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EXHIBIT 10.2
PGFM DRAFT 5/03/00
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
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FUNDING AND SUBSCRIPTION AGREEMENT
TO PURCHASE COMMON STOCK
OF
ORION TECHNOLOGIES, INC.
(A NEVADA CORPORATION)
THIS FUNDING AND SUBSCRIPTION AGREEMENT ("Agreement") is made as of May
___, 2000, by and between OIF OPTIMUM INVESTMENT FINANCE AG, a _______________
corporation ("OIF"), and ORION TECHNOLOGIES, INC, a Nevada corporation
("ORION").
WITNESSETH
WHEREAS, ORION desires to continue to expand its operations through the
development of its existing subsidiaries, as well as through the acquisition of
additional established companies within the telecommunications and electronic
commerce industries.
WHEREAS, XXXXX has offered to sell, and OIF desires to acquire, up to
1,000,000 shares (the "Shares") of ORION's common stock, par value $.001 (the
"Common Stock") at a purchase price of $4.50 per share, subject to adjustment as
set forth in this Agreement.
WHEREAS, ORION and OIF desire to document and implement their
understanding in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings herein and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
SECTION 1. Purchase and Sale of Shares. XXXXX hereby agrees to sell to
OIF and OIF hereby agrees to purchase the Shares, in the installments and on the
terms and conditions described herein. To effectuate the purchase of Shares, OIF
shall make available the applicable purchase price described in Sections 2 and 3
below ("Purchase Price"), in an account designated by ORION. Upon receipt of the
Purchase Price, ORION will instruct its transfer agent to issue and deliver a
certificate representing the corresponding number of Shares to OIF or its
nominee.
SECTION 2. Quarterly Funding. OIF has committed to provide ORION with
the working capital and operating funds necessary for the continued operations
of ORION and its subsidiaries during the twelve month period commencing on May
1, 2000. OIF hereby agrees to pay $US 750,000 ("Quarterly Funding") to ORION on
each of the following quarterly dates: May 15, 2000, August 15, 2000, November
15, 2000, and February 15, 2001. Upon receipt of each Quarterly Funding payment,
ORION will instruct its transfer agent to issue 166,667 Shares of Common Stock,
at a rate equal to the "Per Share Price" as determined by Orion's Board of
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Directors. ORION's Board of Directors will determine the "Per Share Price" after
consultation with OIF, and consideration of such factors as the current price
and trading volume of the Common Stock on the OTC Bulletin Board, and the
availability of other sources of financing. Notwithstanding the immediately
preceding sentence to the contrary, in no event will the "Per Share Price" be
less than $US 4.00.
SECTION 3. Additional Funding. In addition to the Quarterly Funding
defined above, OIF agrees to provide additional funds ("Acquisition Funding")
necessary for the expansion of ORION's operations through those acquisitions,
mergers or strategic partnerships approved by ORION's Board of Directors during
the twelve month period commencing on May 1, 2000. As consideration for such
Acquisition Funding, ORION will provide OIF with Shares, up to the total Shares
purchasable under this Agreement, at a rate equal to the "Per Share Price"
determined by ORION's Board of Directors. OIF will not be obligated to provide
Acquisition Funding in excess of $1,500,000 in the aggregate.
SECTION 4. OIF Representations and Warranties. OIF hereby acknowledges,
represents and warrants to, and agrees with, XXXXX as follows:
(a) Offshore Transaction; Offering Restrictions; Resale
Restrictions.
(i) OIF is not, and at the time the offer to purchase
the Shares was made to OIF was not, a "U.S. person"* as that term is
defined under Regulation S ("Regulation S") of the Securities Act of
1933, as amended (the "Securities Act").
(ii) OIF is outside of the United States* as of the date
of the execution and delivery of this Subscription Agreement.
(iii) No resale of any of the Shares subscribed for under
this Agreement has been pre-arranged with a purchaser in the United
States.
(iv) OIF is not a Distributor* and is not purchasing
Common Stock with the intent of distributing the Shares on behalf of
ORION or a Distributor or any of their affiliates.
(v) OIF is purchasing the Shares for its own account
(and/or for the account of other non-U.S. Persons who are outside of the
United States) and not for the account or benefit of any U.S. Person.
(vi) OIF hereby covenants and agrees to resell any of
the Shares only in accordance with the provisions of Regulation S,
pursuant to registration of the Shares under the Securities Act or
pursuant to an available exemption from registration under the
Securities Act.
