Exhibit 99.1
STOCK AND OPTION PURCHASE AGREEMENT
This STOCK AND OPTION PURCHASE AGREEMENT (this "Agreement"), is made as of
September 30, 2002, by and between DigitalThink, Inc., a Delaware corporation
(the "Company) and Xxxxx Xxxxx ("Purchaser").
WHEREAS, the Purchaser desires to purchase common stock, $.001 par value per
share, of the Company (the "Common Stock");
WHEREAS, the Purchaser desires to purchase an option to purchase common stock of
the Company (the "Option"); and
WHEREAS, the Company desires to issue Common Stock and the Option to the
Purchaser;
NOW, THEREFORE, in consideration of the promises and the representations,
warranties and agreements set forth herein, the parties hereto agree as follows:
1. Purchase of Shares. Subject to the terms and conditions of this Agreement,
the Company shall sell to Purchaser, and Purchaser shall purchase from the
Company, on the Closing Date (as defined in Section 2), one hundred thousand
(100,000) shares of the Company's Common Stock at a purchase price of $1.11 per
share. Such purchase price per share shall be the "Purchase Price," and each
share of Common Stock purchased hereunder shall be a "Share" (and, collectively,
the "Shares"). The aggregate Purchase Price for the Shares shall be payable on
the Closing Date by wire transfer of immediately available funds. On the Closing
Date, upon receipt of such cash consideration, the Company shall deliver to
Purchaser a certificate or certificates representing the Shares, registered in
the name of Purchaser or its nominee.
2. Purchase of Options. Subject to the terms and conditions of this Agreement,
the Company shall sell to Purchaser, and Purchaser shall purchase from the
Company, on the Closing Date (as defined in Section 2), one hundred thousand
(100,000) Options to purchase shares of the Company's Common Stock at an option
exercise price of $1.11 per share. The purchase price for the Option shall be
$0.19 per option the "Option Purchase Price,"). The aggregate Option Purchase
Price for the Options shall be payable on the Closing Date by wire transfer of
immediately available funds. On the Closing Date, upon receipt of such cash
consideration, the Company shall deliver to Purchaser a Stock Option Agreement
(in the form attached as Exhibit A) representing the Options, registered in the
name of Purchaser or its nominee.
3. The Closing. The closing of the transactions contemplated hereby (the
"Closing") shall take place on or about October 15, 2002, or at such other time
and/or place and/or on such date as the parties may mutually agree (the "Closing
Date").
4. Representations and Warranties of the Company. The Company hereby represents
and warrants to Purchaser as follows:
(a) Organization and Good Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
organization and has all requisite corporate power and authority to carry on its
business as now conducted. The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify
could be reasonably expected to have a material adverse effect on the condition
(financial or other), business, properties, or results of operations of the
Company (a "Material Adverse Effect").
(b) Authorization; Enforceability. The Company, its officers, directors and
stockholders have taken all action necessary to authorize, execute and deliver
this Agreement and to consummate the transactions contemplated herein. This
Agreement has been duly executed by the Company and is a valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
except insofar as enforceability may be affected by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and the availability of any
particular equitable remedy.
(c) Valid Issuance of Shares. The Shares (i) are duly authorized by the
Company's articles of incorporation, (ii) are duly authorized to be issued by
the Company's board of directors, (iii) when issued, sold and delivered in
accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and nonassessable and will be free of any preemptive rights, taxes,
security interests, adverse claims or restrictions on transfer, other than
restrictions on transfer under applicable state and federal securities laws.
Assuming the accuracy of the representations and warranties contained in Section
5 hereof, the offer and sale of the Shares as contemplated hereby are exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act") and under applicable state securities and "blue sky" laws, as currently in
effect.
(d) Compliance with Other Documents. Neither the execution or delivery of this
Agreement, the consummation of the transactions contemplated hereby and thereby,
nor the fulfillment of or compliance with the terms and conditions hereof or
thereof conflict with or will result in a breach or violation of or default
under any of the terms, conditions or provisions of (i) the Company's
organizational documents or (ii) any agreement, order, judgment, decree,
arbitration award, statute, regulation or instrument to which it is a party or
by which it or its assets are bound.
(e) No Consents. Other than consents obtained as of the date hereof, no consent
or approval, authorization, order, registration or qualification of or with any
governmental entity or any other person is required for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and thereby.
(f) Title to Property and Assets. The Company owns its property and assets free
and clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens that arise in the ordinary course of business and do not
materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to the best of its knowledge, holds a valid leasehold
interest free of any liens, claims or encumbrances.
(g) Capitalization. The Company's capitalization information contained in the
the Company's periodic reports filed with the with the Securities and Exchange
Commission are complete and accurate as of the dates specified therein.
5. Representations and Warranties by Purchaser. Purchaser hereby represents and
warrants to the Company as follows:
(a) Authorization. This Agreement constitutes the valid and legally binding
obligation of Purchaser enforceable against it in accordance with its terms,
except insofar as enforceability may be affected by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and the availability of any
particular equitable remedy.
