EXECUTION COPY
STOCK PURCHASE AGREEMENT, dated as of June 18, 2003 (this
"Agreement"), by and between Hewlett-Packard Financial Services Company, a
Delaware corporation ("HPFS") and Atlantic Investors, LLC, a Delaware limited
liability company ("Atlantic").
WHEREAS, Atlantic and HPFS have each determined that the
transactions contemplated by this Agreement, on the terms and conditions of this
Agreement, would be advantageous and beneficial to their respective companies,
shareholders (in the case of HPFS) and members (in the case of Atlantic).
WHEREAS, the parties hereto desire to consummate the
transactions contemplated herein, pursuant to which (a) HPFS will transfer to
Atlantic, 47,168 shares, (collectively, the "NaviSite Shares") of Common Stock,
par value $0.01 per share, of NaviSite, Inc., a Delaware corporation
("NaviSite") owned by HPFS, (b) HPFS will transfer to Atlantic 260,786 shares
(collectively, the "CBT Shares"; together with the NaviSite Shares, the
"Shares") of Common Stock, par value $0.01 per share of ClearBlue Technologies,
Inc., a Delaware corporation ("ClearBlue") owned by HPFS, and (c) Atlantic will
issue to HPFS a 8% promissory note in the original principal amount of
$880,000.00 due 2008, substantially in the form attached hereto as Exhibit I
(the "Note").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used herein, the following terms shall have
the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations issued in respect thereto.
"Encumbrance" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Law" means any law, statute, regulation, rule, ordinance,
requirement or other binding action or requirement of any governmental,
regulatory or administrative body, agency or authority or any court of judicial
authority.
"Order" means any decree, order, judgment, writ, award,
injunction, stipulation or consent of or by any Federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign.
"Person" means any individual, corporation, general or limited
partnership, joint venture, association, limited liability company, joint stock
company, trust, business, bank, trust company, estate (including any
beneficiaries thereof), unincorporated entity, cooperative, association,
government branch, agency or political subdivision thereof or organization of
any kind.
"Transaction Documents" means any ancillary contracts,
agreements or other documents that are to be entered into in connection with the
transactions contemplated hereby (including, without limitation, the Note).
ARTICLE II
Exchange of Stock and Note
SECTION 2.1. Exchange. Subject to the terms and conditions of this
Agreement, at the Closing, HPFS agrees to transfer to Atlantic the Shares, and
Atlantic agrees to issue to HPFS the Note.
SECTION 2.2. The Closing.
(a) Subject to the terms and conditions of this Agreement, the closing of
the transactions contemplated by this Agreement (the "Closing") shall
take place as promptly as possible but no later than the fifth business
day following the day the last of the conditions set forth in Article V
shall have been fulfilled or waived (other than those that this
Agreement contemplates will be satisfied at or immediately prior to the
Closing), or at such other time as shall be mutually agreed upon by
HPFS and Atlantic (the "Closing Date").
(b) Subject to the conditions set forth in this Agreement, the parties
agree to consummate the following transactions at the Closing:
(i) Atlantic shall deliver an executed original of the Note
to HPFS; and
(ii) HPFS shall assign and transfer to Atlantic the Shares, by
physically delivering to Atlantic two or more stock certificates
representing the Shares being sold, duly endorsed or accompanied
by duly executed stock powers sufficient to validly transfer such
Shares to Atlantic or its nominee.
ARTICLE III
Representations and Warranties of HPFS
HPFS represents and warrants to Atlantic that the statements
contained in this Article III are true and correct as of the date of this
Agreement and will be true and correct as of the Closing as though made as of
the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties will be true and correct as of such date).
