EXHIBIT 4.11
PURCHASE AGREEMENT
PURCHASE AGREEMENT made as of December 29, 1995 by and between IMRE
CORPORATION, a Delaware corporation (hereinafter referred to as "Seller") and
the purchasers listed on Schedule A hereto (each of which is hereinafter
referred to as "Buyer"). The use of the term Buyer herein shall in all cases
refer to a Buyer severally and not jointly.
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Securities of Seller (as hereinafter defined) subject to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, the parties hereto
hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES.
1.1 PURCHASE AND SALE OF SECURITIES. In reliance upon the
representations and warranties made herein and subject to the terms and
conditions hereof, each Buyer intending to be legally bound hereby agrees,
severally, to purchase from Seller and Seller agrees to issue and sell to Buyer
at the Closing (as herein defined) that aggregate principal amount of Seller's
Senior Bridge Debentures due July 1, 1996 (the "Debentures") as set forth
opposite each Buyer's name on Schedule A hereto.
The Debentures to be sold and purchased at the Closing under this
Agreement are hereinafter sometimes referred to as the "Securities".
1.2 PURCHASE PRICE AND PAYMENT FOR THE SECURITIES. In consideration
of the sale of the Securities, Buyer agrees that at the Closing, assuming the
conditions specified in Section 6.1 are satisfied or waived, it will pay to
Seller by check or by wire transfer the sum set forth as purchase price next to
Buyer's name on Schedule A hereto.
1.3 TIME AND PLACE CLOSING. The purchase and sale of the Securities
shall take place at such place as may be fixed by Seller (each such closing
herein called "Closing"). The initial Closing of the Securities shall be held
at 11:00 a.m. on December 29, 1995 at such place as may be fixed by mutual
agreement of Buyer and Seller. The Company may sell additional Securities at a
price per Security not less than that of the Securities purchased in the initial
Closing to such other buyer(s) as the Company's Board of Directors shall select.
Any buyer in a subsequent closing shall execute a counterpart signature page to
this Agreement and any additional sales of Securities shall be deemed to be made
hereunder.
1.4 TRANSFER OF THE SECURITIES. At the Closing, Seller shall deliver
or cause to be delivered to Buyer the Securities free and clear of all
restrictions upon transfer (other than restrictions under federal or state
securities laws) liens, pledges, charges, and encumbrances of any kind.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER.
2.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Seller hereby makes
the following representations and warranties contained in this Section 2.
2.2 ORGANIZATION AND QUALIFICATION OF SELLER. Each of Seller and the
subsidiaries of the Seller is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation with
full power and authority to own or lease its properties and to conduct the
business heretofore conducted by it in the manner and in the places where such
properties are owned or leased or such business is conducted by it. The copies
of Seller's corporate charter and of Seller's By-laws as amended to date made
available to Buyer are complete and correct. Seller is duly registered or
qualified to do business as a foreign corporation in the State of Washington and
neither the character or location of the properties owned or leased by Seller
nor the nature of the business transacted by Seller makes registration or
qualification in any other jurisdiction necessary, except where failure to so
qualify would not have a material adverse effect on Seller.
2.3 AUTHORITY OF SELLER; NO CONFLICTS.
(a) Seller has full power and authority to enter into and
perform this Agreement, issue and sell the Securities, and consummate the
transactions contemplated hereby. When issued in accordance with this
Agreement, the Securities will be validly issued, fully paid and nonassessable.
All necessary action, corporate or otherwise, has been taken by Seller to
authorize the execution, delivery, and performance of this Agreement, and the
Agreement is the valid and binding obligation of Seller enforceable in
accordance with its terms.
(b) The execution and delivery of this Agreement by Seller does
not, and the issuance of the Securities and the performance of the terms hereof
by Seller will not, constitute a default or event of default under, or violate,
conflict with, or result in any breach of the terms, conditions, or provisions
of: (i) the corporate charter or By-laws of Seller; (ii) the laws or
regulations of any jurisdiction or any other governmental requirements; or (iii)
any material mortgage, lien, lease, agreement, contract, instrument, order,
arbitration award, injunction, judgment or decision to which Seller is a party
or by which it or its property is bound or materially affected. Except
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for filings with the Securities and Exchange Commission (the "Commission") and
applicable state securities administrators, no approval, authorization, license,
permit or other action by, or filing with, any federal, state, or municipal
commission, board, agency or other governmental authority is required in
connection with the execution and delivery by Seller of this Agreement, the
issuance of the Securities, or the consummation of the transaction contemplated
hereby.
(c) Unless otherwise indicated in the Disclosure Documents (as
defined in Section 2.5 hereof), Seller holds all right, title and interest in
and to the entire equity interest in each subsidiary free and clear of any
liens, claims and encumbrances.
