STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered into
as of May 14, 1998 by and between Amtech Corporation, a Texas corporation (the
"Purchaser"), and Xxxxx X. Xxxx (the "Shareholder").
RECITALS
The Shareholder owns all of the outstanding capital stock (the "Shares") of
Petabyte Corporation, a Delaware corporation (the "Company").
The Company owns all of the outstanding capital stock of CustomTracks,
Inc., a Delaware corporation (the "Subsidiary").
The Shareholder desires to sell to Purchaser, and Purchaser desires to
purchase from Shareholder, the Shares in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained in this Agreement, the parties to this Agreement agree
as follows:
1. Purchase of Shares. On and subject to the terms and conditions set
forth in this Agreement, at the Closing (as defined in Section 2), Purchaser
will acquire from the Shareholder, and the Shareholder will transfer to
Purchaser, all of the Shares. As consideration in full for the Shares to be
acquired by Purchaser from the Shareholder, Purchaser will pay (i) the sum of
$200,000 in immediately available funds by wire transfer to one or more accounts
specified in writing by the Shareholder by June 1, 1998, and (ii) subject to
Section 5, four additional payments (the "Future Payments") of $200,000 each
payable on each of the first, second, third, and fourth anniversaries of the
Closing in immediately available funds to one or more accounts specified in
writing by the Shareholder.
2. Closing. The closing (the "Closing") will take place on May 14, 1998 at
the offices of Purchaser, or at such other time or place as may be agreed by the
parties.
(a) At the Closing, the certificates, documents, and other items listed
below will be delivered by the party indicated:
(i) the Shareholder will deliver certificates to Purchaser
representing good and marketable title to all of the Shares, duly
endorsed for transfer or accompanied by duly executed stock powers; and
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(ii) the Shareholder will deliver a certificate executed by the
Shareholder stating that (A) Purchaser has been provided with a true
and correct copy of the Company's and the Subsidiary's articles of
incorporation and bylaws; (B) all representations and warranties of the
Shareholder set forth in this Agreement are true and correct in all
material respects; and (C) the Shareholder has performed in all
material respects his covenants and agreements set forth in this
Agreement.
(b) The obligation of Purchaser to consummate the transactions
contemplated by this Agreement will be subject to the conditions that: (i)
each representation and warranty of the Shareholder set forth in this
Agreement must be true and correct as of the Closing as if made at the time
of the Closing; (ii) the Shareholder must have performed each of his
obligations under this Agreement; and (iii) the Shareholder must have
delivered each of the items required to be delivered by him under Section
2(a).
(c) The obligation of the Seller to consummate the transactions
contemplated by this Agreement will be subject to the conditions that: (i)
each representation and warranty of Purchaser set forth in this Agreement
must be true and correct as of the Closing as if made at the time of the
Closing; (ii) Purchaser must have performed each of its obligations under
this Agreement; and (iii) Purchaser must have delivered the consideration
required to be delivered by it under Section 2(a).
3. Representations and Warranties of the Shareholder. The Shareholder by
this Agreement represents and warrants to Purchaser as follows (each of which
representations and warranties will survive the Closing):
(a) Organization. Each of the Company and the Subsidiary is a
corporation duly organized, validly existing, and in good standing in the
State of Delaware and has full corporate power to own its properties and to
conduct its business as presently conducted.
(b) Authority. The Shareholder has all requisite personal capacity to
execute and deliver this Agreement and all other agreements and instruments
contemplated by this Agreement to be executed and delivered by the
Shareholder (the "Seller Documents"). This Agreement and the Seller
Documents have been duly executed and delivered by the Shareholder and are
legal, valid, and binding agreements of the Shareholder, enforceable
against the Shareholder in accordance with their respective terms.
(c) Minute Books. Shareholder has made available to Purchaser true,
correct, and complete copies of the certificate of incorporation, bylaws,
minute books, stock certificate books, and stock record books of the
Company and the Subsidiary. The minute books of the Company and the
Subsidiary contain
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minutes or consents reflecting all actions taken by the directors
(including any committees) and shareholders of the Company and the
Subsidiary, respectively.
