EXHIBIT 10.10
STOCK PURCHASE AGREEMENT
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AGREEMENT dated as of September 10, 1999 by and among PartMiner, Inc.,
f/k/a Dast Corporation, d/b/a Microcom Technologies, a New York corporation (the
"Company"), Elsevier Realty Information, Inc., a Delaware corporation (the
"Purchaser"), and Xxxxxx Xxxxxxxxx (the "Stockholder").
Introduction
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Purchaser wishes to purchase an aggregate of 69,459 shares of the Company's
common stock, $.01 par value per share (the "Common Stock"), and the Company and
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Stockholder each wish to sell shares of the Common Stock to Purchaser.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF
COMMON STOCK; PURCHASE PRICE; CLOSING
Section 1.01. Purchase and Sale of Common Stock. In reliance upon the
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representations and warranties contained herein, and subject to the terms and
conditions hereof, the Company agrees to issue and sell to Purchaser, and the
Stockholder agrees to sell to Purchaser, and Purchaser agrees to purchase from
the Company and the Stockholder, respectively, the number of shares of Common
Stock indicated on Schedule 1.01 hereto.
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Section 1.02. Purchase Price. The aggregate purchase price for the Common
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Stock shall be $15,000,000 (the "Purchase Price"), $10,000,000 to be paid to the
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Company and $5,000,000 to be paid to Stockholder, each sum payable by wire
transfer in immediately available funds to an account designated by each of the
Company and the Stockholder. The Purchase Price shall be payable at the Closing
(as hereinafter defined).
Section 1.03. Closing. The purchase and sale of the Common Stock shall
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take place at a closing (the "Closing") to be held at the offices of Purchaser
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at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or such other place as is
agreed to by the parties, on September 9, 1999, or if the conditions to Closing
specified herein are not then satisfied or waived, such date which is five (5)
business days after the satisfaction or waiver of such conditions (the "Closing
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Date").
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Section 1.04. Purchase Price Adjustment. In the event that the Company
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completes a private financing within ninety (90) days of the Closing at a
valuation of the Company of less than $150 million, the Company will refund to
Purchaser $100,000 in cash for every $1,000,000 by which $150 million exceeds
the valuation of the Company used for the purposes of such financing
(appropriately adjusted for any valuation which is not equal to a multiple of
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$1,000,000). The foregoing refund will be paid to Purchaser within ten (10)
days of the closing of such financing by wire transfer to an account designated
by Purchaser. In addition, for a period of twelve (12) months from the Closing
Date, the Company shall not complete an initial public offering of the Company's
securities pursuant to a registration statement under the Act (as defined below)
at a valuation of the Company of less than $110,000,000, without the consent of
Purchaser, which consent shall not be unreasonably withheld or delayed.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that the information
set forth in this Article II is true and correct as of the date hereof and will
be true and correct as of the Closing.
Section 2.01. Organization and Standing. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of New York. The Company has all necessary corporate power and authority
to own its properties and to carry on its business as currently conducted and as
proposed to be conducted. The Company is qualified to do business as a foreign
corporation in the States of California, New Jersey and Massachusetts, and is
not required to be qualified to do business as a foreign corporation in any
other jurisdiction where the failure to qualify would have a material adverse
effect on the Company.
Section 2.02. Subsidiaries. Schedule 2.02 sets forth a list of each
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Subsidiary (as hereinafter defined). Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
incorporation of such Subsidiary, as set forth on Schedule 2.02. Each
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Subsidiary has all necessary corporate power and authority to own its properties
and to carry on its business as currently conducted and as proposed to be
conducted. Except as set forth on Schedule 2.02, the Company has no
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Subsidiaries, holds no securities of any other entity, is not a party to any
joint venture or partnership and has made no investment in any third party. As
used herein, "Subsidiary" means any corporation or other entity a majority of
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the voting securities or economic interest of which is held by the Company or
any Subsidiary.
Section 2.03. Charter and By-Laws. The copies of the Certificate of
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Incorporation and the By-Laws of the Company furnished to the Purchaser are true
and correct in all respects.
Section 2.04. Validity and Enforceability. This Agreement is, and each of
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the other agreements and instruments of the Company contemplated hereby will be
the valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
bankruptcy and other laws of general application relating to creditors' rights
or general principals of equity.
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Section 2.05. Capital Stock.
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(a) The authorized capital stock of the Company consists of (x)
106,122 shares of preferred stock, $.01 par value per share (the "Senior
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Preferred Shares"), all of which is issued and outstanding and (y) 1,500,000
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shares of Common Stock of which 302,041 is issued and outstanding and 114,714
shares are reserved for future issuance upon the exercise of outstanding stock
options and the conversion of the Senior Preferred Shares.