2.4 CAPITAL STOCK OF SELLER.
(a) The authorized capital stock of Seller is as set forth in
the Seller's Information Statement dated November 13, 1995.
(b) Except as described in the Disclosure Documents (as defined
in Section 2.5 hereof) and except as provided in Exhibit 2.4(b) hereof, Seller
does not have outstanding any securities convertible or exchangeable into shares
of its capital stock and Seller is not party to or bound by any outstanding
subscriptions, warrants, calls, options, rights, commitments, or agreements of
any kind calling for the issuance of shares of any class of its capital stock or
for the issuance of any securities convertible or exchangeable, actually or
contingently, into shares of any class of its capital stock. Except as set
forth in the Disclosure Documents, the issuance and sale of the Securities will
not result in the issuance of, or give rise to any obligation of Seller to issue
any additional shares of capital stock pursuant to any such subscriptions,
warrants, calls, options, rights, commitments or agreements.
(c) Except as otherwise stated in the Disclosure Documents (as
defined in Section 2.5 hereof) and except as provided in Exhibit 2.4(c) hereof:
(i) there are no preemptive or similar rights to purchase or otherwise acquire
shares of any class of the capital stock or other securities of Seller pursuant
to any provision of law, Seller's corporate charter or by-laws, or any agreement
to which Seller is a party or by which it is bound; (ii) there are no
agreements, restrictions or encumbrances binding upon Seller with respect to the
sale or voting of any shares of any class of capital stock of Seller (whether
outstanding or issuable upon conversion or exercise of outstanding securities),
other than restrictions on transfer imposed by state and federal securities
laws; and (iii) Seller is not party to or bound by any agreement or arrangement
requiring
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it to repurchase, redeem, or retire any shares of any class of its capital
stock.
(d) All shares of any class of capital stock and all other
securities heretofore issued by Seller have been issued either: (i) pursuant to
an effective registration under the Securities Act of 1933, as amended (the
"1933 Act"), and qualification under applicable state securities laws; or (ii)
in transactions exempt from such registration and qualification. Seller has not
violated the 1933 Act in connection with the issuance of any shares of any class
of capital stock or other securities prior hereto.
(e) Except for the registration rights granted hereunder and
granted to the purchasers of the Company's 7% Convertible Debentures due
March 31, 2001, and except as otherwise stated in the Disclosure Documents (as
defined in Section 2.5 hereof), no person has any right to cause Seller to
effect the registration under the 1933 Act of any shares of Common Stock or any
other securities (including debt securities) of Seller.
(f) All of Seller's stock option plans, and the number of shares
of Common Stock or other securities authorized and reserved for issuance
thereunder, are described in the Disclosure Documents.
2.5 DISCLOSURE DOCUMENTS.
(a) Seller previously furnished to Buyer copies of the Annual
report on Form 10-K (excluding exhibits) for the year ended December 31, 1994,
copies of its Proxy Statement dated May 17, 1995 and copies of its Quarterly
Report on Form 10-Q for the quarterly periods ended March 31, June 30, and
September 30, 1994, and copies of the Company's Information Statement dated
November 13, 1995 and its current report on Form 8-K dated March 28, 1995 and
its Current Report on Form 8-K dated as of November 22, 1995 filed with the
Commission and any other reports filed by Seller with the Commission under the
Securities and Exchange Act of 1934 ("1934 Act") subsequent to September 30,
1995 and prior to the date hereof (collectively the "SEC Reports"). Seller
previously furnished to Buyer copies of the exhibits to Seller's Annual Report
on Form 10-K for the year ended December 31, 1994 and the other agreements and
documents listed on Schedule B attached hereto and made a part hereof (the SEC
Reports and the material listed on Schedule B are sometimes hereinafter
collectively referred to as the "Disclosure Documents"). None of the
information contained in the Disclosure Documents contains any untrue statements
of a material fact or omits to state any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not
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misleading, which misstatement or omission was not corrected in a subsequent
Disclosure Document.
(b) Each of the balance sheets included in the SEC Reports
(including any related notes and schedules) fairly presents the consolidated
financial position of Seller as of its date, and the other financial statements
included in the SEC Reports (including related notes and schedules), fairly
present the consolidated results of operation or other information included
therein of Seller for the periods or as of the dates therein set forth in
accordance with generally accepted accounting principles consistently applied
during the periods involved (except that the interim reports are subject to
normal recurring adjustments which might be required as a result of year-end
audit, and except as otherwise stated therein). The balance sheet of Seller at
December 31, 1994 included in Seller's Annual Report on Form 10-K for the period
then ended is hereinafter sometimes referred to as the "Balance Sheet."
