Exhibit 10.21
Agreement, dated as of October 19, 2001, between GP Strategies
Corporation, a Delaware corporation (the "Company"), having an address at 9 West
57th Street, New York, New York 10019, and Bedford Oak Partners, L.P., a
Delaware limited partnership (the "Investor"), having an address at 100 South
Bedford Road, Mt. Kisco, New York.
1. Subscription. The Investor is hereby purchasing from the Company
300,000 shares (the "Shares") of Class B Capital Stock, par value $.01 per
share, of the Company for an aggregate purchase price (the "Purchase Price") of
$900,000.
2. Closing. The closing shall take place on November 14, 2001 at the
office of the Investor located at 100 South Bedford Road, Mt. Kisco, New York.
Payment of the Purchase Price is being made by electronic wire transfer in
accordance with the following instructions:
Account Name: GP Strategies Corporation
Bank Name: Fleet Bank
Bank Address:
ABA#: xxxxxxxxxxxx
Account #: xxxxxxxxxxxx
or by delivery of a bank check or certified check made payable to "GP Strategies
Corporation" against delivery to Dennis Javer, Chief Financial Officer of the
Investor, of a certificate representing the Shares.
3. Disposition and Conversion.
(a) The Investor acknowledges and agrees that the Shares are not
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any foreign or state securities laws. The Investor agrees that the Shares,
and the shares (the "Underlying Shares") of common stock, par value $.01 per
share (the "Common Stock"), of the Company issuable upon conversion of the
Shares, will not be sold, offered for sale, transferred, pledged, hypothecated,
or otherwise disposed of (collectively, "Disposed Of" or "Disposition Of")
except in compliance with the Securities Act and applicable foreign and state
securities laws. The Investor has been advised that, except as set forth in
Section 5, the Company has no obligation, and does not intend, to cause the
Shares or the Underlying Shares to be registered under the Securities Act or the
securities law of any other jurisdiction or to comply with the requirements for
any exemption under the Securities Act, including but not limited to those
provided by Rule 144 and Rule 144A promulgated under the Securities Act, or
under the securities law of any other jurisdiction.
(b) Upon the Disposition Of any of the Shares other than to a
Permitted Transferee (as hereinafter defined), the Investor shall be deemed to
have exercised the right (under the Company's certificate of incorporation) to
convert all of the Shares then owned by the Investor into an equal number of
Underlying Shares. The Investor may not Dispose Of any Shares other than to a
Permitted Transferee prior to their conversion into Underlying Shares. As used
herein, a Permitted Transferee shall mean a transferee of the Shares that (i)
controls, is under common control with, or is controlled by, the Investor and
(ii) prior to and as a condition precedent to becoming a transferee of such
Shares, executes an agreement, in form and substance satisfactory to the
Company, agreeing to be bound by the provisions of this Agreement with respect
to the transferred Shares as if such transferee were the Investor hereunder.
(c) At the request of the Board of Directors of the Company (the
"Board"), at any time, the Investor shall convert all of the Shares then owned
by the Investor into an equal number of Underlying Shares.
(d) If the Investor is deemed pursuant to Section 3(b) to have
exercised the right, or is requested by the Company pursuant to Section 3(c) to
exercise the right, to convert its Shares into an equal number of Underlying
Shares, the Investor shall promptly surrender to the Company the stock
certificate or certificates representing such Shares in exchange for a stock
certificate or certificates representing an equal number of Underlying Shares.
During the period commencing on the date that the Investor shall be deemed to
have exercised, or is requested to exercise, such right to convert Shares and
terminating on the date that the stock certificate or certificates representing
such Shares are so surrendered, the Investor shall vote or (if requested by the
Company) execute a written consent with respect to such Shares in accordance
with the duly adopted recommendation of the Board, and the Investor hereby
grants to such officer of the Company as shall be designated by the Board an
irrevocable proxy coupled with an interest to vote such Shares in accordance
with such recommendation of the Board.
