being herein collectively referred to as the "Time of
Pricing"). At the Time of Pricing the Value of the Debt Obligations shall be
determined by agreement of Debt Holder and the Company as provided in
subparagraph (b)(i) of this Section.
(b) For the purposes of this agreement, the terms "Value",
"Exchange Value" and "Debt Obligations" shall have the respective meanings set
forth below:
(i) The "Value" of the Debt Obligations to be
exchanged shall be $583,406.00, plus accrued interest for each day to and
including the Time of Delivery.
(ii) The "Exchange Value" of one share of Common
Stock shall be * Board price to be inserted in this Agreement before sending
to debt holders.$1.30 per share, an amount determined in good faith by the Board
of Directors of the Company, in the absence of an established public trading
market for the Common Stock.
(iii) The term "Debt Obligations" shall mean all of
the outstanding obligations of the Company owed to the Debt Holder described in
Appendix A hereto.
3. Delivery of Shares. Stock certificates in definitive form, and in
such denominations and registered in such names as the Debt Holder may request
upon at least five business days prior notice to the Company, for shares of
Common Stock to be delivered in exchange for the Debt Obligations hereunder
shall be delivered by or on behalf of the Company to the Debt Holder, against
delivery by or on behalf of the Debt Holder to the Company of such Debt
Obligations at the executive offices of the Company, 0000 X.X. Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxx, 00000, on April 10, 2004, or at such time and date as the
Company and the Debt Holder may agree (but not more than five business days
after the Time of Pricing).
4. Representation and Warranties of the Company. The Company represents
and warrants to the Debt Holder that the Company has the right, power and
authority to enter into this Agreement and at the Time of Delivery will have the
right, power and authority to issue the shares of Common Stock to the Debt
Holder, and upon delivery of the shares of Common Stock in the exchange
contemplated by this Agreement the Debt Holder will acquire valid and
unencumbered title to the shares of Common Stock.
5. Representations and Warranties of the Debt Holder. The Debt Holder
represents and warrants as follows:
(a) The Debt Holder and its advisors have had a reasonable
opportunity to ask questions of and receive answers from the Company concerning
the terms of the exchange, the indebtedness and capitalization of the Company,
and the shares of Common Stock to be issued in the exchange.
(b) The Debt Holder has been supplied with or has sufficient
access to all reports of the Company filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, and all other
information, including financial statements and other financial information of
the Company, and has been afforded an opportunity to ask questions of and
receive answers from officers of the Company concerning information to which a
reasonable investor would attach significance in making investment decisions.
(c) The Debt Holder is not purchasing the shares of Common
Stock in this exchange as a result of or subsequent to any advertisement,
articles, notice or other communication published in any newspaper, television
or radio or presented at any seminar or meeting, or any solicitation of a
subscription by a person not previously known to the Debt Holder in connection
with investments in securities generally.
----------
*Board price to be inserted in this Agreement before sending to debt holders.
2
(d) The Debt Holder has adequate means of providing for its
current financial needs and contingencies, is able to bear the substantial
economic risks of an investment in the shares of Common Stock for an indefinite
period of time, has no need for liquidity in such investment, has made
commitments to investments that are not readily marketable which are reasonable
in relation to the Debt Holder's net worth and can afford a complete loss of
such investment.
(e) The Debt Holder has such knowledge and experience in
financial, tax and business matters so as to enable it to utilize the
information made available to it in connection with the offering of the shares
of Common Stock to evaluate the merits and risks of an investment in the shares
of Common Stock and to make an informed decision with respect to the exchange of
existing Debt Obligations for shares of Common Stock on the terms set forth
herein.
(f) The Debt Holder is not relying on the Company with respect
to the tax and other economic considerations of the exchange and an investment
in the shares of Common Stock to be issued in the exchange, and the Debt Holder
has relied on the advice of, or has consulted with, only the Debt Holder's own
advisors.
(g) The Debt Holder has full right and power to perform
pursuant to this Agreement and purchase shares of Common Stock of the Company
issued in the exchange and, if the Debt Holder is an entity, is authorized and
otherwise duly qualified to purchase and hold the shares of Common Stock and to
enter into this Agreement.
