EXHIBIT 10.14
STOCK REDEMPTION AGREEMENT
STOCK REDEMPTION AGREEMENT dated as of October 20, 1998 by and
between PROGINET CORPORATION, a Delaware corporation with offices at 000 Xxxxxx
Xxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx X. Xxxxx, an
individual residing at 00 Xxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 (the
"Seller").
W I T N E S S E T H:
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WHEREAS, the Seller is the owner of and holder of 2,777,336
shares of common stock, par value $.001 per share (the "Common Stock"), of the
Company;
WHEREAS, the Company desires to redeem, and the Seller desires
to sell, 750,000 shares of Common Stock owned by the Seller (the "Shares"); and
WHEREAS, the Seller desires to grant to the Company a right of
first refusal with respect to the remaining 2,027,336 shares of Common Stock
owned by the Seller (the "First Refusal Shares") on the terms set forth herein.
NOW THEREFORE, in consideration of the promises and mutual
covenants, agreements, representations and warranties herein contained, the
parties hereto agree as follows:
1. Sale and Purchase of Shares. Subject to the terms and
conditions of this Agreement, the Seller hereby sells, assigns, transfers and
delivers to the Company, and the Company hereby purchases, redeems and accepts
from the Seller, for and in consideration of the Purchase Price (as hereinafter
defined), the Shares.
2. Purchase Price and Payment.
2.1. Subject to the terms and conditions of this Agreement,
the purchase price to be paid by the Company to the Seller for and in
consideration of the sale to the Company of the Shares is an amount equal to
$232,500 (the "Purchase Price").
2.2. The Purchase Price shall be paid by the Company to the
Seller as follows: (i) forgiveness by the Company of a loan obligation of the
Seller to the Company in the aggregate amount of $14,870, (ii) $50,000 by
certified or bank check at the Closing (as hereinafter defined) and (iii) the
balance in thirty-six (36) equal installments of $4,656.38 with the first,
second, third and fourth payments due on the two, four, six and eight-month
anniversaries of the date hereof, respectively, and the remaining thirty-two
(32) equal payments payable monthly, commencing on the ten-month anniversary of
the date hereof and continuing for each successive month thereafter, each such
payment due on the 20th day of the month (or the next business day thereafter in
the event that the 20th day of any such month falls on a Saturday or Sunday),
with no interest whatsoever accruing or payable thereon, provided that, payment
by the Company to the Seller of any installment pursuant to this Section
2.2(iii) within five (5) days of the due date thereof shall not constitute a
breach of this Agreement. The Company agrees to deliver the original note
reflecting the aforementioned indebtedness marked "paid in full" to the Seller
at the Closing.
3. Right of First Refusal.
3.1. In the event that the Seller receives, and is willing to
accept, any offer from a third party to purchase, in a single transaction or in
a series of transactions, whether publicly in ordinary brokerage transactions or
otherwise through a securities exchange, bulletin board, over-the-counter market
or otherwise (a "Public Sale") or other than as a Public Sale, including without
limitation, a private sale to an individual or entity or otherwise (a "Private
Sale"), a minimum of 75,000 First Refusal Shares (the "Offer"), then the Seller,
prior to, and as a condition of, accepting the Offer, shall deliver written
notice to the Company (the "Offer Notice") setting forth (i) the number of
shares of Common Stock to which the Offer applies (the "Offer Shares"), (ii) the
price per share and aggregate consideration offered, (iii) all other material
terms and conditions of the Offer and (iv) if in writing, a copy of the Offer.
For the avoidance of doubt, if the Seller sells fewer than 75,000 First Refusal
Shares in a Public Sale where he does not know the identity of the beneficial
purchaser, the Right of First Refusal shall not apply.
3.2. The Company shall have the right, exercisable by
delivering written notice to the Seller within three (3) days in the case of a
Public Sale or ten (10) days in the case of a Private Sale, after the Company's
receipt of the Offer Notice (the "Company Notice"), to purchase all (but not
less than all) of the Offer Shares at the same price and upon the same terms and
conditions as are set forth in the Offer Notice. The Company Notice shall
specify a closing date no later than twenty (20) days following the Company's
receipt of the Offer Notice together with a time and place of closing.
