EXHIBIT 10.63
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NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of November
22, 2004, is entered into by
and among Ramp Corporation, a Delaware corporation
(the "Company"), and the purchasers listed on Exhibit A attached
hereto (the
"Purchasers"), for the
issuance and sale to the Purchasers of the Notes and
Note
Payment Shares (as defined below) of the
Company, in the
manner, and upon
the
terms, provisions and
conditions set forth in this Agreement.
WHEREAS, the parties
desire that, upon the terms and subject to
the
conditions contained herein,
the Company shall issue and sell to the Purchasers,
and Purchasers shall
purchase, the Notes; and
WHEREAS, such
issuance and sale will be made in reliance upon the
provisions of Section 4(2) of the United States Securities Act of 1933, as
amended, and regulations
promulgated thereunder
(the "Securities Act"), or upon
such other exemption from the
registration requirements of the Securities Act as
may be available with respect to any or all of the
purchases of the Notes to be
made hereunder.
NOW, THEREFORE, in consideration of the representations, warranties
and
agreements contained herein and other good and valuable consideration, the
receipt and legal adequacy of
which is hereby
acknowledged by the parties, the
Company and the Purchasers
hereby agree as follows:
1. Purchase and Sale of Notes; Issuance of Shares of Common
Stock.
(a) Upon the following
terms and subject to the conditions
contained herein, the Company shall issue and sell
to the Purchasers, and
the
Purchasers shall purchase
from the Company,
convertible promissory notes in the
aggregate principal amount of
$400,000 (the "Purchase Price"), bearing interest
at the rate of six percent
(6%) per annum, in
substantially
the form
attached
hereto as Exhibit B (the "Notes"). The outstanding principal amount of the
Notes, together with all accrued and
unpaid interest, shall
be due and payable
on or before the Maturity Date (as defined in the Notes) in cash;
provided,
however, that, on or before the Maturity
Date, the outstanding principal amount
of such Notes, plus any and all accrued but unpaid interest, shall
automatically, and without
further action, convert into such other securities of
the Company issued to
investor(s) in a Transaction (as defined in the Notes),
on
the same terms and conditions as set forth in the Transaction (the
"Conversion"); provided, further, however, that if the Conversion
occurs, the
Company shall, upon Conversion, pay to the Purchasers an
additional
aggregate
amount of $80,000, payable to
the Purchasers in proportion to the Purchase Price
through the issuance by the
Company to the
Purchasers of additional securities
in a Transaction, on the same terms and conditions as set forth in the
Transaction.
(b)
In consideration
of and in express reliance upon the
representations, warranties, covenants, terms and
conditions of this Agreement,
the Company agrees to issue
and sell to the Purchasers and the Purchasers agree
to purchase the Notes.
The closing under this
Agreement (the
"Closing")
shall
take place at the offices of
Jenkens & Gilchrist Parker Chapin LLP, The Chrysler
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Building, 405 Lexington Avenue, New York, New York 10174 upon the
satisfaction
of each of the conditions set forth in Sections 4 and 5
hereof (the
"Closing
Date").
(c) On or prior to the Closing Date, each Purchaser shall
fund
its portion of the Purchase
Price into an escrow
account maintained by
the law
offices of Jenkens &
Gilchrist Parker
Chapin LLP, as escrow
agent (the "Escrow
Agent"). Upon satisfaction of
each of the conditions set forth in Sections 4 and
5 hereof and delivery of the Purchase Price to the Escrow Agent, the Escrow
Agent shall promptly wire
transfer the escrowed
funds to an account
designated
by the Company pursuant to
its written instructions.
(d) Subject to the Company obtaining stockholder approval of
the reverse split of its shares of common stock, par value $.001 per share
("Common Stock") and the filing of an amendment to the Company's Restated
Certificate of Incorporation to effect the reverse split, as an
inducement for
the purchase of the Notes by
the Purchasers, the Company shall issue and deliver
to the Purchasers
certificates representing the aggregate number of four
hundred
and eighty thousand (480,000) post-split shares of Common Stock (the "Note
Payment Shares").
The Notes and Note
Payment Shares are sometimes collectively
referred to herein as the
"Securities".
2. Representations, Warranties and Covenants of the Purchasers.
Each of
the Purchasers hereby makes
the following
representations and warranties to the
Company, and covenants for the benefit of
the Company, with
respect solely
to
itself and not with respect
to any other Purchaser:
(a) If a Purchaser is an entity, such Purchaser is a
corporation, limited liability company or partnership
duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its
incorporation or organization.