(b) Schedule 2.05(b) hereto sets forth a complete and accurate list of
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all holders of the Company's outstanding capital stock, and all options,
warrants, convertible securities and other rights which may afford any person or
entity the right to acquire shares of any class of capital stock of the Company,
including, without limitation, any capital stock, option, warrant, convertible
security or other security or right which the Stockholder or the Company has a
current intention to issue or sell, in each case prior to and immediately after
the Closing.
(c) Schedule 2.05(c) hereto also sets forth the authorized capital
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stock of each Subsidiary, the number of shares of each class outstanding and the
record and beneficial holder thereof. No Subsidiary has issued or granted any
option, warrant, convertible security or other right or agreement which affords
any person or entity the right to purchase or otherwise acquire any shares of
its capital stock.
(d) Neither the Company nor any Subsidiary is subject to any
obligation (contingent or otherwise) to purchase or otherwise acquire or retire
any of its equity securities (other than in accordance with the Company's
Certificate of Incorporation or this Agreement). Except as set forth on
Schedule 2.05(d), no person has any right of first refusal or preemptive right
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in connection with the issuance of the Common Stock issuable upon exercise of
any stock options or the conversion of any Company indebtedness or with respect
to any future offer, sale or issuance of securities by the Company or its
shareholders, other than as set forth herein.
(e) The shares of Common Stock purchased by Purchaser hereunder, when
delivered, will be duly and validly issued and outstanding, fully paid and
nonassessable, and free to the holder thereof of any liens, encumbrances and
restrictions (other than under applicable securities laws or as set forth in any
stockholders agreements to be entered into by Purchaser in connection with the
consummation of the transactions contemplated by this Agreement).
(f) To the Company's knowledge, the offer and sale of all shares of
capital stock or other securities of the Company issued prior to the Closing
complied with or were exempt from all the registration provisions of federal and
state securities laws.
Section 2.06. Compliance With Law, etc. The Company and each Subsidiary
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are not, and the execution, delivery and performance by the Company of this
Agreement and the other agreements contemplated hereby, or the taking of any
other action contemplated by this Agreement or any of such other agreements will
not result in (i) violation of any term of the Company's Certificate of
Incorporation or Bylaws, the charter or bylaws of any Subsidiary, (ii)
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material violation of any material agreement, lease, license, mortgage,
instrument, arrangement, judgment, decree, or order, (iii) violation of any law,
statute, rule or governmental regulation to which the Company or any Subsidiary
is subject, which would result in a material adverse change in the condition
(financial or otherwise), business, properties or prospects of the Company and
its Subsidiaries, on a consolidated basis. The Company and each Subsidiary have
all governmental licenses, authorizations, registrations and permits
(collectively, "Permits") necessary for the conduct of their businesses, as
currently conducted and as proposed to be conducted, all of which licenses,
registrations and permits are listed on Schedule 2.06 hereto, except where the
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failure to have any such Permit could not result in a material adverse change in
the condition (financial or otherwise), business, properties or prospects of the
Company and its Subsidiaries, on a consolidated basis. All such licenses,
registrations and permits are in full force and effect and there is no
proceeding pending or threatened (or any basis therefor) to revoke or limit any
such license, registration or permit which would result in a material adverse
change in the condition (financial or otherwise), business, properties or
prospects of the Company and its Subsidiaries, on a consolidated basis.
Section 2.07. Financial Statements. The Company has delivered to the
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Purchaser (a) its consolidated balance sheet (the "Balance Sheet") as at June
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30, 1999 (the "Balance Sheet Date"), and the audited, consolidated statement of
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income, retained earnings and cash flows of the Company for the year then ended,
and (b) the audited, consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1998 and the related statement of income,
retained earnings and cash flows for the year then ended, audited by Ernst &
Young LLP. Such financial statements and the notes thereto are complete and
accurate in all material respects and fairly present the consolidated financial
condition of the Company and its Subsidiaries at the dates thereof and the
results of operations for the periods then ended, and were prepared in
accordance with the books and records of the Company and its Subsidiaries in
conformity with generally accepted accounting principles consistently applied
during the periods covered thereby.
