EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
by and between
XXXXXXXX CAPITAL LIMITED
and
HYCOMP, INC.
relating to all of the
outstanding capital stock
of
XXXXXXXX.XXX, INC.
dated as of
October 14, 1999
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
October 14, 1999, by and between XXXXXXXX CAPITAL LIMITED, an Ontario
corporation (the "Seller") and HYCOMP, INC., a corporation organized under the
laws of the Commonwealth of Massachusetts (the "Buyer" or "HyComp").
WHEREAS, Seller owns 120,000 shares of common stock, no par value,
constituting all of the issued and outstanding shares of capital stock of
XxxxXxxx.xxx, Inc. an Ontario corporation (the "Company"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller all of the Securities upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and on the basis of
the respective representations, warranties, covenants, agreements, undertakings
and obligations set forth herein, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE SECURITIES
1.1 Purchase and Sale of Securities. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined in Section
2), Buyer agrees to purchase and accept delivery from Seller, and Seller agrees
to sell, assign, transfer and deliver to Buyer, all of the Securities, free of
all liens, pledges, mortgages, security interests, charges, restrictions,
adverse claims or other encumbrances of any kind whatsoever ("Encumbrances"),
for the consideration specified in Section 1.2.
1.2 Consideration; Payment. At the Closing, in full payment for the
Securities, Buyer shall deliver to Seller:
(a) 7,500,000 validly authorized, fully paid and
non-assessable shares of HyComp common stock, $0.01 par value per share ("HyComp
Shares"), free and clear of any Encumbrances;
(b) A demand promissory note in the amount of U.S. $500,000
(the "Note"), in the form attached as Exhibit 1 to this Agreement;
(c) A convertible debenture in the principal amount of U.S.
$2,000,000 ("Debenture"), convertible into HyComp Shares at a conversion price
of $1.00 per share (subject to adjustment as provided therein), in the form
attached as Exhibit 2 to this Agreement.
(d) Five year warrants (the "Warrants issued pursuant to a
warrant agreement (the "Warrant Agreement") in the form attached as Exhibit 3 to
this Agreement for the purchase of an aggregate of 5,000,000 HyComp Shares
(subject to adjustment as provided therein, as follows: (i) 1,000,000 HyComp
Shares at an exercise price of $1.00 per share exercisable
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immediately after the Closing; (ii) 1,000,000 HyComp Shares at an exercise price
of $1.50 per share exercisable after one year from the Closing; (iii) 1,000,000
HyComp Shares at an exercise price of $2.00 per share exercisable after two
years after the Closing; (iv) 1,000,000 HyComp Shares at an exercise price of
$2.50 per share exercisable after three years after the Closing; and (v)
1,000,000 HyComp Shares at an exercise price of $3.00 per share exercisable
after four years after the Closing.
ARTICLE 2
CLOSING
2.1 Closing. The purchase and sale of the Securities will take place at
the offices of Kramer, Levin, Naftalis & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 4:00p.m. on the date hereof, or at such other time and
place as the parties may agree (the "Closing").
2.2 Closing Obligations. At the Closing:
(a) Seller shall deliver, or cause to be delivered, to Buyer the
following:
(i) Certificates representing the Securities, duly
endorsed in blank (or accompanied by duly executed
blank stock powers) and all other documents or
instruments, including, any and all necessary
transfer stamps which are necessary to vest all of
Seller's right, title and interest in and into the
Securities in Buyer;
(ii) The Warrant Agreement duly executed on behalf of
Seller; and
(iii) Such other documents as Buyer may reasonably require.
(b) Buyer shall deliver, or cause to be delivered, to Seller the
following:
(i) Certificates representing HyComp Shares in accordance
with Article 1, duly endorsed in blank (or
accompanied by duly executed blank stock powers) and
all other documents or instruments, including, any
and all necessary transfer stamps which are necessary
to vest all of Buyer's right title and interest in
and into the HyComp Shares in Seller;
(ii) The Note, Debenture, the Warrant Agreement and the
Warrants, each duly executed on behalf of Buyer, in
accordance with Article 1 of this Agreement; and
(iii) Such other documents as Seller may reasonably
require.
(c) The parties shall mutually agree to the terms of a two year
management services agreement in accordance with Section 2.3
of this Agreement.
