EXHIBIT 10.40
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HEALTHGATE DATA CORP.
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COMMON STOCK PURCHASE AGREEMENT
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DATED AS OF NOVEMBER 3, 1999
HEALTHGATE DATA CORP.
COMMON STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made this 3rd day of
November, 1999 by and among HealthGate Data Corp., a Delaware corporation (the
"Company"), and Snap! LLC, a Delaware limited liability company (the
"Investor").
THE PARTIES HERETO AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
1.1. AUTHORIZATION OF SHARES. The Company has authorized the issue and
sale of 126,072 shares of Common Stock, $.01 par value (the "Common Stock"), of
the Company to be issued under this Agreement (which following the Company's
proposed 3.966 for 1 stock split will be automatically adjusted to 500,000
post-split shares).
1.2. PURCHASE AND SALE OF THE COMMON STOCK. Pursuant to the Snap
Strategic Alliance Agreement dated October 29, 1999 between the Investor, the
Company, and Xxxx.xxx, Inc., and subject to the terms and conditions of this
Agreement and on the basis of the representations and warranties set forth
herein, the Company agrees to issue and sell to the Investor and the Investor
agrees to purchase from the Company 126,072 shares of Common Stock (the
"Shares") at a purchase price of $39.66 for each share of Common Stock (which
following the Company's proposed 3.966 for 1 stock split will be adjusted to
$10.00 per post-split share).
1.3. THE CLOSING. Subject to the other terms and conditions of this
Agreement, the purchase and sale of the Shares (the "Closing") will take place
on November 3, 1999, at 2:00 p.m. Boston time, at the offices of Ropes & Xxxx,
or at such other time or such other place as the parties shall mutually agree.
At the Closing, the Company will deliver to the Investor a certificate or
certificates, registered in the Investor's name, representing the Shares to be
acquired by the Investor at such Closing against payment of the purchase price
thereof in lawful money of the United States of America by wire transfer payable
to the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY REGARDING THE COMPANY AND THE
SHARES.
In order to induce the Investor to enter into this Agreement and to
acquire the Shares hereunder, the Company hereby represents and warrants to the
Investor that:
2.1. ORGANIZATION AND AUTHORITY. The Company is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
full corporate power, right and authority to own or lease its property or
assets, to carry on its business as presently
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conducted and to enter into and carry out the transactions contemplated by this
Agreement. The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each of the other jurisdictions in which
the ownership or leasing of its properties or the conduct of its business
requires such qualification. The Company does not own or hold any equity
securities, or the right to acquire any equity securities, of any corporation or
other entity except HealthGate Acquisition Corp., a Delaware corporation, and
HealthGate Europe Limited, a corporation organized under the laws of the United
Kingdom.
2.2. AUTHORIZATION. The Company has full legal right, power, capacity
and authority to execute and deliver this Agreement and each of the other
agreements contemplated hereby, to consummate the transactions contemplated
hereby and thereby and to comply with the terms, conditions and provisions
hereof and thereof. This Agreement and each of the other agreements contemplated
hereby have been duly authorized, executed and delivered by the Company and are
the legal, valid and, assuming due execution and delivery by the other parties
thereto, binding obligations of the Company, enforceable in accordance with
their terms. The execution, delivery and performance of this Agreement and each
of the other agreements contemplated hereby have been duly authorized and
approved by all necessary corporate action of the Company and does not require
any further authorization or consent of the Company or any other Person.
2.3. VALIDITY OF SHARES. The Shares, when issued and the consideration
therefor received by the Company, will be validly issued, fully paid and
non-assessable. The Company has the full corporate power, right and authority,
to issue and sell to the Investor at the Closing, the Shares, as contemplated
herein, and upon consummation of the transactions contemplated by this Agreement
the Investor will have acquired good and marketable title to the Shares free and
clear of any claims, liens, restrictions on transfer or voting or encumbrances
other than those arising under the federal and state securities laws of the
United States of America.
