| To: ChainSaw who started this subject | 7/3/2001 11:55:15 PM | | From: jmhollen | | | | <PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Investment
Agreement to be duly executed as of the date and year first above written.
COMPANY: BOOKTECH.COM, INC.
By: ____________________________________
Name: Morris A. Shepard
Title: Chief Executive Officer
INVESTOR: CORNELL CAPITAL PARTNERS, L.P
By its General Partner, Yorkeville Advisors Management, LLC
By: ____________________________________
Name:
Title:
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<PAGE>
LIST OF SCHEDULES
-----------------
Schedule 4(a) Subsidiaries
Schedule 4(c) Capitalization
Schedule 4(e) Conflicts
Schedule 4(g) Material Changes
Schedule 4(h) Litigation
Schedule 4(n) Intellectual Property
Schedule 4(p) Liens
Schedule 4(v) Certain Transactions
<PAGE>
LIST OF EXHIBITS
-----------------
EXHIBIT A Registration Rights Agreement
EXHIBIT B Escrow Agreement
EXHIBIT C Put Notice
EXHIBIT D Lock Up Agreement
EXHIBIT E Officers' Certificate
EXHIBIT F Opinion of Company's Counsel
EXHIBIT G Secretary's Certificate
<PAGE>
EXHIBIT "A"
REGISTRATION RIGHTS AGREEMENT
<PAGE>
EXHIBIT "B"
ESCROW AGREEMENT
<PAGE>
EXHIBIT "C"
PUT NOTICE
Booktech.com, Inc. (the "Company) hereby elects to sell shares of its Common
Stock to the Investor, during the designated Purchase Period, at a Purchase
Price and for the number of shares of Common Stock to be determined on the last
day of the Purchase Period, all pursuant to that certain Investment Agreement by
and between the Company and Investor dated as of March 22, 2001.
Put Notice Date: __________________________
Dollar Amount Requested: __________________
Purchase Period: _________________________
Purchase Price: __________________________ (to be determined)
Number of Shares: _______________________ (to be determined)
Note: Capitalized terms shall have the meaning ascribed to them in the
Investment Agreement.
Booktech.com, Inc.
By: ______________________
<PAGE>
EXHIBIT "D"
LOCK UP AGREEMENT
<PAGE>
EXHIBIT "E"
OFFICER'S CERTIFICATE
<PAGE>
EXHIBIT "F"
OPINION OF COMPANY'S COUNSEL
<PAGE>
EXHIBIT "G"
SECRETARY'S CERTIFICATE
</TEXT>
</DOCUMENT>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of March 22,
2001, by and between booktech.com, inc., a company organized under the laws of
state of Nevada, with its principal executive office at 42 Cummings Park,
Woburn, MA 01801 (the "Company"), Cornell Capital Partners, L.P., a New York
limited partnership, (the "Investor"), and Yorkeville Advisors Management, LLC,
a _________ limited liability company ("Yorkeville", together with the Investor
referred to as the "Stockholders").
WHEREAS, In connection with the Investment Agreement by and between the
Company and the Investor of even date herewith (the "Investment Agreement"), the
Company has agreed to issue (i) to the Investor an indeterminate number of
shares of the Company's common stock, $.00042 par value per share (the "Common
Stock"), to be purchased pursuant to the Investment Agreement, and (ii) to
Yorkeville, 250,000 shares of Common Stock; and
WHEREAS, To induce the Investor to execute and deliver the Investment
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws, with respect to the shares of Common Stock
issuable pursuant to the Investment Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained hereinafter and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Investor hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
a. "Holder" means the Stockholders and any transferee or assignee
thereof to whom the Stockholders assigns its rights under this Agreement and who
agrees to become bound by the provisions of this Agreement in accordance with
Section 9.
b. "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental agency.
c. "Principal Market" means the Nasdaq National Market, the New York
Stock Exchange, the American Stock Exchange, Inc., the Nasdaq SmallCap Market,
or the OTC Bulletin Board, whichever is the principal market for the Common
Stock.
d. "Register," "Registered," and "Registration" refer to a registration
effected by preparing and filing one or more Registration Statements in
compliance with the 1933 Act and pursuant to Rule
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415 under the 1933 Act or any successor rule providing for offering securities
on a continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement(s) by the United States Securities
and Exchange Commission (the "SEC").
f. "Registrable Securities" means the shares of Common Stock issued or
issuable (i) pursuant to the Investment Agreement, and (ii) any shares of
capital stock issued or issuable with respect to the such shares of Common Stock
as a result of any stock split, stock dividend, recapitalization, exchange or
similar event or otherwise, which have not been (x) included in a Registration
Statement that has been declared effective by the SEC, (y) sold under
circumstances meeting all of the applicable conditions of Rule 144 (or any
similar provision then in force) under the 1933 Act or (z) otherwise transferred
to a holder who may trade such shares without restriction under the 1933 Act.
g. "Registration Statement" means a registration statement of the
Company filed under the 1933 Act.
All capitalized terms used in this Agreement and not otherwise defined
herein shall have the same meaning ascribed to them as in the Investment
Agreement.
2. REGISTRATION.
a. Mandatory Registration. The Company shall prepare, and, as soon as
practicable but in no event later than May 22, 2001, file with the SEC a
Registration Statement or Registration Statements (as is necessary) on Form SB-2
(or, if such form is unavailable for such a registration, on such other form as
is available for such a registration), covering the resale of all of the
Registrable Securities, which Registration Statement(s) shall state that, in
accordance with Rule 416 promulgated under the 1933 Act, such Registration
Statement(s) also covers such indeterminate number of additional shares of
Common Stock as may become issuable upon stock splits, stock dividends or
similar transactions. The Company shall initially register for resale 250,000
shares of Common Stock which would be issuable on the date preceding the filing
of the Registration Statement based on the closing bid price of the Company's
Common Stock on such date pursuant to the terms of the Investment Agreement. In
the event the Company cannot register, due to the remaining number of authorized
shares of Common Stock being insufficient, the Company will use its best efforts
to register the maximum number of shares it can based on the remaining balance
of authorized shares and will use its best efforts to increase the number of its
authorized shares as soon as reasonably practicable.
b. The Company shall use its best efforts to have the Registration
Statement(s) declared effective by the SEC within one hundred twenty (120)
calendar days after the filing thereof.
