EXHIBIT 10.18
STOCK PURCHASE AGREEMENT
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AGREEMENT dated as of March 16, 1999 by and among Dast Corporation, d.b.a.
Microcom Technologies, a New York corporation (the "Company") and Seacoast
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Capital Partners Limited Partnership, a Delaware limited partnership
(hereinafter referred to as either "Seacoast" or the "Purchaser") and Xxxxxx
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Nissanoff (the "Founder")
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Introduction
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The Purchaser wishes to purchase an aggregate of (i) 24,490 shares of the
Company's preferred stock, $0.1 par value per share (the "Preferred Shares"),
and the Company wishes to sell the Preferred Shares to the Purchaser. The
Founder, as director, officer and principal stockholder of the Company, wishes
to induce the Purchaser to purchase the Preferred Shares and to cause the
Company to sell the Preferred Shares to the Purchaser.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SENIOR PREFERRED SHARES;
PURCHASE PRICE; CLOSING; PRIOR AGREEMENTS
Section 1.01. Purchase and Sale of Preferred Shares. In reliance upon the
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representations and warranties contained herein, and subject to the terms and
conditions hereof, the Company agrees to issue and sell to the Purchaser, and
Purchaser agrees to purchase from the Company, the number of Preferred Shares
indicated next to Purchaser's name on Schedule 1.01 hereto.
Section 1.02 Purchase Price. The aggregate purchase price for the
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Preferred Shares shall be $3,000.000 (the "Purchase Price") which shall be an
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amount equal to the principal owed and outstanding as of the date first set
forth above on that certain Senior Subordinated Note, dated July 30, 1997, in
the original principal amount of $3,000.000, executed by the Company in favor of
Purchaser (the "Note"). The Purchase Price to be paid by Purchaser shall be
payable at the Closing (as hereinafter defined) by transferring the Note to the
Company marked "paid in full": provided that the Company has paid all accrued
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interest and all accrued fees and expenses (including fees and expenses incurred
in connection with the pay off of the Note) owing on and in connection with the
Note to the Purchaser such that the only amount which remains owing on the Note
at the Closing is principal.
Section 1.03. Closing. The purchase price and sale of the Preferred Shares
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shall take place at a closing (the "Closing") to be held at the offices of
Xxxxxx, Xxxx & Xxxxxxx, Exchange Place, Boston, Massachusetts, or such other
place as is agreed to by the parties, on March 16, 1999, or if the conditions to
Closing specified herein are not then satisfied or waived such date
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which is five (5) business days after the satisfaction or waiver of such
conditions (the "Closing Date").
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Section 1.04. Prior Agreements. In connection herewith, (i) Purchaser will
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exercise its Warrant dated July 30, 1997 (the "Warrant") for 50,000 shares of
common stock (which represents the total number of shares, as adjusted, subject
to the Warrant Purchase Agreement dated July 30, 1997, by and among the Company,
Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx Xxxxxxxxx and Purchaser (the "Warrant Purchase
Agreement")), (ii) each party signing below hereby agrees that each pre-existing
contractual agreement (specifically excluding this Agreement and any other
agreement executed in conjunction herewith or in conjunction with the
transactions contemplated hereby) between the Company (and/or the Company's
affiliate[s]) and the Purchaser listed on Schedule 1.04, attached hereto and
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incorporated herein, shall be terminated upon the Closing and (iii) termination
statements for each UCC-1 Financing Statement filed by the Purchaser in
connection with the Note shall be provided to the Company within fifteen (15)
business days of the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that the information
set forth in this Article II is true and correct as of the date hereof and will
be true and correct as of the Closing.
Section 2.01. Organization and Standing. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of New York. The Company has all necessary corporate power and authority
to own its properties and to carry on its business as currently conducted and as
proposed to be conducted. The Company is qualified to do business as a foreign
corporation in the States of New Jersey and Massachusetts, and is not required
to be qualified to do business as a foreign corporation in any other
jurisdiction where the failure to qualify would have a material adverse effect
on the Company.
Section 2.02. Subsidiaries. Schedule 2.02 sets forth a list of each
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Subsidiary (as hereinafter defined). Each subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
incorporation of such Subsidiary, as set forth on Schedule 2.02. Each Subsidiary
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has all necessary corporate power and authority to own its properties and to
carry on its business as currently conducted and as proposed to be conducted.
Except as set forth on Schedule 2.02, the Company has no Subsidiaries, holds no
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securities of any other entity, is not a party to any joint venture or
partnership and has made no investment in any third party. As used herein,
"Subsidiary" means any corporation or other entity a majority of the voting
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securities or economic interest of which is held by the Company or any
Subsidiary.
