EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and
entered into as of this _22_ day of May, 2001 by and among Xxxxxxx & Xxxxxxxx
Co. AB, a Swedish corporation ("Xxxxxxx & Xxxxxxxx), Xxxxxx Xxxxxxxx, Jan
Jutander, and Xxxx Xxxxxxx, all of whom are citizens of Sweden (the "Individual
Sellers") (Xxxxxxx & Xxxxxxxx and the Individual Sellers hereinafter
collectively being referred to as the "Sellers"), Xxxxxx Xxxxxxx, Xxxxxx
Xxxxxxx, and the other parties identified on the signature page hereof as
purchasers (Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx and the other purchasers hereinafter
being referred to as the "Purchasers").
WHEREAS, Xxxxxxx & Xxxxxxxx owns 550,000 shares of common
stock of NDC Automation, Inc., a Delaware corporation ("NDCA"), which represents
approximately 15.3 % of the outstanding common stock of NDCA (the "Xxxxxxx &
Xxxxxxxx Share Interest");
WHEREAS, the Individual Shareholders each own 200,640 shares
of common stock of NDCA, for a collective ownership of 601,920 shares of common
stock of NDCA owned by the Individual Sellers (the "Individual Sellers' Share
Interest"), which represents approximately 16.8 % of the outstanding common
stock of NDCA;
WHEREAS, Xxxxxxx & Xxxxxxxx desires to sell the Xxxxxxx &
Xxxxxxxx Share Interest to the Purchasers at a price $.15 per share, and the
Purchasers desire to purchase such shares at such price; and
WHEREAS, the Individual Shareholders desire to sell the
Individual Sellers' Share Interest to the Purchasers at a price of $.10 per
share, and the Purchasers desire to purchase such shares at such price;
NOW, THEREFORE, in consideration of the premises, the mutual
promises set forth herein and other good and valuable consideration, the parties
hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
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By their execution hereof, the Sellers hereby agree to sell,
assign, and transfer to the Purchasers, and the Purchasers hereby agree to
purchase and acquire from the Sellers, the Xxxxxxx & Xxxxxxxx Share Interest at
a purchase price of $.15 per share and the Individual Sellers' Share Interest at
a purchase price of $.10 per share, in such proportion between the Purchasers as
set forth on Exhibit A hereto. Such purchase shall be effective as of the date
of payment by each of the Purchasers as set forth in Section 2 hereof. The
Sellers shall promptly deliver all certificates for the Xxxxxxx & Xxxxxxxx Share
Interest and the Individual Sellers' Share Interest (such shares hereinafter
collectively being referred to as the "Purchased Shares") to the law firm of
Xxxxxxxx, Loop & Xxxxxxxx, LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, for such firm to hold as escrow agent pursuant to the
terms and conditions of the form of Escrow Agreement attached hereto as Exhibit
B until completion of payment by each Purchaser with respect to the shares being
purchased by such Purchaser. The share certificates delivered by the Sellers
shall either be endorsed for transfer or accompanied by
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appropriate executed forms of stock powers. Sellers agree to execute such other
documents as reasonably requested by the Purchasers so as to transfer full
unencumbered legal ownership of the Purchased Shares to the Purchasers pursuant
to the terms and conditions hereof.
2. PAYMENT FOR THE PURCHASED SHARES.
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The Purchasers each agree to make such payments to the Sellers
for the Purchased Shares as set forth for each Purchaser on Exhibit A hereto,
with such payments to be made on or before June 1, 2001. Such payment
obligations of the Purchasers are the separate individual obligations of the
respective Purchasers and are not joint obligations of each Purchaser. In order
to secure such payment obligation of the Purchasers, the certificates for the
Purchased Shares shall be held in escrow as provided in Section 1 hereof.
Purchasers hereby agree that the Sellers shall have a security interest in the
Purchased Shares of each Purchaser to secure the separate payment obligation of
each such Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
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The Sellers each represent and warrant, jointly and severally,
to the Purchasers and covenant and agree with the Purchasers as follows:
3.1 Ownership of Shares. Each Seller owns and holds,
beneficially and of record, the entire right, title and interest in and to the
shares identified on Exhibit A hereto as being sold by such Seller, in each case
free and clear of any claim, suit, proceeding, call, commitment, voting trust,
proxy, restriction on transfer, limitation, security interest, pledge or lien or
encumbrance of any kind or nature whatsoever.