3. RELATED OBLIGATIONS.
At such time as the Company is obligated to prepare and file a
Registration Statement with the SEC pursuant to Section 2(a), the Company will
use its best efforts to effect the registration of the Registrable Securities in
accordance with the intended method of disposition
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<PAGE>
thereof and, with respect thereto, the Company shall have the following
obligations:
a. The Company shall use its best efforts to cause such Registration
Statement relating to the Registrable Securities to become effective within one
hundred twenty (120) days after the date of the filing thereof, and shall keep
such Registration Statement effective pursuant to Rule 415 until the earlier of
(i) the date as of which the Holders may sell all of the Registrable Securities
without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or
successor thereto) or (ii) the date on which (A) the Holders shall have sold all
the Registrable Securities, and (B) the Investor has no right to acquire any
additional shares of Common Stock under the Investment Agreement, respectively
(the "Registration Period"), which Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein) shall not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep such Registration Statement
effective during the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Company covered by such Registration Statement
until such time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof as set forth in such Registration Statement. In the event the
number of shares of Common Stock available under a Registration Statement filed
pursuant to this Agreement is at any time insufficient to cover all of the
Registrable Securities, the Company shall amend such Registration Statement, or
file a new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable Securities, in each
case, as soon as practicable, but in any event within thirty (30) calendar days
after the necessity therefor arises (based on the then Purchase Price of the
Common Stock and other relevant factors on which the Company reasonably elects
to rely), assuming the Company has sufficient authorized shares at that time,
and if it does not, within thirty (30) calendar days after such shares are
authorized. The Company shall use it best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as practicable following
the filing thereof.
c. The Company shall furnish to each Holder whose Registrable
Securities are included in any Registration Statement and its legal counsel
without charge (i) upon the effectiveness of any Registration Statement, ten
(10) copies of the prospectus included in such Registration Statement and all
amendments and supplements thereto (or such other number of copies as such
Holder may reasonably request) and (ii) such other documents, including copies
of any final prospectus, as such Holder may reasonably request from time to time
in order to facilitate the disposition of the Registrable Securities owned by
such Holder.
d. The Company shall use reasonable efforts to (i) register and qualify
the Registrable Securities covered by a Registration Statement under such other
securities or "blue sky" laws of
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<PAGE>
such states in the United States as any Holder reasonably requests, (ii) prepare
and file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (y) subject itself
to general taxation in any such jurisdiction, or (z) file a general consent to
service of process in any such jurisdiction. The Company shall promptly notify
each Holder who holds Registrable Securities of the receipt by the Company of
any notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the securities
or "blue sky" laws of any jurisdiction in the United States or its receipt of
actual notice of the initiation or threatening of any proceeding for such
purpose.
e. As promptly as practicable after becoming aware of such event, the
Company shall notify each Holder in writing of the happening of any event as a
result of which the prospectus included in a Registration Statement, as then in
effect, includes an untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, ("Registration Default") and use all diligent efforts to promptly
prepare a supplement or amendment to such Registration Statement and take any
other necessary steps to cure the Registration Default, (which, if such
Registration Statement is on Form S-3, may consist of a document to be filed by
the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act (as defined below) and to be incorporated by reference in the
prospectus) to correct such untrue statement or omission, and deliver ten (10)
copies of such supplement or amendment to each Holder (or such other number of
copies as such Holder may reasonably request). The Company shall also promptly
notify each Holder in writing (i) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when a Registration Statement or
any post-effective amendment has become effective (notification of such
effectiveness shall be delivered to each Holder by facsimile on the same day of
such effectiveness and by overnight mail), (ii) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
f. The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
or the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest possible
moment and to notify each Holder who holds Registrable Securities being sold of
the issuance of such order and the resolution thereof or its receipt of actual
notice of the initiation or threat of any proceeding for such purpose.
g. The Company shall permit each Holder and a single firm of counsel,
designated as selling
4
<PAGE>
shareholders' counsel by the Holders who hold a majority of the Registrable
Securities being sold, to review and comment upon a Registration Statement and
all amendments and supplements thereto at least three (3) business days prior to
their filing with the SEC, and not file any document in a form to which such
counsel reasonably objects. The Company shall not submit to the SEC a request
for acceleration of the effectiveness of a Registration Statement or file with
the SEC a Registration Statement or any amendment or supplement thereto without
the prior approval of such counsel, which approval shall not be unreasonably
withheld.
h. Reserved.
i. The Company shall hold in confidence and not make any disclosure of
information concerning a Holder provided to the Company unless (i) disclosure of
such information is necessary to comply with federal or state securities laws,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning a Holder is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt written
notice to such Holder and allow such Holder, at the Holder's expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
j. The Company shall use its best efforts to secure designation and
quotation of all the Registrable Securities covered by any Registration
Statement on the Principal Market. If, despite the Company's best efforts, the
Company is unsuccessful in satisfying the preceding sentence, it shall use its
best efforts to cause all the Registrable Securities covered by any Registration
Statement to be listed on each other national securities exchange and automated
quotation system, if any, on which securities of the same class or series issued
by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or system. If,
despite the Company's best efforts, the Company is unsuccessful in satisfying
the two preceding sentences, it will use its best efforts to secure the
inclusion for quotation on the Nasdaq SmallCap Market for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register with the National Association of
Securities Dealers, Inc. as such with respect to such Registrable Securities.
The Company shall pay all fees and expenses in connection with satisfying its
obligation under this Section 3(j).
k. The Company shall cooperate with the Holders who hold Registrable
Securities being offered to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be offered pursuant to a
Registration Statement and enable such certificates to be in such denominations
or amounts, as the case may be, as the Holders may reasonably request and
registered in such names of the Persons who shall acquire such Registrable
Securities from the Holders, as the Holders may request.
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<PAGE>
l. The Company shall provide a transfer agent for all the Registrable
Securities not later than the effective date of the first Registration Statement
filed pursuant hereto.
m. If requested by the Holders holding a majority of the Registrable
Securities, the Company shall (i) as soon as reasonably practical incorporate in
a prospectus supplement or post-effective amendment such information as such
Holders reasonably determine should be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation,
information with respect to the offering of the Registrable Securities to be
sold in such offering; (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) supplement or make amendments to any Registration Statement if reasonably
requested by such Holders.
n. The Company shall use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities.
o. The Company shall otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC in connection with any registration
hereunder.
p. Within one (1) business day after a Registration Statement which
includes Registrable Securities is declared effective by the SEC, the Company
shall deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Holders whose
Registrable Securities are included in such Registration Statement) confirmation
that such Registration Statement has been declared effective by the SEC in the
form attached hereto as Exhibit A.
q. The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Holders of Registrable Securities
pursuant to a Registration Statement.