SECTION 3.1. Power and Authority; Enforceability. HPFS is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. HPFS has all requisite capacity, power and
authority to execute, deliver and perform this Agreement. No other corporate
action on the part of HPFS is necessary to authorize the execution and delivery
by HPFS of this Agreement or the consummation by it of the Contemplated
Transactions (as defined below). This Agreement has been duly executed and
delivered and, upon execution by Atlantic, will constitute a valid and legally
binding obligation of HPFS, enforceable against HPFS in accordance with its
terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (b) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
SECTION 3.2. Ownership; Transferability. HPFS is the legal and beneficial owner
of the Shares, free and clear of any Encumbrance or restriction on transfer,
other than (i) restrictions under the Act, (ii) restrictions reflected in a
legend on the certificates representing the Shares, (iii) restrictions under
that certain Shareholders Agreement dated September 11, 2002, by and among HPFS,
ClearBlue Atlantic, LLC, a Delaware limited liability company ("CBA"), ClearBlue
and CMGI, Inc. (the "ClearBlue Shareholders Agreement"), and (iv) restrictions
under that certain Shareholders Agreement dated February 19, 2003, by and among
HPFS and CBA (the "NaviSite Shareholders Agreement").
SECTION 3.3. Consents and Approvals. Neither the execution, delivery and
performance of this Agreement by HPFS, nor the consummation by HPFS of any
transaction related hereto, including the transfer, sale and delivery of the
Shares, will require any consent, approval, license, Order or authorization of,
filing, registration, declaration or taking of any other action with, or notice
to, any Person, other than such consents, approvals, filings or actions as may
be required under (a) the Federal securities laws which have or will be made,
(b) the NaviSite Shareholders Agreement, and (c) the ClearBlue Shareholders
Agreement.
SECTION 3.4. No Conflicts. The execution and delivery by HPFS of this Agreement
and the Transaction Documents to which it is or will become a party do not, and
the consummation of the transactions contemplated by this Agreement and the
Transaction Documents to which it is or will become a party (the "Contemplated
Transactions") shall not, assuming the consents, approvals, filings or actions
described in Section 3.3 are made or obtained, as the case may be, (a)
contravene, conflict with, or result in any violation or breach of any provision
of the certificate of incorporation or by-laws of HPFS, (b) result in any
violation or breach of, or constitute (with or without notice or lapse of time,
or both) a default (or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, contract
or other agreement, instrument or obligation to which HPFS is a party or by
which it or any of its properties or assets may be bound, or (c) conflict or
violate any permit, concession, franchise, license, judgment, Order, decree,
statute, law, ordinance, rule or regulation of any government, governmental
instrumentality or court, domestic or foreign, applicable to HPFS or any of its
properties or assets, except in the case of (b) and (c) for any such conflicts,
violations, defaults, terminations, cancellations or accelerations which would
not, individually or in the aggregate, materially and adversely affect the
Shares being conveyed by HPFS to Atlantic.
SECTION 3.5. Brokers, etc. HPFS is not obligated to pay any fee or commission to
any broker, finder or other similar Person in connection with the transactions
contemplated by this Agreement (other than any fees or commissions that are
solely for the account of HPFS).
SECTION 3.6. NaviSite Non-Public Information. HPFS acknowledges that it is aware
that Atlantic may have material non-public information concerning NaviSite and
ClearBlue as Atlantic is the indirect controlling shareholder of each of
NaviSite and ClearBlue.
ARTICLE IV
Representations and Warranties of Atlantic
Atlantic represents and warrants to HPFS that the statements
contained in this Article IV are true and correct as of the date of this
Agreement and will be true and correct as of the Closing as though made as of
the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties will be true and correct as of such date).
SECTION 4.1. Existence; Power and Authority. Atlantic is a limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of formation. Atlantic has the requisite limited liability
company power and authority to execute, deliver and perform this Agreement. The
execution, delivery and performance by Atlantic of this Agreement and the
consummation by it of the Contemplated Transactions have been duly authorized by
the Managing Member of Atlantic, and no other company action on the part of
Atlantic is necessary to authorize the execution and delivery by Atlantic of
this Agreement or the consummation by it of the Contemplated Transactions. This
Agreement has been duly executed and delivered and, upon execution by HPFS, will
constitute a valid and legally binding obligation of Atlantic, enforceable
against Atlantic in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and (b)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION 4.2. Authorization of the Note. The Note has been duly authorized and
when issued, will be the legal, valid and binding obligation of Atlantic,
enforceable against Atlantic in accordance with its terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
of general application affecting enforcement of creditors' rights generally and
(b) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION 4.3. Purchase Entirely for Own Account.
