Attached files
Exhibit
10.75
January
11, 2010
To
Our Series B Preferred Stockholders:
During
the past few years, we have been seriously challenged by the unprecedented
turmoil in the U.S. domestic economy. One of our goals in this
challenging market environment has been to align the costs of our operations to
our cash flows. We believe the elimination of the Series B Preferred Stock (the
“Series B Stock”) and the related dividends by exchanging the remaining
outstanding Series B Stock for a recently created Series C Preferred Stock on a
share for share basis (hereinafter, the “Exchange”) will help us achieve our
goal of enhanced balance sheet flexibility which is instrumental to operate and
grow our business. We are confident that with an improved capital structure,
there are multiple business opportunities we can pursue to enhance stockholder
value that would not have been previously feasible. More importantly,
our continued efforts to improve our balance sheet will position the Company to
benefit in the anticipated economic recovery.
If we
cannot effectuate the Exchange of at least a majority of the Series B Holder,
the continued accrual of dividends of the outstanding Series B Stock will
continue to have a negative effect on the Company's business, results of
operations, and financial position, including the potential inability to satisfy
our liabilities and our cash requirements related to long-term dividend and
interest obligations.
Our
Board of Directors (the "Board") took into account a number of factors in its
decision to effectuate the Exchange, including the lack of liquidity and
marketability of the Series B Stock and the present value of these the
securities in a liquidation scenario. The Board's objective in its analysis was
to further the best interests of stockholders and, toward that end, the Board
would encourage the fullest participation in the Exchange by our Series B
Stockholders.
The
success of the Exchange not only requires that the Series B Stock be surrendered
and exchanged for Series C Stock, but also a valid consent from each Series B
Stockholder to amend the Certificate of Designation to eliminate any further
accrual of dividends, unless otherwise declared by the Company. The
Certificate of Designation will also provide that the Company may satisfy its
obligations with respect to accrued but unpaid dividends either (a) in cash
payment, (b) by issuance of additional Series B Stock or (c) in common stock of
the Company. Under the terms of the Exchange, you may not exchange
your Series B Stock for Series C Stock without also consenting to the proposed
amendment to the Series B Preferred Stock Certificate of Designation, a revised
copy of which is provided herewith.
The
documents enclosed with this letter provide you with important information
regarding the Exchange, the terms of the Exchange and the consent, procedures
for exchanging your shares.
Thank
you for your ongoing support of and continued interest in Invisa, Inc.
Sincerely,
LETTERS
OF TRANSMITTAL AND CONSENT
Exchange
of Series B Preferred Stock, par value $0.001 per share, for Series C Preferred
Stock, par value $0.001 per share, on a share for share basis and Consent to
Amendments to the Certificate of Designation of the Series B Preferred
Stock
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The
instructions contained within this LETTERS OF TRANSMITTAL and Consent
should be read carefully before being completed. This LETTERS
OF TRANSMITTAL and Consent is only to be used by record holders of the
Series B Preferred Stock.
DESCRIPTION
OF SERIES B PREFERRED STOCK TENDERED BY
HOLDER
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Name(s)
and Address(es of Registered Holder(s)
(Please
fill in, if blank)(1)
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Share
Certificate(s) and Share(s) Tendered
(Please
attach additional signed list, if
necessary)
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Series B
Preferred
Stock
Share
Certificate
Number(s)
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Total
Number of
Shares
of Series B Preferred Stock Represented by
Share
Certificate(s)
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Number
of Shares of Series B Preferred Stock Tendered
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Total
Shares Tendered
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(1)
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The
names and addresses of the registered Holder of the Series B
Preferred Stock should be printed, if not already printed above, exactly
as they appear on the share certificates to be exchanged
hereby.
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(2)
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Unless
otherwise indicated, all Series B Preferred Stock represented by
Share Certificates delivered to the Company will be deemed to have been
exchanged. The LETTERS OF TRANSMITTAL requires that Holders submit all
shares they own for exchange, and the Company is entitled to reject
partial submissions. See Instruction 4 and
5.
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o Check here
if share certificates have been lost or mutilated.
Ladies
and Gentlemen:
The
undersigned hereby acknowledges that he or she has received and read the Terms
of Exchange, dated January 11, 2009 (the "Term Sheet"), of the Company and this
Letter of Transmittal and Consent (the "Consent"), which together constitutes
the terms and conditions upon which the Company shall exchange (the "Exchange")
all of the Company's outstanding Series B Preferred Stock, $0.001 par value
per share (together with all accrued and unpaid interest, the "Series B
Preferred Stock") for Series C Preferred Stock, $0.001par value per share
("Series C Preferred Stock," and collectively with the Series B
Preferred Stock, the "Preferred Stock"), upon the terms and subject to the
conditions specified in the Term Sheet. The Company is also soliciting consents
(the "Consent Solicitation") from holders of the Series B Preferred Stock (each,
a "Holder" and collectively, the "Holders") to amend our charter (the "Charter")
to modify the terms of the Series B Preferred Stock to, among other things,
terminate future dividends (the “Proposed Amendments”).
