STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is dated as
of October 11, 1999 and is by and among Net Value Holdings, Inc., a Delaware
corporation, (the "Buyer"), and Webmodal, Inc., a Delaware corporation (the
"Company").
WHEREAS, the Buyer wishes to buy 121 shares of Common Stock of
the Company (after giving effect to the stock split) (the "Shares"); and
WHEREAS, the Company believes it is in the best interests of
the Company to sell the Shares to the Buyer;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants, agreements and warranties contained herein, the parties agree
as follows:
1. Sale and Purchase. Subject to all the terms and conditions
of this Agreement, the Company hereby agrees to sell the Shares to the Buyer,
and the Buyer agrees to purchase the Shares, for an aggregate purchase price of
$100,000 (the "Purchase Price"). The Purchase Price shall be payable by
certified or cashiers check or wire transfer, at the option of the Buyer, upon
the execution of this Agreement. Delivery of the certificate evidencing the
Shares shall take place as soon as reasonably practical following execution of
this Agreement and receipt of payment of the Purchase Price.
2. Representations of the Company. In order to induce the sale
of the Shares to the Buyer, the Company represents and warrants to the Buyer as
follows:
(a) This Agreement has been duly and validly executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of this Agreement by the Buyer, this
Agreement constitutes the legal, valid, and binding obligation
of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws from time to time in effect which affect creditors'
rights generally, and by legal and equitable limitations on
the availability of specific remedies.
(b) The execution, delivery and performance by the
Company of this Agreement do not and will not: (i) violate any
decree or judgment of any court or other governmental
authority applicable to or binding on the Company; (ii)
violate any law; or (iii) violate any contract to which the
Company is a party or by which the Company or any of its
assets or properties are bound.
(c) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(d) Prior to the issuance of the Shares to Net Value,
the authorized capital stock of the Company (after giving
effect to the stock split) consists solely of 100,000 shares
of Common Stock of which 10,000 shares are outstanding. There
are no outstanding securities or obligations convertible into,
options or warrants to purchase, or preemptive rights or other
rights to subscribe for or to purchase, shares of the
Company's capital stock or any securities or obligations
convertible into shares of the Company's capital stock (except
that the Company has reached agreements to issue options for
approximately 15% of the capital stock of the Company to
certain prospective key managers and advisors and the Company
had granted an option to Merus Partners, Inc. ("Merus"), but
such option is being eliminated pursuant to the Amended and
Restated Stockholders Agreement being executed
contemporaneously with this Agreement). There are no contracts
or commitments to issue or sell shares of the Company's
capital stock or securities or obligations convertible into,
options or warrants to purchase, or preemptive rights or other
rights to subscribe for or to purchase, shares of the
Company's capital stock or any securities or obligations
convertible into shares of the Company's capital stock.
(e) Upon issuance of the Shares following receipt by
the Company of the Purchase Price, the Shares will be duly
authorized and validly issued and fully paid and
nonassessable.
3. Representations of Buyer. In order to induce the Company to
sell the Shares to the Buyer, the Buyer represents and warrants to the Company
as follows:
(a) The Buyer and any of its affiliates, if
applicable, are acquiring the Shares solely for their own
accounts, for investment only and not with a view to resale in
connection with a distribution thereof as that term is defined
in the Securities Act of 1933 (the "Securities Act") and the
rules and regulations of the Securities and Exchange
Commission thereunder. The Buyer has no present intention to
sell or transfer any of its shares of stock in the Company and
has neither authorized nor taken any steps to do so or with an
intent to do so. The Buyer acknowledges that the Shares to be
purchased pursuant to this Agreement have not been registered
under the Securities Act of 1933, as amended, or any
applicable state securities law and may not be transferred or
sold except pursuant to an effective registration statement
under the Securities Act or exemption therefrom and that the
certificates representing the Shares may contain a legend to
that effect. The Buyer is an "accredited investor," as such
term is defined in Regulation D promulgated pursuant to the
Securities Act. The Buyer has such knowledge and experience in
financial and business matters so as to be capable of
evaluating the merits and risks of an investment in the Shares
and of protecting the Buyer's interest in connection with the
purchase of the Shares. It has been called to the Buyer's
attention in connection with its investment in the Company
that such investment is speculative in nature and involves a
high degree of risk and the Buyer is aware that the Company
-2-
does not have an operating history. The Buyer understands that
no federal or state agency has passed upon or made any
recommendation or endorsement relating to an investment in the
Shares. The Buyer has adequate means of providing for its
current needs and contingencies, and has no need now, and
anticipates no need in the foreseeable future, to sell the
Shares, and the Buyer currently has sufficient financial
liquidity to bear the economic risks of this investment
indefinitely and, at the present time, can afford a complete
loss of its investment in the Company.
