STOCK PURCHASE AGREEMENT
Exhibit
(e)(3)
This
STOCK PURCHASE AGREEMENT is dated as of June 28, 2007 (this “Agreement”)
by and
between Xxxxxxx US Discovery Fund III, L.P. (the “Seller”)
and
Xxxxxxx X. Xxxxxxxxxxx (the “Purchaser”).
WHEREAS,
the Seller currently owns 16,493,481 shares of the common stock, $.01 par value
(the “Common
Stock”),
of
Xxxxxx Technologies, Inc., a New York corporation (the “Company”);
WHEREAS,
the Purchaser is a member of the Company’s management;
WHEREAS,
the Purchaser desires to purchase from the Seller, and the Seller desires to
sell to the Purchaser, 2,000,000 shares of the Common Stock of the Company
(the
“Shares”)
at a
purchase price of $0.65 per share, for a total consideration of $1,300,000.00
(the “Purchase
Price”);
WHEREAS,
simultaneously with the execution and delivery of this Agreement, the Seller
will sell to additional members of the Company’s management (“Additional
Purchasers”)
and
the Additional Purchasers will purchase from the Seller, a certain number of
shares of the Common Stock of the Company at a purchase price of $0.65 per
share
pursuant to Stock Purchase Agreements between each Additional Purchaser and
the
Seller dated as of the date hereof;
WHEREAS,
the Purchaser and the Additional Purchasers will, in the aggregate, purchase
from Seller a total of 9,230,800 shares of the Common Stock of the Company,
for
a total consideration of $6,000,020;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, the Company
will purchase a total of 5,680,800 shares of its Common Stock from the Seller
and Xxxxxxx US Discovery Offshore Fund III, L.P. (collectively, the
“Funds”),
at a
purchase price of $0.65 per share, for a total consideration of $3,692,520
pursuant to that certain Stock Purchase Agreement between the Company and the
Funds dated as of the date hereof; and
WHEREAS,
the Funds, the Purchaser, the Additional Purchasers and the Company are all
parties to that certain Letter Agreement (the “Letter
Agreement”)
with
Xxxxxx, Xxxxx & Xxxxxxx, LLP (“Xxxxxx
Xxxxx”)
as
escrow agent, providing for the manner in which the closing of the transactions
contemplated by this Agreement, and the Stock Purchase Agreements between the
Seller and the Additional Purchasers, and the Stock Purchase Agreement between
the Funds and the Company will take place, and providing for the delivery by
the
Funds of the executed Stock Purchase Agreements and the Transfer Documentation
(as defined in the Letter Agreement) and the delivery by the Purchaser, the
Additional Purchasers and the Company of the Purchase Price (as defined in
the
Letter Agreement) and the executed Stock Purchase Agreements to Xxxxxx Xxxxx
to
be held in escrow pursuant to the terms of the Letter Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF STOCK
1.1 Purchase
and Sale.
Subject
to the terms and conditions of this Agreement, at the Closing:
(a) The
Seller shall sell to the Purchaser the Shares and the Purchaser shall purchase
from the Seller the Shares at the Purchase Price;
(b) In
accordance with the terms of the Letter Agreement, the
Seller will deliver to Xxxxxx Xxxxx (with copies to the Purchaser) its stock
certificates representing the shares being sold pursuant to the Stock Purchase
Agreement, accompanied by medallion guaranteed stock powers duly executed in
blank, together with an executed letter of instruction from the Seller to
Continental Stock Transfer & Trust Company (the “Transfer
Agent”)
instructing the Transfer Agent to issue to the Purchaser a new stock certificate
representing the shares of the common stock of the Company purchased by the
Purchaser pursuant to this Agreement (collectively, the “Transfer
Documentation”).
(c) In
accordance with the terms of the Letter Agreement, upon delivery to the
Purchaser of a copy of the Transfer Documentation, Xxxxxx Xxxxx shall release:
(i) the Purchase Price to the Seller, and (ii) the Transfer Documentation to
the
Transfer Agent, without any further action by the Purchaser.
1.2 Closing.
The
closing of the transactions contemplated hereby (the “Closing”)
shall
take place simultaneously with the execution and delivery of this Agreement
(the
date on which the Closing occurs is referred to herein as the “Closing
Date”).
The
Closing shall take place at the offices of Xxxxxx, Xxxxx & Bockius LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and the Closing shall be
effective as of the close of business on the Closing Date.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to the Seller as follows:
2.1 Organization,
Standing and Power.
The
Purchaser has full legal capacity and authority to execute and deliver this
Agreement and to perform its obligations hereby and thereby and the execution
and delivery of this Agreement constitutes a legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms.
2.2 Consents
and Approvals.