Holders
who desire to exchange their shares of Series B Preferred Stock for Series
C Preferred Stock are required to consent to the Proposed Amendments. The
execution and delivery of this Consent will constitute a Holder's consent to the
Proposed Amendments. A Holder of shares of Series B Preferred Stock may not
exchange Series B Preferred Stock without delivering its consent to the
Proposed Amendments with respect to all shares of Series B Preferred Stock
owned by such Holder.
The
Company reserves the right, at any time or from time to time, to extend the time
to Exchange the Series B Preferred Stock, in which event the term "Expiration
Date" shall mean the latest time and date that the Company will honor the
exchange requests of the Holders. The Company shall notify the
Holders of the Series B Preferred Stock of any extension as promptly as
practicable.
None
of the Company's board of directors (the "Board"), the officers or employees of
the Company, or any of the Company's financial advisors is making a
recommendation to any Holder of Series B Preferred Stock as to whether you
should exchange your shares for Series C Preferred Stock. You must make your own
investment decision regarding the Exchange based upon your own assessment of the
market value of the Series B Preferred Stock, the effect of holding shares
of the Preferred Stock upon approval of the Proposed Amendments, your liquidity
needs, your investment objectives and any other factors you deem relevant.
Upon
acceptance by the Company and subject to the terms and conditions herein set
forth, the undersigned hereby submits its shares of Series B Preferred
Stock set forth in the box above entitled "Description of Series B
Preferred Stock" to be exchanged for shares of Series C Preferred Stock in
accordance herewith.
The
undersigned understands that the Company is also soliciting consents from
Holders of the Series B Preferred Stock to approve the Proposed Amendments.
The undersigned understands and agrees that exchange of shares of the Series B
Preferred Stock requires that the Holder execute and deliver a written consent
approving the Proposed Amendments with respect to the shares of Series B
Preferred Stock. The undersigned further understands that Holders of
shares of Series B Preferred Stock may not exchange shares of Series B Preferred
Stock without executing and delivering a written consent to the Proposed
Amendments to the Company.
The
undersigned understands that, if successfully completed, the undersigned will
receive one share of Series C Preferred Stock for each share of Series B
Preferred Stock exchanged.
Capitalized
terms used but not defined herein have the meaning given to them in the Term
Sheet.
The
undersigned hereby represents and warrants that (i) the undersigned has
full power and authority to, sell, assign and transfer the Series B
Preferred Stock exchanged hereby and to grant the consent and the power of
attorney set forth herein, (ii) the undersigned is exchanging all and not
less than all of the Series B Preferred Stock owned by the undersigned, and
(iii) when exchanged, the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim when the same are accepted by the Company.
The
undersigned further represents and warrants that the undersigned has read and
agrees to all of the terms and conditions the Exchange. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned, and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, successors and assigns of the undersigned. This exchange and
authorization to consent are irrevocable and once the Series B Preferred
Stock submitted to and accepted by the Company for exchange such submission may
not be withdrawn, nor the corresponding consent be revoked. The undersigned
understands that, if the Company receives the requisite approvals of the
Proposed Amendments from the Holders of the Series B Preferred Stock, the
Company intends to execute and file Amendment to the Certificate of Designation
immediately thereafter and that, once effective, such amendments will be binding
upon each Holder of each series of Series B Preferred Stock, whether or not such
Holder consents.
Subject
to, and effective upon, the acceptance of the requisite documents by the
Company, the undersigned hereby tenders, sells, assigns and transfers to or upon
the order of the Company, all right, title and interest in and to the shares of
Series B Preferred Stock exchanged hereby and releases and discharges the
Company from any and all claims the undersigned may have now, or may have in the
future, arising out of, or related to, the shares of Series B Preferred
Stock. The undersigned hereby acknowledges that it has reviewed the Proposed
Amendment, a draft of which has been provided herewith, and consents to and
approves the Proposed Amendments, as described herein and in the Term Sheet,
acknowledges receipt of the Term Sheet, the terms of which are incorporated
herein by reference, and revokes any proxy heretofore given with respect to the
Proposed Amendments. The undersigned hereby irrevocably constitutes and appoints
the Company as its agent and attorney-in-fact, with full power and authority in
its name, place and stead, with respect to the exchanged shares of Series B
Preferred Stock, with full power of substitution, such power of attorney being
deemed to be an irrevocable power to effectuate the exchange of the Series B
Preferred Stock for newly issued shares of Series C Preferred Stock as
contemplated herein and to do and perform each and every act and thing whether
necessary or desirable to be done, as fully as the undersigned might or could do
if personally present at a meeting of stockholders of the Company or otherwise.
