EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into as
of April 22, 2002, by Planar Systems, Inc., an Oregon corporation ("Issuer") and
Xxxxxx X. Xxxx, G. Xxxxxxx Xxxxxxx XX, Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
(each, a "Shareholder" and together, the "Shareholders").
This Agreement is entered into in connection with that certain Agreement
and Plan of Merger dated as of March 18, 2002, as the same may be amended or
modified (the "Merger Agreement"), by and among the Issuer, Bone Doctor
Acquisition Corporation ("Sub"), DOME imaging systems, inc. ("Target") and
certain stockholders of Target. The Merger Agreement provides for the merger of
Bone Doctor Acquisition Corporation with and into Target (the "Merger") on the
terms and conditions set forth in the Merger Agreement. Capitalized terms used
herein but not defined herein shall have their defined meanings as set forth in
the Merger Agreement.
1. Stock Purchase and Sale. Subject to the terms and conditions set forth
in this Agreement, at the Closing (as defined in Section 8 below), Issuer will
issue and sell to each Shareholder that number of shares of Issuer common stock
calculated as follows:
(x * 10%)
--------- = A, where
z
x = the total Merger Consideration payable to such Shareholder (without regard
to any amount deposited in escrow)
z = the Average Closing Price (as defined in the Merger Agreement) (the
"Purchase Price")
A = shares of Issuer common stock purchased by such Shareholder (the "Shares")
2. Representations and Warranties of Issuer. Issuer represents and warrants
to each Shareholder that:
2.1 Organization. Issuer is a corporation duly organized and validly
existing under the laws of the State of Oregon and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2.2 Authority. Issuer has full corporate power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated by this Agreement. The execution, delivery and performance by
Issuer of this Agreement and the consummation by it of the transactions
contemplated by this Agreement have been duly authorized by its board of
directors and no other corporate proceedings on the part of Issuer are necessary
to authorize the execution, delivery and performance by it of this Agreement and
the consummation by it of the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by Issuer and constitutes a valid
and legally binding obligation of Issuer, enforceable against it in accordance
PAGE 1 - STOCK PURCHASE AGREEMENT
with its respective terms, except that such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
and judicial decisions affecting creditors' rights generally and (ii) equitable
principles which may limit the availability of certain equitable remedies (such
as specific performance) in certain instances.
2.3 Noncontravention. The execution, delivery and performance by
Issuer of this Agreement and the consummation by it of the transactions
contemplated by this Agreement do not and will not (i) conflict with or result
in a violation of any provision of the Articles of Incorporation or Bylaws of
Issuer, (ii) conflict with or violate any judgment, order, decree, statute, law,
ordinance, rule or listing requirement of the Nasdaq National Market or other
rule or regulation applicable to the Issuer or its subsidiaries, or by which it
or any of the properties or assets of Issuer or its subsidiaries may be bound,
or (iii) result in any violation or breach of, or constitute (with or without
notice or lapse of time, or both) a default or require any notice to or consent
by any party under, any note, bond, mortgage, indenture, lease, contract or
other agreement, instrument or obligation to which Issuer or any of its
subsidiaries is a party or by which any of them or any of their properties or
assets may be bound, except in the case of clauses (ii) and (iii) where any such
violations, breaches, defaults or failures to give notice or obtain consent
would not have a material adverse effect on the Issuer or the transactions
contemplated by this Agreement.
2.4 Issuer SEC Filings and Financial Statements. Issuer has filed all
required forms, reports, and documents with the SEC (the "Issuer SEC Filings"),
each of which complied in all material respects with the applicable requirements
of the Securities Act of 1933, as amended (the "Securities Act"), and the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder, each as in effect on the dates
such forms, reports, and documents were filed. None of such Issuer SEC Filings,
including any financial statements or schedules included or incorporated by
reference therein, contained, when filed, any untrue statement of a material
fact or omitted to state a material fact required to be stated or incorporated
by reference therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
consolidated financial statements of Issuer included in the Issuer SEC filings
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC in respect
thereof and fairly present, in all material respects, in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent basis
(except as may be indicated in the notes thereto), the consolidated financial
position of Issuer and its consolidated subsidiaries as of the dates thereof and
their consolidated results of operations and changes in financial position for
the periods then ended (subject, in the case of any unaudited interim financial
statements, to normal year-end adjustments).
