Exhibit 10.1
SECURITIES PURCHASE
AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT
(this “
Agreement
”), dated as
of May 6, 2009, by and among SWK Technologies, Inc..
,
a Delaware corporation with
offices at 5 Regent Street, Suite 520, Livingston, NJ 07039 (the
“
Company
”),
Jeffrey D. Roth, an individual with offices at 5 Regent Street, Suite 520,
Livingston, NJ 07039 (the “Buyer”), Jerome R. Mahoney, an
individual with offices at 750 Route 34, Matawan, NJ 07747
(“Mahoney”), and Trey Resources, Inc., a Delaware corporation
with offices at 5 Regent Street, Suite 520, Livingston, NJ 07039
(“Trey”).
WITNESSETH
WHEREAS
, the Company and the
Buyer(s) are executing and delivering this Agreement in reliance upon an
exemption from securities registration pursuant to Section 4(2) and/or Rule 504
of Regulation D (“
Regulation D
”) as
promulgated by the U.S. Securities and Exchange Commission (the “
Commission
”) under
the Securities Act of 1933, as amended (the “
Securities
Act
”);
WHEREAS
, the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
shall issue and sell to the Buyer, as provided herein, and the Buyer shall
purchase twenty-five newly-issued shares of the Company’s Common Stock (the
“Common Stock”), such shares to represent twenty percent (20%) of the
outstanding shares of the Company, on a fully-diluted basis,
WHEREAS
, the purchase price of
the Common Stock will be $150,000,
WHEREAS
, contemporaneously
with the execution and delivery of this Agreement and the receipt of payment for
the Common Stock, the Company will remit to Trey, the owner of 80% of the
fully-diluted outstanding common stock of the Company, the sum of $150,000 as a
management fee;
WHEREAS
, upon receipt of
$150,000, Trey will pay Mahoney the sum of One Hundred and Seventeen Thousand
and Five Hundred Dollars ($117,500) (the “Mahoney Payment”), such sum to be in
full and total satisfaction of any and all outstanding obligations that exist or
may exist between Mahoney and Trey. Such sum shall be allocated first
to principal outstanding on a promissory note by and between Mahoney and Trey,
second to any interest due and outstanding on such promissory note, and any
balance thereafter to deferred and accrued compensation due and owing
Mahoney;
WHEREAS
, upon receipt of
$150,000, Trey will pay Meritz & Muenz LLP. (the “Firm”), counsel to Trey,
Thirty-two Thousand Dollars ($32,500) , as partial payment of balances due and
owing the Firm;
NOW, THEREFORE
, in
consideration of the mutual covenants and other agreements contained in t1is
Agreement the Company and the Buyer(s) hereby agree as follows:
1.
PURCHASE AND SALE OF COMMON
STOCK
.
(a)
Purchase of Common
Stock
. Subject to the satisfaction (or waiver) of the terms
and conditions of this Agreement, Buyer agrees to purchase at the Closing and
the Company agrees to sell and issue to Buyer twenty-five (25) shares of Common
Stock, such shares to represent twenty percent (20%) of the outstanding shares
of the Company on a fully diluted basis. .
(b)
Closing
Date
. The Closing of the purchase and sale of the Common Stock
shall take place at 10:00 a.m. Eastern Standard Time on May 6, 2009, or such
earlier date as is mutually agreed to by Company and the Buyer (the “Closing
Date”). The Closing shall occur on the Closing Date at the offices of
the Company at 5 Regent Street, Suite 520, Livingston, NJ 07039 (or such other
place as is mutually agreed to by the Company and the Buyer).
(c)
Form of
Payment
. Subject to the satisfaction of the terms and
conditions of this Agreement, on the Closing Date, (i) the Buyer shall deliver
to the Company One Hundred Fifty Thousand Dollars ($150,000) (the “Purchase
Price”) via wire transfer to an account designated by the Company for the Common
Stock to be issued and sold to the Buyer, and (ii) the Company shall deliver to
Buyer, stock certificates for twenty-five (25) shares of the Company Common
Stock which Buyer is purchasing, duly executed on behalf of the
Company.
2.
BUYER’S REPRESENTATIONS AND
WARRANTIES
.
Buyer
represents and warrants that:
(a)Investment
Purpose
. Buyer is acquiring the Common Stock for its own
account for investment only and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to
sales registered or exempted under the Securities Act
.
