Exhibit 10.22
STOCK PURCHASE AGREEMENT
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Dated
December 27, 2000
between
WOLF POPPER LLP
(as Chair of the Executive Committee of Plaintiffs' Counsel in
the Action and as Escrow Agent for the Pegasystems Settlement Fund (tax
identification no. 00-0000000) ("Escrow Agent")),
and
Xxxxxxxxx X. d'Arbeloff ("Investor")
INTRODUCTION
WHEREAS, Pegasystems, Inc. (the "Company") has issued or will have issued
1,385,000 shares of the Company's Common Stock, $.01 par value per share, to the
Escrow Agent to fund a portion of a Settlement Fund that has been established
pursuant to a Stipulation of Settlement entered into between the Company and the
Lead Plaintiffs (the "Stipulation") in an action entitled Chalverus, et al. v.
Pegasystems, Inc., et al., C.A. No. 97-12570-WGY filed in federal court in
Massachusetts (the "Action").
WHEREAS, the Escrow Agent wishes to sell, and the Investor wishes to
purchase from the Escrow Agent 500,000 shares of the Common Stock (the "Shares")
of the Company.
WHEREAS, the Purchase Price for the Shares was set pursuant to negotiations
between the Company and the Investor.
WHEREAS, the Escrow Agent is authorized to enter into this transaction
pursuant to the Stipulation and Final Order and Judgment of the District Court,
entered December 19, 2000.
TERMS AND CONDITIONS
ARTICLE I. REPRESENTATIONS AND WARRANTIES OF THE ESCROW AGENT
The Escrow Agent represents and warrants to the Investor that:
Section 1.01. Ownership of Shares; Liens and Encumbrances; Effect of
Agreement. As of immediately prior to the consummation of the transactions
contemplated hereby, all of the Shares will be owned of record by the Escrow
Agent and the Escrow Agent will have title to
such Shares. The Escrow Agent has not caused any liens or encumbrances to be
placed on the Shares. Each of this Agreement and all other documents
contemplated, when executed and delivered to the Escrow Agent, will constitute
valid and legally binding obligations of the Escrow Agent, enforceable against
the Escrow Agent in accordance with their respective terms.
Section 1.02. Absence of Representations. The Investor acknowledges and
understands that the Escrow Agent makes no representations concerning the
Company, its business, or its financial condition. The Investor acknowledges
that he has received no information and relies upon no information provided to
him by the Escrow Agent concerning the Company. The Investor further
acknowledges that the Escrow Agent makes no representations concerning the
eligibility of the Shares for exemption from registration under Section 3(a)(10)
of the Act or otherwise. The Investor releases the Escrow Agent from all claims
arising from the purchase and sale of the Shares, except for specific
performance of this Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Escrow Agent that:
Section 2.01. Power and Authority Relative to this Transaction. The
Investor has full power and authority and has taken all required action
necessary to permit him to execute and deliver and to carry out the terms of
this Agreement and all other documents or instruments required hereby.
Section 2.02. Purchase for Investment. The Investor is purchasing the
Shares purchased by him hereunder for investment for the Investor's own account
and not with a view to the distribution thereof in violation of the securities
laws. The Investor understands that (i) the Shares must be held indefinitely
unless they are registered under the 1933 Act or an exemption from such
registration is available; (ii) sales of the Shares made in reliance upon Rule
144 under such Act can be made only in accordance with the terms and conditions
of such Rule; and (iii) there can be no assurance that the conditions precedent
to making sales under such Rule will have been met, and that if such Rule is not
available, compliance with another exemption from registration under such Act
will be required prior to the disposition of the Shares.
Section 2.03. Receipt of Information. The Investor has received all
information that it has requested from the Company and believes that such
information is sufficient to make an informed decision with respect to the
purchase of the Shares. The Investor has had an opportunity to ask questions
and receive answers from the Company regarding the financial condition of the
Company and to obtain such additional information as he deemed necessary.
Section 2.04. Financial Resources Knowledge and Experience; Status under
Securities Laws. The Investor: (a) possesses the financial resources to bear the
risk of economic loss with respect to its purchase of the Shares; (b) has such
knowledge and experience in financial and business matters that he is able to
evaluate the merits and make an informed investment decision with respect to his
purchase of the Shares; (c) qualifies as an "accredited investor" as such term
is
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defined in Rule 501 under the 1933 Act; and (d) is experienced in investing
in securities of companies in a similar stage of development as the Company and
is able to fend for himself.
Section 2.05. Brokers, Etc. The Investor has dealt with no broker, finder,
commission agent or person in connection with the offer or sale of the Shares
and the transactions contemplated by this Agreement and is under no obligation
to pay any broker's fee, finder's fee, or commission in connection with such
transactions.
ARTICLE III. THE INVESTMENT
Section 3.01. The Shares. Subject to the terms and conditions hereof, and
in reliance on the representations and warranties contained herein, the Escrow
Agent shall, subject to receipt of full payment therefor as contemplated by
Section 3.02, sell to the Investor, and the Investor shall purchase from the
Escrow Agent, the Shares at a purchase price equal to $ 4.69 per share (the
"Purchase Price").
