EXHIBIT 10(d)
STOCK PURCHASE AGREEMENT
between
GENERAL ELECTRIC CAPITAL CORPORATION
and
C.I.S. TECHNOLOGIES, INC.
Dated as of October 15, 1994
STOCK PURCHASE AGREEMENT, dated as of October 15, 1994, between General
Electric Capital Corporation, a New York corporation (the "Purchaser"), and
C.I.S. Technologies, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Purchaser wishes to purchase from the Company, and the Company
wishes to sell to the Purchaser shares of the Company's Common Stock, $.01 par
value per share (the "Stock") (unless otherwise defined, all capitalized terms
used herein shall have the respective meanings ascribed to them in Section 5);
and
WHEREAS, the Purchaser and the Company are entering into this Agreement to
provide for such purchase and sale and to establish various rights and
obligations in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, and such other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto intending
to be legally bound, agree as follows:
1. Purchase and Sale of Shares.
1.1. Closing. Upon the terms set forth herein and contemporaneously with
the execution of this Agreement, the Company is selling to the Purchaser, and
the Purchaser is purchasing from the Company, an aggregate of 840,336 shares of
Stock (the "Shares").
At the closing of the purchase and sale of the Shares (the "Closing"):
(i) Pray, Walker, Jackman, Williamson & Marlar, counsel to the
Company, shall deliver to the Purchaser a legal opinion
substantially in the form of Exhibit A hereto;
(ii) the Company and the Purchaser shall enter into a
registration rights agreement in
the form of Exhibit B hereto (the "Registration Rights
Agreement");
(iii) the Company shall deliver to the Purchaser a stock
certificate in definitive form registered in the name of the
Purchaser, representing the Shares being purchased by the
Purchaser pursuant hereto;
(iv) the Purchaser shall pay to the Company Two Million
($2,000,000) U.S. Dollars by wire transfer of immediately
available funds to an account previously identified by the
Company; and
(v) no material adverse change in the business, condition,
operations (financial or otherwise) or prospects of the Company
and its subsidiaries taken as a whole from that set forth in the
balance sheet as of December 31, 1993, included in the SEC
Reports (as defined below), other than changes disclosed or
referred to in the SEC Reports or otherwise disclosed to the
Purchaser in writing prior to the execution by the Purchaser of
this Agreement, shall have occurred.
The Closing of the purchase and sale of the Shares shall be deemed to have
taken place in the State of New York.
1.2. Condition to Closing. The obligation of the Purchaser to purchase
the Shares is subject to the closing of the transactions contemplated by, and
the satisfaction of the conditions precedent thereto set forth in, the Credit
Agreement, among the Company, C.I.S., Inc. and Hospital Billing Analysis, Inc.,
the Company's wholly-owned subsidiaries, and the Purchaser, dated as of the date
hereof (the "Credit Agreement") and the Strategic Alliance Agreement, between GE
Capital Commercial Finance, Inc. and the Purchaser, dated as of the date hereof.
2. Representations and Warranties of the Company. The Company represents
and warrants as of the date hereof as follows and such representations and
warranties shall not be deemed to be remade on any subsequent date:
2
2.1. Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and has
the power and authority to own its respective property and to carry on its
respective business as now being conducted. Each of the Company and its
subsidiaries is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which the nature of its respective
business conducted or property owned by it makes such qualification necessary
and where the failure so to qualify would have a material adverse effect on the
business or condition (financial or otherwise) of the Company taken as a whole.
2.2. Due Authorization. The Company has all right, power and authority to
enter into and perform this Agreement and the Registration Rights Agreement and
to issue and sell the Shares. The execution and delivery of this Agreement and
the Registration Rights Agreement, the issuance and sale of the Shares by the
Company and the compliance by the Company with all the provisions of this
Agreement and the Registration Rights Agreement (i) are within the power and
authority of the Company, (ii) do not require the approval or consent of any
stockholders of the Company, any governmental authority or any third party and
(iii) have been authorized by all requisite action on the part of the Company.
This Agreement and the Registration Rights Agreement have been duly executed and
delivered by the Company and constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors rights and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. The Company has furnished to the Purchaser true and correct
copies of the Company's Certificate of Incorporation and By-laws as in effect on
the date of this Agreement.