(b) This Agreement has been duly authorized, validly executed
and delivered by each Purchaser and is a valid and binding agreement and
obligation of each
Purchaser enforceable against such Purchaser in
accordance
with its terms, subject to limitations on
enforcement by general
principles of
equity and by bankruptcy or
other laws affecting
the enforcement of
creditors'
rights generally, and each
Purchaser has full power and authority to execute and
deliver this Agreement and the other agreements and documents contemplated
hereby and to perform its
obligations hereunder and thereunder.
(c) Each Purchaser
understands that no federal, state, local
or foreign governmental body or regulatory authority has made any finding
or
determination relating to the
fairness of an investment in any of the Securities
and that no Federal,
state, local or foreign governmental body or regulatory
authority has recommended or endorsed, or will recommend or endorse, any
investment in the Securities.
Each Purchaser, in making the decision to purchase
the Securities, has relied
upon independent investigation made by it and has not
relied on any information or
representations made by third parties.
(d) Each Purchaser
understands that the
Securities are being
offered and sold to it in
reliance on specific
provisions of Federal
and state
securities laws and that the Company is
relying upon the truth
and accuracy of
the representations,
warranties,
agreements, acknowledgments and understandings
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of each Purchaser set forth herein for purposes of
qualifying for
exemptions
from registration under the Securities Act, and applicable state securities
laws.
(e) Each Purchaser
is an "accredited investor" as defined
under Rule 501 of Regulation
D promulgated under the Securities Act.
(f) Each Purchaser is and will be acquiring the Securities
for
such Purchaser's own account,
and not with a view to
any resale or distribution
of the Securities in whole or
in part, in violation of the Securities Act or any
applicable securities
laws.
(g) The offer and sale of the Securities is intended to be
exempt from registration
under the Securities
Act, by virtue of Section 4(2) of
the Securities Act. Each Purchaser understands that the Securities purchased
hereunder have not been, and
may never be,
registered under the
Securities Act
and that none of the
Securities can be sold or transferred unless they are
first
registered under the Securities Act and such
state and other securities laws as
may be applicable or in the
opinion of counsel for the Company an exemption from
registration under the Securities Act is
available (and then the Securities may
be sold or transferred only
in compliance with such exemption and all applicable
state and other securities
laws).
3. Representations,
Warranties
and Covenants of the Company. The
Company represents and
warrants to each Purchaser, and covenants for the
benefit
of each Purchaser, as
follows:
(a) The Company
has been duly
incorporated
and is validly
existing and in good standing
under the laws of the state of Delaware, with full
corporate power and authority to own,
lease and operate its
properties and
to
conduct its business as currently conducted, and is duly registered and
qualified to conduct its
business and is in good standing in each jurisdiction
or place where the nature of its
properties
or the conduct of its business
requires such registration or qualification, except where the failure to
register or qualify would not
have a Material
Adverse Effect.
For purposes
of
this Agreement, "Material
Adverse Effect" shall mean any effect on the business,
results of operations,
prospects,
assets or financial
condition of the Company
that is material and adverse
to the Company and its subsidiaries and affiliates,
taken as a whole,
and/or any condition,
circumstance,
or situation that
would
prohibit or otherwise
materially interfere
with the ability of the Company from
entering into and performing
any of its obligations
under this Agreement or the
Notes in any material
respect.
(b) The Notes and Note Payment Shares have been duly
authorized by all necessary corporate action and, when paid for or
issued in
accordance with the terms of
this Agreement,
the Notes shall be
validly issued
and outstanding, free and
clear of all liens, encumbrances and rights of refusal
of any kind. The Note Payment
Shares have been duly
authorized by all necessary
corporate action and, when paid for or
issued in accordance
with the terms
of
this Agreement, will be validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens,
encumbrances and
rights of refusal
of any kind and the holders
shall be entitled to all rights accorded to a holder
of Common Stock.
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(c) Each of the Notes
and this Agreement
(the "Transaction
Documents") have been duly
authorized, validly
executed and delivered on behalf
of the Company and is a valid and binding agreement and obligation of the
Company enforceable against
the Company in accordance with its terms, subject to
limitations on enforcement by
general principles of
equity and by bankruptcy or
other laws affecting the
enforcement of
creditors' rights
generally,
and the
Company has full power and
authority to execute and deliver the Transaction
Documents and the other agreements and documents contemplated hereby and to
perform its obligations
hereunder and thereunder.