3.3. If the Company does not deliver the Company Notice to the
Seller within the specified time period, the Seller shall have the right to sell
the Offer Shares to the third party. If the Seller does not sell the Offer
Shares to the third party within ninety (90) days after the
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date of the Offer Notice and on the terms and conditions set forth therein, such
Offer Shares shall continue to be bound by the terms and provisions contained
herein.
3.4. The right of first refusal set forth in this Section 3
shall not apply with respect to any Offers for which an Offer Notice thereof is
delivered to the Company after the fourth anniversary of the date of this
Agreement.
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4. Closings.
4.1. The sale and purchase of the Shares shall take place at
the offices of the Company on the date hereof or on such other date or at such
other location as the parties hereto shall mutually agree upon (hereinafter
referred to as the "Closing" or the "Closing Date"), provided that, the sale and
purchase of the Shares shall not be effective prior to October 26, 1998.
4.2. The Seller shall (i) at the Closing sell, transfer,
assign and deliver to the Company the Shares together with stock powers relating
thereto and (ii) at any closing in connection with any purchase and sale of
First Refusal Shares, sell, transfer, assign and deliver to the Company the
First Refusal Shares, in each instance free and clear of any and all liens,
claims or encumbrances whatsoever and evidenced by duly issued and registered
certificate(s) representing the Shares or First Refusal Shares, as the case may
be, accompanied by stock transfer power(s) duly executed in blank, with all
necessary stock transfer stamps affixed.
5. Legending of Certificates/Voting of Shares.
5.1. The Company undertakes to direct the transfer agent for
the Common Stock to remove any restrictive legends contained on any certificates
representing shares of Common Stock owned by the Seller and deliver a letter at
Closing to such effect in the form annexed hereto as Exhibit A.
5.2. Through and including December 31, 2000, the Seller
hereby irrevocably and unconditionally agrees that, with respect to that number
of shares of Common Stock owned by the Seller (of record and beneficially) that
exceeds five (5%) percent of the then issued and outstanding Common Stock, the
Seller will vote all such excess shares in connection with any meeting (whether
annual or special) or written consent of shareholders in lieu of a meeting on
each matter submitted to the meeting or as to which consent in lieu of a meeting
is sought in the same proportion that all other shareholder votes are cast at
such meeting or written consent of shareholders on such matter.
5.3. In furtherance of the Seller's obligation pursuant to
Section 5.2, the Seller hereby agrees that, no later than ten (10) days prior to
any meeting (whether annual or special) or written consent in lieu of a meeting
of the shareholders of the Company, the Seller shall execute and deliver a
proxy, which proxy shall be coupled with an interest, to the transfer agent for
the shares of Common Stock of the Company in the case of a meeting, or to the
Company in the case of a written consent in lieu of a meeting, with respect to
that number of shares of Common Stock owned by the Seller (of record and
beneficially) that exceeds five (5%) percent of the then issued and outstanding
Common Stock on the record date for such meeting or consent (or, if no record
date has been set, on the date as of which transfer books have been closed for
such meeting or consent) (the "Proxy Shares"), which proxy shall direct the
proxy or proxies named therein to vote all Proxy Shares on each matter submitted
to the meeting or as to which consent is sought in
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the same proportion that all other shareholder votes are cast at such meeting or
written consent of shareholders on such matter. In the event that the Seller
fails to deliver any such proxy within the ten (10) day period set forth above,
the Seller shall, automatically and with no further action required by any
party, be deemed to have granted an irrevocable proxy to Xxxxxx Xxxxxx Flattau &
Klimpl, LLP, which proxy shall be coupled with an interest, to effectuate the
vote of the Proxy Shares as contemplated in this Section for such meeting or
consent in lieu of a meeting.
6. Representations and Warranties of the Seller. The Seller
represents and warrants to the Company as of the date hereof, which such
representations and warranties shall be confirmed in writing by the Seller to
the Company upon the Company's request as of any date in which the Company
delivers to the Seller a Company Notice, as follows:
6.1. The Seller is the lawful owner of record and beneficially
owns, and has good and marketable title to, the Shares and the First Refusal
Shares, as applicable. The sale, transfer, assignment and delivery of the Shares
and the First Refusal Shares, as applicable, by the Seller pursuant to this
Agreement is and will transfer to the Company good and marketable record and
beneficial title thereto, free and clear of all pledges, liens, security
interests, encumbrances, equities, claims and other charges of any kind
whatsoever.
