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EXHIBIT 10.44
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
DYAD CORPORATION
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
March 5, 1997, by and among Dyad Corporation, a Georgia corporation ("Dyad"),
and Phoenix International Ltd., Inc., a Florida corporation ("Phoenix").
W I T N E S S E T H
WHEREAS, Dyad was founded for the purpose and is in the process of
developing automated loan and mortgage products (including associated software,
hardware and documentation);
WHEREAS, Phoenix is in the business of developing and licensing
client/server core banking software to the banking industry;
WHEREAS, Phoenix wishes, pursuant to the terms of this Agreement, to
make a capital investment in Dyad and obtain an option to make a further
capital investment in Dyad; and
WHEREAS, Phoenix wishes to market and license Dyad's products to its
current and future customers domestically and to have the exclusive right to
market Dyad's products internationally pursuant to the terms of that certain
License and Distribution Agreement between Dyad and Phoenix of even date
herewith (the "License Agreement");
NOW THEREFORE, in consideration of the premises and the mutual
promises contained in this Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1.
PURCHASE OF COMMON STOCK
1.1 Sale of Shares. Dyad will issue and sell to Phoenix and
Phoenix will purchase from Dyad XXX newly issued shares (the "Shares") of
Dyad's common stock, no par value per share (the "Common Stock"), at a purchase
price of XXX per share, for a total purchase price of XXXXX (the "Purchase
Price").
1.2 Closing. Contemporaneously with the execution and delivery of
this Agreement by both parties, the following shall occur:
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(a) Phoenix shall deliver the Purchase Price to Dyad
either by wire transfer, cashier's check, or in such other form of immediately
available funds as may be agreed by the parties;
(b) Dyad shall deliver to Phoenix a stock certificate
made out in the name of Phoenix International Ltd., Inc. for the Shares; and
(c) Each party shall execute and deliver to the other the
License Agreement in such form as previously agreed by the parties.
SECTION 2.
GRANT OF OPTION
2.1 Option Grant. Subject to the terms and conditions set forth
herein, Dyad hereby grants to Phoenix an irrevocable, non-transferrable and
immediately exercisable option to purchase up to an additional XXXX shares (as
adjusted as set forth herein) of Common Stock (the "Option Shares"), at a
purchase price of XXXX (the "Option Purchase Price") per Option Share (the
"Option"). At any time after April 15, 1997, Dyad may call the Option by
delivering written notice thereof to Phoenix. The Option shall expire and
terminate 90 days after delivery of such notice to Phoenix as to any shares for
which an Exercise Notice has been not delivered prior to the end of such 90 day
period. If no such call notice is delivered by Dyad, the Option shall
automatically and without notice expire and terminate on March 7, 1998 (the
"Expiration Date") as to any Option Shares for which an Exercise Notice has not
been delivered to Dyad prior to the Expiration Date.
2.2 Exercise of Option. Provided that Phoenix is not in material
breach of its obligations or covenants hereunder or under the License
Agreement, Phoenix may exercise the Option as to any or all of the Option
Shares (provided that each exercise of the Option must be for a minimum of 100
Option Shares) at any time and from time to time prior to the Expiration Date
by delivering written notice thereof (an "Exercise Notice") to Dyad specifying
the number of Option Shares as to which Phoenix is exercising the Option.
Following receipt of a proper Exercise Notice, Phoenix and Dyad shall agree
upon a date and place for the closing of the purchase specified in the Exercise
Notice, which date shall be no later than 15 business days following receipt of
the Exercise Notice by Dyad (the "Option Closing Date").