2.3. Status of Shares. Upon issuance of the Shares at Closing, the Shares
will be validly issued, fully paid and nonassessable and the issuance of the
Shares is not and will not be subject to preemptive rights of any other
stockholder of the Company.
3
2.4. SEC Reports. The Stock is registered under Section 12(b) or (g) of
the Exchange Act, and the Company has filed all proxy statements, reports and
other documents required to be filed by it under the Exchange Act. The Company
has furnished the Purchaser true and correct copies of its Annual Report on Form
10-K for the fiscal year ended December 31, 1993, and all proxy statements and
reports under the Exchange Act filed by the Company after such date, each as
filed with the Commission (collectively, the "SEC Reports"). Each SEC Report,
at the time it was filed with or delivered to the Commission, was in substantial
compliance with the requirements of its respective report form.
2.5. Consents. The Company is not required to obtain any consent,
approval or authorization of, or to make any declaration or filing with, any
governmental authority as a condition to or in connection with the valid
execution, delivery and performance of this Agreement or the Registration Rights
Agreement and the valid offer, issue, sale or delivery of the Shares, or the
performance by the Company of its obligations in respect thereof, except for any
filings required to effect any registration pursuant to and as contemplated
specifically by the Registration Rights Agreement and any filings required
pursuant to state and federal securities laws which will be timely made after
the Closing hereunder.
2.6. No Conflict. None of the execution and delivery of this Agreement or
the Registration Rights Agreement, the issuance of the Shares or the fulfillment
of, or compliance with, the terms and provisions hereof or thereof will conflict
with or result in a breach of the terms, conditions or provisions of, give rise
to a right of termination under, constitute a default under or result in any
violation of (i) the Certificate of Incorporation or By-laws of the Company,
(ii) any indenture, loan agreement, lease, mortgage or other agreement binding
on the Company, (iii) any judgment or decree of a court or administrative agency
binding on the Company or (iv) any applicable statute, law, rule or regulation
to which the Company or any of its subsidiaries or any of their respective
property is subject. Performance by the Company of its obligations under this
Agreement and the Registration Rights Agreement will not result in the
imposition or creation of any lien or charge against any assets of the Company.
Neither the Company nor its subsidiaries is a party to any contract or agreement
or subject to any charter or other corporate
4
restriction which materially and adversely affects its business, property,
assets, financial condition or prospects. Neither the Company nor any of its
subsidiaries is in default under any outstanding indenture or other debt
instrument or with respect to the payment of the principal of or interest on any
outstanding obligations for borrowed money or is in default under any of their
respective contracts or agreements or under any instrument by which the Company
or any of its subsidiaries is bound, in each case which default materially and
adversely affects the business, operations, assets, financial condition or
prospects of the Company and its subsidiaries taken as a whole.
2.7. Capitalization. The authorized capital stock of the Company consists
of (i) 50,000,000 shares of Stock, of which, as of the date hereof, 28,416,539
shares are outstanding and 1,017,745 shares are held in its treasury and (ii)
20,000,000 shares of preferred stock, $.01 par value, no shares of which are
issued and outstanding. All of such outstanding shares have been validly issued
and are fully paid and nonassessable. No class of capital stock of the Company
is entitled to preemptive rights. Except for the options and warrants listed on
Schedule 2.7 hereto or disclosed in the SEC Reports, there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into,
shares of any capital stock of the Company or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
issue additional shares of its capital stock or options, warrants or rights to
purchase or acquire any shares of its capital stock. Since December 31, 1993,
the Company has not changed the amount of its authorized capital stock or
subdivided or otherwise changed any shares of any class of its capital stock,
whether by way of reclassification, recapitalization, stock split or otherwise
or issued or reissued, or agreed to issue, reissue, redeem or repurchase, any of
its capital stock, except as disclosed on Schedule 2.7 and has not since such
date declared or paid any dividend in cash or stock or made any other
distribution of assets to its stockholders. The Company has no obligation to
register any of its securities other than pursuant to the Registration Rights
Agreement.