3.2 Authorization; Valid and Binding Obligation. Each Seller
has the authority to execute and deliver this Agreement and to perform its or
his obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each Seller and
constitutes the valid and legally binding obligation of each Seller enforceable
against it or him in accordance with its terms.
3.3 Consents and Approvals. There are no authorizations,
consents, approvals or notices required to be obtained or given by the Sellers
or waiting periods required to expire in order that this Agreement and the
transactions provided for herein may be consummated by the Sellers.
3.4. Absence of Broker or Finder. No person is acting or has
acted for the Sellers as broker or finder in connection with the transaction
contemplated hereby.
3.5 Voting, Dividends and Other Rights as Shareholders. The
Sellers agree that the Purchasers shall have full beneficial ownership of the
Purchased Shares while the Purchased Shares are being held in escrow pursuant to
the terms and conditions of the Escrow Agreement attached hereto as Exhibit B.
Pending a distribution of the Purchased Shares by the Escrow Agent pursuant to
the terms and conditions of the Escrow Agreement, the Sellers agree to vote
their respective Purchased Shares and to execute any written consents with
respect to the
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Purchased Shares only as requested by the Purchasers in writing and to deliver
any dividends or distributions on the Purchased Shares to the Escrow Agent for
the Escrow Agent to hold along with the Purchased Shares pursuant to the terms
and conditions of the Escrow Agreement.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS.
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The Purchasers each represent and warrant to the Sellers and
covenant and agree with the Sellers as follows:
4.1 Authorization; Valid and Binding Obligation. This
Agreement has been duly executed and delivered by the Purchasers and constitutes
the legal, valid and binding obligation of each Purchaser enforceable against
them in accordance with its terms.
4.2 Investment and Financial Capacity.
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(a) The Purchasers acknowledge that no registration statement
relating to the Purchased Shares has been or shall be filed with the United
States Securities and Exchange Commission under the Securities Act of 1933, as
amended, or the securities laws of any state. The Purchasers acknowledge that
the certificates for the Purchased Shares will be marked with a legend to the
effect that the shares have not been registered under applicable securities laws
and may not be sold, transferred, pledged or hypothecated unless the
registration provisions of said laws have been complied with or unless NDCA has
received an opinion of counsel reasonably satisfactory to it that such
registration is not required.
(b) The Purchased Shares will be acquired solely by and for
the account of the Purchasers for investment purposes only and are not being
purchased for subdivision, resale, or distribution. The Purchasers have no
contract, undertaking, agreement, or arrangement with any person to sell,
transfer, or pledge the Purchased Shares to such person or anyone else and the
Purchasers have no present plans or intentions to enter into any such contract,
undertaking or arrangement.
(c) The Purchasers are represented in this purchase
transaction by Xxxxxx Xxxxxxx, President and Chief Executive Officer of NDCA,
and by Xxxxxx Xxxxxxx, Executive Vice President, Officer of NDCA. The
Purchasers, either directly or though such representatives, are knowledgeable as
to the business and affairs of NDCA and the risks and uncertainties of an
investment in the Purchased Shares. The Purchasers, either directly or through
their representatives, have such knowledge and experience in financial and
business matters in general and in investments in the nature of the Purchased
Shares to fairly evaluate the merits and risks of an investment in NDCA. The
Purchasers' financial condition is such that they have no need for liquidity
with respect to their investment in NDCA and are able to bear the economic risk
of their investment in NDCA for an indefinite period of time, including the risk
of loss of all of such investment.
4.3 Consents and Approvals. There are no authorizations,
consents, approvals or notices required to be obtained or given by the
Purchasers or waiting periods required to
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expire in order that this Agreement and the transactions provided for herein may
be consummated by the Purchasers.
