EXHIBIT 10.17
STOCK PURCHASE AGREEMENT
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AGREEMENT dated as of March 16, 1999 by and among Dast Corporation, d.b.a.
Microcom Technologies, a New York corporation (the "Company"), Boston Ventures
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Limited Partnership V ("Boston Ventures") and Xxxxx New Ventures Limited
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("Xxxxx" and together with Boston Ventures, the "Purchasers") and Xxxxxx
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Nissanoff (the "Founder").
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Introduction
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Boston Ventures wishes to purchase an aggregate of 81,632 shares of
the Company's Preferred Stock, $.01 par value per share (the "Senior Preferred
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Shares"), and the Company wishes to sell the Senior Preferred Shares to Boston
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Ventures. Xxxxx wishes to purchase an aggregate of 102,041 shares of the
Company's common stock, $.01 par value per share (the "Common Stock"), and the
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Company wishes to sell the Common Stock to Xxxxx. The Founder, as director,
officer and principal stockholder of the Company, wishes to induce the
Purchasers to purchase the Senior Preferred Shares and Common Stock and to cause
the Company to sell the Senior Preferred Shares and Common Stock to the
Purchasers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SENIOR PREFERRED SHARES
AND COMMON STOCK; PURCHASE PRICE; CLOSING
Section 1.01. Purchase and Sale of Senior Preferred Shares and Common
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Stock. In reliance upon the representations and warranties contained herein,
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and subject to the terms and conditions hereof, the Company agrees to issue and
sell to the Purchasers, and each Purchaser agrees to purchase from the Company,
the number of Senior Preferred Shares or Common Stock, as the case may be,
indicated next to such Purchaser's name on Schedule 1.01 hereto.
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Section 1.02. Purchase Price. The aggregate purchase price for the Senior
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Preferred Shares and the Common Stock shall be $17,150,000 (the "Purchase
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Price"). The portion of the Purchase Price to be paid by each Purchaser is set
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forth on Schedule 1.01 hereto and shall be payable at the Closing (as
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hereinafter defined) by wire transfer of immediately available funds to an
account designated by the Company.
Section 1.03. Closing. The Purchase and sale of the Senior Preferred Shares
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and Common Stock shall take place at a closing (the "Closing") to be held at the
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offices of Xxxxxx, Xxxx & Xxxxxxx, Exchange Place, Boston, Massachusetts, or
such other place as is agreed to by the parties, on March 16, 1999, or if the
conditions to Closing specified herein are not then satisfied or waived, such
date which is five (5) business days after the satisfaction or waiver of such
conditions (the "Closing Date").
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers that the information
set forth in this Article II is true and correct as of the date hereof and will
be true and correct as of the Closing.
Section 2.01. Organization and Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
New York. The Company has all necessary corporate power and authority to own
its properties and to carry on its business as currently conducted and as
proposed to be conducted. The Company is qualified to do business as a foreign
corporation in the States of New Jersey and Massachusetts, and is not required
to be qualified to do business as a foreign corporation in any other
jurisdiction where the failure to qualify would have a material adverse effect
on the Company.
Section 2.02. Subsidiaries. Schedule 2.02 sets forth a list of each
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subsidiary (as hereinafter defined). Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
incorporation of such Subsidiary, as set forth on Schedule 2.02. Each Subsidiary
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has all necessary corporate power and authority to own its properties and to
carry on its business as currently conducted and as proposed to be conducted.
Except as set forth on Schedule 2.02, the Company has no Subsidiaries, holds no
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securities of any other entity, is not a party to any joint venture or
partnership and has made no investments in any third party. As used herein,
"Subsidiary" means any corporation or other entity a majority of
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the voting securities or economic interest of which is held by the Company or
any Subsidiary.
Section 2.03. Charter and By-Laws. The copies of the Certificate of
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Incorporation and the By-Laws of the Company furnished to the Purchasers are
true and correct in all respects. As of the Closing, the Company will amend its
Certificate of Incorporation, as amended from time to time, the "Certificate of
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Incorporation", in the form attached as Exhibit 2.03 hereto. The Senior
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Preferred Shares shall have the rights, preferences, privileges and restrictions
set forth in such amendment.
Section 2.04. Validity and Enforceability. This Agreement is, and each of
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the other agreements and instruments of the Company and the Founder contemplated
hereby will be the valid and binding obligations of the Company and the Founder,
enforceable in accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy and other laws of general application
relating to creditor's rights or general principals of equity.
Section 2.05. Capital Stock.
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(a) As of the Closing, the authorized capital stock of the Company
consists of (x) 106,122 shares of preferred stock, $.01 par value per share, all
of which shall be issued and outstanding and (y) 1,500,000 shares of Common
Stock of which 408,163 will be issued and outstanding or reserved for future
issuance upon the exercise of outstanding stock options and the conversion of
the Senior Preferred Shares.