Section 2.03. Charter and By-Laws. The copies of the Certificate of
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Incorporation and the By-Laws of the Company furnished to the Purchaser are true
and correct in all respects. As of the Closing, the Company will amend its
Certificate of Incorporation, as amended from time
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to time, the "Certificate of Incorporation," in the form attached as Schedule
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2.03 hereto. The Class A Shares shall have the rights, preferences, privileges
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and restrictions set forth in such amendment.
Section 2.04. Validity and Enforceability. This Agreement is, and each of
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the other agreements and instruments of the Company and the Founder contemplated
hereby will be the valid and binding obligations of the Company and the Founder,
enforceable in accordance with their respective terms, except as the enforcement
thereof may be limited to bankruptcy and other laws of general application
relating to creditor's rights or general principals of equity.
Section 2.05. Capital Stock.
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(a) As of the Closing, the authorized capital stock of the
Company consists of (x) 106,122 shares of preferred stock, $.01 par value per
share, all of which shall be issued and outstanding and (y) 1,500,000 shares of
common stock (the "Common Stock") of which 408,163 will be issued and
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outstanding or reserved for future issuance upon the exercise of outstanding
stock options and the conversion of the Preferred Shares.
(b) Schedule 2.05(b) hereto sets forth a complete and accurate
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list of all holders of the Company's outstanding capital stock, and all options,
warrants, convertible securities and other rights which may afford any person or
entity the right to acquire shares of any class of capital stock of the Company,
including, without limitation, any capital stock, option, warrant, convertible
security or other security or right which the Founder of the company has a
current intention to issue or sell, in each case prior to and immediately after
the Closing.
(c) Schedule 2.05(c) hereto also sets forth the authorized
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capital stock of each Subsidiary, the number of shares of each class outstanding
and the record and beneficial holder thereof. No Subsidiary has issued or
granted any option, warrant, convertible security or other right or agreement
which affords any person or entity the right to purchase or otherwise acquire
any shares of its capital stock.
(d) Neither the Company nor any Subsidiary is subject to any
obligations (contingent or otherwise) to purchase or otherwise acquire or retire
any of its equity securities (other than in accordance with the Company's
Certificate of Incorporation of this Agreement). Except as set forth on Schedule
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2.05(d), no person has any right of first refusal or preemptive right in
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connection with the issuance of the Preferred Shares, conversion of Preferred
Shares into any class of Common Stock, Common Stock issuable upon exercise of
any stock options or the conversion of any Company indebtedness or with respect
to any future offer, sale or issuance of securities by the Company or its
shareholders, other than as set forth herein.
(e) The Preferred Shares, when delivered, will be duly and
validly issued and outstanding, fully paid and nonassessable, and free to the
holders thereof of any liens, encumbrances and restrictions (other than under
applicable securities laws or as set forth in any stockholders agreements to be
entered into by and between the Company and Seacoast in connection with the
consummation of the transactions contemplated by this Agreement). The
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Company has reserved a sufficient number of shares of Common Stock for issuance
upon conversion of the Preferred Shares and, when so issued, the shares of
Common Stock will be duly authorized, validly issued and outstanding, fully paid
and nonassessable, and free to the holders thereof of any liens, encumbrances
and restrictions (other than under applicable securities laws or as set forth in
any stockholders agreement to be entered into between the Company and Seacoast
in connection with the consummation of the transactions contemplated by this
Agreement).
(f) To the Company's knowledge, the offer and sale of all shares
of capital stock or other securities of the Company issued prior to the Closing
complied with or were exempt from all the registration provisions of federal and
state securities laws.
Section 2.06. Compliance with Law, etc. The Company and each Subsidiary are
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not, and the execution, delivery and performance by the Company of this
Agreement and the other agreements contemplated hereby, the issuance and sale of
the Preferred Shares, or the taking of any other action contemplated by this
Agreement or any of such other agreements will not result in the violation of
any term of the Company's Certificate of Incorporation or Bylaws, the charter or
bylaws of any Subsidiary, or any material agreement, lease, license, mortgage,
instrument, arrangement, judgement, decree, order, law, statute, rule or
governmental regulation to which the Company or any Subsidiary is subject. The
Company and each Subsidiary have all governmental licenses, authorizations,
registrations and permits material to or necessary for the conduct of their
businesses, as currently conducted and as proposed to be conducted, all of which
licenses, registrations and permits are listed on Schedule 2.06 hereto. All such
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licenses, registrations and permits are in full force and effect and there is no
proceeding pending or, to the Company's knowledge, threatened (or any basis
therefor) to revoke or limit any such license, registration or permit.