(b) This Agreement has been duly and validly executed
and delivered by the Buyer, and assuming due authorization,
execution and delivery of this Agreement by the Company, this
Agreement constitutes the legal, valid and binding obligation
of the Buyer, enforceable in accordance with its terms, except
as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors'
rights generally and by equitable limitations on the
availability of specific remedies.
(c) The execution, delivery and performance by the
Buyer of this Agreement do not and will not (i) violate any
decree or judgment of any court or other governmental
authority applicable to or binding on the Buyer; (ii) violate
any law; or (iii) violate any contract to which the Buyer is a
party or by which the Buyer or any of its assets or properties
are bound.
(d) Neither the Buyer nor any person acting on behalf
of the Buyer has retained any broker in connection with the
transactions contemplated by this Agreement. Neither the
Company nor any affiliate, employee, agent, or representative
of the Company nor the Buyer has or shall have any liability
with respect to any brokerage or finder's fee or other
commission in connection with any of the transactions
contemplated by this Agreement.
(e) The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(f) The Buyer has purchased, or agreed to purchase,
11 shares (on a pre-stock split basis) of Common Stock of the
Company from Merus for $250,000.
4. Amendment; Assignment. This Agreement may be amended,
modified or supplemented but only in writing signed by the Company and the
Buyer. No party to this Agreement may assign any of its rights or obligations
under this Agreement without the prior consent of the other party.
5. Notices. Any notice, request, instruction or other document
to be given hereunder by a party hereto shall be in writing and shall be deemed
to have been given, (a) when received if given in person or by courier or a
courier service, (b) on the date of confirmed
-3-
transmission if sent by telex, facsimile or other wire transmission or (c) three
(3) Business Days after being deposited in the U.S. mail, certified or
registered mail, postage prepaid:
(a) If to the Company, addressed as follows:
Webmodal, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Buyer, addressed as follows:
Net Value Holdings, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as a party hereto may designate for
itself by notice given as herein provided.
6. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same Agreement.
Facsimile signatures shall be binding.
7. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflict of law. The parties agree that
the federal and state courts sitting in the State of Illinois shall have
exclusive personal and subject matter jurisdiction over all claims or disputes
arising out of or in connection with this Agreement, or the subject matter
hereof. The parties hereto hereby agree (i) to submit to the personal
jurisdiction of such courts and to service of process effected in accordance
with the laws of such State, (ii) to waive any objection to such jurisdiction
and any defense of forum non conveniens in connection therewith and (iii) to be
bound by any judgment rendered by any such court.
-4-
8. Severability. If any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
9. Remedies Cumulative. Unless otherwise specified, the
remedies provided in this Agreement shall be cumulative and shall not preclude
the assertion or exercise of any other rights or remedies available by law, in
equity or otherwise.
10. Entire Understanding. This Agreement and the amended and
restated shareholders agreement of the Company dated as of the date hereof, set
forth the entire agreement and understanding of the parties hereto and supersede
any and all prior agreements, arrangements and understandings among the parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above written.
NET VALUE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: President
---------------------------------
WEBMODAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its: President
---------------------------------
-5-
