Exhibit 10.1
Revenge Marine, Inc.
75,000 Shares of Series C Cumulative Convertible Preferred Stock $50 per Share
Revenge Marine, Inc. (the "Company") is offering (the "Offering")
75,000 shares ("Shares") of its Series C Cumulative Convertible Preferred Stock
("Preferred Stock"), stated value $50 per share, currently trading under the
symbol "BOAT" on the Nasdaq Bulletin Board. The Offering is being made to
qualified investors solely by the Company's Private Placement Memorandum
regarding the Offering. These materials do not constitute an offer to sell or
any solicitation of an offer to buy the Preferred Stock. Such an offer is only
made by the Private Placement Memorandum. The terms of the Preferred Stock are
summarized in the accompanying Term Sheet.
The Company
Revenge Marine, Inc. (the "Company) is a holding company, which is moving its
business model to an Internet-based electronic marketing and commerce enterprise
for boating, saltwater sportfishing and marine products and other E-Commerce
related services. The intended Website will be the dominant category for
Internet-based information and e-commerce services targeting the boating,
saltwater sportfishing and marine recreation as well as the e-commerce segment
of the market, an affluent consumer population numbering up to 40 million just
in the Western Hemisphere. The Website design will feature an "end-to- end"
Internet e-commerce solution that seamlessly connects providers with consumers.
The Website is a destination and community site oriented to online commerce with
revenue from catalog retailing, advertising, direct marketing and promotion,
online travel promotions, and a unique marine craft brokering and auctioning
business, called the "Virtual Marina".
The Website's instructional and entertainment value for boating and fishing
combined with the product and service offerings will provide an online
environment with a comprehensive revenue mix that is more appealing to the
target upscale and affluent boating and saltwater marine enthusiasts than
current competitors on the World Wide Web.
The Company will operate the Website as an intermediary for the products and
services through strategic partnerships and alliances with industry leaders. The
Company has market brand recognition and certain marketing relationships through
which it expects enthusiastic participation from leaders in sportfishing and
marine-related manufacturing, distribution, reselling, and services. The Company
is building key support from Internet and other media entities seeking outlets
in the burgeoning Internet market, and from major Internet players with the
technology and markets to compliment the niche market attraction. Prospective
users will come to the Website for the content and community interest in
sportfishing and marine recreation. The Website will keep its visitors tuned in
by combining content, community, and commerce in a comprehensive Internet
presence oriented to the lifestyle of the affluent saltwater sportfishing and
marine population of the Western Hemisphere. The Company plans to launch the new
Website early in 2000. The timing is designed to take full advantage of the
emerging perfection of Internet
technologies for secure e-commerce transactions, a critical component to produce
mainstream confidence in the continuing surge in Internet consumer purchasing
and merchandiser advertising. Through very focused marketing programs, both
online and offline, the Company will achieve revenue and earnings objectives
through a multi-threaded approach to e-commerce. It will offer exclusivity,
sophistication, simplicity, and richness of presentation as an attraction to
membership. It will grow the member base and draw revenue from e-commerce
commissions and fees on goods and services, travel packages and promotions,
advertising, Website hosting fees from vendors, and specialty offline programs
such as workshops, seminars, and schools for sportfishing and boating.
Products and Services
Membership
In the short and robust history of the Internet, subscription membership remains
a very common method for Websites to enhance revenue by "selling" Website
visitors into their "clubs." The Company's membership will offer the means to
obtain priority treatment over the casual. The visitor verses member
differentiation model is a tool to create and enhance brand loyalty, while
giving another tier of service to the paying subscriber. All visitors will enjoy
free access on the site, where they can enjoy content and make purchases openly
and freely with no greater obligation than a non-fee bearing "registration".
Progressively, the Company envisions a "Members Only" area with restricted
content and specialization. Membership is important for brand loyalty and
audience development; so, membership is less a revenue source contributing to
profitability and is more a source for recurring marketing dollars.
Business to Business E-commerce
Web Hosting for Vendors
The concept of hosting Web services for prospective vendors takes advantage of
the fact that the sportfishing and marine recreation industry is highly
fragmented. It is made up of small manufacturers and service providers that are
not advanced Internet users. Ironically, while the Internet connectivity of
boating and fishing in general is five times the national average for the
general population, only a fraction (less than 10%) of the fishing and marine
recreation business are cyber-connected with their selling, buying, or supplying
activities. Those with an Internet presence manage with unsophisticated, static
"brochure-ware" Websites with e-mail response capability. The Company will fill
this gap between its Website visitors and the vendors by providing the sell,
buy, and supply electronic commerce capability. The service can be as small as
Website hosting with a modest merchant shopping system or it can be an
enterprise solution supporting front-end selling, merchant and billing, and
supply-chain and back-office solutions. The vendor can be an extension of the
Website or an independent Internet presence. For service providers like the
charter captains and guides, the Company can offer an economical Web presence
with e-mail, online reservation services, content submission capability, and
enhanced marketing. This under-served population is dependent on "renting out"
their services for a livelihood. The Company will provide these independent
business people with a Web-based business capability in order to connect them
electronically to a population that can refresh their regular customer base and
even expand it.
This "web page hosting" technique, when combined with free online classified
(yellow-page) listings, and e-mail consumer feedback loops, will help keep
Revenge Website visitors onsite, and, more importantly, it will link buyers and
sellers together in an immediate and dynamic way.
The long-term potential for the business-to-business activity remains an
unknown. The Company will keep this option in front of its vendors. As the
Internet continues its penetration in the business world, the opportunity to
capitalize on this offering is enormous in an industry of $100 plus billion
dollars.
Marketing Agreements
Revenge Marine is currently negotiating marketing agreements with a number of
the leading manufacturers of marine craft and is developing additional such
agreements. The basis of the relationship permits Revenge to promote and sell
the manufacturers' product lines through the Virtual Marina and other Website
venues. These agreements are a source of revenue from marketing fees as well as
commissions from the boat brokering activity. The relationships are an important
factor in the overall Internet strategy. In the highly fragmented marine
recreation industry the Company's e-commerce heralds the prospect of becoming a
major aggregator of business-to-business and consumer-to-business activity in
the industry.
Consumer to Business E-commerce
Catalog Sales
A growing segment of e-commerce consists of online catalog selling.1 Major
catalog retailers, such as Lands' End, Orvis, and Eddie Bauer, all recently
reinvigorated their presence on the Web. The Company believes that it can
establish and maintain its own catalog sales presence. The Company plans a
specialty mini-catalog in conjunction with third parties to directly sell goods
with tiered pricing: (1) regular "discount" pricing; (2) promotional discounts,
based on incentives from the suppliers; and (3) special discounts and promotions
for member. This is an approach to create a "Sky Mall" style catalog enterprise
online for small specialty vendors selling custom or unique product to the
upscale consumer.