(a) The Shares to be received by Atlantic will be acquired for investment for
its own account, and not with a view to the resale or distribution of any part
thereof.
(b) Atlantic has no present intention of selling, granting any participation in,
or otherwise distributing the Shares, except, in the case of (a) and (b) of this
Section 4.3, as permitted by the Act.
(c) Atlantic is an "accredited investor" under Rule 501(a) promulgated
under the Securities Act of 1933, as amended.
SECTION 4.4. Restricted Securities. Atlantic understands that the Shares are
characterized as "restricted securities" under the Federal securities laws and
that under such laws and applicable regulations such securities may be resold
without registration under the Act only in certain limited circumstances.
SECTION 4.5. Legends. It is understood that the certificate(s) evidencing the
Shares shall bear a legend substantially in the form below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR WITH ANY STATE
SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR DISPOSED OF BY THE
HOLDER IN THE ABSENCE OF A REGISTRATION STATEMENT WHICH IS EFFECTIVE
UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE LAWS AND RULES OR
UNLESS SUCH TRANSFER MAY BE EFFECTED WITHOUT VIOLATION OF THE
SECURITIES ACT OF 1933 AND OTHER APPLICABLE STATE LAWS AND RULES.
SECTION 4.6. No Conflicts.
(a) The execution and delivery by Atlantic of this Agreement and the Transaction
Documents to which it is or will become a party does not, and the consummation
of the Contemplated Transactions shall not, (a) contravene, conflict with, or
result in any violation or breach of any provision of the operating agreement of
Atlantic, (b) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which Atlantic is a party or by which it or any of its properties
or assets may be bound, or (c) conflict or violate any permit, concession,
franchise, license, judgment, Order, decree, statute, law, ordinance, rule or
regulation of any government, governmental instrumentality or court, domestic or
foreign, applicable to Atlantic or any of its properties or assets, except in
the case of (b) and (c) for any such conflicts, violations, defaults,
terminations, cancellations or accelerations which would not, individually or in
the aggregate, materially and adversely affect the Note being issued by Atlantic
to HPFS.
(b) Atlantic is not nor will it be required to give any notice to or obtain any
consent from any person or governmental entity in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
SECTION 4.7. Brokers' Fees. Atlantic has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement (other than any fees or commissions
that are solely for the account of Atlantic).
SECTION 4.8. Non-Public Information. Atlantic acknowledges that it is aware that
HPFS may have material non-public information concerning NaviSite and ClearBlue
as HPFS is a shareholder of each of NaviSite and ClearBlue.
ARTICLE V
Conditions Precedent; Related Covenants
SECTION 5.1. Closing Efforts. Each of the parties hereto shall use its
commercially reasonable efforts ("Reasonable Efforts") to take all actions and
to do all things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement, including using its Reasonable Efforts to ensure
that (i) its representations and warranties remain true and correct in all
material respects through the Closing Date, and (ii) the conditions to the
obligations of the other parties to consummate the transaction are satisfied.
SECTION 5.2. Conditions Precedent to Obligations of Atlantic. The obligation of
Atlantic to purchase the Shares and issue the Note at the Closing is subject to
the fulfillment of the condition that, at the Closing, the representations and
warranties of HPFS set forth in this Agreement that are qualified as to
materiality shall be true and correct in all respects, and all other
representations and warranties of HPFS set forth in this Agreement shall be true
and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing as though made as of the Closing, except to the
extent such representations and warranties are specifically made as of a
particular date (in which case such representations and warranties shall be true
and correct as of such date).
SECTION 5.3. Conditions Precedent to Obligations of HPFS. The obligation of HPFS
to sell the Shares at the Closing is subject to the fulfillment of the condition
that, at the Closing, the representations and warranties of Atlantic set forth
in this Agreement that are qualified as to materiality shall be true and correct
in all respects, and all other representations and warranties of Atlantic set
forth in this Agreement shall be true and correct in all material respects, in
each case as of the date of this Agreement and as of the Closing as though made
as of the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties shall be true and correct as of such date).