2.4. CAPITALIZATION. (a) The authorized capital stock of the Company
consists of (i) 20,000,000 shares of Common Stock, (ii) 1,000 shares of Series A
Convertible Preferred Stock, (iii) 1,000 shares of Series B Convertible
Preferred Stock, (iv) 1,000 shares of Series C Convertible Preferred Stock, (v)
1,667 shares of Series D Convertible Preferred Stock and (vi) 829,962 shares of
Series E Convertible Preferred Stock.
(b) Outstanding Stock. The Company's issued and outstanding
stock consists of 1,176,228 shares of Common Stock (which 1,176,228 shares will
be automatically converted into 4,664,916 shares of Common Stock effective with
the Company's proposed 3.966 for 1 stock split) and 725,424 shares of preferred
stock convertible into 1,898,764 shares of Common Stock (which 1,898,764 shares
of Common Stock will be automatically converted into 7,350,556 shares of Common
Stock effective with the Company's proposed 3.966 for 1 stock split).
Additionally, the Company has issued options and warrants for the purchase of
871,978 shares of Common Stock (which 871,978 shares will be automatically
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converted into 3,458,261 shares of Common Stock effective with the Company's
proposed 3.966 for 1 stock split). Additionally, the Company plans to issue CIS
Holdings, Inc., a Nevada corporation, a warrant for 489,419 shares of Common
Stock of the Company (which 489,419 shares will be automatically converted into
1,941,035 shares of Common Stock effective with the Company's proposed 3.966 for
1 stock split).
2.5. FINANCIAL STATEMENTS. Schedule 2.5 sets forth: (i) an unaudited
balance sheet of the Company as of June 30, 1999 and the related unaudited
statements of income and cash flows for the six months then ended, and (ii) an
audited balance sheet of the Company as of December 31, 1998 and the related
audited statements of income and cash flows for the twelve months then ended, in
each case audited by PriceWaterhouseCoopers, LLP independent certified public
accountants, (the balance sheet of the Company as at December 31, 1998 is
hereinafter referred to as the "Balance Sheet" and the balance sheet of the
Company as at June 30, 1999 is hereinafter referred to as the "Closing Balance
Sheet"). Such financial statements, except as indicated therein, have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") consistently applied throughout the period indicated. The
Balance Sheet and the Closing Balance Sheet fairly present the financial
condition of the Company at the dates thereof and, except as indicated therein,
reflect all claims against and all debts and liabilities of the Company, fixed
or contingent, as at the dates thereof, required to be shown thereon under GAAP,
and the related statements of income and retained earnings fairly present the
results of operations of the Company for the period indicated.
2.6. CHANGES IN CONDITION. Since June 30, 1999 (the "Balance Sheet
Date"), there have occurred no event or events that, individually or in the
aggregate, have caused a Material Adverse Effect. Without limiting the
foregoing, the Company has not (a) declared any dividend or other distribution
on any shares of its capital stock, (b) made any payment (other than
compensation to its directors, officers and employees at rates in effect prior
to the Balance Sheet Date or for bonuses accrued in accordance with normal
practice prior to the Balance Sheet Date) to any of its affiliates, (c)
increased the compensation, including bonuses, payable or to be payable to any
of its directors, officers, employees or affiliates, or (d) entered into any
material contractual obligation, or entered into or performed any other
transaction, not in the ordinary and usual course of business and consistent
with past practice, other than as disclosed in the Disclosure Statement dated
November 3, 1999 delivered to the Investor (the "Disclosure Statement") or
disclosed directly to the Investor.
2.7. CONFORMITY WITH LEGAL REQUIREMENTS. The operations of the Company
as now conducted are not in violation of, nor is the Company in default under,
any legal requirements presently in effect, except for such violations and
defaults as do not and will not, in the aggregate, have a Material Adverse
Effect. The Company (i) has all franchises, licenses, permits or other authority
reasonably necessary for the conduct of its business as now conducted, and (ii)
is not in violation of any such authorizations except, in each case, to the
extent that the failure to have such authorizations or such violations is
reasonably likely to cause a Material Adverse Effect.