(d) Capitalization. The authorized capital stock of the Company
consists solely of 1,000 shares of common stock, $.01 par value per share,
of which 1,000 shares are issued and outstanding. All of the Shares are
validly issued, fully paid and nonassessable, are held by the Shareholder
and were issued free and clear of preemptive or similar rights. The Shares
to be transferred to Purchaser under this Agreement constitute all of the
issued and outstanding capital stock of the Company. There are no
outstanding options, warrants, convertible securities or other rights,
agreements, arrangements or commitments obligating the Company, the
Shareholder, or any other person or entity to issue or sell any securities
or ownership interests in the Company, including, without limitation, any
of the Shares. There are no shareholder agreements, voting agreements,
voting trusts or similar agreements binding on any of the Shareholder's
interests in the Company or applicable to any of the Shares. All of the
outstanding capital stock of the Company has been offered and sold in
compliance with all applicable securities laws, rules and regulations. All
of the shares of capital stock of the Subsidiary (the "Subsidiary Stock")
are owned beneficially and of record by the Company and are validly issued,
fully paid, and nonassessable, and were issued free and clear of preemptive
or similar rights. The Subsidiary Stock constitutes all of the issued and
outstanding capital stock of the Subsidiary. There are no outstanding
options, warrants, convertible securities or other rights, agreements,
arrangements or commitments obligating the Subsidiary, the Company or any
other person or entity to issue or sell any securities or ownership
interests in the Subsidiary, including, without limitation, any of the
Subsidiary Stock. There are no shareholder agreements, voting agreements,
voting trusts or similar agreements binding on any of the Company's
interests in the Subsidiary or applicable to any of the Subsidiary Stock,
except as provided by the Assignment (as defined below).
(e) Title to the Shares. The Shareholder owns the Shares of record and
beneficially, free and clear of any liabilities, obligations, liens,
pledges, claims, security interests, encumbrances, or contingencies of any
nature (collectively, "Liens"). Upon sale of the Shares to Purchaser at the
Closing under this Agreement, Purchaser will acquire the entire legal and
beneficial interest in all of the Shares, free and clear of any Liens.
(f) Limited Business. The Company has no property or assets other than
those transferred pursuant to the Assignment dated May 14, 1998 from
Shareholder to the Company (the "Assignment") and the Subsidiary Stock, and
the Company has no liabilities or obligations of any type, absolute or
contingent, accrued or unaccrued, known of unknown, other than its
obligations under the Assignment.
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4. Representations and Warranties of Purchaser. Purchaser represents
and warrants to the Shareholder as follows (each of which representations and
warranties will survive the Closing):
(a) Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Texas.
(b) Authority. Purchaser has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations under this Agreement. The execution, delivery and performance
by Purchaser of this Agreement has been duly authorized by all necessary
action, corporate or otherwise, by Purchaser and this Agreement has been
duly executed and delivered and is a legal, valid and binding agreement of
Purchaser, enforceable against Purchaser in accordance with its terms.
5. Termination Right.
The Shareholder hereby grants to Purchaser the right (the "Termination
Right"), exercisable for four years from the date hereof, to terminate the
obligation of Purchaser to make any Future Payments by complying with this
Section 5. The Termination Right may be exercised by Purchaser tendering to the
Shareholder or his designee an assignment (the "Reassignment") in the form of
Exhibit A to this Agreement, completed with modifications to which the
Shareholder consents, transferring to the Shareholder good and marketable title
to all the assets, properties, rights and interests transferred or purported to
be transferred to the Company pursuant to the Assignment, free an clear of all
Liens. Upon due execution and delivery of the Reassignment to the Shareholder,
the obligation of Purchaser to make Future Payments after the date of such
delivery will cease.
6. Miscellaneous.
(a) Notices. All notices that are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be sufficient in
all respects if given in writing and delivered personally or by a
recognized courier service or by registered or certified mail, postage
prepaid, to the parties at the following addresses:
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If to Purchaser, to: If to the Shareholder, to:
Amtech Corporation Xxxxx X. Xxxx
00000 Xxxxxx Xxxxxxx x/x Xxxxxx Xxxxxxxxxxx
Xxxxx 000 00000 Xxxxxx Parkway
Dallas, Texas 75287 Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Any party to this Agreement may change the address for purposes of
giving notice under this Agreement by giving notice of such change to the
other party to this Agreement in accordance with this Section 6(a).
(b) Attorneys' Fees and Costs. In the event that attorneys' fees or
other costs are incurred to secure performance of any of the obligations in
this Agreement provided for, or to establish damages for the breach thereof
or to obtain any other appropriate relief, whether by way of prosecution or
defense, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs incurred therein.
(c) Further Assurances. Each party to this Agreement agrees to
execute any and all documents and to perform such other acts as may be
necessary or expedient to further the purposes of this Agreement and the
transactions contemplated by this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties to this Agreement, all of
which together shall constitute one and the same instrument.
(e) Entire Agreement. This Agreement contains the entire
understanding of the parties relating to the subject matter contained in
this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements and understandings relating to the subject
matter of this Agreement. This Agreement cannot be modified or amended
except in writing signed by the party against whom enforcement is sought.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF
TEXAS WITHOUT GIVING EFFECT TO ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT
MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written.
