Exhibit 10.31
XYGENT INC.
2002 COMMON STOCK PURCHASE AGREEMENT
This 2002 Common Stock Purchase Agreement, dated as of April 8, 2002, is
made among Xygent Inc., a Delaware corporation (the "Company"), and BNS Co., a
Delaware corporation (the "BNS"). The parties agree as follows:
1. Definitions; Certain Rules of Construction. Certain capitalized terms are
used in this Agreement, if not defined elsewhere in the Agreement, with the
specific meanings defined below in this Section 1.
1.1. "Person" means any present or future natural person or any
corporation, association, partnership, limited liability company, limited
liability partnership, joint venture, joint stock or other company, business
trust, trust, organization, business or government or any governmental agency or
political subdivision thereof.
1.2. "Stockholders' Agreement" means the Stockholders' Agreement, dated
as of April 27, 2001 and in effect from time to time, among the Company, BNS and
Xxxxx & Xxxxxx, Inc. (formerly known as Hexagon (Rhode Island), Inc.) ("Xxxxx &
Xxxxxx").
2. Authorization, Sale and Purchase of Common Stock.
2.1. Authorization of Common Stock. The Company has authorized the
issuance and sale of up to 12,005 shares of Common Stock of the Company, par
value $0.01 per share ("Common Stock"), to be issued under this Agreement at a
purchase price per share equal to $124.95 (the "Purchase Price").
2.2. Sale and Purchase of Common Stock. Subject to the terms and
conditions of this Agreement and the Stockholders' Agreement, and on the basis
of the representations and warranties set forth herein, the Company agrees to
sell to BNS, and BNS agrees to purchase from the Company 12,005 shares of Common
Stock (the "Shares") at a purchase price per share equal to the Purchase Price
for a total purchase price of $1,500,024.75 (the "Total Purchase Price").
2.3. The Closing. The purchase and sale of the Shares will take place on
April 26, 2002 at the offices of the Company, 000 Xxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxx Xxxxxx 00000, or at such other time or place as the parties may agree (the
"Closing"). At the Closing, the Company will deliver to BNS a certificate or
certificates, registered in BNS's name, representing the number of Shares
against payment of the Total Purchase Price by the surrender to the Company for
cancellation of $1,500,024.75 of the indebtedness owed by the Company to BNS.
3. Representations and Warranties of the Company. In order to induce BNS to
enter into this Agreement and to purchase the Shares hereunder, the Company
hereby represents and warrants that:
3.1. Organization and Authorization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all required corporate power and authority to enter
into this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and is the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
enforceability thereof may be subject to the laws of general application
relating to bankruptcy, insolvency, the relief of debtors and rules and laws
governing specific performance, injunctive relief and other equitable remedies.
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action of the Company.
3.2. Non-Contravention. The execution by the Company of this Agreement
and the performance by the Company of the transaction contemplated hereby will
not violate, conflict with, or result in a default under any provision of the
Company's organizational documents.
3.3. Issuance of Shares. When issued in accordance with the terms of this
Agreement, the Stockholders' Agreement, and the Certificate of Incorporation of
the Company, as amended (the "Certificate of Incorporation"), the Shares will be
duly authorized, validly issued and outstanding, fully paid and nonassessable.
3.4. Securities Laws. Assuming that BNS's representations and warranties
contained in Section 4 are true and correct, the offer, issuance and sale of the
Shares by the Company to BNS is exempt from the registration and prospectus
delivery requirements of the 1933 Act, and is exempt from registration and
qualification under the registration, permit or qualification requirements of
all applicable state blue sky and securities laws.
4. Representations, Warranties and Certain Other Agreements of BNS.
4.1. Representations and Warranties. BNS hereby represents and warrants
that:
4.1.1. Authorization. BNS has full power and authority to execute,
deliver and perform this Agreement and to acquire the Shares. This
Agreement constitutes the legal, valid and binding obligation of BNS,
enforceable against BNS in accordance with its terms, except as
enforceability thereof may be subject to the laws of general application
relating to bankruptcy, insolvency, the relief of debtors and rules and
laws governing specific performance, injunctive relief and other equitable
remedies.
4.1.2. Non-Contravention. The execution by BNS of this Agreement
and the performance by the Company of the transaction contemplated hereby
will not violate, conflict with, or result in a default under any provision
of BNS's organizational documents.
4.1.3. Purchase Entirely for Own Account. The Shares will be
acquired for investment for BNS's own account, not as a nominee or agent
and not with a view to the distribution of any part thereof. BNS has no
present intention of selling, granting any participation in, or otherwise
distributing, the Shares. BNS does not have any contract, undertaking,
agreement or arrangement with any Person to sell or transfer, or grant any
participation to such Person or to any third Person, with respect to any of
the Shares.