Online shopping will also have a technology convention permitting a catalog
style representation of merchandise by class with the ability to specify product
by selection criteria -- particularly advertisers' products. This technology
transacts business directly with the manufacturer or distributor using
"shopping- bots" to get product information and best price for the product from
available online merchants. The Company's Webpage design would support online
consummation of the sale for the customer. This would permit Revenge Website
visitors to "get the best deal" without having to stumble through what for many
must seem like the "maze" of the Internet, looking for either the product or
service, or the best price. Further, the Company intends to carry no physical
inventory and may not even have the burden of the transaction fees incurred from
credit cards or similar payment methods, like cyber cash or online bank
checking. The Company will realize sales commissions at pre-negotiated rates
from each transaction and will net the commissions immediately and dynamically
to its bank account, as quickly as the customer's transaction is approved and
the order is posted. The Company will begin with its online catalog as part of
its initial offering for vendors utilizing its custom search engine.
Commissions & Fees
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1 Surveys of catalog activity verse storefront retailing on the Internet by
Forrester Research in its report dated December of 1999 revealed that catalog
sales account for 56% of the online business.
The Company also will develop alliances with travel services, ISP services,
purveyors of leisure time goods, and various suppliers that organize
recreational trips, such as marinas, lodging facilities, charter services, and
outfitters. In return for furnishing such parties an additional Internet venue
from which to furnish their goods and services, the Company will negotiate
commission arrangements. By late-year 2000, the Company believes that these fees
and commissions as part of the overall consumer-to-business revenues will
constitute the largest income potential for the company. The idea is that
advertising costs are inversely related to the volume of fees and commissions
for transactions generated through the Website. The higher the fees and
commissions, the lower the advertising costs. Offering vendor partnerships and
anchor sponsorships with preferential opportunities to sell goods or services
will mean the prospect for more vendors and greater volume sales to site
visitors. Simply, the more visitors transacting business through the Website,
the more vendors in this industry will desire to have access to the Company's
visitors. This will create vendor competitiveness for the available
sponsorships, increasing the percentage rate on commissions and fees, as well as
on the price of advertising.
The objective is to build the customer-centric model wherein the consumer
through self-profiling and search engine requests dictates the level of
opportunity for vendors. This will help the Company to target lifestyle goods
and services that best meet the interest and needs of the customer. Ideally, the
higher the correlation between interests and vendor offerings, the higher the
level of purchasing, and the greater the share of the customer's wallet.
A separate commerce activity in this arena is consumer lending products and
online banking. The Company is developing a relationship to offer through a
major financial institution such financial products and services as marine
financing, personal lines of credit, equity and mortgage financing, a credit
card or affinity card,2 and online banking services. This business is to be
critical as the Company expands into its destination markets with real estate
(vacation and 2nd homes) and large marine craft (boats above 22 feet AOL).
Advertising
The Company will sell advertising on its Website to suppliers of lifestyle
commodities serving the sportfishing, boating and marine recreation world. The
ability to sell sponsorship "virtual space" at given prices depends on the
Website traffic, and more importantly the average time a set of a visitor's
eyeballs is on the Website. The business is to create eyeball value on the
Website with its content, community, and commerce.
Promotions
The Company considers that "branding" its name and its "cause" will open
prospects for additional merchandising. Some opportunities may come with
memberships, others from the eventual maturation of the Website's "customer
share" on the Internet.
There could be the occasion to create a television broadcast fishing program
that could have popularity not unlike a "Click and Clack" of National Public
Radio Car-talk fame. With the Web as the tool, such a notion
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2 The affinity card is becoming a growing offering from Internet companies. This
is a personalized credit card (VISA or MasterCard) customized for the business.
could mean "online chat forums", eventually offering online streaming audio and
video (i.e., real-time - in effect. live action) and photos of fishing and
boating experiences and specialty trips. Late in 2000, the Company will
introduce an "exchange." This is a medium for buyers and sellers to interchange
merchandise in a controlled selling environment. The expectation is to create a
forum for selling used fishing and marine goods, including marine craft. The
system would provide an intermediary to escrow payments until merchandise is
received in an acceptable form. The Company would charge a fee for placing an
item in the exchange and a percentage of the sale price on closing the sale. The
Company would facilitate validation of the character and quality of merchandise,
including proper inspections and valuation of goods. This would also take
advantage of the financial services offerings from the Company, particularly for
marine craft.
Virtual Marina
The Company has an innovative marketing and customer service program for the
marine recreation market. With its portfolio of Internet marketing arrangements
and inducements for individuals to sell pre-owned marine craft consumers would
have a one-stop enhanced business model to shop, purchase, finance, insure, and
maintain marine craft. Through its virtual marinas, on-line customer service
enhancements, information clearinghouse databases and overall function as a
marine market portal, Revenge Marine will become the resource for recreational
boating and will capitalize on this position to increase its market share and
growth. A critical component is actual brokering of boats in value greater than
$50,000 and up to $2,000,000. The company will realize commissions and fees from
each of the transactions associated with the marine craft buying and ownership.
The proposition is to expand the enterprise into a Marine Portal -- an online
community where boat owners, enthusiasts, and shoppers can come together, share
their knowledge and experience and quickly and easily find marine-related
information or purchase marine parts and accessories.
Market
Based on industry surveys and its own analysis, the Company's target industry
markets are experiencing high and accelerating growth rates and that these
growth rates will continue to accelerate over the next three to five years. The
Company's markets are twofold and will be intertwined through its Website. The
first is the Internet - more particularly several e-commerce trends within the
Internet. The second is sportfishing, boating and the panoply of goods and
services that are directly and indirectly related to the marine recreation
industry, or more aptly defined "leisure time lifestyle." Not nearly as
recognized, but with far more participation, the recreational water sports
business -- particularly fishing and boating -- exceeds golf in new growth
annually. Worthy of further note is the fact that fishing and boating outstrips
golf four to one as the activity of choice for a family outing.
Growth rates in Internet activity tended to exceed 100% per year.3 The Company
believes that this growth, combined with the angler propensity to use the
Internet much more than most, will convert trend-line demand growth rates
associated with boating and sportfishing and boating i.e. 9% compounded
annually, into much higher growth for Revenge 's e-commerce. In addition, the
Website expects to hold the guest or member with enticing and entertaining
content that reaches beyond fishing and boating to other personal lifestyle
interests.
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3 Source: eStats Internet growth survey December 1998 (cited in website
statistical report in February 1999).
The baby-boomers are driving the growth phenomena on the Internet and within the
sportfishing/boating and marine recreation industry. From now though 2005 the
boomer and post-boomer population will peak in the late 40s to 50+ age group,
which is by all estimates the group having the most disposable income and drive
to capitalize on leisure time. The population, whose socio-economics qualify
them as a prospective customer for the Company, will represent 15 to 20 million
people in the Western Hemisphere by 2003.
Revenge Marine, Inc.
75,000 Shares of Series C Cumulative Convertible Preferred Stock $50 per Share
Term Sheet
Issuer Revenge Marine, Inc., a Nevada corporation.