4. Restrictive Legends.
(a) Each certificate evidencing Shares or Underlying Shares shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAW. THESE
SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
ANY EXEMPTION THEREFROM UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW."
(b) Each certificate evidencing Shares shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE TRANSFER AND VOTING OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF AN AGREEMENT, DATED AS OF
OCTOBER 19, 2001, BETWEEN THE COMPANY AND THE HOLDER
OF RECORD OF THIS CERTIFICATE, AND NO TRANSFER OF
SUCH SECURITIES SHALL BE VALID OR EFFECTIVE EXCEPT IN
ACCORDANCE WITH THE AGREEMENT AND UNTIL SUCH TERMS
AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF THE
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES THEREOF."
(c) The legend set forth in Section 4(a) shall be removed and the
Company shall issue a certificate without such legend to the holder thereof upon
the earliest to occur of (i) a registration statement with respect to the sale
of such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) the securities shall have been sold to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act, or (iii) such
securities may be sold by the holder without restriction or registration under
Rule 144(k) under the Securities Act (or any successor provision).
5. Registration of Underlying Shares.
(a) The Company shall, at its expense, (i) not later than January
15, 2002, file a registration statement on Form S-3 (the "Resale Registration
Statement") to register under the Securities Act the resale by the Investor of
the Underlying Shares, (ii) use its commercially reasonable efforts to cause the
Resale Registration Statement to become effective under the Securities Act on
the earliest possible date and to remain effective until two years from the date
hereof or such earlier date as the Investor owns no Shares or Underlying Shares,
and (iii) after the Resale Registration Statement is declared effective under
the Securities Act, furnish the Investor with such number of copies of the
prospectus (the "Prospectus") included in the Resale Registration Statement as
the Investor may reasonably request to facilitate the resale of the Underlying
Shares.
(b) If at any time during the period that the Resale Registration
Statement is effective under the Securities Act an event (an "Event") shall have
occurred that has caused the Prospectus to contain an untrue statement of a
material fact or to omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, the Company shall (i) give the
Investor a notice (the "No-Sell Notice") that an Event has occurred, (ii)
promptly (or, if in the reasonable judgment of the Company disclosure of the
Event would be detrimental to the Company, promptly after the earlier of (A) the
date that disclosure of the Event would not be detrimental to the Company and
(B) 90 days after the date of the No-Sell Notice) use its commercially
reasonable efforts to cause the Resale Registration Statement not to contain an
untrue statement of a material fact or to omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and (iii)
give the Investor a notice (the "Sell Notice") when the Resale Registration
Statement does not contain an untrue statement of a material fact or to omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made. The Investor shall keep the existence and contents of any No-Sell
Notice confidential, and shall not sell any Underlying Shares pursuant to the
Resale Registration Statement after it has received a No-Sell Notice until it
has received a subsequent Sell Notice.
(c) In connection with the Resale Registration Statement, the
Investor shall furnish to the Company such information as the Company shall
reasonably request.
(d) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor against any losses, claims, damages, expenses or
liabilities (collectively, "Losses") to which the Investor may become subject
under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other federal or state law, or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof), arise out of or are based upon any of the following statements or
omissions (each, a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in the Resale Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading. Notwithstanding anything contained in this Agreement to
the contrary, the indemnity agreement contained above in this Section 5(d) shall
not apply (i) to amounts paid in settlement of any such Loss, action or
proceeding if such settlement is effected without the prior written consent of
the Company, which consent shall not be unreasonably withheld, or (ii) to any
such Loss, action or proceeding arising out of or based upon a Violation (A)
which occurs in reliance upon and in conformity with written information
furnished by the Investor expressly for use in connection with the Resale
Registration Statement or (B) contained in a preliminary prospectus but not in
the prospectus, as then amended or supplemented, if such prospectus was timely
made available by the Company pursuant to Section 5(a)(iii).
