EXHIBIT 99.23
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated as of October
11, 2001, is entered into by and between Xxxx X. XxXxxx ("Purchaser"), and Xxxx
Cablesystems Company ("Seller").
WHEREAS, Seller owns an aggregate of 52,914 shares of the common stock,
par value $0.01 per share (the "Common Stock"), of TippingPoint Technologies,
Inc. f/k/a Netpliance, Inc. (the "Company");
WHEREAS, Seller has offered for sale, and Purchaser has agreed to
purchase, 52,914 shares (the "Shares") of the Common Stock owned by Seller on
the terms and conditions set forth below.
NOW THEREFORE, the parties hereby agree as follows:
1. Purchase and Sale of Shares. Upon the basis of the representations
and warranties and subject to the terms and conditions set forth herein, Seller
agrees to sell all of the Shares to Purchaser on the Closing Date (as
hereinafter defined) at a price of $6.60 per Share, or an aggregate of
$349,232.40 (the "Purchase Price"), and upon the basis of the representations
and warranties, and subject to the terms and conditions, set forth herein,
Purchaser agrees to purchase the Shares from Seller on the Closing Date at the
Purchase Price.
2. Closing. The closing of the purchase and sale of the Shares shall
take place as soon as practicable but in no event later than October 25, 2001,
at the offices of Company, or on such other date or at such other time or place
as Seller and Purchaser may agree upon (such time and date of the closing being
referred to herein as the "Closing Date") unless this Agreement is earlier
terminated pursuant to Section 6 below. Upon payment of the Purchase Price in
full by delivery, Seller will deliver to Purchaser a certificate or certificates
representing the Shares, duly endorsed to Purchaser or accompanied by stock
powers duly executed by Seller, in form and substance reasonably satisfactory to
Purchaser. After the Closing, Seller agrees to use reasonable efforts, and to
cooperate with Purchaser, to cause any certificate or certificates representing
the Shares to be transferred into the name of Purchaser.
3. Representations and Warranties of Seller. Seller represents and
warrants, as of the date hereof and as of the Closing Date, as follows:
(a) Seller has good and marketable title to the Shares, free and clear
of all liens, claims, security interests and encumbrances of any nature. Upon
delivery hereunder by Seller to Purchaser of the certificates evidencing the
Shares and upon payment by Purchaser to Seller of the Purchase Price therefor,
Purchaser will acquire good and marketable to the Shares, free and clear of all
liens, claims, security interests and encumbrances of any nature except those
created by Purchaser.
(b) Seller does not have any right, title or ownership interest in the
Common Stock other than the Shares to be sold to Purchaser hereunder.
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(c) The sale of the Shares hereunder will not, with or without the
giving of notice or the lapse of time, or both, (i) to Seller's knowledge,
violate any provision of law, statute, rule or regulation to which Seller is
subject, (ii) violate any order, judgment or decree applicable to Seller, or
(iii) conflict with, or result in a breach or default under, any term or
condition of any agreement or other instrument to which Seller is a party or by
which Seller is bound.
4. Representations and Warranties of Purchaser. Purchaser represents
and warrants that:
(a) Purchaser understands that the sale of the Shares hereunder has not
been registered under the Securities Act of 1933, as amended (the "Act"), based
on the exemption from registration provided by Section 4(1) of the Act, and that
Seller's reliance on such exemption depends in part on Purchaser's
representations and warranties in this Agreement.
(b) Purchaser is purchasing the Shares for investment for his own
account and not with a view to the distribution thereof except in compliance
with the Act and applicable state securities laws; provided, that Purchaser may
at any time sell or otherwise dispose of all or any part of the Shares by
registration under the Act and applicable state securities laws or pursuant to
an exemption from such registration available thereunder. Purchaser will not
sell or otherwise transfer any interest in the Shares except in compliance with
the registration requirements, or an exemption therefrom, of the Act and
applicable state securities laws.
(c) Purchaser is an "accredited investor," as such term is defined in
Rule 501(a) under the Act, who by reason of his business and financial
experience has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of an investment in the
Shares. Purchaser has had the opportunity to ask questions of, and receive
answers from, the Company and its officers and agents and has received all
information concerning the Company that he has reasonably requested in
connection with his purchase of the Shares.