Section 2.07. Financial Statements. The Company has delivered to the
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Purchaser (a) its draft audited, consolidated balance sheet (the "Balance
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Sheet") as at December 31, 1998 (the "Balance Sheet Date"), and the draft
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audited, consolidated statement of income, retained earnings and cash flows of
the Company for the year then ended and (b) the consolidated balance sheet of
the Company and its Subsidiaries as at December 31, 1997 and the related
statement of income, retained earnings and cash flows for the year then ended,
audited by Ernst & Young LLP. Such financial statements and the notes thereto
are complete and accurate in all material respects and fairly present the
consolidated financial condition of the Company and its Subsidiaries at the
dates thereof and the results of operations for the periods then ended, and were
prepared in accordance with the books and records of the Company and its
Subsidiaries in conformity with generally accepted accounting principles
consistently applied during the periods covered thereby. There will be no
material difference between the information contained in the draft audited
financial statements for fiscal year 1998 and the audited financial statements
for such fiscal year.
Section 2.08. Material Adverse Changes. Except as set forth on Schedule
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2.08, since the Balance Sheet Date, the Company and each Subsidiary have
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conducted their business only in the usual and ordinary course and there as been
no (a) material adverse change in the condition (financial or otherwise),
business, properties or prospects of the Company and its Subsidiaries,
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on a consolidated basis (b) material increase in the compensation or commission
rate payable by the Company or any Subsidiaries to any officer, director,
employee or agent or bonus or similar payment (or commitment therefor) to any
officer, director, employee, agent or Affiliate (as hereinafter defined)
thereof, (c) dividend, distribution, redemption, recapitalization or other
transaction involving the Company's capital stock, except as otherwise expressly
contemplated by this Agreement, (d) material capital expenditure or commitment
therefor, or (e) material acquisition or disposition of assets or property or
commitment therefor.
Section 2.09. Assets.
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(a) Personal Property. Except as set forth on Schedule 2.09(a),
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the Company and each Subsidiary owns, or has a valid leasehold or license
interest in, all assets necessary for the conduct of its business as presently
conducted and as proposed to be conducted, in each case free and clear of all
liens, claims, security interests, charges and encumbrances. All of such assets
are reflected on the Balance Sheet, except to the extent acquired after the
Balance Sheet Date. All material operating assets of the Company and the
Subsidiaries are in good operating condition and repair, normal wear and tear
expected.
(b) Real Property. The Company and each Subsidiary enjoys peaceful
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and quiet possession of their leased premises as shown on Schedule 2.09(b) and
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have not received any notice asserting the existence of a default under any such
lease or indicating that the lessor thereunder has taken action or threatened
early termination of the lease.
Section 2.10. Litigation. Except as set forth on Schedule 2.10, no
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litigation, claims, actions, proceedings or investigations are pending or to the
Company's knowledge, threatened against the Company or any Subsidiary.
Section 2.11. Tax Matters. The Company and each Subsidiary has correctly
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and timely prepared and filed all tax returns required to have been filed by it
with all appropriate federal, state and local governmental agencies and timely
paid all taxes owed by it. The charges, accruals and reserves on the books of
the Company and each Subsidiary in respect of taxes for all fiscal periods are
adequate, and there are no unpaid assessments of the Company or any Subsidiary
nor any basis for the assessment of any additional taxes, penalties or interest
for any fiscal period or audit by any federal, state or local taxing authority.
All taxes and other assessments and levies which the Company or any Subsidiary
is required to withhold or to collect for payment have been duly withheld and
collected and paid to the proper governmental entity or third party. The Company
has furnished the Purchaser with true and correct copies of all of its tax
returns, including any amendments, for all open years. There are no tax liens or
claims pending or to the Company's knowledge, threatened against the Company, or
any Subsidiary, or any of their respective assets or property. There are no
outstanding tax sharing agreements or other such arrangements between the
Company or any Subsidiary and any other corporation or entity (other than
between the Company and its Subsidiaries). The tax basis of the assets of the
Company by category, including the classification of such assets as being
depreciable or amortizable, as reflected in its tax returns, is true and correct
in all material respects. The Company does not have a current election pursuant
to Section 1362 of the Internal Revenue Code of 1986, as
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amended (the "Code") to be taxed as an S corporation. Neither the Company, any
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Subsidiary nor the Founder has ever filed a consent pursuant to Section 341(f)
of the Code relating to collapsible corporations.
Section 2.12. Material Contracts. Schedule 2.12 is a complete and accurate
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list of all of the following kinds of contracts, agreements and arrangements
(whether written or unwritten) of the Company or any Subsidiary:
(a) contracts with any employee, officer, director or
stockholder, or any known relative or Affiliate (which term is used in this
Agreement as defined in the Rules promulgated under the Securities Act of 1933,
as amended (the "Act")) thereof;
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(b) licenses, leases, contracts and other arrangements with
respect to any property of the Company or any Subsidiary having a value or
resulting in (or required to generate) revenues to or expenses of the Company or
its subsidiaries of $100,000 or more, including without limitation, all real
estate leases, and licenses relating to the use of Intellectual Property (as
defined in Section 2.21);
(c) agreements, contracts or instruments relating to the
borrowing of money, the capital lease or purchase on an installment basis of any
asset or the guarantee of any of the foregoing involving more than $75,000;
(d) contracts with respect to which the Company or any Subsidiary
has any liability or obligation, contingent or otherwise, or which may otherwise
have a continuing effect for one year or more after the date of this Agreement,
including more than $75,000;
(e) contracts which place any material limitation on the method
of conducting or scope of the business of the Company or any Subsidiary; and
(f) any other contract which would be required to be disclosed as
an exhibit to a Registration Statement on Form S-1 under the Act filed by the
Company.