(vii) The certificates representing the Shares will bear
a legend substantially as follows:
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* See Appendix A attached hereto for definitions of "U.S. person", "distributor"
and "United States" under Regulation S.
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THE SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE SECURITIES
ACT, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM REGISTRATION; HEDGING TRANSACTIONS
INVOLVING THE COMMON STOCK MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT. THE ISSUER WILL REFUSE TO REGISTER ANY
TRANSFER OF SUCH SECURITIES NOT MADE IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S AND MAY REQUIRE, AS A CONDITION TO ANY
REGISTRATION OF TRANSFER, AN OPINION OF COUNSEL, A CERTIFICATE OR
SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT THE TRANSFER HAS BEEN MADE IN ACCORDANCE WITH REGULATION
S PROMULGATED UNDER THE SECURITIES ACT.
(viii) Prior to reselling any of the Shares during the
Restricted Period (as defined below), OIF will send a notice to the
potential purchaser that such potential purchaser may be subject to the
restrictions of Regulation S during the Restricted Period. For purposes
of this Subscription Agreement, the "Restricted Period" means a period
that commences on the later of the date upon which the Shares were first
offered to persons other than Distributors in reliance upon Regulation S
or the date of which the related Purchase Price is received by XXXXX and
expires one year thereafter.
(ix) Neither OIF nor any entity controlled by it has a
short position in the Common Stock nor will have a short position in the
Common Stock at any time prior to the expiration of the Restricted
Period.
(x) The purchase of the Shares by OIF is not a
transaction that is part of any plan or scheme to evade the registration
provisions of the Securities Act.
(b) OIF Awareness.
(i) OIF has the financial ability to bear the economic
risk of its investment in the Shares (including its possible loss) and
has no need for liquidity with respect to its investment in the Shares.
(ii) OIF has such knowledge and experience in financial
and business matters so as to be capable of evaluating the merits and
risks of an investment in the Shares and has obtained, in its judgment,
sufficient information from ORION to evaluate the merits and risks of an
investment in the Shares.
(iii) OIF and each person for whose account it is
purchasing Shares is an "Accredited Investor" as that term is defined in
Rule 501(a) promulgated under Regulation D of the Securities Act, which
definition is set forth in Appendix A.
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(iv) The Shares are not being subscribed for by OIF as a
result of any material information about XXXXX's affairs that has not
been publicly disclosed.
(v) OIF has been provided an opportunity to obtain any
additional information concerning ORION and the Common Stock, and all
other information to the extent ORION possesses such information or can
acquire it without unreasonable effort or expense and specifically
acknowledges its awareness of the latest press releases made by ORION
and XXXXX's proxy statement for its 1999 annual meeting of stockholders,
a copy of which was provided to OIF.
(vi) OIF has been given the opportunity to ask questions
of, and receive answers from the Management of ORION, and has been given
the opportunity to obtain such additional information necessary to verify
the accuracy of the information which was otherwise provided in order for
it to evaluate the merits and risks of an investment in the Shares to the
extent ORION possesses such information or can acquire it without
unreasonable effort or expense.
(vii) OIF has determined that an investment in the Shares
is a suitable investment for it and that at its time it could bear a
complete loss of its investment.
(viii) In making its decision to purchase the Shares
herein subscribed for, OIF has relied solely upon independent
investigations made by it. OIF is not relying on ORION with respect to
tax and other economic considerations involved in its investment.
(ix) OIF further understands that ORION is under no
obligation to register the Shares on its behalf or to assist it in
complying with any exemption from such registration under the Securities
Act. OIF also understands that sales or transfers of the Shares, or any
part thereof, may be further restricted by provisions of the applicable
state securities laws.
(x) Pursuant to Paragraph 3.1(e) and Rule
903(c)(3)(iii)(B)(4) under the Securities Act, OIF acknowledges and
agrees that XXXXX has agreed for the benefit of all holders of the Shares
that it will refuse to register any transfer of the Shares not made in
accordance with the provisions of Regulation S.
(xi) OIF understands that XXXXX will not be registered
as an investment adviser under the Investment Advisers Act of 1940, and
ORION will not be registered as an investment company under the
Investment Company Act of 1940 or as a "dealer" under the Securities
Exchange Act of 1934, in reliance upon the availability of exemptions
from the registration provisions of such statutes.
(xii) OIF acknowledges that (i) ORION has no significant
financial and operating history; (ii) no federal or state agency has
passed upon the Shares or made any findings or determination as to the
fairness of its investment; (iii) an investment in ORION is an illiquid
investment and OIF must bear the economic risk of its investment for an
indefinite period of time; (iv) the management of ORION may be
indemnified against liabilities sustained by it by reason of its serving
as the management of ORION; (v) ORION has not yet recorded revenues;
(vi) ORION does not have publicly available current financial
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information; and (vii) ORION does not now have the officers and
directors or other management necessary to ensure the success of ORION.