2.8. Other Matters. The Company is not now and will not be, after giving
effect to the receipt of the proceeds from the sale of the Shares, an
"investment company" within the meaning of the Investment Company Act of
5
1940, nor will it be controlled by or acting on behalf of any person which is
such an investment company. The Company does not own any "margin stock" within
the meaning of Regulation G of the Board of Governors of the Federal Reserve
System and is not selling the Shares "for the purpose of purchasing or carrying
any margin stock" within the meaning of the said Regulation G.
2.9. Disclosure. None of this Agreement, any SEC Report, or any
certificate or written disclosure furnished to the Purchaser by or on behalf of
the Company in connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading.
There is no fact peculiar to the Company which the Company has not disclosed to
the Purchaser in writing which materially affects adversely or, so far as the
Company can now reasonably foresee, could materially affect adversely the
properties, business, condition (financial or otherwise) or prospects of the
Company and its subsidiaries taken as a whole or the ability of the Company to
perform this Agreement, the Registration Rights Agreement or its obligations in
respect of the Shares.
2.10. Offering of Shares. Neither the Company nor any Person acting on
its behalf has offered the Shares or any similar securities of the Company for
sale to, solicited any offers to buy the Shares or any similar securities of the
Company from or otherwise approached or negotiated with respect to the Company
with any Person other than the Purchaser, except for an offer for the Shares
made to one institutional investor, which offer is not currently outstanding.
Neither the Company nor any Person acting on its behalf has taken or will take
any action (including, without limitation, any offering of any securities of the
Company under circumstances which would require the integration of such offering
with the offering of the Shares under the Securities Act and the rules and
regulations of the Commission thereunder) which might subject the issuance or
sale of the Shares to the registration requirements of Section 5 of the
Securities Act.
2.11. Brokers or Finders. No agent, broker, investment banker or other
firm or Person is or will be entitled to any broker's fee or any other
commission or similar fee for which the Purchaser shall be responsible.
6
2.12. Credit Agreement Representations and Warranties. All the
representations and warranties made by the Company in the Credit Agreement are
true and correct as of the date hereof and are hereby incorporated into and made
a part of this Agreement as if set forth in full herein.
3. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants as of the date hereof as follows:
3.1. Due Authorization. The Purchaser has all corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on behalf of
the Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, except that (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
3.2. Acquisition for Investment. The Purchaser is acquiring the Shares
for its own account for the purpose of investment and not with a view to or for
sale in connection with any "distribution" (within the meaning of the Securities
Act) thereof, and the Purchaser has no present intention or plan to effect any
distribution of the Shares. The Purchaser understands that certificates
representing the Shares shall bear the legend set forth in Section 6.12 hereof.
3.3. Brokers or Finders. No agent, broker, investment banker or other
firm or Person is or will be entitled to any broker's fee or any other
commission or similar fee for which the Company shall be responsible.
3.4. Accredited Investor. The Purchaser is an "accredited investor"
within the meaning of Rule 501 promulgated under the Securities Act.
7
4. Covenants of the Company. The Company hereby covenants that, during
such time as the Purchaser (or one of its Affiliates) owns a minimum of 500,000
Shares:
4.1. Reports and Financial Statements.
(a) The Company will cause its Stock to continue to be registered under
Sections 12(b) or 12(g) of the Exchange Act, will comply with its reporting and
filing obligations under the Exchange Act and will not take any action or file
any document (whether or not permitted by the Exchange Act or the rules
thereunder) to terminate or suspend such registration or to terminate or suspend
its reporting and filing obligations under the Exchange Act. The Company will
take all action necessary to continue the listing or trading of its common stock
on any national securities exchange or the Automated Quotation System of the
National Association of Securities Dealers on which such common stock is listed
or traded and will comply with its reporting, filing and other obligations under
the Exchange Act, the Securities Act and the bylaws or rules of said exchange or
Association.
(b) The Company will furnish to the Purchaser, concurrently with the
distribution or filing thereof, each annual and quarterly report to its
shareholders, its reports on Form 10-K and 10-Q and each other report,
registration statement, definitive proxy statement or other document filed with
the Commission and any reports, listing applications or other documents filed
with any national securities exchange or the National Association of Securities
Dealers, and each press release or other public announcement issued by the
Company.
4.2. Rights of Inspection. The Company will permit representatives of the
Purchaser to visit and inspect any of the properties of the Company, including
its books of account, and to discuss its affairs, finances and accounts with the
Company's officers and its independent public accountants, all at such
reasonable times and as often as the Purchaser may reasonably request.