2.3 Closing of Option Exercise. Upon each Option Closing Date the
following shall occur:
(a) Phoenix shall deliver to Dyad an amount equal to the
Option Purchase Price times the number of Option Shares set forth in the
Exercise Notice either by wire transfer, by cashier's check made out to Dyad,
or in such other form of immediately available funds as the parties may agree;
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(b) Phoenix shall surrender this Agreement to Dyad and
the parties shall amend the Agreement to reflect the exercise of the Option for
the number of Option Shares purchased by Phoenix on such Option Closing Date;
(c) Phoenix shall exercise and deliver to Dyad a letter
containing such representations, covenants, and restrictions on transfer of the
Option Shares as may be required by Dyad with the advice of counsel for
compliance with federal and state laws;
(d) Dyad shall deliver to Phoenix a stock certificate
made out in the name of Phoenix International Ltd., Inc. for the number of
Option Shares set forth in the Exercise Notice; and
(e) Dyad shall deliver to Phoenix a certificate signed by
a duly authorized officer to the effect that all of the representations and
warranties of Dyad contained herein are and remain true in all material
respects as of the Option Closing Date.
2.4 Adjustment Upon Changes in Capitalization, etc.
In the event of any change in the number of outstanding shares
of Common Stock by reason of a stock dividend, stock split, split-up, merger,
recapitalization, combination, exchange of shares or similar transaction, the
type and number of shares or securities subject to the Option, and the Option
Purchase Price therefor, shall be adjusted appropriately, and proper provision
shall be made in the agreements governing such transaction so that Phoenix
shall receive upon exercise of the Option the number and class of shares or
other securities or property that Phoenix would have received in respect of
Common Stock if the Option had been exercised immediately prior to such event,
or the record date therefor, as applicable. If any additional shares of Common
Stock are issued after the date of this Agreement for cash or other
consideration with a fair market value less than the Option Purchase Price
(other than pursuant to an event described in the first sentence of this
Section 2.4), the number of shares of Common Stock subject to the Option shall
be increased by XX of the number of additional shares issued multiplied by (the
Option Purchase Price minus the issuance price per share) divided by the
Purchase Price, and the Option Purchase Price shall be adjusted so that the new
Option Purchase Price is equal to the then current Option Purchase Price
multiplied by XXX and divided by the aggregate of (i) the new number of shares
subject to the Option and (ii) the number of shares already purchased by
Phoenix pursuant to the Option (the effect of which should be for the total
price paid or to be paid by Phoenix for all shares under the Option to remain
at XXXXX. The foregoing sentence shall not apply to shares of Common Stock
issued in connection with any acquisition of the stock or assets of another
company, which is approved by Dyad's Board of Directors.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF DYAD
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Except as set forth in the schedules of exceptions to representations
and warranties attached hereto (the "Disclosure Schedules"), which information
shall be deemed to be representations and warranties as if made hereunder, Dyad
represents and warrants to Phoenix as follows (Dyad refers to both Dyad and its
wholly-owned subsidiary Money Pro Inc.):
3.1 Organization and Standing. Dyad is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Georgia and is in good standing under such laws. Dyad has requisite corporate
power to own and operate its properties and assets, and to carry on its
business as currently conducted and as proposed to be conducted.
3.2 Corporate Power. Dyad has all requisite legal and corporate
power to execute and deliver this Agreement and the other agreements and
instruments referred to herein (collectively the "Transaction Documents"), to
sell and issue the Shares and to grant the Option hereunder, and to carry out
and perform all of its obligations under this Agreement.
3.3 Subsidiaries. Other than MPAcquisition Corp., a wholly-owned
subsidiary of Dyad, Dyad has no subsidiaries and does not otherwise own or
control, directly or indirectly, any equity interest in any other corporation,
association or business entity.
3.4 Capitalization. The authorized capital stock of Dyad consists
of 1,000,000 shares of Common Stock, of which 9,500 shares are issued and
outstanding (assuming the closing of the merger of MoneyPro, Inc. with and into
MPAcquisition Corp). All issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable, and
were issued in compliance with all applicable federal and state securities
laws. Other than the Option, there are no outstanding warrants, options, or
other rights to purchase or acquire any shares of Common Stock or other equity
securities of Dyad.