2.6 TITLE TO PROPERTIES; LIENS; CONDITIONS OF PROPERTIES.
(a) The Seller has good and marketable title to all of its
material assets and properties, and all of its leases of real or personal
property are valid and subsisting, and no default exists under any provision
thereof, the existence of which gives rise to a right of termination by the
lessor; and none of Seller's material assets and property is subject to any
title restriction and except as disclosed in the Disclosure Documents, none of
Seller's material assets and property is subject to any mortgage, pledge, lien,
conditional sale agreement, security interest, encumbrance or other charge.
(b) All machinery and equipment used in Seller's business are in
working order and have been properly maintained, and to the best of Seller's
knowledge, its use of the premises occupied by it is in compliance in all
material respects with all ordinances, rules, regulations, zoning, business and
fire codes, and all other laws and requirements of governmental authorities.
(c) To the best of Seller's knowledge, Seller's use of the
properties occupied by Seller is not in material violation of any law, and no
notice from any governmental body has been served upon Seller or upon any
property occupied by Seller claiming any violation of any such law, ordinance,
code or regulation or requiring, or calling attention to the need for, any work,
repairs, construction, alterations, or installation on or in connection with
said properties which has not been complied with. To the best of Seller's
knowledge, it has the right to use such properties occupied by it for the
operations presently therein conducted.
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(d) Seller has not to its knowledge, illegally released or
disposed of any hazardous or toxic waste, substance, or materials on any
property occupied by it, and Seller does not know of any such release or
disposal by any other party of any such property.
2.7 PAYMENT OF TAXES. Seller has filed, or obtained extension of the
time to file all federal, state and to the best of Seller's knowledge, all local
income, withholding, exercise or franchise tax returns, real estate and personal
property tax returns, sales and use tax returns and other tax returns required
to be filed by it, has accrued or paid all taxes owing by it, except taxes which
have not yet accrued or otherwise become due.
2.8 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date hereof,
Seller has no material liabilities of any nature, whether accrued, absolute,
contingent or otherwise (including without limitation liabilities as guarantor
or otherwise with respect to obligations of others, or liabilities for taxes due
or then accrued or to become due) except liabilities fully reflected or reserved
against in the Balance Sheet or disclosed in the Disclosure Documents. To the
best of Seller's knowledge, there is no threatened material claim, debt,
liability or obligation (including unpaid federal, state, or local taxes) of any
nature or in any amount not fully reserved against in the Balance Sheet or not
fully reflected in the Disclosure Documents.
Except as disclosed in the Disclosure Documents, Seller has no notes
or accounts payable to any person, firm, or corporation which is affiliated with
Seller or to any director, officer, or principal stockholder of Seller.
2.9 CHANGES. Except as set forth in the Disclosure Documents, since
December 31, 1994:
(a) except for continuing operating losses through the date
hereof, there has been no material adverse change in the business, property,
financial condition or results of operations of Seller;
(b) there has not been any direct or indirect redemption,
purchase or other acquisition of any shares of Seller's capital stock by Seller,
or any declaration, setting aside or payment of any dividend or other
distribution by Seller in respect of its capital stock;
(c) except for the transaction contemplated hereby, Seller has
not incurred any material obligation or liability other than in the ordinary
course of its business, has not incurred any contingent liability (as guarantor
or otherwise) with respect to the obligations of others, has not transferred or
otherwise disposed of any material assets other than in the
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ordinary course of business, and has in all other respects conducted its
business in the ordinary course;
(d) there has been no damage, destruction or casualty loss
(whether or not covered by insurance) materially and adversely affecting the
business, property, financial condition or results of operations of Seller; and
(e) Seller has not incurred any obligation or liability to any
stockholder, director, or officer of Seller other than in the ordinary course of
Seller's business and Seller has not made any loans or advances to any of its
stockholders, directors, or officers, except for normal advances or reimbursable
expenses.
2.10 PATENTS, TRADE NAMES, TRADEMARKS AND COPYRIGHTS. All patents,
patent applications, trade names, service marks, registered trademarks,
trademark applications, and copyrights of Seller referred to in the Disclosure
Documents have been duly registered in, filed in or issued by the United States
Patent Office, the United States Register of Copyrights or the corresponding
offices of the other countries indicated, and have been properly maintained and
renewed in accordance with all applicable provisions of law and administrative
regulations in the United States and each such country and are either owned by
Seller or licensed to Seller under license agreements. Seller represents and
warrants that, except as set forth in the Disclosure Documents:
(a) to the best of Seller's knowledge, no other person has an
interest in or right or license to use, or the right to license others to use
said patents, patent applications, trade names, service marks, registered
trademarks, trademark applications, or copyrights;
(b) there are no material claims or demands of any other person
pertaining thereto, and no proceedings have been instituted, or any pending or,
to the best of its knowledge, threatened, which challenge the rights of Seller
in respect thereof;
(c) to the best of Seller's knowledge, none of its patents,
trade names, service marks, trademarks or copyrights is being infringed by
others, or is subject to any outstanding order, decree, judgment or stipulation;
(d) no proceeding charging Seller with infringement of any
adversely held patent, trade name, service xxxx, or copyright has been filed or
to the best of Seller's knowledge, is threatened to be filed; and
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(e) Seller does not, and is not required to, pay any license fee
or royalty to any person for the use of any such patent, trade name, service
xxxx, trademark or copyright.
