Exhibit 10.3
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AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
BY AND BETWEEN
FOAM MANUFACTURING, INC.,
CHICAGO INVESTMENTS, INC.
AND
THE ADDITIONAL INVESTORS PARTY HERETO
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Dated February 1, 2006
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
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THIS AMENDED AND RESTATED NOTE PURCHASE AGREEMENT (this "Agreement") is
made the 1st day of February, 2006, by and among (i) FOAM MANUFACTURING, INC., a
Delaware corporation (the "Company"), (ii) CHICAGO INVESTMENTS, INC., a Delaware
corporation (the "Initial Investor") and (iii) the Persons (as hereinafter
defined) who hereafter execute this Agreement as additional investors (the
"Additional Investors" and together with the Initial Investor, the "Investors").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Note Purchase Agreement dated December
20, 2005 (the "Original Agreement"), between the Company and the Initial
Investor, the Company sold and issued to the Initial Investor and the Initial
Investor purchased from the Company, a senior secured 11% promissory note in the
principal amount of $50,000 (the "Original Note"); and
WHEREAS, the Company desires to issue and sell to the Initial Investor and
the Additional Investors and the Initial Investor and the Additional Investors
desire to purchase from the Company one or more additional senior secured 11%
promissory notes in substantially the form attached hereto as Exhibit A (each,
an "Additional Note"), all on the terms and conditions set forth in this
Agreement; and
WHEREAS, in consideration for and as a condition to the agreement of the
Investors to purchase one or more Additional Notes, the Company has agreed to
amend and restate the Original Agreement in its entirety as set forth in this
Agreement; and
WHEREAS, in partial consideration of the purchase of the Original Note and
any Additional Notes, the Initial Investor shall have the benefits of
prospective investors pursuant to that certain term sheet describing future
financing being pursued by the Company substantially in the form attached hereto
as Exhibit B (the "Term Sheet"), all as more specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Purchase and Sale of Notes.
1.1. Issuance and Sale of Notes.
1.1.1. Subject to the terms and conditions of this Agreement, the
Initial Investor agrees to purchase and the Company agrees to issue and
sell to the Initial Investor, one or more Additional Notes in such amounts
and at such times as may be agreed to by the Company and Initial Investor,
from time to time. Notwithstanding the execution of this Agreement by the
Initial Investor, the amendment and restatement of the Original Agreement
or anything in this Agreement to the contrary, the Initial Investor shall
not be obligated to purchase, at any time, any Additional Notes.
1.1.2. Subject to the terms and conditions of this Agreement, the
Company may offer and sell to Additional Investors to be identified from
time to time by the Company or the Initial Investors Additional Notes in
such amounts and at such times as may be agreed to by the Company and such
Additional Investors, from time to time. At such time as an Additional
Investor shall agree to purchase an Additional Note, such Additional
Investor shall, if it had not already done so, execute a counterpart
signature page hereto.
1.2. Security Agreement; Original Note. Contemporaneously with the
execution of this Agreement and in consideration for the agreement of the
Investors to purchase the Original Note and any Additional Notes, the
Company and Hydrogel (as hereinafter defined) have entered into and
delivered to Initial Investor that certain Amended and Restated Security
Agreement of even date herewith (the "Security Agreement") granting to
Initial Investor, individually and as Agent as provided in Section 8
herein, a senior security interest in all of the assets and rights of the
Company, and the Company has issued to the Initial Investor and any
Additional Investors purchasing a note pursuant to the Original Agreement a
Restated Senior Secured Promissory Note in the same form as the Additional
Notes and in restatement of the Original Note and such additional notes
(collectively, the "Restated Notes").
1.3. Closing.
1.3.1. The purchase and sale of each Additional Note (each, a
"Note Closing") shall take place at the offices of the Company (or
remotely via the exchange of documents and signatures) at such time as
the Company and the applicable Investor mutually agree upon in writing
(which writing may be email or other electronic communication).
