Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of May 23, 2003 (the "Agreement"), by
and among ASA International Ltd., a Delaware corporation (the "Purchaser") and
the persons listed on the signature pages hereof (collectively, the "Selling
Stockholders").
In consideration of the premises and the mutual covenants and agreements
hereinafter contained, the parties hereby agree as follows:
Article I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares. Upon the terms and subject to the
conditions contained herein, on the Closing Date the Selling Stockholders will
sell, and the Purchaser will purchase, an aggregate of 225,625 shares (the
"Shares") of the common stock, $0.01 par value per share (the "Common Stock"),
of Omtool, Ltd., a Delaware corporation (the "Company") for a purchase price of
$3.00 per share, subject to payment of the Additional Purchase Amount as
provided in Section 1.2. Each Selling Stockholder shall sell, assign, transfer,
convey and deliver to the Purchaser, and the Purchaser shall purchase from each
Selling Stockholder, the Shares owned by such Selling Stockholder set forth
opposite such Selling Stockholder's name on Schedule 1.1 hereto. Purchaser's
payment for the Shares on the Closing Date shall be made to the Selling
Stockholders, against the Selling Stockholders' delivery of stock certificates
representing the Shares, together with stock powers duly endorsed in blank
therefore, signature guaranteed, by wire transfer of immediately available
funds. The closing of the purchase and sale of the Shares (the "Closing")
pursuant to this Agreement shall take place at 4:00 p.m. EST on May 23, 2003
(the "Closing Date").
1.2 Additional Purchase. As additional consideration for purchase and
sale of the Shares contemplated hereby, if within twelve (12) months of the date
hereof the Purchaser or any subsidiary of the Purchaser directly or indirectly
acquires, enters into a letter of intent or definitive agreement or similar
document to purchase, or otherwise agrees in writing to purchase (whether or not
such transaction closes within such 12-month period), any shares of Common Stock
of the Company from the Company or from a third party in a private or public
transaction at a per share price (without giving effect to any stock split,
stock dividend or other transaction affecting the Common Stock occurring after
the date hereof) in excess of $3.00 per share (any such purchase or agreement, a
"Purchase Event"), the Purchaser shall pay to the Selling Stockholders as soon
as reasonably possible, but not longer than within three (3) business days of
the closing of the transaction contemplated by the Purchase Event by wire
transfer of immediately available funds the Additional Purchase Amount. For
purposes of this Section 1.2, the Additional Purchase Amount paid to Selling
Stockholders shall be the product obtained by multiplying (x) the difference
obtained by subtracting $3.00 from the per share price paid by the Purchaser in
the Purchase Event (without giving effect to any stock split, dividend or other
transaction affecting the Common Stock occurring after the date hereof), by (y)
50%, by (z) 225,625. Notwithstanding anything to the contrary set forth herein,
the provisions of this Section 1.2 shall not apply if at the time of such
Purchase Event, the Common Stock is no longer registered pursuant to the
Securities Exchange Act of 1934, as amended.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS
The Selling Stockholders each hereby represent, severally and
not jointly, to the Purchaser that:
2.1 Authorization of Agreement. Such Selling Stockholder has all
requisite power, authority and legal capacity to execute and deliver this
Agreement and each other agreement, document, instrument or certificate
contemplated by this Agreement or to be executed by such Selling Stockholder in
connection with the consummation of the transactions contemplated by this
Agreement (together with this Agreement, the "Selling Stockholder Documents"),
and to consummate the transactions contemplated hereby and thereby. This
Agreement has been, and each of the Selling Stockholder Documents will be at or
prior to the Closing, duly and validly executed and delivered by such Selling
Stockholder and (assuming the due authorization, execution and delivery by the
other parties hereto and thereto) this Agreement constitutes, and each of the
Selling Stockholder Documents when so executed and delivered will constitute,
legal, valid and binding obligations of such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The execution and
delivery of this Agreement and each of the Selling Stockholder Documents and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all required limited partnership action on the part of the Selling
Stockholders.
