EXHIBIT 10.1
GEOGRAPHICS, INC.,
A DELAWARE CORPORATION
SUBSCRIPTION AGREEMENT
COMMON STOCK,
PAR VALUE $0.001 PER SHARE
THIS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES OF
GEOGRAPHICS, INC., A DELAWARE CORPORATION (THE "COMPANY") REFERRED TO IN THIS
SUBSCRIPTION AGREEMENT IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH AN OFFER OR SALE.
THE SHARES OF COMMON STOCK, PAR VALUE $0.001 PER SHARE (THE "SHARES") REFERRED
TO IN THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SHARES ARE BEING OFFERED AND SOLD
PURSUANT TO AN APPLICABLE EXEMPTION UNDER THE ACT.
A PURCHASER OF SHARES MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE SHARES HAVE NOT BEEN
REGISTERED UNDER THE ACT, AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE
SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THERE IS
NO OBLIGATION OF THE COMPANY TO REGISTER THE SHARES UNDER THE ACT. NO PUBLIC OR
OTHER MARKET IS EXPECTED TO DEVELOP FOR THE SHARES. THE SHARES ARE NOT
TRANSFERABLE WITHOUT THE CONSENT OF THE COMPANY AND SATISFACTION OF CERTAIN
OTHER CONDITIONS.
THE SHARES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF
ANY STATE AND ANY TRANSFER OF THE SHARES ALSO MUST COMPLY WITH ANY APPLICABLE
STATE SECURITIES LAWS.
GEOGRAPHICS, INC.,
A DELAWARE CORPORATION
SUBSCRIPTION AGREEMENT
To: Geographics, Inc.
0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Ladies and Gentlemen:
Subject to the terms and conditions hereof, by delivery of this
executed Subscription Agreement ("Subscription Agreement"), I hereby agree to
tender this subscription for thirty nine million seven hundred fifty thousand
five hundred twenty (39,750,520) shares (the "Total Number of Shares"; the
actual shares purchased by the undersigned pursuant hereto are referred to
collectively as the "Shares" and each as a "Share") of the common stock, par
value $0.001 per share (the "Stock"), of Geographics, Inc., a Delaware
corporation (the "Company"). The purchase price per Share (the "Price per
Share") shall be $0.12579. I promise to pay the Company, as consideration for
the Total Number of Shares, the total amount of $5,000,217.91 (the "Aggregate
Purchase Price"). The Shares shall be purchased on such dates (each is a
"Purchase Date"), in such amounts and for such portion of the Aggregate Purchase
Price as is set forth in Section 2(a) hereof. By executing this Subscription
Agreement, I agree to be bound by all of the terms, provisions, warranties and
conditions contained herein. It is understood and agreed that the Company has
the right to accept or reject this subscription, in whole or in part, in its
sole and absolute discretion. I understand that this Subscription Agreement is
not binding upon the Company until accepted in writing by the Company.
By execution below, I acknowledge the accuracy and completeness of the
representations contained herein and I will notify the Company immediately of
any material change in any such information.
1. MY REPRESENTATIONS AND WARRANTIES. I hereby represent and warrant to
the Company (which representations and warranties shall remain true and correct
on and as of each Purchase Date as though expressly made thereon) as follows:
(a) The Company has made available all information which I have
requested in connection with the purchase of the Shares, and I
have been afforded an opportunity to ask questions of and
receive answers from the Company concerning the terms and
conditions of the purchase of the Shares and the Company and
the opportunity to obtain any additional information necessary
to verify the accuracy of information otherwise furnished by
the Company. All of the information so
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requested has been provided, and I require no additional
information to evaluate the merits and risks of an investment
in the Company.
(b) I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks
of acquisition of the Shares and of making an informed
investment decision with respect thereto. I have reviewed all
of the information provided by the Company and by virtue of
such review understand the merits and risks of an investment
in the Shares.
