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Exhibit 10.8
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of this 30th day of March, 1996, by and among META HOLDING CORPORATION,
a Delaware corporation ("Meta"), and the individuals identified in the attached
EXHIBIT A hereto (individually a "Purchaser" and collectively the
"Purchasers").
WHEREAS, on September 22, 1995, the Certificate of Incorporation of
Metanetics Corporation ("Metanetics") (then known as New Meta Licensing
Corporation) was filed by the Secretary of State for the State of Delaware (the
"Certificate");
WHEREAS, pursuant to the Certificate the authorized capital stock of
Metanetics consists solely of Ten Million (10,000,000) shares of Voting Common
Stock $.01 par value (the "Voting Common"), Three Million (3,000,000) shares of
Non-Voting Common Stock $.01 par value and Three Million (3,000,000) shares of
Preferred Stock $.01 par value;
WHEREAS, the Purchasers are officers, directors or advisors of Meta or
Metanetics, or affiliate corporations of one or the other; and
WHEREAS, the Board of Directors of Meta has determined that it will be
in the best interests of Meta and its stockholders if Meta reduces its holdings
in Metanetics by selling a portion of its shares of Voting Common to the
Purchasers in the amounts set forth in EXHIBIT A.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants and agreements hereinafter
set forth, the parties, intending to be legally and equitably bound, hereby
agree as follows:
1. SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
hereof, Meta shall sell, transfer and assign to each Purchaser, and each
Purchaser shall purchase and acquire from Meta, the number of shares of Voting
Common indicated in EXHIBIT A (the "Purchased Shares"), for a purchase price of
$1.0386 per share (each Purchaser's aggregate purchase price is set forth in
EXHIBIT A and is referred to as the "Purchase Price"). The Purchase Price shall
be payable by each Purchaser to Meta at the Closing (as hereinafter defined)
through its delivery to Meta of good funds.
2. REPRESENTATIONS AND WARRANTIES.
(a) Meta hereby represents and warrants to each Purchaser (with
respect to and only with respect to the shares of Voting Common hereby being
sold by Meta to him), respectively, that:
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(i) The execution, delivery and performance of this Agreement
does not and will not violate, conflict with or result in the breach
of any provision of (a) any material contract, agreement or instrument
to which it is a party or by or to which it or its assets or
properties may be bound or subject; or (b) any order, judgment,
injunction, award, decree, statute, law, rule or regulation of any
jurisdiction applicable to it. Such execution, delivery and
performance will not result in the creation of any lien or encumbrance
on the Purchased Shares.
(ii) There are no outstanding orders, judgments, injunctions,
awards or decrees of any court, arbitrator or governmental or
regulatory body against it. There are no actions, suits or claims or
legal, administrative or arbitral proceedings or investigations
(whether or not the defense thereof or liabilities in respect thereof
are covered by insurance) pending or, to its knowledge, threatened,
against or involving it which could adversely effect its ability to
consummate the transactions contemplated hereby.
(iii) Upon its execution and delivery, this Agreement will be
the valid and binding obligation of Meta, enforceable in accordance
with its terms, except (A) as limited by applicable bankruptcy,
insolvency, organization, moratorium or other laws of general
application affecting enforcement of creditors' rights; and (B)
general principles of equity that restrict the availability of
equitable remedies.
(iv) It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with all
requisite corporate power and lawful authority to own, lease and
operate its assets and properties and to carry on its business in the
manner presently conducted or contemplated by it.
(v) The execution, delivery and performance of this Agreement
does not and will not violate, conflict with or result in the breach
of any provision of its Certificate of Incorporation or By-laws, as
either may be amended.
(vi) No consent, action, approval, order or authorization, or
declaration of or registration or filing with, any federal, state,
local or governmental agency or authority is required to be obtained
or made by Meta in connection with (a) the execution, delivery or
performance by Meta of this Agreement and of the other instruments,
agreements and documents required or contemplated hereunder; and (b)
the consummation of the transactions contemplated hereby and thereby.
(vii) Metanetics is authorized to issue Ten Million
(10,000,000) shares of Voting Common Stock $.01 par value, Three
Million (3,000,000) shares of Non-Voting Common Stock $.01 par value
and Three Million (3,000,000) shares of Preferred Stock $.01 par
value, of which Four Million Eight Hundred Thirteen Thousand Nine
Hundred Fifty Three (4,813,953) shares of Voting Common Stock are
issued and outstanding as of the date hereof, immediately prior to the
consummation of the transactions hereunder. There are no other class
of capital stock authorized, issued or outstanding. The
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Purchased Shares shall when issued be validly issued, fully paid, and
nonassessable, and all such shares have been issued in compliance with
all applicable federal and state securities laws.