Section 3.02. Consideration for the Shares. The Investor shall pay the
Purchase Price of the Shares purchased by him hereunder from the Escrow Agent in
full at the Closing referred to in Article IV by certified or bank check payable
to the Escrow Agent or by wire transfer to accounts designated in writing by the
Escrow Agent.
ARTICLE IV. THE CLOSING
The purchase and sale of the Shares being purchased by the Investor shall
take place at a closing (the "Closing") to be held at the offices of Ropes &
Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx at 10:00 a.m. local time on
the sixth business day following the entry by the court of a judgment approving
the settlement of the Action as fair, reasonable and in the best interests of
the class, as provided in the Stipulation (or at such other place and time as
may be mutually agreed upon in writing).
ARTICLE V. CONDITIONS OF THE CLOSING - INVESTOR
The obligations of the Investor to purchase the Shares to be purchased by
him at the Closing shall be subject to the satisfaction of the following
conditions at and as of the time of the Closing:
Section 5.01. Sale of Shares. The Escrow Agent shall have delivered to the
Investor the certificate[s] evidencing the Shares along with any documents
necessary to effect the transfer of the Shares.
ARTICLE VI. CONDITIONS OF THE CLOSING - ESCROW AGENT
The obligations of the Escrow Agent to sell the Shares to be purchased by
the Investor at the Closing shall be subject to the satisfaction of the
following conditions at and as of the time of the Closing:
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Section 6.01. Delivery of Shares. Pegasystems shall have delivered the
Shares to the Escrow Agent.
Section 6.02. Payment of Consideration. The Investor shall have paid the
Purchase Price of the Shares purchased by it hereunder. The Shares shall be
held in escrow by Ropes & Xxxx pending confirmation by the Escrow Agent of
receipt of the Purchase Price (if payment is by wire transfer).
ARTICLE VII. DEFINED TERMS
The terms defined in this Article VII, whenever used and capitalized in
this Agreement, shall, unless the context otherwise requires, have the following
respective meanings:
Closing: shall have the meaning specified in Article IV.
Company: shall mean Pegasystems Inc., a Massachusetts corporation.
Investor: shall have the meaning specified at the beginning of this
Agreement.
Shares: shall have the meaning specified in the Introduction.
1933 Act: shall mean the Securities Act of 1933, as amended.
ARTICLE VIII. MISCELLANEOUS
Section 8.01. Notices. All notices to a party hereunder shall be in writing
and shall be deemed to have been adequately given if delivered in person, upon
facsimile transmission with receipt acknowledged by the recipient's facsimile
transmission machine or by delivery by a recognized courier for overnight
delivery, or three days after having been mailed, certified mail, return receipt
requested, to such party at its address set forth below (or such other address
as it may from time to time designate in writing to the other parties hereto).
The Escrow Agent: Xxxxxx X. Xxxxxx, Esq.
Wolf Popper, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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The Investor: Xxxxxxxxx X. D'Arbeloff
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Section 8.02. No Waiver. No failure to exercise and no delay in exercising,
on the part of the Investor, any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise or
the exercise of any other right, power or privilege. The rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law.
Section 8.03. Amendments and Waivers. Except as hereinafter provided, this
Agreement may be modified or amended or any term or provision may be waived by a
writing signed by the Escrow Agent and the Investor. No waiver of any term or
provision shall be effective unless made in the same manner as an amendment of
such term or provision.
Section 8.04. Survival of Agreements etc. All agreements, representations
and warranties contained herein or made in writing by or on behalf of the
Investor or the Escrow Agent in connection with the transactions contemplated
shall, except where otherwise provided by their terms, survive the execution and
delivery of this Agreement, the Closing pursuant to Article IV, and any
investigation at any time made by or on behalf of the Investor.
Section 8.05. Construction. This Agreement shall be governed by and
construed in accordance with the law of The Commonwealth of Massachusetts. The
descriptive headings of the several Sections are for convenience only and shall
not control or affect the meaning or construction of any of the provisions.
Section 8.06. Binding Effect and Benefits. This Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective heirs,
successors and assigns, excluding assignees of the Shares, but not including any
purchaser thereof in whose hands the Shares are not a restricted security as
defined in Rule 144 under the 1933 Act.
Section 8.07. Entire Agreement and Amendments. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter and
neither this Agreement nor any provision may be waived, modified, amended or
terminated except by a written agreement signed by the parties, in accordance
with the provisions of Section 8.03. To the extent any term or other provision
of any other indenture, agreement or instrument by which any party is bound
conflicts with this Agreement, this Agreement shall have precedence over such
conflicting term or provision.
Section 8.08. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first above written.
WOLF POPPER, LLP (as Escrow Agent)
By: __________________________
Name: __________________________
Title:__________________________
INVESTOR:
________________________________
Name: Xxxxxxxxx X. d'Arbeloff
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