Exhibit 99.6
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated September 8, 2004 (this
"Agreement"), is between Deloitte Consulting L.P., a Delaware limited
partnership ("Seller"), and Xxxxxx X. Xxxxxxx, an individual residing in the
State of Minnesota ("Purchaser").
RECITALS:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
12,500,000 common shares without par value (the "Shares") of Infowave Software,
Inc., a corporation organized under the laws of Canada (the "Company"), for the
consideration provided herein, on and subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
ARTICLE I
THE SHARES
SECTION 1.1 Purchase and Sale. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, the Shares, for consideration
of US$480,000 in the aggregate (the "Purchase Price"), representing a purchase
price of US$0.0384 per share.
SECTION 1.2 Closing. Promptly following the execution and delivery
of this Agreement, and contemporaneously with payment by Purchaser of the
Purchase Price (in immediately available funds by wire transfer), Seller shall
deliver to Purchaser the Shares duly endorsed for transfer in such name as
Purchaser shall instruct together with such other documents or instruments as
shall be necessary or advisable to transfer the Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
SECTION 2.1 Title to Shares. Seller is the owner of all of the
Shares, free and clear of all liens, pledges, options, security interests,
claims, third party rights, charges, or any other restrictions or encumbrances
of any nature whatsoever ("Encumbrances"), and will transfer to Purchaser good
and marketable title to the Shares, free and clear of any Encumbrance other than
those placed thereon by Purchaser and restrictions upon transferability of the
Shares arising under the Securities Act of 1933, as amended (the "Securities
Act") and applicable state and Canadian provincial securities laws.
SECTION 2.2 Validity. Seller has the limited partnership power,
capacity and authority to enter into this Agreement and to sell the Shares in
accordance with the terms hereof and to perform Seller's obligations hereunder.
This Agreement has 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, except as the
enforceability thereof may be limited (i) by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and (ii) by general equitable principles regardless of whether
considered in a proceeding in equity or at law. The sale of the Shares will not
be subject to any rights of first refusal or similar rights.
SECTION 2.3 No Violation; Consents. (a) None of Seller's execution
and delivery of this Agreement, the consummation of the transactions
contemplated herein or compliance by Seller with any of the provisions hereof
will (i) result in the creation of any Encumbrance upon the Shares under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, agreement, or any other instrument or legal or other
obligation to which Seller is a party or by which Seller or the Shares may be
bound or affected or (ii) violate any order, writ, injunction, decree, statute,
sale or regulation applicable to Seller or the Shares.
(b) Seller has obtained any and all consents, permits and waivers
necessary or appropriate for the consummation of the transactions contemplated
by this Agreement.
SECTION 2.4 Securities Law. Seller acquired the Shares on January 7
and April 2, 2004, for investment for its own account, not as a nominee or agent
for any other person or entity, and without a view to the distribution or resale
of such shares or any interest therein in violation of the Securities Act.
SECTION 2.5 Actions Pending. There is no action, suit,
investigation, claim, proceeding or governmental inquiry pending, or, to the
knowledge of Seller, threatened against or affecting Seller or the Shares before
any court, arbitrator or administrative or governmental body that (i) seeks to
enjoin or otherwise prevent the sale and purchase of the Shares contemplated
hereby or (ii) otherwise relates to or involves the transactions contemplated
hereby. There are no writs, decrees, injunctions or orders of any court or
governmental or regulatory agency, authority or body outstanding against Seller
with respect to the Shares.
SECTION 2.6 No Other Agreement. Seller has no obligation, absolute
or contingent, to any other individual, corporation, partnership, trust, limited
liability company, association, joint venture or any similar entity to sell the
Shares.
SECTION 2.7 Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or person retained by Seller or its affiliates
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee in connection with any of the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
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SECTION 3.1 Validity. Purchaser has the power, capacity and
authority to enter into this Agreement and to purchase the Shares in accordance
with the terms hereof and to perform Purchaser's obligations hereunder. This
Agreement has been duly executed and delivered by Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, enforceable in accordance with
its terms except as the enforceability thereof may be limited (i) by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) by general equitable principles regardless
of whether considered in a proceeding in equity or at law.