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2.3 Management Service Agreement. Upon the Closing, Seller and Buyer shall
enter into a management services agreement in the form attached as Exhibit 4 to
this Agreement (the "Management Services Agreement" and together with this
Agreement, the Note, the Debenture, the Warrants and the Warrant Agreement, the
"Transaction Documents"), pursuant to which Seller shall provide to Buyer senior
management, finance, personnel, business development and investor relations
services.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
3. Representations and Warranties of Seller and Company. Seller represents
and warrants to Buyer as follows:
3.1 Organization and Good Standing.
(a) Each of the Seller and the Company is a corporation duly
organized and validly existing under the laws of Ontario, Canada and has all
requisite corporate or other power and authority to enter into this Agreement
and perform its obligations hereunder.
(b) The execution, delivery and performance of this Agreement and
the other Transaction Documents by Seller, and the transactions contemplated
hereby, including the sale of the Securities pursuant hereto, have been duly
authorized by all necessary corporate or other action required on the part of
Seller and Company. This Agreement has been duly executed and delivered by
Seller. This Agreement constitutes, and when duly executed and delivered by
Seller, the Warrant Agreement and the Management Services Agreement, will
constitute the legal, valid and binding obligation of Seller enforceable against
Seller in accordance with their respective terms, subject to bankruptcy,
insolvency and other similar laws relating to or affecting the enforceability of
creditors' rights generally, and to general principles of equity.
3.2 Securities.
(a) The Securities constitute all of the issued and outstanding
capital stock of the Company, as more fully set forth in Section 3.4 of this
Agreement.
(b) Seller has good and valid title to the Securities, free and
clear of any Encumbrances, and Seller shall deliver to Buyer good and valid
title to the Securities free and clear of any Encumbrances.
(c) The Securities are owned of record and beneficially by Seller.
Seller has sole power of disposition with respect to the Securities, with no
restrictions, subject to United States and other applicable securities laws, on
Seller's rights of disposition pertaining thereto.
3.3 Authority; No Conflict.
(a) The execution and delivery of this Agreement and other
Transaction Documents by Seller, and the sale of the Securities pursuant hereto,
have been duly authorized by all necessary corporate or other action required on
the part of Seller. This Agreement has
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been duly executed and delivered by Seller and constitutes the legal, valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms, subject to bankruptcy, insolvency and other similar laws relating to or
affecting the enforceability of creditors' rights generally, and to general
principles of equity.
(b) The execution, delivery and performance of this Agreement and
other Transaction Documents by Seller, and the consummation by Seller of the
transactions contemplated hereby, will not (i) conflict with or violate the
organizational documents of Seller or the Company, or (ii) conflict with,
violate, result in the breach of any term of, constitute a default under, or
require the consent of or any notice to or filing with any third party or
governmental authority under, any agreement or instrument to which Seller or the
Company is a party or any law, order, rule, regulation, decree, writ or
injunction of any governmental body having jurisdiction over Seller or the
Company or their respective properties, except for such consents or filings as
have been obtained or made.
3.4 Capitalization of the Company. The authorized equity securities of the
Company consist of an unlimited number of shares of common stock, no par value,
of which 120,000 shares are issued and outstanding. All of the outstanding
equity securities of the Company have been duly authorized and validly issued
and are fully paid and nonassessable. There are no outstanding or authorized
options, warrants, calls, rights, commitments, conversion rights or agreements
of any character to which the Company is a party or by which the Company is
bound which could require the Company to issue, deliver, sell or otherwise
transfer or cause to be issued, delivered, sold, transferred or offered for sale
or transfer, any shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company or
that could require the Company to grant, extend or enter into any such option,
warrant, call, right, commitment, conversion right or agreement. None of the
outstanding equity securities or other securities of the Company were issued in
violation of the United States Securities Act of 1933, as amended (the
"Securities Act") or any other applicable legal requirement. the Company is
under no obligation to register any of its securities under the securities laws
of any jurisdiction. No person has any preemptive rights with respect to any
security of the Company.
3.5 Financial Statements; No Undisclosed Liabilities.
(a) The financial statements of the Company dated as of and for the
periods ended June 30, 1999 (the "Company Financial Statements") are true and
correct in all material respects have been prepared in accordance with Canadian
generally accepted accounting principles and accurately present the financial
condition and results of operation of the Company as of the dates and for the
periods set forth therein.
(b) Except as and to the extent (i) reflected in the Company
Financial Statement, or (ii) set forth on Schedule I (the "Disclosure Schedule")
attached to this Agreement, the Company does not have any liability or
obligation, which individually or in the aggregate is material to the business,
operations, assets or financial condition of the Company.
