EXHIBIT 99.25
THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD UNLESS THE
SECURITIES ARE REGISTERED UNDER THE ACT, OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated as of February 4,
2002, is entered into by and between Xxxx X. XxXxxx, an individual residing in
Austin, Texas (the "Purchaser"), and Qwest Investment Company, Inc., a Delaware
corporation formerly known as U S WEST Internet Ventures, Inc. (the "Seller").
WHEREAS, the Seller owns 140,000 shares of the common stock, par value
$0.01 per share (the "Common Stock"), of TippingPoint Technologies, Inc., a
Delaware corporation formerly known as Netpliance, Inc. (the "Company");
WHEREAS, the Purchaser and Xxxx X. Xxxxxx are parties to a Voting Agreement
with the Seller, dated December 22, 1999 (the "Voting Agreement"), pursuant to
which the Purchaser and Xx. Xxxxxx agree to vote their shares of Common Stock in
the manner described in the Voting Agreement;
WHEREAS, the Seller has offered for sale, and the Purchaser has agreed to
purchase, all 140,000 shares of the Common Stock owned by the Seller;
NOW THEREFORE, the parties hereby agree as follows:
1. Purchase and Sale of Shares. Upon the basis of the representations and
warranties and subject to the terms and conditions set forth herein, the Seller
agrees to sell 140,000 shares of Common Stock (the "Shares") to the Purchaser on
the Closing Date (as hereinafter defined) at a price per Share equal to the
higher of (i) $6.50 and (ii) 94% of the average closing price of the Common
Stock reported on the Nasdaq National Market for the 30 trading days immediately
prior to the Closing Date (the "Purchase Price"), and upon the basis of the
representations and warranties, and subject to the terms and conditions, set
forth herein, the Purchaser agrees to purchase the Shares from the Seller on the
Closing Date at the Purchase Price.
2. Closing. The closing of the purchase and sale of the Shares shall take
place on February 6, 2002 at the offices of Company, or on such other date or at
such other time or place as the Seller and the Purchaser may agree upon in
writing (such time and date of the closing being referred to herein as the
"Closing Date").
3. Closing Deliveries. Upon payment in full of the aggregate Purchase
Price, in immediately available funds by or on behalf of the Purchaser to the
Seller (to an account specified in writing by the Seller to the Purchaser prior
to the Closing Date), the Seller will deliver to the Purchaser a certificate or
certificates representing the Shares, duly endorsed to the
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Purchaser or accompanied by stock powers duly executed by the Seller, in form
and substance reasonably satisfactory to the Purchaser.
4. Representations and Warranties of the Seller. The Seller represents and
warrants, as of the date hereof and as of the Closing Date, as follows:
(a) The Seller has the capacity to enter into this Agreement and to sell,
assign, transfer and deliver to the Purchaser, pursuant to the terms and
conditions of this Agreement, the Shares. This Agreement is a legal, valid and
binding agreement of the Seller enforceable against the Seller in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) Except for this Agreement and the Voting Agreement, there are no
outstanding options, warrants or rights to purchase or acquire, or agreements
(whether voting or otherwise) relating to, the Shares.
(c) The Seller has good and marketable title to the Shares, free and clear
of all liens, claims, security interests and encumbrances of any nature. Upon
delivery hereunder by the Seller to the Purchaser of the certificates evidencing
the Shares and upon payment by the Purchaser to the Seller of the aggregate
Purchase Price therefor, the Purchaser will acquire good and marketable to the
Shares, free and clear of all liens, claims, security interests and encumbrances
of any nature (except those created by the Purchaser).
(d) The Seller is an "accredited investor," as such term is defined in Rule
501(a) under the Securities Act of 1933, as amended (the "Act"), who by reason
of its business and financial experience has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Shares. The Seller has had the opportunity to ask
questions of, and receive answers from, the Company and its officers and agents
and has received all information concerning the Company that it has reasonably
requested in connection with its sale of the Shares.
(e) The sale of the Shares hereunder will not, with or without the giving
of notice or the lapse of time, or both, (i) to the Seller's knowledge, violate
any provision of law, statute, rule or regulation to which the Seller is
subject, (ii) violate any order, judgment or decree applicable to the Seller, or
(c) conflict with, or result in a breach or default under, any term or condition
of any agreement or other instrument to which the Seller is a party or by which
it is bound.