(d) The execution and
delivery of the
Transaction
Documents
and the consummation of the
transactions
contemplated by this
Agreement by the
Company, will not (i) conflict with or
result in a breach of or a default under
any of the terms or provisions of, (A) the Company's certificate of
incorporation or by-laws, or (B) of any material
provision of any
indenture,
mortgage, deed of trust or other material
agreement or
instrument to which the
Company is a party or by
which it or any of its material properties or assets is
bound, (ii) result in a
violation of any material provision of any law, statute,
rule, regulation, or any existing applicable decree,
judgment or order by
any
court, federal or state regulatory body, administrative agency, or other
governmental body having
jurisdiction over the
Company, or any of its
material
properties or assets or (iii) result in the creation or imposition of any
material lien, charge or
encumbrance upon any material property or assets of the
Company or any of its
subsidiaries
pursuant to the terms
of any agreement
or
instrument to which any of them is a party or
by which any of them may be bound
or to which any of their
property or any of
them is subject except
in the case
of clauses (i)(B) or (iii)
for any such conflicts, breaches, or defaults or
any
liens, charges, or
encumbrances which would not have a Material Adverse
Effect.
(e) The sale and issuance of the Securities in accordance
with
the terms of and in reliance
on the accuracy of each Purchaser's representations
and warranties set forth in
this Agreement will be exempt from the registration
requirements of the
Securities Act.
(f) Except for the consent of the American Stock Exchange,
no
consent, approval or
authorization of or designation, declaration or filing
with
any governmental authority on the part of the
Company is required in connection
with the valid execution and delivery of this
Agreement or the
offer, sale
or
issuance of the Notes or the
Note Payment Shares,
or the consummation of any
other transaction
contemplated by this Agreement.
(g)
There is no action, suit, claim, investigation or
proceeding pending or, to the knowledge of
the Company,
threatened against the
Company which questions the validity of the Transaction Documents or the
transactions contemplated thereby or any action taken or to
be taken
pursuant
thereto. Except for the litigation
disclosed in the
Company's filings with the
Securities and Exchange
Commission (collectively, the "SEC Documents"), there is
no action, suit, claim,
investigation or proceeding pending or, to the knowledge
of the Company, threatened,
against or involving
the Company or any subsidiary,
or any of their respective
properties or assets
which, if adversely determined,
is reasonably likely to
result in a Material Adverse Effect.
(h) The Company has complied and will comply with all
applicable federal and state securities laws in connection with the offer,
issuance and sale of the
Securities
hereunder.
Neither the Company
nor anyone
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acting on its behalf,
directly or indirectly, has or will sell, offer to sell
or
solicit offers to buy any of the Securities, or similar securities to, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations
relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of the
Securities under the
registration provisions of the Securities Act and any
other
applicable federal and state
securities laws. 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 any of the
Securities.
(i) To the Company's knowledge, neither this Agreement nor
the
Transaction Documents hereto contain any
untrue statement of a material fact or
omit to state a material
fact necessary in order to make the
statements
made
herein or therein,
in the light of the
circumstances under which they were made
herein or therein, not
misleading.
(j) The authorized capital stock of the Company and the
shares
thereof issued and
outstanding
are set forth in the
SEC Documents. All of
the
outstanding shares of the Company's Common Stock have been duly and
validly
authorized, and are fully paid and
non-assessable. Except
as set forth in this
Agreement or in the SEC Documents, as of the date hereof, no shares of the
Company's Common Stock are entitled to preemptive rights and there are no
registration rights or
outstanding options, warrants, scrip, rights to
subscribe
to, call or commitments of
any character
whatsoever relating
to, or securities
or rights convertible into, any shares of
capital stock of the Company. Except
as set forth in the SEC
Documents, as of the
date hereof, the
Company is not a
party to any agreement
granting registration
rights to any person
with respect
to any of its equity or debt
securities. The
Company is not a party to, and its
executive officers have no
knowledge of, any agreement restricting the voting or
transfer of any shares of the
capital stock of the
Company. The offer and
sale
of all capital stock,
convertible
securities, rights,
warrants, or options
of
the Company issued prior to
the Closing complied with all applicable federal and
state securities laws, and no stockholder has a
right of rescission or damages
with respe