Section 2.08. Material Adverse Changes. Except as set forth on Schedule
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2.08, since the Balance Sheet Date, the Company and each Subsidiary have
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conducted their business only in the usual and ordinary course and there has
been no (a) material adverse change in the condition (financial or otherwise),
business, properties or prospects of the Company and its Subsidiaries, on a
consolidated basis, (b) material increase in the compensation or commission rate
payable by the Company or any Subsidiaries to any officer, director, employee or
agent or bonus or similar payment (or commitment therefor) to any officer,
director, employee, agent or Affiliate (as hereinafter defined) thereof, (c)
dividend, distribution, redemption, recapitalization or other transaction
involving the Company's capital stock, except as otherwise expressly
contemplated by this Agreement, (d) material capital expenditure or commitment
therefor, or (e) material acquisition or disposition of assets or property or
commitment therefor.
Section 2.09. Assets.
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(a) Personal Property. Except as set forth on Schedule 2.09(a), the
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Company and each Subsidiary owns, or has a valid leasehold or license interest
in, all assets necessary for the conduct of its business as presently conducted
and as proposed to be conducted, in each case free and clear of all liens,
claims, security interests, charges and encumbrances. All of such assets are
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reflected on the Balance Sheet, except to the extent acquired after the Balance
Sheet Date. All material operating assets of the Company and the Subsidiaries
are in good operating condition and repair, normal wear and tear excepted.
(b) Real Property. The Company and each Subsidiary enjoys peaceful and
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quiet possession of their leased premises as shown on Schedule 2.09(b) and have
not received any notice asserting the existence of a default under any such
lease or indicating that the lessor thereunder has taken action or threatened
early termination of the lease.
Section 2.10. Litigation. Except as set forth on Schedule 2.10, no
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litigation, claims, actions, proceedings or investigations are pending, or to
the Company's knowledge, threatened against the Company or any Subsidiary.
Section 2.11. Tax Matters. The Company and each Subsidiary has correctly
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and timely prepared and filed all tax returns required to have been filed by it
with all appropriate federal, state and local governmental agencies and timely
paid all taxes owed by it. The charges, accruals and reserves on the books of
the Company and each Subsidiary in respect of taxes for all fiscal periods are
adequate, and there are no unpaid assessments of the Company or any Subsidiary
nor any basis for the assessment of any additional taxes, penalties or interest
for any fiscal period or audit by any federal, state or local taxing authority.
All taxes and other assessments and levies which the Company or any Subsidiary
is required to withhold or to collect for payment have been duly withheld and
collected and paid to the proper governmental entity or third party. The
Company has furnished the Purchaser with true and correct copies of all of its
tax returns, including any amendments, for all open years. There are no tax
liens or claims pending, or to the Company's knowledge, threatened against the
Company, or any Subsidiary, or any of their respective assets or property.
There are no outstanding tax sharing agreements or other such arrangements
between the Company or any Subsidiary and any other corporation or entity (other
than between the Company and its Subsidiaries). The tax basis of the assets of
the Company by category, including the classification of such assets as being
depreciable or amortizable, as reflected in its tax returns, is true and correct
in all material respects. The Company does not have a current election pursuant
to Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code") to
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be taxed as an S corporation. Neither the Company, any Subsidiary nor the
Stockholder has ever filed a consent pursuant to Section 341(f) of the Code
relating to collapsible corporations.
Section 2.12. Material Contracts. Schedule 2.12 is a complete and
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accurate list of all of the following kinds of contracts, agreements and
arrangements (whether written or unwritten) of the Company or any Subsidiary:
(a) contracts with any employee, officer, director or stockholder, or
any known relative or Affiliate (which term is used in this Agreement as defined
in the Rules promulgated under the Securities Act of 1933, as amended (the
"Act")) thereof;
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(b) licenses, leases, contracts and other arrangements with respect to
any property of the Company or any Subsidiary having a value or resulting in (or
required to
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generate) revenues to or expenses of the Company or its Subsidiaries of $100,000
or more, including without limitation, all real estate leases, and licenses
relating to the use of Intellectual Property (as defined in Section 2.21);
(c) agreements, contracts or instruments relating to the borrowing of
money, the capital lease or purchase on an installment basis of any asset or the
guarantee of any of the foregoing involving more than $75,000;
(d) contracts with respect to which the Company or any Subsidiary has
any liability or obligation, contingent or otherwise, or which may otherwise
have a continuing effect for one year or more after the date of this Agreement,
involving more than $75,000;
(e) contracts which place any material limitation on the method of
conducting or scope of the business of the Company or any Subsidiary; and
(f) any other contract which would be required to be disclosed as an
exhibit to a Registration Statement on Form S-1 under the Act filed by the
Company.