(b) Schedule 2.05(b) hereto sets forth a complete and accurate list
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of all holders of the Company's outstanding capital stock, and all options,
warrants, convertible securities and other rights which may afford any person or
entity the right to acquire shares of any class of capital stock of the Company,
including, without limitation, any capital stock, option, warrant, convertible
security or other security or right which the Founder or the Company has a
current intention to issue or sell, in each case prior to and immediately after
the Closing.
(c) Schedule 2.05(c) hereto also sets forth the authorized capital
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stock of each Subsidiary, the number of shares of each class outstanding and the
record and beneficial holder thereof. No Subsidiary has issued or granted any
option, warrant, convertible security or other right or agreement which affords
any person or entity the right to purchase or otherwise acquire any shares of
its capital stock.
(d) Neither the Company nor any Subsidiary is subject to any
obligation (contingent or otherwise) to purchase or
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otherwise acquire or retire any of its equity securities (other than in
accordance with the Company's Certificate of Incorporation or this Agreement).
Except as set forth on Schedule 2.05(d), no person has any right of first
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refusal or preemptive right in connection with the issuance of the Senior
Preferred Shares, conversion of Senior Preferred Shares into any class of
Common Stock, Common Stock issuable upon exercise of any stock options or the
conversion of any Company indebtedness or with respect to any future offer, sale
or issuance of securities by the Company or its shareholders, other than as set
forth herein.
(e) The Senior Preferred Shares, when delivered, will be duly and
validly issued and outstanding, fully paid and nonassessable, and free to the
holders thereof of any liens, encumbrances and restrictions (other than under
applicable securities laws or as set forth in any stockholders agreements to be
entered into by and between the Company, Boston Ventures and Xxxxx in connection
with the consummation of the transactions contemplated by this Agreement). The
Company has reserved a sufficient number of shares of Common Stock for issuance
upon conversion of the Senior Preferred Shares and, when so issued, the shares
of Common Stock will be duly authorized, validly issued and outstanding, fully
paid and nonassessable, and free to the holders thereof of any liens,
encumbrances and restrictions (other than under applicable securities laws or as
set forth in any stockholders agreements to be entered into by and between the
Company, Boston Ventures and Xxxxx in connection with the consummation of the
transactions contemplated by this Agreement).
(f) To the Company's knowledge, the offer and sale of all shares of
capital stock or other securities of the Company issued prior to the Closing
complied with or were exempt from all the registration provisions of federal and
state securities laws.
Section 2.06. Compliance With Law, etc. The Company and each Subsidiary
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are not, and the execution, delivery and performance by the Company of this
Agreement and the other agreements contemplated hereby, the issuance and sale of
the Senior Preferred Shares, or the taking of any other action contemplated by
this Agreement or any of such other agreements will not result in the violation
of any term of the Company's Certificate of Incorporation or Bylaws, the charter
or bylaws of any Subsidiary, or any material agreement, lease, license,
mortgage, instrument, arrangement, judgment, decree, order, law, statute, rule
or governmental regulation to which the Company or any Subsidiary is subject.
The Company and each Subsidiary have all governmental licenses, authorizations,
registrations and permits material to or necessary for the conduct of their
businesses, as currently conducted and as proposed to be conducted, all of which
licenses, registrations and permits are
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listed on Schedule 2.06 hereto. All such licenses, registrations and permits are
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in full force and effect and there is no proceeding pending or, to the Company's
knowledge, threatened (or any basis therefor) to revoke or limit any such
license, registration or permit.
Section 2.07. Financial Statements. The Company has delivered to the
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Purchasers (a) its draft audited, consolidated balance sheet (the "Balance
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Sheet") as at December 31, 1998 (the "Balance Sheet Date"), and the draft
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audited, consolidated statement of income, retained earnings and cash flows of
the Company for the year then ended and (b) the consolidated balance sheet of
the Company and its Subsidiaries as at December 31, 1997 and the related
statement of income, retained earnings and cash flows for the year then ended,
audited by Ernst & Young LLP. Such financial statements and the notes thereto
are complete and accurate in all material respects and fairly present the
consolidated financial condition of the Company and its Subsidiaries at the
dates thereof and the results of operations for the periods then ended, and were
prepared in accordance with the books and records of the Company and its
Subsidiaries in conformity with generally accepted accounting principles
consistently applied during the periods covered thereby. There will be no
material difference between the information contained in the draft audited
financial statements for fiscal year 1998 and the audited financial statements
for such fiscal year.