3.5 Authorization. All corporate action on the part of Dyad, its
directors, and its shareholders necessary for the authorization, execution,
delivery and performance of the Transaction Documents by Dyad, the
authorization, sale, issuance and delivery of the Shares, the grant of the
Option and performance thereunder, and the performance of all of Dyad's
obligations hereunder and thereunder has been taken. The Transaction Documents
have been duly executed and delivered by Dyad and constitute the valid and
binding obligations of Dyad enforceable in accordance with their terms, except
as may be limited by principles of public policy, and subject to rules of law
governing specific performance, injunctive relief or other equitable remedies.
The Shares and the Option Shares, when issued in compliance with the provisions
of this Agreement, will be validly issued, will be fully paid and nonassessable
and will be free of any liens or encumbrances.
3.6 Title to Properties and Assets; Liens, etc. Dyad has good and
marketable title to its properties and assets, and has good title to all its
leasehold interests, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than possible minor liens and encumbrances which
do not in any case materially detract from the value of the property subject
thereto or materially impair the operations of Dyad, and which have not arisen
otherwise than in the ordinary course of business. The Disclosure Schedules
contain a list of all patents, computer programs, technologies, and related
documentation, trademarks, trade names, brand
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names and copyrights (in each case, whether or not registration has been
applied for or issued), and all licenses or rights with respect to any of the
foregoing, owned or possessed by Dyad, all of which, to the best knowledge of
Dyad, are in good standing and are 100% owned by Dyad free and clear of all
liens and encumbrances of any nature. To the best knowledge of Dyad, Dyad's
products and technologies do not infringe any patent, copyright, trademark or
the intellectual property rights of any other person. To the best knowledge of
Dyad, all trade secrets, know how, technical processes and procedures developed
and belonging to Dyad which are material to the business of Dyad and which have
not been patented have been kept confidential. To the best knowledge of Dyad,
Dyad has the right to use, free and clear of claims or rights of others, all
trade secrets, customer lists, processes, computer software, patents,
copyrights and trademarks required for, incident to or included in its products
and is not using and has not used any confidential information, trade secrets,
or computer software required for its products of any former employer of any of
its past or present employees.
3.7 Compliance With Other Instruments. Dyad is not in violation
in any material respect of, and the execution, delivery, and performance under
the Transaction Documents will not result in any violation or breach of, any
term of its Articles of Incorporation or Bylaws, as amended and restated to
date, or in any material respect of any term or provision of any indebtedness,
agreement, instrument, judgment, order, statute, or regulation applicable to
Dyad or by which Dyad is bound. The execution, delivery and performance of and
compliance with the Transaction Documents, and the issuance of the Shares and
the Option, have not resulted and will not result in any material violation of,
or conflict with, or constitute a material default under, any indebtedness,
agreement, instrument, judgment, order, statute, or regulation applicable to
Dyad or by which Dyad is bound, or result in the creation of any encumbrance
upon any of the properties or assets of Dyad, and there is no such violation or
default which materially and adversely affects the business of Dyad, or any of
Dyad's properties or assets.
3.8 Undisclosed Liabilities. Except as set forth in the
Disclosure Schedules, at January 1, 1997, Dyad had no material liabilities or
obligations of any nature, whether absolute, accrued, contingent or otherwise,
and whether due or to become due. Since January 1, 1997, Dyad has incurred no
material liabilities other than in the ordinary course of its business.
3.9 Absence of Certain Changes or Events. Except as disclosed in
the Disclosure Schedules, Dyad has not incurred any liability (fixed or
contingent), except trade or business obligations incurred in the ordinary
course of business, none of which are materially adverse; subjected any of its
assets or properties to any lien or other encumbrance; transferred any of its
assets or properties or transferred or granted any rights under or with
respect to any license, agreement, trademark, trade name, copyright, know-how
or technical assistance; made or entered into any contract or commitment; or
declared any dividend or made any payment or distribution to Dyad's
shareholders.