4. OBLIGATIONS OF THE HOLDERS.
a. At least fifteen (15) calendar days prior to the first anticipated
filing date of a Registration Statement the Company shall notify each Holder in
writing of the information the Company requires from each such Holder if such
Holder elects to have any of such Holder's Registrable Securities included in
such Registration Statement. It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Holder that
such Holder shall furnish in writing to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall reasonably be
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request. Each Holder covenants and agrees that, in connection with
any disposition or transfer of Registrable Securities by it pursuant to a
Registration Statement, it shall comply with the "Plan of Distribution" section
of the current prospectus relating to such Registration Statement.
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b. Each Holder, by such Holder's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Holder has notified the Company in writing of
such Holder's election to exclude all of such Holder's Registrable Securities
from such Registration Statement.
c. Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(f) or the first
sentence of 3(e), such Holder will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or the first
sentence of 3(e).
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printing and accounting fees, and
fees and disbursements of counsel for the Company shall be paid by the Company.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the fullest extent permitted by law, the Company will, and hereby
does, indemnify, hold harmless and defend each Holder who holds such Registrable
Securities, the directors, officers, partners, employees, agents,
representatives of, and each Person, if any, who controls, any Holder within the
meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, attorneys'
fees, amounts paid in settlement or expenses, joint or several (collectively,
"Claims"), incurred in investigating, preparing or defending any action, claim,
suit, inquiry, proceeding, investigation or appeal taken from the foregoing by
or before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto ("Indemnified Damages"), to which any of them
may become subject insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of a material fact in a
Registration Statement or any post-effective amendment thereto or in any filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable Securities are
offered ("Blue Sky Filing"), or the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which the statements therein were
made, not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in the final prospectus (as amended or supplemented, if
the Company files any amendment
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<PAGE>
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company
of the 1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). Subject to the restrictions set forth in Section 6(c) with
respect to the number of legal counsel, the Company shall reimburse the Holders
and each such controlling person, promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply to a Claim arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus were timely made available by the Company pursuant to Section 3(c);
(ii) shall not be available to the extent such Claim is based on (a) a failure
of the Holder to deliver or to cause to be delivered the prospectus made
available by the Company or (b) the Indemnified Person's use of an incorrect
prospectus despite being promptly advised in advance by the Company in writing
not to use such incorrect prospectus; and (iii) shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Holders pursuant to Section 9.
b. In connection with any Registration Statement in which a Holder is
participating, each such Holder agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (collectively and
together with an Indemnified Person, an "Indemnified Party"), against any Claim
or Indemnified Damages to which any of them may become subject, under the 1933
Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case to the extent, and
only to the extent, that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in connection with such Registration Statement; and, subject
to Section 6(c), such Holder will reimburse any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such Claim; provided, however, that the indemnity agreement contained in this
Section 6(b) and the agreement with respect to contribution contained in Section
7 shall not apply to amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of such Holder, which consent
shall not be unreasonably withheld; provided, further, however, that the Holder
shall be liable under this Section 6(b) for only that amount of a Claim or
Indemnified Damages as does not exceed the net proceeds to such Holder as a
result of the sale of Registrable Securities pursuant to such Registration
Statement.
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<PAGE>
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of the Registrable Securities by the Holders pursuant to Section 9.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
were corrected on a timely basis in the prospectus, as then amended or
supplemented.
c. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim, such
Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is
to be made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding. The indemnifying
party shall pay for only one separate legal counsel for the Indemnified Persons
or the Indemnified Parties, as applicable, and such counsel shall be selected by
Holders holding a majority-in-interest of the Registrable Securities included in
the Registration Statement to which the Claim relates, if the Holders are
entitled to indemnification hereunder, or the Company, if the Company is
entitled to indemnification hereunder, as applicable. The Indemnified Party or
Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully appraised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party or
Indemnified Person of a release from all liability in respect to such Claim.
Following indemnification as provided for hereunder, the indemnifying party
shall be surrogated to all rights of the Indemnified Party or Indemnified Person
with respect to all third parties, firms or corporations relating to the matter
for which indemnification has been made. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party
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<PAGE>
under this Section 6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action.
d. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred.
e. The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6; (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of fraudulent misrepresentation; and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of the
SEC that may at any time permit the Holders to sell securities of the Company to
the public without registration ("Rule 144"), the Company agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144; and
b. file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements (it being understood that nothing
herein shall limit the Company's obligations under Section 4(c) of the
Investment Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights under this Agreement shall be automatically assignable by
the Holders to any transferee of all or any portion of Registrable Securities if
(i) the Holder agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the
10
<PAGE>
Company within a reasonable time after such assignment; (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee, and
(b) the Registrable Securities with respect to which such registration rights
are being transferred or assigned; (iii) immediately following such transfer or
assignment the further disposition of such Registrable Securities by the
transferee or assignee is restricted under the 1933 Act and applicable state
securities laws; (iv) at or before the time the Company receives the written
notice contemplated by clause (ii) of this sentence the transferee or assignee
agrees in writing with the Company to be bound by all of the provisions
contained herein; and (v) such transfer shall have been made in accordance with
the applicable requirements of the Investment Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Holders who hold a majority of the Registrable Securities. Any amendment or
waiver effected in accordance with this Section 10 shall be binding upon each
Holder and the Company. No such amendment shall be effective to the extent that
it applies to less than all of the Holders of the Registrable Securities. No
consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
11. MISCELLANEOUS.
a. A Person is deemed to be a Holder of Registrable Securities whenever
such Person owns of record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the basis
of instructions, notice or election received from the registered owner of such
Registrable Securities.
b. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided a confirmation
of transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) one (1) day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
booktech.com, inc.
42 Cummings Park
Woburn, MA 01801
Attention: Morris Shepard, CEO
Telephone: 781-933-5400
Facsimile: 718-933-6750
11
<PAGE>
If to the Investor:
Cornell Capital Partners, L.P.
c/o Meir Levin
521 Fifth Avenue, 17th Floor
New York, New York 10175
Telephone:
Facsimile:
Each party shall provide five (5) business days prior notice to the
other party of any change in address, phone number or facsimile number.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
d. The laws of the State of New York shall govern all issues concerning
the relative rights of the Company and its stockholders. All other questions
shall be governed by and interpreted in accordance with the laws of the State of
New York without regard to the principles of conflict of laws. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
e. This Agreement and the Investment Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein. This Agreement and the
Investment Agreement supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and thereof.
f. Subject to the requirements of Section 9, this Agreement shall inure
to the benefit of and be binding upon the permitted successors and assigns of
each of the parties hereto.