That the foregoing power of attorney shall terminate upon the consummation of
the exchange of the Preferred stock as contemplated
herein.
The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Company to be necessary or desirable to complete (i) the
sale, assignment and transfer of the Series B Preferred Stock exchanged
hereby and the issuance of the Series C Preferred Stock in exchange therefore,
(ii) the execution and delivery of the written consent to approve the
Proposed Amendments. All authority conferred or agreed to be conferred herein
and every obligation of the undersigned hereunder shall be binding upon the
successors, assigns, heirs, executors, administrators, trustees in bankruptcy
and legal representatives of the undersigned and shall not be affected by, and
shall survive, the death or incapacity of the undersigned.
THE UNDERSIGNED, BY COMPLETING THE
ABOVE "DESCRIPTION OF SERIES B PREFERRED STOCK " BOX AND SIGNING THIS LETTER,
WILL BE DEEMED TO HAVE EXCHANGED THEIR DESIGNATED SHARES OF SERIES B PREFERRED
STOCK AS SET FORTH IN SUCH BOX ABOVE.
BY EXCHANGING SHARES OF SERIES B
PREFERRED STOCK IN ACCORDANCE HEREWITH, THE UNDERSIGNED ALSO CONSENTS TO AND
APPROVES THE PROPOSED AMENDMENTS.
IMPORTANT
PLEASE
SIGN HERE
This
Letter of Transmittal and Consent must be signed by the Holder(s) of the shares
of Series B Preferred Stock being exchanged exactly as his, her, its or
their name(s) appear(s) on certificate(s) for such shares of Series B
Preferred Stock. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below
under "Capacity" and submit evidence satisfactory to the Company of such
person's authority to so act. See Instruction 5.
Signature(s)
of Holders
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Dated:
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Name(s)
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Capacity
(full title)
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Address
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Area
Code and Telephone Number
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PLEASE
READ THE INSTRUCTIONS ON THE FOLLOWING PAGES CAREFULLY BEFORE COMPLETING THE
EXCHANGE AND CONSENT FORM
INSTRUCTIONS
FOR COMPLETING THE EXCHANGE AND CONSENT FORM
1. Signatures. Signatures
of all holders of the Series B Preferred must be presented to effectuate the
exchange and consent contemplated hereunder in accordance with Section 5
below. The Company may, in its sole and exclusive discretion,
request additional documentation as it deems necessary to consummate the
transactions contemplated hereby.
2. Delivery of
this Consent and Consent and Certificates for Series B Preferred Stock or
Book-Entry Confirmations; Guaranteed Delivery
Procedures. This Letters of Transmittal and
Consent is to be used by each Holder of the Series B Preferred Stock and
submitted with the physical delivery of the original share certificate
representing the B Preferred Stock being exchanged by such
Holder. All documentation shall be delivered by certified, return
receipt requested or overnight mail or courier service to the Company at PO Box
49376, Sarasota, Fl 34230, such documents to be received by the Company on or
before the Expiration Date.
3. Consenting
to the Proposed Amendments. By exchanging your
shares of Series B Preferred Stock in accordance with the procedures
described herein, you also consent to and approve the Proposed Amendments,
acknowledge receipt of the Term Sheet and revoke any proxy heretofore given with
respect to the Proposed Amendments. You irrevocably constitute and appoint the
Company as your agent and attorney-in-fact, with full power and authority in
your name, place and stead, with full knowledge that the Company, as your true
and lawful representative, attorney-in-fact and agent with respect to the
exchanged shares of Series B Preferred Stock, with full power of
substitution, such power of attorney being deemed to be an irrevocable power
coupled with an interest, to transfer the exchanged Series B Preferred
Stock on the account books and records of the Company the shares of
Series B Preferred Stock tendered, consent to and approve the Proposed
Amendments on your behalf, and to do and perform each and every act and
thing whether necessary or desirable to be done, as fully as you might or could
do if personally present at a meeting of stockholders of the Company or
otherwise.
4. No
Partial Exchange Accepted. If fewer than all the
shares represented by any certificate of Series B Preferred Stock delivered
to the Company presented for exchange or if fewer than all of the shares of
Preferred Stock owned by a Holder are exchanged, the Company will be entitled to
reject in its entirety any exchange requested by such Holder. All Series B
Preferred Stock represented by certificates delivered to the Company will be
deemed to have been tendered.