2.2 Ownership and Transfer of Shares. Such Selling Stockholder is the
record and beneficial owner of the Shares indicated as being owned by such
Selling Stockholder on Schedule 1.1. Other than as set forth in the legends on
the certificates for the Shares, such Selling Stockholder has good and
marketable title to such Shares, free and clear of any and all options, calls,
contracts, commitments, demands, liens, charges, security interests, equities,
claims, pledges or encumbrances whatsoever ("Liens"). Such Selling Stockholder
has the full, absolute and entire power, legal right and authority to sell,
transfer, assign and deliver such Shares as provided in this Agreement, and,
upon delivery of such Shares and payment therefor pursuant hereto, such Shares
will be owned of record and beneficially by the Purchaser and good and
marketable title to such Shares, free and clear of all Liens, will pass to the
Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Selling Stockholders
that:
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3.1 Authorization of Agreement. The Purchaser has full all requisite
power and authority to execute and deliver this Agreement and each other
agreement, document, instrument or certificate contemplated by this Agreement or
to be executed by the Purchaser in connection with the consummation of the
transactions contemplated hereby and thereby (the "Purchaser Documents"), and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by the Purchaser of this Agreement and each Purchaser
Document has been duly authorized by all necessary corporate action on behalf of
the Purchaser. This Agreement has been, and each Purchaser Document will be at
or prior to the Closing, duly executed and delivered by the Purchaser and
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto) this Agreement constitutes, and each Purchaser Document when
so executed and delivered will constitute, legal, valid and binding obligations
of the Purchaser, enforceable against the Purchaser in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
3.2 Investment Intention. The Purchaser is acquiring the Shares for its
own accounts, for investment purposes only and not with a view to the
distribution (as such term is used in Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act")) thereof in violation of applicable
securities laws; provided, however, that the Purchaser shall at all times retain
control over the disposition of its assets. Purchaser understands that the
Shares have not been registered under the Securities Act and cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available.
3.3 Sophistication. The Purchaser is an "Accredited Investor" (as such
term is defined in Rule 501 of Regulation D of the Securities Act). The
financial situation of the Purchaser is such that it can afford to bear the
economic risk of holding the unregistered Shares for an indefinite period of
time and the Purchaser can afford to suffer the complete loss of its investment
in the Shares. The Purchaser is a sophisticated financial buyer in the business
of assessing and assuming investment risks with respect to securities, including
securities such as the Shares. The Purchaser is aware of the Company's business
affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
Shares.
ARTICLE IV
MISCELLANEOUS
4.1 Expenses. The Selling Stockholders and the Purchaser shall each bear
their own expenses incurred in connection with the negotiation and execution of
this Agreement and each other agreement, document and instrument contemplated by
this Agreement and the consummation of the transactions contemplated hereby and
thereby.
4.2 Entire Agreement and Amendments. This Agreement (including any
schedule or annex hereto) represents the entire understanding and agreement
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between the parties hereto with respect to the subject matter hereof and can be
amended only by written instrument making specific reference to this Agreement
signed by the party against whom enforcement of any such amendment or waiver is
sought.
4.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
4.4 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
The Selling Stockholders: c/o Summit Partners
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx Xxxx
with a copy (which shall
not constitute notice) to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxx
The Purchaser: ASA International Ltd.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxxx
with a copy (which shall
not constitute notice) to: Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx X. Xxxxxx
4.5 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
4.6 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. No assignment of this Agreement or of any rights or
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obligations hereunder may be made by either the Selling Stockholders or the
Purchaser (by operation of law or otherwise) without the prior written consent
of the other parties hereto.
4.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
4.8 Post-Closing Actions. The Purchaser and the Selling Stockholders
acknowledge that the certificates to be delivered at Closing representing the
Shares do not reflect a one-for-seven stock split of the Company's Common Stock
effective January 15, 2003. Additionally, following the Closing, the Purchaser
agrees to use commercially reasonable efforts to cause to be delivered to the
Selling Stockholders reasonably promptly certificates representing 884 shares of
Common Stock in the name of Summit Investors III, L.P. and 16,116 shares of
Common Stock in the name of Summit Ventures IV, L.P., such shares being the
number of shares represented by the certificates delivered at Closing that are
not being purchased by the Purchaser hereunder. The Selling Stockholders agree
to cooperate with the Purchaser in connection with such delivery of stock
certificates to the Selling Stockholders.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
PURCHASER:
ASA INTERNATIONAL LTD.
By:/s/Xxxxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxxxx X. XxXxxxxx
Title: Vice President and Treasurer
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SELLING STOCKHOLDERS:
SUMMIT VENTURES IV, L.P.
By: Summit Partners IV, L.P.
Its General Partner
By: Stamps, Xxxxxxx & Co. IV
Its General Partner
By: /s/Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
SUMMIT INVESTORS III, L.P.
By: /s/Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
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SCHEDULE 1.1
Selling Stockholders Shares to be sold Net Sale Proceeds
-------------------- ----------------- -----------------
Summit Ventures IV, L.P. 213,879 $641,637
Summit Investors III, L.P. 11,746 $35,238
Total: 225,625 $676,875
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