(b)
Accredited Investor
Status
. Buyer is an “
Accredited Investor
”
as that term is defined in Rule 501(a)(5) or Rule 501 (a)(6) of Regulation
D.
(c)
Reliance on
Exemptions
. Buyer understands that the Common Stock is being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and Buyer’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of Buyer to acquire such
securities.
(d)
Information Regarding
Company
. Buyer and his advisors (and his counsel), if any,
have been furnished with all materials relating to the business, finances and
operations of the Company and information he deemed material to making an
informed investment decision regarding his purchase of the Common Stock, which
have been requested by Buyer. Buyer and its advisors, if any, have
been afforded the opportunity to ask questions of the Company and its
management. Neither such inquiries nor any other due
diligence investigations conducted by such Buyer or its advisors, if any, or its
representatives shall modify, amend nor affect such Buyer’s right to
rely on the Company’s representations and warranties contained in Section 3
below. Buyer understands that its investment in the Common Stock
involves a high degree of risk. Buyer is in a position regarding the
Company, which, based upon employment with the Company, family relationship or
economic bargaining power, enabled and enables Buyer to obtain information from
the Company in order to evaluate the merits and risks of this
investment. Buyer has sought such accounting, legal and tax advice,
as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Common Stock. Nothing in this Section 2(d)
shall be a defense to or mitigation of any breach by Buyer of its
representations and warranties contained in Section 2 of this
Agreement.
(e)
Information Regarding
Trey
. Buyer and his advisors (and his counsel), if any, have
been furnished with materials relating to the business, finances and operations
of Trey. Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and its
management. The Buyer acknowledges that Trey files reports with
the Commission pursuant to the Securities Exchange Act of 1934, as amended and
therefore its filings with the Commission are available for review at
www.sec.gov
. Neither
such inquiries nor any other due diligence investigations conducted by such
Buyer or its advisors, if any, or its representatives shall modify,
amend nor affect such Buyer’s right to rely on the Company’s
representations and warranties contained in Section 3 below. Buyer
understands that its investment in the Common Stock involves a high degree of
risk.
(f)
No Governmental
Review
. Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Common Stock, or the fairness or
suitability of the investment in the Common Stock, nor have such authorities
passed upon or endorsed the merits of the offering of the Common
Stock.
(g)
Transfer or
Resale
. Buyer understands that the Common Stock have not been
and are not being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, or (B) Buyer shall have delivered to the
Company an opinion of counsel in a form reasonably acceptable to the Company, to
the effect that such securities to be sold, assigned or transferred may be sold,
assigned or transferred pursuant to an exemption from such registration
requirements; (ii) any sale of such securities made in reliance on Rule 144
under the Securities Act (or a successor rule thereto) (“
Rule 144
”) may
be made only in accordance with the terms of Rule 144 and further, if Rule 144
is not applicable, any resale of such securities under circumstances in which
the seller (or the person through whom the sale is made) may be deemed to
be an underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations of the Commission thereunder; and (iii) neither the Company nor any
other person is under any obligation to register such securities under the
Securities Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder. The Company reserves the
right to place stop transfer instructions against the shares and certificates
for the Conversion Shares.
(h)
Legends
. Buyer
understands that the certificates or other instruments representing the Common
Stock shall bear a restrictive legend in substantially the following form (and a
stop transfer order may be placed against transfer of such stock
certificates):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
APPLICABLE STATE SECURITIES LAWS
OR UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT
.
(i) Authorization,
Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of Buyer and is a valid and binding agreement
of Buyer, enforceable in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
(j)
Receipt of
Documents
. Buyer and his counsel have received and read in
their entirety: (i) this Agreement and each representation, warranty
and covenant set forth herein, (ii) all due diligence and other information
necessary to verify the accuracy and completeness of such representations,
warranties and covenants; and (iii) answers to all questions Buyer submitted to
the Company regarding an investment in the Company; and Buyer has relied on the
information contained therein and has not been furnished any other documents,
literature, memorandum or prospectus.
(k)
No Legal Advice From the
Company
. Buyer acknowledges that it had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
his own legal counsel and investment and tax advisors. Buyer is
relying solely on such counsel and advisors and not on any statements or
representations of the Company or any of its representatives or agents for
legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
3.
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY AND TREY
.
