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EXHIBIT 10.24
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of September
28, 1999, is by and among VSI Enterprises, Inc., a Delaware corporation ("VSI"),
Xxxx D'Haeyer ("D'Haeyer") and Xxxxxx Xx Xxx ("De Rop") (D'Haeyer and De Rop are
sometimes each referred to herein as a "Purchaser" and collectively, as the
"Purchasers") and Videoconferencing Systems, n.v., a limited liability company
organized under the laws of Belgium (the "Company"). The parties hereto are
sometimes each referred to herein as a "Party" and collectively, as the
"Parties").
W I T N E S S E T H :
WHEREAS, VSI owns all of the issued and outstanding shares of capital
stock of the "Company", and desires to sell, and Purchasers desire to purchase,
certain shares of the capital stock of the Company from VSI;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the Parties agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Closing" shall mean the closing of the transactions contemplated by
this Agreement, which shall occur at 10:00 a.m., Atlanta time, on the Closing
Date in the offices of VSI at 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000,
or at such other time and place as shall be mutually agreed in writing by the
Parties.
"Closing Date" shall mean the date of the Closing, which shall occur
as soon as practicable after the date hereof, but in no event may the Closing
Date be later than September 30, 1999.
SECTION 2. PURCHASE AND SALE OF STOCK. Subject to and upon the terms and
conditions contained herein, at the Closing: (i) VSI shall sell, transfer,
assign, convey and deliver to D'Haeyer and De Rop, 81,338 and 47,770 shares,
respectively, of the common stock of the Company which shares constitute 100% of
the issued and outstanding shares of capital stock of the Company (collectively,
the "Shares"), in each case, free and clear of all adverse claims, security
interests, liens, claims and encumbrances, and Purchasers shall purchase, accept
and acquire from VSI, the Shares. The Purchase Price for the Shares shall be
$1.00 from each Purchaser, payable in cash.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF VSI. VSI represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
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3.1 OWNERSHIP OF THE STOCK. VSI owns, beneficially and of record, good
and marketable title to all of the issued and outstanding capital stock of the
Company. At the Closing, VSI will convey to Purchasers good and marketable title
to the Shares, free and clear of any security interests, liens, adverse claims,
encumbrances, equities, proxies, options, shareholders' agreements or
restrictions.
3.2 CAPITALIZATION. The authorized capital stock of the Company consists
of 129,108 shares of common stock. There exist no options, warrants,
subscriptions or other rights to purchase, or securities convertible into or
exchangeable for, the capital stock of the Company.
3.3 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
by VSI of this Agreement and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by VSI. This Agreement and each other agreement contemplated hereby
have been or will be as of the Closing Date duly executed and delivered by VSI
and constitute or will constitute legal, valid and binding obligations of VSI,
enforceable against VSI in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
3.4 NO VIOLATION. Neither the execution, delivery or performance of this
Agreement or the other agreements contemplated hereby nor the consummation of
the transactions contemplated hereby or thereby will conflict with, or result in
a violation or breach of the terms, conditions or provisions of, or constitute a
default under, the Certificate of Incorporation or Bylaws of VSI or any
agreement, indenture or other instrument under which VSI is bound.
3.5 CONSENTS. Except for the security interest on the capital stock of
the Company referred to in Section 8.4 below, no consent, authorization,
approval, permit or license of, or filing with, any governmental or public body
or authority, any lender or lessor or any other person or entity is required to
authorize, or is required in connection with, the execution, delivery and
performance of this Agreement or the agreements contemplated hereby on the part
of VSI.
3.6 FINDER'S FEE. VSI has not incurred any obligation for any finder's,
broker's or agent's fee in connection with the transactions contemplated hereby.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Purchasers, jointly
and severally, represent and warrant that the following are true and correct as
of the date hereof and will be true and correct through the Closing Date as if
made on that date:
4.1 AUTHORIZATION AND VALIDITY. This Agreement and each other agreement
contemplated hereby have been duly executed and delivered by each Purchaser and
constitute legal, valid and binding obligations of each Purchaser, enforceable
against each Purchaser in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
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4.2 FINDER'S FEE. Neither Purchaser has incurred any obligation for any
finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
4.3 LIMITATION ON REPRESENTATIONS AND WARRANTIES. Purchasers acknowledge
and agree that as senior management of the Company, they have extensive
knowledge concerning the condition (financial, business or otherwise) of the
Company, and that except for the representations and warranties contained in
Section 3 above, are purchasing the Shares "AS IS, WHERE IS", without any other
representations or warranties, express or implied.