2.11 TRADE SECRETS AND CUSTOMER LISTS. Except as otherwise stated in
the Disclosure Documents, Seller owns or has the exclusive right to use, all
trade secrets, proprietary information, customer lists, formulas, engineering
drawings, research, engineering, marketing and other data, and engineering,
manufacturing, and production methods, processes, technology, and know-how
(collectively, the "Proprietary Information") required for or incidental to the
business of Seller. Seller has taken all steps necessary or desirable to keep
any confidential information or trade secrets confidential. Seller is not using
or in any way making use of any confidential information or trade secrets of any
third party, including, without limitation, a former employer or any present or
past employee of Seller. Seller represents and warrants that, except as set
forth in the Disclosure Documents:
(a) to the best of Seller's knowledge, no other person has an
interest in or right or license to use, or the right to license others to use,
any of the Proprietary Information.
(b) there are no material claims or demands of any other person
pertaining thereto, threatened, which challenge the rights of Seller in respect
thereto;
(c) to the best of Seller's knowledge, none of the Proprietary
Information is being infringed by others, or is subject to any outstanding
order, decree, judgment or stipulation;
(d) no proceeding charging Seller with infringement of any
adversely held Proprietary Information has been filed, or to the best of
Seller's knowledge, is threatened to be filed; and
(e) Seller does not, and is not required to, pay any license fee
or royalty to any person for the use of any Proprietary Information.
2.12 CONTRACTS. Except as set forth in the Disclosure Documents,
Seller is not in material default under any contract, commitment, plan,
agreement, instrument, license or lease or under any purchase order or sales
order, which default would have a materially adverse effect on the business or
financial condition of Seller.
2.13 UNIONS. The employees of Seller are not now, and never have
been, in their capacity as employees of Sellers,
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represented by any labor union for collective bargaining or any other purpose.
To the best of Seller's knowledge, there is no union organizational activity
involving Seller or its employees.
2.14 EMPLOYEE BENEFIT PLAN. Except as set forth in the Disclosure
Documents, Seller does not have, and has never had, any pension or profit
sharing, savings, thrift or other retirement plans (including multi-employer
plans).
2.15 LITIGATION. Except as described in the Disclosure Documents,
there is no suit, action, or legal, administrative or other proceeding or
governmental investigation pending, or, to the best of Seller's knowledge,
threatened, anticipated or contemplated against Seller or any of its properties,
which, in any single case or in the aggregate, challenges or questions in any
respect, the validity of, or would prevent or hinder the consummation of, the
transactions contemplated by this Agreement or which, if adversely determined,
would have a material adverse effect on the properties, assets, condition
(financial or otherwise) and business of Seller, and there are no unsatisfied or
outstanding judgments, orders, decrees or stipulations which would prevent or
hinder the consummation of the transactions contemplated by this Agreement.
Seller does not know or have grounds to know of any basis for any action or of
any governmental investigation relating to or affecting the properties, assets,
condition (financial or otherwise) and business of Seller.
There are no claims or proceedings against Seller pending, or to the
best of Seller's knowledge, threatened, anticipated or contemplated which, if
valid, would constitute or result in a breach of any representation, warranty or
agreement set forth herein.
2.16 COMPLIANCE WITH LAWS. To the best of its knowledge, except as
otherwise stated in the Disclosure Documents, Seller is in compliance in all
material respects with all laws, ordinances, rules, regulations and other
governmental requirements which apply to the conduct of its business, including,
without limitation, all laws and regulations relating to (i) employment and
labor relations (including all provisions thereof relating to wages, hours,
equal opportunity, discrimination, collective bargaining, and the withholding
and payment of social security and all other taxes), (ii) the pollution of the
environment and the use or disposal of hazardous or toxic wastes, substances or
materials and (iii) government contracts.
Based upon the representations and warranties of Buyer contained in
Section 3 of this Agreement and in the Investor Questionnaire delivered by Buyer
to Seller contemporaneously herewith, the offer and sale of the Securities
pursuant to this
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Agreement are exempt from the registration requirements of the 1933 Act and do
not require registration of the Securities under any state securities or "blue
sky" laws.
2.17 INSURANCE. With respect to its properties and assets, Seller has
in full force and effect insurance against such risks in such amounts as is
customary for similar businesses, including, without limitation, products
liability insurance. Except as described in the Disclosure Documents, to the
best of Seller's knowledge, all sales of products and performance of services by
Seller at all times heretofore were in compliance of all material respects with
all of Seller's representations, warranties and agreements, express or implied,
and laws, rules, regulations, and requirements of governmental authorities.