Section 2.08. Material Adverse Changes. Except as set forth on Schedule
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2.08, since the Balance Sheet Date, the Company and each Subsidiary have
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conducted their business only in the usual and ordinary course and there has
been no (a) material adverse change in the condition (financial or otherwise),
business, properties or prospects of the Company and its Subsidiaries, on a
consolidated basis (b) material increase in the compensation or commission rate
payable by the Company or any Subsidiaries to any officer, director, employee or
agent or bonus or similar payment (or commitment therefor) to any officer,
director, employee, agent or Affiliate (as hereinafter defined) thereof, (c)
dividend, distribution, redemption, recapitalization or other transaction
involving the Company's capital stock, except as otherwise expressly
contemplated by this Agreement, (d) material capital expenditure or commitment
therefor, or (e) material acquisition or disposition of assets or property or
commitment therefor.
Section 2.09. Assets.
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(a) Personal Property. Except as set forth on Schedule 2.09 (a), the
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Company and each Subsidiary owns, or has a valid leasehold or license interest
in, all assets necessary for the conduct of its business as presently conducted
and as
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proposed to be conducted, in each case free and clear of all liens, claims,
security interests, charges and encumbrances. All of such assets are reflected
on the Balance Sheet, except to the extent acquired after the Balance Sheet
Date. All material operating assets of the Company and the Subsidiaries are in
good operating condition and repair, normal wear and tear expected.
(b) Real Property. The Company and each Subsidiary enjoys peaceful
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and quiet possession of their leased premises as shown on Schedule 2.09(b) and
have not received any notice asserting the existence of a default under any such
lease or indicating that the lessor thereunder has taken action or threatened
early termination of the lease.
Section 2.10. Litigation. Except as set forth on Schedule 2.10, no
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litigation, claims, actions, proceedings or investigations are pending, or to
the Company's knowledge, threatened against the Company or any Subsidiary.
Section 2.11. Tax Matters. The Company and each Subsidiary has correctly
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and timely prepared and filed all tax returns required to have been filed by it
with all appropriate federal, state and local governmental agencies and timely
paid all taxes owed by it. The charges, accruals and reserves on the books of
the Company and each Subsidiary in respect of taxes for all fiscal periods are
adequate, and there are no unpaid assessments of the Company or any Subsidiary
nor any basis for the assessment of any additional taxes, penalties or interest
for any fiscal period or audit by any federal, state or local taxing authority.
All taxes and other assessments and levies which the Company or any Subsidiary
is required to withhold or to collect for payment have been duly withheld and
collected and paid to the proper governmental entity or third party. The Company
has furnished the Purchasers with true and correct copies of all of its tax
returns, including any amendments, for all open years. There are no tax liens or
claims pending, or to the Company's knowledge, threatened against the Company,
or any Subsidiary, or any of their respective assets or property. There are no
outstanding tax sharing agreements or other such arrangements between the
Company or any Subsidiary and any other corporation or entity (other than
between the Company and its Subsidiaries). The tax basis of the assets of the
Company by category, including the classification of such assets as being
depreciable or amortizable, as reflected in its tax returns, is true and correct
in all material respects. The Company does not have a current election pursuant
to Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code") to
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be taxed as an S corporation. Neither the Company, any Subsidiary nor the
Founder has ever filed a consent pursuant to Section 341 (f) of the Code
relating to collapsible corporations.
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Section 2.12. Material Contracts. Schedule 2.12 is a complete and
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accurate list of all of the following kinds of contracts, agreements and
arrangements (whether written or unwritten) of the Company or any Subsidiary:
(a) contracts with any employee, officer, director or stockholder, or
any known relative or Affiliate (which term is used in this Agreement as defined
in the Rules promulgated under the Securities Act of 1933, as amended (the
"Act")) thereof;
(b) licenses, leases, contracts and other arrangements with respect to
any property of the Company or any Subsidiary having a value or resulting in (or
required to generate) revenues to or expenses of the Company or its Subsidiaries
of $100,000 or more, including without limitation, all real estate leases, and
licenses relating to the use of Intellectual Property (as defined in Section
2.21);
(c) agreements, contracts or instruments relating to the borrowing of
money, the capital lease or purchase on an installment basis of any asset or the
guarantee of any of the foregoing involving more than $75,000;
(d) contracts with respect to which the Company or any Subsidiary has
any liability or obligation, contingent or otherwise, or which may otherwise
have a continuing effect for one year or more after the date of this Agreement,
involving more than $75,000;
(e) contracts which place any material limitation on the method of
conducting or scope of the business of the Company or any Subsidiary; and
(f) any other contract which would be required to be disclosed as an
exhibit to a Registration Statement on Form S-1 under the Act filed by the
Company.
