EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the first day
of April 1997 ("Effective Date") by and among Primax Electronics Ltd., a
Republic of China corporation (the "Seller") and Seamax Engineering Pte Ltd.
(the "Purchaser").
RECITALS
A. The Seller owns certain shares of the common stock, par value $0.001 per
share (the "Common Stock"), of Storm Technology, Inc., a Delaware corporation
("Storm").
B. The Seller desires to sell to the Purchaser and the Purchaser desires to
purchase from the Seller 1,100,000 shares of Common Stock of Storm (the
"Stock"), all as herein described and on the terms and conditions hereinafter
set forth.
C. Number of Shares and Price Per Share. Subject to the terms and
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conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, the Purchaser hereby agrees to purchase from the
Seller and the Seller hereby agrees to sell the Stock to the Purchaser, for a
price per share of US$3.875, for a total price of US$4,262,500 (the "Stock
Purchase Price").
D. The Closing. The purchase and sale of the Stock to the Purchaser (the
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"Closing") shall take place at the principal office of the Seller as soon as
possible after execution of this Agreement on a date to be mutually agreed upon
by the Seller and the Purchaser (the "Closing Date"). Subject to the terms of
this Agreement, at the transfer of stock certificates by Seller, purchaser shall
tender full payment of the Stock Purchase Price to the Seller within 7 days.
E. Representations and Warranties of the Seller.
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1. The Seller is the sole owner of the Stock, which is, and at the
Closing shall be free and clear of all encumbrances and the Seller has the full
and unrestricted right, power and authority to sell and transfer the Stock to
the Purchaser. Upon delivery of the Stock to the Purchaser and payment by the
Purchaser of the Stock Purchase Price, Purchaser will acquire encumbrances of
any nature whatsoever, other than any encumbrances created by or through the
Purchaser.
2. The Stock is validly issued, fully paid and nonassessable.
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3. This Agreement constitutes a valid and binding obligation of the
Seller, except as the same may be limited by bankruptcy, insolvency, moratorium
and other laws of general application affecting the enforcement of creditors'
rights and general principles of equity.
F. Representations and Warranties of Purchaser. The Purchaser hereby
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represents and warrants to the Seller that:
1. The Stock will be acquired for each Purchaser's own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof.
2. Purchaser is not a "U.S. Person" as that term is defined in Rule 901
of Regulation S of the Securities Act ("Reg. S"), including but not limited to:
(i) a natural person resident in the United States (which term includes the
United States of America, its territories and possessions, any State of the
United States, and the District of Columbia); (ii) a partnership or corporation
organized or incorporated under the laws of the United States; (iii) the estate
of which any executor or administrator is a U.S. Person; or (iv) any trust of
which any trustee is a U.S. Person.
3. Purchaser understands that the Stock is being offered in a transaction
not involving any public offering within the United States of America within the
meaning of the Securities Act and the Stock has not been registered under the
Securities Act in reliance upon a safe harbor from the registration and
prospectus delivery requirements of the Securities Act pursuant to Reg. S, that
Storm has no present intention of registering the Stock, and that the Purchaser
must therefore bear the economic risk of such investment indefinitely, unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from registration.
4. Purchaser has satisfied itself as to the full observance of the laws
of its jurisdiction in connection with any invitation to subscribe for the Stock
or any use of this Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of the Stock; (ii) any foreign exchange
restrictions applicable to such purchase; (iii) any governmental or other
consents that may need to be obtained and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the Stock. Such Purchaser's subscription and payment for,
and its continued beneficial ownership of the Stock, will not violate any
applicable securities or other laws of its jurisdiction.
5. Purchaser was outside of the United States of America at the time the
buy order for the Stock was originated and no offer to purchase the Stock was
made in the United States of America.
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6. All subsequent offers and sales of the Stock will be made outside
of the United States of America in compliance with Reg. S, pursuant to
registration of the Stock under the Securities Act or pursuant to an exemption
from such registration. In any event, the Purchaser will not resell the Stock to
U.S. Persons or within the United States of America until after one (1) year
from the Closing Date.
7. Purchaser and its representatives have been solely responsible for
the Purchaser's own "due diligence" investigation of Storm and its management
and business, for its own analysis of the merits and risks of this investment,
and for its own analysis of the fairness and desirability of the terms of the
investment. In taking any action or performing any role relative to the
arranging of the proposed investment, Purchaser has acted solely in its own
interest. Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the purchase of
the Stock pursuant to the terms of this Agreement and of protecting its
interests in connection therewith.
8. Purchaser has such knowledge and experience in financial and
business matters so that it is capable of evaluating the risks and merits of
purchasing the Securities and is able to bear the economic risk of the purchase
of the Stock pursuant to the terms of this Agreement, including a complete loss
of the Purchaser's investment in the Stock.