2.5 Issuer Shares and Options. The Shares to be issued pursuant to
this Agreement are and will be duly authorized, validly issued, fully paid and
nonassessable. The Shares will be authorized for listing on the Nasdaq National
Market.
2.6 No Violations; Consents and Approvals. The execution and delivery
of this Agreement by Issuer does not, and the performance by Issuer of the
transactions contemplated herby will not (i) conflict with the articles of
incorporation or bylaws of Issuer; (ii) conflict with, or result
PAGE 2 - STOCK PURCHASE AGREEMENT
in any violation of, or constitute a default (with or without notice, lapse of
time or both) under, or give rise to a termination, cancellation or acceleration
of any obligation or to loss of benefit under, any material contract or permit
to which Issuer is a party or by which it is bound, (iii) constitute a violation
of any federal, state, local or foreign law, rule or regulation applicable to
Issuer, or any order, judgment, decree, writ or injunction of any governmental
entity applicable to Issuer. Except for filings, permits, authorizations,
consents and approvals required under federal and state securities laws, no
consent, approval, order or authorization of, or registration, declaration or
filing with any domestic or foreign court, government, regulatory agency,
authority, entity or instrumentality or subdivision thereof is required to be
obtained or made by or in respect of Issuer in connection with the execution and
delivery of this Agreement by Issuer, or performance by it of the transactions
contemplated hereby to be performed by it.
2.7 No Material Adverse Change. Since December 28, 2001, there has not
been any material adverse change in the business operations, properties, assets
or condition of Issuer, and to the Knowledge of Issuer, no event has occurred or
circumstances exist that may result in such a material adverse change.
3. Representations, Warranties and Covenants of Shareholders. Each
Shareholder understands that the representations and warranties and covenants of
the Shareholders set forth herein will be relied upon by Issuer, its counsel and
accounting firm. Each Shareholder represents, warrants and covenants as follows:
3.1 Such Shareholder has full power and authority to execute this
Agreement, to make the representations and warranties and covenants herein
contained and to perform such Shareholder's obligations hereunder.
3.2 Such Shareholder is acquiring the Shares solely for such
Shareholder's own account, for investment and not with a view to any resale or
other distribution thereof in violation of the Securities Act.
3.3 Such Shareholder acknowledges and understands that the terms of
this Agreement and the transactions contemplated by this Agreement have not been
reviewed by the Securities and Exchange Commission ("SEC") or by any state
securities authorities, that the Shares have not been registered under the
Securities Act, any state securities law or registered or qualified under any
other securities laws, based on, among other factors, that no distribution or
public offering has been effected and the Shares will be issued by Issuer in
connection with a transaction that does not involve any public offering within
the meaning of Section 4(2) of the Securities Act. Such Shareholder understands
that Issuer is relying on such Shareholder's representations as set forth herein
for purposes of claiming such exemption, including the bona fide nature of each
such Shareholder's investment intent as expressed above. Such Shareholder
acknowledges that, except as is set forth in Section 7 of this Agreement, Issuer
is under no obligation to register the Shares under the Securities Act. As a
result, unless an exemption from such registration is then available, such
Shareholder must hold the Shares until such time as Issuer has registered the
Shares for resale under the Securities Act and qualified the Shares for resale
under applicable state securities laws.
PAGE 3 - STOCK PURCHASE AGREEMENT
3.4 Such Shareholder is familiar with Regulation D promulgated under
the Securities Act and is an "accredited investor" as defined in Rule 501(a) of
such Regulation D. Such Shareholder acknowledges that the Shares are volatile
securities that involve a high degree of risk. Such Shareholder represents that
it is capable of determining what documents and information are necessary to
evaluate an investment in the Shares, and has the capacity to protect its own
interests in connection with the acquisition of the Shares.
3.5 Such Shareholder represents that its financial condition is such
that the Shareholder is able to bear any and all economic risks associated with
investment in the Shares, including the risk of holding the Shares for an
indefinite period of time. Such Shareholder represents that it can also afford a
complete loss of its investment in the Shares, and has adequate means of
providing for such Shareholder's current needs and possible personal
contingencies.
