EXHIBIT 10.7
EDUCATIONAL MODULES, INC.
STOCK PURCHASE AGREEMENT
Board of Directors December 17, 1992
Educational Modules, Inc.
Gentlemen:
The undersigned M & T Capital Corporation, New York corporation, (the
"Purchaser") hereby purchases 111,111 shares of the Common Stock of Educational
Modules, Inc., a New York corporation (the "Company") at a purchase price of
$9.00 per share for an aggregate purchase price of $999,999.00.
Summary
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The Company was organized in March, 1969, as a New York corporation.
Pursuant to its Articles of Incorporation, as amended, (the "Articles of
Incorporation"), the Company is authorized to issue 2,000,000 shares of Common
Stock, $.O5 par value, of which 474,202 shares are currently outstanding. The
Company is offering for sale up to 111,111 shares of its common stock. Upon
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completion of this Offering, assuming all 111,111 shares are sold, there will be
outstanding 585,313 shares of Common Stock.
The Offering
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The Company is raising from the sale of the shares $999,999. The shares
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any other state or federal securities laws, on the grounds
that the transaction in which the shares are to be issued qualifies for
applicable exemptions from the securities registration requirements of such
statutes. The exemptions being claimed include, but are not necessarily limited
to, those available under Sections 3(b) and 4(2) of the Securities Act and, the
reliance by the Company upon the exemptions from the securities registration
requirements of federal and state securities laws is predicated in part on the
representations, understandings and covenants set forth in this Stock Purchase
Agreement.
Company Representations and Warranties
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The Company hereby represents and warrants to the Purchaser as follows:
1. To the best of its knowledge, there is no action, suit, customer
claim, proceeding or investigation at law or in equity or by or before any
court, governmental instrumentality or other agency now pending or threatened
against or affecting the Company, nor does the Company know of any valid basis
therefor which, if proven, would be reasonably expected to materially and
adversely affect the Company's business, properties, assets, prospects or
condition (financial or otherwise).
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2. To the best of its knowledge, the Company is not in default (a)
under its Articles of Incorporation or Bylaws, or any indenture, mortgage,
lease, purchase or sales order, or any other contract, agreement or instrument
to which the Company is a party or by which it or any of its property is bound
or affected or (b) with respect to any order, writ, injunction or decree of any
court or any federal, state, municipal or other domestic or foreign governmental
department, commission, board, bureau, agency or instrumentality. The Company
does not know of any condition, event or act which constitutes, or which after
notice, lapse of time, or both, would constitute, a default under any of the
foregoing.
3. To the best of its knowledge, the Company has complied in all
material respects with all federal, state, local and foreign laws, ordinances,
regulations and orders applicable to it, its business or the ownership of its
assets.
4. The execution, delivery and performance by the Company of this
Agreement, have been duly authorized by all requisite corporate action by the
Company; and, this Agreement constitutes the valid and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent that
enforcement hereof is limited by or contrary to (i) bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally, or
(ii) general equitable principles. The execution, delivery and performance of
this Agreement, will not (a) violate any provision of present law, statute, rule
or regulation, or any present ruling, writ, injunction, order, judgment or
decree of any court, administrative agency or other governmental body applicable
to the Company or any of its properties or assets or (b) to the best of its
knowledge, conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute (with due notice or lapse of time, or both) a
default (or give rise to any right of termination, cancellation or acceleration)
under or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company under the
Articles of Incorporation or Bylaws, or any note, indenture, mortgage, lease
agreement or other contract, agreement or instrument to which the Company is
presently a party or by which it or any of its property is presently bound or
affected.
5. The issuance, sale and delivery of the Shares have been duly
authorized by all requisite corporate action of the Company, and when issued,
sold and delivered in accordance with this Agreement, the shares of Common Stock
will be validly issued and outstanding, fully paid and nonassessable, and not
subject to preemptive or any other similar rights of the stockholders of the
Company or others except as provided herein or in a document referred to herein.
6. No brokers or finders are being utilized by the Company in
connection with this Offering, and no commissions or fees of any kind will be
paid by the Company to any person in connection with this Offering.
7. The Company has maintained, and the Company will continue to
maintain at all times, insurance coverage for the Company and its properties to
the extent that the Company reasonably determines to be appropriate under the
circumstances and in accordance with practices in the industry.