12
<PAGE>
g. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. 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.
i. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
j. All consents and other determinations to be made by the Holders
pursuant to this Agreement shall be made, unless otherwise specified in this
Agreement, by Holders holding a majority of the Registrable Securities.
k. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
13
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
BOOKTECH.COM, Inc
By: ________________________________
Name: Morris A. Shepard
Title: Chief Executive Officer
CORNELL CAPITAL PARTNERS, L.P.
By its General Partner
Yorkeville Advisors Management, LLC
By: ________________________________
Name:
Title:
YORKEVILLE ADVISORS MANAGEMENT, LLC
By: ________________________________
Name:
Title:
14
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
Date: __________
Re: Booktech.com, Inc
Ladies and Gentlemen:
We are counsel to Booktech.com, Inc., a Nevada corporation (the
"Company"), and have represented the Company in connection with that certain
Investment Agreement (the "Investment Agreement") entered into by and among the
Company and Cornell Capital Partners, L.P. (the "Investor") pursuant to which
the Company has agreed to issue to the Investor and Yorkeville Advisors
Management LLC ("Yorkeville") shares of the Company's common stock, $.00042 par
value per share (the "Common Stock") on the terms and conditions set forth in
the Investment Agreement. Pursuant to the Investment Agreement, the Company also
has entered into a Registration Rights Agreement with the Investor and
Yorkeville (the "Registration Rights Agreement") pursuant to which the Company
agreed, among other things, to register the Registrable Securities (as defined
in the Registration Rights Agreement), including the shares of Common Stock
issued or issuable under the Investment Agreement under the Securities Act of
1933, as amended (the "1933 Act"). In connection with the Company's obligations
under the Registration Rights Agreement, on ____________ ___, 2001, the Company
filed a Registration Statement on Form S- ___ (File No. 333-________) (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") relating to the Registrable Securities which names the Investor as a
selling shareholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [enter the
time of effectiveness] on [enter the date of effectiveness] and to the best of
our knowledge, after telephonic inquiry of a member of the SEC's staff, no stop
order suspending its effectiveness has been issued and no proceedings for that
purpose are pending before, or threatened by, the SEC and the Registrable
Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours,
[Company Counsel]
By: ____________________
cc: Cornell Capital Partners, L.P.
</TEXT>
</DOCUMENT>
RESALE RESTRICTION AGREEMENT
March 22, 2001
booktech.com, inc., inc.
42 Cummings Park
Woburn, Massachusetts 01801
Attention: Morris A. Shepard, Ph.D.
Ladies and Gentlemen:
Pursuant to the terms of an Investment Agreement dated as of March 22,
2001 (the "Agreement") among booktech.com, inc., a Nevada corporation (the
"Company") and Cornell Capital Partners, L.P., a New York limited partnership,
the undersigned will receive 250,000 shares of Common Stock, $.00042 par value
per share, of the Company (the "Shares").
In order to induce the Company to enter into the Agreement, the
undersigned hereby agrees as follows:
1. Except as expressly set forth in this paragraph 1 and in paragraph 2
below, each Share may not be sold, transferred, hypothecated, pledged, be the
subject of an equity swap, option or warrant, put, put equivalent position or
similar agreement or otherwise be transferred or disposed of (collectively, a
"Disposition") without the prior written consent of the Company, prior to the
six-month anniversary of the Effective Date (as defined in the Agreement) (the
"Restricted Period"). The foregoing restriction is expressly agreed to preclude
the undersigned from engaging in any hedging or other transaction which is
designed or reasonably expected to lead to or result in a Disposition of the
Shares, even if such Shares would be disposed of by someone other than the
undersigned. Such prohibited hedging or other transactions would include,
without limitation, any short sale or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any
security that includes, relates to or derives any significant part of its value
from such Shares. Notwithstanding the foregoing, the undersigned is allowed to
cause a Disposition in a public sale of up to 10,000 Shares each week during the
Restricted Period.
2. Notwithstanding anything to the contrary contained herein, the
undersigned may cause a Disposition of any number of the Shares in one or more
private transactions; provided however, that in the event that the undersigned
desires to effect such a private transaction (or transactions), (i) the
undersigned shall provide at least three (3) days prior written notice to the
Company, (ii) the transferee of the undersigned shall be required to become
bound by the terms of this Resale Restriction Agreement through the remainder of
the Restricted Period by executing a copy of this Resale Restriction Agreement
contemporaneously with such private transaction and (iii) the undersigned and
all of its transferees who obtain Shares in such private transactions (and any
of their subsequent transferees who acquire any Shares during the Restricted
Period
<PAGE>
pursuant to a private transaction) shall not be permitted to effect public sales
of more than an aggregate of 10,000 Shares per week during the remainder of the
Restricted Period.
3. The undersigned acknowledges that the Company may impose stock
transfer restrictions on the Shares with the Company's stock transfer agent
and/or place stock legends on the certificates representing the Shares to
enforce the provisions of this Agreement.
Very truly yours,
Yorkeville Advisors Management, L.L.C.
By:_________________________________
Name:
Title: |
| | booktech.com BTC - AMEX | Stock Discussion ForumsShare | RecommendKeepReplyMark as Last Read |
|
| To: ChainSaw who started this subject | 7/4/2001 12:05:54 AM | | From: jmhollen | | | | LOAN AGREEMENT
THIS LOAN AGREEMENT is made effective as of December 31, 2000 (the
"Effective Date ") by and between booktech.com, inc. a Nevada corporation (the
"Company"), and Verus Investments Holdings, Inc., a British Virgin Islands
corporation ("Lender").
1. THE LOAN.
1.1 The Loan. Lender agrees, on the terms of and subject to the conditions
specified in this Agreement, to lend to the Company the sum of Nine Hundred
Thirty Nine Thousand Two Hundred Sixty One and No/100 United States Dollars
($939,261). Lender's loan shall be evidenced by a promissory note in the form
set forth on Exhibit A dated the Effective Date (the "Note"). The loan made in
accordance with this Section 1.1 shall be referred to herein as the "Loan."
1.2 Place and Date of Closing. The closing of the transactions provided for
herein (the "Closing") will be held at the offices of the Company on the
Effective Date or at such other time and place as the parties shall mutually
agree (the "Closing Date").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Lender as follows:
2.1 Organization and Standing. The Company 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. The Company is duly qualified or
licensed as a corporation in good standing under the laws of each jurisdiction
wherein failure to so qualify could reasonably be expected to have a Materially
Adverse Effect (as defined below). The Company has the 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.
2.2 Corporate Power. The Company will have at the Closing all requisite
legal and corporate power to execute and deliver this Agreement, to issue the
Note and to carry out and perform its obligations under the terms of this
Agreement and the Note.