3.6 Until such time as the Shares have been registered for resale or
Issuer has received an opinion of counsel reasonably satisfactory to Issuer that
sales of Shares may be made under Rule 144(k) without registration under the
Securities Act, such Shareholder understands and acknowledges that each stock
certificate representing the Shares shall bear a legend in, or substantially in,
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS CONTAINED IN A STOCK PURCHASE AGREEMENT DATED APRIL 22,
2002 AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAWS. NEITHER SUCH SHARES NOR
ANY PORTION THEREOF OR INTEREST THEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF (I) EXCEPT AS SET FORTH
IN THE STOCK PURCHASE AGREEMENT, AND (II) UNLESS THE SAME ARE
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE AND THE CORPORATION SHALL HAVE RECEIVED EVIDENCE OF SUCH
EXEMPTION REASONABLY SATISFACTORY TO THE CORPORATION (WHICH MAY
INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION)."
3.7 Such Shareholder understands that Issuer may maintain a "stop
transfer order" against the Shares for the purpose of ensuring compliance with
applicable securities laws. Issuer shall not be required (a) to transfer or have
transferred on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or (b) to treat as an
owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so transferred
in violation of any provision of this Agreement. Issuer agrees that such stop
transfer instructions and legends will be promptly removed
PAGE 4 - STOCK PURCHASE AGREEMENT
and transfers of Issuer Common Stock will be processed if the provisions of this
Agreement and the Securities Act are complied with.
3.8 Such Shareholder has received copies of Issuer's Annual Report on
Form 10-K for the fiscal year ended September 28, 2001, Issuer's 2001 Annual
Report to Shareholders, Issuer's Proxy Statement dated December 21, 2001 and
Issuer's Quarterly Report on Form 10-Q for the quarter ended December 28, 2001
(collectively, the "Disclosure Materials"). Such Shareholder has made such
further investigation as such Shareholder deems appropriate as to, and has had
the opportunity to become fully familiar with and knowledgeable regarding, the
financial condition, business affairs and prospects of Issuer. Such Shareholder
has been given the opportunity to ask questions of, and receive answers from,
the principal officers of Issuer concerning the business and financial affairs
of Issuer, and has had further opportunity to obtain any additional information
necessary to verify the accuracy of the foregoing information. To the extent
such Shareholder has not sought information regarding any particular matter,
such Shareholder represents that such Shareholder had no interest in doing so.
Such Shareholder has obtained the information relating to Issuer it has deemed
necessary to make an investment decision to purchase the Shares.
4. Negative Covenants of Shareholders.
4.1 Each Shareholder covenants and agrees that it will not sell,
transfer, exchange, pledge or otherwise dispose of, or make any offer or
agreement relating to any of the foregoing with respect to, any of the Shares,
or any option, right or other interest with respect to the Shares before the
first anniversary of the Closing Date. After the first anniversary of the
Closing Date, each Shareholder severally covenants and agrees that it will not
sell, transfer, exchange, pledge, or otherwise dispose of, or make any offer or
agreement relating to any of the foregoing with respect to, any of the Shares
acquired by such Shareholder, or any option, right or other interest with
respect to the Shares, unless (i) such transaction is permitted pursuant to Rule
144 under the Securities Act, (ii) counsel representing Shareholder, which
counsel is reasonably satisfactory to Issuer, shall have advised Issuer in a
written opinion letter satisfactory to Issuer and Issuer's legal counsel, and
upon which Issuer and its legal counsel may rely, that no registration under the
Securities Act would be required in connection with the proposed sale, transfer
or other disposition, (iii) a registration statement under the Securities Act
covering the Shares proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed sale, transfer or other
disposition, and containing a current prospectus, shall have been filed with the
SEC and made effective under the Securities Act, or (iv) an authorized
representative of the SEC shall have rendered written advice to Shareholder
(sought by Shareholder or counsel to Shareholder, with a copy thereof and all
other related communications delivered to Issuer) to the effect that the SEC
would take no action, or that the staff of the SEC would not recommend that the
SEC take action, with respect to the proposed disposition if consummated.
4.2 Each Shareholder severally covenants and agrees that it has no
current plan or intention to sell, exchange or otherwise dispose of the Shares
received by it in connection with this Agreement.
