EXHIBIT 99
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 16th day of
September, 2009, by and between ALANCO TECHNOLOGIES, INC., an Arizona
corporation ("Alanco"), STARTRAK SYSTEMS,LLC, a Delaware limited liability
company ("StarTrak"), and TENIX HOLDING INC., a Delaware corporation ("Tenix").
RECITALS:
The parties hereto and others entered into that certain Agreement and Plan of
Reorganization, dated June 25, 2006, pursuant to which Alanco acquired StarTrak.
Tenix was a member of StarTrak.
At the time of the acquisition of StarTrak by Alanco, StarTrak owed Tenix
$2,000,000 pursuant to that certain Promissory Note, dated June 21, 2006, in
said principal amount (the "Note"), and Alanco caused StarTrak to pay Tenix
$500,000 upon the closing of the acquisition. Alanco guaranteed payment of the
Note balance of $1,500,000 to Tenix.
Pursuant to an agreement dated January 2008, a portion of the Note was converted
into Class A Common Stock of Alanco, with the balance to be paid in
installments. The parties desire to convert the remaining balance of the Note
into additional shares of Alanco's Class A Common Stock in full retirement of
the Note.
NOW,THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. Conversion of Balance of Note to Stock. Upon the date hereof, the
remaining principle balance of the Note in the amount of $360,000, plus all
accrued interest, shall be converted into 1,000,000 shares of Alanco's Class A
Common Stock (the "Shares"). Alanco shall promptly advise its transfer agent to
issue said shares to Tenix.
2. Possible Issuance of Additional Shares. In the event that the weighted
average closing price for shares of Alanco's Class A Common Stock for the period
from October 1, 2009 through November 30, 2009 ("Measuring Period") is less than
$0.45 per share, then Alanco shall issue up to an additional 150,000 shares of
its Class A Common Stock to Tenix in accordance with the following formula:
Shares = ($0.45 minus WACP) divided by $0.05 multiplied by 150,000
Where: "Shares" means the number of additional shares of Alanco Class
A Common Stock to be issued to Tenix
"WACP" means the weighted average closing
price of Alanco's Class A Common Stock on the NASDAQ
Cap Market for the Measuring Period which is equal to
the sum of the products of the number of shares sold
on each trading day during the Measuring Period
multiplied by the closing price of such stock on such
day and then divide such sum by the total number of
shares sold during the Measuring Period.
Provided, however, that if the WACP for the Measuring Period is $0.40 or less,
the full 150,000 shares shall be issued to Tenix, but no more than 150,000
additional shares, and if the WACP is equal to or greater than $0.45 for the
Measuring Period, no additional shares shall be issued to Tenix hereunder.
Alanco shall instruct its transfer agent to issue to Tenix any additional shares
to be issued in accordance with the above formula within five (5) business days
following November 30, 2009.
3. Private Placement Status; Representations and Warranties of Tenix.
3.1 Tenix represents and warrants as follows and acknowledges and
confirms that Alanco is relying upon such representations and warranties in
connection with the execution, delivery and performance of this Agreement,
notwithstanding any investigation made by Alanco or on its behalf:
a. Tenix has such knowledge and experience in financial and
business matters, or has relied upon advisors who are so qualified, that is
capable of evaluating the merits and risks of the investment by it in Alanco as
contemplated by this Agreement and is able to bear the economic risk of such
investment for an indefinite period of time. Tenix has been furnished access
to such information and documents as it has requested and has been afforded an
opportunity to ask questions of and receive answers from representatives of
Alanco concerning the business and financial condition of Alanco and the terms
and conditions of this Agreement and the issuance of securities contemplated
hereby.
b. Tenix is acquiring the all shares of Alanco Class A
Common Stock to be issued hereunder (the "Shares")for investment for its own
account and not with a view to, or for resale in connection with, any
distribution. Tenix understands that the Shares to be issued to it hereunder
have not been registered under the Securities Act of 1933 ("Act") by reason of a
specific exemption from the registration provisions of the Act which depends
upon, among other things, the accuracy of the representations expressed herein.
c. Tenix acknowledges that unless a registration statement
becomes effective with respect to the resale of the Shares, the Shares must be
held until qualified for resale under the rules of the Securities Exchange
Commission and may not be sold or offered for sale in the absence of an
effective registration statement as to such securities under said Act and any
applicable state securities laws or unless an exemption from such registration
is available.
3.2. Legend. Each certificate representing the Shares shall be
endorsed with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY OTHER SECURITIES LAWS,
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR EXEMPTION FROM REGISTRATION IS
AVAILABLE.
4. Representations and Warranties of Alanco. Alanco represents and
warrants to Tenix as follows:
4.1. Organization and Standing. Alanco is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Arizona, has all of the requisite corporate power and authority to enter into
and consummate this Agreement.
4.2. Validity of Shares. The Shares, when issued and delivered to
Tenix in accordance with this Agreement for the consideration expressed herein,
will be validly issued, fully paid and nonassessable and will be free and clear
of all liens.
4.3 Authorization. Alanco has all the requisite legal and
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All corporate action on the
part of Alanco and its officers, directors and stockholders necessary for the
authorization, execution, delivery, and performance of all obligations of Alanco
under this Agreement and for the authorization, issuance and delivery of the
Shares has been taken.