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2.8. NO DEFAULTS. The Company is not in default, and the Company's
properties or assets or the business of the Company, as presently conducted or
proposed to be conducted, are not in default (a) under its charter documents or
its By-Laws or any material note, indenture, mortgage, lease, agreement,
contract, purchase order or other instrument, document or agreement to which it
is a party or by which it or any of its property is bound or affected or (b)
with respect to any order, writ, injunction or decree of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign. There exists no
condition, event or act which after notice, lapse of time, or both, is
reasonably likely to constitute a default by the Company which would have a
Material Adverse Effect. To the Company's knowledge, no third party is in
default under any agreement, contract or other instrument, document, or
agreement to which the Company or any subsidiary is a party or by which any of
them or any of their property is affected.
2.9. EFFECT OF TRANSACTIONS. The execution, delivery and performance of
this Agreement, and any other agreements, instruments, or documents contemplated
hereby, the issuance, sale and delivery of the Shares and compliance with the
provisions hereof and thereof by the Company, do not and will not, with or
without the passage of time or the giving of notice or both (a) violate any
provision of law, statute, rule or regulation or any ruling, writ, injunction,
order, judgment or decree of any court, administrative agency or other
governmental body, or (b) conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default (or give rise to any
right of termination, cancellation or acceleration) under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company under its charter or bylaws or under any
note, indenture, mortgage, lease, license agreement, contract, purchase order or
other instrument, document or agreement to which the Company is a party or by
which it or any of its property is bound or affected which would have a Material
Adverse Effect.
2.10. LITIGATION. There is no action, suit, proceeding or investigation
at law or equity or before or by any governmental commission, board or other
administrative agency pending or, to the knowledge of the Company, threatened
against or affecting the Company which questions the validity of this Agreement,
any other agreements, instruments or documents entered into by the Company
pursuant to this Agreement, the right of the Company to enter into them or to
consummate the transactions contemplated hereby or thereby, or which might
result, either individually or in the aggregate, have a Material Adverse Effect,
or any change in the current equity ownership of the Company. There is no
action, suit or proceeding pending against, or to the knowledge of the Company,
threatened against or affecting, the Company or any of its properties before any
court or arbitrator or any governmental body, agency or official which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay any of
the transactions contemplated hereby. There is no material litigation other than
as described in the Disclosure Statement.
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2.11. TAXES. The Company has filed all federal, state, local and other
tax returns required by law to be filed by it, and all taxes shown to be due and
all additional assessments, fees, governmental charges, interest and penalties
have been paid. The federal income tax liabilities of the Company for the
fiscal year 1998, and for all prior years, have been determined or accepted by
the Internal Revenue Service and paid. No objection to any return or claim for
additional taxes is currently being asserted against the Company and the Company
does not know of any proposed additional tax assessment against the Company. The
Company believes all filed returns were prepared in accordance with applicable
statutes and generally accepted principles applicable to taxation.
2.12. LIMITATIONS. There are no limitations in the Company's By-laws or
in any indenture, deed of trust or other agreement or instrument to which the
Company is a party with respect to the issuance and sale of the Shares, or with
respect to the payment or accumulation of dividends on the Shares, except in
each such case those contained in the Company's Certificate of Incorporation.
2.13. PERFORMANCE. The Company has performed and complied with all
agreements, obligations, and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
2.14. DISCLOSURES. Neither this Agreement, the Disclosure Statement,
any other agreement contemplated hereby, any exhibit hereto or thereto, nor any
report, certificate or instrument furnished to the Investor in connection with
the transactions contemplated in this Agreement contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The Company knows of no
information or fact that has or would have a Material Adverse Effect that has
not been disclosed to the Investor either in this Agreement, in the Disclosure
Statement or any other agreement contemplated hereby, any exhibit hereto or
thereto, or any report, certificate or instrument furnished to the Investor.
3. REPRESENTATIONS AND WARRANTIES AND OTHER AGREEMENTS OF THE INVESTOR.
3.1. REPRESENTATIONS AND WARRANTIES. The Investor hereby represents and
warrants to the Company that:
(a) AUTHORIZATION. The Investor has full power and authority
to execute, deliver and perform this Agreement and to acquire the
Shares, as contemplated herein; this Agreement constitutes the valid
and legally binding obligation of the Investor, enforceable against the
Investor in accordance with its terms.
