Exhibit 10.9
JOINDER AGREEMENT AND WAIVER
JOINDER AGREEMENT AND WAIVER dated as of October 26, 2001 by and among
RMH TELESERVICES, INC., a Pennsylvania corporation (the "Company"), TEXAS
MARGINS, LLC, a Nevada limited liability company ("TMLLC"), GLADSHARE I, LLC, a
Nevada limited liability company ("Gladshare"), JFO I, LLC, a Nevada limited
liability company ("JFO," and with TMLLC and Gladshare, the "New Investors"),
the Investors listed on Exhibit A hereto (the "Initial Investors" and, with the
New Investors, the "Investors"), and THINKEQUITY PARTNERS, LLC (the "Agent").
WITNESSETH:
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WHEREAS, pursuant to that certain Stock Purchase Agreement (the
"Original Stock Purchase Agreement") dated as of September 28, 2001, the Company
has issued to the Initial Investors 2,426,982 shares (the "Initial Investor
Shares") of the common stock, no par value per share ("Common Stock"), of the
Company and warrants (the "Initial Investor Warrants") to purchase 808,991
shares of Common Stock (the "Initial Investor Warrant Shares") and pursuant to
that certain engagement letter between the Company and the Agent dated as of
September 28, 2001 (the "Engagement Letter"), the Company has issued to the
Agent warrants (the "Agent Warrants", and together with the Initial Investor
Warrants, the "Initial Warrants") to purchase 121,349 shares of Common Stock
(the "Agent Warrant Shares," and together with the Investor Warrant Shares, the
"Initial Warrant Shares"); and
WHEREAS, the Company, the Initial Investors and the Agent have entered
into a Registration Rights Agreement dated of September 28, 2001 (the
"Registration Rights Agreement"), pursuant to which the Company shall cause to
be registered for sale the Initial Investor Shares and the Initial Warrant
Shares, as well as shares of Common Stock issuable upon the exercise of any
additional warrants issued to the Initial Investors pursuant to the Original
Stock Purchase Agreement; and
WHEREAS, the Company and the New Investors desire that the New
Investors acquire 217,804 shares of Common Stock (the "New Investor Shares" and,
with the Initial Investor Shares, the "Investor Shares") and warrants ("the New
Warrants") to purchase 72,601 shares of Common Stock (the "New Warrant Shares")
from the Company, all pursuant to substantially the same terms and conditions as
set forth in the Original Stock Purchase Agreement and the Registration Rights
Agreement and that the New Investors receive a placement fee equal to $100,000
and warrants to purchase an additional 10,890 shares of Common Stock, which
additional warrants and shares shall for all purposes hereunder be included in
the definition of New Warrants and New Warrant Shares, respectively, all in the
respective amounts set forth on Exhibit B; and
WHEREAS, the issuance of the Initial Investor Shares and the Initial
Warrants was made, the issuance of the New Investor Shares and the New Warrants
is now being made, and the issuance of the Initial Warrant Shares and the New
Warrant Shares will be made, pursuant to the authority of the Board of Directors
of the Company (the "Board") granted at a Special Meeting of the Board held on
September 25, 2001 and further granted at a Special Meeting of the Board held on
September 28, 2001; and
WHEREAS, the Initial Investors and the Agent wish to acknowledge and
consent to the sale and issuance of the New Investor Shares, the New Warrants
and the New Warrant Shares by the Company to the New Investors.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Acknowledgement With Respect to Participation by the New
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Investors. The Initial Investors and the Agent hereby agree and acknowledge
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that:
(a) the issuance of the New Shares and the New Warrants to the New
Investors, the issuance of the New Warrant Shares upon the exercise of the New
Warrants and the execution and delivery by the New Investors and the Company of
the Stock Purchase Agreement dated as of October __, 2001 by and among the New
Investors and the Company (the "the New Stock Purchase Agreement") are hereby
consented to by the Initial Investors and the Agent in all respects;
(b) the issuance of the New Shares, the New Warrants and the New
Warrant Shares (which for all purposes under this Joinder Agreement and Waiver
shall be deemed to include any additional warrants (or shares of Common Stock
issued pursuant to the exercise of such additional warrants) issued pursuant to
the New Stock Purchase Agreement) shall not give rise to any rights of first
refusal of the Initial Investors pursuant to Section 6 of, and shall be deemed
not to be "New Securities" as defined in, the Original Stock Purchase Agreement;
(c) the issuance of the New Shares and the New Warrants and the
issuance of the New Warrant Shares upon the exercise of the New Warrants shall
not be deemed to give rise to any anti-dilution rights whatsoever pursuant to
any provisions regarding anti-dilution rights provided in the Initial Warrants;
and
(d) the issuance of the New Shares and the New Warrants and the
issuance of the New Warrant Shares upon the exercise of the New Warrants shall
not give rise to any rights under Section 10(l) of the Engagement Letter.