8. The Company has delivered to the Purchaser copies of the Company's
audited financial statements for the year ending January 31, 1992 and unaudited
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financial statements for the nine month period ending October 31, 1992
(collectively the "Financial Statements"). The Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis and are complete and correct to the best of the Company's
knowledge and fairly present the financial condition and results of operations
of the Company. Since October 31, 1992, there has been no material change in the
Company's assets, liabilities business or prospects. The Company does not know
or have reasonable grounds to know of any basis for the assertion against the
Company of any material liability of any nature not fully reflected or reserved
against in the Financial Statements.
CONDITIONS TO CLOSING OF PURCHASER
The Purchaser's obligation to purchase the shares of Common Stock set forth
in this Stock Purchase Agreement is conditioned upon the Company providing the
Registration Rights and satisfying the other conditions set forth in Sections 1
through 8 below.
Registration Rights
1. Incidental Registration. If the Company at any time proposes
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for any reason to register any of its securities under the Securities Act
(other than pursuant to a registration statement on Form S-8, S-4 or
similar or successor form (collectively, "Excluded Forms")), it shall at
such time promptly give written notice to the Purchasers of its intention
so to do, and, upon the written request, given within 30 days after
receipt of any such notice, or the Purchaser to register any shares of
Common Stock (which request shall specify the shares intended to be sold
or disposed of and shall state the intended method of disposition of such
shares), the Company shall use its best efforts to cause all such shares
of Common Stock to be registered under the Securities Act promptly upon
receipt of the written request of such holders for such registration, all
to the extent requisite to permit the sale or other disposition (in
accordance with the intended methods thereof, as aforesaid) by the
Purchaser. In the event that the proposed registration by the Company is,
in whole or in part, an underwritten public offering of securities of the
Company, any request pursuant to this Section 1 to register Common Stock
may specify that such shares are to be included in the underwriting (a)
on the same terms and conditions as those on which any Common Stock is
otherwise being sold through underwriters under such registration or (b)
on terms and conditions comparable to those normally applicable to
offerings of common stock in reasonably similar circumstances in the
event that no shares of Common Stock are being sold through underwriters
under such registration; provided, however, that if the managing
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underwriter determines and advises in writing that the inclusion of all
Common Stock proposed to be included in the underwritten public offering
and other issued and outstanding shares of Common Stock proposed
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to be included therein by persons other than those owned by the Purchaser (the
"Other Shares") would interfere with the successful marketing of such
securities, then the number of shares of Common Stock and Other Shares to be
included in such underwritten public offering shall be reduced, pro rata;
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provided, however, that in no event may such reduction have the effect of not
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permitting at least 33-1/3% of the shares of Common Stock subject to this
Agreement to be included in the underwritten public offering.
2. Preparation and Filing. If and whenever the Company is under an
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obligation pursuant to the provisions of Section 1 to use its best efforts to
effect the registration of any Common Stock, the Company shall, as expeditiously
as practicable:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement with respect to such securities and use
its best efforts to cause such registration statement to become and remain
effective in accordance with Section 2(b);
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective until the earlier
of the date on which (i) all Common Stock registered pursuant thereto shall have
been sold, (ii) the holders of the Purchaser's Common Stock being so registered
agree to terminate said registration, (iii) the registration rights hereunder
terminate and (iv) 90 days from the date such registration statement shall have
become effective, and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all Common Stock covered by such
registration statement;
(c) furnish to each selling stockholder such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
to facilitate the public sale or other disposition of such Common Stock;
(d) use its best efforts to register or qualify the Common Stock covered by
such registration statement under the securities or "blue sky" laws of such
jurisdictions as each such seller reasonably request (provided, however, that
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the Company shall not be required to consent to general service of process for
all purposes in any jurisdiction where it is not then qualified) and do any and
all other acts or things which may be
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necessary or advisable to enable such seller to consummate the public sale or
other disposition in such jurisdictions of such securities;
(e) notify each seller of Common Stock covered by such registration
statement, at any time when a prospectus relating thereto covered by such
registration statement is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 2(b), of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and, at the request of such seller, prepare and furnish to
such seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing; and
(f) furnish, at the request of any holder or holders requesting registration
of Common Stock pursuant to Section 1, on the date that such Common Stock is
delivered to the underwriters for sale in connection with such registration, if
such securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration statement
with respect to such securities become effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Company; and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the holder or
holders making such request.
3. Expenses. All expenses incurred by the Company in complying with
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Section 2, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), fees and expenses of complying with securities and
"blue sky" laws, printing expenses and fees and disbursements of counsel,
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including with respect to each registration effected pursuant to Section 1, and
the Company's independent certified public accounts (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company) shall be paid by the Company. In the case of a
registration under Section 1, the selling stockholders will bear all incremental
costs that would not be incurred except for the exercise by the Purchaser of its
rights under Section 1.