3.6 Books and Records. Except as disclosed in the Disclosure Schedule, the
books of account and other records of the Company, all of which have been made
available to Buyer,
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are true and correct. Except as disclosed in the Disclosure Schedule, the minute
books of the Company contain true, correct and, since June 22, 1999, complete
records of all meetings held of, and corporate action taken by, the
shareholders, the Board of Directors, and committees of the Board of Directors
of the Company. At the Closing, all of such books and records will be in the
possession of the Company.
3.7 Brokers or Finders. Except as disclosed in the disclosure schedule,
Seller and its agents have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commission or other similar
payment in connection with this Agreement or other transactions contemplated
hereby.
3.8 Investment Representations. Seller acknowledges that the HyComp Shares
issuable by the Buyer at the Closing, upon conversion of the Debenture or upon
exercise of the Warrants (i) have not been registered under the Securities Act,
or any state securities laws, and cannot be sold or otherwise disposed of except
in a transaction registered under the Securities Act and any applicable state
securities laws, or that is exempt from such registration, and (ii) so long as
required by law, each certificate representing the HyComp Shares will bear a
legend to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS."
(b) Seller, together with its officers, directors and
advisors, has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the acquisition of the
HyComp Shares.
(c) The HyComp Shares are being acquired by Seller for its own
account and not for any other person or entity, for investment only and with no
intention of distributing or reselling (and will not distribute or resell) such
HyComp Shares or any part thereof or interest therein in any transaction that
would violate the registration requirements of the Securities Act or other
applicable securities laws.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
4.1 Organization and Good Standing.
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(a) Buyer is a corporation duly organized and validly existing
under the laws of the Commonwealth of Massachusetts and has all requisite
corporate or other power and authority to enter into this Agreement and perform
its obligations hereunder.
(b) The execution, delivery and performance of this Agreement
and the other Transaction Documents by Buyer, and the consummation of the
transactions contemplated hereby including the purchase of the Securities of the
Company pursuant hereto, have been duly authorized by all necessary corporate or
other action required on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer. This Agreement constitutes, and when the other
Transaction Documents are executed and delivered by Buyer such documents will
constitute, the legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with their respective terms, subject to bankruptcy,
insolvency and other similar laws relating to or affecting the enforceability of
creditors' rights generally, and to general principles of equity.
4.2 Securities.
(a) Buyer has good and valid title to the HyComp Shares, free
and clear of any Encumbrances, and Buyer shall deliver to Seller good and valid
title to the HyComp Shares free and clear of any Encumbrances.
(b) The HyComp Shares issuable by Buyer upon conversion of the
Debenture and the exercise of the Warrants will be valid, free and clear of any
Encumbrances, and upon conversion of the Debenture and the exercise of the
Warrants, Buyer shall deliver to Seller good and valid title to the HyComp
Shares free and clear of any Encumbrances. The HyComp Shares issuable pursuant
to subparagraph (a) above are owned of record and beneficially by Buyer. Buyer
has sole power of disposition with respect to the HyComp Shares, with no
restrictions, subject to United States and other applicable securities laws, on
Buyer's rights of disposition pertaining thereto.
4.3 Authority; No Conflict.
(a) The execution and delivery of this Agreement and other
Transaction Documents by Buyer, and the issuance of the HyComp Shares pursuant
hereto, have been duly authorized by all necessary corporate or other action
required on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with its terms, subject to
bankruptcy, insolvency and other similar laws relating to or affecting the
enforceability of creditors' rights generally, and to general principles of
equity.
(b) The execution, delivery and performance of this Agreement
and other Transaction Documents by Buyer, and the consummation by Buyer of the
transactions contemplated hereby, will not (i) conflict with or violate the
organizational documents of Buyer, or (ii) conflict with, violate, result in the
breach of any term of, constitute a default under, or require the consent of or
any notice to or filing with any third party or governmental authority under,
any agreement or instrument to which Buyer is a party or any law, order, rule,
regulation,
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decree, writ or injunction of any governmental body having jurisdiction over
Buyer or its respective properties, except for such consents or filings as have
been obtained or made.