9. Purchaser has the full right, power and authority to enter into and
perform the Purchaser's obligations under this Agreement, and this Agreement
constitutes a valid and binding obligation of such Purchaser enforceable in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditors rights and rules or laws
concerning equitable remedies.
10. No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of either
Purchaser is required in connection with the valid execution and delivery of
this Agreement.
11. Purchaser agrees to be bound by all terms of the Company's Fifth
Amended and Restated Rights Agreements, as amended to date (the "Right
Agreement").
G. Legends. Each certificate or instrument representing the Stock may be
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endorsed with legends in substantially the following forms:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1993, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISTRIBUTED DIRECTLY OR INDIRECTLY, IN
THE UNITED STATES, ITS TERRITORIES, POSSESSIONS, OR AREAS SUBJECT TO ITS
JURISDICTION, OR TO OR FOR THE ACCOUNT OR BENEFIT OF A "U.S. PERSON" AS
THAT TERM IS DEFINED IN RULE 901 OF REGULATION S OF THE ACT. AT ANY TIME
PRIOR TO ONE (1) YEAR AFTER THE ISSUANCE OF THIS CERTIFICATE, EXCEPT (I)
IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SUCH ACT, OR (II) IN COMPLIANCE WITH RULE 144 OR (III) PURSUANT TO
AN OPINION OF COUNSEL TO THE CORPORATION THAT SUCH REGISTRATION OR
COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER OR DISTRIBUTION. ANY
SALES, TRANSFERS OR DISTRIBUTIONS OF THE SECURITIES MUST BE MADE IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S OF THE ACT."
Any other legends required by applicable state securities laws or applicable
laws of any foreign jurisdiction having jurisdiction over the ownership of the
Stock by the Purchaser.
Storm need not register a transfer of any shares of the Stock, and also may
instruct its transfer agent not to register the transfer of the Stock, unless
the conditions specified in the foregoing legends and under Reg S are satisfied
to the extent applicable.
H. Purchaser's Reg. S. Covenants. Purchaser will not sell, transfer or
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otherwise dispose of the Stock to a U.S. Person for a period of one (1) year
after the Closing Date and will not thereafter sell, transfer or otherwise
dispose of such shares to a U.S. Person unless it has complied with one of the
following conditions: (i) there is in effect a registration statement under the
Securities Act covering the proposed transfer; or (ii) such proposed transfer is
within the limitations of and in compliance with the terms and provisions of
Rule 144 under the Securities Act. In each case, any transfer will be in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction, including the provisions of Reg. S., and
in accordance with the legends set forth on the Stock. Each Purchaser further
agrees to provide any person purchasing any Stock from such Purchaser a notice
advising such purchaser that reseals of such securities are restricted as stated
herein. Purchaser understands that the registrar and transfer agent for the
Stock will not be required to accept for registration or transfer any shares of
Stock, except upon presentation of evidence satisfactory to Storm that the
foregoing restrictions on transfer have been complied with
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I. Miscellaneous.
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1. Successors and Assigns. The terms and conditions of this Agreement
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shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
2. Governing Law. This Agreement shall be governed by and construed
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under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
3. Severability. If one or more provisions of this Agreement are held
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to be unlawful or unenforceable under applicable law, such provision(s) shall
be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms to the maximum extent possible.
4. Counterparts and Facsimile Copies. This Agreement may be executed
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in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any facsimile copy or
counterpart of this Agreement showing a signature of either of the parties shall
have the same force and effect as a copy or counterpart bearing an original
signature.
5. Headings. The headings and captions used in this Agreement are used
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for convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all of which are
incorporated herein by this reference.
6. Cost, Expenses and Taxes. Purchaser and Seller each shall pay its
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own fees and expenses incurred in connection with the transactions contemplated
hereby. In the event that the Closing shall not occur, each of the parties
hereto shall bear its own cost and expenses in this transaction.
7. Amendments and Waivers. Any term of this Agreement may be amended
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only with the consent of all parties and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument signed by the party
against whom enforcement of any such amendment or waiver is sought.
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supersedes any and all prior negotiations, correspondence, agreement,
understandings, duties or obligations with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"SELLER"
PRIMAX ELECTRONICS, LTD.
By: Xxxxx Xxxxx
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Signature: /s/ Xxxxx Xxxxx
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Title: President, CEO
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"PURCHASER"
By: /s/ Xxx Xxx Xxx
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Seamax Engineering Pte Ltd.
Signature: /s/ Xxxx Xxx
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Title: Managing Director
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