The Company has furnished to the Purchaser copies of all such contracts
(including all amendments and modifications thereto), or written descriptions
thereof, in the case of oral contracts, and each such contract (or written
description) sets forth the entire (or material terms in the case of an
unwritten agreement) agreement and understanding between the Company or a
Subsidiary and the other parties thereto. Each such contract is valid, binding
and in full force and effect, and there is no event which has occurred or
exists, which constitutes or which, with notice, the happening of any event
and/or the passage of time, would constitute a default or breach by the Company
or a Subsidiary under any such contract or would cause the acceleration of any
obligation of any party thereto or give rise to any right of any other party of
termination or cancellation thereof. Neither the Company nor the Stockholder
has any reason to believe that the parties to such contracts will not fulfill
their obligations thereunder in all material respects.
Section 2.13. Employees and Compensation. Schedule 2.13 sets forth a
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complete and accurate list of (a) all employment and consulting contracts,
arrangements or plans with any employee of or consultant to the Company or any
Subsidiary and (b) all employees of and consultants to the Company or any
Subsidiary, with 1998 compensation in excess of $100,000, showing date of hire,
hourly rate or salary or other basis of compensation and other benefits accrued
as of a recent date, each increase and bonus granted since January 1, 1998, and
job function of salaried employees. None of the employees of the Company or any
Subsidiary is represented by a union, and there is no labor strike, dispute,
slowdown, stoppage, organizational effort, dispute or proceeding by or with any
employee or former employee of the Company or any Subsidiary or any labor union
pending or, to the knowledge of the Company, threatened against the Company or
any Subsidiary.
Section 2.14. Customers and Suppliers. Schedule 2.14 sets forth a list
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of all customers of the Company or any Subsidiary which accounted for at least
$500,000 of gross sales by the Company or each Subsidiary during the fiscal year
ended December 31, 1998. To the
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Company's knowledge, the Company's and each Subsidiary's relationships with such
customers and with its material suppliers are good commercial working
relationships. Except as set forth on Schedule 2.14, since December 31, 1997, no
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supplier representing more than $500,000 of annualized purchases by the Company
or any Subsidiary (in the case of a supplier) has terminated or, to the
Company's knowledge, threatened to terminate, its relationship with the Company
or any Subsidiary, or has decreased materially or threatened to decrease or
limit materially the services, supplies or materials supplied to or purchased
from the Company or any Subsidiary.
Section 2.15. Environmental Matters. Except as provided on Schedule 2.15,
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(a) the ownership or use of the Company's and the Subsidiaries' premises and
assets, the occupancy and operation thereof, and the conduct of the Company's
and the Subsidiaries' business are in compliance in all material respects with
all applicable federal, state and local laws, ordinances, regulations, standards
and requirements relating to safety, health, pollution, environmental
protection, hazardous substances and related matters and (b) there is no
liability attaching to such premises or assets or the ownership, use or
operation thereof as a result of any hazardous substance that may have been
discharged on or released from such premises, or disposed of on-site or off-
site, or any other circumstances occurring prior to the Closing or existing as
of the Closing. For purposes of this Section, "hazardous substance" shall mean
oil or any other substance which is included within the definition of a
"hazardous substance," "pollutant," "toxic substance," "toxic waste," "hazardous
waste," "contaminant" or other words of similar import in any federal, state or
local environmental law, ordinance or regulation.
Section 2.16. Insurance. Schedule 2.16 lists all insurance policies
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maintained by the Company or any Subsidiary, all of which are valid and in full
force. All premiums due to date under such policies have been paid, and no
default exists thereunder. To the Company's knowledge, the insurance listed on
Schedule 2.16 is in amounts adequate and appropriate for the business, and to
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avoid the operation of any coinsurance provision. Neither the Company nor any
Subsidiary has received any notice of any proposed material increase in the
premiums payable for coverage, or proposed reduction in the scope (or
discontinuance entirely) of coverage, under any of such insurance policies.
Section 2.17. Employee Benefit Plans.
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(a) Schedule 2.17 sets forth all employee benefit plans, agreements,
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commitments, practices or arrangements of any type (including, but not limited
to, plans described in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") maintained by the Company or any Subsidiary
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for the benefit of current or former employees or directors of the Company or
any Subsidiary, or with respect to which the Company or any Subsidiary has a
liability, whether direct or indirect, actual or contingent (including, but not
limited to, liabilities arising from affiliation under Section 414(b), (c), (m)
or (o) of the Code or Section 4001 of ERISA) (collectively, the "Benefit
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Plans"). There are no material benefit plans, agreements, commitments,
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practices or arrangements of any type providing benefits to employees or
directors of the Company or any Subsidiary, other than the Benefit Plans.