SECTION 5. VSI'S COVENANTS. VSI agrees that between the date hereof and the
Closing:
5.1 CONSUMMATION OF AGREEMENT. VSI shall use all commercially reasonable
efforts to cause the consummation of the transactions contemplated hereby in
accordance with their terms and conditions.
5.2 APPROVALS OF THIRD PARTIES. VSI shall use all commercially
reasonable efforts to secure, as soon as practicable after the date hereof, all
necessary approvals and consents of third parties to the consummation of the
transactions contemplated hereby.
SECTION 6. PURCHASERS' COVENANTS. Each Purchaser agrees that between the date
hereof and the Closing:
6.1 CONSUMMATION OF AGREEMENT. Such Purchaser shall use all commercially
reasonable efforts to cause the consummation of the transactions contemplated
hereby in accordance with their terms and conditions.
6.2 APPROVALS OF THIRD PARTIES. Such Purchaser shall use all
commercially reasonable efforts to secure, as soon as practicable after the date
hereof, all necessary approvals and consents of third parties to the
consummation of the transactions contemplated hereby.
SECTION 7. PURCHASERS' CONDITIONS PRECEDENT. Except as may be waived in writing
by Purchasers, the obligations of Purchasers hereunder are subject to the
fulfillment at or prior to the Closing Date of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of VSI contained herein shall have been true and correct in all respects when
initially made and shall be true and correct in all respects as of the Closing
Date.
7.2 COVENANTS AND CONDITIONS. VSI shall have performed and complied with
all covenants and conditions required by this Agreement to be performed and
complied with by VSI prior to the Closing Date.
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7.3 APPROVALS OF THIRD PARTIES. Purchasers shall have received all
necessary approvals and consents of third parties to the consummation of the
transactions contemplated hereby.
7.4 PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened, orally or in writing,
asserted, instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
7.5 CLOSING DELIVERIES. Purchaser shall have received all documents,
duly executed in form satisfactory to Purchaser and its counsel, referred to in
Section 9.1.
SECTION 8. VSI'S CONDITIONS PRECEDENT. Except as may be waived in writing by
VSI, the obligations of VSI hereunder are subject to fulfillment at or prior to
the Closing Date of each of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Purchasers contained herein shall be true and correct in all respects as of
the Closing Date.
8.2 COVENANTS AND CONDITIONS. Purchasers shall have performed and
complied in all material respects with all covenants and conditions required by
this Agreement to be performed and complied with by it prior to the Closing
Date.
8.3 APPROVALS OF THIRD PARTIES. VSI shall have received all necessary
approvals and consents of third parties to the consummation of the transactions
contemplated hereby.
8.4 RELEASES. VSI shall have been released from any and all financial
obligations for, or with respect to, the Company, including, without limitation,
any guaranties of indebtedness and any liens or security interests held by any
entity in and to the capital stock of the Company owned by VSI as collateral for
any such guaranty or obligation.
8.5 PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
8.6 CLOSING DELIVERIES. VSI shall have received all documents referred
to in Section 9.2.
SECTION 9. CLOSING DELIVERIES.
9.1 DELIVERIES OF VSI. At the Closing, VSI shall deliver to Purchasers
the following, all of which shall be in form and content satisfactory to
Purchaser and its counsel:
(a) Certificates representing the Shares, duly endorsed and in proper
form for transfer to Purchasers by delivery under applicable law, or
accompanied by duly executed instruments of transfer in blank; and
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(b) A certificate of the Chief Executive Officer of VSI, dated the
Closing Date, verifying that the matters set forth in Sections 7.1 and 7.2
above are true and correct as of the Closing Date.
9.2 DELIVERIES OF PURCHASERS. At the Closing, Purchasers shall deliver
the following, all of which shall be in form and content satisfactory to VSI and
its counsel:
(a) The purchase price in cash;
(b) The Capital Stock Purchase Warrant described in Section 10.3 below;
and
(c) Written confirmation of the items described in Section 8.4 above
(including, without limitation, the stock certificates of the Company owned
by VSI which are pledged as collateral).