The
Company represents and warrants to each of the Buyers that:
(a)
Organization and
Qualification
. The Company is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction in which it
is incorporated, and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(b)
Authorization, Enforcement,
Compliance with Other Instruments
. (i) The Company has
the requisite corporate power and authority to enter into and perform this
Agreement and any related agreements (collectively the “
Transaction
Documents
”) and to issue the Common Stock in accordance with the terms
hereof and thereof, (ii) the execution and delivery of the Transaction Documents
by the Company and the consummation by it of the transactions contemplated
hereby and thereby, including, without limitation, the issuance of the Common
Stock, have been duly authorized by the Company’s Board of Directors and no
further consent or authorization is required by the Company, its Board of
Directors or its stockholders, (iii) the Transaction Documents have been duly
executed and delivered by the Company, (iv) the Transaction Documents constitute
the valid and binding obligations of the Company enforceable against the Company
in accordance with their terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights and
remedies.
(c)
Capitalization
. As
of the date hereof the authorized capital stock of the Company consists of 1000
shares of Common Stock, par value $0.001 per share,) of which 100 shares of
Common Stock, are issued and outstanding. All of such outstanding
shares have been validly issued and are fully paid and
nonassessable. The Company has furnished to the Buyer true and
correct copies of the Company’s Certificate of Incorporation, as amended and as
in effect on the date hereof (the “
Certificate of
Incorporation
”), and the Company’s By-laws, as in effect on the date
hereof (the “
By-laws
”), and
the material rights of the holders thereof in respect thereto.
(d)
Issuance of
Securities
. The Common Stock is duly authorized and, upon
issuance in accordance with the terms hereof, shall be duly issued, fully paid
and nonassessable, are free from all taxes, liens and charges with respect to
the issue thereof.
(e)
No
Conflicts
. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby will not (i) result in a violation of the
Certificate of Incorporation, any certificate of designations of any outstanding
series of preferred stock of the Company or the By-laws. The Company is not in
violation of any term of or in default under its Certificate of Incorporation or
By-laws or their organizational charter or by-laws,
respectively.. The business of the Company is not being conducted,
and shall not be conducted in violation of any material law, ordinance, or
regulation of any governmental entity. Except as specifically
contemplated by this Agreement and as required under the Securities Act and any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under or contemplated by this Agreement .
(f)
Absence of
Litigation
. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or affecting the Company,
Trey, or the Common Stock, wherein an unfavorable decision, ruling or finding
would (i) have a material adverse effect on the transactions contemplated hereby
(ii) adversely affect the validity or enforceability of, or the authority or
ability of the Company to perform its obligations under, this Agreement or any
of the documents contemplated herein, or (iii) have a material adverse effect on
the business, operations, properties, financial condition or results
of operations of the Company and its subsidiaries taken as a whole.
Any litigation to which either the Company or Trey is named as a defendant is
listed in Schedule A attached hereto.
(g)
Acknowledgment Regarding
Buyer’s Purchase of the Common Stock
. The Company acknowledges
and agrees that the Buyer is acting solely in the capacity of an arm’s length
purchaser with respect to this Agreement and the transactions contemplated
hereby. The Company further acknowledges that the Buyer is not acting
as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to this Agreement and the transactions contemplated hereby and any
advice given by the Buyer or any of their respective representatives or agents
in connection with this Agreement and the transactions contemplated hereby is
merely incidental to such Buyer’s purchase of the Common Stock The
Company further represents to the Buyer that the Company’s decision to enter
into this Agreement has been based solely on the independent evaluation by the
Company and its representatives.
(h)
No General
Solicitation
. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with the offer or sale of the Common
Stock.
(i)
Employee
Relations
. The Company is not involved in any labor dispute
or, to the knowledge of the Company, is any such dispute
threatened. None of the Company’s employees is a member of a union
and the Company believes that its relations with its employees are
good.
(j)
Intellectual Property
Rights
. The Company owns or possesses adequate rights or
licenses to use all trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and rights
necessary to conduct its business as now conducted. The Company does
not have any knowledge of any infringement by the Company of
trademark, trade name rights, patents, patent rights, copyrights, inventions,
licenses, service names, service marks, service mark registrations, trade secret
or other similar rights of others, and, to the knowledge of the Company there is
no claim, action or proceeding being made or brought against, or to the
Company’s knowledge, being threatened against, the Company regarding
trademark, trade name, patents, patent rights, invention, copyright, license,
service names, service marks, service mark registrations, trade secret or other
infringement; and the Company is unaware of any facts or circumstances which
might give rise to any of the foregoing.