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(b) With respect to each Benefit Plan, the Company has delivered to
the Purchaser true and complete copies of: (i) any and all plan texts and
agreements; (ii) any and all material communications to employees (including all
summary plan descriptions and material modifications thereto); (iii) the two
most recent annual reports, if applicable; (iv) the most recent annual and
periodic accounting of plan assets, if applicable; and (v) the most recent
determination letter received from the Internal Revenue Service (the "Service"),
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if applicable.
(c) With respect to each Benefit Plan: (i) if intended to qualify
under Section 401(a) of the Code, such plan so qualifies, and its trust is
exempt from taxation under Section 501(a) of the Code; (ii) such plan has been
administered and enforced in accordance with its terms and all applicable laws
in all material respects; (iii) no breach of fiduciary duty by the Company has
occurred with respect to which the Company, any Subsidiary or any Benefit Plan
may be liable or otherwise damaged in any material respect; (iv) no material
disputes are pending or threatened; (v) no "prohibited transaction" (within the
meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has
occurred with respect to which the Company or any Benefit Plan may be liable or
otherwise damaged in any material respect; (vi) all contributions, premiums, and
other payment obligations have been accrued on the financial statements of the
Company in accordance with generally accepted accounting principles, and, to the
extent due, have been made on a timely basis, in all material respects; (vii)
all contributions made or required to be made under such plan meet the
requirements for deductibility under the Code; (viii) the Company has expressly
reserved in itself the right to amend, modify or terminate such plan, or any
portion of it, without liability to itself; (ix) no such plan requires the
Company to continue to employ any employee or director.
(d) With respect to each Benefit Plan which provides welfare benefits
of the type described in Section 3(1) of ERISA: no such plan provides medical or
death benefits with respect to current or former employees or directors of the
Company beyond their termination of employment, other than coverage mandated by
Sections 601-608 of ERISA and 4980B(f) of the Code, (ii) each such plan has been
administered in compliance with Sections 601-608 of ERISA and 4980B(f) of the
Code; and (iii) no such plan has reserves, assets, surpluses or prepaid
premiums.
Section 2.18. Registration Rights. Except as set forth on Schedule 2.18,
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the Company is not a party to any agreement or commitment which obligates the
Company to register under the Act any of its outstanding securities or any of
its securities which may hereafter be issued.
Section 2.19. Offering. Subject to the accuracy of the Purchaser's
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representations in Article IV of this Agreement, the offer, issuance and sale of
the Common Stock constitutes, and will constitute, transactions exempt from the
registration requirements of Section 5 of the Act and the Company has obtained
all qualifications, permits, and other consents, if any, required by all
applicable state securities laws.
Section 2.20. Affiliate Transactions. Except as set forth on Schedule
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2.20, neither the Company nor any Subsidiary is a party to any material contract
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or arrangement, either directly or indirectly, with any of the officers,
directors or stockholders of the Company or any Subsidiary,
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their known relatives or Affiliates.
Section 2.21. Intellectual Property. Schedule 2.21 sets forth all
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patents, trademarks, service marks, trade names, copyrights, domain names,
franchises and licenses, all royalties and license agreements, all applications
therefor, and all other rights with respect to the foregoing owned or used by
the Company or any Subsidiary ("Intellectual Property"). The intellectual
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property and rights set forth on Schedule 2.21 include all of the foregoing
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necessary for the operation of the Company's and the Subsidiaries' business as
now conducted and as proposed to be conducted. To the Company's knowledge, the
Company's and each Subsidiary's ownership and use of the foregoing does not
infringe or conflict with the rights of others; neither the Company nor any
Subsidiary is or will be obligated to make any royalty, fee or other payments in
connection with its ownership or use of any patent, trademark, trade name,
copyright or other intangible asset in connection with the conduct of its
business as now conducted and as proposed to be conducted, except as described
on Schedule 2.21. Except as set forth on Schedule 2.21, neither the Company nor
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any Subsidiary has been notified of any claim by any person or entity that the
Company or any Subsidiary is violating any trademark, service xxxx, trade name,
patent or copyright, or other intangible asset or right owned by any other
person or entity or that is using any name that is confusingly similar to that
of any other person or entity, and, to the Company's knowledge, there is no
basis for any such claim.