2.18 WARRANTY OR OTHER CLAIM. Except as described in the Disclosure
Documents, there are no existing, or to the best of Seller's knowledge,
threatened, anticipated or contemplated claims against Seller, for products
which are defective or fail to meet any product warranties.
2.19 LICENSES AND PERMITS. Except as described in the Disclosure
Documents, Seller holds in good standing, or has applied for, all licenses,
permits, authorizations, franchises, consents and orders of all federal, state,
local, and foreign governmental bodies necessary to carry on its business as
reflected or contemplated in the Disclosure Documents and Seller has no reason
to believe that any such licenses, permits, authorizations, franchises, consents
or orders will be revoked, terminated or suspended.
2.20 BURDENSOME AGREEMENTS. Seller is not subject to or bound by any
consent decree, agreement, judgment, decree or order, and, except as otherwise
stated in the Disclosure Documents, does not know of or have grounds to know of
any basis for any action or governmental proceedings, which may materially and
adversely affect the properties, assets, business, prospects or condition,
financial or otherwise, of Seller, or result in the revocation or limitation of
any license, permit or franchise held by the Company.
2.21 TRANSACTIONS WITH INTERESTED PERSONS. Except as described in the
Disclosure Documents, no officer or director of Seller owns directly or
indirectly, on an individual or joint basis, any interest (other than a stock or
other equity interest of less than 5%) in, or serves as an officer or director
of, any customer, competitor or supplier of Seller or any organization which has
a contract or arrangement with Seller.
2.22 MISSTATEMENTS AND OMISSIONS. Seller has not made any material
misstatements of fact or omitted to state any
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material fact necessary or desirable to make complete, accurate and not
misleading every representation, warranty and agreement set forth herein.
2.23 CHANGES IN BUSINESS RELATIONSHIPS. Except as otherwise stated in
the Disclosure Documents, Seller does not know, or have reason to know, of any
changes or threatened changes in the customer or supplier relationships of
Seller, including, without limitation, any discontinuance of contractual
relationships.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER.
3.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Buyer hereby makes the
representations and warranties contained in this Section 3.
3.2 Buyer (A) has been provided with a copy of the Disclosure
Documents and has carefully reviewed the same, (B) has been provided with such
additional information with respect to Seller as Buyer or Buyer's agent or
attorney has requested, and (C) has had the opportunity to discuss such
information with members of the management of Seller and any questions that
Buyer had with respect thereto have been answered to the full satisfaction of
Buyer. Notwithstanding the foregoing, Seller acknowledges that the
representations and warranties provided by Seller in Section 2 hereof have been
relied upon by Buyer in connection herewith.
3.3 Buyer has reviewed the merits and risks of an investment in the
Securities with tax and legal counsel and with an investment advisor to the
extent deemed advisable by Buyer.
3.4 Buyer recognizes that an investment in the Securities involves a
number of significant risks, including, without limitation, any set forth in the
Disclosure Documents; and Buyer, or Buyer's agent or other third party
representative of Buyer, if any, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment therein.
3.5 Buyer is not relying on Seller with respect to the economic, tax
and other considerations to be considered by Buyer relating to this investment.
With respect to such considerations, Buyer has relied on the advice of his own
qualified advisors to the extent Buyer has deemed appropriate.
3.6 ACCREDITED INVESTOR; CONFIDENTIAL INVESTOR QUESTIONNAIRE. Buyer
is an "accredited investor" within the definition set forth in Rule 501(a) under
the 1933 Act. All information included in the Confidential Investor
Questionnaire
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is complete and accurate. Buyer understands that Seller is relying on all such
information.
3.7 SECURITIES NOT REGISTERED. Buyer understands that (i) the
Securities have not been registered for sale under federal or state securities
laws and that the Securities are being offered and sold to Buyer pursuant to one
or more exemptions from the registration requirements of such securities laws;
(ii) in order to satisfy such requirements, Buyer must be acquiring the
Securities for its own account for investment and not with a view to
distribution thereof except in accordance with applicable securities laws and
that the representations and warranties contained in this Section 3 are given
with the intention that Seller may rely thereon for purposes of claiming such
exemption; and (iii) the Securities cannot be sold unless subsequently
registered under such laws or unless an exemption from such registration is
available.