6.2. The Seller has the capacity to execute and deliver this
Agreement and perform all of his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement and the agreements and
documents contemplated hereby are valid and legally binding obligations of the
Seller, enforceable against him in accordance with their respective terms. Each
document and instrument of transfer contemplated by this Agreement is valid and
legally binding upon the Seller in accordance with its terms.
6.3. The execution and delivery of this Agreement and the
agreements and documents contemplated hereby by the Seller and the consummation
of the transactions contemplated hereby do not and will not (a) with or without
the giving of notice or the passage of time or both, violate, conflict with,
result in the breach or termination of, constitute a default under, or result in
the right to accelerate or loss of rights under or the creation of any lien,
encumbrance or charge upon any assets or property of the Seller, pursuant to the
terms or provisions of any contract, agreement, commitment, indenture, mortgage,
deed of trust, pledge, security agreement, note, lease, license, divorce or
separation agreement, covenant, understanding or other instrument or obligation
to which the Seller is a party or by which any of the Seller's properties or
assets may be bound or affected, or (b) violate any order, writ, injunction,
judgment or decree of any court, administrative agency or governmental body
binding upon the Seller.
6.4. The Seller represents that he caused "Form 23" to be
filed with the British Columbia Securities Commission and the Vancouver Stock
Exchange on October 19, 1998 via facsimile in the form annexed hereto. To the
best of the Seller's knowledge, no other consent, approval or authorization of
or declaration or filing with any governmental authority or other
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persons or entities on the part of the Seller is required in connection with
execution or delivery of this Agreement or the consummation of the transactions
contemplated hereby.
6.5. Any obligation or liability for taxes (state or federal)
incurred by the Seller in connection with this Agreement or the transactions
contemplated hereby shall be the responsibility of and be paid for by the
Seller.
6.6. There is no fact known to the Seller that the Seller has
not disclosed to the Company and that materially affects or may materially
affect the business, operations, prospects, properties, assets or conditions
(financial or otherwise) of the Company. The Seller acknowledges that he has
been represented by independent legal counsel with respect to this Agreement and
the transactions contemplated hereby.
6.7. The Seller acknowledges that he is a sophisticated
investor, has such knowledge and experience in financial and business matters in
general and has full familiarity with the current business and future business
prospects of the Company and the financial and other affairs of the Company and
acknowledges that he has had access to and has received sufficient written and
oral information about the Company, including any and all such information
requested by the Seller and including copies of all of the publicly available
information prepared by the Company in order to make an informed decision as to
the disposition of the Shares by the Seller, including without limitation, the
Annual Report of the Company for the year ended July 31, 1998. In addition, the
Seller acknowledges that he has had access to the officers, directors and
employees of the Company to discuss the business, affairs and prospects of the
Company and has had the opportunity to obtain additional information necessary
to evaluate the merits and the risks of engaging in the transactions
contemplated by this Agreement. The Seller has reached an independent decision
with respect to the advisability of the sale of the Shares and, in arriving at
his decision, has considered both the value of the Shares as well as the present
condition and future prospects of the Company.
6.8. The Seller acknowledges that he understands that he will
not be able to benefit from any difference between the Purchase Price and any
amount that he could otherwise receive from an unaffiliated third party willing
and able to purchase the Shares or from any future appreciation in the value of
the Shares, whether caused by merger, consolidation, sale of stock or assets or
otherwise.
7. Representations and Warranties of the Company. The Company
represents and warrants to the Seller as follows:
7.1. The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware, has all
requisite corporate power and authority to own its properties and conduct its
business as being conducted, and has full legal right, power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
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7.2. The execution of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Company,
and such authorization is in full force and effect as of the date hereof.
7.3. Neither the execution and the delivery of this Agreement,
the consummation of the transactions contemplated hereby, nor compliance with
the terms and provisions hereof, will conflict with or result in a breach of the
provisions of the Certificate of Incorporation or the By-Laws of the Company, or
of any material judgment, agreement or instrument to which the Company is a
party or by which the Company is bound.
