Attached files
| file | filename |
|---|---|
| 8-K - PC GROUP, INC. | v206598_8k.htm |
| EX-10.1 - PC GROUP, INC. | v206598_ex10-1.htm |
NOTE PURCHASE
AGREEMENT
NOTE
PURCHASE AGREEMENT, dated as of December 28, 2010 (“Agreement”), between PC
Group, Inc., a Delaware corporation (the “Company”), and York Credit
Opportunities Master Fund, L.P., a Cayman Islands exempted limited
partnership (“York”).
RECITALS:
|
A.
|
York
is the holder of 5% Convertible Subordinated Notes due 2011 issued by the
Company to York in the aggregate principal amount of $3,410,000 (plus all
accrued and unpaid interest thereon) (the
“Notes”);
|
|
B.
|
The
Company desires to repurchase from York, and York desires to sell to the
Company, the Notes on the terms and conditions set forth
herein;
|
NOW
THEREFORE, the parties hereto agree as follows:
1. PURCHASE
AND SALE OF NOTES. Subject to the terms and conditions herein set forth, York
hereby agrees to sell to the Company, and the Company hereby agrees to
repurchase the Notes, for an aggregate purchase price equal to the sum of (a)
$886,600 plus (b) $84,302.78, representing all accrued and unpaid interest
thereon through the date hereof (the “Purchase Price”).
2. CLOSING.
The closing of the purchase and sale of the Notes (“Closing”) shall take place
upon the receipt by York of the Purchase Price in good funds by wire transfer to
an account or accounts designated in writing by York [as set forth on Schedule 1
annexed hereto]. Within four (4) business days following the Closing,
York will deliver the Note certificates to the Company.
3. REPRESENTATIONS
AND WARRANTIES OF YORK. York hereby represents and warrants to the Company as
follows:
(a) York
is the record and beneficial owner of, and has good and marketable title to, the
Notes, free and clear of all liens, security interests, charges, claims,
restrictions and other encumbrances.
(b) York
has the full legal power to execute and deliver this Agreement and to perform
its obligations hereunder and thereunder. All acts required to be the
taken by York to enter into this Agreement and to carry out the transactions
contemplated hereby have been properly taken, and this Agreement constitutes the
legal, valid and binding obligation of York, enforceable in accordance with its
terms.
(c) York
recognizes that its right to acquire equity securities of the Company by
converting the Notes will be surrendered as a result of the transactions
contemplated by this Agreement and that it will no longer have any right to
receive any payment of principal or accrued but unpaid interest on the
Notes.
(d) York
has had both the opportunity to ask questions and receive answers from the
officers and directors of the Company concerning the business and operations of
the Company and to obtain any additional information regarding the Company and
its business and operations to the extent the Company possesses such information
or can acquire it without unreasonable effort or expense necessary to verify the
accuracy of such information, including reports filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended. York acknowledges that the Company has material nonpublic
information about the Company and the Notes which could have a material effect
on the business and financial condition of the Company and the value of the
Notes, and York confirms to the Company that York is not relying on any
such nondisclosures of the Company, if any, and is not relying on any
representations or warranties of the Company not set forth in this
Agreement.
(e) York
possesses sufficient knowledge and experience in financial and business matters
to enable it to evaluate the merits and risks of the sale of the Notes to the
Company and the transactions contemplated by this Agreement.
4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to
York as follows:
(a) The
Company has the full legal power to execute and deliver this Agreement and to
perform its obligations hereunder and thereunder. All acts required
to be the taken by the Company to enter into this Agreement and to carry out the
transactions contemplated hereby have been properly taken; and this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms.
5. MISCELLANEOUS.
(a) The
warranties and representations of the Company and York contained in or made
pursuant to this Agreement shall survive the closing of the transaction
contemplated by this Agreement and they shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the Company
or York.
(b) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its respective legal representatives, successors and
assigns. This Agreement constitutes the entire understanding and
agreement between the parties with regard to the subject matter hereof and may
not be amended or modified except by a written agreement specifically referring
to this Agreement signed by all the parties. No waiver of any breach
or default hereunder shall be considered valid unless in writing and signed by
the party giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(c) This
Agreement shall be governed by and construed under the internal laws of the
State of New York, disregarding any principles of conflicts of
laws.