3.8 SECURITIES ACQUIRED FOR INVESTMENT; LIMITATION ON DISPOSITION.
Buyer agrees that the Securities will not be sold or otherwise transferred
unless (i) a registration statement with respect thereto has become effective
under the 1933 Act; or (ii) there is presented to Seller an opinion of counsel
reasonably satisfactory to Seller that registration under federal and state
securities is not required; or (iii) pursuant to the provisions of Rule 144
promulgated under the 1933 Act (and, in the case of (i) and (iii), there is
presented to Seller an opinion of counsel reasonably satisfactory to Seller that
the sale or transfer will not subject Seller to any liability under applicable
state securities laws). Buyer consents that any transfer agent of Seller may be
instructed not to transfer any Securities, unless it receives satisfactory
evidence of compliance with the foregoing provisions, and that there may be
endorsed upon any certificate or other instrument representing the Securities
(and any certificates or instruments issued in substitution therefor), a legend
calling attention to the foregoing restrictions on transferability of such
Securities stating in substance:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNLESS: (1) IN THE OPINION OF COUNSEL, SATISFACTORY TO THE
ISSUER, REGISTRATION IS NOT REQUIRED, OR (2) THE SECURITIES ARE SOLD
IN COMPLIANCE WITH AND PURSUANT TO THE PROVISIONS OF SECURITIES AND
EXCHANGE COMMISSION RULE 144, IF APPLICABLE. ANY PERSON TO OR FROM
WHOM THE WITHIN SECURITIES ARE PLEDGED OR HYPOTHECATED SHALL BE
SUBJECT TO THESE RESTRICTIONS."
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3.9 ACCESS TO INFORMATION. Buyer acknowledges receipt from Seller of
the information referred to in Section 2.5 hereof and access to information if
requested.
SECTION 4. COVENANTS OF SELLER.
4.1 MAKING OF COVENANTS AND AGREEMENTS. Seller makes the covenants
and agreements set forth in this Section 4.
4.2 CONSUMMATION OF AGREEMENT. Seller shall perform and fulfill all
conditions and obligations on its part to be performed and fulfilled under this
Agreement, to the end that the transactions contemplated by this Agreement shall
be carried out. To this end, Seller will obtain all necessary authorizations or
approvals of its Board of Directors to the execution and performance of this
Agreement, which shall include as integral parts thereof the issuance to Buyer
of the Securities upon the terms and conditions set forth in this Agreement.
4.3 CURRENT PUBLIC INFORMATION. Seller will file all reports
required to be filed by it under the 1933 Act or the Securities and Exchange Act
of 1934 (the "1934 Act") and the rules and regulations adopted by the Commission
thereunder, and will take such further action as any Buyer may reasonably
request all to the extent required to enable each such Buyer to sell the
Securities pursuant to (i) Rule 144 adopted by the Commission under the 1933
Act, as such rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission.
4.4 COMPLIANCE WITH REGULATION D. Seller agrees to file five copies
of a Form D with the Securities and Exchange Commission within fifteen days of
the date of the Closing and to file, on a timely basis, any amendments or
supplements to such Form D as may be required under Regulation D promulgated
under the 1933 Act. Seller also agrees to comply with the filing requirements
of state securities laws applicable to the sale of the Securities hereunder.
SECTION 5. COVENANTS OF BUYER.
5.1 MAKING OF COVENANTS AND AGREEMENTS. Buyer makes the covenants
and agreements set forth in this Section.
5.2 CONSUMMATION OF AGREEMENT. Buyer shall perform and fulfill all
conditions and obligations on its part to be performed and fulfilled under this
Agreement, to the end that the transactions contemplated by this Agreement shall
be carried out.
5.3 CURRENT PUBLIC INFORMATION. Buyer shall file all reports
required to be filed by it under the 1934 Act and the rules and regulations
adopted by the Commissioner thereunder,
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including without limitation, as applicable, Schedules 13G, 13D, Form 3, Form 4,
and Form 5.
5.4 FURNISHING OF INFORMATION. Buyer shall furnish to Seller all
information, questionnaires and statements reasonably requested by Seller in
connection with Seller's preparation of reports, Disclosure Documents, proxy
materials and other filings under the 1933 Act and the 1934 Act. Buyer shall
further furnish to Seller any other written information and statements
reasonably requested by Seller.
SECTION 6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS.
6.1 CONDITIONS. The obligations of Buyer to consummate this
Agreement and the transactions contemplated hereby are subject to the
satisfaction of the following conditions on or prior to the Closing Date except
to the extent that any such condition can be and is waived by Buyer:
(a) BOARD OF DIRECTOR AUTHORIZATION. This Agreement and the
transactions contemplated hereby shall have been duly approved by a majority
vote of Seller's Board of Directors.
(b) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of Seller contained in Section 2 hereof shall be
true and correct in all material respects as though made at the time of and as
of the Closing; Seller shall, at or before the Closing, have performed all of
its obligations hereunder which by the terms hereof are to be performed on or
before the Closing, and Seller shall have delivered to Buyer a Certificate of
its Chief Executive Officer, President or Vice President dated as of the Closing
Date to the foregoing effect.