4.1.4. Restricted Securities. BNS understands that the Shares may
not be sold or transferred, or otherwise disposed of, without registration
under the Securities Act of
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1933 as amended (the "1933 Act"), or an exemption therefrom, and that in
the absence of an effective registration statement covering the Shares or
an available exemption from registration under the 1933 Act, the Shares
must be held indefinitely. In the absence of an effective registration
statement covering the Shares, BNS will sell or transfer, or otherwise
dispose of, the Shares to be acquired by BNS only in a manner consistent
with its representations and agreements set forth herein and the terms and
conditions set forth in the Stockholders' Agreement.
4.2. Legends. It is understood that the certificates evidencing the
Shares may bear substantially the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) Any legend required by (i) the Stockholders' Agreement or (ii)
the laws of any applicable jurisdiction.
5. Conditions to BNS's Obligations at the Closing. The obligations of BNS
under Section 2 to purchase the Shares at the Closing are subject to the
fulfillment at or prior to the Closing of each of the following conditions
(unless waived by BNS):
5.1. Representations and Warranties. The representations and warranties
of the Company contained in Section 3 shall be true and correct on and as of the
date of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.
5.2. Performance. The Company shall have performed and complied in all
material respects with all agreements, obligations, and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
5.3. Compliance Certificate. If the Closing does not occur simultaneously
with the execution of this Agreement, the Company shall deliver to BNS at the
Closing a certificate signed on behalf of the Company by an officer of the
Company certifying that the conditions specified in Sections 5.1 and 5.2 have
been fulfilled. If the Closing occurs simultaneously with execution of this
Agreement, the conditions specified in Section 5.1 and 5.2 shall be deemed to
have been fulfilled.
5.4. Stockholders' Agreement. The requirements of Sections 6.1-6.3 of the
Stockholders' Agreement shall have been met or waived in all respect prior to
the Closing in connection with the transactions contemplated by this Agreement
and the purchase and sale of the Shares.
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6. Conditions to the Company's Obligations at Closing. The obligations of the
Company under Section 2 to sell Shares at the Closing are subject to the
fulfillment at or prior to the Closing of each of the following conditions
(unless waived by the Company):
6.1. Representations and Warranties. The representations and warranties
of BNS contained in Section 4 shall be true and correct in all material respects
on and as of the date of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
6.2. Payment of Purchase Price. BNS shall have delivered payment of the
Total Purchase Price by acknowledging to the Company the cancellation of
$1,500,024.75 of the indebtedness of the Company to BNS.
7. Notices. All notices or other communications to a party required or
permitted hereunder will be in writing and will be delivered personally or by
facsimile (receipt confirmed) to such party (or, in the case of an entity, to an
executive officer of such party) or will be given by certified mail, postage
prepaid with return receipt requested, addressed as follows:
If to the Company, to: Xygent Inc., 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx
Xxxxxx 00000, Att: President.
If to BNS, to: BNS Co., 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxx 00000,
Att: Chief Executive Officer.
All notices will be deemed given on the day when actually delivered as provided
above (if delivered personally or by facsimile) or on the day shown on the
return receipt (if delivered by mail). Either party may change their respective
above-specified recipient and/or mailing address by notice to the other party
given in the manner herein prescribed.
8. Parties in Interest. All covenants, agreements, representations,
warranties and undertakings in this Agreement made by and on behalf of any party
hereto shall bind and inure to the benefit of the successors and assigns of such
party.
9. Amendments and Waivers. No delay or omission on the part of any party
hereto in exercising any right under this Agreement shall operate as a waiver of
such right or any other right hereunder. No amendment, waiver or consent with
respect to this Agreement shall be binding unless it is in writing and signed by
each party hereto. No amendment will be effective unless it is approved by the
Board of Directors of Xygent.
10. General. If any provision of this Agreement shall be found by any court of
competent jurisdiction to be invalid or unenforceable, the parties hereby waive
such provision to the extent that it is found to be invalid or unenforceable.
Such provision shall, to the maximum extent allowable by law, be modified by
such court so that it becomes enforceable, and, as modified, shall be enforced
as any other provision hereof, all the other provisions hereof continuing in
full force and effect. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation hereof. This Agreement and the Stockholders' Agreement constitute
the entire understanding of the parties with respect to the subject matter
hereof and supersede any and all prior understandings and agreements, whether
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written or oral, with respect to such subject matter. This Agreement may be
executed in counterparts, which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws (other than the conflict of laws rules) of the State of Rhode Island.
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed by a duly authorized officer as of the date first above written.
XYGENT INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: President and CEO
BNS CO.
By: /s/ Xxxxxx X. Xxxxx
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Title: President and CEO
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