PURCHASER:
AMTECH CORPORATION
/s/ Xxxxxx X. Xxxxxxxx, V. P.
--------------------------------------------
SHAREHOLDER:
/s/ Xxxxx X. Xxxx
--------------------------------------------
Xxxxx X. Xxxx
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EXHIBIT A
TO STOCK PURCHASE AGREEMENT
ASSIGNMENT
This Assignment is made and effective this ____ day of ___ (the "Effective
Date"), by and between Petabyte Corporation, a Delaware corporation
("Petabyte"), and Xxxxx X. Xxxx, an individual residing in Dallas, Texas
(referred herein as "Xxxx"), and
WHEREAS, by virtue of an Assignment (the "Original Assignment"), dated May
14, 1998 (the "Original Transfer Date"), Assignor assigned all rights, interests
and title to the Technology, Patent Rights, and Marks relating to the Business
(as those terms are defined below);
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment of Technology.
(a) "Technology" means any and all designs, specifications, drawings,
techniques, processes, data, business plans, marketing plans, know-how, show-
how, technical information, confidential information, trade secrets, in whatever
form, any and all changes, updates, advances, enhancements or additions thereto,
and any inventions, ideas, discoveries or concepts embodied therein, that are
owned or possessed, from time-to-time, by Petabyte as a result of the Original
Assignment, and that relate in any way to the Business. "Business" means the
assembly, manufacture, servicing, supply, sale, or distribution of customized
vertical market digital data products.
(b) Petabyte hereby irrevocably assigns, sells, transfers and conveys
to Xxxx the entire right, title and interest that Petabyte has in the Technology
and in all trademarks, service marks, tradenames, internet domain names and
similar interests relating to the Business, and any associated goodwill (the
"Marks"), the same to be now held and owned by Xxxx for his own use as fully and
entirely as the same would have been held and owned by Petabyte if this
assignment and sale had not been made. Petabyte hereby further agrees to
deliver to Xxxx all documents and items in Petabyte's possession, custody or
control evidencing the Technology and the Marks.
2. Assignment of Patent Rights.
(a) "Patent Rights" means any and all rights, titles or interests in
or to any United States and foreign patents or patent applications covering the
Technology, including without limitation, the patents and patent applications
identified on Schedule A to this Assignment and any others related to or
utilized in connection with the
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Business, including, without limitation, those filed after May 14, 1998 to which
Xxxxx X. Xxxx made an inventive contribution within the meaning of applicable
law.
(b) Petabyte hereby irrevocably assigns, sells, transfers and conveys
to Xxxx Petabyte's entire right, title and interest in and to any Patent Rights,
the same to be now held and enjoyed by Xxxx for his own use and enjoyment, and
for the use and enjoyment of his successors, assigns or other legal
representatives, to the end of the term or terms for which said patents are
granted or reissued, as fully and entirely as the same would have been held and
enjoyed by Petabyte if this assignment and sale had not been made, together with
all claims for damages by reason of past infringement of said Patent Rights,
with the right to xxx for, and collect, the same for its own use and behalf, and
for the use and behalf of its successors, assigns or other legal
representatives.
3. Representations of Petabyte.
(a) Petabyte hereby represents and warrants that it is the owner of
the Technology, Patent Rights, and Marks transferred and conveyed to Xxxx
hereby, free and clear of all liens, claims and encumbrances, and that the
conveyance hereby of the Technology, Patent Rights, and Marks vests good and
marketable title to the Technology, Patent Rights, and Marks in Xxxx, free and
clear of any liens, claims or encumbrances.
(b) Petabyte represents and warrants that this Assignment has been
duly authorized by all necessary action of Petabyte, and is the binding
agreement of Petabyte, enforceable in accordance with its terms. Petabyte
further represents that the execution and performance of this Assignment will
not violate any agreement, document, order or instrument to which Petabyte is a
party or by which Petabyte is bound.
4. Entire Agreement. This Assignment embodies the complete agreement
of the parties with respect to the subject matter hereof and supersedes any
prior written, or prior or contemporaneous oral, understandings or agreements
between the parties that may have related in any way to the subject matter
hereof. This Assignment may be amended only in writing executed by Petabyte and
Xxxx.
5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto have executed and made this
Assignment as of the date first above written.
PETABYTE CORPORATION
By:
---------------------------------------------
XXXXX X. XXXX
-------------------------------------------------
Xxxxx X. Xxxx
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SCHEDULE A
Patents Rights
1. United States Patent Application, Serial Number 08/984,907, filed December
4, 1997, for METHOD AND SYSTEM FOR CUSTOM MANUFACTURE AND DELIVERY OF A DATA
PRODUCT.
A 1