SECTION 3.2 No Violation; Consents. (a) None of Purchaser's
execution and delivery of this Agreement, the consummation of the transactions
contemplated herein or compliance by Purchaser with any of the provisions hereof
will violate any order, writ, injunction, decree, statute, sale or regulation
applicable to Purchaser.
(b) Purchaser has obtained any and all consents, permits and waivers
necessary or appropriate for the consummation of the transactions contemplated
by this Agreement.
SECTION 3.3 Actions Pending. There is no action, suit,
investigation, claim, proceeding or governmental inquiry pending or, to the
knowledge of Purchaser, threatened against Purchaser before any court,
arbitrator or administrative or governmental body that (i) seeks to enjoin or
otherwise prevent the sale and purchase of the Shares contemplated hereby or
(ii) or otherwise relates to or involves the transactions contemplated hereby.
SECTION 3.4 Securities Law. Purchaser is acquiring the Shares for
investment for his own account, not as a nominee or agent for any other person
or entity, and without a view to the distribution or resale of such shares or
any interest therein in violation of the Securities Act.
SECTION 3.5 Accredited Investor Status. Purchaser (i) is an
accredited investor as that term is defined in Rule 501 under the Securities Act
and (ii) has such knowledge and experience in financial and business matters
that Purchaser is capable of evaluating the merits and risks of an investment in
the Shares. Purchaser is able to bear the risks associated with an investment in
the Shares including without limitation, the risks of losing the entire
investment.
SECTION 3.6 No Reliance on Seller. (a) Purchaser is a sophisticated
purchaser with respect to the Shares and a member of the board of directors of
the Company and, as such, has substantial and detailed information concerning
the Company, its business, financial condition, results of operations and
prospects, and has determined to purchase the Shares based on such information
as he deems appropriate. Purchaser has not relied on any information provided by
Seller with respect to the transactions contemplated by this Agreement.
Purchaser acknowledges and agrees that, except as expressly set forth in Article
II, Seller has made no representations or warranties whatsoever.
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(b) Purchaser has reviewed this Agreement with counsel, and with his
tax and business advisors, and is not relying upon Seller or any agent of Seller
for legal, tax or business advice, or any other advice with respect to the
advisability of his purchase of the Shares.
SECTION 3.7 Transferability. Purchaser has been advised by Seller
that the Shares have not been registered under the Securities Act, that the
Shares will be transferred on the basis of the statutory exemption under the
Securities Act and under similar exemptions under certain state securities laws,
that this transaction has not been reviewed by, passed on or submitted to any
Federal or state agency or self-regulatory organization where an exemption is
being relied upon, and that Seller's reliance thereon is based in part upon the
representations made by Purchaser in this Agreement. Purchaser acknowledges that
Purchaser has been informed by the Seller of, or is otherwise familiar with, the
nature of the limitations imposed by the Securities Act and the rules and
regulations thereunder on the transfer of the Shares and further understands
that applicable Canadian securities laws place certain limitations on the
transfer of the Shares pursuant to a "control distribution." In particular,
Purchaser agrees that no sale, assignment or transfer of the Shares shall be
valid or effective, and the Company shall not be required to give any effect to
such a sale, assignment or transfer, unless (i) the sale, assignment or transfer
of the Shares is registered under the Securities Act, it being understood that
the Shares are not currently registered for sale or (ii) such sale, assignment
or transfer of the Shares is exempt from registration under the Securities Act.