1.3.2. At each Note Closing, the Company shall deliver the
applicable Additional Note, against payment of the purchase price
therefore by wire transfer to the Company. At the election of the
Company, the purchase price may be delivered to the trust account of
its counsel for disbursement.
2. Additional Consideration. At and upon a "Closing" as defined in the Term
Sheet, (a) an amount equal to up to $100,000 of the total outstanding principal
and interest thereon owed to Initial Investor under the Original Note and all
outstanding Additional Notes purchased by Initial Investor shall be converted
into the debt instrument and warrants being issued under the Term Sheet with
such conversion rights and other rights as set forth in the Term Sheet, and (b)
any outstanding principal and interest exceeding $100,000 owed to Initial
Investor shall be repaid in full.
3. Representations and Warranties of the Company. The Company hereby represents
and warrants to the Investors, the following:
3.1. Subsidiaries. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association,
or other business entity. The Company is not a party to any joint venture,
partnership, or similar arrangement.
3.2. Organization, Good Standing, and Qualification. The Company is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware, and has all power and authority to own
its properties and carry on its business as now conducted. The Company is
duly qualified and in good standing as a foreign corporation in each other
jurisdiction where the location and character of its properties and the
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business conducted by it require such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect (as
hereinafter defined).
3.3. Capitalization and Voting Rights. The number of authorized,
issued and outstanding shares of capital stock of the Company as of the
date hereof is set forth in Exhibit C attached hereto. The Company is a
wholly owned subsidiary of Hydrogel Design Systems, Inc., a Delaware
corporation ("Hydrogel"), which is a majority owned subsidiary of Nesco
Industries, Inc., a Nevada corporation ("Nesco"). No securities of the
Company are entitled to preemptive or similar rights, nor is any holder of
securities of the Company entitled to preemptive or similar rights arising
out of any agreement or understanding with the Company by virtue of any of
the Transaction Documents (defined hereinafter). There are no outstanding
options, warrants, script rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities, except as a result of
the purchase and sale of the Original Note and the Additional Notes, or
rights or obligations convertible into or exchangeable for, or giving any
Person (as defined below) any right to subscribe for or acquire, any shares
of Common Stock or other equity or debt securities of the Company, or
contracts, commitments, understandings, or arrangements by which the
Company is or may become bound to issue additional shares of Common Stock
or other equity or debt securities, or securities or rights convertible or
exchangeable into shares of Common Stock or other equity or debt securities
of the Company. As used in this Agreement, the term "Person" means any
individual, corporation, limited liability company, partnership, limited
partnership, limited liability partnership, trust, association and
organization of any type or nature.
3.4. Authorization. All actions on the part of the Company, its
officers, directors, and stockholders necessary for the authorization,
execution, and delivery of this Agreement, the Original Note, the
Additional Notes, the Security Agreement and any other document or
instrument issued in connection with the foregoing (collectively, the
"Transaction Documents"), the performance of all obligations of the Company
and Hydrogel hereunder and thereunder and the authorization, issuance, and
delivery of the Original Note and any Additional Notes sold hereunder, has
been taken or will be taken prior to each Closing, and the Transaction
Documents constitute valid and legally binding obligations of the Company
and Hydrogel, as applicable, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in the Transaction Documents may be
limited by applicable federal or state laws.
3.5. Issuance of Notes in Accordance with Laws. The Original Note was,
and each Additional Note will be, issued in compliance with all applicable
federal and state securities laws.
3.6. Filings, Consents and Approvals. Neither the Company nor any of
Nesco or Hydrogel are required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with,
any court or other federal, state, local or other governmental authority or
other Person in connection with the execution, delivery and performance by
the Company and Hydrogel, as applicable, of the Transaction Documents,
other than (i) if determined by counsel, a proper Form D in accordance with
Regulation D promulgated under the Securities Act of 1933, as amended (the
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"Act"), and applicable Blue Sky filings and (ii) in all other cases where
the failure to obtain such consent, waiver, authorization or order, or to
give such notice or make such filing or registration could not have or
result in, individually or in the aggregate, a material adverse effect on
the assets, condition, affairs, prospects, results or operations of the
Company, financially or otherwise ("Material Adverse Effect").