(b) Each Purchaser hereby severally represents and warrants as to
himself to Meta as follows:
(i) Purchaser has all necessary power and authority under all
applicable provisions of law to execute and deliver this Agreement and
to carry out Purchaser's obligations hereunder. All actions by
Purchaser required for the lawful execution and deliver of this
Agreement have been effectively taken prior to the Closing. Upon its
execution and delivery, this Agreement will be the valid and binding
obligation of Purchaser, enforceable in accordance with its terms,
except (A) as limited by applicable bankruptcy, insolvency,
organization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (B) general principles
of equity that restrict the availability of equitable remedies.
(ii) All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings
with any governmental or banking authority on the part of Purchaser or
his spouse required in connection with the consummation of the
transactions contemplated in this Agreement have been obtained prior
to and shall be effective as of the Closing.
(iii) Purchaser understands that the Purchased Shares
purchased by him hereunder have not been registered under the
Securities Act of 1993, as amended (the "Securities Act"). Purchaser
also understands that the shares are being offered and sold pursuant
to exemptions from registration contained in the Securities Act and
applicable state securities laws based in part upon Purchaser's
representations contained in this Agreement.
(iv) Purchaser understands and agrees that he bears the
economic risk of this investment indefinitely unless and until the
shares acquired hereunder are registered pursuant to the Securities
Act, or an exemption from registration is available. Purchaser
understands that Metanetics has no present intention of registering
the shares being sold hereunder or any shares of its capital stock.
Purchaser also understands that there is no assurance that any
exemption from registration under the Securities Act will be available
and that, even if available, such exemption may not allow Purchaser to
transfer all or any portion of such shares.
(v) Purchaser is acquiring the Purchased Shares for
Purchaser's own account for investment only, and not with a view
toward their distribution.
(vi) Purchaser represents that by reason of his business or
financial experience, Purchaser has the capacity to protect his own
interests in connection with the transactions contemplated in this
Agreement and can bear the risk of such investment without
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materially impairing his financial condition. Further, Purchaser is
aware of no publication of any advertisement in connection with the
transactions contemplated in this Agreement.
(vii) Purchaser, as an officer, director or advisor of
Metanetics, or of Metanetics' parent corporation, is fully aware of
all material information relating to Metanetics, including its
business and financial affairs, and has had full and free access to
all such information. Purchaser has had an opportunity to discuss
Metanetics' business, management and financial affairs with directors,
officers and management of Metanetics and has had the opportunity to
review Metanetics' operations and facilities. Purchaser also has had
the opportunity to ask questions of and receive answers from
Metanetics and its management regarding the transactions contemplated
hereby.
(viii) Purchaser is an "accredited investor" as that term is
defined in Regulation D under the Securities Act. Specifically,
Purchaser meets one or more of the following definitions of an
"accredited investor":
(A) A natural person whose net worth, either
individually or jointly with such person's spouse, at the
same time of the Closing, exceeds $1,000,000;
(B) A natural person who had an individual income in
excess of $200,000 or joint income with that person's spouse
in excess of $300,000 in 1994 and 1995, and reasonably
expects to have individual income reaching the same level in
1996;
(C) A director or executive officer of Metanetics;
(D) A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the shares, whose purchase is directed by a sophisticated
person who has such knowledge and experience in financial and
business matters that such person is capable of evaluating
the merits and risks involved in purchasing the shares
hereunder;
(E) A corporation, not formed for the specific
purpose of acquiring shares the Purchased Shares, with assets
in excess of $5,000,000.
For purposes of the above definitions of "accredited investor," the
term "net worth" means the excess of total assets over total
liabilities. In calculating net worth, Purchaser may include the
estimated fair market value of the Purchaser's principal residence as
an asset. In determining individual "income," Purchaser should add to
Purchaser's individual adjusted gross income (exclusive of any spousal
income) any amounts attributable to tax exempt income received, losses
claimed as a limited partner in any limited partnership, deductions
claimed for depletion, contributions to an XXX or Xxxxx retirement
plan, alimony payments, and any amount by which income from long-term
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capital gains has been reduced in arriving at adjusted gross income,
and should subtract any unrealized capital gain.
(ix) Purchaser's address as set forth on EXHIBIT A is the
address of Purchaser's primary residence. Purchaser's address as set
forth on EXHIBIT A is the same state in which Purchaser received an
offer of sale of the Purchased Shares and in which Purchaser is
entering into this Agreement.
3. CLOSING. The closing of the transactions contemplated hereunder
(the "Closing") shall be held at such times and places as the parties may
agree, and shall continue until all of the Purchasers have consummated such
transactions; provided that the Closing shall be consummated no later than
March 31, 1996.
4. INDEMNIFICATION. Notwithstanding anything to the contrary in this
Agreement, each of the Purchasers severally and Meta shall indemnify and hold
harmless the other against and from any and all losses, fees, costs, expenses,
damages, obligations, liabilities and claims (including, without limitation,
any and all fees, costs and expenses whatsoever reasonably incurred by it or
its counsel in investigating, preparing for, defending against, or providing
evidence, producing documents or taking any other action in respect of, any
threatened or asserted claim) arising directly or indirectly out of: (a) any
failure of any representation or warranty of such party to be correct and
complete when made, or (b) any failure by such party to perform and observe
fully all obligations and conditions to be performed or observed by that party
under this Agreement. Notwithstanding the foregoing or anything herein to the
contrary, no claim for indemnification may be asserted after March 30, 1997.