(k)
Environmental
Laws
. The Company is (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws
”),
(ii) has received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) is in compliance with all terms and conditions of any such permit, license
or approval.
(l)
Title
. Any
real property and facilities held under lease by the Company is held by it under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company.
(m)
Regulatory
Permits
. The Company possesses all material certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.
(n)
No Material Adverse
Breaches, etc
. The Company is not subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Company’s officers has or is expected in
the future to have a material adverse effect on the business, properties,
operations, financial condition, results of operations or prospects of the
Company, except that Trey is in default on its convertible debentures held by YA
Global Investors. The assets of Trey, and of the Company, are pledged
as collateral against the repayment of the YA debentures. But for the
YA debentures, Trey is not in breach of any contract or agreement which breach,
in the judgment of the Company’s officers, has or is expected to have a material
adverse effect on the business, properties, operations, financial condition,
results of operations or prospects of Trey.
(o)
Tax
Status
. The Company has made and filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject and (unless and only to the extent that the
Company has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim.
(p) No
Undisclosed Liabilities. As of the date hereof and as of the closing
date, except and as to the extent reflected, reserved against or otherwise
disclosed on the most recent balance sheet of the notes thereto, neither Trey
nor the Company has any indebtedness or liability of any nature, whether
accrued, contingent or otherwise, whether due or to become due, which is in
excess of five thousand dollars ($5000).
Trey and
the Company represents and warrants that: (i) as of May 4, 2009, the total debt
instruments or equity securities of Trey or the Company held by Mahoney are
listed on Schedule B attached herein and (ii) as of May 4, 2009, total accrued
liabilities owed to Mahoney by Trey and/or the Company are listed on Schedule C
attached herein.
4.
COVENANTS.
(a)
Best
Efforts
. Each party shall use its best efforts to timely
satisfy each of the conditions to be satisfied by it as provided in Sections 5
and 6 of this Agreement.
(b)
Use of
Proceeds
. Trey covenants to the Buyer that upon receipt, the
net proceeds of the management fee to be received from the Company in this
transaction shall be used for (i) settlement of any and all of its outstanding
obligations due and owing Mahoney by Trey and (ii) payment in part of the legal
fees due the Firm.
(c)
Resignation from Board of
Directors
. Contemporaneously with the execution of this
Agreement, Mahoney will resign from the Board of Directors of Trey and the
Company.
(d)
Termination of Employment
Agreement
. Contemporaneously with the execution of this Agreement,
Trey and Mahoney will take such actions as may be required to terminate any and
all employment and/or consulting agreements by and between Trey and Mahoney,
with no further monies due and owing under such agreements, as set forth in the
Termination and Settlement Agreement in substantially form as attached in
Attachment A.
(e) Fees
and Expenses. Each of the Company and the Buyer shall pay all costs
and expenses incurred by such party in connection with the negotiation,
investigation, preparation, execution and delivery of the Transaction
Documents.
(f) Contemporaneously
with the execution of this Agreement, Mahoney will return to Trey any and all
property of Trey in his possession as listed on Schedule D attached
herein.
5.
CONDITIONS TO THE COMPANY’S
OBLIGATION TO SELL
.
The
obligation of the Company hereunder to issue and sell the Common Stock to the
Buyer at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions:
(a) Buyer
shall have executed the Transaction Documents that require his signature and
delivered them to the Company, Trey and Mahoney.
(b) Mahoney
shall have executed the Transaction Documents and delivered them to the Company
, Trey and Buyer.
(c) Trey
shall have executed the Transaction Documents and delivered them to the Buyer,
the Company and Mahoney.
(d) The
Buyer shall have delivered to the Company the Purchase Price for the Common
Stock by wire transfer of immediately available U.S. funds pursuant to the wire
instructions provided by the Company.
(e) Trey
shall have made the required payment of $32,500 to the Firm.
(f) Trey
shall have made the Mahoney Payment to Jerome Mahoney.
(g) The
representations and warranties of the Buyer shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date), and the Buyer shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Buyer(s) at or
prior to the Closing Date.
6.
CONDITIONS TO THE BUYER’S
OBLIGATION TO PURCHASE
.
(a) The
obligation of the Buyer hereunder to purchase the Common Stock at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions:
(b) The
Company shall have executed the Transaction Documents that require its signature
and delivered them to the Buyer, Trey and Mahoney.
