"Agreement") between the entities listed on
Holdings (collectively referred to as the "Investor"), and TCPI, Inc., a
corporation organized and existing under the laws of the State of Florida (the
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase up to Ten
Million dollars ($10,000,000) of Debentures for a total purchase price of Ten
Million dollars ($10,000,000); and
WHEREAS, such investments will be made in reliance upon the provisions
of Section 4(2) ("Section 4(2)") and the Regulation D ("Regulation D") of the
Securities Act of 1933, as amended, and the regulations promulgated there under
(the "Securities Ac"), and 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 investments in the Debentures to be made hereunder; and
NOW, THEREFORE, the parties hereto agree as follows:
Section 1.1 "Advance" shall mean each occasion the Company elects to
exercise its right to tender an Advance Notice requiring the Investor to advance
funds to the Company, subject to the terms of this Agreement.
Section 1.2 "Advance Date" shall mean the date on which funds are
disbursed to the Company No Advance Date shall be less than thirty five (35)
Calander Days after an Advance Notice Date
Section 1.3 "Advance Notice" shall mean a written notice to the
Investor setting forth the Advance Amount that the Company requests from the
Investor and Compliance Certification from the Company as attached hereto as
Section 1.4 "Bid Price" shall mean, on any date, the closing bid price
(as reported by Bloomberg L.P.) of the Common Stock on the Principal Market or
if the Common Stock is not traded on a Principal Market, the highest reported
bid price for the Common Stock, as furnished by the National Association of
Securities Dealers, Inc, for the five trading days immediately preceding such
Section 1.5 "Closing" shall mean one of the closings of a purchase and
sale of the Debentures pursuant to Section 2.1.
Section 1.6 "Commitment Amount" shall mean the $10,000,000 up to which
the Investor has agreed to provide to the Company in order to purchase the
Debentures pursuant to the terms and conditions of this Agreement.
Section 1.7 "Commitment Period" shall mean the period commencing on the
earlier to occur of the Effective Date, or (ii) such earlier date as the Company
and the Investor may mutually agree in writing, and expiring on the earliest to
occur of (x) the date on which the Investor shall have purchased Debentures
pursuant to this Agreement in the amount of at least $10,000,000 unless such
date is extended by the Investor, (y) the date this Agreement is terminated
pursuant to Section 2.4, or (z) September 1, 2003.
Section 1.8 "Common Stock" shall mean the Company's common stock, par
value $0.001 per share.
Section 1.9 "Condition Satisfaction Date" shall have the meaning set
forth in Section 7.2.
Section 1.10 "Damages" shall mean any loss, claim, damage, liability,
costs and expenses (including, without limitation, reasonable attorney's fees
and disbursements and costs and expenses of expert witnesses and investigation).
Section 1.11 "Debentures" shall mean the Debenture in the form of
Exhibit C annexed hereto.
Section 1.12 "Effective Date" shall mean the date on which the SEC
first declares effective a Registration Statement registering the resale of the
Registrable Securities as set forth in Section 7.2(a).
Section 1.13 "Escrow Agent" shall be First Union National Bank or its
Section 1.14 "Escrow Agreement" shall mean the document which is
annexed hereto and referenced in Section 7.2 Subparagraph J of this Agreement.
Section 1.15 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated there under.
Section 1.16 "Legend" shall mean that "legend" as set forth in Section
Section 1.17 "Material Adverse Effect" shall mean any effect on the
business, operations, properties, prospects, 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 to enter into and perform any of its obligations under this Agreement,
the Debenture, the Registration Rights Agreement or the Escrow Agreement in any
Section 1.18 "Maximum Advance Amount" on any Advance Date shall be
equal to the difference between (i) the amount indicated opposite the range of
the 30 Day Average Daily Trading Volume on such Advance Date, as set forth in
the table below and (ii) the sum of the Advances made pursuant to this
Agreement, in the 30 calendar days immediately preceding the Advance Notice:
30-Day Average Daily Trading (1) Maximum Advance Amount (2)
$25,000 - $50,000 $100,000
$50,001 - $100,000 $200,000
$100,001 - $200,000 $350,000
$200,001 - $300,000 $500,000
$1,000,000 and Over $2,000,000
(1) The 30-Day Average Trading Volume shall be equal to the average of the Bid
Price multiplied by the volume for each of the 30 calendar days preceding the
(2) Assuming that no Advances have been made pursuant to this Agreement during
the preceding 30 calendar days.
Section 1.19 "NASD" shall mean the National Association of Securities
Section 1.20 "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
Section 1.21 "Principal Market" shall mean the Nasdaq National Market,
the Nasdaq SmallCap Market, Bulletin Board, Over the Counter Market, the
American Stock Exchange or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common Stock.
Section 1.22 "Registrable Securities' shall mean the shares of Common
Stock (i) in respect of which the Registration Statement has not been declared
effective by the SEC, (ii) which have not been sold under circumstances under
which all of the applicable conditions of Rule 144 (or any similar provision
then in force) under the Securities Act ("Rule 144") are met or (iii) which have
not been otherwise transferred to holder who may trade such shares without
restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing a
Section 1.23 "Registration Rights Agreement" shall mean the agreement
regarding the filing of the Registration Statement for the resale of the