(e) To the extent permitted by law, the Investor will indemnify and
hold harmless, to the same extent and in the same manner set forth in Section
5(d), the Company, each of its directors, each of its officers who have signed
the Resale Registration Statement, each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, and any other
stockholder selling securities pursuant to the Resale Registration Statement
against any Losses, joint or several, to which any of them may become subject
under the Securities Act, the Exchange Act, other federal or state law, or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by the
Investor expressly for use in connection with the Resale Registration Statement.
(f) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including
any governmental action or proceeding), such indemnified party will, if a claim
in respect thereof is to be made against any indemnifying party under this
Section 5, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel reasonably satisfactory to the indemnified party;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party,
if, in the reasonable opinion of counsel for the indemnifying party,
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. Notwithstanding anything to the contrary contained
herein, the Company shall not be required pay for more than one legal counsel
for all stockholders selling securities pursuant to the Resale Registration
Statement, such legal counsel to be selected by the selling stockholders holding
a majority in interest of the securities being sold. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action or proceeding shall relieve such indemnifying
party of any liability to the indemnified party under this Section 5 only to the
extent such failure has been prejudicial to its ability to defend such action,
but the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 5.
(g) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under this Section 5 to the extent permitted by law; provided, however, that (i)
no contribution shall be made under circumstances where the maker would not have
been liable for indemnification under the fault standards set forth in this
Section 5 and (ii) no seller of securities guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities Act) shall
be entitled to contribution from any seller of securities who was not guilty of
such fraudulent misrepresentation.
(h) The Company shall use its commercially reasonable efforts to
register and qualify the Underlying Shares under such securities or blue sky
laws of such jurisdictions in the United States as the Investor reasonably
requests; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (i) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 5(h), (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause more than nominal expense
or burden to the Company or (v) make any change in its Certificate of
Incorporation or by-laws, which in each case the Board determines to be contrary
to the best interests of the Company and its stockholders.
6. Put Right.
(a) On any date (a "Put Date") prior to two years from the date
hereof (i) on which the Resale Registration Statement is not effective under the
Securities Act or (ii) during a period after the Investor has received a No-Sell
Notice and prior to the Investor receiving a subsequent Sell Notice, the
Investor shall have the right and option (the "Put Right") to require the
Company to purchase from the Investor all, but not less than all, of the Shares
and Underlying Shares then held by the Investor for a purchase price (the "Put
Price") equal to the product of (i) the number of Shares and Underlying Shares
owned by the Investor and (ii) the Current Market Price (as hereinafter defined)
on such Put Date per share of Common Stock.
(b) The Investor shall exercise the Put Right by giving notice (a
"Put Notice") on any Put Date. Each Put Notice shall be accompanied by the
certificates for the Shares and Underlying Shares owned by the Investor,
properly endorsed or accompanied by stock powers properly endorsed for transfer.
Within five days after receipt of a Put Notice and such stock certificates in
proper form, the Company shall pay the Put Price by delivering to the Investor,
at the option of the Company, (i) a certified or bank check or wire transfer in
accordance with instructions received from the Investor ("Cash") in the amount
of the Put Price, (ii) shares of Millennium Cell Inc. (which shares do not have
the status of "restricted securities" under the Securities Act), properly
endorsed or accompanied by stock powers properly endorsed for transfer
("Millennium Cell Shares"), with a Current Market Price on the day of such
delivery equal to the Put Price, or (iii) a combination of Cash and Millennium
Cell Shares, such that the sum of the amount of Cash delivered and the Current
Market Price on the day of delivery of the Millennium Cell Shares delivered
equals the Put Price. Upon payment of the Put Price, the Shares and Underlying
Shares so repurchased by the Company shall no longer be deemed to be
outstanding, all rights of the Investor as a holder of such shares shall cease,
and the Company shall thereupon cancel the certificates representing such Shares
and Underlying Shares.