(d) The purchase of the Shares hereunder will not, with or without the
giving of notice or the lapse of time, or both, (i) to Purchaser's knowledge,
violate any provision of law, statute, rule or regulation to which Purchaser is
subject, (ii) violate any order, judgment or decree applicable to Purchaser, or
(iii) conflict with, or result in a breach or default under, any term or
condition of any agreement or other instrument to which Purchaser is a party or
by which he is bound.
(e) Purchaser understands that the Shares constitute "restricted
securities" within the meaning of Rule 144 under the Act and may not be sold,
pledged or otherwise disposed of unless they are subsequently registered under
the Act and applicable state securities laws or unless an exemption from
registration is available.
(f) Purchaser understands that no federal or state or other
governmental agency has passed upon or made any recommendation or endorsement
with respect to the Shares.
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(g) Purchaser understands that any certificates evidencing the Shares
will bear substantially the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION."
5. Conditions to Closing.
(a) The obligation of Purchaser to purchase the Shares under this
Agreement is subject to the following conditions: (i) no preliminary or
permanent injunction or other decree or ruling issued by a court of competent
jurisdiction in the United States or Canada is in effect that would prevent the
sale or purchase of the Shares, (ii) the representations and warranties of
Seller shall be true and correct as of the date hereof and true and correct at
the time of the Closing Date as if made on and as of such time, and (iii) Seller
shall have performed its obligations hereunder in all material respects.
(b) The obligation of Seller to sell the Shares under this Agreement
is subject to the following conditions: (i) no preliminary or permanent
injunction or other decree or ruling issued by a court of competent jurisdiction
in the United States or Canada is in effect that would prevent the sale or
purchase of the Shares, (ii) the representations and warranties of Purchaser
shall be true and correct as of the date hereof and true and correct at the time
of the Closing Date as if made on and as of such time, and (iii) Purchaser shall
have performed its obligations hereunder in all material respects.
6. Termination.
(a) This Agreement may be terminated prior to the Closing Date:
(i) by either Purchaser or Seller in the event of a breach
by the other party of any representation, warranty, covenant or
other agreement contained in this Agreement which (A) would give
rise to the failure of a condition set forth in Section 5, as
applicable, and (B) cannot be or has not been cured on or before
the Termination Date (as defined below) after the giving of
prompt written notice to the breaching party of such breach (a
"Material Breach") (provided that the terminating party is not
then in Material Breach of any representation, warranty, covenant
or other agreement contained in this Agreement); or
(ii) if the Closing Date has not occurred on or before 5:00
p.m., Austin, Texas time, on October 25, 2001 (the "Termination
Date"); provided that the right to terminate this Agreement under
this clause (ii) shall not be available to
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a party whose breach of this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such
date.
(b) Termination of this Agreement pursuant to Section 6(a) shall
terminate all rights and obligations of the parties hereunder and neither party
shall have any liability to the other party hereunder; provided that this
Section 6 and Sections 7, 8, and 9 shall remain in effect; and provided further
that termination of this Agreement shall not relieve any party from liability
for any breach of this Agreement by such party prior to such termination.
7. Survival of Representations and Warranties. The respective
agreements, representations, warranties and other statements made by or on
behalf of each party hereto pursuant to this Agreement shall remain in full
force and effect, regardless of any investigation made by or on behalf of any
party, and shall survive delivery of any payment for the Shares.
8. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, and
such counterparts shall constitute but one and the same agreement.
(b) All notices hereunder will be deemed given at the earlier of when
actually received or three days after being deposited in the mails, return
receipt requested, (a) to Purchaser at TippingPoint Technologies, Inc., 0000X
Xxxxx Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (b) to Seller at Xxxx
Communications Inc., Xxxxx 000, 000 0/xx/ Xxxxxx, XX, Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0.
(c) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors, and no other person shall
have any right or obligation hereunder. This Agreement shall not be assignable
by any party hereto without the prior written consent of the other party hereto.
Any assignment contrary to the terms hereof shall be null and void and of no
force or effect.
(d) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior agreements or
understandings, whether written or oral, between the parties respecting such
subject matter.
9. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
TEXAS.
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IN WITNESSES WHEREOF, the parties have entered into this Agreement as
of the date first set forth above.
SELLER:
XXXX CABLESYSTEMS COMPANY
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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By: /s/ XXXXX X. XXXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxxx
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Title: President
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PURCHASER:
/s/ XXXX X. XXXXXX
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Xxxx X. XxXxxx
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