(b) PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be
received by the Investor as contemplated by this Agreement will be
acquired for investment for the Investor for its own account, not as a
nominee or agent and not with a view to the
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distribution of any part thereof. The Investor has no present
intention of selling, granting any participation in, or otherwise
distributing the same. The Investor does not have any contract,
undertaking, agreement or arrangement with any Person to sell,
transfer, or grant participation to such Person or to any third
Person, with respect to the Shares.
(c) RESTRICTED SECURITIES. The Investor understands that the
Shares may not be sold, transferred, or otherwise disposed of without
registration under the U.S. Securities Act of 1933, as amended (the
"1933 Act"), or an exemption therefrom, and that, in the absence of an
effective registration statement covering the Shares or an available
exemption from registration under the 1933 Act, the Shares must be held
indefinitely. In the absence of an effective registration statement
covering the Shares, the Investor will sell, transfer, or otherwise
dispose of the Shares only in a manner consistent with its
representations and agreements set forth herein.
(d) SUITABILITY. The Investor is an "accredited investor" as
such term is defined in Rule 501(a) promulgated pursuant to the 1933
Act.
(e) FINANCIAL CONDITION. The Investor's financial condition
is such that it is able to bear the risk of holding the Shares for an
indefinite period of time and can bear the loss of its entire
investment in the Shares.
(f) EXPERIENCE. The Investor has such knowledge and
experience in financial and business matters and in making high risk
investments of this type that it is capable of evaluating the merits
and risks of the purchase of the Shares.
(g) RISK AND DUE DILIGENCE. The Investor understands that
the operation of the Company's business is subject to numerous risks
and that the Shares are a speculative investment that involves a high
degree of risk of loss of the entire investment therein. The Investor
is cognizant of and understands such risks, including those set forth
in the Disclosure Statement. The Investor has been allowed, upon
request, to examine any document or agreement listed herein, and has
had the opportunity to obtain any information concerning the Company,
including the opportunity to ask questions of and receive answers from
authorized representatives of the Company concerning this investment.
3.2. LEGENDS. It is understood that the certificates evidencing
the Shares will bear substantially the following legend:
"The shares represented by this certificate have been
acquired for investment, have not been registered under the Securities
Act of 1933, as amended (the "Act") or any applicable state security
laws and may not be offered, sold or otherwise transferred in the
absence of a registration statement in effect with respect to the
securities under
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such Act, or an opinion of counsel satisfactory to the Corporation
that such registration is not required under the Act or any applicable
state securities laws."
4. CONDITIONS TO THE INVESTOR'S OBLIGATIONS AT CLOSING.
The obligations of the Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions unless
waived by the Investor in accordance with Section 8.5 hereof:
4.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 2 shall be true and correct on and as of the
date of the Closing.
4.2 DELIVERY OF SHARES. The Company shall have delivered to Xxxxxx
Trust Company of California, as escrow agent named in that certain Escrow
Agreement of even date by and among the Company, the Investor and Xxxxxx Trust
Company of California, a certificate representing the Shares, registered in the
name of the Investor.
4.3 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor and the Investor's counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
5. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions unless
waived by the Company in accordance with Section 8.5 hereof:
5.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Investor contained in Section 3 shall be true and correct on and as of
the date of the Closing.
5.2. PAYMENT OF PURCHASE PRICE. The Investor shall have delivered
payment of the aggregate purchase price of the Stock to be purchased by it at
the Closing as set forth in Section 1.2.
5.3. STOCKHOLDERS AGREEMENT. The Investor shall become a party to the
Stockholders Agreement attached hereto as Exhibit A.
5.4. REGISTRATION RIGHTS AGREEMENT. The Company and the Investor shall
enter into a Registration Rights Agreement substantially in the form attached
hereto as Exhibit B.