(c) The Current Market Price of a security on any date shall be the
closing price of such security on such date. The closing price of a security on
any date shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the closing bid price regular way, in
either case on the principal national securities exchange (including, for
purposes hereof, the Nasdaq National Market) on which such security is listed or
admitted to trading or, if such security is not listed or admitted to trading on
any national securities exchange, the highest reported bid price for such
security as furnished by the National Association of Securities Dealers, Inc.
through Nasdaq or by a similar organization if Nasdaq is no longer reporting
such information, in each case as of the 4:00 P.M. (New York time) "benchmark"
close of trading on such date. If on any such date the security is not listed or
admitted to trading on any United States national securities exchange and is not
quoted by Nasdaq or any similar organization, the fair value of such security on
such date, as determined reasonably and in good faith by the Board, shall be
used.
7. Representations and Warranties of the Investor. To induce the
Company to accept the Investor's subscription, the Investor hereby represents
and warrants to the Company that:
(a) The Shares subscribed for hereby are being acquired by the
Investor for investment purposes only, for the account of the Investor and not
with the view to any resale or distribution thereof, and the Investor is not
participating, directly or indirectly, in a distribution of such Shares and will
not take, or cause to be taken, any action that would cause the Investor to be
deemed an "underwriter" of such Shares as defined in Section 2(11) of the
Securities Act.
(b) The Investor has had access to all materials, books, records,
documents, and information relating to the Company, including (i) the Annual
Report on Form 10-K for the year ended December 31, 2000, (ii) the Quarterly
Report on Form 10-Q for the quarter ended June 30, 2001, and (iii) the Proxy
Statement dated April 30, 2001 (collectively, the "SEC Filings"), and has been
able to verify the accuracy of the information contained therein.
(c) The Investor acknowledges and understands that investment in
the Shares involves a high degree of risk, including the risks set forth in the
SEC Filings.
(d) The Investor has not entered into any agreement to pay
commissions to any persons with respect to the purchase of the Shares.
(e) The Investor is an "Accredited Investor" as that term is
defined in Section 501(a) of Regulation D promulgated under the Securities Act.
Specifically the Investor is a partnership, not formed for the specific purpose
of acquiring Shares, with total assets in excess of $5,000,000.
8. Representations and Warranties of the Company. To induce the
Investor to purchase the Shares, the Company hereby represents and warrants to
the Investor that:
(a) The Company is duly organized, validly existing, and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now being conducted.
(b) Upon issuance of the Shares pursuant to this Agreement, the
Shares will be duly and validly issued, fully paid and non-assessable. The
Underlying Shares have been duly and validly authorized and reserved for
issuance, and upon issuance upon conversion of the Shares, will be duly and
validly issued, fully paid and nonassessable.
(c) The SEC Filings, when filed, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
9. Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
10. Successors and Assigns. Neither party may assign its rights or
delegate its obligations under this Agreement without the prior written consent
of the other, except that the Investor may assign its rights under this
Agreement to a Permitted Transferee with respect to the Shares transferred to
such Permitted Transferee.
11. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
12. Notices. All notices, consents, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand or, if sent by Express Mail, Federal Express, or other express
delivery service, when received by the addressee, in each case to the address of
the party set forth above or to such other address as such party may designate
by notice in the manner provided in this Section 12.
13. Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original instrument, but both
such counterparts together shall constitute but one agreement.
14. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
15. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability. Such prohibition or
unenforceability in any one jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Governing Law. This Agreement shall be governed by the internal
laws of the State of New York, without regard to the conflicts of law principles
thereof.
17. Jurisdiction. The parties hereto each (a) hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any court of the State
of New York or any federal court sitting in the State of New York for purposes
of any suit, action, or other proceeding arising out of this Agreement or the
subject matter hereof brought by the Company or the Investor and (b) hereby
waives and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action, or proceeding, any claim it is not subject personally
to the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the suit, action, or proceeding is
brought in an inconvenient forum, that the venue of the suit, action, or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court. The Company and the Investor each hereby
consents to service of process in the manner provided in Section 12.
18. Further Assurances. At any time and from time to time, each party
agrees, without further consideration, to take such actions and to execute and
deliver such documents as the other parties may reasonably request to effectuate
the purposes of this Agreement.
19. No Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GP STRATEGIES CORPORATION
By:_________________________
BEDFORD OAK PARTNERS, L.P.
By:_________________________