4. Indemnification. In the event of any registration of any Common Stock
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under the Securities Act pursuant to Section 1, the Company shall indemnify and
hold harmless the seller of such shares, each broker or any other person acting
on behalf of such seller and each other person, if any, who controls any of the
foregoing persons, within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any of the foregoing
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any registration statement under which such
Common Stock was registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or any document prepared and or furnished by the Company incident to the
registration or qualification of any Common Stock, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
or, with respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or any
violation by the Company of the Securities Act or state securities or "blue
sky" laws applicable to the Company and relating to action or inaction required
of the Company in connection with such registration or qualification under such
state securities blue sky laws; and shall reimburse such seller, such
underwriter, broker or other person acting on behalf of such seller and each
such controlling person for any legal or any other expenses reasonably incurred
by any of them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
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not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in said registration
statement, said preliminary prospectus or said prospectus or said amendment or
supplement or any document incident to the registration or qualification of any
Common Stock in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller or
such underwriter specifically for use in the preparation thereof.
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Before Common Stock held by any prospective seller shall be included in any
registration pursuant to this Agreement, such prospective seller and any
underwriter acting on its behalf shall have agreed to indemnify and hold
harmless (in the same manner and to the same extent as set forth in the
preceding paragraph) the Company, each director of the Company, each officer of
the Company who shall sign such registration statement and any person who
controls the Company within the meaning of the Securities Act, with respect to
any untrue statements or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, if such untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or such underwriter specifically for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus or amendment or supplement; provided that the maximum amount of
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liability in respect of such indemnification shall be limited, in the case of
each prospective seller of Common Stock, to an amount equal to the net proceeds
actually received by such prospective seller from the sale of Common Stock
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 4, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of such claim and/or the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall be responsible for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof; provided that if any indemnified party shall have reasonably
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concluded that there may be one or more legal defenses available to the
indemnifying party, or that such claim or litigation involves or could have an
effect upon matters beyond the scope of the indemnity agreement provided in this
Section 4, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party and such indemnifying party
shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which are reasonably related to the matters
covered by the indemnity agreement provided in this Section 4.
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The indemnifying party shall not make any settlement of any claims
indemnified against hereunder without the written consent of the indemnified
party or parties, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing provisions of this Section 4, if pursuant to
an underwritten public offering the Company, the selling shareholders and the
underwriters enter into an underwriting or purchase agreement relating to such
offering which contains provisions of indemnification, this Section 4 shall be
deemed inoperative for purposes of such offering.
5. Securities Act Registration Statements. Except for securities of the
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Company registered on Excluded Forms, the Company shall not file any
registration statement under the Securities Act covering any securities unless
it shall first have given the Purchaser written notice thereof. The Company
further covenants that the Purchaser shall have the right, at any time when it
may be deemed by the Company to be a controlling person of the Company, to
participate in the preparation of such registration statement and to request the
insertion therein of material furnished to the Company in writing which in the
Purchaser's judgment should be included. In connection with any registration
statement referred to in this Section 5, the Company will indemnify, to the
extent permitted by law, the Purchaser, their partners, officers and directors
and each person, if any, who controls the Purchaser within the meaning of
Section 15 of the Securities Act, against all losses, claims, damages,
liabilities and expenses caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus or any preliminary prospectus or any amendment thereto or supplement
thereto or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any untrue statement or alleged untrue
statement or omission contained in written information furnished to the Company
by the Purchaser expressly for use in such registration statement. If, in
connection with any such registration statement, the Purchaser shall furnish
written information to the Company expressly for use in the registration
statement, the Purchaser will indemnify to the extent permitted by law the
Company, the directors, each of its officers who sign such registration
statement and each person, if any, who controls the Company within the meaning
of the Securities Act against all losses, claims, damages, liabilities and
expenses caused by any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in the registration statement or prospectus or any preliminary
prospectus or any amendment thereof or supplement thereto or necessary to make
the statement therein not
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misleading, buy only to the extent that such untrue statement or alleged
untrue statement or such omission or alleged omission is contained in
information so furnished in writing by the Purchaser for use therein. In
the event that the Purchaser sells Common Stock pursuant to a registration
statement filed by the Company the Purchaser shall furnish to the Company
and such other parties as the Company may designate such information and
execute such documents regarding the Common Stock held by and to be sold or
otherwise disposed of by such Purchaser as the Company shall request.