(xiii) OIF acknowledges that holders of the Shares will
have no right to participate in management of ORION or in the conduct of
its business. In addition, XXXXX may continue to offer additional Shares
for sale without the consent of the holders of the Shares.
(xiv) OIF acknowledges that once signed, this Agreement
is irrevocable by OIF and constitutes a binding agreement enforceable
against OIF.
(c) Reliance. The representations, warranties, agreements,
undertakings and acknowledgments made by OIF in this Agreement are made with the
intent that they be relied upon by ORION and its management in determining OIF's
suitability as a purchaser of the Shares. In addition, OIF undertakes to notify
ORION immediately of any change in any representation, warranty or other
information relating to OIF set forth herein. XXXXX is entitled to rely on the
representations made by OIF now and after the Shares are issued.
SECTION 5. Representations and Warranties of ORION. XXXXX hereby
acknowledges, represents and warrants to, and agrees with, XXX as follows:
(a) The Shares when purchased by OIF and upon receipt of the
Additional Capital for such Shares by ORION shall be validly issued, fully paid
and non-assessable.
(b) ORION is not a reporting issuer as defined by Rule 902 of
Regulation S.
(c) Offshore Transaction.
(i) ORION has not offered the Shares to any person in
the United States or to any U.S. person as that term is defined in
Regulation S.
(ii) ORION has no reason to believe that the purchase of
any Shares has been prearranged with a purchaser in the United States.
(d) In connection with the offering of the Shares, XXXXX has
not engaged in any "directed selling efforts" (as that term is defined in
Regulation S) nor has ORION conducted any general solicitation relating to the
offering of the Shares to persons residing within the United States or to U.S.
persons.
(e) Pursuant to Rule 903(c)(3)(iii)(B)(4) under the Securities
Act, XXXXX hereby agrees for the benefit of all holders of the Shares that it
will refuse to register any transfer of the Shares not made in accordance with
the provisions of Regulation S and this Subscription Agreement.
SECTION 6. Indemnity. OIF and XXXXX each hereby agrees to indemnify
and hold harmless the other and its respective officers, directors and agents
and each other person, if any, who controls or is controlled by any thereof,
within the meaning of Section 15 of the Securities Act, against any and all
loss, liability, claim, damage and expense whatsoever (including, but not
limited
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to, any and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation commenced or threatened or any
claim whatsoever) arising out of or based upon any false representation or
warranty or breach or failure by the indemnifying party herein or in any other
document furnished in connection with this transaction by the indemnifying party
to the other party or any of it officers, directors, agents or controlling
person.
SECTION 7. Miscellaneous.
(a) Modification. Neither this Agreement nor any provision
hereof shall be modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
(b) Notices. Any notice, demand or other communication which
any party hereto may be required, or may elect, to give to anyone interested
hereunder shall be sufficiently given if (a) delivered by a recognized national
courier service to such address as may be given herein or (b) delivered
personally at such address.
(c) Binding Effect. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
permitted assigns.
(d) Entire Agreement. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes and prior subscription agreement signed by OIF, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
(e) Assignability. This Agreement is not transferable or
assignable by either party.
(f) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada applicable to
contracts made and to be performed entirely within such state.
(g) Counterparts; Fax Execution. This Agreement may be
executed through the use of separate signature pages or in any number of
counterparts, and each of such counterparts shall, for all purposes, constitute
one agreement binding on all the parties, notwithstanding that all parties are
not signatories to the same counterpart. This Agreement may be signed by fax
delivery of a signed signature page to the other party and such fax execution
shall be valid in all respects.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.
OIF Investment Finance AG Orion Technologies, Inc.
By: ________________________ By: ________________________
Xxxxx Xxxxxxxxxx X. Xxxxx Xxxxxxxx
Manager President
Date:_______________________ Date:______________________
Address for Notices: Address for Notices:
Rennweg 00 0000 Xxxxxxxx Xxxx
XX-0000 Xxxxxx Xxxxx 000
Xxxxxxxxxxx Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx Attention: X. Xxxxx Xxxxxxxx
Share Issuance/Delivery Instructions:
Register Shares in name of:
OIF Optimum Investment Finance AG (unless alternative issuance instructions are
separately provided by OIF Optimum Investment Finance AG with respect to any
client of OIF)
Deliver Share Certificate(s) to:
OIF Optimum Investment Finance AG
Rennweg 29
CH-8001 Zurich
Switzerland
Attention: Xxxxx Xxxxxxxxxx
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APPENDIX A
CERTAIN DEFINITIONS
A. "ACCREDITED INVESTOR" - Effective April 19, 1989, the following are
"Accredited Investors" within the meaning of Rule 501(a) of Regulation D under
the Securities Act of 1933 (the "Securities Act"):
1. An individual whose net worth, together with that of its
spouse, exceeds $1,000,000.