The Company has furnished to the Purchasers copies of all such contracts
(including all amendments and modifications thereto), or written descriptions
thereof, in the case of oral contracts, and each such contract (or written
description) sets forth the entire (or material terms in the case of an
unwritten agreement) agreement and understanding between the Company or a
subsidiary and the other parties thereto. Each such contract is valid, binding
and in full force and effect, and there is no event which has occurred or
exists, which constitutes or which, with notice, the happening of any event
and/or the passage of time, would constitute a default or breach by the Company
or a Subsidiary under any such contract or would cause the acceleration of any
obligation of any party thereto or give rise to any right of any other party of
termination or cancellation
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thereof. Neither the Company nor the Founder has any reason to believe that the
parties to such contracts will not fulfill their obligations thereunder in all
material respects.
Section 2.13. Employees and Compensation. Schedule 2.13 sets forth a
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complete and accurate list of (a) all employment and consulting contracts,
arrangements or plans with any employee of or consultant to the Company or any
Subsidiary and (b) all employees of and consultants to the Company or any
Subsidiary, with 1998 compensation in excess of $100,000, showing date of hire,
hourly rate or salary or other basis of compensation and other benefits accrued
as of a recent date, each increase and bonus granted since January 1, 1998, and
job function of salaried employees. None of the employees of the Company or any
Subsidiary is represented by a union, and there is no labor strike, dispute,
slowdown, stoppage, organizational effort, dispute or proceeding by or with any
employee or former employee of the Company or any Subsidiary or any labor union
pending or, to the knowledge of the Company, threatened against the Company or
any Subsidiary.
Section 2.14. Customers and Suppliers. Schedule 2.14 sets forth a list of
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all customers of the Company or any Subsidiary which accounted for at least
$500,000 of gross sales by the Company or each Subsidiary during the fiscal year
ended December 31, 1998. To the Company's knowledge, the Company's and each
Subsidiary's relationships with such customers and with its material suppliers
are good commercial working relationships. Except as set forth on Schedule 2.14,
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since December 31, 1997, no supplier representing more than $500,000 of
annualized purchases by the Company or any Subsidiary (in the case of a
supplier) has terminated or, to the Company's knowledge, threatened to
terminate, its relationship with the Company or any Subsidiary, or has decreased
materially or threatened to decrease or limit materially the services, supplies
or materials supplied to or purchased from the Company or any Subsidiary.
Section 2.15. Environmental Matters. Except as provided on Schedule 2.15,
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(a) the ownership or use of the Company's and the Subsidiaries' premises and
assets, the occupancy and operation thereof, and the conduct of the Company's
and the Subsidiaries' business are in compliance in all material respects with
all applicable federal, state and local laws, ordinances, regulations, standards
and requirements relating to safety, health, pollution, environmental
protection, hazardous substances and related matters and (b) there is no
liability attaching to such premises or assets or the ownership, use or
operation thereof as a result of any hazardous substance that may have been
discharged on or released from such premises, or disposed of on-site or off-
site, or any other circumstance occurring prior to the Closing or existing as of
the Closing. For purposes of this
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Section, "hazardous substance" shall mean oil or any other substance which is
included within the definition of a "hazardous substance", "pollutant", "toxic
substance", "toxic waste", "hazardous waste", "contaminant" or other words of
similar import in any federal, state or local environmental law, ordinance or
regulation.
Section 2.16. Insurance. Schedule 2.16 lists all insurance policies
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maintained by the Company or any Subsidiary, all of which are valid and in full
force. All premiums due to date under such policies have been paid, and no
default exists thereunder. To the Company's knowledge, the insurance listed on
Schedule 2.16 is in amounts adequate and appropriate for the business, and to
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avoid the operation of any coinsurance provision. Neither the Company nor any
Subsidiary has received any notice of any proposed material increase in the
premiums payable for coverage, or proposed reduction in the scope (or
discontinuation entirely) of coverage, under any of such insurance policies.
Section 2.17. Employee Benefit Plans.
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(a) Schedule 2.17 sets forth all employee benefit plans, agreements,
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commitments, practices or arrangements of any type (including, but not limited
to, plans described in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) maintained by the Company or any Subsidiary
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for the benefit of current or former employees or directors of the Company or
any Subsidiary, or with respect to which the Company or any Subsidiary has a
liability, whether direct or indirect, actual or contingent (including, but not
limited to, liabilities arising from affiliation under Section 414(b), (c), (m)
or (o) of the Code or Section 4001 of ERISA) (collectively, the "Benefit
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Plans"). There are no material benefit plans, agreements, commitments, practices
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or arrangements of any type providing benefits to employees or directors of the
Company or any Subsidiary, other than the Benefit Plans.
(b) With respect to each Benefit Plan, the Company has delivered to
the Purchasers true and complete copies of: (i) any and all plan texts and
agreements; (ii) any and all material communications to employees (including all
summary plan descriptions and material modifications thereto); (iii) the two
most recent annual reports, if applicable; (iv) the most recent annual and
periodic accounting of plan assets, if applicable; and (v) the most recent
determination letter received from the Internal Revenue Service (the "Service"),
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if applicable.