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5.5. LOCK-UP AGREEMENT. XX Xxxxx Securities Corporation and the
Investor shall enter into a Lock-up Agreement substantially in the form attached
hereto as Exhibit C.
5.6. PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Company and Company's counsel, and they shall have received all such counterpart
original and certified or other copies of such documents as they may reasonably
request.
6. TERMINATION.
6.1. EVENTS OF TERMINATION. This Agreement may be terminated as
follows:
(a) By mutual written consent of Company and the Investor;
(b) By either Company or the Investor if the Closing does
not occur on or before December 1, 1999.
7. MISCELLANEOUS.
7.1. CERTAIN DEFINED TERMs. As used in this Agreement:
"PERSON" shall mean an individual, corporation, trust, partnership,
joint venture, unincorporated organization, government agency or any agency or
political subdivision thereof, or other entity.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon the
business, assets, financial condition, income or prospects of the Company.
7.2. ASSIGNMENT. This Agreement may not be assigned by the Investor
without the prior written consent of the Company. Notwithstanding the foregoing,
the Investor shall have the right to assign, without the consent of the Company,
all of its rights and obligations hereunder to an affiliate or to any person or
entity that (i) acquires all or substantially all of the Investor's operating
assets (whether by asset sale, stock sale, merger or otherwise) or (ii) results
from a merger or reorganization of the Investor pursuant to any plan of merger
or reorganization. Without limiting the generality of the foregoing, the Company
expressly acknowledges that the Investor will have the right to assign this
Agreement or the operative rights and obligations hereof to any entity resulting
from the merger or other similar combination of the Investor with Xxxx.xxx, Inc.
7.3. INCORPORATION BY REFERENCE. All exhibits and schedules appended to
this Agreement are herein incorporated by reference and made a part hereof.
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7.4. PARTIES IN INTEREST. All covenants, agreements, representations,
warranties and undertakings in this Agreement made by and on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
7.5. AMENDMENTS AND WAIVERS. Except as set forth in this Agreement,
changes in or additions to this Agreement may be made, or compliance with any
term, covenant, agreement, condition or provision set forth herein may be
omitted or waived (either generally or in a particular instance and either
retroactively or prospectively), upon the written consent of the Company and the
Investor.
7.6. GOVERNING LAW. This Agreement shall be deemed a contract made
under the laws of The Commonwealth of Massachusetts and, together with the
rights of obligations of the parties hereunder, shall be construed under and
governed by the internal laws of The Commonwealth of Massachusetts.
7.7. NOTICES. All notices, requests, consents and demands shall be in
writing and shall be personally delivered, mailed, postage prepaid, telecopied
or telegraphed, to the Company at:
HealthGate Data Corp.
00 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
or to the Investor at:
Snap! LLC
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
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with a copy to:
Xxxxxx & Xxxx, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: J. Xxxxxxx Xxxxxx
or such other address as may be furnished in writing to the other party hereto.
All such notices, requests, demands and other communication shall, when mailed
(registered or certified mail, return receipt requested, postage prepaid),
personally delivered, or telegraphed, be effective three business days after
deposit in the mails, when personally delivered, or when delivered to the
telegraph company, respectively, addressed as aforesaid, unless otherwise
provided herein and, when telecopied, shall be effective upon actual receipt.
7.8. EFFECT OF HEADINGS. The section and paragraph headings herein are
for convenience only and shall not affect the construction hereof.
7.9. ENTIRE AGREEMENT. This Agreement, and all other agreements
contemplated herein, constitutes the entire agreement among the Company and the
Investor with respect to the subject matter hereof. This Agreement supersedes
all prior agreements between the parties with respect to the Shares purchased
hereunder and the subject matter hereof.
7.10. SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
7.11. COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
7.12. EXPENSES. Each of the parties hereto shall bear and pay its own
expenses incurred in connection with the negotiation, preparation and execution
of, and the consummation of the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
HEALTHGATE DATA CORP.
By /s/ Xxxxxxx X. Xxxxx
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Title: Chief Executive Officer
SNAP! LLC
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Operating Officer
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