4.4 Capitalization of Buyer. The authorized equity securities of Buyer
consist of (i) 20,000,000 shares of common stock, $.01 par value per share, of
which 10,197,070 shares are issued and outstanding; (ii) 2,000 shares of
non-voting 8% convertible redeemable preferred stock, $100 par value per share,
of which 53 shares are currently issued and outstanding but which are to be
either redeemed or converted on or before November 10. All of the outstanding
equity securities of the Buyer have been duly authorized and validly issued and
are fully paid and nonassessable. There are options outstanding to purchase
850,000 shares of common stock of Buyer, exercisable at $.013 per share,
pursuant to Buyer's 1985 Stock Option Plan (the "1985 Plan"). Except as set
forth in the preceding sentence pursuant to the 1985 Plan, there are no other
outstanding or authorized options, warrants, calls, rights, commitments,
conversion rights or agreements of any character to which Buyer is a party or by
which Buyer is bound which could require Buyer to issue, deliver, sell or
otherwise transfer or cause to be issued, delivered, sold, transferred or
offered for sale or transfer, any shares of capital stock of Buyer or securities
convertible into or exchangeable for shares of capital stock of Buyer or that
could require either Buyer to grant, extend or enter into any such option,
warrant, call, right, commitment, conversion right or agreement. None of the
outstanding equity securities or other securities of Buyer were issued in
violation of the United States Securities Act of 1933, as amended (the
"Securities Act") or any other legal requirement. Buyer is under no obligation
to register any of its securities under the Securities Act or securities laws of
any other jurisdiction. No person has any preemptive rights with respect to any
security of Buyer.
4.5 Balance Sheet; Absence of Undisclosed Liabilities.
(a) The balance sheet of Buyer, dated as of September 30, 1999
and attached hereto as Exhibit 5 (the "Balance Sheet"), fairly and accurately
reflects the financial condition of Buyer as of the date thereof, and
(b) Except as and to the extent (i) reflected and reserved on
the Balance Sheet, or (ii) set forth on Disclosure Schedule attached hereto, as
of the date of this Agreement, Buyer does not have any liability or obligation,
secured or unsecured, whether accrued, absolute, contingent, unasserted or
otherwise, which individually or in the aggregate is material to Buyer. For
purposes of this Section 4.5, "material" means any amount in excess of $20,000.
4.6 Product Liability and Recalls. Without limiting the representation
contained in Section 4.5, except as disclosed in the Disclosure Schedule,
(a) There is no claim, and Buyer is not aware of the basis of
any claim, against Buyer for injury to person or property of employees or any
third parties suffered as a result of the manufacture, sale or distribution of
any product or the performance of any service by Buyer, including claims arising
out of the allegedly defective or unsafe nature of the products sold or
distributed by Buyer;
(b) There is no pending or, to the best knowledge of Buyer,
threatened recall or investigation of any product sold or distributed by Buyer;
and
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(c) There are no liabilities of, or threatened claims against,
Buyer for (i) product returns, (ii) warranty obligations, or (iii) product
services.
4.7 No Activities. Except as set forth in the Disclosure Schedule,
(a) Since the sale of assets to Satcon Technology Corporation,
a Delaware corporation ("Satcon") on April 12, 1999, Buyer has engaged in no
business activity other than incident to such sale, the settlement of claims
identified on the Disclosure Schedule and the maintenance of Buyer's corporate
existence, and
(b) Buyer is not a party to any contract, agreement or other
arrangement, whether or not in writing, that requires any payment or performance
by Buyer after the date of this Agreement.
4.8 Absences of Reporting Obligations. Buyer is not now and has never
in the past been subject to the reporting obligations of Section 13 or 15(d) of
the United States Securities Exchange Act of 1934, as amended, or similar
securities laws of any other jurisdiction.
4.9 Books and Records. Except as disclosed in the Disclosure Schedule,
the books of account and other records of Buyer, all of which have been made
available to Seller, are true and correct. Except as disclosed in the Disclosure
Schedule, the minute books of Buyer contain true, correct and, since February
29, 1984, complete records of all meetings held of, and corporate action taken
by, the shareholders, the Board of Directors, and committees of the Board of
Directors of Buyer. The stock books of Buyer are true, accurate and complete. At
the Closing, all of such books and records will be in the possession of Buyer.
4.10 Brokers or Finders. Except as disclosed in the Disclosure
Schedule, Buyer and its agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commission or
other similar payment in connection with this Agreement or other transactions
contemplated hereby.
4.11 Investment Representations.
(a) Buyer acknowledges that (i) the Securities have not been
registered under the Securities Act, or any state securities laws, and cannot be
sold or otherwise disposed of except in a transaction registered under the
Securities Act and any applicable state securities laws, or that is exempt from
such registration, and (ii) so long as required by law, each certificate
representing the Securities will bear a legend to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH LAWS."