(c) With respect to each Benefit Plan: (i) if intended to qualify
under Section 401(a) of the code, such plan so qualifies, and its trust is
exempt from taxation under Section
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501(a) of the Code; (ii) such plan has been administered and enforced in
accordance with its terms and all applicable laws in all material respects;
(iii) no breach of fiduciary duty by the Company has occurred with respect to
which the Company, any Subsidiary or any Benefit Plan may be liable or otherwise
damaged in any material respect; (iv) no material disputes are pending or
threatened; (v) no "prohibited transaction" (within the meaning of either
Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect
to which the Company or any Benefit Plan may be liable or otherwise damaged in
any material respect; (vi) all contributions, premiums, and other payment
obligations have been accrued on the financial statements of the Company in
accordance with generally accepted accounting principles, and, to the extent
due, have been made on a timely basis, in all material respects; (vii) all
contributions made or required to be made under such plan meet the requirements
for deductibility under the Code; (viii) the Company has expressly reserved in
itself the right to amend, modify or terminate such plan, or any portion of it,
without liability to itself; (ix) no such plan requires the Company to continue
to employ any employee or director.
(d) No Benefit Plan is, or has ever been, subject to Title IV of
ERISA.
(e) With respect to each Benefit Plan which provides welfare benefits
of the type described in Section 3(1) of ERISA: no such plan provides medical or
death benefits with respect to current or former employees or directors of the
Company beyond their termination of employment, other than coverage mandated by
Sections 601-608 of ERISA and 4980B(f) of the Code, (ii) each such plan has been
administered in compliance with Sections 601-608 of ERISA and 4980B(f) of the
Code; and (iii) no such plan has reserves, assets, surpluses or prepaid
premiums.
Section 2.18. Registration Rights. Except as set forth on Schedule 2.18,
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the Company is not a party to any agreement or commitment which obligates the
Company to register under the Act any of its outstanding securities or any of
its securities which may hereafter be issued.
Section 2.19. Offering. Subject to the accuracy of the Purchasers'
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representations in Section 3 of this Agreement, the offer, issuance and sale of
the Senior Preferred Shares and the Common Stock constitutes, and will
constitute, transactions exempt from the registration requirements of Section 5
of the Act and the Company has obtained all qualifications, permits, and other
consents, if any, required by all applicable state securities laws.
Section 2.20. Affiliate Transactions. Except as set forth on Schedule 2.20,
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neither the Company nor any Subsidiary is a
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party to any material contract or arrangement, either directly or indirectly,
with any of the officers, directors or stockholders of the Company or any
Subsidiary, their known relatives or Affiliates.
Section 2.21. Intellectual Property. Schedule 2.21 sets forth all patents,
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trademarks, service marks, trade names, copyrights, domain names, franchises and
licenses, all royalties and license agreements, all applications therefor, and
all other rights with respect to the foregoing owned or used by the Company or
any Subsidiary ("Intellectual Property"). The intellectual property and rights
set forth on Schedule 2.21 include all of the foregoing necessary for the
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operation of the Company's and the Subsidiaries' business as now conducted and
as proposed to be conducted. To the Company's knowledge, the Company's and each
Subsidiary's ownership and use of the foregoing does not infringe or conflict
with the rights of others; neither the Company nor any Subsidiary is or will be
obligated to make any royalty, fee or other payments in connection with its
ownership or use of any patent, trademark, trade name, copyright or other
intangible asset in connection with the conduct of its business as now conducted
and as proposed to be conducted, except as described on Schedule 2.21. Except as
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set forth on Schedule 2.21, neither the Company nor any Subsidiary has been
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notified of any claim by any person or entity that the Company or any Subsidiary
is violating any trademark, service xxxx, trade name, patent or copyright, or
other intangible asset or right owned by any other person or entity or that it
is using any name that is confusingly similar to that of any other person or
entity, and, to the Company's knowledge, there is no basis for any such claim.
Section 2.22. Proprietary Information of Third Parties. Except as set forth
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on Schedule 2.22, no third party has claimed or, to the Company's knowledge, has
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reason to claim that any person employed by or affiliated with the Company or
any Subsidiary has (a) violated or, to the Company's knowledge, may be violating
any of the terms or conditions of such person's employment, non-competition or
non-disclosure agreement with such third party, (b) disclosed or, to the
Company's knowledge, may be disclosing or utilized or, to the Company's
knowledge, may be utilizing any trade secret or proprietary information or
documentation of such third party or (c) interfered or, to the Company's
knowledge, may be interfering in the employment relationship between such third
party and any of its employees. To the Company's knowledge, no person or entity
employed by or affiliated with the Company or any Subsidiary has employed or
proposes to employ any trade secret or any information or documentation
proprietary to any other person or entity in connection with the business of the
Company or any Subsidiary.