Purchaser further understands that an opinion of counsel and other documents may
be required to transfer the Shares. Purchaser acknowledges that the certificates
evidencing the Shares may bear the following or a substantially similar legend
or such other legend as may appear on the forms of the Shares and such other
legends as may be required by state blue sky laws:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF PURCHASER THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT, (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH THE
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS
AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES, AND, WITH
RESPECT TO SUBSECTION (C) OR (D), THE HOLDER HAS, PRIOR TO SUCH SALE,
FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING OR
OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS
CERTIFICATE MAY NOT CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS
ON STOCK EXCHANGES IN CANADA. PROVIDED THAT THE COMPANY IS A
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"FOREIGN ISSUER" WITHIN THE MEANING OF REGULATION S AT THE TIME OF THE
SALE, A NEW CERTIFICATE BEARING NO LEGEND MAY BE OBTAINED FROM
COMPUTERSHARE TRUST COMPANY OF CANADA, AS REGISTRAR AND TRANSFER AGENT,
UPON DELIVERY OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A
FORM SATISFACTORY TO COMPUTERSHARE TRUST COMPANY OF CANADA AND THE
COMPANY, TO THE EFFECT THAT SUCH SALE IS BEING MADE IN ACCORDANCE WITH
RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT."
SECTION 3.8 Blue Sky. Purchaser is a resident of the State of
Minnesota.
SECTION 3.9 Brokers or Finders. No agent, broker, investment banker,
financial advisor or other firm or person retained by Purchaser or his
affiliates is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Expenses. Each party hereto shall pay its own expenses
in connection with the transactions contemplated by this Agreement, whether or
not such transactions shall be consummated.
SECTION 4.2 Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and delivery of the certificates representing the
Shares and payment of the Purchase Price for one year following the date of this
Agreement.
SECTION 4.3 Indemnity. Each party will indemnify, save and hold
harmless the other and their respective directors, officers, partners,
principals and affiliates with respect to any cost, expense (including, without
limitation, reasonable fees and disbursements of course) liability or expense
arising from the breach of the representations or warranties hereunder by the
indemnifying party. The parties hereto agree that the indemnification provision
of this Section 4.3 provides the sole and exclusive remedy as to all losses
either may incur arising from or relating to the transactions contemplated by
this Agreement, and each party hereby waives, to the full extent they may do so,
any other rights or remedies that may arise under any applicable statute, rule
or regulation.
SECTION 4.4 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
SECTION 4.5 Waiver. Any of the terms or conditions of this Agreement
may be waived at any time and from time to time in writing by the party entitled
to the benefits thereof without affecting any other terms or conditions of this
Agreement.
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SECTION 4.6 Further Assurances. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to effectuate, evidence and reflect the
transactions described herein and contemplated hereby, and to carry into effect
the intents and purposes of this Agreement.
SECTION 4.7 Conflict Resolution. Each of the parties irrevocably
submits in any action, suit or proceeding arising out of this Agreement or any
of the transactions contemplated hereby to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and the
jurisdiction of any court of the State of New York located in the City of New
York. The parties hereto waive any and all objections to the laying of venue of
any such litigation in such jurisdiction and agree not to plead or claim in any
such litigation that such litigation has been brought in an inconvenient forum.
Each party irrevocably and unconditionally waives any right such party may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of or relating to this Agreement, or the transactions contemplated by this
Agreement.
SECTION 4.8 General. This Agreement (a) shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the internal laws of the State of New York without regard to any applicable
conflicts of law, (b) contains the entire agreement among Seller and Purchaser
with respect to the transactions that are the subject matter hereof and
supersedes in its entirety any prior agreements between Seller and Purchaser
with respect to the same with effect from the date of this Agreement, (c) may be
executed in two or more counterparts, all of which shall be considered one and
the same agreement and (d) is the result of the joint efforts of Seller and
Purchaser, and each provision hereof has been subject to the mutual
consultation, negotiation, and agreement of the parties and there shall be no
construction against any party based on any presumption of that party's
involvement in the drafting thereof. To the extent that any provision of this
Agreement which does not materially affect the intent of the parties hereto
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement as of the day and year first above written.
PURCHASER
/s Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
SELLER
DELOITTE CONSULTING L.P.
By: DELOITTE CONSULTING (HOLDING SUB) LLC,
its general partner
By: DELOITTE CONSULTING LLP,
its managing member
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Principal
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