(d) In
the event of any dispute under this Agreement between the parties, but not as to
any third parties, then and in such event, each party agrees that the same shall
be submitted to the American Arbitration Association (AAA) in the City of New
York, State of New York, for its decision and determination in accordance with
its rules and regulations then in effect. The panel shall consist of
three arbitrators, as mutually determined, provided that if the parties cannot
agree on one or more of the arbitrators, then the AAA will designate the
arbitrators. Each of the parties agrees that the decision and or
award made by the AAA may be entered as a judgment of the courts of the State of
New York and shall be enforceable as such.
(e) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The parties agree that this Agreement may be executed by
facsimile copy or other electronic signature, which signature will be treated
for all purposes as an original signature.
(f) Any
notice required or permitted under this Agreement shall be given in writing and
shall either be delivered personally or sent by certified mail, return receipt
requested, postage prepaid, or by Federal Express next business day service with
signed receipt required, to the addresses set forth on the signature page, or to
such other address as either shall have specified by notice in writing to the
other, and shall be deemed duly given hereunder when so delivered.
(g) The
section headings are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope or intent of any provision of
this Agreement.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as
of the date first above written.
YORK
CREDIT OPPORTUNITIES MASTER FUND, L.P.
By: York
Credit Opportunities Domestic Holdings, LLC, its General Partner
|
By:
|
/s/
Adam J. Semler
|
|
|
Name:
Adam J. Semler
|
||
|
Title:
Chief Operating Officer
|
||
|
Address:
c/o York Capital Management Global Advisors, LLC
|
||
|
767
Fifth Avenue
|
||
|
17th
Floor
|
||
|
New
York, NY
10153
|
||
PC
GROUP, INC.
|
By:
|
/s/
Gray Hudkins
|
|
|
Name:
Gray Hudkins
|
||
|
Title:
President and CEO
|
||
|
Address:
419 Park Avenue
South
|
||
New York,
New York 10016
NOTE PURCHASE
AGREEMENT
NOTE
PURCHASE AGREEMENT, dated as of December 28, 2010 (“Agreement”), between PC
Group, Inc., a Delaware corporation (the “Company”), and York Credit
Opportunities Fund, L.P., a Delaware limited partnership (“York”).
RECITALS:
|
A.
|
York
is the holder of 5% Convertible Subordinated Notes due 2011 issued by the
Company to York in the aggregate principal amount of $1,590,000 (plus all
accrued and unpaid interest thereon) (the
“Notes”);
|
|
B.
|
The
Company desires to repurchase from York, and York desires to sell to the
Company, the Notes on the terms and conditions set forth
herein;
|
NOW
THEREFORE, the parties hereto agree as follows:
1. PURCHASE
AND SALE OF NOTES. Subject to the terms and conditions herein set forth, York
hereby agrees to sell to the Company, and the Company hereby agrees to
repurchase the Notes, for an aggregate purchase price equal to the sum of (a)
$413,400 plus (b) $39,308.33, representing all accrued and unpaid interest
thereon through the date hereof (the “Purchase Price”).
2. CLOSING.
The closing of the purchase and sale of the Notes (“Closing”) shall take place
upon the receipt by York of the Purchase Price in good funds by wire transfer to
an account or accounts designated in writing by York [as set forth on Schedule 1
annexed hereto]. Within four (4) business days following the Closing,
York will deliver the Note certificates to the Company.
3. REPRESENTATIONS
AND WARRANTIES OF YORK. York hereby represents and warrants to the Company as
follows:
(a) York
is the record and beneficial owner of, and has good and marketable title to, the
Notes, free and clear of all liens, security interests, charges, claims,
restrictions and other encumbrances.
(b) York
has the full legal power to execute and deliver this Agreement and to perform
its obligations hereunder and thereunder. All acts required to be the
taken by York to enter into this Agreement and to carry out the transactions
contemplated hereby have been properly taken, and this Agreement constitutes the
legal, valid and binding obligation of York, enforceable in accordance with its
terms.