The Company has furnished to the Purchaser copies of all such contracts
(including all amendments and modifications thereto), or written descriptions
thereof, in the case of oral contracts, and each such contract (or written
description) sets forth the entire (or material terms in the case of an
unwritten agreement) agreement and understanding between the Company or a
Subsidiary and the other parties thereto. Each such contract is valid, binding
and in full force and effect, and there is no event which has occurred or
exists, which constitutes or which, with notice, the happening of any event
and/or the passage of time, would constitute a default or breach by the Company
or a Subsidiary under any such contract or would cause the acceleration of any
obligation of any party thereto or give rise to any right to any other party of
termination or cancellation thereof. Neither the Company nor the Founder has any
reason to believe that the parties to such contracts will not fulfill their
obligations thereunder in all material respects.
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Section 2.13. Employees and Compensation. Schedule 2.13 sets forth a
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complete and accurate list of (a) all employment and consulting contracts,
arrangements or plans with any employee of or consultant to the Company or any
Subsidiary and (b) all employees of and consultants to the Company or any
Subsidiary, with 1998 compensation in excess of $100,000, showing date of hire,
hourly rate or salary or other basis of compensation and other benefits accrued
as of a recent date, each increase and bonus granted since January 1, 1998, and
job function of salaried employees. None of the employees of the Company or any
Subsidiary is represented by a union, and there is no labor strike, dispute,
slowdown, stoppage, organizational effort, dispute or proceeding by or with any
employee or former employee of the Company or any Subsidiary or any labor union
pending or, to the knowledge of the Company, threatened against the Company or
any Subsidiary.
Section 2.14. Customers and Suppliers. Schedule 2.14 sets forth a list of
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all customers of the Company or any Subsidiary which accounted for at least
$500,000 of gross sales by the Company or each Subsidiary during the fiscal year
ended December 31, 1998. To the Company's knowledge, the Company's and each
Subsidiary's relationships with such customers and with its material suppliers
are good commercial working relationships. Except as set forth on Schedule 2.14,
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since December 31, 1997, no supplier representing more than $500,000 of
annualized purchases by the Company or any Subsidiary (in the case of a
supplier) has terminated or, to the Company's knowledge, threatened to
terminate, its relationship with the Company or any Subsidiary, or has decreased
materially or threatened to decrease or limit materially the services, supplies
or materials supplied to or purchased from the Company or any Subsidiary.
Section 2.15. Environmental Matters. Except as provided on Schedule 2.15,
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(a) the ownership or use of the Company's and the Subsidiaries' premises and
assets, the occupancy and operation thereof, and the conduct of the Company's
and the Subsidiaries' business are in compliance in all material respects with
all applicable federal, state and local laws, ordinances, regulations, standards
and requirements relating to safety, health, pollution, environmental
protection, hazardous substances and related matters and (b) there is no
liability attaching to such premises or assets or the ownership, use or
operation thereof as a result of any hazardous substance that may have been
discharged on or released from such premises, or disposed of on-site or
off-site, or any other circumstance occurring prior to the Closing or existing
as of the Closing. For purposes of this Section, "hazardous substance" shall
mean oil or any other substance which is included within the definition of a
"hazardous substance," "pollutant," "toxic substance," "toxic waste," "hazardous
waste," "contaminant" or other words of similar import in any federal, state or
local environmental law, ordinance or regulation.
Section 2.16. Insurance. Schedule 2.16 lists all insurance policies
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maintained by the Company or any Subsidiary, all of which are valid and in full
force. All premiums due to date under such policies have been paid, and no
default exists thereunder. To the Company's knowledge, the insurance listed on
Schedule 2.16 is in amounts adequate and appropriate for the business, and to
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avoid the operation of any coinsurance provision. Neither the company nor any
Subsidiary has received any notice of any proposed material increase in the
premiums payable
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for coverage, or proposed reduction in the scope (or discontinuation entirely)
of coverage, under any of such insurance policies.
Section 2.17. Employee Benefit Plans.