No
consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required
by
or with respect to the Purchaser in connection with the execution and delivery
of this Agreement by the Purchaser or the consummation by it of the transactions
contemplated hereby.
2.3 Accredited
Investor.
The
Purchaser is an “accredited investor” as defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”).
The
Purchaser agrees to furnish to Seller any additional information reasonably
requested by it to assure compliance with applicable Federal and state
securities laws in connection with the purchase and sale of the
Shares.
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2.4 No
Reliance.
The
Purchaser is aware that an investment in the Company involves a high degree
of
risk. In making its decision to purchase the Shares being purchased by the
Purchaser hereunder, the Purchaser acknowledges and represents that: (a) it
has such business and financial experience as is required to give it the
capacity to protect Purchaser’s own interests in connection with the purchase of
the Shares; and (b) Purchaser will make his own investment decision regarding
the Shares based on his own knowledge and investigation of the Company and
the
Shares.
2.5 Information
Concerning the Company.
The
Purchaser has been given full access to all material information concerning
the
condition, properties, operations and prospects of the Company and its
subsidiaries. The Purchaser and the Purchaser’s advisors (if any) have had an
opportunity to ask questions of, and to receive information from, the Seller,
the Company and persons acting on their behalf concerning the terms and
conditions of the Purchaser’s purchase of the Shares, and to obtain any
additional information necessary to verify the accuracy of the information
and
data received by the Purchaser. The Purchaser has made, either alone or together
with the Purchaser’s advisors (if any), such independent investigation of the
Company and its subsidiaries and related matters as the Purchaser deems to
be,
or the Purchaser’s advisors (if any) have advised to be, necessary or advisable
in connection with the Purchaser’s purchase of the Shares, and the Purchaser and
the Purchaser’s advisors (if any) have received all information and data which
the Purchaser and the Purchaser’s advisors (if any) believe to be necessary in
order to reach an informed decision as to the advisability of purchasing the
Shares. The Purchaser acknowledges and agrees that, other than as expressly
contained herein, no person makes any representation or warranty, expressed
or
implied, as to the accuracy or completeness of the information provided or
to be
provided to the Purchaser by any person and nothing contained in any documents
provided to the Purchaser is, or shall be relied upon as, a promise or
representation by any such person.
2.6 No
Registration.
The
Purchaser understands that: (a) the Shares have not been registered under
the Securities Act or under any state securities laws and that this transaction
is being made by the Seller in reliance on an exemption under Section 4(1)
of the Securities Act and exemptions under applicable state securities laws;
(b) the Shares have not been approved or disapproved by the
United States Securities and Exchange Commission or any other Federal or
state regulatory agency, nor has any such agency passed on the merits of an
investment in the Company; and (c) effective as of the Closing Date, that
certain Registration Rights Agreement dated as of March 30, 1999 (the
“Registration
Rights Agreement”)
and
that certain Stockholders’ Agreement dated as of March 30, 1999 (the
“Stockholders’
Agreement”)
have
been terminated and rendered null and void and, as such, Purchaser shall not
acquire or succeed to any rights or privileges granted to Seller in either
the
Registration Rights Agreement of the Stockholders’ Agreement.
2.7 Restricted
Securities.
The
Purchaser understands that, unless and until the Shares are registered, there
are substantial restrictions on the transferability of the Shares and that
the
Purchaser must bear the economic risk of an investment in the Shares for an
indefinite period of time, because the Shares have not been registered under
the
Securities Act or under the securities laws of certain states and, therefore,
cannot be sold, transferred, assigned, hypothecated, pledged or otherwise
disposed of unless they are registered under the Securities Act and under the
applicable securities laws of such states, or an exemption from such
registration is available.
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2.8 No
Resale.
The
Purchaser is purchasing the Shares solely for his own account and for investment
only, and not with a view to or for the resale, distribution, subdivision or
fractionalization thereof, and the Purchaser has no present intent to enter
into
any contract, undertaking, agreement or arrangement for any such purpose.
2.9 Transfer
Restrictions.
The
Purchaser understands that any certificate representing the Shares will bear
substantially the following restrictive legend:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED, SOLD
OR
TRANSFERRED EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH THE APPLICABLE STATE
SECURITIES LAWS OR (II) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER
OR
UNDER APPLICABLE STATE SECURITIES LAWS.”
2.10 No
Solicitation.
The
Purchaser acknowledges that neither the Seller, the Company nor any other person
offered to sell the Shares to the Purchaser by means of any form of general
advertising, such as media advertising or seminars.