4.3. Maintenance and Compliance. The Company will and will cause its
subsidiaries to (i) maintain its corporate existence, rights, powers and
privileges in good standing, (ii) pay promptly when due all taxes, assessments
and governmental charges properly imposed on it, (iii) maintain its properties
in workable condition and repair,
8
(iv) comply in all material respects with all laws and governmental regulations
and restrictions applicable to its business or properties, (v) maintain with
financially sound insurers such insurance coverage against liability, fire and
other risks as is reasonably prudent and customary for companies similarly
situated, (vi) keep records and books of account and maintain a system of
internal accounting controls in accordance with generally accepted accounting
principles and in compliance with Section 13(b)(2) of the Exchange Act, (vii)
retain independent public accountants of recognized national standing as
auditors of the Company's annual financial statements, (viii) comply in all
material respects with ERISA and (ix) comply in all material respects with all
applicable Environmental Regulations.
4.4. Press Release; Public Offering Materials. The Company will not and
will not permit any of its subsidiaries to disclose the name of the Purchaser in
any press release or in any prospectus, proxy statement or other materials filed
with any governmental entity relating to a public offering of the capital stock
of the Company without the Purchaser's prior written consent which consent shall
not be unreasonably withheld.
5. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act
(as in effect on the date of this Agreement), it being understood that any
limited partner of a partnership shall not be an Affiliate of such partnership
solely by virtue of its status as such a limited partner.
"Commission" means the Securities and Exchange Commission.
"Environmental Regulations" means all federal, state, local and foreign
environmental laws, statutes, rules, regulations, order and ordinances, as
amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
9
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include reference to the comparable
section, if any, of any such similar Federal statute.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization, government or department or agency of a
government.
"SEC Reports" has the meaning provided in Section 2.4 hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act shall include reference to the
comparable section, if any, of any such similar Federal statute.
6. Miscellaneous.
6.1. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable.
6.2. Specific Enforcement. The Purchaser, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they may be entitled at law or equity.
10
6.3. Entire Agreement. This Agreement (including the exhibits hereto)
contains the entire understanding of the parties with respect to the
transactions contemplated hereby.
6.4. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
6.5. Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be validly given, if in
writing and delivered personally, by confirmed telecopy or by registered mail or
nationally recognized air courier, postage prepaid, to:
the Company:
C.I.S. Technologies, Inc.
One Warren Place
6100 South Yale, Suite 1900
Tulsa, Oklahoma 74136-1930
Attention: Philip D. Kurtz
Chairman and Chief Executive Officer
Telecopy: (918) 481-4276
With a copy to:
Pray, Walker, Jackman, Williamson & Marlar
900 Oneok Plaza
100 West 5th Street
Tulsa, OK 74103-4218
Attention: Thomas G. Noulles, Esq.
Telecopy: (918) 581-5599
11
the Purchaser:
General Electric Capital Corporation
501 Merritt Seven
Norwalk, CT 06851
Attention: Daniel R. Pengue
Vice President
Telecopy: (203) 840-4580
and
Attention: Legal Department
Telecopy: (203) 840-4520
With a copy to:
Paul, Hastings, Janofsky & Walker
1055 Washington Boulevard, 9th Floor
Stamford, CT 06901
Attention: Mario J. Ippolito, Esq.
Telecopy: (203) 359-3031
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner.
6.6. Amendments. Neither this Agreement nor any terms hereof may be
changed, waived, amended or modified unless such change, waiver, amendment or
modification is in writing and signed by the Company and the Purchaser or its
successors and assigns. This Agreement may not be waived, changed, modified or
discharged orally, but only by an agreement in writing signed by the party or
parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
6.7. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement (including any holder of
Shares), upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy of such party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach a default thereafter occurring, nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. All remedies, either under this
12
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
6.8. Cooperation. The Purchaser and the Company agree to take, or cause
to be taken, all such further or other actions as shall reasonably be necessary
to make effective and consummate the transactions contemplated by this
Agreement.