PAGE 5 - STOCK PURCHASE AGREEMENT
5. Rule 144. From and after the Effective Time of the Merger and for so
long as is necessary in order to permit each Shareholder to sell the Shares held
by it pursuant to Rule 144 under the Securities Act, Issuer will file on a
timely basis all reports required to be filed by it pursuant to Section 13 of
the Exchange Act referred to in Paragraph (c)(1) of Rule 144 under the
Securities Act, in order to permit such Shareholder to sell the Shares held by
it pursuant to the terms and conditions of Rule 144. Each Shareholder
understands that, except as provided in this Section 5 and in Section 7 of this
Agreement, Issuer is under no obligation to register the sale, transfer or other
disposition of any Shares by or on behalf of such Shareholder or to take any
other action necessary in order to make compliance with an exemption from
registration available.
6. Restrictions on Resales. Each Shareholder agrees and acknowledges that,
in addition to the restrictions imposed under Sections 4 of this Agreement, the
provisions of the Securities Act prohibit the public resale of the Shares
(except in a transaction registered under the Securities Act) until such time as
such Shareholder has beneficially owned, within the meaning of SEC Rule 144(d),
the Shares for a period of at least one (1) year after the date of this
Agreement. Each Shareholder acknowledges that such Shareholder is familiar with
Rule 144 and agrees to comply with the provisions of such rule as applicable to
the Shares.
7. Registration of Shares.
7.1 Registrable Shares. For purposes of this Agreement, "Registrable
Shares" shall mean (i) the Shares issuable pursuant to this Agreement, and (ii)
any Issuer common stock issued as a dividend or other distribution with respect
to or in exchange for or in replacement of the Shares, provided, however, that
-----------------
the Registrable Shares shall not include any shares of Issuer common stock which
have previously been registered or which have been sold to the public.
7.2 Demand Registration. After the first anniversary of the Closing
Date, upon the written request of a Shareholder to register such Shareholder's
Registrable Shares for sale, and provided that Rule 144 is not available to such
Shareholder at that time, the Issuer shall, subject to the conditions and in
accordance with the procedures set forth in this Section 7.2, file a
registration statement (and use its best efforts to cause such registration
statement to become effective) with respect to all of such Shareholder's
Registrable Shares. The request for registration pursuant to this Section 7.2
shall specify all Registrable Shares to be registered and the manner of sale,
including the name and address of any proposed underwriter. The principal
underwriter or underwriters, if any, for any such offering shall be selected by
Shareholders, subject to approval of Issuer, which approval shall not be
unreasonably withheld. Issuer shall be required to keep the registration
statement pursuant to which the Registrable Shares are registered effective for
a period of three months (the "Registration Effective Period").
7.3 Suspension Right. Notwithstanding any other provision of this
Section 7, Issuer shall have the right at any time to require that Shareholders
suspend further open market offers and sales of Registrable Shares whenever, and
for so long as, in the reasonable judgment of Issuer after consultation with
counsel, the use of the registration statement and the prospectus related
thereto must be suspended due to the happening of any event as a result of which
the prospectus included in the registration statement, as then in effect,
includes an untrue statement of a material
PAGE 6 - STOCK PURCHASE AGREEMENT
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing (the "Suspension Right"). In the event Issuer
exercises the Suspension Right, such suspension will continue for the period of
time reasonably necessary for disclosure to occur at a time that is not
detrimental to Issuer and its shareholders or, if earlier, until such time as
the information or event is no longer material, each as determined in good faith
by Issuer after consultation with counsel. Notwithstanding the foregoing, Issuer
shall not impose the Suspension Right at any time for more than thirty (30)
consecutive days. Issuer will promptly give Shareholders written notice of any
such suspension and will use all reasonable efforts to minimize the length of
the suspension. The Registration Effective Period shall be extended by a period
of time equal to the duration of any period during which the Suspension Right is
imposed.
7.4 Further Obligations of Issuer.
7.4.1 Issuer shall furnish to Shareholders such reasonable number
of copies of the registration statement, each amendment and supplement thereto,
the prospectus included in the registration statement (including each
preliminary prospectus), any documents incorporated by reference into the
registration statement and such other documents as each Shareholder may
reasonably request in order to facilitate the disposition of Registrable Shares
owned by it.
7.4.2 Issuer will use its best efforts to diligently prepare and
file with the SEC such amendments and supplements to the registration statement
and the prospectus used in connection with the registration statement (and cause
such amendments to become effective) as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the registration statement.