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(b) Buyer, together with its officers, directors and advisors,
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the acquisition of the Securities.
(c) The Securities are being acquired by Buyer for its own
account and not for any other person or entity, for investment only and with no
intention of distributing or reselling (and will not distribute or resell) such
Securities or any part thereof or interest therein in any transaction that would
violate the registration requirements of the Securities Act or other applicable
securities laws.
4.12 Reservation of Shares. Buyer shall at all times reserve out of its
authorized and unissued shares of capital stock sufficient HyComp Shares to
provide for the conversion of the Debenture and the exercise of the Warrants.
ARTICLE 5
INDEMNIFICATION AND REMEDIES
5. Indemnification; Remedies
5.1 By Seller.
(a) Seller hereby agrees promptly upon demand to indemnify and
hold harmless Buyer and its affiliates and their respective officers, director,
employees and agents against all claims, damages, losses, liabilities, costs and
expenses (including, without limitation, settlement costs and any legal,
accounting or other expenses for investigating or defending any actions or
threatened actions) reasonably incurred by such persons in connection with or
arising out of each and all of the following:
(i) Any breach by Seller or any representations,
warranty of Seller in this Agreement;
(ii) Any breach of any covenant, agreement or
obligation of Seller contained in this Agreement;
(iii) The operation of the business of the Company prior
to the Closing; and
(iv) Any claim by any person for brokerage or finder's
fees or commissions or similar payments based upon
any agreement or understanding alleged to have
been made by any such person with Seller or the
Company in connection with the transactions
contemplated hereby.
5.2 Indemnification by Buyer.
(a) Buyer hereby agrees promptly upon demand to indemnify and
hold harmless Seller and its affiliates and their respective officers,
directors, employees and agents
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against all claims, damages, losses, liabilities, costs and expenses (including,
without limitation, settlement costs and any legal, accounting or other expenses
for investigating or defending any actions or threatened actions) reasonably
incurred by such persons, in connection with each and all of the following:
(i) Any breach by Buyer of any representation or
warranty of Buyer in this Agreement;
(ii) Any breach of any covenant, agreement or
obligation of Buyer contained in this Agreement;
and
(iii) Any claim by any person for brokerage or finder's
fees or commissions or similar payments based upon
any agreement or understanding alleged to have
been made by any such person with Buyer in
connection with the transactions contemplated
hereby.
5.3 Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder the party seeking indemnification (the "Indemnified
Party"), shall promptly notify the party from whom indemnification is sought
(the "Indemnifying Party") of the claim and, when known, the facts constituting
the basis for such claim. In the event of any such claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third-party, the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom. The
Indemnified Party shall not settle or compromise any claim by a third party for
which it is entitled to Indemnification hereunder without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld. The
Indemnifying Party shall not settle or compromise any such claim unless such
settlement or compromise is without any cost to, and provides for a full and
unconditional release of, the Indemnified Party.
5.4 Defense of Indemnifying Party. In connection with any claim giving
rise to indemnity hereunder resulting from or arising out of any claim or legal
preceding by a third-party, the Indemnifying Party at its sole cost and expense
may, upon written notice to the Indemnified Party, assume the defense of any
such claim or legal proceeding with counsel of its choice who shall be
reasonably acceptable to the Indemnified Party. In such case, the Indemnified
Party shall be entitled to participate in (but not control) the defense of any
such claim or legal proceeding, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or legal
proceeding within thirty (30) days after the date the Indemnified Party delivers
notice of such claim to the Indemnifying Party, (a) the Indemnified Party may,
upon written notice to the Indemnifying Party, defend against such claim or
legal proceeding with counsel of its choice who shall be reasonably acceptable
to the Indemnifying Party, at the cost and expense of the Indemnifying Party,
payable to the Indemnified Party on demand as incurred, and (b) the Indemnifying
Party shall be entitled to participate in (but not control) the defense of such
claim or legal proceeding, with its counsel and at its own cost and expense.
ARTICLE 6
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MISCELLANEOUS
6.1 Further Assurances. By its signature hereto, each party consents
and agrees to all of the transactions contemplated hereby. Each party hereto
shall execute, deliver, file and record any and all instruments, certificates,
agreements and other documents, and take any and all other actions, as
reasonably requested by any other party hereto in order to consummate the
transactions contemplated hereby.