5. CONDITIONS TO EACH PURCHASER'S OBLIGATIONS. The obligation of each
Purchaser to purchase the Purchased Shares are subject to the satisfaction, at
or prior to the Closing, of the following conditions, any one or more of which
may be waived by such Purchaser:
(a) The representations and warranties made by Meta in
Section 2(a) hereof shall be true and correct in all material respects
at the Closing with the same force and effect as if they had been made
as of the date of the Closing, and Meta shall have performed all
obligations and conditions herein required to be performed or observed
by it on or prior to Closing.
(b) At the time of Closing, the sale of the Purchased Shares
shall be legally permitted by all laws and regulations to which the
Purchasers and Meta are subject.
(c) Meta shall have obtained any and all consents, permits,
and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as
properly may be obtained subsequent to the Closing).
(d) Each Purchaser or his counsel has had the opportunity to
review copies of all corporate documents of Meta as the Purchaser
reasonably may have requested.
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(e) Meta shall have delivered to Purchaser a certificate,
executed by an officer of Meta, dated the date of Closing, to the
effect that the conditions specified in subparagraphs (a) through (c)
of this Section 5 have been satisfied.
(f) All corporate and other proceedings in connection with
the transactions contemplated at the Closing hereby and all documents
and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers, and the
Purchasers shall have received all such counterpart originals or
certified or other copies of such documents as they reasonably may
request.
6. CONDITIONS TO META'S OBLIGATIONS. Meta's obligation to sell the
Purchased Shares at Closing is subject to the satisfaction, on or prior to
Closing, of the following conditions, any one or more of which may be waived by
it:
(a) The representations and warranties made by each Purchaser
in Section 2(b) hereof shall be true and correct in all material
respects at the date of the Closing, with the same force and effect as
if they had been made on and as of said date, and each Purchaser shall
have performed all obligations and conditions herein required to be
performed or observed by him on or prior to Closing.
(b) At the time of Closing, the sale of the Purchased Shares
shall be legally permitted by all laws and regulations to which the
Purchasers and Meta are subject.
(c) Each Purchaser shall have obtained any and all consents,
permits, and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as
properly may be obtained subsequent to the Closing).
(d) Each Purchaser shall have performed and complied with all
agreements and conditions herein required to be performed or complied
with by each Purchaser on or before the Closing.
(e) Each Purchaser shall have delivered to Meta (i) a
certificate, executed by him, dated the date of Closing, to the effect
that the conditions specified in subparagraphs (a) through (d) of this
Section 6, and in subparagraph (d) of Section 5, have been satisfied
and (ii) an Investment Letter in the form attached hereto as EXHIBIT
B, executed by him.
7. [INTENTIONALLY OMITTED]
8. ENTIRE AGREEMENT. This Agreement and any other writing specifically
identified herein or specifically contemplated hereby, taken together, contain
the entire agreement among the parties hereto with respect to Meta's sale and
each Purchaser's acquisition of shares hereunder and supersedes all previous
written or oral negotiations, commitments and writings with respect thereto.
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9. HEADINGS. The paragraph headings used herein are for convenience of
reference only and do not form a part hereof and do not in any way modify,
interpret or set forth the intentions of the parties.
10. SURVIVAL. All agreements, obligations, warranties, and
representations under this Agreement shall survive the Closing and any
investigations made by the parties until March 30, 1997.
11. GENDER AND NUMBER. When permitted by the context, each pronoun
used in this Agreement includes the same pronoun in other genders or numbers,
and each noun used in this Agreement, including each capitalized term defined
herein, includes the same noun in other numbers.
12. SUCCESSORS. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by and against the respective heirs, personal
representatives, successors, and assigns of each party to this Agreement.
13. NO THIRD-PARTY BENEFIT. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective
successors and assigns, and nothing contained in this Agreement shall be
construed as creating any rights or benefits in or to any third party.
14. GOVERNING LAW. All questions concerning the validity or meaning of
this Agreement or relating to the rights and obligations of the parties with
respect to performance under this Agreement shall be construed and resolved
under the laws of the State of Ohio, without regard to conflict of laws
principals.
15. SEVERABILITY. The intention of the parties to this Agreement is to
comply fully with all laws and public policies, and this Agreement shall be
construed consistently with all laws and public policies to the extent
possible. If any court of competent jurisdiction determines it is impossible to
construe any provision of this Agreement consistently with any law or public
policy and consequently holds that provision to be invalid, such holding shall
in no way effect the validity of the other provisions of this Agreement, which
shall remain in full force and effect.
16. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
META HOLDING CORPORATION
By: s/ Xxxxx X. Xxxxx
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Its: President
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