7.4.3 Issuer shall notify Shareholders promptly (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and with respect to the registration statement or post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to the registration statement or prospectus or for additional information, (iii)
of the issuance by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of the registration statement or
the initiation of any proceeding for that purpose, and (iv) of the receipt by
Issuer of any notification with respect to the suspension of the qualification
of any of the Registrable Shares for sale in any jurisdiction or the initiation
of any proceeding for that purpose.
7.4.4 Issuer shall use commercially reasonable efforts to prevent
the issuance of any stop order suspending the effectiveness of the registration
statement, and if one is issued, will use commercially reasonable efforts to
obtain the withdrawal of any stop order suspending the effectiveness of the
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any Registrable Shares for sale in any
jurisdiction at the earliest possible time.
PAGE 7 - STOCK PURCHASE AGREEMENT
7.4.5 Issuer shall use its reasonable efforts to register or
qualify the Registrable Shares covered by the registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of the
Registrable Shares reasonably shall request, provided, however, the Issuer shall
not for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified or
consent to general service of process in any such jurisdiction.
7.5 Obligations of Shareholders.
7.5.1 Each Shareholder covenants and agrees that it shall
promptly furnish to Issuer such information regarding itself or the Registrable
Shares held by it, and the intended method of disposition of such securities, as
shall be reasonably requested by Issuer in order to effect the registration of
its Registrable Shares. Each Shareholder severally agrees that it will not
effect any disposition of its Registrable Shares that would constitute a sale
within the meaning of the Securities Act (including a disposition which
qualifies for an exemption from registration thereunder) except in compliance
with the Securities Act and the regulations thereunder, including all applicable
prospectus delivery requirements.
7.5.2 Each Shareholder severally covenants and agrees that it
will promptly advise Issuer of any changes in the information concerning such
Shareholder contained in the registration statement and that such Shareholder
will not make any sale of Registrable Shares pursuant to the registration
statement without complying with the prospectus delivery requirements of the
Securities Act.
7.5.3 Each Shareholder acknowledges that occasionally there may
be times (as described in Section 7.3) when Issuer must temporarily suspend the
use of the prospectus forming a part of the registration statement until such
time as an amendment to the registration statement has been filed by Issuer and
declared effective by the SEC, the relevant prospectus supplemented by Issuer or
until such time as Issuer has filed an appropriate report with the SEC pursuant
to the 1934 Act. During any period in which sales are suspended, such
Shareholder covenants and agrees that it will not offer or sell any such
Registrable Shares pursuant to the registration statement or any such
prospectus.
7.6 Expenses. Issuer agrees to bear its own costs and expenses for any
registration pursuant to this Section 7. The costs and expenses to be borne by
Issuer for purposes of this Section 7 shall include, without limitation,
printing expenses (including a reasonable number of prospectuses for circulation
by the selling Shareholders), legal fees and disbursements of counsel for
Issuer, "blue sky" expenses, accounting fees and filing fees, but shall not
include underwriting commissions or similar charges.
7.7 Indemnification.
7.7.1 Issuer will indemnify and hold harmless Shareholders
against any losses, claims, damages, or liabilities (joint or several) to which
it may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims,
PAGE 8 - STOCK PURCHASE AGREEMENT
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (A) any untrue statement or alleged untrue
statement of a material fact contained in the registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (B) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (C) any violation or alleged violation by
Issuer of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and Issuer will pay to Shareholders any legal or other
expenses reasonably incurred in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 7 shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of Issuer, which consent shall not be
unreasonably withheld; nor shall Issuer be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon (a) a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in the registration
statement by each Shareholder, or (b) a Violation that would not have occurred
if such Shareholder had delivered to the purchaser the version of the Prospectus
most recently provided by Issuer to Shareholders prior to the date of such sale.