3.7. Litigation. There is no action, suit, proceeding, claim or
investigation pending or, to the knowledge of the Company, currently
threatened against the Company, Nesco or Hydrogel that questions the
validity of the Transaction Documents, or the right of the Company or
Hydrogel to enter into any of them, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually
or in the aggregate, in a Material Adverse Effect, or any change in the
current equity ownership of the Company, Nesco or Hydrogel nor is the
Company aware that there is any basis for the foregoing. The foregoing
includes, without limitation, actions, pending or threatened (or any basis
therefor known to the Company), involving the prior employment of any of
the Company's, Nesco's and Hydrogel's employees, their use in connection
with the respective businesses of the Company, Nesco and Hydrogel of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers.
None of the Company, Nesco or Hydrogel is a party or subject to the
provisions of any order, writ, injunction, judgment, or decree of any court
or government agency or instrumentality.
3.8. Compliance with Other Instruments. The Company is not in
violation or default of any provisions of its Certificate of Incorporation
or Bylaws or of any instrument, judgment, order, writ, decree, mortgage,
indenture, lease, license or contract to which it is a party or by which it
is bound or of any provision of federal, state, or local statute, rule, or
regulation applicable to the Company, except as would not reasonably be
expected, singly or in the aggregate, to have a Material Adverse Effect.
The execution, delivery, and performance of the Transaction Documents and
the consummation of the transactions contemplated thereby will not result
in any such violation or the violation or default under any instrument,
judgment, order, writ, decree, mortgage, indenture, lease, license or
contract to which Nesco or Hydrogel is party or be in conflict with or
constitute, with or without the passage of time and giving of notice,
either a default under any such provision, instrument, judgment, order,
writ, decree or contract, or an event which results in the creation of any
lien, charge, or encumbrance upon any assets of the Company or the
suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization, or approval applicable to the
Company, its business or operations, or any of its assets or properties,
except as would not reasonably be expected, singly or in the aggregate, to
have a Material Adverse Effect.
3.9. Permits. The Company has all material franchises, permits,
licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which could materially
and adversely affect the business, properties, prospects, or financial
condition of the Company and believes it can obtain, without undue burden
or expense, any similar authority for the conduct of its business as
planned to be conducted. The Company is not in default in any material
respect under any of such franchises, permits, licenses, or other similar
authority.
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3.10. Compliance with Laws. The conduct of business by the Company
presently and proposed to be conducted is not subject to continuing
oversight, supervision, regulation or examination by any governmental
official or body of the United States or any other jurisdiction wherein the
Company conducts or proposes to conduct such business, except such
regulation as is applicable to commercial enterprises generally. The
Company has not received any notice of any violation of or noncompliance
with, any federal, state, local or foreign laws, ordinances, regulations
and orders (including, without limitation, those relating to environmental
protection, occupational safety and health, federal securities laws, equal
employment opportunity, consumer protection, credit reporting,
"truth-in-lending", and warranties and trade practices) applicable to its
business or to the business of any Subsidiary, the violation of, or
noncompliance with, which would have a materially adverse effect on either
the Company's business or operations, and the Company knows of no facts or
set of circumstances which would give rise to such a notice.
3.11. Insurance. The Company has in full force and effect policies of
insurance issued by reputable insurance companies against loss or damage of
the kinds and in the amounts as are commercially reasonable and customary
for the industry in which the Company operates. The Company has not
received any notice (whether written or, to the knowledge of the Company,
oral) from any party of interest in or to any such policies claiming any
breach or violation of any provisions thereof, disclaiming or denying
coverage thereof or canceling or threatening cancellation of any such
insurance contracts.