2.3 Authorization. As soon as possible following the Closing, the
execution, delivery and performance of this Agreement and the Note by the
Company will be duly ratified by all requisite corporate action, so that it will
constitute the valid and binding obligations of the Company enforceable against
the Company in accordance with its terms, subject as to enforcement of remedies
to applicable bankruptcy, insolvency, reorganization, or similar laws relating
to or affecting the enforcement of creditors' rights.
2.4 No Conflict. The Company's execution, delivery and performance of its
obligations under this Agreement and the Note do not and will not contravene or
conflict with any provision of (i) applicable law, rule or regulation (ii) any
judgment, decree or order applicable or binding upon the Company, (iii) the
corporate charter or bylaws of the Company, or (iv) any agreement or instrument
binding upon the Company or upon any assets or property of
1
<PAGE>
the Company for which the Company has obtained the necessary consent or waiver
of the other parties to such agreement or instrument.
2.5 Full Disclosure. To the knowledge of the Company, all factual
information heretofore or contemporaneously furnished by the Company to the
Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby is true and accurate in every material respect on the date
as of which such information is dated or certified, and the Company has not
knowingly omitted any fact necessary to prevent such information from being
false or misleading.
2.6 No Regulatory Restrictions. The Company is not (a) an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended, (b) a "holding
company" or a "subsidiary company" of a holding company within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or (iii) otherwise
subject to any regulatory scheme which restricts its ability to incur debt.
2.7 Authorizations. The Company has obtained all licenses, permits,
franchises and other governmental authorizations necessary to the ownership of
its properties or to the conduct of its businesses, including without limitation
all licenses, permits, franchises and other governmental authorizations required
under all applicable environmental laws, a failure to obtain or violation of
which could reasonably be expected to have a Material Adverse Effect.
2.8 Financial Statements. On or prior to the date of this Agreement, the
Company has furnished to the Lender its balance sheet and consolidating
statements of income, earnings, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1999, and (ii) as of and for the fiscal
quarter(s) and the portion of the fiscal year ended September 30, 2000,
certified by the Company's chief financial officer. The Company acknowledges
that the Lender is relying upon the accuracy of such financial statements as an
inducement to make the Loan.
For the purposes of this Agreement, "Material Adverse Effect" means a material
adverse effect on (a) the business, operations, property, condition or prospects
(financial or otherwise) of the Company, (b) the ability of the Company to
perform its obligations under this Agreement or the Note, or (c) the validity or
enforceability of this Agreement or the Note or the rights and remedies of the
Lender under this Agreement or the Note.
3. REPRESENTATIONS AND WARRANTIES OF THE LENDER AND ADDITIONAL REPRESENTATIONS
OF THE COMPANY.
3.1 Representations and Warranties. Lender represents and warrants to the
Company as of the Closing Date as follows:
(a) The Lender will have at the Closing all requisite legal and
corporate power to execute and deliver this Agreement and to carry out its
obligations under the terms of this Agreement.
(b) All action on the part of the Lender for the authorization,
execution,
2
<PAGE>
delivery and performance by the Lender of this Agreement has been taken,
and this Agreement constitutes a valid and binding obligation of the
Lender, enforceable in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, or similar laws
relating to or affecting the enforcement of creditors' rights.
(c) The Lender is a sophisticated investor with such knowledge and
experience in financial and business matters so as to be capable of
evaluating the merits and risks of the Note and who is capable of bearing
the economic risks of such Note, assuming the completeness and accuracy of
the representations made by the Company.
3.2 Legends. The certificate representing the Note will be endorsed with
the following legend (in addition to any legend required under applicable state
securities laws):
THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAW. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENT OF SAID ACT AND
ANY STATE SECURITIES LAWS.
4. COVENANTS. The Company agrees that: (i) it will maintain its corporate
existence and good standing in each jurisdiction wherein such qualification is
necessary, except where failure to do so would not have a Material Adverse
Effect; (ii) it will promptly upon learning of the occurrence of any of the
following, furnish to the Lender notice of such occurrence and the steps being
taken by the Company with respect thereto: (a) the occurrence of any Event of
Default, or (b) the institution of, or any adverse determination in, any
material litigation, arbitration proceeding or governmental proceeding; (iii)
without the prior written consent of Lender, it will not incur or permit to
exist any debt other than that represented by the Note except for trade debt
incurred in the ordinary course of business, and in any event, to exceed
$25,000; and (iv) without the prior written consent of Lender, it will not enter
into or execute or permit to exist any lien, security interest or encumbrance on
any of the assets of the Company except to secure debt incurred in the normal
course of business (i.e., liens of carriers, warehousemen, mechanics, laborers
and materialmen or incurred in connection with workers compensation or
unemployment insurance), and in any event, not to exceed $25,000.
Notwithstanding the foregoing, the Lender (and/or any affiliates of the Lender)
and the Company may enter into one or several lending transactions subsequent to
the Loan without the requirement of any prior written consent.
5. DEFAULTS AND REMEDIES.
5.1 Events of Default. The following events shall be considered "Events of
Default" with respect to the Note:
(a) The Company shall default in the payment of any part of the
principal or
3
<PAGE>
accrued interest on the Note for more than thirty (30) days after the same
shall become due and payable, whether at maturity or at a date fixed for
prepayment or by acceleration or otherwise;
(b) The Company shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts as they become
due, or shall file a voluntary petition for bankruptcy, or shall file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, dissolution or similar relief under any present
or future statute, law or regulation, or shall file any answer admitting
the material allegations of a petition filed against the Company in any
such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of the Company, or of
all or any substantial part of the properties of the Company, or the
Company or its respective directors or majority shareholders shall take any
action looking to the dissolution or liquidation of the Company;
(c) Within thirty (30) days after the commencement of any proceeding
against the Company seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, such proceeding shall not have been
dismissed or, within thirty (30) days after the appointment without the
consent or acquiescence of the Company of any trustee, receiver or
liquidator of the Company or of all or any substantial part of the
properties of the Company, such appointment shall not have been vacated;
(d) The Company fails to perform any obligations or breaches any
covenants contained in this Agreement or the Note, and Company does not
perform such obligation or cure such breach within thirty (30) days after
receipt of written notice from Lender;
(e) Any representation or warranty made by the Company herein is false
or misleading in any material respect; or
(f) The Company sells, transfers, distributes or disposes of all or
substantially all of its assets other than in the ordinary course of
business or merges or consolidates with another person or entity without
the prior written consent of the Lender.