Securities 75,000 shares of Series C Cumulative Convertible
Preferred Stock, stated value $50 per share.
Offering Price $50 per share.
Dividend Cumulative annual dividend of 10% of stated value.
Conversion On closing of $5,000,000 or greater secondary
public offering (the "Secondary Offering"),
Preferred Stock converts into Common Stock at
30% discount to public offering price.
Anytime at the Holders option the Preferred Stock
converts into Common Stock at a 30% discount to
the bid price of Common Stock on Nasdaq Bulletin
Board.
Registration Rights Issuer will register conversion shares in Secondary
Offering. Shares are subject to a 180-day lock up.
Liquidation Preference Holders of Preferred Stock are entitled to receive a
distribution on liquidation equal to the stated value
of their Preferred Stock prior to any distribution
made to the holders of Common Stock.
Voting Rights None.
Revenge Marine, Inc.
Selected Financial Data
Income Statement Data:
Inception Nine months
through ended
June 30, 1998 March 31, 1999
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Revenue 142,286 4,864,874
Cost of goods sold (124,352) (3,025,716)
Gross profit 17,934 1,839,158
Operating loss (294,106) (2,308,739)
Net loss (318,932) (469,581)
Net loss per common share (0.07) (0.03)
Balance Sheet Data:
June 30, 1998
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Current assets 339,901
Fixed assets 239,420
Other assets 2,416,483
Total assets 2,995,804
Current liabilities 314,479
Long term debt 0
Stockholders equity 2,681,325
Total liabilities and stockholders equity 2,995,804
Common stock outstanding 6,675,720
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
INFORMATION, REPRESENTATIONS AND FORWARD LOOKING STATEMENTS CONTAINED IN THIS
DOCUMENT ARE QUALIFIED IN THEIR ENTIRETY BY REFERENCE TO REVENGE MARINE, INC.'S
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION AND THE APPENDIX A, ENTITLED
RISK FACTORS AND ATTACHED HERETO.
This Agreement is made as of ______________, 1999 between Revenge
Marine, Inc., a Nevada corporation (the "Company" or "Revenge") and the entity
whose signature appears at the end of this agreement (the "Purchaser").
SECTION 1
Authorization and Sale of Series C Preferred Stock
1.1 Authorization of Series C Preferred Stock. Revenge has authorized
the sale and issuance of up to Seventy Five Thousand shares of its Series C
Preferred Stock (the "Series C Preferred"), hav ing the rights, preferences,
privileges and restrictions set forth in a resolution to be adopted by Revenge's
Board of Directors and attached hereto as Exhibit A (the "Board Resolution")
prior to acceptance by Revenge of this Agreement. The Series C Preferred is to
be sold in units of Ten (10) shares of Series C Preferred. The shares of Series
C Preferred to be sold hereunder are collectively referred to as the "Shares."
1.2 Sale and Dividends of Series C Preferred. Subject to the terms and
conditions hereof, on the Closing Date (as defined below) Revenge will issue and
sell to Purchaser, and Purchaser will purchase at a purchase price of
Five-Hundred Dollars ($500) per unit from Revenge, ____ units of Series C
Preferred, each unit containing Ten (10) shares of Series C Preferred. According
to Exhibit A, the Series C Preferred is entitled to a 10% cumulative dividend
per year. At the time of Conversion of the Shares, any accrued but unpaid
dividends shall be added to the Conversion Rate as elaborated in Section 7
hereof.
SECTION 2
Closing Date; Delivery
2.1 Closing Date. The closing of the purchase and sale of shares of the
Series C Preferred hereunder (the "Closing") shall be held at the offices of
Revenge Marine, Inc., 2051 NW 11th St., Miami, FL 33125, on November 20, 1999,
or at such other time and place upon which Revenge and the Purchaser shall agree
(the date of such Closing is hereinafter referred to as the "Closing Date").
2.2 Delivery. At the Closing, Revenge will issue and deliver to
Purchaser a stock certificate or certificates in definitive form, registered in
the name of the Purchaser, representing the Shares to be
purchased at such Closing against payment of the purchase price therefor, by
check or wire transfer payable to Revenge.
SECTION 3
Representations and Warranties of Revenge
Revenge hereby represents and warrants to the Purchasers as follows:
3.1 Organization and Standing; Articles and Bylaws. Revenge is a
corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Nevada and is in good standing under such laws. Revenge has
all requisite corporate power to own and operate its properties and assets, and
to carry on its business as presently conducted and as proposed to be conducted.
Revenge is qualified to do business as a foreign corporation in any jurisdiction
in which failure to qualify would have a material adverse effect on Revenge's
business. Revenge has furnished Purchasers with true and complete copies of its
Restated Articles and Bylaws in effect as of the date hereof.
3.2 Corporate Power. Revenge will have prior to the Closing Date all
requisite legal and corporate power to execute, deliver and perform this
Agreement and to sell and issue and deliver the Shares hereunder, to issue and
deliver the Common Stock issuable upon conversion of the Shares and to carry out
and perform its obligations under the terms of this Agreement and the
transactions contemplated hereby.
3.3 Capitalization. The authorized capital stock of Revenge consists of
50,000,000 shares of Common Stock and 5,000,000 shares of Preferred Stock.
Immediately prior to the Closing, the issued and outstanding stock of Revenge
shall consist of no more than 20,000,000 shares of Common Stock, including
shares of common stock issuable upon exercise of outstanding warrants and
options and shares of common stock issuable upon conversion of preferred stock.
All such issued and outstanding shares will have been duly authorized and
validly issued, fully paid and nonassessable. The Series C Preferred shall have
the rights, preferences, privileges and restrictions set forth in Exhibit A to
this Agreement. There are or may be issued options, warrants, conversion
privileges or other rights presently outstanding to purchase or otherwise
acquire any authorized but un-issued shares of the capital stock or other securi
ties of Revenge or agreements or understandings with respect thereto. Revenge is
not a party or subject to any agreement or understanding, and, to Revenge's
knowledge, there is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of consents with
respect to any security or by a director of Revenge. Revenge is under no duty to
redeem or repurchase any shares of any class or series of its capital stock. All
of the outstanding shares of Revenge were issued in compliance with all
applicable Federal and state securities laws.