3.12. Taxes. The Company has duly and timely filed all tax returns
required to be filed or delivered by it in connection with its business and
operations, all information included in such tax returns is accurate in all
material respects, and all taxes required to be shown on such tax returns
as payable by the Company with respect to its income have been paid when
due. No application for an extension of time for filing any tax return or
consent to any extension of the period of limitations applicable to the
assessment or collection of any tax is in effect with respect to the
Company. The Company is not delinquent in the payment of any taxes claimed
to be due from it by any taxing authority, and adequate reserves for taxes
(including any penalties and interest) payable by the Company have been
made on the books of the Company. The Company has not received any notice
(whether written or, to the knowledge of the Company, oral) of any proposed
audit or proposed deficiency for any tax due from it with respect to its
business and operations, as the case may be, and there are no pending
audits or claims with respect thereto. Each of Nesco and Hydrogel have
collected and paid when due all employment taxes owed with respect to the
employment of its employees.
3.13. Assets. The Company has a valid right to use or a leasehold
interest in all of its assets and property, (ii) all such assets and
property is owned free and clear of any liens, claims, security interests
or other encumbrances and (iii) all such assets and property is in good
working condition, normal wear and tear excepted.
3.14. Disclosure. The Transaction Documents and any other statements
or certificates made or delivered in connection herewith or therewith, when
taken together with the Disclosure Materials (as defined below), do not
contain any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading.
4. Representations and Warranties of the Investors. Each Investor hereby
represents and warrants, severally and not jointly that:
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4.1. Authorization. This Agreement and the Security Agreement
constitute valid and legally binding obligations of such Investor
enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
4.2. Purchase Entirely for Own Account. Each Restated Note purchased
by such Investor was, and each Additional Note purchased by such Investor
will be, acquired for investment for such Investor's own account and not
with a view to the resale or distribution of any part thereof. Such
Investor represents that it has full power and authority to enter into this
Agreement.
4.3. Disclosure of Information. Such Investor acknowledges that it has
received all the information that it has requested relating to the Company
and the purchase of the Restated Notes and the Additional Notes (the
"Disclosure Materials"). Such Investor further represents that it has had
an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Restated Notes
and the Additional Notes. The foregoing, however, does not limit or modify
the representations and warranties of the Company in Section 3 of this
Agreement or the right of the Investor to rely thereon.
4.4. Accredited Investor. Such Investor is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and
Exchange Commission (the "SEC"), as presently in effect.
4.5. Restricted Securities. Such Investor understands that the
Restated Notes and each of the Additional Notes are characterized as
"restricted securities" under the federal securities laws inasmuch as it is
being acquired from the Company in a transaction not involving a public
offering, and that under such laws and applicable regulations such
securities may be resold without registration under the Act, only in
certain limited circumstances.
5. Conditions of the Investors' Obligations at Note Closing. The obligations of
the Investors under this Agreement are subject to the fulfillment on or before
each Note Closing of each of the following conditions:
5.1. Representations and Warranties. The representations and
warranties of the Company contained in Section 3 hereof shall be true on
and as of such Note Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Note Closing.
5.2. Performance. The Company shall have performed and complied with
all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before such
Note Closing.
5.3. Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at such Note Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the applicable Investor and counsel to the Initial Investor,
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and they shall have received all such counterpart original and certified or
other copies of such documents as they may reasonably request.
5.4. Delivery of Note. The Company shall have delivered the applicable
Additional Note to the applicable Investor.
6. Conditions of the Company's Obligations at Closing. The obligations of the
Company to under this Agreement are subject to the fulfillment on or before any
Note Closing of each of the following conditions by the Investors:
6.1. Representations and Warranties. The representations and
warranties of the Investors contained in Section 4 shall be true on and as
of such Note Closing with the same effect as though such representations
and warranties had been made on and as of such Note Closing.