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(a) Schedule 2.17 sets forth all employee benefit plans,
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agreements, commitments, practices or arrangements of any type (including, but
not limited to, plans described in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) maintained by the Company or
any Subsidiary for the benefit of current or former employees or directors of
the Company or any Subsidiary, or with respect to which the Company or any
Subsidiary has a liability, whether direct or indirect, actual or contingent
(including, but not limited to, liabilities arising from affiliation under
Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA)
(collectively, the "Benefit Plans"). There are no material benefit plans,
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agreements, commitments, practices or arrangements of any type providing
benefits to employees or directors of the Company or any Subsidiary, other than
the Benefit Plans.
(b) With respect to each Benefit Plan, the Company has delivered to
the Purchaser true and complete copies of: (i) any and all plan texts and
agreements; (ii) any and all material communications to employees (including all
summary plan descriptions and material modifications thereto); (iii) the two
most recent annual reports, if applicable; (iv) the most recent annual and
periodic accounting of plan assets, if applicable; and (v) the most recent
determination letter received from the Internal Revenue Service (the
"Service"), if applicable.
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(c) With respect to each Benefit Plan: (i) if intended to qualify
under Section 401(a) of the Code, such plan so qualifies, and its trust is
exempt from taxation under Section 501(a) of the Code; (ii) such plan has been
administered and enforced in accordance with its terms and all applicable laws
in all material respects; (iii) no breach of fiduciary duty by the Company has
occurred with respect to which the Company, any Subsidiary or any Benefit Plan
may be liable or otherwise damaged in any material respect; (iv) no material
disputes are pending or threatened; (v) no "prohibited transaction" (within the
meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has
occurred with respect to which the Company or any Benefit Plan may be liable or
otherwise damaged in any material respect; (vi) all contributions, premiums, and
other payment obligations have been accrued on the financial statements of the
Company in accordance with generally accepted accounting principles, and, to the
extent due, have been made on a timely basis, in all material respects; (vii)
all contributions made or required to be made under such plan meet the
requirements for deductibility under the Code; (vii) the Company has expressly
reserved in itself the right to amend, modify or terminate such plan, or any
portion of it, without liability to itself; (ix) no such plan requires the
Company to continue to employ any employee or director.
(d) No Benefit Plan is, or has ever been, subject to Title IV of
ERISA.
(e) With respect to each Benefit Plan which provides welfare
benefits of the type described in Section 3(1) of ERISA: no such plan provides
medical or death benefits with respect to current or former employees or
directors of the Company beyond their termination of
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employment, other than coverage mandated by Sections 601-608 of ERISA and
4980B(f) of the Code, (ii) each such plan has been administered in compliance
with Sections 601-608 of ERISA and 4980B(f) of the Code; and (iii) no such plan
has reserves, assets, surpluses or prepaid premiums.
Section 2.18. Registration Rights. Except as set forth on Schedule 2.18,
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the Company is not a party to any agreement or commitment which obligates the
Company to register under the Act any of its outstanding securities or any of
its securities which may hereafter be issued.
Section 2.19. Offering. Subject to the accuracy of the Purchaser's
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representations in Section 3 of this Agreement, the offer, issuance and sale of
the Preferred Shares constitutes, and will constitute, transactions exempt from
the registration requirements of Section 5 of the Act and the Company has
obtained all qualifications, permits, and other consents, if any, required by
all applicable state securities laws.
Section 2.20. Affiliate Transactions. Except as set forth on Schedule 2.20,
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neither the Company nor any Subsidiary is a party to any material contract or
arrangement, either directly or indirectly, with any of the officers, directors
or stockholders of the Company or any Subsidiary, their known relatives or
Affiliates.
Section 2.21. Intellectual Property. Schedule 2.21 sets forth all patents,
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trademarks, service marks, trade names, copyrights, domain names, franchises and
licenses, all royalties and license agreements, all applications therefor, and
all other rights with respect to the foregoing owned or used by the Company or
any Subsidiary ("Intellectual Property"). The intellectual property and rights
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set forth on Schedule 2.21 include all of the foregoing necessary for the
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operation of the Company's and the Subsidiaries' business as now conducted and
as proposed to be conducted. To the Company's knowledge, the Company's and each
Subsidiary's ownership and use of the foregoing does not infringe or conflict
with the rights of others; neither the Company nor any Subsidiary is or will be
obligated to make any royalty, fee or other payments in connection with its
ownership or use of any patent, trademark, trade name, copyright or other
intangible asset in connection with the conduct of its business as now conducted
and as proposed to be conducted, except as described on Schedule 2.21. Except as
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set forth on Schedule 2.21, neither the Company nor any Subsidiary has been
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notified of any claim by any person or entity that the Company or any Subsidiary
is violating any trademark, service xxxx, trade name, patent or copyright, or
other intangible asset or right owned by any other person or entity or that it
is using any name that is confusingly similar to that of any other person or
entity, and, to the Company's knowledge, there is no basis for any such claim.