(c) EXPENSES OF COUNSEL. At the Closing, the Seller shall pay,
for services rendered, the reasonable fees and expenses of Xxxxxx XxXxxxxx &
Carnelutti, P.C., which has from time to time serves as special counsel to the
Company, acting in connection herewith as counsel to Xxxxx & Company
Incorporated, a buyer of the Securities.
(d) NEW MANAGEMENT. Each of Xx. Xxx Xxxxxxxx and Xx. Xxxxx Xx
Xxxxx shall be appointed Chief Executive Officer and President of the Seller
respectively.
SECTION 7. TERMINATION OF AGREEMENT.
7.1 TERMINATION. At any time prior to the Closing this Agreement may
be terminated (i) by mutual consent of the parties; (ii) by either party, upon
written notice to the other, if there has been a material misrepresentation,
breach of
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warranty or breach of covenant by the other party in its representations,
warranties and covenants set forth herein; or (iii) by Buyer, if the
conditions stated in Section 6.1 have not been satisfied or waived at or
prior to the Closing.
7.2 EFFECT OF TERMINATION. If this Agreement is terminated as above
provided, all obligations of the parties to be performed on or subsequent to the
effective date of termination as above provided hereof which shall survive
termination) shall terminate without further liability of either party to the
other. In the event that this Agreement is terminated, each party will return
all papers, documents, financial statements and other data furnished to it by or
with respect to each other party to such party (including any copies thereof
made by the first party).
SECTION 8. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING.
8.1 SURVIVAL OF WARRANTIES. All representations, warranties,
agreements, covenants and obligations herein or in any schedule, exhibit,
certificate or financial statement delivered by Seller to Buyer incident to the
transactions contemplated hereby shall be deemed to have been relied upon by the
other party hereto, and with respect to representations and warranties, shall
survive for a period of one (1) year following the Closing. All agreements,
covenants and obligations shall survive the Closing regardless of any
investigation made by or on behalf of either party hereto and shall not merge in
the performance of any obligation by either party hereto.
SECTION 9. MISCELLANEOUS.
9.1 LAW GOVERNING. This Agreement shall be construed under and
governed by the laws of the State of New York applicable to contracts made and
to be fully performed therein.
9.2 FINDER'S FEES.
(a) The Seller (i) represents and warrants that, except for
Xxxxxxx Xxxxx & Co., Inc., Xxxxx & Company Incorporated and Paramount Capital,
Inc., it has retained no finder or broker in connection with the transactions
contemplated by this Agreement and (ii) hereby agrees to indemnify and hold
harmless the Buyers of and from any liability for commission or compensation in
the nature of a finder's fee to any broker or other person or firm (and the
costs and expenses of defending against such liability or asserted liability)
for which the Seller, or any of its employees or representatives, are
responsible.
(b) Each Buyer (i) represents and warrants that it has retained
no finder or broker in connection with the
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transactions contemplated by this Agreement and (ii) hereby agrees to indemnify
and hold harmless the Seller and the other Buyers of and from any liability for
any commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which Buyer, or any of Buyers' employees or
representatives, are responsible.
(c) Seller agrees that as payment for services provided as
broker hereunder each of Xxxxxxx Xxxxx & Co., Inc., Xxxxx & Company Incorporated
and Paramount Capital, Inc. (or their designees) shall, upon conversion of the
Debentures, at such broker's option, either (a) be issued such number of shares
of the security in which the Debentures are converted calculated in accordance
with the following formula:
.06 x total number of shares issued upon
conversion of the Debentures for which each such
holder is identified as broker on
Schedule A hereto
-------------------------------------------------
$1.50
or (b) be paid a fee equal to six percent (6%) of the principal amount of any
Debenture converted in accordance with its terms for which Xxxxxxx Xxxxx & Co.,
Inc., Xxxxx & Company Incorporated or Paramount Capital, Inc. is indicated as
Broker on Schedule A hereto. In addition, Paramount Capital, Inc. may direct
any commissions otherwise owed to it pursuant to this paragraph 9.2(c) to any
other party, including to purchasers of the Debentures, provided that such
action is not in contravention of the rules of the NASD.
9.3 NOTICES. All notices, requests, demands or other communications
hereunder shall be deemed to have been duly given if delivered or mailed by
certified or registered mail.
To Seller:
Xx. Xxxx X. xx Xxxx
Chief Financial Officer
Imre Corporation
000 Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
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To Buyer:
At the address set forth on
the signature page hereof
or to such other address or addresses of which either party may notify the other
party.
9.4 ENTIRE AGREEMENT. This Agreement, including the Exhibits
referred to herein, is complete and all promises, representations,
understandings, warranties and agreements with reference to the subject matter
hereof, and all inducements to the making of this Agreement relied upon by
either party hereto, have been expressed herein or in such Exhibits.