(c) The
representations and warranties of the Company shall be true and correct in all
material respects and the Company shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Company at
or prior to the Closing Date.
(d) The
Company shall have executed and delivered to the Buyer the Common
Stock.
(e) The
representations and warranties of Trey and the Company shall be true and correct
in all material respects as of the date when made.
7.
GOVERNING LAW:
MISCELLANEOUS
.
(a)
Governing
Law
. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws. The parties further agree that any
action between them shall be heard in Essex County, New Jersey, and expressly
consent to the jurisdiction and venue of the Superior Court of New Jersey,
sitting in Essex County and the United States District Court for the District of
New Jersey sitting in Newark, New Jersey for the adjudication of any civil
action asserted pursuant to this Paragraph.
(b)
Counterparts
. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause four (4)
additional original executed signature pages to be physically delivered to the
other party within five (5) days of the execution and delivery
hereof.
(c)
Headings
. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d)
Severability
. 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)
Entire Agreement,
Amendments
. This Agreement supersedes all other prior oral or
written agreements between the Buyer, the Company, Trey, and Mahoney, their
affiliates and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company, the Buyer, Mahoney, or Trey makes any
representation, warranty, covenant or undertaking with respect to such
matters. The recitals to this Agreement are hereby incorporated by
reference into and made a part of this Agreement for all purposes. No
provision of this Agreement may be waived or amended other than by an instrument
in writing signed by the party to be charged with enforcement.
(f)
Notices
. 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
confirmation of receipt, when sent by facsimile; (iii) upon confirmation of
receipt after being sent by U.S. certified mail, return receipt requested, or
(iv) upon confirmation of receipt after being sent 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, to:
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SWK
Technologies, Inc.
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5
Regent Street
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Livingston,
NJ 07039
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Attention: Mark
Meller
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Telephone: (973)
758-6100
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Facsimile: (973)
748-9449
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If
to the Buyer:
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Jeffrey
D. Roth
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SWK
Technologies, Inc.
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5
Regent Street
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Livingston,
NJ 07039
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Attention: Jeffrey
D. Roth
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Telephone: (973)
758-6100
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Facsimile: (973)
748-9449
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If
to Mahoney:
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Jerome
R. Mahoney
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c/o
iVoice Technologies, Inc.
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750
Route 34
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Matawan,
NJ 07747
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Telephone:
(732) 441-7700
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Facsimile: (732_
441-9895
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If
to Trey:
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Trey
Resources, Inc.
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5
Regent Street
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Livingston,
NJ 07039
|
|
|
Attention: Mark
Meller
|
|
|
Telephone: (973)
758-6100
|
|
|
Facsimile: (973)
748-9449
|
|
|
|
|
|
|
|
If
to the Firm:
|
Meritz
& Muenz LLP
|
|
|
2021
O Street, NW
|
|
|
Washington,
DC 20036
|
|
|
Attention: Lawrence
A. Muenz
|
|
|
Telephone: (202)
728-2909
|
|
|
Facsimile: (202)
728-2910
|
|
|
|
Each
party shall provide five (5) days’ prior written notice to the other party of
any change in address or facsimile number.
(g)
Successors and
Assigns
. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and
assigns. Neither the Company nor the Buyer shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the other party hereto.
(h)
No Third Party
Beneficiaries
. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
(i)
Publicity
. The
Company, the Buyer, Mahoney, and Trey shall have the right to
approve, before issuance any press release or any other public statement with
respect to the transactions contemplated hereby made by any party; provided,
however, that Trey shall be entitled, without the prior approval of
the Buyer, to issue any press release or other public disclosure with respect to
such transactions required under applicable securities or other laws or
regulations (Trey shall use its best efforts to consult the Buyer in connection
with any such press release or other public disclosure prior to its release and
Buyer shall be provided with a copy thereof upon release thereof).
(j)
Further
Assurances
. 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.
(k)
No Strict
Construction
. 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.
8.
TRANSACTIONAL
DOCUMENTS
. The documents referred to herein as the
“Transactional Documents” shall mean:
(a) The
Securities Purchase Agreement.
(b) The
Termination and Settlement by and between Trey Resources, Inc. and Jerome
Mahoney in substantially the form as attached herein as Attachment
A.
9.
INDEMNIFICATION.