3.4 Authorization. All corporate action on the part of Revenge, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement by Revenge, the authorization, sale,
issuance and delivery of the Shares (and the Common Stock issuable upon
conversion of the Shares) and the performance of Revenge's obligations hereunder
and thereunder has been taken or will be taken prior to the Closing. This
Agreement when executed and delivered by Revenge, shall constitute the legal,
valid and binding obligation of Revenge, enforceable against Revenge in
accordance with its respective terms, subject to laws of general application
relating to bank ruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
3.5 Validity of Shares. The Shares, when issued, sold and delivered in
compliance with the provisions of this Agreement, will be duly and validly
issued and will be fully paid and nonassessable and free and clear of all liens
and encumbrances, and the Common Stock issuable upon conversion of the Shares
has been duly and validly reserved and, when issued and delivered in compliance
with the provisions of the Restated Articles will be duly and validly issued and
will be fully paid and non- assessable and free and clear of all liens and
encumbrances and restrictions on transfer other than as set forth in this
Agreement, provided, however, that the Shares (and the Common Stock issuable
upon conversion of the Shares) may be subject to restrictions on transfer under
state and/or federal securities laws. Except as set forth herein, there are no
outstanding rights of first refusal or preemptive rights applicable to the
Shares.
3.6 Title to Properties and Assets; Liens, etc. Except as indicated in
Appendix A hereto, entitled Risk Factors, Revenge has good and marketable title
to all its properties and assets, and is in compliance with the lease of all
material properties leased by it, in each case subject to no mortgage, pledge,
lien, lease, encumbrance or charge, other than the lien of current taxes not yet
due and payable. Except as indicated in Appendix A hereto, entitled Risk
Factors, Revenge is not in default under or in breach of any provision of its
leases, and Revenge holds valid leasehold interests in the properties which it
leases. Except as indicated in Appendix A hereto, entitled Risk Factors, no
event has occurred and is continuing which, with due notice or lapse of time or
both, would constitute a default or event of default by Revenge under any such
lease or agreement or, to Revenge's knowledge, by any party thereto. Revenge's
properties and assets are in good condition and repair, ordinary wear and tear
excepted, in all material respects.
3.7 Material Contracts and Commitments. Purchasers are satisfied that
they have been sufficiently informed by Revenge of all agreements, contracts,
indebtedness, liabilities, and other obliga tions to which Revenge is a party or
by which it or its assets are bound. Copies of such agreements and contracts and
documentation evidencing such liabilities and other obligations have been made
available by Revenge to the Purchasers.
3.8 Compliance with Other Instruments. Except as indicated in Appendix
A hereto, entitled Risk Factors, Revenge is not in violation of any term of its
Restated Articles or Bylaws, or in any material respect of any term or provision
of any mortgage, indenture, contract, agreement, instrument, judgment or decree,
and to its knowledge is not in violation of any order, statute, rule or
regulation applicable to Revenge. No want or failure of performance has occurred
which, with the passage of time or giving of notice, would constitute such a
material violation. The execution, delivery and performance of and compliance
with this Agreement and the issuance and delivery of the Shares (and the Common
Stock issuable upon conversion of the Shares), have not resulted and will not
result in any violation of, or conflict with, or constitute a default under any
of the foregoing, or result in the creation of any mortgage, pledge, lien,
restriction, encumbrance or charge upon any of the properties or assets of
Revenge; and there is no such violation or default which materially and
adversely affects the business of Revenge or any of its properties or assets.
3.9 Litigation, etc. Except as indicated in Appendix A hereto, entitled
Risk Factors ,there are no (i) actions, suits, claims, proceedings or
investigations pending or, to Revenge's knowledge, threatened against or
affecting Revenge or its properties before any court or governmental agency,
(ii) arbitration proceeding relating to Revenge pending under collective
bargaining agreements or otherwise or (iii) governmental inquiry pending or, to
Revenge's knowledge, threatened against or affecting Revenge, which, either in
any case or in the aggregate, might result in any material adverse change in the
business, prospects, financial condition, affairs, operations or equity
ownership of Revenge or any of its properties or assets, or in any material
impairment of the right or ability of Revenge to carry on its business as now
conducted or as proposed to be conducted, or in any material liability on the
part of Revenge, and none which questions the validity of this Agreement or any
action taken or to be taken in connection herewith. Revenge is not a party or
subject to the provisions of any court or governmental agency or
instrumentality. There is no action, suit, proceeding, or investigation by
Revenge currently pending or that Revenge intends to initiate. Revenge is not in
default with respect to any order, writ, injunction or decree known to or served
upon Revenge of any court or of any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
3.10 Employees. To Revenge's knowledge, no employee of Revenge is or
will be in violation of any judgment, decree or order of any court or
administrative agency, or any term of any employment contract or any other
contract (including without limitation any covenant not to compete) or agreement
relating to the relationship of any such employee with Revenge or any other
party because of the nature of the business conducted or to be conducted by
Revenge or to the utilization by the employee of such employee's reasonable
efforts with respect to such business. Revenge does not have any collective bar
gaining agreements covering any of its employees. To Revenge's knowledge, no
employee, consultant or officer has taken, removed, or made use of any
proprietary documentation, manuals, products, materials, or any other tangible
items from the employee's previous employers relating to Revenge's business.
3.11 Governmental Consents, etc. No consent, approval, order or
authorization of or designation, declaration or filing with any state or federal
governmental authority or any other third party on the part of Revenge is
required in connection with the valid execution and delivery of this Agreement,
or the offer, sale or issuance of the Shares (and the Common Stock issuable upon
conversion of the Shares), or the consummation of any other transaction
contemplated hereby, except qualification (or taking such action as may be
necessary to secure an exemption from qualification, if available) under the
applicable Blue Sky laws, of the offer and sale of the Shares (and the Common
Stock issuable upon conversion of the Shares), which filing and qualification,
if required, will be accomplished in a timely manner prior to or promptly upon
completion of the Closing.
3.12 Offering. Based in part upon the accuracy of the Purchaser's
representations in Section 4 hereof, the offer, sale and issuance of the Shares
to be issued in conformity with the terms of this Agreement (and the issuance of
the Common Stock to be issued upon conversion of the Shares) constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act").
3.13 Disclosure. No statement by Revenge contained in this Agreement
and the exhibit attached hereto, or in any certificate furnished or to be
furnished to the Purchasers pursuant hereto, when taken as a whole, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made.
3.14 Brokers or Finders. Revenge has agreed to pay a minimum commission
of 6% on sales of the Shares and has agreed to pay a commission of up to 10% on
sales of the Shares. No commissions will be paid to any officer or director of
Revenge in connection with sales made directly by such an officer or director.
3.15 Permits. Except as indicated in Appendix A hereto, entitled Risk
Factors, Revenge has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted, the
lack of which could materially and adversely affect the business, properties,
prospects, or financial condition of Revenge, and Revenge believes it can
obtain, without undue burden or expense, any similar authority for the conduct
of its business as planned to be conducted. Revenge is not in default in any
material respect under any of such franchises, permits, licenses, or other
similar authority.
3.16 Financial Statements. Revenge will maintain a standard system of
accounting established and administered in accordance with generally accepted
accounting principles. Any financial statements that the Purchaser has been
provided in connection with this Agreement ("Financial Statements") are prepared
in accordance with generally accepted accounting principles and, to the best
knowledge of Revenge, fully, fairly and accurately represent the financial
condition of Revenge for the period that is covered therein.