5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants that:
(a) The Purchaser has the capacity to enter into this Agreement and to buy
the Shares from the Seller pursuant to the terms and conditions of this
Agreement. This Agreement is a legal, valid and binding agreement of the
Purchaser enforceable against the Purchaser in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
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moratorium or other similar laws relating to creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) The Purchaser understands that the sale of the Shares hereunder has not
been registered under the Act, based on the exemption from registration provided
by Section 4(1) of the Act, and that the Seller's reliance on such exemption
depends in part on the Purchaser's representations and warranties in this
Agreement.
(c) The Purchaser is purchasing the Shares for investment for his own
account and not with a view to the distribution thereof except in compliance
with the Act and applicable state securities laws; provided, that the Purchaser
may at any time sell or otherwise dispose of all or any part of the Shares by
registration under the Act and applicable state securities laws or pursuant to
an exemption from such registration available thereunder. The Purchaser will not
sell or otherwise transfer any interest in the Shares except in compliance with
the registration requirements, or an exemption therefrom, of the Act and
applicable state securities laws.
(d) The Purchaser is an "accredited investor," as such term is defined in
Rule 501(a) under the Act, who by reason of his business and financial
experience has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of an investment in the
Shares. The Purchaser has had the opportunity to ask questions of, and receive
answers from, the Company and its officers and agents and has received all
information concerning the Company that he has reasonably requested in
connection with his purchase of the Shares.
(e) The purchase of the Shares hereunder will not, with or without the
giving of notice or the lapse of time, or both, (a) to the Purchaser's
knowledge, violate any provision of law, statute, rule or regulation to which
the Purchaser is subject, (b) violate any order, judgment or decree applicable
to the Purchaser, or (c) conflict with, or result in a breach or default under,
any term or condition of any agreement or other instrument to which the
Purchaser is a party or by which he is bound.
(f) The Purchaser understands that the Shares constitute "restricted
securities" within the meaning of Rule 144 under the Act and may not be sold,
pledged or otherwise disposed of unless they are subsequently registered under
the Act and applicable state securities laws or unless an exemption from
registration is available.
(g) The Purchaser understands that no federal or state or other
governmental agency has passed upon or made any recommendation or endorsement
with respect to the Shares.
(h) The Purchaser understands that any certificates evidencing the Shares
will bear substantially the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY
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STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION."
6. Conditions to Closing. The obligations of each party hereunder shall be
subject to the accuracy of the representations and warranties of the other party
hereto as of the date hereof and as of the Closing Date, as if such
representations and warranties had been made on and as of such date, and the
performance by the other party of its obligations hereunder.
7. Survival of Representations and Warranties. The respective agreements,
representations, warranties and other statements made by or on behalf of each
party hereto pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any party, and shall
survive delivery of any payment for the Shares.
8. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, and such
counterparts shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, and no other person shall have
any right or obligation hereunder. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party hereto. Any
assignment contrary to the terms hereof shall be null and void and of no force
or effect.
(c) By its execution of this Agreement, the Seller acknowledges that,
pursuant to the terms of the Voting Agreement, the sale of the Shares by the
Seller to the Purchaser terminates the Voting Agreement.
(d) The Seller acknowledges that the Purchaser, due to his percentage
ownership of outstanding shares of the Common Stock, is required to file this
Agreement as an exhibit to his current Schedule 13D filing with the Securities
and Exchange Commission, dated March 23, 2000, as amended, and to describe the
transactions contemplated by this Agreement in an amendment to such Schedule
13D, and the Seller hereby consents to such filing and amendment.
(e) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior agreements or
understandings, whether written or oral, between the parties respecting such
subject matter.
9. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
NEW YORK.
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IN WITNESSES WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
SELLER:
QWEST INVESTMENT COMPANY, INC.
By: /s/ XXXXX XXXXXX
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Name: XXXXX XXXXXX
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Title: SVP & TREASURER
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PURCHASER:
/s/ XXXX X. XXXXXX
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Xxxx X. XxXxxx
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