(c) I acknowledge that the Company's counsel has prepared this
Subscription Agreement at the direction of the Company's Board
of Directors and I have received no representation from the
Company's counsel about the personal tax or other consequences
of this Subscription Agreement. I have relied upon my own
legal and tax counsel to the extent I have deemed them
necessary as to all matters and questions concerning the
purchase of the Shares, and I have not relied upon any opinion
of the Company, its counsel or accountants. Furthermore, I
have obtained, to the extent I have deemed necessary, my own
professional advice with respect to the risks involved with
the investment in the Shares, and the suitability of the
investment in the Shares in light of my financial condition
and investment needs.
(d) My financial condition is such that I am able to bear the risk
of holding the Shares, or any portion thereof, for an
indefinite period of time and the risk of loss of my entire
investment in the Company. I believe that an investment in the
Shares is suitable for me based upon my investment objectives
and financial needs, and I have adequate means for providing
for current financial needs and personal contingencies and
have no need for liquidity of investment with respect to the
Shares.
(e) The Shares are being acquired for my own account for
investment, with no intention of distributing or selling any
portion thereof within the meaning of the Securities Act of
1933, as amended (the "Act"), and will not be transferred by
me, in whole or part, in violation of the Act or the then
applicable rules or regulations thereunder.
(f) I am aware that my rights to transfer the Shares are
restricted by the Act, applicable state securities laws and
the absence of a market for the Shares, and I will not offer
for sale, sell or otherwise transfer the Shares without
complying with all applicable provisions of the Act and
applicable state securities laws. I understand that the
certificates representing the Shares purchased will bear
restrictive legends referring to the restrictions on transfer
thereof resulting from their issuance without registration
under applicable securities laws.
(g) I acknowledge and am aware of the following:
(i) The Shares will not be, and investors in the Company
have no rights to require that the Shares be,
registered under the Act or the Securities
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Exchange Act of 1934, as amended, and I may have to
hold the Shares indefinitely, and it may not be
possible for me to liquidate my investment in the
Company;
(ii) No state or federal agency has made any finding or
determination as to the fairness of the terms of the
offering and sale of the Shares, nor has any state or
federal agency recommended or endorsed the Shares;
(iii) Neither the Company nor any of its officers,
directors, employees, agents or advisors or others
have, in connection with this investment, indicated
that the Company will attain any specified level of
profit or loss at any time, and I have not relied
upon any such statement made by anyone in the making
of this investment;
(iv) No general advertising or solicitation has been
employed by the Company in connection with the sale
of the Shares hereby offered by the Company; and
(v) The relative rights, designations, limitations and
preferences of the Shares are as set forth in the
Company's Articles of Incorporation, a copy of which
has been previously provided to me.
(h) The foregoing representations and warranties, and all other
statements contained elsewhere in this Subscription Agreement,
are true and accurate as of this date and shall survive such
date. If in any respect such representations and warranties or
statements shall not be true and accurate prior to the
Company's acceptance of this subscription, I agree to give
immediate written notice of such fact to the Company,
specifying which representations and warranties or statements
are not true and accurate and the reasons therefor.
2. TOTAL NUMBER OF SHARES; PRICE PER SHARE.
(a) On or before each Purchase Date set forth below, I agree to
pay the Company the amount set forth opposite such Purchase
Date (each such required payment a "Payment" and,
collectively, the "Payments"), and the Company shall issue to
me, in consideration of such Payment, the number of Shares set
forth opposite such Purchase Date:
PURCHASE DATE PAYMENT SHARES
------------- ------- ------
February 18, 2002 $ 500,000.00 3,974,878.77
February 25, 2002 $1,000,000.00 7,949,757.53
March 15, 2002 $1,500,000.00 11,924,636.30
March 31, 2002 $2,000,217.91 15,901,247.40
I agree that the Company shall apply that certain $500,000
amount payable by the Company to me (the "Amount Payable") to
offset the Payment due on the March
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31, 2002 Purchase Date, unless the Company applies the Amount
Payable in the manner described in Section 2(b) following a
Default. I further agree that my failure to pay any Payment
when due shall constitute a "Default" under this Subscription
Agreement.