6.9. Successors and Assigns. (a) Except for Section 2.12, Article 4 and
Section 6.10(b) hereof, this Agreement and all covenants and agreements
contained herein shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns (including, without limitation, any
transferee of the Shares). The provisions contained in Section 6.10(a) shall
not be deemed to refer to any subsequent holder of the Shares other than such
Persons who agree to be bound by the terms of this Agreement.
(b) The rights of the Purchaser hereunder may be assigned by the Purchaser
in connection with the transfer or assignment of any Shares, and such rights may
be further reassigned by such transferee to another transferee. Any transferee
asserting rights under this Agreement shall be bound by its provisions.
6.10. Expenses and Remedies.
(a) The Company shall pay all stamp and other taxes payable with respect to
the issuance of the Shares, filing fees, fees and expenses of counsel (i)
incurred with respect to any amendment or waivers requested by the Company
(whether or not the same become effective) under this Agreement or the
Registration Rights Agreement or in connection with the rights of Purchaser (or
Purchaser's successors or assigns) with respect to the Shares and (ii) all such
expenses incurred with respect to the enforcement by the Purchaser (or
Purchaser's successors and assigns) of any provision of this Agreement or the
Registration Rights Agreement or in connection with the rights of Purchaser (or
Purchaser's successors or assigns) with respect to the Shares, including without
limitation, costs and expenses in any bankruptcy proceeding, provided, that such
Purchaser (or Purchaser's successors or assigns) prevailed in any such
enforcement action.
13
(b) The Company shall indemnify and save harmless the Purchaser and its
officers, directors, partners, employees, agents, representatives and each
person who controls the Purchaser within the meaning of the Exchange Act from
and against any and all costs, expenses, damages or other liabilities resulting
from any breach of this Agreement or the Registration Rights Agreement by the
Company or any legal, administrative or other proceedings arising out of the
transactions contemplated hereby or thereby, other than such costs, expenses,
damages or other liabilities resulting from the violation by the Purchaser of
any legal investment laws or other laws restricting or governing the Purchaser's
investments generally, from the violation by the Purchaser of any of its
agreements contained herein or therein or from the gross negligence or willful
misconduct of the Purchaser or any of its officers, directors, partners,
employees, agents or representatives or any person who controls the Purchaser
within the meaning of the Exchange Act as determined by a final judgment of a
court of competent jurisdiction; provided, however, that, if and to the extent
that such indemnification is unenforceable for any reason, the Company shall
make the maximum contribution to the payment and satisfaction of such
indemnified liability which shall be permissible under applicable laws.
6.11. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
issuance and delivery of the Shares, for a period of three years from the latest
date set forth under the signatures hereto, regardless of any investigation made
by or on behalf of any party.
6.12. Transfer of Shares. The Purchaser understands and agrees that the
Shares have not been registered under the Securities Act or the securities laws
of any state and that they may be sold or otherwise disposed of only in one or
more transactions registered under the Securities Act and, where applicable,
such laws, or as to which an exemption from the registration requirements of the
Securities Act and, where applicable, such laws are available. The Purchaser
understands and agrees that each certificate representing the Shares shall bear,
until so registered, the following legend:
14
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933 AND/OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATIONS(S) IS (ARE) NOT
REQUIRED THEREUNDER."
6.13. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES PERTAINING TO THIS AGREEMENT OR THE REGISTRATION RIGHTS
AGREEMENT; PROVIDED, THAT THE COMPANY AND THE PURCHASER ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW
YORK, NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS AGREEMENT OR THE
REGISTRATION RIGHTS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
PURCHASER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
PURCHASER. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT AND THE COMPANY
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION 6.5 OF THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
THE COMPANY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
6.14. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY
15
AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER IN CONTRACT, TORT,
OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO, THIS
AGREEMENT OR THE REGISTRATION RIGHTS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
6.15. Dating. Although this Agreement is dated as of the date first
written above for convenience, the actual dates of execution hereof by the
parties hereto are respectively the dates set forth under the signatures hereto,
and this Agreement shall be effective on the latest of such dates.
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Agreement to be duly executed, all as of the day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: _______________________________
Name:
Title:
Date:
C.I.S. TECHNOLOGIES, INC.
By: ___________________________________
Name:
Title:
Date:
16
SCHEDULE 2.7
Outstanding Options and Warrants
None
17