Section 2.22. Proprietary Information of Third Parties. Except as set
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forth on Schedule 2.22, no third party has claimed or, to the Company's
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knowledge, has reason to claim that any person employed by or affiliated with
the Company or any Subsidiary has (a) violated or, to the Company's knowledge,
may be violating any of the terms or conditions of such person's employment,
non-competition or non-disclosure agreement with such third party, (b) disclosed
or, to the Company's knowledge, may be disclosing or utilized or, to the
Company's knowledge, may be utilizing any trade secret or proprietary
information or documentation of
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such third party or (c) interfered or, to the Company's knowledge, may be
interfering in the employment relationship between such third party and any of
its employees. To the Company's knowledge, no person or entity employed by or
affiliated with the Company or any Subsidiary has employed or proposes to employ
any trade secret or any information or documentation proprietary to any other
person or entity in connection with the business of the Company or any
Subsidiary.
Section 2.23. Brokers. Except as set forth on Schedule 2.23, no finder,
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broker, agent, financial advisor or other intermediary has acted, directly or
indirectly, on behalf of the Company or any Subsidiary in connection with the
offering of the Preferred Shares or the negotiation or consummation of this
Agreement or any of the transactions contemplated hereby, or is entitled to any
fee, payment, commission or other consideration with respect thereto.
Section 2.24. Absence of Material Undisclosed Liabilities. Except for (a)
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any and all liabilities, accounts payable and accrued expenses reflected on the
Balance Sheet or amounts incurred in the ordinary course of business since the
Balance Sheet Date, and (b) obligations of future performance under contracts
set forth on a Schedule hereto and other contracts entered into in the ordinary
course of business which are not required to be listed on a Schedule hereto, as
of the Closing Date, the Company will have no material liabilities or
obligations, whether absolute, accrued, contingent or otherwise and whether due
or to become due.
Section 2.25. Year 2000 Compliance. Except as otherwise disclosed on
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Schedule 2.25, the Company, its Subsidiaries and its Management Systems and
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Production and Distribution Systems are or will be Year 2000 Compliant on or
before December 31, 1999. As used in this Section, the following terms have the
following meanings:
"Year 2000 Compliant" means, with respect to any person, that neither the
year change from 1999 to 2000 (the arrival of the date January 1, 2000) nor leap
year dates thereafter will (i) impair such person's ability to meet its
obligations to third parties or (ii) result in errors or corruption in
processing internally generated data or otherwise have a material adverse effect
on the operations or functionality of such person or its Management Systems or
Production and Distribution Systems, all of which will continue to operate as
intended prior to, during and after January 1, 2000.
"Management Systems" include, but are not limited to, all computer
hardware (including integrated circuit/chip and firmware) and software
applications that a person uses for managing and operating its business,
including without limitation functions such as accounting and billing, inventory
tracking and maintenance and vendor and supplier sourcing.
"Production and Distribution Systems" include, but are not limited to, all
computer hardware (including integrated circuit/chip and firmware) and software
applications, and all automated or electronic equipment, controls and other
systems used by a person in its production or distribution process, from the
point or input or raw material to final products and merchandise offered for
sale and distributed to customers.
10
Section 2.26. Required Consents. Except for the consents specified on
------------ -----------------
Schedule 2.26, no consent, order, authorization, approval, declaration or
-------------
filing, including, without limitation, any consent, approval or authorization of
or declaration or filing with any governmental authority or any party to a
material contract, is required on the part of the Company or any Subsidiary (and
no notices to or consents or other approvals from any of the lessors or any of
such lessors' mortgagees under any of the real property leases are required) for
or in connection with the execution, delivery or performance of this Agreement
and each of the other agreements contemplated hereby or the conduct of the
business by the Company or any Subsidiary after the Closing, or to prevent a
material default. The Company has no reason to believe that all of the required
consents and approvals not obtained as of the Closing will not be obtained
within six (6) months of Closing without material cost to the Company. Subject
to obtaining the consents specified on Schedule 2.26, the execution, delivery
-------------
and performance of this Agreement and the other instruments and agreements
contemplated hereby by the Company will not result in any material violation of,
be in material conflict with or constitute a material default under, any law,
statute, regulation, ordinance, contract, agreement, instrument, judgment,
decree or order to which the Company is a party or by which the Company is
bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants to the Company that:
Section 3.01. Investment Intent. The Preferred Shares to be acquired by
------------ -----------------
it are being acquired solely for its own account, for investment purposes only
and, with no present intention of distributing, selling, transferring or
otherwise disposing of them, and the Purchaser has no present plans to enter
into any such contract, undertaking, agreement or arrangement with respect
thereto.
Section 3.02. Economic Risk; Sophistication. The Purchaser is able to
------------ -----------------------------
bear the economic risk of an investment in the Preferred Shares to be acquired
by it, can afford to sustain a total loss on such investment and have such
knowledge and experience in financial and business matters that they are capable
of evaluating the merits and risk of the proposed investment.