7.4. The Company has made available to the Seller all of the
publicly available filings relating to the Company that have been filed to date.
8. Survival of Representations, Warranties, Covenants and
Agreements. Each party hereto covenants and agrees that his or its
representations, warranties, covenants and agreements contained in this
Agreement shall survive the execution and delivery of this Agreement.
9. Indemnification.
9.1. The Seller covenants and agrees to indemnify and hold the
Company, its officers, directors and agents harmless from and against, and to
reimburse the Company, its officers, directors and agents for any claim for any
losses, damages, liabilities, deficiencies and expenses (including reasonable
counsel fees) (hereinafter a "Claim") incurred by the Company, its officers,
directors and agents or any of them after the date hereof by reason of, or
arising from, (a) any material misrepresentation or material breach of any
representation or warranty contained in this Agreement by the Seller or (b) any
failure by the Seller to perform any obligation or covenant required to be
performed by him under any provision of this Agreement or any agreements
contemplated hereby.
9.2. The Company covenants and agrees to indemnify and hold
the Seller and his agents harmless from and against, and to reimburse the Seller
and his agents for any Claim incurred by the Seller and his agents after the
date hereof by reason of, or arising from, (a) any material misrepresentation or
material breach of any representation or warranty contained in this Agreement by
the Company or (b) any failure by the Company to perform any obligation or
covenant required to be performed by it under any provision of this Agreement.
10. Notices. All notices and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered in person or sent by registered or
certified mail, return receipt requested, postage prepaid, or delivered via
facsimile to the parties hereto at the following addresses or at any other
addresses specified in accordance with this Section:
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if to the Seller, at his address hereinabove first mentioned
with a copy to:
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Company, at:
Proginet Corporation
000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address as any party hereto shall have specified by notice in
writing to the other party hereto. All such notices and communications shall be
deemed to have been received on the date of delivery thereof or the fifth
business day after the mailing thereof.
11. Brokerage Fees. The parties represent and warrant to each
other that there are no obligations or liabilities for brokerage of finders'
fees or agents' commissions in connection with this Agreement, or the
transactions contemplated hereby.
12. Expenses. Each of the parties hereto shall pay the fees
and expenses of his or its counsel, accountants and other experts and all other
expenses incurred by such party incident to the negotiation, preparation and
execution of this Agreement.
13. Miscellaneous.
13.1. Partial Invalidity. If it is found in a final judgment
of a court of competent jurisdiction (not subject to a further appeal) that any
term or provision of this Agreement is
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invalid or unenforceable, (a) the remaining terms and provisions of this
Agreement shall be unimpaired and shall remain in full force and effect and (b)
the invalid or unenforceable provision or term of this Agreement shall be
replaced by a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision.
13.2. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument. This Agreement may
be executed via facsimile.
13.3. Successors and Assigns. The benefits of this Agreement
shall inure to the parties hereto, their respective successors and assigns and
to the indemnified parties hereunder and their successors and representatives,
and the obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and assigns.
13.4. Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York without giving effect to
principles of conflicts or choice of law thereof.
13.5. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in the State of
New York, County of New York under its Commercial Arbitration Rules before a
single arbitrator and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
13.6. Headings. Headings of the Sections in this Agreement are
for reference purposes only and shall not be deemed to have any substantive
effect.
13.7. Cancellation of Shareholder Voting Agreements. Effective
as of the date hereof, the Seller hereby agrees not to exercise any rights of
the Seller pursuant to those certain Shareholder Voting Agreements dated October
14, 1994 by and among the Seller, the Company and (i) Xxxxx Xxxxx, (ii) Xxxxx X.