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Section 2.23. Brokers. Except as set forth on Schedule 2.23, no finder,
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broker, agent, financial advisor or other intermediary has acted, directly or
indirectly, on behalf of the Company or any Subsidiary in connection with the
offering of the Senior Preferred Shares and the Common Stock or the negotiation
or consummation of this Agreement or any of the transactions contemplated
hereby, or is entitled to any fee, payment, commission or other consideration
with respect thereto.
Section 2.24. Absence of Material Undisclosed Liabilities. Except for (a)
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any and all liabilities, accounts payable and accrued expenses reflected on the
Balance Sheet or incurred in the ordinary course of business since the Balance
Sheet Date, and (b) obligations of future performance under contracts set forth
on a Schedule hereto and other contracts entered into in the ordinary course of
business which are not required to be listed on a Schedule hereto, as of the
Closing Date, the Company will have no material liabilities or obligations,
whether absolute, accrued, contingent or otherwise and whether due or to become
due.
Section 2.25. Year 2000 Compliance. Except as otherwise disclosed on
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Schedule 2.25, the Company, its Subsidiaries and its Management Systems and
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Production and Distribution Systems are or will be Year 2000 Compliant on or
before December 31, 1999. As used in this Section the following terms have the
following meanings:
"Year 2000 Compliant" means, with respect to any person, that neither the
year change from 1999 to 2000 (the arrival of the date January 1, 2000) nor leap
year dates thereafter will (i) impair such person's ability to meet its
obligations to third parties or (ii) result in errors or corruption in
processing internally generated data or otherwise have a material adverse effect
on the operations or functionality of such person or its Management Systems or
Production and Distribution Systems, all of which will continue to operate as
intended prior to, during and after January 1, 2000.
"Management Systems" include, but are not limited to, all computer hardware
(including integrated circuit/chip and firmware) and software applications that
a person uses for managing and operating its business, including without
limitation functions such as accounting and billing, inventory tracking and
maintenance and vendor and supplier sourcing.
"Production and Distribution Systems" include, but are not limited to, all
computer hardware (including integrated circuit/chip and firmware) and software
applications, and all automated or electronic equipment, controls and other
systems used by a person in its production or distribution process, from
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the point of input or raw material to final products and merchandise offered for
sale and distributed to customers.
Section 2.26. Required Consents. Except for the consents specified on
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Schedule 2.26, no consent, order, authorization, approval, declaration or
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filing, including, without limitation, any consent, approval or authorization of
or declaration or filing with any governmental authority or any party to a
material contract, is required on the part of the Company or any Subsidiary (and
no notices to or consents or other approvals from any of the Lessors or any of
such lessors' mortgagees under any of the real property leases are required) for
or in connection with the execution, delivery or performance of this Agreement
and each of the other agreements contemplated hereby or the conduct of the
business by the Company or any Subsidiary after the Closing, or to prevent a
material default. The Company has no reason to believe that all of the required
consents and approvals not obtained as of the Closing will not be obtained
within six (6) months of Closing without material cost to the Company. Subject
to obtaining the consents specified on Schedule 2.26, the execution, delivery
-------------
and performance of this Agreement and the other instruments and agreements
contemplated hereby by the Company will not result in any material violation of,
be in material conflict with or constitute a material default under, any law,
statute, regulation, ordinance, contract, agreement, instrument, judgment,
decree or order to which the Company is a party or by which the Company is
bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and warrants to the
Company that:
Section 3.01. Investment Intent. The Senior Preferred Shares and Common
------------ -----------------
Stock to be acquired by it are being acquired solely for its own account, for
investment purposes only and, with no present intention of distributing,
selling, transferring or otherwise disposing of them, and the Purchasers have no
present plans to enter into any such contract, undertaking, agreement or
arrangement with respect thereto.
Section 3.02. Economic Risk; Sophistication. The Purchasers are able to
------------ -----------------------------
bear the economic risk of an investment in the Senior Preferred Shares and
Common Stock to be acquired by them, can afford to sustain a total loss on such
investment and have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits and risks of the proposed
investment.
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Section 3.03. Authority. Each of the Purchasers is duly organized, validly
------------ ---------
existing and in good standing under the laws of its respective state of
organization. Each Purchaser has all requisite power and authority to enter into
this Agreement and perform its obligations hereunder, and this Agreement
constitutes the valid and binding obligation of each Purchaser enforceable
against it in accordance with its terms.
