Exhibit 10.17
ATTACHMENT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 16th day of December, 1996 by and between APOLLO INTERNATIONAL of
DELAWARE, INC., a Delaware corporation ("Corporation"), and XXXXXXX X. XXXXXX,
Xx. d/b/a WHR PARTNERS ("Subscriber").
R E C I T A L S :
WHEREAS, Subscriber and the Corporation have entered into an Amended and
Restated License Agreement dated as of and effective December 16, 1997 (the
"License Agreement") pursuant to which Subscriber is to receive cash and common
stock of the Corporation for the granting of a certain license and other rights
to the Corporation thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Corporation and Subscriber agree
as follows:
1. PAYMENT OF SHARES. As partial consideration for the rights granted
the Corporation under the License Agreement, Subscriber shall receive
41,666.6666 shares of the Corporation is Common Stock (the "Shares") issuable
under the terms of the License Agreement as follows:
(i) 20,833.3333 Shares on the date that the software licensed under
the License Agreement is successfully run on any of the Corporation's product;
and
(ii) 20,833.3333 shares when the first successful beta trial is
concluded prior to the first full commercial shipment.
2. REPRESENTATIONS AND WARRANTIES. Subscriber hereby represents,
warrants and covenants to the Corporation that in connection herewith:
a. REVIEW AND EVALUATION OF INFORMATION REGARDING THE CORPORATION:
Subscriber has had an opportunity to examine the governing instruments and the
material documents and records of the Corporation, to ask questions and receive
answers from the representatives of the Corporation concerning the Corporation's
financial condition and business, and to obtain such other information that he
has deemed necessary to make a fully informed decision.
b. PURCHASER'S FINANCIAL EXPERIENCE. Subscriber is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of the investment in the Shares. Subscriber is familiar with
the nature and risks attending investments
in privately offered securities, and he has determined that a purchase of Shares
is consistent with his forecasted income and investment objectives.
c. SUITABILITY OF INVESTMENT. Subscriber understands that the
Shares are speculative investments and involve a high degree of risk.
Subscriber has evaluated the merits and risks of Subscriber's proposed
investment in the Shares, including those risks particular to Subscriber's
personal situation, and he has determined that this investment is suitable for
Subscriber. Subscriber had adequate financial resources for an investment of
this character, and at this time Subscriber could bear a complete loss of his
investment. Further Subscriber will continue to have, after making his
investment in the Shares adequate means of providing for his current needs, the
needs of those dependent on him, and possible personal contingencies.
d. INVESTMENT INTENT. Subscriber is purchasing the Shares for
investment purposes only and for his own account, and has no present commitment,
agreement or intention to sell, distribute or otherwise dispose of any of them
or enter into any such commitment or agreement.
e. UNREGISTERED SECURITIES; LIMITATIONS ON DISPOSITION. Subscriber
understands that the Shares are being sold without registration under federal or
any state securities laws ("Securities Laws") by reason of specific exemptions
from registration and that the Corporation is relying on the information given
herein in its determination of whether such specific exemptions are available.
Subscriber understands that because the Shares have not been and will not be
registered under the Securities Laws, they cannot be sold unless and until they
are subsequently registered or an exemption from registration is available.
Subscriber may have to bear the economic risk of holding the Shares for an
indefinite period of time since there is no public market for the Shares and
none is likely to develop. Subscriber represents that he can afford to hold the
Shares for an indefinite period of time.
f. NON-RELIANCE. Subscriber is not relying on the Corporation or
any representation contained herein with respect to the tax effect of his
investment in the Corporation.
g. ACCREDITED INVESTOR. Subscriber is a director of the Corporation
and as such is an accredited investor as that term is defined in Section 501(a)
of Regulation D as promulgated under the Securities Act of 1933, as amended.
h. RESIDENCY. Subscriber is a bona fide resident of the State of
Rhode Island, or if an entity, its principal place of business is located in
Rhode Island.
3. INDEMNIFICATION. Subscriber shall indemnify and hold harmless the
Corporation and its agents and counsel against any and all loss, damage,
liability or expense (including attorney's fees and costs) which may be suffered
by reason of any breach of his representations, warranties or covenants
contained in Section 2 hereof.
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4. REGISTRATION RIGHTS.
a. "PIGGYBACK" REGISTRATION.
(i) If the Corporation at any time after June 1, 1998 and
subsequent to an initial public offering ("Secondary Offering") proposes to
register any of its securities under the Securities Act (other than in
connection with a merger or pursuant to Form S-8 or other comparable form not
available for registering the Shares (sometimes hereinafter referred to as
"Registrable Shares") for sale to the public), the Corporation shall, at least
sixty (60) days prior to such filing, give written notice of such proposed
filing to the Subscriber at the address set forth herein and shall offer to
include in such registration statement any of the Registrable Shares which
Subscriber may own on the proposed date of filing of such registration
statement. Upon receipt by the Company, not less than fifteen (15) days prior
to the proposed filing date, of a request for inclusion of any such shares, the
Company shall include such Shares in such registration statement, subject to any
lock-up or other limitations that may be imposed by an underwriter if such
offering is an underwritten public offering.