Section 2.22. Proprietary Information of Third Parties. Except as set
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forth on Schedule 2.22, no third party has claimed or, to the Company's
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knowledge, has reason to claim that any person employed by or affiliated with
the Company or any Subsidiary has (a) violated or, to the Company's knowledge,
may be violating any of the terms or conditions of such person's employment,
non-competition or non-disclosure agreement with such third party, (b) disclosed
or, to the Company's knowledge, may be disclosing or utilized or, to the
Company's knowledge, may be utilizing any trade secret or proprietary
information or documentation of such third party or (c) interfered or, to the
Company's knowledge, may be interfering in the employment relationship between
such third party and any of its employees. To the Company's knowledge, no
person or entity employed by or affiliated with the Company or any Subsidiary
has employed or proposes to employ any trade secret or any information or
documentation proprietary to any other person or entity in connection with the
business of the Company or any Subsidiary.
Section 2.23. Brokers. Except as set forth on Schedule 2.23, no finder,
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broker, agent, financial advisor or other intermediary has acted, directly or
indirectly, on behalf of the Company or any Subsidiary in connection with the
offering of the Common Stock or the negotiation or consummation of this
Agreement or any of the transactions contemplated hereby, or is entitled to any
fee, payment, commission or other consideration with respect thereto.
Section 2.24. Absence of Material Undisclosed Liabilities. Except for (a)
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any and all liabilities, accounts payable and accrued expenses reflected on the
Balance Sheet or incurred in the ordinary course of business since the Balance
Sheet Date, and (b) obligations of future performance under contracts set forth
on a Schedule hereto and other contracts entered into in the ordinary course of
business which are not required to be listed on a Schedule hereto, as of the
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Closing Date, the Company will have no material liabilities or obligations,
whether absolute, accrued, contingent or otherwise and whether due or to become
due.
Section 2.25. Year 2000 Compliance. Except as otherwise disclosed on
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Schedule 2.25, the Company, its Subsidiaries and its Management Systems and
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Production and Distribution Systems are or will be Year 2000 Compliant on or
before December 31, 1999. As used in this Section the following terms have the
following meanings:
"Year 2000 Compliant" means, with respect to any person, that neither the
year change from 1999 to 2000 (the arrival of the date January 1, 2000) nor leap
year dates thereafter will (i) impair such person's ability to meet its
obligations to third parties or (ii) result in errors or corruption in
processing internally generated data or otherwise have a material adverse effect
on the operations or functionality of such person or its Management Systems or
Production and Distribution Systems, all of which will continue to operate as
intended prior to, during and after January 1, 2000.
"Management Systems" include, but are not limited to, all computer hardware
(including integrated circuit/chip and firmware) and software applications that
a person uses for managing and operating its business, including without
limitation, functions such as accounting and billing, inventory tracking and
maintenance and vendor and supplier sourcing.
"Production and Distribution Systems" include, but are not limited to, all
computer hardware (including integrated circuit/chip and firmware) and software
applications, and all automated or electronic equipment, controls and other
systems used by a person in its production or distribution process, from the
point of input or raw material to final products and merchandise offered for
sale and distributed to customers.
Section 2.26. Required Consents. Except for the consents specified on
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Schedule 2.26, no consent, order, authorization, approval, declaration or
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filing, including, without limitation, any consent, approval or authorization of
or declaration or filing with any governmental authority or any party to a
material contract, is required on the part of the Company or any Subsidiary (and
no notices to or consents or other approvals from any of the lessors or any of
such lessors' mortgagees under any of the real property leases are required) for
or in connection with the execution, delivery or performance of this Agreement
and each of the other agreements contemplated hereby or the conduct of the
business by the Company or any Subsidiary after the Closing, or to prevent a
material default. The Company has no reason to believe that all of the required
consents and approvals not obtained as of the Closing will not be obtained
within six (6) months of Closing without material cost to the Company. Subject
to obtaining the consents specified on Schedule 2.26, the execution, delivery
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and performance of this Agreement and the other instruments and agreements
contemplated hereby by the Company will not result in any material violation of,
be in material conflict with or constitute a material default under, any law,
statute, regulation, ordinance, contract, agreement, instrument, judgment,
decree or order to which the Company is a party or by which the Company is
bound.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to the Purchaser that the information
set forth in this Article III is true and correct as of the date hereof and will
be true and correct as of the Closing.
Section 3.01. Ownership of Stock. Stockholder is the record and
------------ ------------------
beneficial owner of the number of shares of Common Stock listed in the preamble
to this Agreement, free and clear of all liens, encumbrances, restrictions and
claims of every kind, excluding the Stockholders Agreement, dated March 16,
1999, by and among the Company, Boston Ventures Limited Partnership V, Seacoast
Capital Partners Limited Partnership, Xxxxx New Ventures Limited and
Stockholder.