Section 3.04. Brokers. No finder, broker, agent, financial advisor or
------------ -------
other intermediary has acted on behalf of Purchasers in connection with the
negotiation or consummation of this Agreement or any of the transactions
contemplated hereby, and no such person is entitled to any fee, payment,
commission or other consideration with respect thereto as a result of any
arrangement made by the Purchaser.
Section 3.05. Limited Liquidity. The Purchasers understand that the Senior
------------ -----------------
Preferred Shares and the Common Stock to be acquired by them may not be sold,
transferred or otherwise disposed of without registration under the Act and any
state securities laws, or an exemption therefrom (supported by an opinion of
counsel satisfactory to the Company), and that in the absence of an effective
registration statement covering such securities or an available exemption from
registration, such securities may be required to be held indefinitely. The
Purchasers are aware that the Senior Preferred Shares and the Common Stock to be
acquired by them may not be sold pursuant to Rule 144 promulgated under the Act,
unless all of the conditions of that Rule are met and that among the conditions
for use of Rule 144 is the availability of current information to the public
about the Company and that the Company has no obligation to make such
information available. The Purchasers represent that, in the absence of an
effective registration statement covering the Senior Preferred Shares or the
Common Stock, they shall sell, transfer or otherwise dispose of such securities
only in a manner consistent with the representations set forth herein, and the
certificates for the Senior Preferred Shares or the Common Stock shall bear a
legend to such effect.
Section 3.06. Accredited Investor. Each Purchaser is an "accredited
------------ -------------------
investor" as defined in Regulation D under the Act, and, together with its
financial advisors, if any, has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks involved in
purchasing the Senior Preferred Shares and the Common Stock.
Section 3.07. Purchaser Information. All of the information furnished by
------------ ---------------------
such Purchaser in response to the Company's questionnaire is true and complete.
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ARTICLE IV
CLOSING CONDITIONS
Section 4.01. Conditions to Closing. Each Purchaser's obligation to
------------ ---------------------
purchase the Senior Preferred Shares and Common Stock to be acquired by it at
the Closing is subject to the satisfaction, as of the Closing Date, of the
following conditions:
(a) Amendment. The Certificate of Incorporation of the Company shall
---------
have been amended to include the provisions set forth in Exhibit 2.03 and,
------------
except as so amended, such Certificate of Incorporation shall not have been
further amended or modified.
(b) Seacoast Capital Transactions. Seacoast Capital Partners Limited
-----------------------------
Partnership ("Seacoast") shall have (i) converted the senior subordinated note
--------
(the "Note") of the Company in the principal amount of $3,000,000 held by it
----
into 24,490 Senior Preferred Shares, (ii) exercised the Warrant dated July 30,
1997 for 50,000 shares of Common Stock, and (iii) terminated all of its existing
contractual arrangements with the Company and the Subsidiaries that were entered
into in connection with Seacoast's purchase of the Note and the Warrant.
(c) Stockholders Agreement. The Company, the Purchasers, Seacoast and
----------------------
Xxxxxx Xxxxxxxxx shall have entered into the Stockholders Agreement
substantially in the form of Exhibit 4.01 (c) attached hereto.
----------------
(d) Registration Rights Agreement. The Company, the Purchasers and
-----------------------------
Seacoast shall have entered into a registration rights agreement substantially
in the form of Exhibit 4.01 (d) attached hereto.
----------------
(e) Representations and Warranties. The representations and
------------------------------
warranties contained in Article II shall be true and correct in all material
respects on and as of the Closing Date as though made on and as of such date
(except representations and warranties made as of a specified date, which shall
be true as of such date) except that the representations and warranties
contained in Section 2.05 will be true and complete in all respects.
(f) Certificate; Documents. The Purchasers shall have received copies
----------------------
of each of the following, certified by the Secretary of the Company: (i) the
Company's Certificate of Incorporation, as amended, with evidence of filing with
the Secretary of State of the State of New York; (ii) a certificate of the
Secretary of State of the State of New York as to the legal existence and good
standing of the Company and listing all amendments to the Company's Certificate
of Incorporation then on
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file in his office; (iii) the Company's Bylaws; (iv) the votes adopted by the
stockholders and the resolutions adopted by the directors of the Company
authorizing the execution, delivery and performance of this Agreement and the
other agreements contemplated hereby, the amendment to the Certificate of
Incorporation and the issuance, sale and delivery of the Senior Preferred Shares
and the Common Stock hereunder; and (v) evidence of the qualification of the
Company as a foreign corporation in the States of Massachusetts and New Jersey.
The Purchasers shall also have received such other certificates and documents as
the Purchasers shall reasonably request.
(g) Legal Opinions. Each of the Purchasers shall have received a
--------------
legal opinion in form and substance satisfactory to the Purchasers from Xxxxx &
Xxxxxx, LLP, counsel for the Company, substantially in the form set forth in
Exhibit 4.01 (g) hereof.