(c) York
recognizes that its right to acquire equity securities of the Company by
converting the Notes will be surrendered as a result of the transactions
contemplated by this Agreement and that it will no longer have any right to
receive any payment of principal or accrued but unpaid interest on the
Notes.
(d) York
has had both the opportunity to ask questions and receive answers from the
officers and directors of the Company concerning the business and operations of
the Company and to obtain any additional information regarding the Company and
its business and operations to the extent the Company possesses such information
or can acquire it without unreasonable effort or expense necessary to verify the
accuracy of such information, including reports filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended. York acknowledges that the Company has material nonpublic
information about the Company and the Notes which could have a material effect
on the business and financial condition of the Company and the value of the
Notes, and York confirms to the Company that York is not relying on any
such nondisclosures of the Company, if any, and is not relying on any
representations or warranties of the Company not set forth in this
Agreement.
(e) York
possesses sufficient knowledge and experience in financial and business matters
to enable it to evaluate the merits and risks of the sale of the Notes to the
Company and the transactions contemplated by this Agreement.
4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to
York as follows:
(a) The
Company has the full legal power to execute and deliver this Agreement and to
perform its obligations hereunder and thereunder. All acts required
to be the taken by the Company to enter into this Agreement and to carry out the
transactions contemplated hereby have been properly taken; and this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms.
5. MISCELLANEOUS.
(a) The
warranties and representations of the Company and York contained in or made
pursuant to this Agreement shall survive the closing of the transaction
contemplated by this Agreement and they shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the Company
or York.
(b) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its respective legal representatives, successors and
assigns. This Agreement constitutes the entire understanding and
agreement between the parties with regard to the subject matter hereof and may
not be amended or modified except by a written agreement specifically referring
to this Agreement signed by all the parties. No waiver of any breach
or default hereunder shall be considered valid unless in writing and signed by
the party giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(c) This
Agreement shall be governed by and construed under the internal laws of the
State of New York, disregarding any principles of conflicts of
laws.
(d) In
the event of any dispute under this Agreement between the parties, but not as to
any third parties, then and in such event, each party agrees that the same shall
be submitted to the American Arbitration Association (AAA) in the City of New
York, State of New York, for its decision and determination in accordance with
its rules and regulations then in effect. The panel shall consist of
three arbitrators, as mutually determined, provided that if the parties cannot
agree on one or more of the arbitrators, then the AAA will designate the
arbitrators. Each of the parties agrees that the decision and or
award made by the AAA may be entered as a judgment of the courts of the State of
New York and shall be enforceable as such.
(e) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The parties agree that this Agreement may be executed by
facsimile copy or other electronic signature, which signature will be treated
for all purposes as an original signature.
(f) Any
notice required or permitted under this Agreement shall be given in writing and
shall either be delivered personally or sent by certified mail, return receipt
requested, postage prepaid, or by Federal Express next business day service with
signed receipt required, to the addresses set forth on the signature page, or to
such other address as either shall have specified by notice in writing to the
other, and shall be deemed duly given hereunder when so delivered.
(g) The
section headings are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope or intent of any provision of
this Agreement.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as
of the date first above written.
YORK
CREDIT OPPORTUNITIES FUND, L.P.
By: York
Credit Opportunities Domestic Holdings, LLC, its General Partner
|
By:
|
/s/ Adam J. Semler
|
|
|
Name:
Adam J. Semler
|
||
|
Title:
Chief Operating Officer
|
||
|
Address:
c/o York Capital Management Global Advisors, LLC
|
||
|
767
Fifth Avenue
|
||
|
17th
Floor
|
||
|
New
York, NY 10153
|
||
|
PC
GROUP, INC.
|
||
|
By:
|
/s/ Gray Hudkins | |
|
Name:
Gray Hudkins
|
||
|
Title:
President and CEO
|
||
|
Address:
419 Park Avenue South
|
||
|
New
York, New York 10016
|
||