(i) The Corporation shall not be required to include any of
the Subscriber's Registrable Shares in the registration statement relating to an
underwritten offering of the Corporation's securities unless the Subscriber
accepts the terms of the underwriting as agreed upon between the Corporation and
the underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Subscriber agrees to execute and/or deliver such
documents in connection with such registration as the Corporation or the
managing underwriter may reasonably request.
(ii) If the managing underwriter shall restrict the amount
of the Subscriber's Registrable Shares which can be included in a Secondary
Offering, then the balance of such Registrable Shares shall continue to be fully
subject to the terms and rights of this Agreement, which specifically includes
piggyback rights in any subsequent Secondary Offering, until all such
Registrable Shares have been registered.
(iii) The Corporation may, in its sole discretion and
without the consent of the Subscriber, withdraw such registration statement and
abandon the proposed Secondary Offering in which the Subscriber had requested to
participate, but such abandonment shall not preclude subsequent request for
registration pursuant to this Section 4.
b. EXPIRATION OF REGISTRATION RIGHTS. The obligations of the Corporation
to register shares of the Registrable Shares under Sections 4 of this Agreement,
shall terminate five (5) years after the date hereof, unless such obligations
terminate earlier in accordance with the terms of this Agreement.
c. COOPERATION WITH CORPORATION. The Subscriber will cooperate with the
Corporation in all respects in connection with this Agreement, including,
without limitation, timely supplying all information reasonably requested by the
Corporation and executing and
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returning all documents reasonably requested in connection with the registration
and sale of the Registrable Shares
d. EXPENSES.
(i) All expenses incurred by the Corporation in complying with the
provisions of this Section 4, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of Corporation
counsel and independent public accountants for the Corporation, fees and
expenses (including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and registrars
and costs of insurance, but excluding any Selling Expenses and expenses of
counsel for the Subscriber, are called "Registration Expenses". All
underwriting discounts, selling commissions and underwriter expense
reimbursement allowances applicable to the sale of Registrable Shares, as well
as all fees and expenses of counsel for the Subscriber, are called "Selling
Expenses".
(ii) The Corporation will pay all Registration Expenses in connection
with each registration of Registrable Shares pursuant to the provisions of this
Agreement. All Selling Expenses in connection with each such registration
statement shall be borne by the Subscriber.
5. GENERAL.
a. SUCCESSORS AND ASSIGNS. The rights of the Subscriber granted
under this Agreement, including the rights to cause the Corporation to register
the Registrable Shares, may not be assigned without the prior written consent of
the Corporation. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors and
permitted assigns of the Corporation and the Subscriber.
b. ENTIRE AGREEMENT. This Agreement expresses the entire
understanding of the Corporation and the Subscriber with respect to the subject
matter of this Agreement. Nothing in this Agreement shall alter, amend, modify,
delete, rescind or otherwise waive any terms or conditions to which the
Subscriber, or the securities held by such Subscriber, may be subject.
c. NOTICES. Any notice or payment required or permitted to be made
or given by either party hereto pursuant to this Agreement will be sufficiently
made or given on the date of issuance if sent by such party to the other party
by mail, telecopy, commercial courier, personal delivery, or a similar reliable
delivery method, addressed as set forth below or to such other address as a
party shall designate by written notice given to the other party.
In the case of Corporation: Apollo International of Delaware, Inc.
Attention: Xxxxx Xxxxxx
0000 Xxxxx X.X. Xxxxxxx 00
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
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In the case of Subscriber: WHR Partners
Attention: Xxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxxxxxx X.X. 00000
d. AMENDMENT AND WAIVER. No amendment or modification of this
Agreement shall be effective unless set forth in a writing executed by
authorized representatives of both parties. No waiver of any provision of this
Agreement shall be effective unless it is set forth in a writing which refers to
the provisions so waived and the instrument in which such provision is contained
and is executed by an authorized representative of the party waiving its rights.
No failure or delay by either party in exercising any right, power, or remedy
will operate as a waiver of any such right, power, or remedy.
e. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal, substantive laws of the State of Florida,
without giving effect to the conflicts of law principles thereof.
f. INVALIDITY OF PROVISIONS. If any provisions of this Agreement
shall be determined by a court of competent jurisdiction to be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not be affected thereby.
g. HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any of the provisions of this Agreement.
h. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Shares Purchase
Agreement as of the date and year first written above.
XXXXXXX X. XXXXXX d/b/a WHR
PARTNERS
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
[SIGNATURES CONTINUED ON NEXT PAGE]
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APOLLO INTERNATIONAL OF DELAWARE,
INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
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