----------------
(h) Stock Certificates. Each Purchaser shall have received one or
------------------
more duly executed certificates representing the Senior Preferred Shares or
Common Stock to be acquired by it.
(i) License Agreement. The Company and Information Handling Services,
-----------------
Inc. shall have entered into a license agreement substantially in the form of
Exhibit 4.01 (i).
----------------
(j) Employment Agreement. Xxxxxx Xxxxxxxxx and the Company shall have
--------------------
entered into an employment agreement substantially in the form of Exhibit 4.01
------------
(j).
---
(k) Repurchase of Shares. The Company shall have redeemed all of the
--------------------
shares of Common Stock owned by Xxxxx Xxxxxxxxx Xxxxxxxxx.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. All notices, demands or other communications
------------ -------
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person, or by nationally recognized overnight courier services, or
otherwise actually delivered:
(a) if to the Company or to Xxxxxx Xxxxxxxxx, to:
Dast Corporation
d.b.a Microcom Technologies
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: President
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with a copy to:
Xxxxx & Xxxxxx, LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(b) if to Boston Ventures, to
Boston Ventures Management, Inc.
Xxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. X. Xxxxx, Esq.
(c) if to Xxxxx, to:
Xxxxx New Ventures Limited
Par La Ville Place
14 Par La Ville Place
Xxxxxxxx XX JK Bermuda
Attention: Xxxxxx X. X. Xxxxx
or at such other address as may have been furnished by such person in writing to
the other parties. Any such notice, demand or other communication shall be
deemed to have been given on the date actually delivered or as of the date
deposited with the courier, as the case may be.
Section 5.02. Severability and Governing Law. If any provision of this
------------ ------------------------------
Agreement is rendered void, invalid or unenforceable by any court of law for any
reason, such invalidity or unenforceability shall not void or render invalid or
unenforceable any other provision of this Agreement. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to its conflicts of laws provisions.
Section 5.03. Amendments, Etc. This Agreement may be changed, waived or
------------ ---------------
terminated only with the written consent of the Founder, the Company and each of
the Purchasers.
Section 5.04. Survival. All agreements, representations and warranties
------------ --------
contained herein and in any certificate,
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documentation or agreement delivered pursuant hereto shall survive the execution
and delivery of this Agreement, any investigation at any time made, and the sale
and purchase of the Senior Preferred Shares and the Common Stock until two (2)
years from the Closing or if earlier, until the Closing of the initial public
offering of the Company's securities.
Section 5.05. Expenses. The Company agrees to pay (a) the reasonable costs
------------ --------
and expenses of Xxxxxx, Hall & Xxxxxxx as counsel to Boston Ventures in
connection with the due diligence, investigation, preparation, execution and
delivery of this Agreement and the other agreements, instruments and documents
relating thereto up to $60,000 (b) the reasonable fees, up to $25,000, and
expenses of counsel to the Purchasers incurred with respect to any amendments or
waivers required by the Company (whether or not they become effective) under or
with respect to the Certificate of Incorporation, Bylaws, this Agreement or any
agreement or instrument contemplated hereby, and (c) in the event of a proven
material breach or default of the Company's obligations to the Purchasers under
the Certificate of Incorporation, the Bylaws, this Agreement or any agreement or
instrument contemplated hereby, the reasonable fees and expenses of the
Purchasers incurred in connection with the enforcement of the rights granted
under any of the foregoing.
Section 5.06. Successors and Assigns. This Agreement, and all provisions
------------ ----------------------
hereof, shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto, provided that, the Purchasers may
not assign their right to purchase Senior Preferred Shares and Common Stock
without the consent of the Company in its sole discretion.
Section 5.07. Entire Agreement. This Agreement, the attached exhibits and
------------ ----------------
schedules and the other agreements, documents and instruments contemplated
hereby contain the entire understanding of the parties, and there are no further
or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof unless expressly referred to
herein.
Section 5.08. Counterparts. This Agreement may be executed in one or more
------------ ------------
counterparts by facsimile signature, and with counterpart signature pages, each
of which shall be an original, and all of which together shall constitute one
and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as a sealed instrument as of the date first above written.
DAST CORPORATION
d.b.a Microcom Technologies
/s/ Xxxxxx Xxxxxxxxx
By:__________________________
(Title)
BOSTON VENTURES LIMITED
PARTNERSHIP V
By: Boston Ventures
Management, Inc.
By: /s/ Xxxxx Xxxxxx
--------------------------
XXXXX NEW VENTURES LIMITED
/s/ J.A.M. Vijverberg
By:__________________________
(Title)
/s/ Xxxxxx Xxxxxxxxx
_____________________________
Xxxxxx Xxxxxxxxx