SECTION 5.4. Conditions Precedent to Obligations of Atlantic and HPFS. The
obligation of Atlantic and HPFS to consummate the Contemplated Transactions at
the Closing shall also be subject to the fulfillment of the following
conditions:
(a) Waiver by ClearBlue. The parties shall have received evidence of the waiver
of ClearBlue's right of first refusal with respect to the ClearBlue Shares under
the ClearBlue Shareholders Agreement.
(b) Waiver by CBA. The parties shall have received evidence of the waiver of
CBA's right of first refusal with respect to the NaviSite Shares under the
NaviSite Shareholders Agreement.
ARTICLE VI
Termination
SECTION 6.1. Termination by Mutual Consent. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any time
prior to the Closing by the written consent of each party hereto.
SECTION 6.2. Termination by either HPFS or Atlantic. This Agreement may be
terminated (upon written notice from the terminating party hereto to the other
party hereto) and the transactions contemplated hereby may be abandoned by
action of any party hereto, if (a) the Closing shall not have occurred on or
prior to June 30, 2003, or (b) any Federal, state or local government or any
court, administrative agency or commission or other governmental authority or
agency, domestic or foreign shall have issued a Law or Order permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated
hereby and such Law or Order shall have become final and nonappealable.
SECTION 6.3. Effect of Termination and Abandonment. In the event of termination
of this Agreement pursuant to this Article VI hereof, no party hereto or, its
directors or officers or other controlling persons shall have any liability or
further obligation to any other party hereto pursuant to this Agreement, except
that Article VIII hereof shall survive termination of this Agreement and nothing
herein will relieve any party hereto from liability for any breach of this
Agreement occurring prior to such termination.
ARTICLE VII
RESERVED
ARTICLE VIII
General Provisions; Other Agreements
SECTION 8.1. Press Releases. Other than any required filings under the Federal
securities laws, none of the parties hereto will, without first obtaining the
approval of the other, make any public announcement, directly or indirectly,
regarding this Agreement, nor the nature of the transaction contemplated by this
Agreement, to any person except as required by law or regulatory bodies and
other than to the respective principals or other representatives of the Parties,
each of whom shall be similarly bound by such confidentiality obligations. If
any such press release or public announcement is so required by either party
(except in the case of any disclosure required under the Federal securities laws
to be made in a filing with the Securities and Exchange Commission), the
disclosing party shall consult with the other parties prior to making such
disclosure, and the parties shall use all reasonable efforts, acting in good
faith, to agree upon a text for such disclosure which is satisfactory to each of
the parties.
SECTION 8.2. Expenses. Regardless of whether the transactions contemplated
hereby are consummated, all legal and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party hereto incurring such costs and expenses.
SECTION 8.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
SECTION 8.4. Headings. Article and Section headings used in this Agreement are
for convenience only and shall not affect the meaning or construction of this
Agreement.
SECTION 8.5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements and
understandings, both written and oral, with respect to the subject matter
hereof.
SECTION 8.6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures on this
Agreement may be communicated by facsimile transmission and shall be binding
upon the parties hereto so transmitting their signatures. Counterparts with
original signatures shall be provided to the other parties hereto following the
applicable facsimile transmission; provided that the failure to provide the
original counterpart shall have no effect on the validity or the binding nature
of this Agreement.
SECTION 8.7. Amendment. Any term of this Agreement may be modified or amended
only by an instrument in writing signed by each of the parties hereto.
SECTION 8.8. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforced in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed and delivered as of the date set forth
above.
HEWLETT-PACKARD FINANCIAL
SERVICES COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
By:____________________________
Name:
Title:
ATLANTIC INVESTORS, LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: Madison Technology LLC, its Managing Member
By: _______________________________
Name: Xxxxxx Xxxxxx
Title: Managing Member