7.7.2 Each Shareholder will severally indemnify and hold harmless
Issuer, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls Issuer within the
meaning of the Securities Act, any other Shareholder selling securities pursuant
to the registration statement and any controlling person of any such other
Shareholder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation (which includes without limitation the
failure of such Shareholder to comply with the prospectus delivery requirements
under the Securities Act, and the failure of such Shareholder to deliver the
most current prospectus provided by Issuer prior to such sale), in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Shareholder
expressly for use in the registration statement or such Violation is caused by
such Shareholder's failure to deliver to the purchaser of such Shareholder's
Registrable Shares a prospectus (or amendment or supplement thereto) that had
been made available to such Shareholder by Issuer prior to such sale; and such
Shareholder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this Section 7 in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 7
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shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Shareholders.
7.7.3 Each person entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim and any
litigation resulting therefrom, provided that counsel for the Indemnifying
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PAGE 9 - STOCK PURCHASE AGREEMENT
Party who conducts the defense of such claim or any litigation resulting
therefrom shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
----------------
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 7 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation, shall (except with the consent of
each Indemnified Party) consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
7.7.4 To the extent that the indemnification provided for in this
Section 7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
8. Closing.
8.1 Time and Place. In this Agreement, the term "Closing" means the
consummation of the sale and purchase of the Shares to take place on or after
the date of this Agreement. The Closing will occur on the fifth business day
after satisfaction or waiver of the conditions described in this Agreement,
other than those that by their terms are to occur at the Closing, at 10:00 a.m.,
Oregon time, at the offices of Xxxx Xxxxx LLP, 000 XX Xxxxxxxx , Xxxxx 0000,
Xxxxxxxx, Xxxxxx, or on such other day and at such other time and place as the
parties may mutually agree (the "Closing Date"). The parties shall use their
reasonable efforts to cause the Closing to occur by, but not later than, the
second business day following such Shareholder's receipt of its portion of the
Merger Consideration from the Paying Agent. At the Closing, Issuer shall deliver
to each Shareholder a stock certificate in proper form representing the Shares
to be issued to such Shareholder at the Closing, duly executed by Issuer. The
purchase of Shares by each Shareholder is intended to be a separate purchase.
8.2 Conditions of Obligations of Shareholder. The obligations of each
Shareholder under this Agreement to be performed or satisfied at or before the
Closing are subject to
PAGE 10 - STOCK PURCHASE AGREEMENT
satisfaction or waiver by such Shareholder (to the extent permitted by law) of
the following conditions, at or before the Closing:
8.2.1 Issuer, Sub, Target and Signing Target Stockholders shall
have entered into the Merger Agreement and the merger contemplated thereby shall
be complete and such Shareholder shall have received its portion of the Merger
Consideration from the Paying Agent.
8.2.2 Such Shareholder shall have received from Issuer (i) stock
certificates in proper form representing the Shares to be issued to such
Shareholder at the Closing, duly executed by Issuer, and (ii) such additional
documents as Shareholder may reasonably request for the purpose of confirming
the satisfaction of all the conditions stated in this Section 8.
8.2.3 Issuer shall have compiled in all material respects with
each of its obligations contained in this Agreement, to the extent that
compliance is required at or before the Closing. Each of the representations and
warranties of Issuer contained in this Agreement shall have been true in all
material respects when made and are true in all material respects as of the
Closing as though made at and as of the time of the Closing.
Issuer will use commercially reasonable efforts to cause all the conditions
stated in this Section 8 to be satisfied at or before the date set for the
Closing, except only such conditions as may have been waived by the
Shareholders. The conditions stated in this Section 8 are provided solely for
the benefit of the Shareholders and may be waived only by the Shareholders. Any
waiver will be effective only if stated expressly in writing by the Shareholder
against whom such waiver is sought to be enforced.
8.3 Conditions of Obligations of Issuer. As to each Shareholder, the
obligations of Issuer under this Agreement to be performed or satisfied at or
before the Closing with respect to such Shareholder are subject to satisfaction
or the waiver by Issuer (to the extent permitted by law) of the following
conditions with respect to such Shareholder, at or before the Closing:
8.3.1 Issuer shall have received at the Closing from such
Shareholder (i) a check for or wire transfer of the Purchase Price for the
Shares being purchased by such Shareholder hereunder, as provided in Article 1;
and (ii) such additional documents as Issuer may reasonably request for the
purpose of confirming the satisfaction of all the conditions stated in this
Section 8.
8.3.2 Issuer, Sub, Target and Signing Target Stockholders shall
have entered into the Merger Agreement.