(b) Accredited Investor. Purchaser is an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(c) Investigation. Purchaser has carefully reviewed this Agreement and has had
the opportunity to make detailed inquiry concerning the Company, its business
and its personnel. Purchaser acknowledges that it has had the opportunity to ask
questions of and receive answers from the Company that Purchaser considers
necessary for purposes of purchasing the Shares. The foregoing, however, does
not limit or modify the representations and warranties of the Company in Section
3 of this Agreement or the right of Purchaser to rely thereon.
(d) Restricted Securities. Purchaser understands that the Shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold only if they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
(e) Purchase for Own Account. Purchaser is acquiring the Shares for Purchaser's
own account for investment and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities Act. Purchaser has
no present agreement, understanding or arrangement to subdivide, sell, assign or
otherwise dispose of all or any part of the Shares.
6. Restrictions on Transfer.
(a) Agreement Not to Transfer. The Shares and the rights under this Agreement
may be sold, pledged, hypothecated, assigned, conveyed, transferred or otherwise
disposed of (each, a "Transfer") only (i) pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from registration
under the Securities Act in accordance with Rule 144 or another available
exemption or (ii) to the Company.
(b) Restrictive Legend. Unless and until otherwise permitted, each certificate
representing the Shares and any certificate issued at any time upon transfer of,
or in exchange for or replacement of, any certificate bearing the legend set
forth below shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED, CONVEYED, TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT
IN COMPLIANCE WITH SUCH ACT AND LAWS."
(c) Termination of Restrictions. The restrictions imposed by this Section 6 upon
the transferability of the Shares shall cease and terminate as to any particular
certificate evidencing the Shares or shares of capital stock when (i) such
certificate or Shares shall have been effectively registered under the
Securities Act and sold by the holder thereof in accordance with such
registration or (ii) in the opinion of counsel for Purchaser (if such opinion is
reasonably satisfactory in form and substance to the Company), such restrictions
are no longer required in order to ensure compliance with the Securities Act.
Whenever the restrictions imposed by this Section 6 shall terminate as to any
certificate of Shares, as hereinabove provided, the holder thereof shall be
entitled to receive from the Company without expense, a new certificate for
Shares not bearing the restrictive legend set forth in Subsection (b) of this
Section.
7. Miscellaneous.
(a) Supplements and Amendments. This Agreement may be supplemented, amended or
waived only by a subsequent writing signed by each of the parties hereto.
(b) Counterparts. This Agreement may be executed in any number of counterparts
and each such counterpart shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
(c) Successors and Assigns. Except as otherwise provided herein, this Agreement
and all of the terms and provisions hereof shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors,
administrators, successors, trustees, legal representatives and assigns.
(d) Entire Agreement. This Agreement is intended by the parties as the final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein or
therein with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement.
(e) Applicable Law; Venue. This Agreement shall be deemed to be a contract made
under the laws of the State of California.
(f) Waiver of Trial by Jury. Each of the parties hereto hereby (i) agrees not to
elect a trial by jury with respect to any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
this Agreement or the transactions contemplated hereby, and (ii) waives such
right to trial by jury fully to the extent that any such right shall now or
hereafter exist as to any issue with respect to any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the transactions contemplated hereby. Such waiver
of right to trial by jury is separately given, knowingly and voluntarily, by
each of the parties hereto, and this waiver is intended to encompass
individually each instance and each issue as to which the right to a jury trial
would otherwise accrue. Each of the parties hereto is hereby authorized and
requested to submit this Agreement to any court having jurisdiction, so as to
serve as conclusive evidence of the other party's waiver of the right to trial
by jury. Further, each of the parties hereto hereby certifies that no
representative or agent of such party has represented, expressly or otherwise,
to each of the parties hereto that the parties will not seek to enforce this
waiver of right to trial by jury.
(g) Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity of the remainder of
the Agreement.
(h) Non-Waiver. No provision of this Agreement shall be deemed to have been
waived, unless such waiver is contained in a written notice given to the party
claiming such waiver has occurred, and no such waiver shall be deemed to be a
waiver of any other or further obligation or liability of the party or parties
in whose favor the waiver was given.
(j) Expenses. Each party shall pay its own expenses and costs incurred or to be
incurred in negotiating, closing and carrying out the transactions contemplated
hereby, irrespective of whether such transactions are actually consummated.
(k) Termination Prior to the Closing.This Agreement shall terminate prior to the
Closing if the Closing does not occur within 40 calendar days from the date
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock and Option
Purchase Agreement as of the date first above written.
THE COMPANY:
DIGITALTHINK, INC.
By: /s/XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
Date: September 30, 2002
PURCHASER:
XXXXX XXXXX
By: /s/XXXXX XXXXX
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Date: September 30, 2002