4.4 Absence of Broker or Finder. No person is acting or has
acted for the Purchasers as broker or finder in connection with the transactions
contemplated hereby.
5. CONDITIONS TO OBLIGATIONS OF PURCHASERS.
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The obligations of each of the Purchasers under this Agreement
are subject to the satisfaction of the following conditions, or the written
waiver thereof by all of the Purchasers, on or before June 1, 2001. In the event
that any of the following conditions have neither been satisfied nor waived by
the Purchasers by the close of business of June 1, 2001, this Agreement shall
terminate as of such date.
5.1 Availability of Financing. The purchase obligation of each
Purchaser hereunder is subject to the condition that financing is available for
such purchase on terms satisfactory to the respective Purchasers in the exercise
of their reasonable judgment. The Purchasers agree to use their best efforts to
obtain such financing as is necessary to complete their respective purchase
transactions hereunder on terms satisfactory to them.
5.2 Approval of Transaction by NDCA. The obligations of the
Purchasers hereunder are subject to the condition that the Board of Directors of
NDCA shall have approved the acquisition of the Purchased Shares by the
Purchasers on the terms set forth herein. The Purchasers agree to use their best
efforts to obtain such approval by the Board of Directors of NDCA.
5.3 Participation by All Purchasers. The purchase obligation
of each Purchaser hereunder is subject to the condition that, simultaneous with
the closing of the purchase transaction by such Purchaser, all of the other
Purchasers shall also be closing on their respective acquisitions of the
Purchased Shares as described on Exhibit A hereto.
6. FURTHER ASSURANCES.
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Each party shall, upon request of any of the other parties
hereto, at any time and from time to time execute, acknowledge, deliver and
perform all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and instruments of further assurances as may reasonably be
necessary or appropriate to carry out the provisions and intent of this
Agreement.
7. MISCELLANEOUS.
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7.1 Governing Law. This Agreement shall be governed by the
laws of the Sate of North Carolina without regard to its conflicts of laws
provisions.
7.2 Counterparts/Use of Facsimiles. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall
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constitute a single agreement. The reproduction of signatures by means of
telecopying device shall be treated as through such reproductions are executed
originals and each party hereto covenants and agrees to provide the other
parties with a copy of this Agreement bearing original signatures within five
days following transmittal by facsimile.
7.3 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto respecting its subject matter and supersedes all
negotiations, preliminary agreements and prior or contemporaneous discussions
and understandings of the parties hereto in connection with the subject matter
hereof. This Agreement may be amended, modified, or supplemented only by a
writing signed by the party to be bound by any additional obligation under the
amendment, modification or supplement or to be affected thereby.
7.4 No Waiver of Rights. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence of any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
7.5 Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable so as to most
nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
7.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrations,
successors and assigns of the parties hereto.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed as of the date first above written.
SELLERS PURCHASERS
XXXXXXX & XXXXXXXX CO., AB /s/ Xxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Title: President
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Print Name: Xxxxx Xxxxxxx /s/Rose Xxxx Xxxxxxx
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Rose Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxx /s/ Rose Xxxx Xxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx, a minor, by
Rose Xxxx Xxxxxxx, custodian under the
North Carolina Uniform Transfers to
Minors Act
/s/ Jan Jutander /s/ Rose Xxxx Xxxxxxx
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Jan Jutander Xxxxxxx Xxxxxxx, a minor, by
Rose Xxxx Xxxxxxx, custodian under the
North Carolina Uniform Transfers to
Minors Act
/s/ Xxxx Xxxxxxx Xxxx Xxxxx Xxxx Xxxxxx
------------------------------ Custodian FBO
Xxxx Xxxxxxx Xxxxxx Xxxxxxx individual XXX account
By: /s/ Xxxxxx Xxxxxxx
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Title or
Authority: Trustee
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Print Name: Xxxxxx Xxxxxxx
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Xxxx Xxxxx Xxxx Xxxxxx
Custodian FBO
Rose Xxxx Xxxxxxx individual XXX account
By: /s/ Rose Xxxx Xxxxxxx
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Title or
Authority: Trustee
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Print Name: Rose Xxxx Xxxxxxx
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