6. The Company, the Purchaser, Fred Klaucke, James Froehler,
Richard Callen and Thomas James shall have entered into a Voting Agreement
in form and substance acceptable to the Purchaser and the Company, which
shall provide for the voting of the shares of Common Stock held by the
parties thereto.
7. The Company shall have property completed all Small Business
Administration forms presented to the Company prior to closing by the
Purchaser and which are required to be submitted to Small Business
Administration in connection with investment in the Company.
8. The Purchaser shall have received from Darweesh, Callen & Lewis,
counsel for the Company, an opinion dated the Closing Date, based upon
reasonable investigation and in form and substance satisfactory to the
Purchaser and its counsel.
Right of First Refusal (Purchasers)
1. Generally. The Company shall not issue, sell or
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exchange, agree to issue, sell or exchange, or reserve or set aside for
issuance, sale or exchange, any (i) shares of Common Stock, Preferred Stock
or any other equity security of the Company, (ii) any debt security or
capitalized lease with an equity feature of the Company or (iii) any
option, warrant or other right to subscribe for, purchase or otherwise
acquire any equity security or any such debt security or capitalized lease
of the Company (except as may be issued to banks or leasing companies in
order to obtain financing or secure leases of equipment), unless in each
case the Company shall have first offered to sell to the Purchaser its
Proportionate Percentage of such securities (the "Offered Securities"), at
a price and on such other terms as shall have been specified by the Company
in writing delivered to the Purchaser (the "Offer"), which Offer by its
terms shall remain open and irrevocable for a period of 20 days from the
date it is delivered by the Company to the Purchaser.
2. Notice of Acceptance. Notice of the Purchaser's intention to
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accept, in whole or in part, an Offer shall be
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evidenced by a writing signed by a representative of the Purchaser and delivered
to the Company prior to the end of the 20-day period of such Offer, setting
forth such portion of the Offered Securities the Purchaser elects to purchase
(the "Notice of Acceptance").
3. Refused Securities. In the event that Notices of Acceptance are not
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given by the Purchaser in respect of its entire proportionate percentage of the
Offered Securities, the Company shall have 90 days from the expiration of the
foregoing 20-day period, to sell all or any part of such Offered Securities as
to which a Notice of Acceptance has not been given by the Purchaser (the
"Refused Securities") to any other person or persons, but only upon terms and
conditions in all respects, including without limitation, unit price and
interest rates, which are no more favorable, in the aggregate, to such other
person or persons or less favorable to the Company that those set forth in the
Offer. Upon the closing, which shall include full payment to the Company, of the
sale to such other person or persons of all the Refused Securities, the
Purchaser shall purchase from the Company, and the Company shall sell to the
Purchaser the Offered Securities in respect of which Notices of Acceptance were
delivered to the Company by the Purchaser, at the terms specified in the Offer.
4. Excluded Securities. The rights of the Purchaser shall not apply to
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the following securities (the "Excluded Securities"):
(i) Common stock issued as a stock dividend or upon any stock split or
other subdivision or combination of shares of Common Stock;
(ii) Common Stock issued to the public pursuant to an effective
registration statement filed with the Securities and Exchange Commission; and
(iii) Securities issued pursuant to the acquisition of another corporation
by the Company by merger, stock acquisition, purchase of substantially all of
the assets or otherwise whereby the Company owns at least 51% of the voting
power of such other corporation after such transaction.
(iv) Stock Option or similar plan.
(v) Up to 100,000 shares of Common Stock to be issued at an offering
price of $9.00 per share within 6 months of the date of this Agreement pursuant
to a private sale exemption under the Securities Act of 1933.
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5. Proportionate Percentage. "Proportionate Percentage" shall
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mean, as to the Purchaser, that percentage figure which expresses the ratio
which (x) the number of shares of outstanding Common Stock then owned by
the Purchaser bears to (y) the aggregate number of shares of all
outstanding Common Stock then outstanding.
Co-Sale Rights
Mr. Klaucke hereby covenants and agrees that he (a "Co-Selling
Shareholder") will give ten (10) days written notice to the Purchaser in the
event that he proposes to sell in other than (i) a registered offering or other
than (ii) a sale pursuant to Rule 144 or other than (iii) to an employee or
officer of the Company, an amount of Common Stock which together with all prior
or contemporaneous sales of Common Stock by such Co-Selling Shareholder and
affiliates (as defined in the Securities Act) of such person in the aggregate
exceeds 10% of the number of shares of Common Stock held collectively by such
Co-Selling Shareholder and affiliates on the date hereof or 20% taking into
consideration shares sold to officers and employees of the Company. Upon
written notice of such Co-Selling Shareholder given within ten (10) days after
receipt of such notice, the Purchaser shall be permitted, but not required, to
participate with such Co-Selling Shareholder in any such sale. This provision
shall terminate as to a Purchase on any date on which it or any Affiliate ceases
to own any of the Company's Securities.