The Company will indemnify and hold
harmless Buyer from and against any and all losses, claims, damages and
liabilities, whether joint or several, expenses of any nature (including
reasonable attorneys' fees and disbursements), judgments, fines, settlements and
other amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative, arbitral or investigative,
in which Buyer was involved or may be involved, or threatened to be involved, as
a party or otherwise, related to, arising out of or in connection with this
Agreement, except if such claims, proceedings or expenses arise due to Buyer’s
breach or failure to observe any covenant, condition, warranty, representation,
or limitation contained in this Agreement
IN WITNESS WHEREOF
,
the Buyers and the Company
have caused this Securities Purchase Agreement to be duly executed as of the
date first written above.
|
BUYER:
|
COMPANY:
|
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JEFFREY
D. ROTH
|
SWK
TECHNOLOGIES, INC.
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|
|
|
|
|
|
|
|
By: _________________________________
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|
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Name: Mark
Meller
|
|
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Title: Chairman
and Secretary
|
|
|
|
|
|
|
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JEROME
R. MAHONEY
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TREY
RESOURCES, INC.
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|
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|
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|
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By:
|
By:_________________________________
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|
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Name: Mark
Meller
|
|
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Title: President
and Chief Executive
Officer
|
SCHEDULE
A
LAWSUITS
IN WHICH EITHER TREY OR THE COMPANY IS NAMED AS A DEFENDANT
NONE
SCHEDULE
B
LIST OF
ALL DEBT OR EQUITY SECURITIES OF TREY OR THE COMPANY CURRENTLY HELD BY JEROME
MAHONEY
|
1.
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Promissory
note issued by Trey, current principal amount equal to
$71,025. Interest outstanding on the promissory note is
currently $77,789.35.
|
|
2.
|
No
other debt or equity securities of either Trey or the Company currently
held by Jerome Mahoney, except for 100 million shares of Trey Class A
Common Stock issued pursuant to the conversion of debt owed to Mahoney by
Trey.
|
SCHEDULE
C
ACCRUED
LIABILITIES OWED TO JEROME MAHONEY BY EITHER TREY OR THE COMPANY
As of May
4, 2009, all accrued liabilities due and owing Jerome Mahoney by Trey is
$1,210,198.42.
As of May
4, 2009, all accrued liabilities due and owing Jerome Mahoney by the Company is
$0.
SCHEDULE
D
TREY
PROPERTY CURRENTLY IN THE POSSESSION OF JEROME MAHONEY
Exhibit
10.2
TERMINATION
AND SETTLEMENT AGREEMENT
THIS
TERMINATION AND SETTLEMENT
AGREEMENT
(this “
Agreement
”), dated as
of May 6, 2009, by and among SWK Technologies, Inc..
,
a Delaware corporation with
offices at 5 Regent Street, Suite 520, Livingston, NJ 07039 (the
“
Company
”),
Jeffrey D. Roth, an individual with offices at 5 Regent Street, Suite 520,
Livingston, NJ 07039 (“
Roth
”), Jerome R.
Mahoney, an individual with offices at 750 Route 34, Matawan,
NJ 07747 (“
Mahoney
”), Trey
Resources, Inc., a Delaware corporation with offices at 5 Regent Street, Suite
520, Livingston, NJ 07039 (“
Trey
”), (collectively
referred to as the “Parties”).
WITNESSETH
WHEREAS
, contemporaneously
with the execution and delivery of this Agreement, Roth, the Company, Trey and
Mahoney are entering into a Securities Purchase Agreement dated the date hereof,
whereby Roth will be purchasing and the Company will be selling shares of the
Company Common Stock equal to 20% of the outstanding shares of the Company, and
thereafter upon receipt of payment for the Common Stock, the Company will remit
to Trey, the owner of 80% of the fully-diluted outstanding common stock of the
Company, the sum of $150,000 as a management fee;
WHEREAS
, upon receipt of
$150,000, Trey will pay Mahoney the sum of One Hundred and Seventeen Thousand
and Five Hundred Dollars ($117,500) (the “Mahoney Payment”), such sum to be in
full and total satisfaction of any and all outstanding obligations that exist or
may exist between Mahoney and Trey;
WHEREAS
, in consideration for
the Mahoney Payment, Mahoney has agreed to terminate all agreements by and
between Trey and himself and to resign as an officer and/or director of the
Company and Trey;
WHEREAS
, in consideration for
the Mahoney Payment, some of the Parties hereto have agreed to release Mahoney
from any past and/or present claims they may assert against him;
NOW, THEREFORE
, in
consideration of the mutual covenants, other agreements contained in this
Agreement and upon receipt by Mahoney of the Mahoney Payment via wire transfer
to an account of his designation, the Parties hereby agree as
follows:
1.