3.17 Material Liabilities. Except as indicated in Appendix A hereto,
entitled Risk Factors and except as set forth in the Financial Statements,
Revenge has no material liability or obligation, absolute or contingent
(individually or in the aggregate), except (i) obligations and liabilities
incurred after the date of incorporation in the ordinary course of business that
are not material, individually or in the aggregate and (ii) obligations under
contracts made in the ordinary course of business that would not be required to
be reflected in Financial Statements prepared in accordance with generally
accepted accounting principles and which are not material.
3.18 Taxes. Revenge has filed all tax returns and reports required to
be filed by it, such returns and reports were true, correct and complete, and
Revenge has paid all taxes shown to be due by such returns and reports as well
as all other taxes, assessments and governmental charges which have become due
or payable (together with any interest, penalties, additions to tax and
additional amounts with respect thereto), including without limitation all taxes
which Revenge is obligated to withhold from amounts owing to employees,
creditors and third parties. Revenge has not requested any extension of time
within which to file any tax return or report which return or report has not
been filed. The reserves for taxes in the Financial Statements are sufficient
for the payment of all unpaid taxes (whether or not currently disputed) which
are or may be incurred with respect to the period (or portions thereof) ended on
the date of the Financial Statements and for all years and periods ended prior
thereto. The Federal income tax returns of Revenge have never been audited by
the Internal Revenue Service ("IRS") or any other taxing authority. No (I)
deficiency assessment with respect to, (ii) proposed adjustment of or (iii)
examination or other administrative or court proceeding with respect to,
Revenge's taxes is pending or, to the best of Revenge's knowledge, threatened.
To the best of Revenge's knowledge, no state of facts exists or has existed
which would constitute grounds for the assessment of any liability for taxes
with respect to periods which have not been audited by the IRS or other taxing
authority. There is no tax lien outstanding against the assets, properties or
business of Revenge. Neither Revenge nor any of its stockholders has ever filed
(a) an election pursuant to Section 1362 of the Internal Revenue Code of 1986,
as amended (the "Code"), that Revenge be taxed as an S corporation or (b)
consent pursuant to Section 341(f) of the Code, relating to collapsible
corporations.
3.19 Offering of Shares. Neither Revenge nor any person authorized or
employed by Revenge as agent, broker, dealer or otherwise in connection with the
offering or sale of the Shares or any security of Revenge similar to the Shares
has offered the Shares or any such similar security for sale to, or solicited
any offer to buy the Shares or any such similar security from, or otherwise
approached or negotiated with respect thereto with, any person or persons, and
neither Revenge nor any person acting
on its behalf has taken or will take any other action (including, without
limitation, any offer, issuance or sale of any security of Revenge under
circumstances which might require the integration of such security with the
Shares under the Securities Act or the rules and regulations of the Commission
thereunder), in either case so as to subject the offering, issuance or sale of
the Shares to the registration provisions of the Securities Act.
3.20 No Violation, etc. Revenge is not (i) in violation of its Restated
Articles or by-laws, or other organizational documents, or of any law,
ordinance, administrative or governmental rule or regulation applicable to
Revenge or of any decree of any court of governmental agency or body having
jurisdiction over Revenge, except for such violations that would not have a
material adverse effect, or (ii) in default in the performance of any obligation
or agreement contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which Revenge is party or by which it or any of its properties may be bound,
except for such defaults that would not have a material adverse effect and no
event has occurred, and no condition or state of facts exists of which Revenge
is aware, which, with the passage of time or the giving of notice or both, would
constitute such a material default.
3.21 Compliance with Laws. Except as indicated in Appendix A hereto,
entitled Risk Factors, Revenge has complied in all material respects with all
applicable statutes, regulations, orders, ordinances and other laws of the
United States of America, all state, local and foreign governments and any other
governmental bodies and authorities, and agencies of any of the foregoing to
which they are subject and any undertakings of Revenge to any of the foregoing,
to the extent that non compliance would have a material adverse effect on
Revenge. Revenge has not received any notice to the effect that, or otherwise
been advised that, it is not in compliance with any such statutes, regulations
and orders, ordinances, other laws or undertakings. Without having conducted any
specific research or investigation, to Revenge's knowledge, there is not
presently pending any proceeding, hearing or investigation with respect to the
adoption of amendments or modifications to existing laws or ordinances,
regulations or restrictions with respect to such matters which, if adopted,
would materially adversely affect Revenge.
3.22 ERISA. Neither Revenge nor any ERISA Affiliate maintains,
contributes or has any liability (contingent or otherwise) with respect to a
plan (including a Multiemployer Plan) subject to Title IV of ERISA or Section
412 of the Code. All employee benefit plans and arrangements (regardless of
whether such plans or arrangements are covered by ERISA) maintained by or
contributed to by Revenge or any ERISA Affiliate are in material compliance with
all applicable law, including any reporting requirements. Revenge does not have
any liability (contingent or otherwise) with respect to retiree or retiree death
benefits. Neither Revenge nor any other person, including any fiduciary, has
engaged in any transaction, prohibited by Section 4975 of the Code or Section
406 of ERISA which could subject Revenge, or any entity that Revenge has an
obligation to indemnify, to any tax or penalty imposed under Section 4975 of the
Code or Section 502 of ERISA. The transactions contemplated by this Agreement
will not involve any transactions prohibited by Section 406 of ERISA or in
Section 4975 of the Code.
For purposes of this Section and Section 7.9, (a) "ERISA" shall mean
the Employee Retirement Income Security Act of 1974, as amended from time to
time; (b) "ERISA Affiliate" shall mean any entity required to be aggregated with
Revenge or any subsidiary under Sections 414(b), (c), (m) or (o) of the Code;
and (c), "Multiemployer Plan" shall mean a plan which is a Multiemployer Plan as
defined in Section 4001(a)(3) of ERISA.
3.23 Environmental.
(a) Except as indicated in Appendix A hereto, entitled Risk
Factors, Revenge is in compliance in all material respects with all
Environmental Laws and has obtained all environmental licenses, permits,
approvals, registrations and authorizations (federal, state and local) material
to Revenge's business.
(b) Except as indicated in Appendix A hereto, entitled Risk
Factors, No governmental or private action, suit or proceeding to enforce or
impose liability under any Environmental Law is pending or, to Revenge's
knowledge, threatened against Revenge and, to Revenge's knowledge, no lien has
been created on any real property owned or leased by Revenge relating to
Revenge's business, under any Environmental Laws.
SECTION 4
Representations, Warranties and Covenants of the Purchaser
Each of the Purchasers hereby represents, warrants and covenants,
severally and not jointly, to Revenge with respect to the purchase of the Shares
as follows:
4.1 Experience; Risk. The Purchaser has such knowledge and experience
in financial and business matters that such Purchaser is capable of evaluating
the merits and risks of the purchase of the Shares pursuant to this Agreement
and of protecting the Purchaser's interests in connection therewith. The
Purchaser is able to fend for itself in the transactions contemplated by this
Agreement and has the ability to bear the economic risk of the investment,
including complete loss of the investment. The Purchaser is experienced in
evaluating and investing in new companies such as Revenge.