6.2 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made if (i) sent by registered or certified mail, return receipt requested,
postage prepaid, (ii) hand delivered, (iii) sent by prepaid overnight carrier,
with a record of receipt or (iv) sent by facsimile (with confirmation of
receipt), to the parties at the following address (or at such other addresses as
shall be specified by the parties by like notice):
(i) To Buyer:
HyComp, Inc.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10005
Attn: Chief Executive Officer
(ii) To Seller:
Xxxxxxxx Capital Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Each notice or other communication shall be deemed to have been given on the
date received.
6.3. Successors. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, permitted
assigns, personal representatives, heirs, executors and estates.
6.4 Severability. Any provision in this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability at such time
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction at such time shall not invalidate or
render unenforceable such provision in any other jurisdiction or in the same
jurisdiction at any other time, so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. To the extent permitted by
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applicable law, the parties hereto waive any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
6.5. Amendment; Waiver; Extension Waiver. This Agreement may be
amended, supplemented or otherwise modified only by the written agreement of the
parties hereto. Any waiver of any provision of this Agreement shall be in
writing and executed by the parties hereto, and any such waiver shall be
effective only for the specific purpose for which it is given and for the
specific time period, if any, contemplated therein. The parties hereto may
extend the time for the performance of any of the obligations or other acts of
the other parties hereto, waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument singed on behalf of all parties.
6.6 Counterparts. This Agreement may be executed in both counterparts
each of which when so executed and delivered shall be deemed an original and all
of which taken together shall constitute one agreement. This Agreement may be
delivered by facsimile transmission with the same effect as if delivered in
person.
6.7 Waiver of Jury Trial. The parties hereto hereby unconditionally
waive trial by jury in any suit, action or proceeding relating to this
Agreement.
6.8 Specific Performance. Each party hereto recognizes and acknowledges
that a breach by such party of any covenants or agreements contained in this
Agreement will cause the other party to sustain damages for which they would not
have an adequate remedy at law for money damages, and therefore each party
agrees that in the event of any such breach the non-breaching party shall be
entitled to the remedy of specific performance of such covenant and agreement
and injunctive and other equitable relief in addition to any other remedy to
which such non-breaching party may be entitled, at law or in equity, without the
posting of any bond and without proving that damages would be inadequate.
6.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts made and to be wholly performed within such State, without reference
to principles of conflicts of laws.
6.10 Jurisdiction; Venue. The parties hereto irrevocably and
unconditionally submit to the jurisdiction of any State or Federal court sitting
in the City of New York, Borough of Manhattan, over any suit, action or
proceeding arising out of or relating to this Agreement. Service of any process,
summons, notice or document by registered mail addressed to any party as
provided in Section 6.2 hereof shall be effective service of process for any
suit, action or proceeding brought against such party in any such court. The
parties hereto irrevocably and unconditionally waive any objection to the laying
of venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. A final judgment in any suit, action or
proceeding brought in any such court shall be conclusive and binding upon the
parties and may be enforced in any other courts to whose jurisdiction a party is
or may be subject, by suit upon such judgment.
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6.11 Entire Agreement; Interpretation. This Agreement and the other
Transaction Documents contain the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and prior
writings with respect thereto. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. A reference to a gender in this Agreement
shall be interpreted to include the masculine, feminine and/or neutral gender,
as applicable.
6.12 Certain Costs and Expenses. Except as expressly provided in this
Agreement, each party to this Agreement shall bear its representative expenses
incurred in connection with the preparation, execution and performance of this
Agreement, including all fees and expenses of agents, representatives, counsel
and accountants.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SELLER:
XXXXXXXX CAPITAL LIMITED
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Executive Officer
BUYER:
HYCOMP, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
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SCHEDULE I
DISCLOSURE SCHEDULE
Upon the Closing (as therein defined) of the Stock Purchase Agreement by and
between XXXXXXXX CAPITAL LIMITED and HYCOMP, INC. relating to all of the
outstanding capital stock of XXXXXXXX.XXX, INC. dated as of October 14, 1999,
HyComp, Inc. has agreed to issue Xxxxxxxx Xxx 500,000 shares of HyComp, Inc.
common stock, par value $0.01 per share.
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Exhibit 1
Form of Promissory Note
-----------------------
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Exhibit 2
Form of Debenture
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Exhibit 3
Form of Warrant
---------------
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Exhibit 4
Form of Management Services Agreement
-------------------------------------
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Exhibit 5
Balance Sheet of HyComp, Inc.
-----------------------------
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