(h) The Debt Holder fully understands that the shares of
Common Stock have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or under the securities laws of certain states
and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless the securities are subsequently registered under the Securities Act and
under the applicable securities laws of such states or unless an exemption from
such registration is available in the opinion of counsel reasonably satisfactory
to counsel for the Company. The Debt Holder is purchasing the shares of Common
Stock in the exchange for the Debt Holder's own account, for investment and not
with a view to resale or distribution except in compliance with the Securities
Act and applicable state securities laws. The Debt Holder further acknowledges
that there is presently no market for the purchase and sale of the shares of
Common Stock and that no such market may ever exist.
(i) The Debt Holder agrees to the placement of a legend on any
certificate or other document evidencing the shares of Common Stock, stating
that they have not been registered under the Securities Act.
(j) The representations, warranties and agreements contained
herein and in the related Investor Qualification Questionnaire are true and
correct as of the date hereof and may be relied upon by the Company, and the
Debt Holder will notify the Company immediately of any adverse change in any
such representations and warranties which may occur prior to the acceptance of
this Agreement by the Company and will promptly send the Company written
confirmation thereof. The representations, warranties and agreements of the Debt
Holder contained herein shall survive the execution and delivery of this
Agreement and the purchase of the shares of Common Stock in this exchange.
3
6. Covenants of the Company. The Company covenants and agrees with you
that the Company will furnish you with copies of the Company's annual report (on
Form 10-KSB/A) for the year ended December 31, 2002, the proxy statement dated
November 17, 2003, and any other periodic filings made with the Securities and
Exchange Commission prior to the date of this Agreement.
7. Status of Debt Holder. The Debt Holder further represents and
warrants that the Debt Holder is an "accredited investor" within the meaning of
the Securities Act and regulations promulgated thereunder.
8. Florida Securities Law Matters.
THE COMMON STOCK HAS NOT BEEN REGISTERED UNDER THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT (THE "FLORIDA ACT") IN RELIANCE UPON
EXEMPTION PROVISIONS CONTAINED THEREIN. SECTION 517.061 (11) (A) (5) OF THE
FLORIDA ACT PROVIDES THAT ANY DEBT HOLDER OF SECURITIES IN FLORIDA WHICH ARE
EXEMPT FROM REGISTRATION UNDER SECTION 517.061 (11) OF THE FLORIDA ACT MAY
WITHDRAW HIS [OR ITS] AGREEMENT TO EXCHANGE HIS [OR ITS] EXISTING DEBT
OBLIGATIONS FOR SHARES OF COMMON STOCK WITHIN THREE BUSINESS DAYS AFTER HE [OR
IT] TENDERS HIS [OR ITS] EXISTING DEBT OBLIGATIONS FOR SUCH SECURITIES.
THEREFORE, ANY FLORIDA RESIDENT WHO PURCHASES SECURITIES IS ENTITLED TO EXERCISE
THE FOREGOING STATUTORY RESCISSION RIGHT WITHIN THREE BUSINESS DAYS AFTER
TENDERING HIS [OR ITS] DEBT OBLIGATIONS FOR SECURITIES BY TELEPHONE, TELEGRAM OR
LETTER NOTICE TO THE CORPORATION. ANY TELEGRAM OR LETTER SHOULD BE SENT OR
POSTMARKED PRIOR TO THE END OF THE THIRD BUSINESS DAY. A LETTER SHOULD BE MAILED
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ENSURE ITS RECEIPT AND TO
EVIDENCE THE TIME OF MAILING. ANY ORAL REQUESTS SHOULD BE CONFIRMED IN WRITING.
9. Miscellaneous.
(a) This Agreement has been duly and validly authorized,
executed and delivered by the Debt Holder and constitutes the valid, binding and
enforceable agreement of the Debt Holder. If this Agreement is being completed
on behalf of an entity, it has been completed and executed by an authorized
party.
(b) This Agreement and any documents referred to herein
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and together supersede all prior discussions or agreements
in respect hereof.
4
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day first written above.
Ultrastrip Systems, Inc.
By_____________________________________
Xxxxxxx X. Xxxxxxx, President
Debt Holder
By____________________________________
Mr. Xxxxx Xxxxx
5
APPENDIX A
DEBT HOLDER OBLIGATIONS
-----------------------
Promissory Note from Ultrastrip Systems, Inc. to Mr. Xxxxx Xxxxx dated April 11,
2002 that totals $583,406, including interest.