4.2 Restricted Securities. The Purchaser understands that the Shares
and the shares of Common Stock issuable upon conversion of the Shares, will be
"restricted securities" under the federal securities laws inasmuch as they are
being acquired from Revenge in a transaction not involving a public offering and
that under such laws and applicable regulations the Shares may be resold without
registration under the Securities Act only in certain limited circumstances. The
Purchaser acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available.
4.3 Access to Data. The Purchaser has had an opportunity to discuss
Revenge's business, management and financial affairs with Revenge's management
and the opportunity to review Revenge's facilities and has received all
information requested from Revenge regarding the investment in Revenge.
4.4 Authorization. The Purchaser represents that it has the full right,
power and authority to enter into and perform the Purchaser's obligations under
this Agreement and this Agreement when executed and delivered by the Purchaser
will constitute legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its respective terms, subject to the laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, rules of law governing specific performance, injunctive relief or other
equitable remedies.
4.5 Government Consents. No consent, approval or authorization of or
designation, declaration or filing with any state, federal, or foreign
governmental authority on the part of the Purchaser is required in connection
with the valid execution and delivery of this Agreement by the Purchaser, and
the consummation by the Purchaser of the transactions contemplated hereby.
4.6 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) The Purchaser shall have notified Revenge of the proposed
disposition and shall have furnished Revenge with a statement of the proposed
disposition, and if reasonably requested by Revenge, such Purchaser shall have
furnished Revenge with an opinion of counsel, reasonably satisfactory to
Revenge, that such disposition will not require registration under the
Securities Act.
4.7 Legends. It is understood that each certificate representing the
Shares, and the shares of Common Stock issuable upon conversion of the Shares,
and any securities issued in respect thereof or exchange therefor shall bear
legends in the following forms (in addition to any legend required under
applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO REVENGE THAT SUCH
REGISTRATION IS NOT REQUIRED."
4.8 Conversion Schedule. Notwithstanding any other portion of this
Agreement or any other contractual right granted prior to or contemporaneously
with this Agreement, Purchaser covenants, agrees and warrants not to sell,
transfer or dispose of any Conversion Shares (as defined below) except according
to the following schedule: Except under specific exclusion with Revenge marine
or from the date of effectiveness of a Registration Statement filed in
accordance with Section 7 of this Agreement, Purchaser may not sell the
Conversion Shares for a period of 180 days after effectiveness of such a
Registration Statement.
4.9 Repurchase Right. Purchaser agrees to sell the Shares or Conversion
Shares to Revenge or an assignee of Revenge at any time, upon written demand by
Revenge, for 130% of the price Purchaser paid for such Shares or Conversion
Shares (the "Repurchase Price"), plus applicable accrued but unpaid Dividends,
as defined herein. The Purchaser must tender the Shares or Conversion Shares to
Revenge, along with any necessary consents or signatures thereto, immediately
upon payment by Revenge to Purchaser of the Repurchase Price. This Repurchase
Right shall extend to any subsequent purchasers of the Shares or Conversion
Shares. This Repurchase Right shall expire at 5:00 PM on the Pre-Effective Date
(as defined in Exhibit A hereto).
SECTION 5
Conditions to Closing of Purchaser
The Purchasers' obligation to purchase the Shares at the Closing is, at
the option of the Purchasers, subject to the fulfillment on or prior to such
Closing Date of the following conditions:
5.1 Representations and Warranties Correct. The representations and
warranties made by Revenge in Section 3 hereof shall be true and correct in all
material respects when made (except those representations and warranties
qualified by materiality, which shall be true and correct in all respects), and
shall be true and correct on the Closing Date in all material respects with the
same force and effect as if they had been made on and as of said date.
5.2 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by Revenge on or prior to the Closing Date shall
have been performed or complied with in all respects.
5.3 Blue Sky. Revenge shall have obtained all necessary Blue Sky law
permits and qualifications, or secured an exemption therefrom, required by any
state for the offer and sale of the Shares, and the Common Stock issuable upon
conversion of the Shares.
5.4 All Proceedings to be Satisfactory. All corporate and other
proceedings to be taken by Revenge in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Purchasers and their counsel, and the
Purchasers and their counsel shall have received all such counterpart originals
or certified or other copies of such documents as they reasonably may request.
5.5 No Litigation Threatened. No action, suit or other proceeding shall
be pending before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement, or seeking to obtain substantial damages in
respect thereof, or involving a claim that consummation thereof would result in
the violation of any law, decree or regulation of any governmental authority
having appropriate jurisdiction.
5.6 Approvals and Consents. Revenge shall have obtained all necessary
and required approvals and consents with regard to the Agreement and the
Stockholders Rights Agreement, and the issuance, sale and delivery of the
Shares, from (a) foreign and domestic (whether federal, state or local)
governmental or regulatory bodies or agencies and (b) lessors or other third
parties pursuant to leases, mortgages, contracts, agreements, permits or
licenses necessary for the performance of Revenge's obligations hereunder.
5.7 No Change in Law. There shall not have been any action, or any
statute enacted, by any government or agency thereof which would render the
parties unable to consummate the transactions contemplated herein or make the
transactions contemplated herein illegal, or prohibit or restrict the
consummation of the transactions contemplated herein.
SECTION 6
Conditions to Closing of Revenge
Revenge's obligation to sell and issue the Shares at each Closing is,
at the option of Revenge, subject to the fulfillment of the following
conditions:
6.1 Representations. The representations made by the Purchasers in
Section 4 hereof shall be true and correct in all material respects when made
(except those representations and warranties qualified by materiality, which
shall be true and correct in all respects), and shall be true and correct on the
Closing Date in all material respects with the same force and effect as if they
had been made on and as of said date.
SECTION 7
Covenants of Revenge
Revenge covenants and agrees with each of the Purchasers that so long
as any of the Shares are outstanding:
7.1 Corporate Existence. Revenge shall maintain its corporate
existence, rights and franchises in full force and effect.
7.2 Conversion. The Shares, plus applicable Dividends convert at a 30%
discount to the Secondary Offering price per share. If the Secondary Offering
does not occur by November 15, 2000, the Shares convert at the then applicable
bid price, as elaborated below. In accordance with Exhibit A attached hereto,
the Shares shall be converted to into shares of Common Stock of Revenge, $0.001
par value per share, at a conversion rate of a 30% discount to the price which
Revenge sells shares to the public in its Secondary Offering, as defined below,
determined according to the following formula: The total amount Purchaser paid
for the Shares, plus any accrued but unpaid dividends ("Dividends"), as defined
below, multiplied by Seventy percent of the price per common share in the
Secondary Offering. In the event that the Secondary Offering does not occur by
November 15, 2000, the conversion rate above shall apply, substituting the price
per common share in the Secondary Offering with the then applicable ten day
trailing average bid price for common stock of Revenge as quoted on the OTC
bulletin board. Shares of the Common Stock issuable on conversion of the Series
C Preferred Stock (the "Conversion Shares") shall be delivered to the Purchaser
within 5 days of the conversion thereof.