Section 3.02. Authority. Stockholder has full legal right, power and
------------ ---------
authority to make, execute, deliver and perform this Agreement and to sell,
assign, transfer and convey the shares of Common Stock owned by the Stockholder
pursuant to this Agreement. This Agreement has been duly and validly executed
and delivered by the Stockholder and, assuming due execution and delivery by the
Purchaser, constitutes a legal, valid and binding agreement of the Stockholder
enforceable against the Stockholder in accordance with its terms, except to the
extent that its enforceability may be subject to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company that that the
information set forth in this Article IV is true and correct as of the date
hereof and will be true and correct as of the Closing:
Section 4.01. Investment Intent. The Common Stock to be acquired by it
------------ -----------------
is being acquired solely for its own account, for investment purposes only and,
with no present intention of distributing, selling, transferring or otherwise
disposing of it, and the Purchaser has no present plans to enter into any such
contract, undertaking, agreement or arrangement with respect thereto.
Section 4.02. Economic Risk; Sophistication. The Purchaser is able to
------------ -----------------------------
bear the economic risk of an investment in the Common Stock to be acquired by
it, can afford to sustain a total loss on such investment and has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of the proposed investment.
Section 4.03. Authority. The Purchaser is duly organized, validly
------------ ---------
existing and in good standing under the laws of the State of Massachusetts. The
Purchaser has all requisite power and
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authority to enter into this Agreement and perform its obligations hereunder,
and this Agreement constitutes the valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms.
Section 4.04. Brokers. No finder, broker, agent, financial advisor or
------------ -------
other intermediary has acted on behalf of the Purchaser in connection with the
negotiation or consummation of this Agreement or any of the transactions
contemplated hereby, and no such person is entitled to any fee, payment,
commission or other consideration with respect thereto as a result of any
arrangement made by the Purchaser.
Section 4.05. Limited Liquidity. The Purchaser understands that the
------------ -----------------
Common Stock to be acquired by it may not be sold, transferred or otherwise
disposed of without registration under the Act and any state securities laws, or
an exemption therefrom (supported by an opinion of counsel satisfactory to the
Company), and that in the absence of an effective registration statement
covering such securities or an available exemption from registration, such
securities may be required to be held indefinitely. The Purchaser is aware that
the Common Stock to be acquired by it may not be sold pursuant to Rule 144
promulgated under the Act, unless all of the conditions of that Rule are met and
that among the conditions for use of Rule 144 is the availability of current
information to the public about the Company and that the Company has no
obligation to make such information available. The Purchaser represents that,
in the absence of an effective registration statement covering the Common Stock,
they shall sell, transfer or otherwise dispose of such securities only in a
manner consistent with the representations set forth herein, and the
certificates for the Common Stock shall bear a legend to such effect.
Section 4.06. Accredited Investor. Purchaser is an "accredited investor"
------------ -------------------
as defined in Regulation D under the Act, and, together with its financial
advisors, if any, has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks involved in
purchasing the Common Stock.
Section 4.07. Purchaser Information. All of the information furnished by
------------ ---------------------
Purchaser in response to the Company's questionnaire is true and complete in all
material respects.
ARTICLE V
CLOSING CONDITIONS
Section 5.01. Conditions to Closing. Purchaser's obligation to purchase
------------ ---------------------
the Common Stock to be acquired by it at the Closing is subject to the
satisfaction, as of the Closing Date, of the following conditions:
(a) Stockholders Agreement. A Stockholders Agreement substantially in the
----------------------
form of Exhibit 5.01 (a) attached hereto shall have been executed by the
----------------
parties named therein.
(b) Registration Rights Agreement. A Registration Rights Agreement
-----------------------------
substantially in the form of Exhibit 5.01 (b) attached hereto shall have been
----------------
executed by the parties named therein.
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(c) Joint Marketing Agreement. The Company and Cahners Business
-------------------------
Information shall agree to and execute a Joint Marketing Agreement substantially
in the form of Exhibit 5.01(c) attached hereto.
---------------
(d) Representations and Warranties. The representations and warranties
------------------------------
contained in Articles II, III, and IV shall be true and correct in all material
respects on and as of the Closing Date as though made on and as of such date
(except representations and warranties made as of a specified date, which shall
be true as of such date), except that the representations and warranties
contained in Sections 2.05 and 3.01 will be true and complete in all respects on
and as of the Closing Date.