2. Pro-rata Right of First Refusal. The Company, the Initial
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Investors and the New Investors hereby agree that the rights of first refusal of
the Initial Investors pursuant to Section 6 of the Original Stock Purchase
Agreement and the rights of the New Investors pursuant to Section 6 of the New
Stock Purchase Agreement shall be pari passu among all of the Initial Investors
and all of the New Investors together as one group, as if all the Initial
Investors and all the New Investors had executed the Original Stock Purchase
Agreement and that Sections 4, 6 and 7 of either the Original Stock Purchase
Agreement or the New Stock Purchase Agreement shall not be amended unless both
agreements are amended jointly upon the vote of Investors holding two-thirds of
the Investor Shares.
3. Joinder to Registration Rights Agreement. The Company, the
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Initial Investors, the Agent and the New Investors hereby agree that the New
Investors shall be considered "Purchasers" and/or "Holders" under the
Registration Rights Agreement, and that they are hereby added as parties to the
Registration Rights Agreement, as if the Company, the Initial Investors, the
Agent and the New Investors all had executed the Original Registration Rights
Agreement as of September 28, 2001.
4. Additional Warrants. The Company, the Initial Investors and the
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Agent hereby agree and acknowledge that the issuance of any additional warrants
(the "Additional Warrants") (or the issuance of any Shares issuable upon the
exercise of any such Additional Warrants) pursuant to the provisions of Section
4 of the Original Stock Purchase Agreement or Section 4 of the New Stock
Purchase Agreement shall not give rise to any rights of first refusal under
either of such Stock Purchase Agreements or be deemed to give rise to any anti-
dilution rights whatsoever pursuant to any provisions regarding anti-dilution
rights provided in any of the
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Initial Warrants or the New Warrants.
5. Miscellaneous. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument. This Agreement shall be governed by
and construed under the laws of the Commonwealth of Pennsylvania, without giving
any effect to the choice of law or conflict of law provision of rule (whether of
the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
RMH TELESERVICES, INC.,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
NEW INVESTORS:
TEXAS MARGINS, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
GLADSHARE I, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
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JFO I, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Member
INITIAL INVESTORS:
ARDSLEY OFFSHORE FUND LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Agent
ARDSLEY PARTNERS FUND I LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Partner
ARDSLEY PARTNERS FUND II LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Partner
ARDSLEY PARTNERS INSTITUTIONAL
FUND LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Partner
AUGUSTA PARTNERS LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Partner
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CONSTABLE CAPITAL
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇
Title:
SAFECO Common Stock Trust
SAFECO Growth Opportunities Fund
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
HH MANAGED ACCOUNT I LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Agent
POTOMAC CAPITAL PARTNERS, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member of the General
Partner
▇▇ ▇▇▇▇▇▇▇ PACIFIC MASTER FUND UNIT TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Portfolio Manager/ Mg. Director
SAFECO Resources Series Trust
Growth Opportunities Portfolio
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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THE PAISLEY FUND, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Portfolio Manager / Mg. Director
WOODVILLE LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
AGENT:
THINKEQUITY PARTNERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner
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EXHIBIT B
Sale Placement Placement State of
Investor Name Closing ($) Shares (#) Warrants (#) Warrants (#) Fee ($) Domicile
Gladshare 1, LLC $ 222,935 23,122 6,514 977 $ 10,616 Texas
Texas Margins, LLC $ 732,769 76,000 66,087 9,913 $ 34,894 Texas
JFO 1, LLC $1,144,296 118,682 0 0 $ 54,490 Texas
Total $2,100,000 217,804 72,601 10,890 $100,000
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