Xxxxx, (iii) Xxxxxx X. Xxxxx, (iv) Xxxxxx Xxxx, (v) Xxxxxxxxx X. Xxxxxxx, (vi)
Xxxxxxx Venture Partnership, (vii) Pacific Hill Ventures, Inc., (viii) Xxxxxxx
X. Xxxxx, (ix) Xxxxx X. Xxxxx, (x) Xxxx X. Daily, (xi) Xxxxxxx X. Xxxxxxx and
(xii) Xxxxxx X. Xxxxx (collectively, the "Shareholder Voting Agreements"). The
Seller shall execute and deliver a letter in the form annexed hereto as Exhibit
B on the date hereof. At the Closing, the Seller shall execute and deliver to
the Company any and all agreements or instruments necessary to terminate and
cancel each of the Shareholder Voting Agreements. The Company hereby undertakes
to deliver the individual letters to the named persons.
13.8. Entire Agreement; Amendments. Except as provided for in
that certain (i) Employment Agreement of even date herewith by and between the
Company and the Seller, (ii) Escrow Agreement by and among the Company, the
Seller and Xxxxxx Xxxxxx Flattau & Klimpl,
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LLP, (iii) Confidential Information and Non-Competition Agreement dated August
30, 1994 by and between the Seller and the Company and (iv) Management
Continuity Agreement dated as of August 26, 1994 by and between the Seller and
the Company, this Agreement and any documents contemplated herein or therein
contain, and are intended as, a complete statement of all the terms of the
arrangements between the parties with respect to the matters provided for, and
supersede any and all prior agreements, arrangements and understandings between
the parties with respect to the matters provided for herein. No alteration,
waiver, amendment, change or supplement hereto shall be binding or effective
unless the same is set forth in writing, signed by the parties hereto or a duly
authorized representative thereof.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
on the day and year first above written.
PROGINET CORPORATION
By: ________________________________
Name: Xxxxx X. Xxxxx
Title: President
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Xxxxxx X. Xxxxx
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EXHIBIT A
October 20, 1998
CIBC Mellon Trust Company
Mall Level
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Re: Proginet Corporation
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Gentlemen:
Reference is made to 2,777,336 shares of common stock, par value $.001
per share (the "Shares"), of Proginet Corporation (the "Company"), owned of
record by Xxxxxx X. Xxxxx (the "Shareholder"), and evidenced by Certificate Nos.
00966, 00967, 00970 and 01434 (the "Old Certificates"). You are hereby
irrevocably directed to cancel each of the Old Certificates and issue and
deliver (i) in accordance with the Stock Power of the Shareholder annexed
hereto, to and in the name of the Company, a certificate for 750,000 Shares and
(ii) to Xxxxxx Xxxxxx Flattau & Klimpl, LLP, as Escrow Agent, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq. and in the
name of the Shareholder, a certificate or certificates representing 2,027,336
Shares, in each instance (i) free of any restrictive legends thereof or stop
transfer instructions thereon and (ii) dated October 26, 1998. You are requested
to deliver the aforementioned certificates as so directed via federal express
for delivery as soon as practicable.
Very truly yours,
PROGINET CORPORATION
By:__________________________________
Name: Xxxxx X. Xxxxx
Title: President
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto Proginet Corporation, a Delaware corporation (the "Company"),
750,000 shares of the Common Stock, par value $.001 per share, of the Company,
standing in the undersigned's name on the books of the Company represented by
Certificate No. 00966 herewith, and does hereby irrevocably constitute and
appoint CIBC Mellon Trust Company, attorney to transfer the said stock on the
books of the Company with full power of substitution in the premises.
DATED AS OF: October 20, 1998
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Xxxxxx X. Xxxxx
In presence of
--------------------------
EXHIBIT B
October 20, 1998
[Name of Shareholder]
[Address]
Re: Proginet Corporation/Shareholder Voting Agreements
---------------------------------------------------
Dear [Shareholder]:
Reference is made to that certain Shareholder Voting Agreement dated
October 14, 1994 by and among you, the undersigned and Proginet Corporation (the
"Shareholder Voting Agreement"). The purpose of this letter is to inform you
that you are hereby released and discharged, effective as of the date hereof,
from any and all obligations pursuant to the Shareholder Voting Agreement,
including without limitation, the obligation contained therein with respect to
the voting of shares of Proginet Corporation.
Very truly yours,
Xxxxxx X. Xxxxx
AGREED AND ACKNOWLEDGED:
PROGINET CORPORATION
By:_____________________________________
Name: Xxxxx X. Xxxxx
Title: President