5.2 Remedies. Upon the occurrence of an Event of Default under Section 5.1
hereof, at the option and upon the declaration of the holder of the Note, (i)
the entire unpaid principal and accrued interest on the Note held by such holder
shall, without presentment, demand, protest, or notice of any kind, all of which
are hereby expressly waived, be forthwith due and payable, and the holder may,
immediately and without expiration of any period of grace, enforce payment of
all amounts due and owing under such Note and exercise any and all other
remedies granted to it at law, in equity, or otherwise.
6. MISCELLANEOUS.
6.1 Waivers and Amendments. With the written consent of the record holder
of the Note and the Company, the obligations of the Company and the rights of
the holder of the Note under this Agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely). Neither
4
<PAGE>
this Agreement nor any provisions hereof may be changed, waived, discharged or
terminated orally, but only by a signed statement in writing.
6.2 Further Assurances; Subordination. Upon request of the Company, Lender
will acknowledge in writing its subordination undertakings as set forth in the
Note.
6.3 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York, without regard to its internal conflict of laws
rules.
6.4 Survival. The representations, warranties, covenants and agreements
made herein shall survive until the date on which Company has paid to Lender all
principal and interest owed pursuant to this Agreement and the Note.
6.5 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
Neither Company nor Lender may assign this Agreement, the Note, or any of its
rights, interests or obligations hereunder, or thereunder, without the prior
written consent of the other party hereto; provided, however, that Lender may
(a) assign any or all of its rights and interests under this Agreement and the
Note to one or more of its "affiliates," as that term is defined in Rule
144(a)(1) of the rules and regulations promulgated under the Securities Act of
1933, as amended; and (b) designate one or more of its affiliates to perform its
obligations under this Agreement and the Note.
6.6 Costs and Expenses. The Company promises to pay, upon the Lender's
demand therefor, all costs and expenses, including attorneys' fees, incurred in
the collection and enforcement of this Agreement and the Note.
6.7 Entire Agreement. 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.
6.8 Severability of this Agreement. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6.9 Titles and Subtitles. The titles of the Sections and Subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.10 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to the Lender, upon any breach or
default of the Company under this Agreement or the Note, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach or default, or any 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. It is further agreed that any waiver, permit, consent or
approval of any kind or character by the Lender of any breach or default under
this Agreement, or any waiver by the Lender of any provisions or conditions of
this Agreement must be in writing and shall be effective only to the extent
5
<PAGE>
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to the Lender, shall be cumulative
and not alternative.
6.11 Notices. Any notices, claims or demands or other communications
hereunder shall be in writing and shall be deemed to be duly given if personally
given or if sent by telecopier, nationally-recognized overnight courier or by
registered or certified mail, return receipt required and postage prepaid,
addressed to such party in accordance herewith or as otherwise stated in any
notice given in accordance herewith. Any such notice shall be deemed to have
been received (a) in the case or personal delivery or delivery by telecopier, on
the date of such delivery, (b) in the case of a nationally-recognized overnight
courier, on the next business day after the date sent and (c) in the case of
mailing, on the third business day following that on which the piece of mail
containing such communications is posted.
To the Company: booktech.com, inc.
42 Cummings Park
Woburn, Massachusetts 01801
Attention: William G. Christie
Fax: (781) 933-6750
Email: bchristie@booktech.com
To the Lender: Verus Investments Holdings, Inc.
c/o Verus Support Services, Inc.
520 Madison Avenue
New York, New York 10022
Attention: Ajmal Khan
Fax: (212) 588-0869
Email: akhan@verusinternational.com
6.11 Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed an original, and all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
BOOKTECH.COM, INC.
By: /s/ TED BERNHARDT
------------------------------------------
Ted Bernhardt
Chief Financial Officer
LENDER:
VERUS INVESTMENTS HOLDINGS, INC.
6
<PAGE>
By: /s/ AJMAL KHAN
-----------------------------------------
Ajmal Khan
President and Chief Executive Officer
Principal Amount of Note: $939,261
7
<PAGE>
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAW. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENT OF SAID ACT AND ANY STATE
SECURITIES LAWS.
DATE: EFFECTIVE AS OF DECEMBER 31, 2000 $939,261
BOOKTECH.COM, INC.
PROMISSORY NOTE
booktech.com, inc., a Nevada corporation (the "Company"), for value
received, promises to pay to Verus Investments Holdings, Inc. (the "Lender"),
the principal sum of $939,261, in lawful money of the United States of America
and in immediately available funds, plus simple interest of 8% per annum on the
principal amount hereof as provided below. All principal and accrued interest
shall be due and payable on December 31, 2001 (whether by acceleration or
otherwise). Interest shall be computed on the basis of a year of 365 days for
the actual number of days elapsed.
1. DEFINITIONS. Unless the context indicates otherwise, capitalized terms used
herein shall have the meanings given them in the Loan Agreement (defined below),
provided that the following terms used herein shall have the following meanings:
1.1 "Loan Agreement" means the Loan Agreement dated as of December 31, 2000
between the Lender and the Company.
1.2 "Noteholder," "holder," or similar terms, when the context refers to a
holder of a Note, means any person who shall at the time be the holder of this
Note.
2. PREPAYMENT. The principal amount of this Note and any accrued interest
thereon may be prepaid in whole or in installments by the Company prior to
maturity without penalty.
3. SUBORDINATION. The indebtedness represented by this Note is hereby expressly
subordinated in right of payment to the prior payment in full of all of the
Company's indebtedness for money borrowed from insured banks, licensed insurance
companies, lenders approved pursuant to Section 2.10 of the Loan Agreement, or
other third-party commercial lending institutions regularly engaged in the
business of lending money.
4. LEGAL RATE ADJUSTMENT. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to the Loan, together with all fees,
charges and other amounts which are treated as interest on the Loan under
applicable law shall exceed the maximum lawful rate (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved by the
<PAGE>
Lender in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all charges payable in respect
thereof, shall be limited to the Maximum Rate.
5. INDEMNIFICATION. The Company shall defend, indemnify and hold harmless the
Lender and its officers, directors, employees and agents against (a) all
obligations, demands, claims, and liabilities claimed or asserted by any person
in connection with the transactions contemplated by this Note, and (b) all
losses or expenses in any way suffered, incurred, or paid by the Lender as a
result of or in any way arising out of, following, or consequential to
transactions between the Lender and the Company under this Note or otherwise
(including without limitation reasonable attorneys' fees and expenses), expect
for losses caused solely by the Lender's gross negligence or willful misconduct.
6. LOAN AGREEMENT. This Note is the Note referred to in the Loan Agreement and
is entitled to all the benefits provided therein. Reference is made to said Loan
Agreement for the representation and warranties of the Company, the covenants,
the Events of Default and the rights of acceleration of the maturity of the Note
upon an Event of Default, as well as the miscellaneous provisions of Article 6
of the Loan Agreement, all of which are incorporated herein by reference.