(e) Certificate; Documents. The Purchaser shall have received copies of
----------------------
each of the following, certified by the Secretary of the Company: (i) the
Company's Certificate of Incorporation, (ii) a certificate of the Secretary of
State of the State of New York as to the legal existence and good standing of
the Company; (iii) the Company's Bylaws; (iv) the resolutions adopted by the
directors of the Company authorizing the execution, delivery and performance of
this Agreement and the other agreements contemplated hereby, the issuance, sale
and delivery of the Common Stock hereunder; and (v) evidence of the
qualification of the Company as a foreign corporation in the States of
California, Massachusetts and New Jersey. The Purchaser shall also have received
such other certificates and documents as the Purchaser shall reasonably request.
(f) Legal Opinion. The Purchaser shall have received a legal opinion in
-------------
form and substance satisfactory to the Purchaser from Xxxxx & Xxxxxx LLP,
counsel for the Company, substantially in the form set forth in Exhibit 5.01(f)
---------------
hereof.
(g) Stock Certificates. The Purchaser shall have received one or more
------------------
duly executed certificates representing the Common Stock to be acquired by it.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Notices. All notices, demands or other communications
------------ -------
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person, or by nationally recognized overnight courier services, or
otherwise actually delivered:
(a) if to Stockholder, to:
PartMiner, Inc.
000 Xxxx Xxxxxx Xxxxx, 00/xx/ xxxxx
Xxx Xxxx, X.X. 00000
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
if to the Company, to:
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PartMiner, Inc.
000 Xxxx Xxxxxx Xxxxx, 00/xx/ xxxxx
Xxx Xxxx, X.X. 00000
Xxxxxxxxx: Xxxxxxx X. Xxxxxx, Esq.
Vice President and General Counsel
with a copy to:
Xxxxx & Xxxxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxx, III, Esq.
(b) if to Purchaser, to:
Elsevier Realty Information, Inc.
c/o Cahners Business Information
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer and Chief Legal Counsel
with a copy to:
Cahners Business Information
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
or at such other address as may have been furnished by such person in writing to
the other parties. Any such notice, demand or other communication shall be
deemed to have been given on the date actually delivered or as of the date
deposited with the courier, as the case may be.
Section 6.02. Severability and Governing Law. If any provision of this
------------ ------------------------------
Agreement is rendered void, invalid or unenforceable by any court of law for any
reason, such invalidity or unenforceability shall not void or render invalid or
unenforceable any other provision of this Agreement. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to its conflicts of laws provisions.
Section 6.03. Amendments, Etc. This Agreement may be changed, waived or
------------ ---------------
terminated only with the written consent of the Stockholder, the Company and the
Purchaser.
Section 6.04. Survival. All agreements, representations and warranties
------------ --------
contained herein and in any certificate, documentation or agreement delivered
pursuant hereto shall survive the execution and delivery of this Agreement, any
investigation at any time made, and the sale and
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purchase of the Common Stock until two (2) years from the Closing or if earlier,
until the Closing of the initial public offering of the Company's securities.
Section 6.05. The Company agrees to pay (a) the reasonable fees, up to
------------
$12,500, and expenses of counsel to Purchaser incurred with respect to any
amendments or waivers required by the Company (whether or not they become
effective) under or with respect to the Company's Certificate of Incorporation,
Bylaws, this Agreement or any agreement or instrument contemplated hereby and
(b) in the event of a proven material breach or default of the Company's
obligations to Purchaser under the Certificate of Incorporation, the Bylaws,
this Agreement or any agreement or instrument contemplated hereby, the
reasonable fees and expenses of Purchaser incurred in connection with the
enforcement of the rights granted under any of the foregoing.
Section 6.06. Successors and Assigns. This Agreement, and all provisions
------------ ----------------------
hereof, shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto, provided that, the Purchaser may
not assign its right to purchase the Common Stock without the consent of the
Company in its sole discretion.
Section 6.07. Entire Agreement. This Agreement, the attached exhibits
------------ ----------------
and schedules and the other agreements, documents and instruments contemplated
hereby contain the entire understanding of the parties, and there are no further
or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof unless expressly referred to
herein.
Section 6.08. Counterparts. This Agreement may be executed in one or more
------------ ------------
counterparts by facsimile signature, and with counterpart signature pages, each
of which shall be an original, and all of which together shall constitute one
and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as a sealed instrument as of the date first above written.
PARTMINER, INC., f/k/a Dast Corporation
/s/ Xxxxxx Xxxxxxxxx
By:______________________________________
(Title)
ELSEVIER REALTY INFORMATION, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By:______________________________________
(Title)
/s/ Xxxxxx Xxxxxxxxx
_________________________________________
Xxxxxx Xxxxxxxxx
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