9.5 ASSIGNABILITY. This Agreement may not be assigned by either
Buyer or Seller without the prior written consent of the other party.
Notwithstanding the foregoing, Buyer may assign its rights under this Agreement
in connection with the transfer of its interest in the underlying Securities
provided that with respect to any such assignment by Buyer, (a) the buyer is an
"accredited investor" as defined in Section 501(a) of Regulation D under the
1933 Act; (b) such buyer acquires such Securities from Buyer in a privately
negotiated, non-market transaction pursuant to the so called 4 (1/2) exemption
under the 1933 Act or other available exemption under the 1933 Act; and (c) such
buyer executes and delivers to Seller a writing evidencing such buyer's
agreement to be bound by the terms of this Agreement and such questionnaires as
Seller may request. Buyer may also assign his rights under this Agreement to
members of his immediate family or trusts for his own benefit or to other
entities which own or control, or are owned or controlled by, Buyer; provided
that such transfers meet the conditions of clauses (b) and (c) of the
immediately preceding sentence. Assignees to which assignment is made in
accordance with this Section are hereinafter referred to as "Permitted
Assignees". This Agreement shall be enforceable by and shall inure to the
benefit of and be binding upon the parties hereto and their successors and
Permitted Assignees and no others.
9.6 FEES AND EXPENSES. Except for the fees and disbursements of
counsel to the Buyers of the Securities as provided in Section 6.1(d) hereof,
each of the parties will bear its own expenses in connection with the
negotiation and consummation of the transactions contemplated by this Agreement.
9.7 PUBLICITY AND DISCLOSURE. Except as may be required by federal
securities laws, no press release or public disclosure, either written or oral,
of the transactions contemplated by this Agreement, shall be made by Buyer
hereto without the prior approval of the Seller.
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9.8 COUNTERPARTS. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
9.9 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, any
provision in any of the Purchase Agreements may be amended or waived only if the
Seller shall obtain the written consent of the holders of a majority in interest
of the securities purchased from Seller pursuant to the Purchase Agreements.
9.10 ADDITIONAL COVENANT. The Company hereby agrees and acknowledges
that it will use its best efforts to consummate a sale of Common Stock of the
Company or securities exchangeable, convertible or exercisable into or for
Common Stock of the Company prior to March 1, 1996 to the extent a purchaser or
purchasers acceptable to the Company offer(s) to purchase a minimum of
$2,500,000 of such security at (i) a price of no less than $1.50 per share if
the security sold is Common Stock of the Company or (ii) a conversion price of
no less than $1.50 per share if the security sold is a security that is
exchangeable, convertible or exercisable into or for Common Stock of the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date set forth above.
IMRE CORPORATION
By: Xxxx X. xx Xxxx
-------------------------------
Chief Financial Officer
XXXXX & COMPANY INCORPORATED
----------------------------------
Print Name of Buyer
------------------------------------
Signature of Buyer
Address for Notice:
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxx
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx XxXxxxxx & Carnelutti
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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THE ARIES DOMESTIC FUND, L.P.
------------------------------------
Print Name of Buyer
------------------------------------
Signature of Buyer
Address for Notice:
With a copy to:
THE ARIES TRUST
------------------------------------
Print Name of Buyer
------------------------------------
Signature of Buyer
Address for Notice:
With a copy to:
------------------------------------
Print Name of Buyer
------------------------------------
Signature of Buyer
Address for Notice:
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Holeb & Coff
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
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SCHEDULE A
BUYERS PRINCIPAL AMOUNT PURCHASE PRICE BROKER
------ ---------------- -------------- ------
Xxxxx & Company $500,000 $500,000 Xxxxx & Company
Incorporated Incorporated
The Aries Domestic $250,000 $250,000 Paramount
Fund L.P. Capital, Inc.
The Aries Trust $250,000 $250,000 Paramount
Capital, Inc.
Xxxxxx/Xxxxxxx $250,000 $250,000 Xxxxxxx Xxxxx &
Partnership Co., Inc.
Xxxxxxx X. Xxxxxx $125,000 $125,000 Xxxxxxx Xxxxx &
Co., Inc.
Xxxxxx "Buzz" Xxxxxx $125,000 $125,000 Xxxxxxx Xxxxx &
Co., Inc.
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SCHEDULE B
ADDITIONAL DOCUMENTS OR INFORMATION FURNISHED BY SELLER
The Confidential Offering Memorandum dated December 28, 1995 along with all
exhibits, schedules and annexes attached thereto.
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EXHIBIT 1.1(A)
- 23 -
EXHIBIT 1.1(B)
- 24 -
EXHIBIT 2.4(B)
- 25 -
EXHIBIT 2.4(C)
- 26 -