4.4 Governmental Consents. No consent, approval, order, or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority is required on
the part of Alanco in connection with the execution, delivery or performance of
this Agreement or consummation of the transactions contemplated hereby other
than filing of a notice of issuance of the Alanco Shares with NASDAQ. Based in
part upon the accuracy of the Buyer's representations and warranties as set
forth in Section 3, the sale and issuance of the Shares by Alanco in conformity
with the terms of this Agreement is exempt from the registration requirements of
all applicable federal and state securities laws.
4.5 Compliance with Other Instruments. Alanco will not be, as a
result of the execution, delivery or performance of this Agreement, in violation
of or default under any provision of its Articles of Incorporation or By-laws,
as amended and in effect on date hereof, or of any provision of any instrument,
contract or lease to which it is a party, or of any provision of any federal or
state judgment, writ, decree, order, statute, rule, or governmental regulation
applicable to Alanco.
4.6 Rule 144 Compliance. With a view to making available the
benefits of certain rules and regulations of the US Securities and Exchange
Commission ("Commission") that may permit the sale of the Shares to the public
without registration, Alanco agrees to, so long as Tenix owns any Shares bearing
a restrictive legend:
a. make and keep adequate current public information
available, as those terms are understood and defined in Rule 144(c) of the Act
at all times;
b. use its commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required to be
filed by Alanco under the Act and the Securities Exchange Act of 1934 ("Exchange
Act");
c. so long as Tenix owns any Shares constituting restricted
securities, if Alanco is not required to file reports and other documents under
the Act and the Exchange Act, make available other information as required by,
and so long as necessary to permit sales of Shares, pursuant to Rule 144 or Rule
144A of the Act; and
d. take such reasonable further actions as Tenix may
reasonably request in, and not take any actions that would restrict Tenix from,
availing itself of any rule or regulation of the Commission allowing it to sell
any Shares without registration.
5. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give any benefits to any person, corporation or other entity, other
than the parties hereto, and this Agreement shall be for the sole and exclusive
benefit of the parties hereto.
6. Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the successors, heirs, executors, administrators and
permitted assigns of the parties hereto. This Agreement may not be assigned by
any of the parties hereto without the prior written consent of the other
parties.
7. Notices. Any notice or demand to be given by any party shall be given
in writing and delivered in person; by courier service during days other than
legal holidays; by facsimile transmission between 8:00 a.m. and 5:00 p.m., local
time of the recipient; or by certified mail, postage prepaid, to the recipient
at their respective addresses set forth below. Any such notices or demands
shall be deemed effective on the date of receipt if delivered in person, by
courier service or by facsimile transmission posting, and three business days
following posting if mailed by certified mail, provided, however, any notice
sent by facsimile transmission shall be given by overnight delivery or other
personal delivery on the next business day. Any recipient may change its
address for notices by notice given in accordance herewith.
(a) If to Alanco or StarTrak:
Alanco Technologies, Inc.
15575 North 83rd Way, Suite 3
Scottsdale, AZ 85260
Atttn: Robert R. Kauffman, President
(Facsimile Number (602) 607-1515)
(b) If to Tenix:
Tenix Holding Inc.
c/o Tenix Pty Ltd
141 Walker Street
North Sydney NSW 2060
Australia
Attn: John Maddalena
(Facsimile Number +61 2 9919 8112)
8. Severability. In the event any covenant, condition or other provision
of this Agreement is held to be invalid or unenforceable by a final judgment of
a court of competent jurisdiction, then such covenant, condition or other
provision shall be automatically terminated and performance thereof waived, and
such invalidity or unenforceability shall in no way affect any of the other
covenants, conditions or provisions hereof, and the parties hereto shall
negotiate in good faith to agree to such amendments, modifications or
supplements of or to this Agreement or such other appropriate actions as, to the
maximum extent practicable, shall implement and give effect to the intentions of
the parties as reflected herein.
9. Entire Agreement. This Agreement and the Additional Agreements contain
all of the terms agreed upon by the parties with respect to the subject matter
hereof and thereof and there are no representations or understandings between
the parties except as provided herein and therein. This Agreement may not be
amended or modified in any way except by a written amendment to this Agreement
duly executed by the parties.
10. Waiver. No waiver of a breach of, or default under, any provision of
this Agreement shall be deemed a waiver of such provision or of any subsequent
breach or default of the same or similar nature or of any other provision or
condition of this Agreement.
11. Applicable Law. This Agreement shall be governed by and construed
(both as to validity and performance) and enforced in accordance with the laws
of the State of Arizona.
12. Attorneys' Fees. In any action brought to enforce the provisions of
this Agreement, the prevailing party shall be entitled to recover its attorneys'
fees and costs as determined by the court and not the jury.
13. Equitable Relief. The parties agree that the remedies at law for any
breach of the terms of this Agreement are inadequate. Accordingly, the parties
consent and agree that an injunction may be issued to restrain any breach or
alleged breach of such provisions. The parties agree that terms of this
Agreement shall be enforceable by a decree of specific performance. Such
remedies shall be cumulative and not exclusive, and shall be in addition to any
other remedies which the parties may have at law or in equity.
14. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument, but all of such counterparts taken together shall be
deemed to constitute one and the same instrument. No party shall be bound until
each party has signed at least one (1) such counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
their respective names as of the day and year first above written.
TENIX HOLDING, INC.
a Delaware corporation
By: _______________________________________
Michael Linday, Director/Secretary
ALANCO TECHNOLOGIES, INC.
an Arizona corporation
By: _________________________________________
Robert R. Kauffman, Chief Executive Officer
STARTRAK SYSTEMS, LLC
a Delaware limited liability company
By: _______________________________________
Robert R. Kauffman, Manager
3401\047\Tenix Note Agreement3