James Froehler shall also be deemed a "Co-Selling Shareholder" for purposes
of this paragraph in the event that Mr. Froehler shall acquire more than 10% of
the outstanding Common Stock of the Company, in which event he shall be bound by
the same terms and conditions of co-sale as Mr. Klaucke. For purposes of
determining whether Mr. Froehler owns 10% of the outstanding stock of the
company, all shares sold by Mr. Froehler during a period of twelve months
preceding the date of the calculation shall be included.
The Company covenants and represents that it will not register a transfer of
Common Stock on the registration books of the Company which has been sold in
contravention of this Section. If Mr. Klaucke makes a sale of Common Stock in
contravention of this Section, he shall be deemed to hold the proceeds of such
sale on a resulting trust in favor of the Purchasers in an amount equal to that
to which the Purchasers would have been entitled to receive on such sale
pursuant to the provisions of this Section and shall immediately pay over to the
Purchasers such amount in exchange for transfer of Common Stock at the highest
price per share received by such Original Shareholder. Any costs associated with
such sale will be prorated among the selling shareholders.
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Miscellaneous
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1. Information Rights: Provided that the furnishing of such information
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shall not violate any rule, regulation or law, purchaser will receive monthly
and quarterly unaudited financial statements within 45 days after the end of
each month and each quarter; annual audited financial statements, within 90 days
after the end of each fiscal year; budgets, and interim information of any
events or happenings which the Company deems to be material as long as they
continue to be shareholders in the Company. This provision will terminate upon
consummation of a public offering.
2. The Company shall maintain a Board of Directors consisting of at least
five directors. M & T Capital shall have the right to nominate one of those
directors and to have that director put on the Company's slate of directors to
be elected by the Company's shareholders. This right granted to M & T Capital
shall terminated at such time as M & T Capital shall reduce its stock holdings
by an amount equal to 80% or more.
3. Non-Disclosure, Non-Competition Agreements. Mr. Klaucke and Mr.
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Froehler will sign non-disclosure and non-competition agreements effective
during, and for a period of one year after termination of their employment with
the Company. This provision will terminate upon the sale of the Company.
4. Notices. Any notice required hereunder shall be given in writing and
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shall be sent by registered or certified mail, return receipt requested to the
parties hereto at their addresses as set forth in the books and records of the
Company.
5. Binding Effect. This Agreement shall be binding upon the parties,
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their heirs, legal representatives, successors and assigns. Any rights of a
Stockholder under this Agreement shall be assigned by such Stockholder to any
transferee of the Stockholder's Stock.
6. Governing Law. This Agreement shall be interpreted under the laws of
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the State of New York and the venue of any litigation shall be in a court of
competent jurisdiction in Monroe County of New York.
7. Amendment. This Agreement may be amended, altered or revoked at any
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time upon the mutual agreement of the Company and all of the Purchasers.
8. Counterpart Execution. This Agreement may be executed in two or more
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identical counterparts, each of which need be signed by only one of the parties
hereto, and all of such counterparts together shall constitute an Agreement.
9. Purchaser's Legal Action. In the event of legal action brought against
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the Company on the Agreement by a Purchaser, such recovery will be limited to
the Purchaser's costs for their shares plus New York State statutory interest on
judgments. In addition, if the
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Company is successful in the defense of any such litigation, the Purchaser shall
bear the Company's legal expenses.
10. The Purchaser Representation and Warranty attached hereto is
incorporated herein and made a part hereof.
M & T CAPITAL CORPORATION
By: /s/ Philip A. McNeill
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Philip A. McNeill, Vice President
Agreed to and accepted this 16th
day of December, 1992, by
EDUCATIONAL MODULES, INC.
By: /s/ Fred H. Klaucke, CEO
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Fred H. Klaucke, CEO
Agreed to and accepted this 16th
day of December, 1992, by the
undersigned with respect only
to the Article entitled
"Co-Sale Rights"
/s/ Fred H. Klaucke, CEO
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Fred H. Klaucke
/s/ James Froehler
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James Froehler
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