Section 3.03. Authority. The Purchaser is duly formed, validly existing
------------ ---------
and in good standing under the laws of its state of formation. The Purchaser has
all requisite power and authority to enter into this Agreement and perform its
obligations hereunder, and this Agreement constitutes the valid and binding
obligation of the Purchaser enforceable against it in accordance with its terms.
Section 3.04. Brokers. No finder, broker, agent, financial advisor or
------------ -------
other intermediary has acted on behalf of the Purchaser in connection with the
negotiation or consummation of this Agreement or any of the transactions
contemplated hereby, and no such person is entitled to any
11
fee, payment, commission or other consideration with respect thereto as a result
of any arrangement made by the Purchaser.
Section 3.05. Limited Liability. The Purchaser understands that the
------------ -----------------
Preferred Shares to be acquired by it may not be sold, transferred or otherwise
disposed of without registration under the Act and any state securities laws, or
an exemption therefrom (supported by an opinion of counsel satisfactory to the
Company), and that in the absence of an effective registration statement
covering such securities or an available exemption from registration, such
securities may be required to be held indefinitely. The Purchaser is aware that
the Preferred Shares to be acquired by it may not be sold pursuant to Rule 144
promulgated under the Act, unless all of the conditions of that Rule are met and
that among the conditions for use of Rule 144 is the availability of current
information to the public about the Company and that the Company has no
obligation to make such information available. The Purchaser represents that, in
the absence of an effective registration statement covering the Preferred
Shares, it shall sell, transfer or otherwise dispose of such securities only in
a manner consistent with the representations set forth herein, and the
certificates for the Preferred Shares shall bear a legend to such effect.
Section 3.06. Accredited Investor. Purchaser is an "accredited investor"
------------ -------------------
as defined in Regulation D under the Act, and, together with its financial
advisors, if any, has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks involved in
purchasing the Preferred Shares.
Section 3.07. Purchaser Information. All of the information furnished by
------------ ---------------------
Purchaser in response to the Company's questionnaire is true and complete.
ARTICLE IV
CLOSING CONDITIONS
Section 4.01. Conditions to Closing. Purchaser's obligation to purchase
------------ ---------------------
the Preferred Shares to be acquired by it at the Closing is subject to the
satisfaction, as of the Closing Date, of the following conditions:
(a) Amendment. The Certificate of Incorporation of the Company
---------
shall have been amended to include the provisions set forth in Schedule 2.03
-------------
and, except as so amended, such Certificate of Incorporation shall not have been
further amended or modified.
(b) Contracts Terminated. The Company (and its Subsidiaries)
--------------------
and Seacoast shall simultaneously herewith terminate all of their pre-existing
contractual arrangements (specifically excluding this Agreement and any other
agreement executed in conjunction herewith or in conjunction with the
transactions contemplated hereby) that were entered into in connection with
Seacoast's purchase of the Note and the Warrant.
(c) Stockholders Agreement. The Company, the Purchaser, Boston
----------------------
Ventures Limited Partnership V ("Boston Ventures"), Xxxxx New Ventures Limited,
---------------
("Xxxxx") and
-----
12
Xxxxxx Xxxxxxxxx shall have entered into the Stockholders Agreement
substantially in the form of Exhibit 4.01(c) attached hereto.
---------------
(d) Registration Rights Agreement. The Company, the Purchaser, Boston
-----------------------------
Ventures and Xxxxx shall have entered into a registration rights agreement
substantially in the form of Exhibit 4.01(d) attached hereto.
---------------
(e) Representations and Warranties. The representations and
------------------------------
warranties contained in Article II shall be true and correct in all material
respects on and as of the Closing Date as though made on and as of such date
(except representations and warranties made as of a specified date, which shall
be true as of such date) except that the representations and warranties
contained in Section 2.05 will be true and complete in all respects.
(f) Certificate; Documents. The Purchaser shall have received a copy
----------------------
of each of the following, certified by the Secretary of the Company: (i) the
Company's Certificate of Incorporation, as amended, with evidence of filing with
the Secretary of State of the State of New York; (ii) a certificate of the
Secretary of State of the State of New York as to the legal existence and good
standing of the Company and listing all amendments to the Company's Certificate
of Incorporation then on file in his office; (iii) the Company's Bylaws; (iv)
the votes adopted by the stockholders and the resolutions adopted by the
directors of the Company authorizing the execution, delivery and performance of
this Agreement and the other agreements contemplated hereby, the amendment to
the Certificate of Incorporation and the issuance, sale and delivery of the
Preferred Shares hereunder; and (v) evidence of the qualification of the Company
as a foreign corporation in the States of Massachusetts and New Jersey. The
Purchaser shall also have received such other certificates and documents as the
Purchaser shall reasonably request.