6.2. Payment of Purchase Price. The applicable Investors shall have
delivered the applicable Purchase Price to the Company as provided herein.
7. Indemnification. The Company agrees to indemnify and hold harmless the
Investors and the Investors' general partners, employees, officers, directors,
members, agents and other representatives (collectively, the "Indemnitees"),
against any investigations, proceedings, claims or actions and for any expenses,
damages, liabilities or losses (joint or several) arising out of such
investigations, proceedings, claims or actions, to which the Indemnitees may
become subject, whether under the act or any rules or regulations promulgated
thereunder, the Securities Exchange Act of 1934, as amended, r any rules or
regulations promulgated thereunder, or any state law or regulation, or common
law, arising out of, related to or in any way attributable to the Indemnitee's
investment in the Company, including, but not limited to, investigations,
proceedings, claims or actions and any expenses, losses, damages or liabilities
(or actions in respect thereof) that arise out of or are based upon any breach
of any representation, warranty, agreement, obligation or covenant of the
Company contained herein. The Company also agrees to reimburse the Indemnitees
for any legal or other expenses reasonably incurred in connection with
investigating or defending any such investigations, proceedings, claims or
actions, as such expenses or other costs are incurred.
8. Appointment of Agent.
8.1. Appointment. Initial Investor is hereby irrevocably appointed
"Agent" hereunder and under the Security Agreement, and each of the
Additional Investors irrevocably authorizes Agent to act as the agent of
such Additional Investor. Agent agrees to act as such upon the express
conditions contained in this Agreement. Agent shall not have any duties or
responsibilities to any Additional Investor except those expressly set
forth herein and shall not have a fiduciary relationship in respect of any
Additional Investor by reason of this Agreement.
8.2. Powers. Agent shall have and may exercise such powers under this
Agreement and the Security Agreement as are specifically delegated to Agent
by the terms of each, and Agent may take such actions on its behalf and on
behalf of the Additional Investors as Agent may deem necessary or advisable
in order to carry out the purpose and intent of this Agreement and the
Security Agreement, including: (i) giving and receiving all notices
permitted or required by this Agreement and the Security Agreement; (ii)
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agreeing with the Company as to any amendments to this Agreement and the
Security Agreement that the Agent may deem necessary or advisable,
including, but not limited to, the extension of time in which to consummate
the transactions contemplated by this Agreement, the Security Agreement and
the Related Notes and the waiver of any conditions under this Agreement,
the Security Agreement and the Related Notes; (iii) employing legal
counsel; and (iv) making, executing, acknowledging, and delivering all
other contracts, orders, receipts, notices, requests, instructions,
certificates, letters and other writings, and in general doing all things
and taking all actions that Agent, in its discretion, may consider
necessary or proper in connection with or to carry out the terms of this
Agreement, the Security Agreement and the Related Notes as fully as if the
Additional Investors were personally present and acting. This power of
attorney and all authority conferred hereby is shall be irrevocable and
shall not be terminated by any Additional Investor or by operation of law,
whether by the death, incompetency or incapacity of an Additional Investor,
or by the occurrence of any other event. Only Agent may perform the duties
reserved to it under this Agreement and the Security Agreement and no
Additional Investor shall act or purport to act on behalf of the other
Additional Investors or Agent on any such matters.
8.3. General Indemnity. Neither Agent nor any of its directors,
officers, agents, employees or representatives shall be liable to the
Company or any Additional Investor for any action taken or omitted to be
taken by it or them hereunder or under the Security Agreement or in
connection herewith or therewith, except for its or their own gross
negligence or willful misconduct. Each Additional Investor agrees to
reimburse and indemnify upon demand Agent ratably in accordance with their
respective pro rata share of the total outstanding principal balance of the
Restated Notes and all outstanding Additional Notes (i) for any amounts not
reimbursed by the Company for which Agent is entitled to reimbursement by
the Company hereunder or under the Security Agreement, (ii) for any other
expenses (including reasonable attorneys' fees) incurred by Agent on behalf
of the Additional Investors, in connection with the preparation, execution,
delivery, administration, modification and enforcement of this Agreement
and the Security Agreement, if not paid by the Company, and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against Agent in any way
relating to or arising out of this Agreement or the Security Agreement or
the transactions contemplated hereby, or the enforcement of any of the
terms hereof or thereof, provided that no Additional Investor shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Agent.