8.3.3 Such Shareholder shall have complied in all material
respects with each of its obligations contained in this Agreement, to the extent
that compliance is required at or before the Closing. Each of the
representations and warranties of such Shareholder contained in this Agreement
shall have been true in all material respects when made and are true in all
material respects as of the Closing as though made at and as of the time of the
Closing.
9. Notices. All notices, requests, demands or other communications which
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to
PAGE 11 - STOCK PURCHASE AGREEMENT
have been duly given (i) upon receipt, if delivered by hand, (ii) one (1)
business day after deposit with a nationally-recognized overnight courier
service, with delivery charges prepaid or otherwise satisfied, or (iii) three
(3) business days after deposit in the United States mail, postage prepaid,
certified or registered mail, addressed to a party as follows:
if to Issuer:
Planar Systems, Inc.
0000 XX Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxx Xxxxx LLP
000 X.X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax No: (000) 000-0000
Telephone No.: (000) 000-0000
if to Shareholders, to:
Xxxxxx X. Xxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
G. Xxxxxxx Xxxxxxx XX
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Xxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
PAGE 12 - STOCK PURCHASE AGREEMENT
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax No: 000-000-0000
Telephone No: 000-000-0000
or to such other address as any party may designate for itself by notice given
as provided in this Agreement, except that notices of change of address shall
only be effective upon receipt.
10. Termination. This Agreement shall terminate and shall be of no further
force and effect upon the termination of the Merger Agreement, pursuant to its
terms.
11. Counterparts. This Agreement shall be executed in one or more
counterparts, any of which may be a facsimile copy, each of which shall be
deemed an original, and all of which together shall constitute one instrument.
12. Binding Agreement. This Agreement will inure to the benefit of and be
binding upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of Shareholder. Notwithstanding the foregoing, Issuer may not
assign this Agreement without the written consent of the Shareholders, and no
Shareholder may assign its right to purchase the Shares to be purchased by such
Shareholder hereunder without the written consent of Issuer.
13. Waiver. No waiver by any party hereto of any condition or of any breach
of any provision of this Agreement shall be effective unless in writing and
signed by each party hereto.
14. Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of Oregon.
Each of the parties hereto hereby irrevocably submits to the exclusive
jurisdiction of either (i) the Circuit Court of Multnomah County of the State of
Oregon or (ii) the United States District Court in Portland, Oregon, and all
courts from which an appeal may be taken, solely for the purpose of any suit,
action, or other proceeding arising out of or based upon this Agreement, or any
document, instrument, agreement or matter related thereto, and hereby waives to
the extent not prohibited by law, and agrees not to assert, by way of motion, as
a defense, or otherwise, in any such proceeding, any claim that he, she or it is
not subject personally to the jurisdiction of the above-named courts for such
proceedings. Process in any suit, action or other proceeding referred to in this
section may be served on any party through the procedures for notice herein.
15. Integration. This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter of the Agreement. The
representations, warranties and
PAGE 13 - STOCK PURCHASE AGREEMENT
agreements of the parties in this Agreement shall survive the Closing and the
purchase and sale of the Shares hereunder.
16. Attorneys' Fees. In the event of any legal action or proceeding to
enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorneys' fees, and disbursements whether or not the
proceeding results in a final judgment.
17. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
18. Third-Party Reliance. Counsel to the parties shall be entitled to rely
upon this Agreement.
19. Severability. In case any of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, any such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had been limited or modified
(consistent with its general intent) to the extent necessary to make it valid,
legal or enforceable, or if it shall not be possible to so limit or modify such
invalid, illegal or unenforceable provision or part of a provision, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained in this Agreement. In
any event, all other provisions of this Agreement will be deemed valid and
enforceable to the full extent.
[SIGNATURE PAGE FOLLOWS]
PAGE 14 - STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first written above.
SHAREHOLDERS PLANAR SYSTEMS, INC.
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxxxxxxxxx
------------------------- --------------------------------------------
Xxxxxx X. Xxxx Xxxxxx Xxxxxxxxxxxxx
President and Chief Executive Officer
/s/ G. Xxxxxxx Xxxxxxx XX
-------------------------
G. Xxxxxxx Xxxxxxx XX
/s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------
Xxxxx X. Xxxxxx
SIGNATURE PAGE - STOCK PURCHASE AGREEMENT