(g) Legal Opinions. The Purchaser shall have received a legal opinion
--------------
in form and substance satisfactory to the Purchaser from Xxxxx & Xxxxxx, LLP,
counsel for the Company, substantially in the form set forth in Exhibit 4.01(g)
hereof.
(h) Stock Certificates. Purchaser shall have received one or more
------------------
duly executed certificates representing the Preferred Shares to be acquired by
it.
(i) License Agreement. The Company and Information Handling Services,
-----------------
Inc. shall have entered into a license agreement substantially in the form of
Exhibit 4.01(i).
---------------
(j) Employment Agreement. Xxxxxx Xxxxxxxxx and the Company shall have
--------------------
entered into an employment agreement substantially in the form of Exhibit
-------
4.01(j).
-------
(k) Repurchase of Shares. The Company shall have redeemed all of the
--------------------
shares of Common Stock owned by Xxxxx Xxxxxxxxx Xxxxxxxxx.
(l) Payment of Interest, Fees and Expenses. The Company shall have
--------------------------------------
paid all accrued interest and all accrued fees and expenses (including fees and
expenses incurred in
13
connection with the pay off of the Note) fees owing on and in connection with
the Note to the Purchaser such that the only amount which remains owing on the
Note at the Closing is principal.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. All notices, demands or other communications
------------- -------
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person, or by nationally recognized overnight courier services,
or otherwise actually delivered:
(a) if to the Company or to Xxxxxx Xxxxxxxxx,
Dast Corporation
d.b.a. Microcom Technologies
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: President
with a copy to:
Xxxxx & Xxxxxx, LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(b) if to Purchaser to:
Seacoast Capital Partners Limited Partnership
c/o Seacoast Capital Corporation
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Fax: 000-000-0000
with a copy to:
Xxxxxx Xxxxx, LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
14
or at such other address as may have been furnished by such person in writing to
the other parties. Any such notice, demand or other communication shall be
deemed to have been given on the date actually delivered or as of the date
deposited with the courier, as the case may be.
Section 5.02. Severability and Governing Law. If any provision of this
------------ ------------------------------
Agreement is rendered void, invalid or unenforceable by any court of law for any
reason, such invalidity or unenforceability shall not void or render invalid or
unenforceable any other provision of this Agreement. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to its conflicts of laws provisions.
Section 5.03. Amendments, Etc. This Agreement may be changed, waived or
------------ ---------------
terminated only with the written consent of the Founder, the Company and the
Purchaser.
Section 5.04. Survival. All agreements, representations and warranties
------------ --------
contained herein and in any certificate, documentation or agreement delivered
pursuant hereto shall survive the execution and delivery of this Agreement, any
investigation at any time made, and the sale and purchase of the Preferred
Shares until two (2) years from the Closing or if earlier, until the Closing of
the initial public offering of the Company's securities.
Section 5.05. Expenses. The Company agrees to pay (a) the reasonable costs
------------ --------
and expenses of Purchaser in connection with the due diligence, investigation,
preparation, execution and delivery of this Agreement and the other Agreements,
instruments and documents relating thereto, including the reasonable fees and
expenses of counsel, (b) the reasonable fees and expenses of counsel to
Purchaser incurred with respect to any amendments or waivers required by the
Company (whether or not they become effective) under or with respect to the
Certificate of Incorporation, Bylaws, this Agreement or any agreement or
instrument contemplated hereby, and (c) in the event of a proven material breach
or default of the Company's obligations to Purchaser under the Certificate of
Incorporation, the Bylaws, this Agreement or any agreement or instrument
contemplated hereby, the fees and expenses of Purchaser incurred in connection
with the enforcement of the rights granted under any of the foregoing.
Section 5.06. Successors and Assigns. This Agreement, and all provisions
------------ ----------------------
hereof, shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto, provided that, the Purchaser may
not assign its right to purchase Preferred Shares without the consent of the
Company in its sole discretion.
Section 5.07. Entire Agreement. This Agreement, the attached exhibits and
------------ ----------------
schedules and the other agreements, documents and instruments contemplated
hereby contain the entire understanding of the parties, and there are no further
or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof unless expressly referred to
herein.
Section 5.08. Counterparts. The Agreement may be executed in one or more
------------ ------------
counterparts by facsimile signature, and with the counterpart signatures pages,
each of which shall be an original, and all of which together shall constitute
one and the same Agreement.
15
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as sealed instrument as of the date first above written.
DAST CORPORATION
d.b.a Microcom Technologies
By: /s/ Xxxxxx Xxxxxxxxx President
------------------------------------
(Title)
SEACOAST CAPITAL PARTNERS
LIMITED PARTNERSHIP
By: Seacoast Capital Corporation
its general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: XXXX X. XXXXXXX
---------------------------
Title: PRINCIPAL
---------------------------
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