Mahoney
and Trey mutually agree to terminate the Employment Agreement dated September
23, 2004, as amended (the “Employment Agreement”).
2.
Mahoney
hereby resigns as an employee, officer, consultant and/or director of Trey and
the Company.
3.
Mahoney
hereby forgives and extinguishes: (i) any accrued and unpaid
compensation owed to him by either Trey and/or the Company, (ii) any and all
obligations of Trey pursuant to the Employment Agreement, (iii) any and all
other debt obligations owed to him by Trey and/or the Company, and (iv) any and
all obligations of any type, known or unknown, contingent or otherwise, owed to
him by either Trey and/or the Company.
4.
Trey, the
Company, and Roth, hereby, knowingly, voluntarily and unconditionally
release, forever discharge, and covenant not to sue Mahoney from or for any and
all claims, causes of action, demands, suits, debts, obligations, liabilities,
damages, losses, costs and expenses (including attorneys’ fees) of every kind or
nature whatsoever, known or unknown, actual or potential, suspected or
unsuspected, fixed or contingent, that such party has or may have through the
date hereof arising out of or relating to Mahoney’s position as an officer,
director, consultant and/or shareholder of Trey and/or the Company (the “Mahoney
Relationship”), or resulting from any act or omission, error, negligence, breach
of contract, tort, violation of law, discrimination, matter or cause whatsoever
arising from the Mahoney Relationship, from the beginning of time through the
date hereof; provided, however, that the foregoing release shall not apply to
any claims arising out of this Agreement.
5.
Trey, the
Company, and Mahoney, hereby, knowingly, voluntarily and unconditionally
release, forever discharge, and covenant not to sue Roth from or for any and all
claims, causes of action, demands, suits, debts, obligations, liabilities,
damages, losses, costs and expenses (including attorneys’ fees) of every kind or
nature whatsoever, known or unknown, actual or potential, suspected or
unsuspected, fixed or contingent, that such party has or may have through the
date hereof arising out of or relating to Roth’s position as an
officer, director, consultant and/or shareholder of Trey and/or the Company (the
“Roth Relationship”), or resulting from any act or omission, error, negligence,
breach of contract, tort, violation of law, discrimination, matter or cause
whatsoever arising from the Roth Relationship, from the beginning of time
through the date hereof; provided, however, that the foregoing release shall not
apply to any claims arising out of this Agreement.
6.
Mahoney
hereby, knowingly, voluntarily and unconditionally releases, forever discharges,
and covenants not to sue Trey from or for any and all claims, causes of action,
demands, suits, debts, obligations, liabilities, damages, losses, costs and
expenses (including attorneys’ fees) of every kind or nature whatsoever, known
or unknown, actual or potential, suspected or unsuspected, fixed or contingent,
that such party has or may have through the date hereof arising out of or
relating to Mahoney’s position as an officer, director, consultant and/or
shareholder of Trey and/or the Company (the “Mahoney Relationship”), or
resulting from any act or omission, error, negligence, breach of contract, tort,
violation of law, discrimination, matter or cause whatsoever arising from the
Mahoney Relationship, from the beginning of time through the date hereof;
provided, however, that the foregoing release shall not apply to any claims
arising out of this Agreement
7. Mahoney
hereby, knowingly, voluntarily and unconditionally releases, forever discharges,
and covenants not to sue the Company from or for any and all claims, causes of
action, demands, suits, debts, obligations, liabilities, damages, losses, costs
and expenses (including attorneys’ fees) of every kind or nature whatsoever,
known or unknown, actual or potential, suspected or unsuspected, fixed or
contingent, that such party has or may have through the date hereof arising out
of or relating to Mahoney’s position as an officer, director, consultant and/or
shareholder of Trey and/or the Company (the “Mahoney Relationship”), or
resulting from any act or omission, error, negligence, breach of contract, tort,
violation of law, discrimination, matter or cause whatsoever arising from the
Mahoney Relationship, from the beginning of time through the date hereof;
provided, however, that the foregoing release shall not apply to any claims
arising out of this Agreement.
8.