8.4. Additional Investor Decisions. Each Additional Investor
acknowledges that neither Agent nor any of its agents has made any
representation or warranty to any of the Additional Investors and that no
action or statement hereafter made or taken by Agent or any of its agents
shall be deemed to be representation or warranty by Agent to such
Additional Investors. Each Additional Investor further acknowledges that it
has, independently and without reliance upon Agent or any other Additional
Investor and based on the documents and information concerning the Company
as such Lender has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and to purchase such Additional Notes
as such Additional Investor has purchased.
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8.5. Agency Provisions Relating to Collateral. Agent is hereby
authorized on behalf of all Additional Investors, without the necessity of
any notice to or further consent from any Additional Investor, from time to
time prior to an Event of Default (as defined in the Restated Notes and the
Additional Notes), to take any action with respect to the Security
Agreement or any Collateral (as defined under the Security Agreement),
which may be necessary to perfect and maintain perfected liens upon the
Collateral granted pursuant to the Security Agreement. In the event that
all or any portion of the Collateral is acquired by Agent as the result of
a foreclosure or the acceptance of a deed or assignment in lieu of
foreclosure, or is retained in satisfaction of all or any part of the
Company's obligations to the Investors, title to any such Collateral or any
portion thereof shall be held in the name of Agent or a nominee or
subsidiary of Agent, as agent, for the ratable benefit of Agent and the
Additional Investors.
9. Miscellaneous.
9.1. Survival of Warranties. All of the representations and warranties
made herein shall survive the execution and delivery of this Agreement. The
Investors are entitled to rely, and the Company hereby acknowledges that
the Investors have so relied, upon the truth, accuracy and completeness of
each of the representations and warranties of the Company contained herein,
irrespective of any independent investigation made by the Investors. The
Company is entitled to rely, and the Investors hereby acknowledge that the
Company has so relied, upon the truth, accuracy and completeness of each of
the representations and warranties of the Investors contained herein,
irrespective of any independent investigation made by the Company.
9.2. Successors and Assigns. This Agreement is personal to each of the
parties and may not be assigned without the written consent of the other
party; provided, however, that each of the Investors shall be permitted to
assign its rights under this Agreement to any affiliate of such Investor.
9.3. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Illinois, without giving effect to the
conflict of laws principles thereof. Each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any federal or
state court located in Cook County, Illinois (and elsewhere with respect to
appellate courts with jurisdiction over such matter) in the event any
dispute arises out of this Agreement or any of the transactions
contemplated hereby, and consents to service of process by notice as
provided in this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from
any such court and (iii) agrees that it will not bring any action relating
to this Agreement or any of the transactions contemplated hereby in any
court other than a federal or state court sitting in Cook County, Illinois.
THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
9.4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement, once
executed by a party, may be delivered to the other party hereto by
facsimile transmission of a copy of this Agreement bearing the signature of
the party so delivering this Agreement.
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9.5. Titles and Headings. The titles and headings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.6. Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed
facsimile, or three business days after being deposited in the U.S. mail as
certified or registered mail with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or facsimile
number as set forth below or as subsequently modified by written notice.
Any party may change its address for such communications by giving notice
thereof to the other parties in conformity with this Section.
9.7. Finder's Fee. Each party represents that it neither is nor will
be obligated for any finders' or brokers' fee or commission in connection
with this transaction.