3.10 Books and Records. Except as disclosed in the Disclosure
Schedules, the stock books, minute books, books of account, ledgers of account,
computer data and other financial and corporate records of Dyad are in all
material respects complete and correct and are maintained in accordance with
good business practices. Dyad has not made any questionable, improper or
illegal corporate payments, guarantees or commitments. Except as disclosed in
the
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Disclosure Schedules, the minute books of Dyad contain accurate records of all
meetings and accurately reflect all corporate actions of the shareholders and
directors of Dyad. Dyad's officers, directors, and shareholders are listed in
the Disclosure Schedules.
3.11 Contracts. All contracts to which Dyad is a party or to which
its assets are bound are listed on the Disclosure Schedules.
3.12 Litigation. Dyad has not instituted, and is not a party to,
any proceeding or investigation against any party. Except as disclosed in the
Disclosure Schedules, there are no proceedings or investigations pending
against Dyad or its properties before any court or governmental agency (nor, to
the best of Dyad's and knowledge, is there any reasonable basis therefor or
threat thereof), which, either in any case or in the aggregate, might result in
any material adverse change in the business or financial condition of Dyad or
any of its properties or assets, or in any material impairment of the right or
ability of Dyad to carry on its business, or in any material liability on the
part of Dyad, and none of which questions the validity of this Agreement or any
action taken or to be taken in connection herewith and therewith.
3.13 Employees. To the best of Dyad's knowledge, after reasonable
investigation, no employee or consultant of Dyad is in violation of any term of
any employment contract, intellectual property disclosure agreement, or any
other contract or agreement relating to the relationship of any such person
with Dyad or any other party because of the nature of the business conducted or
proposed to be conducted by Dyad. Dyad does not have any collective bargaining
agreements covering any of its employees. Dyad is not aware of any key
employee of Dyad who has any plans to terminate his or her employment with
Dyad.
3.14 Governmental Consent, Etc. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of Dyad is required in connection with the valid
execution and delivery of this Agreement, or the offer, sale or issuance of the
Shares, or the consummation of any other transaction contemplated hereby.
3.15 Offering. Subject to the accuracy of Phoenix' representations
in Section 4 hereof, the offer, sale and issuance of the Shares to be issued in
conformity with the terms of this Agreement constitute transactions exempt from
the registration requirements of the Securities Act of 1933 (the "Securities
Act").
3.16 Relationship with Affiliates; No Conflict of Interest. All of
the statements in this Agreement, together with the statements in the
Disclosure Schedules, are true and contain a complete description of Dyad's
relationship with any firm or corporation with which Dyad is affiliated or with
which Dyad has a business relationship, or any firm or corporation which
competes with Dyad. None of Dyad's officers, directors, or shareholders, or
any members of their immediate families are indebted to Dyad or, except as
disclosed in the Disclosure Schedules, have any direct or indirect ownership
interest in any firm or corporation with which Dyad is affiliated or with which
Dyad has a business relationship, or any firm or corporation which competes
with Dyad. None of Dyad's officers, directors or shareholders, or any member
of their immediate families, has any direct or indirect interest in any
material contract with
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Dyad. Dyad is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
3.17 Material Facts. This Agreement, the Disclosure Schedules, and
each other agreement, document, certificate or written statement furnished, or
to be furnished, through the Closing by or on behalf of Dyad in connection with
the transactions contemplated hereby, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein or herein in light of the
circumstances in which they were made not misleading. To the best knowledge of
Dyad, there is no fact which has not been disclosed herein or in the Disclosure
Schedules hereto to Phoenix which may materially adversely affect the business,
properties, assets or condition, financial or otherwise, of Dyad, except for
facts relating to general economic and regulatory conditions which may affect
all companies which are in a similar industry in the same manner.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF PHOENIX
Phoenix hereby represents and warrants to Dyad as follows:
4.1 Experience. Phoenix is a corporation with total assets as of
the date of this Agreement in excess of $5,000,000, and has experience in
evaluating and investing in private placement transactions and is capable of
evaluating the merits and risks of its investment in Dyad. Furthermore,
Phoenix has evaluated such merits and risks, and on the basis of such
evaluation desires to enter into the transactions contemplated herein. Phoenix
acknowledges that all documents, records, and books pertaining to Dyad have
been made available for inspection by Phoenix and Phoenix understands that the
books and records of Dyad will continue to be made available to Phoenix for
inspection upon reasonable notice, during reasonable business hours, at the
principal place of business of Dyad. Phoenix and its adviser or advisers have
had a reasonable opportunity to ask questions of and receive answers from the
officers of Dyad, or a person or persons acting on their behalf, concerning the
terms and conditions of the offering of the Shares and Option Shares, and to
obtain additional information, to the extent possessed or obtainable without
unreasonable effort or expense by the officers of Dyad. all such questions
have been answered to the full satisfaction of Phoenix.