SECTION 10. OTHER MATTERS.
10.1 DISTRIBUTION AGREEMENT. At the Closing, VSI and the Company shall
have entered into a Distribution Agreement, substantially in the form of Exhibit
A attached hereto.
10.2 SECURITYHOLDERS AGREEMENT. At the Closing, VSI, the Purchasers and
the Company shall have entered into a Securityholders Agreement, substantially
in the form of Exhibit B attached hereto.
10.3 WARRANT. At the Closing, the Company shall issue to VSI a warrant to
purchase 40,771 of the Company's common shares, substantially in the form of
Exhibit C attached hereto (the "Capital Stock Purchase Warrant").
SECTION 11. TERMINATION. This Agreement may be terminated:
(a) At any time prior to the Closing Date by mutual agreement of all
Parties.
(b) After the Closing Date by Purchasers if the conditions stated in
Section 7 have not been satisfied by the Closing Date.
(c) After the Closing Date by VSI if the conditions stated in Section 8
have not been satisfied by the Closing Date.
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In the event this Agreement is terminated pursuant to subparagraph (b) or (c)
above, Purchasers and VSI shall each be entitled to pursue, exercise and enforce
any and all remedies, rights, powers and privileges available at law or in
equity. In the event of a termination of this Agreement under the provisions of
this Section, a party not then in material breach of this Agreement shall stand
fully released and discharged of any and all obligations under this Agreement.
SECTION 12. MISCELLANEOUS
12.1 AMENDMENT. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by all the parties hereto.
12.2 ASSIGNMENT. Neither this Agreement nor any right created hereby or
in any agreement entered into in connection with the transactions contemplated
hereby shall be assignable by any Party.
12.3 PARTIES IN INTEREST. No Third Party Beneficiaries. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the Parties. Neither this Agreement
nor any other agreement contemplated hereby shall be deemed to confer upon any
person not a Party any rights or remedies hereunder or thereunder.
12.4 ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the Parties regarding the subject
matter hereof, and supersede all prior agreements and understandings, both
written and oral, among the Parties, or any of them, with respect to the subject
matter hereof.
12.5 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12.6 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants contained herein shall survive the
Closing and all statements contained in any certificate, exhibit or other
instrument delivered by or on behalf of the Parties pursuant to this Agreement
shall be deemed to have been representations and warranties by the Parties, as
the case may be, and, notwithstanding any provision in this Agreement to the
contrary, shall survive the Closing for a period of one (1) year.
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12.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF LAWS) XX XXX
XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA.
12.8 CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
12.9 CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each Party shall keep
this Agreement and its terms confidential, and shall make no press release or
public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement, or the terms, conditions or other facts with
respect thereto, without in each case the prior written consent of the other
Parties; provided that the foregoing shall not prohibit any disclosure: (a) to
attorneys, accountants, investment bankers or other agents of the Parties
assisting the parties in connection with the transactions contemplated by this
Agreement and; (b) as required by law (including, without limitation, United
States securities laws) or regulation or by court or administrative agency.
12.10 NOTICE. Any notice or communication hereunder or in any agreement
entered into in connection with the transactions contemplated hereby must be in
writing and given by depositing the same in the United States mail, addressed to
the Party to be notified, postage prepaid and registered or certified with
return receipt requested, or by delivering the same in person or by facsimile
transmission. Such notice shall be deemed received on the date on which it is
hand-delivered or received by facsimile transmission or on the third business
day following the date on which it is so mailed. For purposes of notice, the
addresses of: (a) VSI shall be 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000; (b) the Shareholders shall be Xxxxxxxxxxxxxxx 0/X, Xxxxxxxxxx, Xxxxxxx
X-0000. Any Party may change its address for notice by written notice given to
the other Party in accordance with this Section.
12.11 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
EXECUTED as of the date first above written.
VSI ENTERPRISES, INC.
/s/ Xxxxx X. Xxxxxxxx
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By: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SHAREHOLDERS:
/s/ Xxxx D'Haeyer
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Xxxx D'Haeyer
/s/ Xxxxxx Xx Xxx
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Xxxxxx Xx Xxx
VIDEOCONFERENCING SYSTEMS, N.V.
/s/ Xxxx D'Haeyer
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By: Xxxx D'Haeyer
Title: President
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