2. An individual who had individual income in excess of
$200,000 in each of the two most recent years or joint income with that
individual's spouse in excess of $300,000 in each of those years and who
reasonably expects to reach the same income level its year.
3. A bank as defined in Section 3(a)(2) of the Securities
Act, or a savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its individual
capacity or fiduciary capacity.
4. A broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
5. An insurance company as defined in Section 2(13) of the
Securities Act.
6. An investment company registered under the Investment
Company Act of 1940 or a business development company as defined in Section
2(a)(48) of that Act.
7. A Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
8. An employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, if:
a. the decision to invest in the entity is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which
is either a bank, savings and loan association, insurance
company, or registered investment adviser, or
b. the plan has total assets in excess of $5,000,000, or
c. the plan is a self-directed plan with investment decisions
made solely by persons who are Accredited Investors.
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9. A private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940.
10. A charitable organization described in Section 501(c)(3)
of the Internal Revenue Code, corporation, Massachusetts or similar business
trust or partnership, not formed with the specific purpose of acquiring the
securities, with total assets in excess of $5,000,000.
11. A trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the
Securities Act.
12. Any director, executive officer or general partner of the
issuer of the securities being offered or sold, or any director, executive
officer or general partner of a general partner of that issuer.
13. A plan established and maintained by a state, its
political subdivisions or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees with total assets in
excess of $5,000,000.
14. An entity in which all of the equity owners are Accredited
Investors.
B. "DISTRIBUTOR" means any underwriter, dealer or other person who
participates, pursuant to a contractual agreement, in the distribution of the
securities offered or sold in reliance on Regulation S of the Securities Act of
1933, as amended.
C. "U.S. PERSON" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or
incorporated under the laws of the United
States;
(iii) Any estate of which any executor or administrator
is a U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in
the United States;
(vi) Any non-discretionary account or similar account
(other than an estate or trust) held by a dealer or
other fiduciary organized, incorporated or an
individual resident in the United States for the
benefit or account of a U.S. person;
(vii) Any discretionary account or similar account (other
than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an
individual) resident in the United States; and
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(viii) Any partnership or corporation if: (a) organized or
incorporated under the laws of any foreign
jurisdiction; and (b) formed by a U.S. person
principally for the purpose of investing in
securities not registered under the Act, unless it
is organized or incorporated, and owned, by
Accredited Investors (as defined in Rule 501(a))
who are not natural persons, estates or trusts.
(ix) Any discretionary account or similar account (other
than an estate or trust) held for the benefit or
account of a non-U.S. person by a dealer or
other professional fiduciary organized,
incorporated, or (if an individual) resident in
the Untied States shall not be deemed a "U.S.
person."
(x) Any estate of which any professional fiduciary
acting as executor or administrator is a U.S.
person shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate
who is not a U.S. person has sole or shared
investment discretion with respect to the
assets of the estate; and
(ii) The estate is governed by foreign law.
(xi) Any trust of which any professional fiduciary
acting as trustee is a U.S. person shall not be
deemed a U.S. person if a trustee who is not a U.S.
person has sole or shared investment discretion
with respect to the trust assets, and no
beneficiary of the trust (and no settlor if the
trust is revocable) is a U.S. person.
(xii) An employee benefit plan established and
administered in accordance with the law of a
country other than the United States and customary
practice and documentation of such country shall
not be deemed a U.S. person.
(xiii) Any agency or branch of a U.S. person located
outside the United States shall not be deemed a
"U.S. person" if:
(iii) The agency or branch operates for valid
business reasons; and
(iv) The agency or branch is engaged in the
business of insurance or banking and is subject to
substantive insurance or banking regulation,
respectively, in the jurisdiction where located.
(xiv) The International Monetary Fund, the International
Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the
United Nations, and their agencies, affiliates and
pension
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plans, and any other similar international
organizations, their agencies, affiliates and
pension plans shall not be deemed "U.S.
persons."
D. "UNITED STATES" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia.
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