7. GOVERNING LAW. This Note shall be governed in all respects by the laws of the
State of New York, without regard to its internal conflict of laws rules.
BOOKTECH.COM, INC.
By:
---------------------------------
Ted Bernhardt
Chief Financial Officer
</TEXT>
</DOCUMENT>
THE SECURITIES REPRESENTED BY THIS PROMISSORY NOTE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAW. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENT OF SAID ACT AND ANY STATE
SECURITIES LAWS.
DATE: EFFECTIVE AS OF DECEMBER 31, 2000 $939,261
BOOKTECH.COM, INC.
PROMISSORY NOTE
booktech.com, inc., a Nevada corporation (the "Company"), for value
received, promises to pay to Verus Investments Holdings, Inc. (the "Lender"),
the principal sum of $939,261, in lawful money of the United States of America
and in immediately available funds, plus simple interest of 8% per annum on the
principal amount hereof as provided below. All principal and accrued interest
shall be due and payable on December 31, 2001 (whether by acceleration or
otherwise). Interest shall be computed on the basis of a year of 365 days for
the actual number of days elapsed.
1. DEFINITIONS. Unless the context indicates otherwise, capitalized terms used
herein shall have the meanings given them in the Loan Agreement (defined below),
provided that the following terms used herein shall have the following meanings:
1.1 "Loan Agreement" means the Loan Agreement dated as of December 31, 2000
between the Lender and the Company.
1.2 "Noteholder," "holder," or similar terms, when the context refers to a
holder of a Note, means any person who shall at the time be the holder of this
Note.
2. PREPAYMENT. The principal amount of this Note and any accrued interest
thereon may be prepaid in whole or in installments by the Company prior to
maturity without penalty.
3. SUBORDINATION. The indebtedness represented by this Note is hereby expressly
subordinated in right of payment to the prior payment in full of all of the
Company's indebtedness for money borrowed from insured banks, licensed insurance
companies, lenders approved pursuant to Section 2.10 of the Loan Agreement, or
other third-party commercial lending institutions regularly engaged in the
business of lending money.
4. LEGAL RATE ADJUSTMENT. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to the Loan, together with all fees,
charges and other amounts which are treated as interest on the Loan under
applicable law shall exceed the maximum lawful rate (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved by the Lender in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all charges payable in respect thereof, shall be
limited to the Maximum
1
<PAGE>
Rate.
5. INDEMNIFICATION. The Company shall defend, indemnify and hold harmless the
Lender and its officers, directors, employees and agents against (a) all
obligations, demands, claims, and liabilities claimed or asserted by any person
in connection with the transactions contemplated by this Note, and (b) all
losses or expenses in any way suffered, incurred, or paid by the Lender as a
result of or in any way arising out of, following, or consequential to
transactions between the Lender and the Company under this Note or otherwise
(including without limitation reasonable attorneys' fees and expenses), expect
for losses caused solely by the Lender's gross negligence or willful misconduct.
6. LOAN AGREEMENT. This Note is the Note referred to in the Loan Agreement and
is entitled to all the benefits provided therein. Reference is made to said Loan
Agreement for the representation and warranties of the Company, the covenants,
the Events of Default and the rights of acceleration of the maturity of the Note
upon an Event of Default, as well as the miscellaneous provisions of Article 6
of the Loan Agreement, all of which are incorporated herein by reference.
7. GOVERNING LAW. This Note shall be governed in all respects by the laws of the
State of New York, without regard to its internal conflict of laws rules.
BOOKTECH.COM, INC.
By: /S/ TED BERNHARDT
-----------------------
Ted Bernhardt
Chief Financial Officer
2
</TEXT>
</DOCUMENT>
PROMISSORY NOTE XEROX
--------------------------------------------------------------------------------
Not Accepted until Countersigned by, The Document Company, Xerox
-------------------------------------------------------------------------------- |
| | booktech.com BTC - AMEX | Stock Discussion ForumsShare | RecommendKeepReplyMark as Last Read |
|
| To: ChainSaw who started this subject | 7/4/2001 12:07:44 AM | | From: jmhollen | | | | Date: JANUARY 10, 2001
Customer Name: BOOK TECH. INC. Customer # 500520424
42 CUMMING PARK
WOBURN, MA. 01801
1. Amount Financed: $455,627.18 3 Total of Payments (1+2): $496,073.34
2. Interest: $40,446.16 4. Interest Rate: 16%
A. TERMS AND REPAYMENT: For value received the undersigned (hereinafter
referred to as "Customer") promises to pay to THE DOCUMENT COMPANY, XEROX
at its offices at HEADQUARTERS PROGRAMS & CONTROL, 150 EAST MAIN ST.,
ROCHESTER, NY 14604, or to anyone Xerox may designate. the sum of
$455,627.18 together with interest at a rate of 16% per annum in 12 equal
monthly payments of $41,339.44 each, beginning FEBRUARY 15, 2001 on the
15TH day of each month thereafter with the final payment of $41,339.44 due
on JANUARY 10, 2002. This will constitute "total of payments" (Item 3,
above). Customer agrees. however, that Xerox may accelerate the outstanding
principle balance of this note upon the happening of any event of default
as defined below.
B. DEFAULT: At Xerox's option, the unpaid balance of the amount financed and
all unpaid accrued interest will become immediately due and payable without
any notice or demand to Customer if any one or more of the following events
occur:
1. Failure to pay any installment due under this agreement within ten
(10) days of the due date;
2. Upon the event of an assignment for the benefit of creditors of, or
the commencement of any bankruptcy, receivership, insolvency, or
liquidation proceedings by or against Customer;
3. Failure to pay any other obligation of Customer to Xerox within thirty
(30) days of due date;
4. Failure of Customer to comply with any or all of the terms and
conditions of this agreement.
C. SECURITY INTEREST: Customer recognizes and agrees that the Security
Interest originally granted to Xerox in connection with any Term Lease,
Installment Purchase, or Outright Sale of equipment under any of the above
referenced customer numbers continues uninterrupted and is additional
security for sums due under this promissory note.
D. LEGAL FEES AND COURT COSTS: In the event that legal proceedings are
instituted to collect any amount due upon any installment of this note, the
undersigned, jointly and
1
<PAGE>
severally, agree to pay to the holder hereof in addition to the amount of
the unpaid balance or principal and accrued unpaid interest, all costs and
expenses of such proceedings including reasonable attorney fees.