7.3 Reserve for Conversion Shares. Revenge shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock,
for the purpose of effecting the conversion of the Shares and otherwise
complying with the terms of this Agreement, such number of its duly authorized
shares of Common Stock as shall be sufficient to effect the conversion of the
Shares from time to time outstanding or otherwise to comply with the terms of
this Agreement. If at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the conversion of the Shares or
otherwise to comply with the terms of this Agreement, Revenge will forthwith
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes. Revenge will obtain any authorization, consent, approval or
other action by or make any filing with any court or administrative body that
may be required under applicable state securities laws in connection with the
issuance of shares of Common Stock upon conversion of the Shares.
7.4 Registration Rights. Revenge covenants to cause to be filed with
the Securities and Exchange Commission (the "SEC")and any applicable state
authorities a Registration Statement under the Securities Act of 1933
registering the Conversion Shares, subject to the conditions contained in this
Section 7.4. The Registration Statement shall be filed by November 15, 2000. The
Registration Statement may occur in the context of an underwritten sale of
shares of common stock in Revenge with aggregate net proceeds to Revenge of at
least $5,000,000 ("Secondary Offering"). All expenses related to the filing of
the Registration Statement shall be borne by Revenge. The Purchaser and Revenge
shall cooperate in good faith in connection with the furnishing of information
required for such registration and the taking of such other actions as may be
legally or commercially necessary to effect such registration. Revenge shall use
its good faith diligent efforts to cause such Registration Statement to become
effective as soon as practicable thereafter. Such good faith diligent efforts
shall include, but not be limited to, prompt response to all comments received
from staff of the SEC, providing Purchaser with a contemporaneous copy of all
written communications to and from the staff of the SEC and promptly preparing
and filing amendments to such Registration Statement which are responsive to the
comments received from the staff of the SEC. Immediately upon the Registration
Statement being declared effective by the SEC, Revenge shall cause to be issued
to the Purchaser such Conversion Shares, free from any transfer restrictions
except as contained in the Conversion, to be sold by the Purchaser according to
the Conversion Schedule. Revenge shall cause the Registration Statement to
remain effective for 120 days after the effective date of the Registration
Statement.
7.5 Properties, Business, Insurance. Revenge shall maintain as to its
properties, and business, with financially sound and reputable insurers,
insurance against such casualties and contingencies and of such types and in
such amounts as is customary for companies similarly situated, which insurance
shall be deemed by Revenge to be sufficient. Revenge shall not cause or permit
any assignment or change in beneficiary and shall not borrow against any such
policy.
7.6 Inspection, Consultation and Advice. Revenge shall permit the
Purchaser and such persons as it may designate, at such Purchaser's expense, to
visit and inspect any of the properties of Revenge, discuss the affairs,
finances and accounts of Revenge with its officers, employees and public
accountants (and Revenge hereby authorizes said accountants to discuss with such
Purchaser and such designees such affairs, finances and accounts), and consult
with and advise the management of Revenge as to its affairs, finances and
accounts, all at reasonable times and upon reasonable notice.
7.7 Restrictive Agreements Prohibited. Revenge shall not become a party
to any agreement which by its terms restricts Revenge's performance of this
Agreement.
7.8 Compliance with Laws. Revenge shall comply with all applicable
laws, rules, regulations and orders, noncompliance with which could materially
adversely affect its business or condition, financial or otherwise.
7.9 Keeping of Records and Books of Account. Revenge shall keep
adequate records and books of account, in which complete entries will be made in
accordance with generally accepted accounting principles consistently applied,
reflecting all financial transactions of Revenge, and in which, for each fiscal
year, all proper reserves for depreciation, depletion, obsolescence,
amortization, taxes, bad debts and other purposes in connection with its
business shall be made.
SECTION 8
Miscellaneous
8.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Nevada.
8.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby.
8.3 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and adminis trators of the parties hereto.
8.4 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
This Agreement or any term hereof may be amended, waived, discharged or
terminated solely by a written instrument signed by Revenge and the holders of
at least two-thirds (66 2/3%) of the Common Stock issued or issuable upon
conversion of the Shares held by the Purchaser.
8.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise de livered by hand or by
messenger, addressed (a) if to the Purchaser, at the address set forth on the
signature page hereto or at such other address as shall have furnished to
Revenge upon not less than 10 days notice in writing, or (b) if to Revenge, at
the address of its principal office and addressed to the at tention of the
President or at such other address as Revenge shall have furnished to the
Purchasers upon not less than ten (10) days notice in writing.
8.6 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Shares, upon any breach or default
of Revenge under this Agreement, shall impair any such right, power or remedy of
such holder 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 or 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. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
8.8 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
8.9 Expenses. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby, whether or not such transaction shall
be consummated.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the day and date set forth above.
"COMPANY" Revenge Marine, Inc.
a Nevada corporation
By: /s/ William C. Robinson
----------------------------------------
William C. Robinson
President and Chief Executive Officer
"PURCHASER"
By: /s/
------------------------------------------
Exhibit A
REVENGE MARINE, INC.
Board of Directors
Written Consent Resolution
This resolution by written consent of the Board of Directors of Revenge Marine,
Inc., a Nevada corporation, is adopted pursuant to Nevada law by all of the
directors of the corporation this 30th day of September, 1999.
WHEREAS, the corporation wishes to designate 75,000 shares of its authorized
preferred stock as Series C Preferred Stock; and
WHEREAS, the corporation wishes to designate the rights and preferences of the
Series C Preferred Stock as permitted by Nevada law; and
WHEREAS, the Board of Directors wishes to authorize the sale of 75,000 shares of
its Series C Preferred Stock under terms and conditions contained in that
certain Series C Preferred Stock Purchase Agreement attached hereto as Exhibit A
and as further modified by the officers of this corporation at their discretion;
Be it therefore RESOLVED by the directors of this corporation that 75,000 of the
authorized preferred stock of this corporation be hereby designated as Series C
Preferred Stock, with the attendant rights and preferences thereto as authorized
by the board of directors; and
Be it further RESOLVED by the directors of this corporation that the rights and
preferences of the Series C Preferred Stock shall be designated and adopted by
the board of directors as follows:
(1) Dividend Provisions: The holders of the Series C Preferred Stock (the
"Preferred") shall be entitled to receive cumulative dividends when,
as, and if declared by the Board of Directors at the rate of ten
percent (10%) per annum. No dividends shall be declared or paid on the
Common Stock ("Common") unless at the same time an equivalent dividend
(on an as-converted basis) is declared or paid with respect to the
Preferred, in addition to the cumulative dividend set forth above.