GOVERNING
LAW: MISCELLANEOUS
(a)
Governing
Law
. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws. The Parties further agree that any
action between them shall be heard in Essex County, New Jersey, and expressly
consent to the jurisdiction and venue of the Superior Court of New Jersey,
sitting in Essex County and the United States District Court for the District of
New Jersey sitting in Newark, New Jersey for the adjudication of any civil
action asserted pursuant to this Paragraph.
(b)
Counterparts
. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause four (4)
additional original executed signature pages to be physically delivered to the
other party within five (5) days of the execution and delivery
hereof.
(c)
Headings
. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d)
Severability
. 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)
Entire Agreement,
Amendments
. This Agreement supersedes all other prior oral or
written agreements between the Parties, their affiliates and persons acting on
their behalf with respect to the matters discussed herein, except for the
Securities Purchase Agreement that is entered into and executed on the date
hereof and this Agreement and the instruments referenced herein contain the
entire understanding of the Parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein, none of the
Parties makes any representation, warranty, covenant or undertaking with respect
to such matters. The recitals to this Agreement are hereby
incorporated by reference into and made a part of this Agreement for all
purposes. No provision of this Agreement may be waived or amended
other than by an instrument in writing signed by the party to be charged with
enforcement.
(f)
Notices
. 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
confirmation of receipt, when sent by facsimile; (iii) upon confirmation of
receipt after being sent by U.S. certified mail, return receipt requested, or
(iv) upon confirmation of receipt after being sent 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, to:
|
SWK
Technologies, Inc.
|
|
|
5
Regent Street
|
|
|
Livingston,
NJ 07039
|
|
|
Attention: Mark
Meller
|
|
|
Telephone: (973)
758-6100
|
|
|
Facsimile: (973)
748-9449
|
|
|
|
|
If
to Roth:
|
Jeffrey
D. Roth
|
|
|
SWK
Technologies, Inc.
|
|
|
5
Regent Street
|
|
|
Livingston,
NJ 07039
|
|
|
Telephone: (973)
758-6110
|
|
|
Facsimile: (973)
758-6120
|
|
|
|
|
If
to Mahoney:
|
Jerome
R. Mahoney
|
|
|
c/o
iVoice Technologies, Inc.
|
|
|
750
Route 34
|
|
|
Matawan,
NJ 07747
|
|
|
Telephone: (732)
441-7700
|
|
|
Facsimile: (732)
441-9895
|
|
|
|
|
If
to Trey:
|
Trey
Resources, Inc.
|
|
|
5
Regent Street
|
|
|
Livingston,
NJ 07039
|
|
|
Attention: Mark
Meller
|
|
|
Telephone: (973)
758-6100
|
|
|
Facsimile: (973)
748-9449
|
|
|
|
|
|
|
|
With
a copy to:
|
Meritz
& Muenz LLP
|
|
|
2021
O Street, NW
|
|
|
Washington,
DC 20036
|
|
|
Attention: Lawrence
A. Muenz
|
|
|
Telephone: (202)
728-2909
|
|
|
Facsimile: (202)
728-2910
|
Each
party shall provide five (5) days’ prior written notice to the other party of
any change in address or facsimile number.
(g)
Successors and
Assigns
. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and
assigns. None of the Parties shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other
the Parties hereto.
(h)
No Third Party
Beneficiaries
. This Agreement is intended for the benefit of
the Parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
(i)
Publicity
. The
Parties shall have the right to approve, before issuance any press
release or any other public statement with respect to the transactions
contemplated hereby made by any party; provided, however, that
Trey shall be entitled, without the prior approval of any of the
Parties, to issue any press release or other public disclosure with respect to
such transactions required under applicable securities or other laws or
regulations (Trey shall use its best efforts to consult the other Parties in
connection with any such press release or other public disclosure prior to its
release and Buyer shall be provided with a copy thereof upon release
thereof).
(j)
Further
Assurances
. 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.
(k)
No Strict
Construction
. 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.
[REMAINDER
PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF
,
the Parties have caused
this Termination and Settlement to be duly executed as of the date first written
above.
|
ROTH:
|
COMPANY:
|
|
JEFFREY
D. ROTH
|
SWK
TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
By: ___________________________________
|
|
|
Name: Mark
Meller
|
|
|
Title:
Chairman and Secretary
|
|
|
|
|
|
|
|
JEROME
R. MAHONEY
|
TREY
RESOURCES, INC.
|
|
|
|
|
|
|
|
By:
|
By: ___________________________________
|
|
|
Name: Mark
Meller
|
|
|
Title: President
and
Chief
Executive
Officer
|