5. Signatures
on this Consent and Consent; Stock Powers and
Endorsements. If this Letter of Transmittal and
Consent is signed by the registered Holder(s) of the shares of Series B
Preferred Stock referred to herein, the signature(s) must correspond with the
name(s) as written on the face of the share certificates without alteration,
enlargement or any change whatsoever.
If
any of the shares of Series B Preferred Stock exchanged are held of record
by two or more persons, all such persons must sign the Letter of Transmittal and
Consent.
If
any of the shares of Series B Preferred Stock tendered are registered in
different names or different share certificates, it will be necessary to
complete, sign and submit as many separate Letters of Transmittals and Consents
as there are different registrations or share certificates.
The
Holder must either properly endorse the share certificates for shares of
Series B Preferred Stock exchanged or transmit a separate properly
completed stock power with this Letter of Transmittal and Consent, in either
case, executed exactly as the name(s) of the Holder(s) appear(s) on such shares
of Series B Preferred Stock, with the signature on the endorsement or stock
power guaranteed by an Eligible Institution, unless such certificates or stock
powers are executed by an Eligible Institution. See Instruction 1.
If
this Letter of Transmittal and Consent is signed by a person other than the
registered Holder(s) of the Series B Preferred Stock tendered hereby,
certificates must be endorsed or accompanied by appropriate stock powers, in
either case, signed exactly as the name(s) of the registered Holder(s) appear(s)
on the certificates for such Series B Preferred Stock.
If
either the Letter of Transmittal and Consent or any certificate or stock power
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Company and the Depositary of the authority of such persons
to act must be submitted.
Endorsements
on share certificates for Series B Preferred Stock and signatures on stock
powers provided in accordance with this Instruction 5 by Holders not
executing this Letter of Transmittal and Consent must be guaranteed by an
Eligible Institution. See Instruction 1.
6. Special
Issuance and Special Delivery Instructions.
Holders submitting their shares for exchange should indicate in the applicable
box or boxes the name and address to which the shares of Series C Preferred
Stock are to be issued or sent, if different from the name and address of the
Holder signing this Letter of Transmittal and Consent. In the case of issuance
in a different name, the taxpayer identification or social security number of
the person named must also be indicated. If no instructions are given, the
shares of Series C Preferred Stock will be returned to the Holder of the shares
of Series B Preferred Stock exchanged.
7. Transfer
Taxes. The Company will pay all transfer taxes, if
any, applicable for the exchange of the Preferred
Stock.
8. Requests for
Assistance or Additional Copies. Any questions or
requests for assistance and additional copies of the Term Sheet, this Letter of
Transmittal and Consent or other information concerning the exchange of the
Series B Preferred should be directed to the Company at PO Box 49376, Sarasota,
Fl 34230, (941) 870-3950.
9. Irregularities. All
questions as to the form of documents and the validity, eligibility (including
the time of receipt), acceptance for the exchange of the Series B Preferred
Stock will be determined by the Company, in its sole discretion, and its
determination will be final and binding. The Company reserves the absolute right
to reject any and all exchange of Series B Preferred Stock that it shall
determine are not in proper form or the acceptance of or purchase for which may,
in the opinion of the Company's counsel, be unlawful. The Company also reserves
the absolute right to waive any defect or irregularity in any exchange of any
shares of Series B Preferred Stock. No exchange of shares of Series B
Preferred Stock will be deemed to have been made until all defects and
irregularities in the exchange of such shares have been cured or waived. Neither
the Company nor any other person authorized to act on behalf of the Company will
be under any duty to give notice of any defect or irregularity in exchanges of
shares of Series B Preferred Stock, nor shall any of them incur any
liability for failure to give any such notice. The Company's interpretation of
the terms of conditions of the Terms of Exchange and Letter of Transmittal and
Consent will be final and binding.
10. Inadequate
Space. If the space provided in the above
"Description of Series B Preferred Stock" box is inadequate, the number of
shares of Series B Preferred Stock and any other required information
should be listed on a separate signed schedule and attached to this Letter of
Transmittal and Consent.
11. Lost,
Destroyed or Stolen Certificates. If any
certificate(s) representing shares of Series B Preferred Stock have been
lost, stolen or destroyed, please contact the Company at PO Box 49376, Sarasota,
Fl 34230, (941) 870-3950. The Holder may need to complete an Affidavit of Loss
with respect to the lost certificate(s) (which will be provided by the Company)
and payment of an indemnity bond premium fee may be required.
Any
questions and requests for assistance may be directed to the Company at the
address and telephone numbers set forth below. Additional copies of the Term
Sheet and the Letter of Transmittal and Consent may be obtained from the Company
at PO Box 49376, Sarasota, Fl 34230, (941) 870-3950..