9.8. Transaction Expenses; Enforcement of Transaction Documents. The
Company shall pay the reasonable costs and expenses incurred by the
Investors, including without limitation, fees incurred by Agent in its
capacity as such, with respect to the negotiation, execution, delivery and
performance of this Agreement and the other Transaction Documents,
including reasonable attorneys' fees and costs. If any action at law or in
equity is necessary to enforce or interpret the terms of the Transaction
Documents, the prevailing party shall be entitled to reasonable attorney's
fees, costs, and necessary disbursements in addition to any other relief to
which such party may be entitled.
9.9. Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Agent.
9.10. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
9.11. Entire Agreement. This Agreement and the Transaction Documents
constitute the entire agreement among the parties.
[Remainder of Page Intentional Left Blank]
Signature Page Follows
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FOAM MANUFACTURING, INC.
By: /s/ Matthew Harriton
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Name: Matthew Harriton
Title: President
Address: 305 Madison Avenue
Suite ____
New York, NY 10165
Facsimile: ___________
INITIAL INVESTOR:
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CHICAGO INVESTMENTS, INC.
By: /s/ Joshua S. Kanter
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Name: Joshua S. Kanter
Title:
Address: 6340 S. 3000 E.
Suite 330
Salt Lake City, UT 84121
Facsimile: 801-947-9976
JOINDER
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Amended and Restated Note Purchase Agreement (the
"Agreement") dated as of February 1, 2006, by and among Foam Manufacturing,
Inc., Chicago Investments, Inc., and the additional parties thereto, and for all
purposes of the Agreement the undersigned shall be included within the terms
"Additional Investor" (as used in the Agreement).
The undersigned further confirms that the representations and warranties
contained in Section 4 of the Agreement are true and correct as to the
undersigned as of the date hereof and agrees to and acknowledges the appointment
of Chicago Investments, Inc. as the Agent for the Additional Investors,
including the undersigned, pursuant to Section 8 of the Agreement. The address
and facsimile number to which notices may be sent to the undersigned is:
Address: 290 El Camino Real
Chelsea, Alabama 35043
Facsimile:
Dated as of: February ___, 2006
Arlen B. Reynolds
JOINDER
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Amended and Restated Note Purchase Agreement (the
"Agreement") dated as of February 1, 2006, by and among Foam Manufacturing,
Inc., Chicago Investments, Inc., and the additional parties thereto, and for all
purposes of the Agreement the undersigned shall be included within the terms
"Additional Investor" (as used in the Agreement).
The undersigned further confirms that the representations and warranties
contained in Section 4 of the Agreement are true and correct as to the
undersigned as of the date hereof and agrees to and acknowledges the appointment
of Chicago Investments, Inc. as the Agent for the Additional Investors,
including the undersigned, pursuant to Section 8 of the Agreement. The address
and facsimile number to which notices may be sent to the undersigned is:
Address: 320 Argonne Drive
Atlanta, Ga. 30305
Facsimile:
Dated as of: February 28, 2006
Gene E. Burleson
JOINDER
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Amended and Restated Note Purchase Agreement (the
"Agreement") dated as of February 1, 2006, by and among Foam Manufacturing,
Inc., Chicago Investments, Inc., and the additional parties thereto, and for all
purposes of the Agreement the undersigned shall be included within the terms
"Additional Investor" (as used in the Agreement).
The undersigned further confirms that the representations and warranties
contained in Section 4 of the Agreement are true and correct as to the
undersigned as of the date hereof and agrees to and acknowledges the appointment
of Chicago Investments, Inc. as the Agent for the Additional Investors,
including the undersigned, pursuant to Section 8 of the Agreement. The address
and facsimile number to which notices may be sent to the undersigned is:
Address: 6340 S. 3000 E.
Suite 330
Salt Lake City, Utah 84121
Facsimile: (801) 906-7795
Dated as of: March 31, 2006
KANTER FAMILY FOUNDATION
By:
Joshua S. Kanter, Vice President