(b) I agree that if a Default occurs for any reason, then the
Company may, at its option, at any time or from time to time
thereafter, apply the Amount Payable, in its sole discretion,
to the purchase of Shares to be issued to me at a purchase
price of $0.30 per Share (a "Conversion upon Default");
provided, that if the Company effects a Conversion upon
Default, I shall have the option, exercisable within
forty-five (45) days following such Conversion upon Default,
to purchase an additional 2,308,212.10 shares of Stock from
the Company for an aggregate purchase price of $290,350.00.
3. RELEASE OF VENDOR GUARANTEES; COMPENSATORY WARRANTS. By its
acceptance in writing hereof, the Company (i) acknowledges that I have
heretofore from time to time made guarantees of certain obligations of the
Company to certain trade creditors of the Company (each such guarantee, a
"Vendor Guarantee" and, collectively the "Vendor Guarantees") and (ii) consents
to, and shall obtain, the release of the following Vendor Guarantees: (A) on or
before February 28, 2002, that certain Vendor Guarantee in favor of Xxxxxx
Lithograph in the amount of $600,000, (B) on or before February 28, 2002, that
certain Vendor Guarantee in favor of Kapco in the amount of $500,000, (C) on or
before April 15, 2002, that certain Vendor Guarantee in favor of Z International
in the amount of $213,000, and (D) promptly following the Company's acceptance
in writing hereof, that certain Vendor Guarantee in favor of Domtar in the
amount of $500,000. In satisfaction of the Company's obligation to compensate me
for my previous execution and delivery of the Vendor Guarantees, the Company
agrees, by its acceptance in writing hereof, that the Company shall issue to me,
as soon as reasonably practicable following the date hereof and without
additional consideration, warrants to purchase fifty thousand (50,000)
additional shares of Stock (the "Compensatory Warrants"). The Compensatory
Warrants shall be exercisable in whole (but not in part) within two (2) years of
the date of the Company's acceptance in writing of this Subscription Agreement
for an exercise price of $0.20 per share.
4. BOARD OF DIRECTORS. As soon as possible following the Company's
written acceptance of this Subscription Agreement, the Company shall (a) expand
the Company's Board of Directors (which currently consists of five (5)
directors) to seven (7) directors, (b) cause two (2) of the Company's existing
directors to resign from the Company's Board of Directors, and (c) to the extent
not inconsistent with the fiduciary obligations of the Company's directors,
shall cause the remaining directors to fill the vacant positions on the
Company's Board of Directors with four (4) individuals to be named by me. I
agree that for a period of three (3) years from the date of this Subscription
Agreement, I shall vote or abstain from voting (or cause to be voted or
abstained from voting) my shares of the Company's voting capital stock in such a
manner as to ensure that not less than three (3) members of the Company's Board
of Directors are chosen by the affirmative vote of the holders of the Company's
capital stock entitled to vote thereon (other than myself and any of my heirs,
executors, personal representatives or assignees) as would be effective to
result in the election of such members under the Company's organizational
documents and the Delaware General Corporation Law.
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5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. By its acceptance in
writing hereof, the Company represents and warrants to me, as of the date of the
Company's acceptance hereof in writing, that (a) the entire authorized capital
stock of the Company consists of 100,000,000 shares of common stock, par value
$0.001 per share, of which 38,191,676 shares are issued and outstanding, and (b)
except as disclosed in that certain Form 10-K filed by the Company with the U.S.
Securities and Exchange Commission on July 19, 2001, there are no outstanding
options, warrants, convertible securities or other rights to subscribe for or
acquire any capital stock or securities convertible into capital stock of the
Company.