E. WAIVER: The undersigned and all guarantors hereof hereby jointly and
severally waive presentment for payment, demand, notice of non-payment, and
notice of sureties. Guarantors consent to any and all extension of time,
renewals, waivers, or modifications that may be granted by Xerox with
respect to the payments or other provisions of this note, and to the
release of the collateral, or any part thereof without substitution and
agree that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to them or without affecting their
liabilities thereunder.
No delay or omission to exercise any right, power or remedy accruing to
Xerox upon breach or default by Customer or guarantor under this promissory
note shall impair any such right, power or remedy of Xerox, or shall be
construed as a waiver of any breach or default or any similar breach or
default thereafter occurring; nor shall any waiver of a single breach or
default be deemed a waiver of any subsequent breach or default. All waivers
by Xerox must be in writing.
F. MISCELLANEOUS
Payments due under this Promissory Note shall be made without claim of
set-off, counterclaim or deduction of any nature or kind or for any cause
whatsoever.
Upon prior written notice, Xerox may change the address to which Customer
makes payments under this Promissory Note. Customer shall give Xerox
reasonable prior written notice of any address change by Customer.
The liability of each of the undersigned shall be absolute and
unconditional and without regard to the liability of any other party.
This promissory note and the security interest(s) granted to Xerox shall be
governed by and interpreted in accordance with the laws of MA.
01.11.01 booktech.com
----------------------------- ----------------------------------------
Date Print Name of Customer
By: /s/ MORRIS A SHEPARD
-----------------------------
Name and Title
Morris A. Shepard, Ph.D.
2
<PAGE>
As additional consideration for the refinancing of the principal balance of this
Promissory Note, the undersigned personally guarantees payment of this note in
accordance with its tenor.
/S/ MORRIS A. SHEPARD 01.11.01
---------------------------------- ----------------------------------------
Guarantor Date
---------------------------------- ----------------------------------------
Guarantor Date
33 Fells Road
----------------------------------
Address
Winchester, MA 01890
----------------------------------
Accepted by The Document Company, Xerox:
----------------------------------------
Name and Title
3
</TEXT>
</DOCUMENT>
EXHIBIT 11.1
booktech.com, inc. and Subsidiary
Computation of Net Loss Per Common Share
For the Year Ended December 31, 2000, the Five Months Ended December 31, 1999
and the Year Ended July 31, 1999
<TABLE>
<CAPTION>
Five Months
Year Ended Ended
December 31, December 31, Year Ended
2000 1999 July 31, 1999
------------ ------------ -------------
<S> <C> <C> <C>
BASIC NET LOSS PER COMMON SHARE:
Net loss attributable to common stockholders ........... $ (8,194,279) $ (1,060,646) $ (2,182,431)
------------ ------------ ------------
Weighted average number of common shares outstanding:
Common Stock ...................................... 16,123,291 6,921,001 6,016,552
------------ ------------ ------------
Basic net loss per common share ........................ $ (.51) $ (.15) $ (.36)
============ ============ ============
DILUTED NET LOSS PER COMMON SHARE:
Net loss attributable to common stockholders ........... $ (8,194,279) $ (1,060,646) $ (2,182,431)
------------ ------------ ------------
Weighted average number of common shares outstanding:
Common Stock ...................................... 16,123,291 6,921,001 6,016,552
Effect of Potentially dilutive common shares ...... -- -- --
------------ ------------ ------------
Total ........................................ 16,123,291 6,921,001 6,016,552
------------ ------------ ------------
Diluted net loss per common share ................. $ (.51) $ (.15) $ (.36)
============ ============ ============
</TABLE>
</TEXT>
</DOCUMENT>
EXHIBIT 21
booktech.com, inc. and Subsidiary
Subsidiary of the Registrant
Subsidiary Name State of Incorporation
---------------- ----------------------
booktechmass. com, inc. Massachusetts
42 Cummings Park
Woburn, Massachusetts 01801 |
| | booktech.com BTC - AMEX | Stock Discussion ForumsShare | RecommendKeepReplyMark as Last ReadRead Replies (1) |
|
| To: jmhollen who wrote (47) | 7/6/2001 1:52:28 PM | | From: RockyBalboa | | | | If you are going the wrong direction it is useless to double the speed.
Booktech
$0.39 -$0.34.
A lil' sleeper, your stock, I would say. |
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| To: ChainSaw who started this subject | 7/10/2001 2:03:57 PM | | From: jmhollen | | | | Tues. AM (July 10, 2001)
Dear BookTech shareholder:
As you know, the company got the AMEX to resume trading on BTC. It had been
halted for over two months due to their failure to have audited financials
submitted. Friday was a day for pent-up, market sell-orders, which took it
down to as low as 10 cents.
Yesterday it closed at 45 cents.
With the first hour of trading today, it's at 60 cents - clearly some bargain
hunters are in there buying the cheap stock.
No news has been issued, but the new CEO is expected to have official updates
some out soon, along with a "letter from the CEO" to all shareholders
describing his turnaround/clean-up efforts thus far.
Will keep you posted.
Best wishes,
Jim Stock
STOCK ENTERPRISES INC. |
| | booktech.com BTC - AMEX | Stock Discussion ForumsShare | RecommendKeepReplyMark as Last Read |
|
| To: ChainSaw who started this subject | 7/11/2001 6:06:56 PM | | From: jmhollen | | | | "....Well, we're movin' on up......"
BOOKTECH.COM INC - American Stock Exchange: BTC
Rec. Time Action Price Volume Exch.
4:06:50 PM Ask 0.7 100 CHI
4:06:50 PM Bid 0.35 100 CHI
4:03:05 PM Ask 0.6 1500 CHI
4:03:05 PM Bid 0.4 100 CHI
4:00:31 PM Ask 0.6 3000 AMEX
3:03:49 PM Ask 0.55 500 Nasdaq NM
3:03:48 PM Trade (at Ask) 0.55 2000 AMEX
3:02:46 PM Trade 0.54 2000 AMEX
2:58:43 PM Trade 0.5 5000 AMEX
2:58:42 PM Ask 0.55 2500 Nasdaq NM
2:58:41 PM Ask 0.5 3400 Nasdaq NM
2:58:41 PM Trade 0.55 5000 AMEX
2:57:04 PM Ask 0.5 8400 Nasdaq NM
2:44:47 PM Bid 0.45 500 AMEX
2:44:47 PM Ask 0.55 2500 Nasdaq NM
2:42:29 PM Bid 0.5 800 AMEX
2:42:28 PM Trade (at Bid) 0.5 300 AMEX
1:42:23 PM Bid 0.5 1100 AMEX
1:42:21 PM Bid 0.52 100 AMEX
1:42:20 PM Trade (at Bid) 0.52 1900 AMEX
. |
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| |