4.2 Investment. Phoenix is acquiring the Shares for its own
individual account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution thereof. Phoenix understands that
the Shares have not been, and will not be, registered under the Securities Act
or any state securities laws by reason of a specific exemption from the
registration provisions of the Securities Act and the applicable state's
securities laws which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser's representations as
expressed herein.
4.3 Power. Phoenix has all requisite legal power to execute and
deliver this Agreement, to purchase the Shares hereunder, and to carry out and
perform its obligations under the terms of the Transaction Documents.
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4.4 Authorization. This Agreement, when executed and delivered by
Phoenix, shall constitute the valid and binding obligation of Phoenix
enforceable in accordance with its terms, except as may be limited by
principles of public policy, and subject to rules of law governing specific
performance, injunctive relief or other equitable remedies.
SECTION 5.
MISCELLANEOUS
5.1 Restrictive Legends. All certificates for shares of Common
Stock delivered to Phoenix hereunder shall contain the following restrictive
legend and such other restrictive legends as may be required under state or
federal law:
THE SALE OF THE SHARES REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSITION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL TO THIS CORPORATION TO THE EFFECT THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH THE ACT AND APPLICABLE STATE SECURITIES LAWS.
Such legend shall be removed by delivery of a substitute certificate(s) without
such a legend upon delivery to Dyad of a letter from the staff of the SEC or an
opinion of counsel in form and substance satisfactory to Dyad and its counsel
to the effect that such legend is no longer required under applicable law.
5.2 Termination. Dyad may terminate the Option upon written
notice to Phoenix at any time upon the material breach by Phoenix of its
representations and warranties hereunder or of its obligations or covenants
under this Agreement, the Shareholder Agreement or the License Agreement, which
breach is not cured within 15 days following notice thereof to Phoenix from
Dyad.
5.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
5.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
by a written instrument signed by the party against whom enforcement of any
such amendment, waiver, discharge or termination is sought.
5.5 Notices, Etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger or
telecopy, addressed as follows:
if to Phoenix: Phoenix International Ltd., Inc.
000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
if to Dyad: Dyad Corporation
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: xxx
or at such other address as a party shall have properly notified to the other
parties. Each such notice or other communication shall for all purposes of
this Agreement be effective when delivered or received if delivered personally,
by facsimile, by U.S. mail return receipt requested, or by overnight courier
service such as United Parcel Service or FedEx.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
5.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.8 Severability. The agreements and undertaking of parties
contained in this agreement shall each be construed as an agreement and
undertaking independent of any other provision of this agreement. The parties
hereby expressly agree that it is not the intention of any party to violate any
public policy, statutory or common law, and that if any sentence, paragraph,
clause or combination of the same is in violation of applicable law, such
sentence, paragraph, clause or combination of the same alone shall be void in
the jurisdiction where it is unlawful, and the remainder of such clause and
this agreement shall remain binding upon the parties hereto. In the event that
any provision hereof is determined to be overly broad or unenforceable, the
parties hereto agree to the modification of such provisions to the minimum
extent required to make them valid and enforceable.
5.9 Parties Bound by Agreement; Successors and Assigns. The
terms, conditions and obligations of this Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
assigns thereof. Without the prior written consent of the other
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