6. RIGHT TO PURCHASE ADDITIONAL STOCK. By its acceptance in writing
hereof, the Company grants me the option, exercisable in the manner described
below following the Company's issuance of any Dilutive Stock (as hereinafter
defined), to purchase additional shares of Stock (the "Additional Stock") such
that the Shares (including, for this purpose, Shares which have not yet been
purchased pursuant to Section 2(a) hereof), the shares of Stock (if any) issued
pursuant to Section 2(b) hereof, and the number of shares of Additional Stock to
be issued shall collectively constitute fifty-one percent (51%) of the issued
and outstanding Stock (including Dilutive Stock and Stock issued to me, but
excluding other Stock issued after the date of Company's written acceptance
hereof). As used herein, "Dilutive Stock" shall mean Stock issued by the Company
pursuant to the exercise of options, warrants (other than the Compensatory
Warrants) or convertible subordinated notes which are issued by the Company and
are outstanding (but which are not yet exercised or converted) as of the date of
the Company's written acceptance hereof. The Company shall give written notice
to me promptly following the issuance of any Dilutive Stock, and I shall
exercise my option to purchase Additional Stock, and pay the purchase price
therefor to the Company, within thirty (30) days of the date the Company sends
written notice to me by first class U.S. Mail, facsimile transmission or
reputable overnight courier service to my address listed on the signature page
hereof or such other address or facsimile number as I may hereafter provide the
Company. The purchase price for each share of Additional Stock shall be
determined as follows: (a) in the case of Additional Stock to be issued upon the
issuance of Dilutive Stock following the exercise of an option or warrant, the
purchase price per share of Additional Stock shall be equal to the exercise
price per share paid by the holder of the option or warrant, as the case may be;
and (b) in the case of Additional Stock to be issued upon the issuance of
Dilutive Stock following the conversion of a convertible subordinated note, the
purchase price per share of Additional Stock shall be $0.12579 per share.
7. INDEMNIFICATION. I understand the meaning and legal consequences of
the representations and warranties and statements made by me herein, and I
acknowledge that the Company is relying on such representations and warranties
and statements in making its determination to accept or reject this
subscription. I hereby agree to indemnify and hold harmless the Company, its
officers and directors and each employee or agent thereof from and against any
and all loss, damage or liability due to or arising out of a breach of any
representation or warranty or inaccuracy of any statement made by me in this
Subscription Agreement.
8. TRANSFERABILITY. I agree not to transfer or assign this Subscription
Agreement, or any interest herein, and further agree that the assignment and
transferability of the Shares acquired
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pursuant hereto shall be made only in accordance with the Act and other
applicable federal and state securities laws.
9. NO REVOCATION. I agree that this Subscription Agreement and any
agreement made by me hereunder is irrevocable, and this Subscription Agreement
shall survive my death or disability, except as provided below under Section 11.
10. REMEDIES UPON DEFAULT. I agree that a Default hereunder shall be a
breach of my obligations under this Subscription Agreement, and that, upon the
occurrence of any such Default, in addition to the rights and remedies granted
to the Company under Section 2(b) hereof, the Company may (i) exercise all the
rights and remedies available to it, at law or in equity or otherwise, to seek
damages or injunctive relief (including specific performance) for such breach,
and also may (ii) terminate its obligations under this Subscription Agreement.
11. TERMINATION OF SUBSCRIPTION AGREEMENT. If this subscription is
rejected by the Company, then and in any such event this Subscription Agreement
shall be null and void and of no further force and effect, and no party shall
have any rights against any other party hereunder.
12. APPLICABLE LAW; SEVERABILITY. This Subscription Agreement shall be
enforced, governed and construed in all respect in accordance with the internal
laws of the State of Delaware. If for any reason any provisions hereof are
determined to be invalid or contrary to existing or future law, such invalidity
shall not impair the operation or effect of those portions of the Subscription
Agreement which are valid.
[signature page follows]
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SIGNATURE PAGE
I am a resident of the State of Minnesota.
/s/ Xxxxxxxx X. Xxxxx
---------------------
Dated as of February 14, 2002
Subscription X Accepted
_ Not Accepted
this 14th day of February, 2002.
GEOGRAPHICS, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its: President and Chief Executive Officer
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