(2) Liquidation Preference: In the event of any liquidation or winding up
of the Company, the holders of the Preferred shall be entitled to
receive in preference to the holders of Common an amount equal to
$50.00 per share of Preferred plus any declared but unpaid dividends
thereon. In the event the assets available for distribution to the
holders of the Preferred shall be insufficient to pay in full the
aforesaid amounts, such assets as are available shall be distributed to
such holders in proportion to the full amount each holder is entitled
to receive. After payment is made to the holders of the Preferred as
set forth, the Common shall receive the remaining assets. An
acquisition of the Company by means of merger or sale of assets shall
be deemed to be a liquidation for the purposes of this liquidation
preference.
(3) Conversion: The Preferred shall convert at a 30% discount to the\
Secondary Offering price per share for common stock of Revenge, as
defined below. If the Secondary Offering does not occur by November 15,
2000, the Shares convert at the then applicable bid price, as
elaborated below. The Preferred shall be converted to into shares of
Common Stock of Revenge, $0.001 par value per share, at a conversion
rate of a 30% discount to the price which Revenge sells shares to the
public in its Secondary Offering, as defined below, determined
according to the following formula: The total amount the purchaser of
the Preferred paid for the Shares, plus any accrued but unpaid
dividends multiplied by Seventy percent of the price per common share
in the Secondary Offering shall equal the number of common shares
issuable upon conversion of the Preferred ("Conversion Rate"). In the
event that the Secondary Offering does not occur by November 15, 2000,
the Conversion Rate above shall apply, substituting the price per
common share in the Secondary Offering with the then applicable ten day
trailing average bid price for common stock of Revenge as quoted on the
OTC bulletin board. Shares of the Common Stock issuable upon conversion
of the Preferred (the "Conversion Shares") shall be delivered to the
Purchaser within 5 days of the conversion thereof. The Preferred shall
convert into shares of Common subject to adjustment as provided in
paragraph (5) below.
(4) Automatic Conversion: The Preferred shall be automatically converted
into Common, at the conversion rate, at the earlier of (i) the closing
of a firmly underwritten public offering of shares of the Company at a
public offering price of at least $1.50 per share (as adjusted for
stock splits, etc.) and for a total offering of more than $5,000,000 or
(ii) the filing of a registration statement with the Securities and
Exchange Commission registering the Conversion Shares; or (iii)
November 15, 2000.
(5) Voting Rights: The holder of each share of Preferred shall not have the
right to vote until the Preferred is converted into Common.
(6) Protective Provisions: Consent of the holders of at least a majority of
the Preferred Stock shall be required for any action which (i) alters
or changes the rights, preferences or privileges of the Preferred
materially and adversely, (ii) increases the authorized number of
shares of Preferred, or (iii) authorizes or creates any security with
any rights as to dividends or liquidation preference pari passu or
senior to that of the Preferred.
Be it further RESOLVED by the directors of this corporation that the officers of
this corporation are authorized and directed to carry out all necessary actions
in the execution and implementation of the Series C Preferred Stock Purchase
Agreement, including the filing of a registration statement with the Securities
and Exchange Commission.
IN WITNESS WHEREOF, this resolution by written consent is hereby agreed to and
adopted by the board of directors of Revenge Marine, Inc.
X /s/ William C. Robinson
----------------------------
William C. Robinson
Chairman
Appendix A: RISK FACTORS
THE FOLLOWING RISK FACTORS DO NOT NECESSARILY REPRESENT
ALL RELEVANT RISKS CONCERNING AN INVESTMENT IN REVENGE AND ARE
QUALIFIED IN THEIR ENTIRETY BY REVENGE'S FILINGS WITH THE
SECURITIES AND EXCHANGE COMMISSION. PURCHASE OF THE SHARES
INVOLVES AN EXTRAORDINARY DEGREE OF RISK. AN INVESTMENT SHOULD
ONLY BE MADE BY PERSONS WHO CAN BEAR THE RISK OF A TOTAL ECONOMIC
LOSS OF THEIR INVESTMENT.
1. SEVERE LIQUIDITY PROBLEMS. REVENGE IS PRESENTLY EXPERIENCING SEVERE
LIQUIDITY PROBLEMS AND OPERATES WITH A MINIMAL AMOUNT OF WORKING
CAPITAL. MANY OF REVENGE'S ACCOUNTS PAYABLE ARE MORE THAN SIXTY DAYS
PAST-DUE. THERE IS NO ASSURANCE THAT THE SALE OF SERIES C PREFERRED
STOCK WILL PROVIDE SUFFICIENT PROCEEDS TO ALLOW REVENGE TO OVERCOME ITS
LIQUIDITY PROBLEMS.
2. AN IMMEDIATE INFUSION OF WORKING CAPITAL OF AT LEAST $250,000 IS
REQUIRED FOR REVENGE TO MEET ITS SHORT TERM CAPITAL NEEDS. THERE CAN BE
NO ASSURANCE THAT REVENGE WILL FIND ADEQUATE SOURCES FOR THIS CAPITAL
UNDER ACCEPTABLE TERMS OR THAT SUCH CAPITAL, IF AVAILABLE, WILL BE
SUFFICIENT TO FUND REVENGE'S OPERATIONS.
3. EVENGE OPERATES AT A LOSS AND MAY CONTINUE TO DO SO FOR THE
FORESEEABLE FUTURE. REVENGE DOES NOT PRESENTLY HAVE THE CAPITAL TO
SUSTAIN ITS OPERATING LOSSES FOR ANY SIGNIFICANT PERIOD OF TIME.
4. REVENGE HAS HAD A LIMITED OPERATING HISTORY AND HAVE SUSTAINED
SIGNIFICANT LOSSES. THERE CAN BE NO ASSURANCE THAT REVENGE OR REEL
FISHING WILL BECOME PROFITABLE IN THE FUTURE.
5. THERE IS NO ASSURANCE THAT THE CONTEMPLATED SECONDARY OFFERING WILL
TAKE PLACE IN A TIMELY FASHION, IF AT ALL.
6. ARBITRARY OFFERING PRICE. THE OFFERING PRICE OF THE SHARES HAS BEEN
ARBITRARILY DETERMINED BY REVENGE. THERE IS NO RELATIONSHIP BETWEEN THE
OFFERING PRICE AND REVENGE'S ASSETS, BOOK VALUE, NET WORTH OR ANY OTHER
ECONOMIC OR RECOGNIZED CRITERION OF VALUE.
7. INTELLECTUAL PROPERTY. REVENGE HAS NOT YET SECURED TRADEMARK RIGHTS TO
THE NAME REVENGE, NOR IS THERE ANY ASSURANCE THAT REVENGE CAN SECURE
THOSE RIGHTS. IT IS POSSIBLE THAT REVENGE MAY BE PROHIBITED FROM USING
THE REVENGE NAME IN THE FUTURE.
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