2.11 Disclosure.
The
Purchaser agrees and acknowledges that: (a) there are no representations or
warranties by the Seller, or any other person relating to the transactions
contemplated hereby other than those expressly set forth in this Agreement;
and
(b) the Purchaser has not relied and will not rely in respect of this
Agreement or the transactions contemplated hereby upon any document or written
or oral information previously furnished to or discovered by it, other than
this
Agreement. Neither the Seller, nor any other person will have or be subject
to
any liability to the Purchaser or any other person resulting from the
distribution to the Purchaser, or the Purchaser’s use of, any information not
contained in this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Purchaser of the Shares hereunder as
follows:
3.1 Organization,
Standing and Power.
The
Seller is duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and
thereunder.
3.2 Authority.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Seller. This Agreement has been duly
executed and delivered by the Seller and constitute a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
its
terms except
as
such may be limited by applicable bankruptcy, insolvency and any other similar
laws relating to creditors’ rights generally, and by general principles of
equity.
3.3 Ownership
of Shares.
The
Seller is the sole record and beneficial owner of the Shares and sole owner
of
all interests in the Shares. When paid for in accordance with the terms of
this
Agreement, the Shares will be transferred to the Purchaser free of any liens,
claims, restrictions, security interests or encumbrances, except for
restrictions on transfer provided for under the Securities Act.
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3.4 No
Conflict.
The
execution and delivery of this Agreement does not, and the consummation of
the
transactions contemplated hereby will not, conflict with or result in a breach
or violation of, or a default under, (a) the Seller’s organizational
documents or (b) any contract, agreement or instrument by which the Seller
or any of the Seller’s properties is bound or any judgment, order, decree,
statute, rule, regulation or other law to which the Seller or its properties
or
assets is subject.
3.5 Consents
and Approvals.
No
consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required
by
or with respect to the Seller in connection with the execution and delivery
of
this Agreement by the Seller or the consummation by it of the transactions
contemplated hereby.
3.6 Termination
of Prior Agreements.
Effective as of the Closing, the Registration Rights Agreement and the
Stockholders Agreement have been terminated and rendered null and void.
ARTICLE
IV
CONDITION
TO CLOSING
4.1 Condition
to the Obligation of the Seller.
The
obligation of the Seller to consummate the transactions contemplated hereby
is
subject to the execution and delivery of that certain Stock Purchase Agreement
dated as of the date hereof, between the Funds and the Company, and the
consummation of the transactions contemplated thereby.
ARTICLE
V
MISCELLANEOUS
5.1 Waiver,
Amendment.
No
amendment of any provision of this Agreement shall be valid unless such
amendment is in writing and signed by each party hereto. No waiver by any party
hereto of any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence. No waiver shall be valid unless such waiver is
in
writing and signed by the party against whom such waiver is sought to be
enforced.
5.2 Assignability.
Except
as otherwise provided under this Agreement, neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by any party hereto without the prior written consent of
the
Seller (in the event of an assignment by a Purchaser).
5.3 Headings.
The
headings used in this Agreement are for convenience of reference only and shall
not affect in any way the meaning or interpretation of this
Agreement.
5.4 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of New York.
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5.5 Consent
to Jurisdiction and Service of Process.
EACH
PARTY HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE LITIGATED IN SUCH
COURTS. EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES
TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT
OR
THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO
THE SERVICE OF PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING.
5.6 Waiver
of Jury Trial.
EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO.
5.7 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart to this Agreement.
5.8 Binding
Effect.
The
provisions of this Agreement shall be binding upon and accrue to the benefit
of
the parties hereto and their respective heirs, legal representatives, and
permitted successors and assigns.
5.9 Entire
Agreement; Third-Party Beneficiaries.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof. Except as otherwise expressly
provided in this Agreement, no third-party beneficiaries are intended or shall
be deemed to be created hereby.
5.10 Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will
be
construed and enforced as if such provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by such provision or its severance herefrom
and
(d) in lieu of such provision, there will be added automatically as a part
of
this Agreement a legal, valid and enforceable provision as similar in terms
to
such provision as may be possible.
5.11 Specific
Performance.
Each of
the parties to this Agreement agrees and acknowledges that any breach by any
party of its obligations under this Agreement could not be adequately
compensated for by damages. Accordingly, if either of the parties breaches
its
obligations under this Agreement, the other party shall be entitled, in addition
to any other remedy that they may have, to obtain enforcement of this Agreement
by decree of specific performance.
5.12 Further
Assurances.
Each of
the parties shall execute such documents and perform such further acts as may
be
reasonably required or desirable to carry out or to perform the provisions
of
this Agreement.
[Signature
page follows.]
6
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first set forth above.
XXXXXXX
US DISCOVERY FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
/s/
Xxxxxx X. Xxxx
Name:
Title:
/s/
Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
