COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of
October 1, 1999 by and among Net Value Holdings, Inc., a Delaware corporation
(the "Company"), and each of the purchasers whose names are set forth on Exhibit
A hereto (individually, a "Purchaser" and collectively, the "Purchasers").
BACKGROUND
1. Reference is made to the Series B Convertible Stock Purchase
Agreement (the "Preferred Agreement") dated as of September 17, 1999 among the
Company and the purchasers named therein.
2. Simultaneously with the closing of the transactions contemplated
hereby, the Purchasers are purchasing shares of the Series B Convertible
Preferred Stock, par value $.001 per share, of the Company at a closing (the
"Preferred Closing") pursuant to the Preferred Agreement and Xxxx X. Xxxxxxx
("Xx. Xxxxxxx"), the managing director of each of the Purchasers, is entering
into a consulting agreement (the "Consulting Agreement") with the Company.
The parties hereto agree as follows:
ARTICLE I.
Purchase and Sale of Common Stock
Section 1.1 Purchase and Sale of Stock. Upon the following terms and
conditions, the Company shall issue and sell to the Purchasers and each of the
Purchasers shall purchase from the Company, shares (the "Shares") of the
Company's Common Stock, par value $.001 per share (the "Common Stock") at a
purchase price of $1.00 per Share. The Company and the Purchasers are executing
and delivering this Agreement in accordance with and in reliance upon the
exemption from securities registration afforded by Rule 506 of Regulation D
("Regulation D") as promulgated by the United States Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act") or Section 4(2) of the Securities Act.
Section 1.2 Purchase Price, Execution and Closing. In consideration of
and in express reliance upon the representations, warranties, covenants, terms
and conditions of this Agreement, the Company agrees to issue and sell to the
Purchasers and the Purchasers, severally but not jointly, agree to purchase the
Shares set forth opposite their respective names on Exhibit A. The aggregate
purchase price of the Shares being acquired by each Purchaser is set forth
opposite such Purchaser's name on Exhibit A (each a "Purchase Price", and
collectively referred to as the "Purchase Prices"). The closing of the purchase
and sale of the Shares to be acquired by the Purchasers from the Company shall
take place at the offices of Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP,
(i) simultaneously with the Second Tranche Closing (as defined in the Preferred
Agreement ) or (ii) such other time and place or on such date as the Purchasers
and the Company may agree upon (the "Closing Date"), subject to the satisfaction
(or waiver) of the applicable
conditions set forth in Article IV hereof. On the Closing Date, each Purchaser
shall pay such Purchaser's Purchase Price by wire transfer to the Company, in
accordance with the Company's written wiring instructions, against delivery of
such Purchaser's Shares and the Company shall deliver such Shares against
delivery of such Purchase Price.
ARTICLE II
Representations and Warranties
Section 2.1 Representation and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchasers:
(a) Organization, Good Standing and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware.
(b) Authorization and Power. The Company has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue and sell the Shares in accordance with the terms hereof. The execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required. This Agreement has been duly executed and delivered by the Company.
This Agreement constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies or by other equitable principles of general application.
(c) Issuance of Shares. The Shares to be issued at the Closing
have been duly authorized by all necessary corporate action and, when paid for
or issued in accordance with the terms hereof, the Shares shall be validly
issued and outstanding, fully paid and nonassessable
(d) No Conflicts. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated herein do not (i) violate any provision of the
Company's Articles or Bylaws, (ii) conflict with, constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, (iii) create or impose a lien, charge or encumbrance on any property of
the Company under any agreement or any commitment to which the Company is a
party or by which the Company is bound or by which any of its respective
properties or assets are bound, or (iv) result in a violation of any law, rule
or regulation or any judgment or decree of any court or governmental agency
applicable to the Company or any of its subsidiaries or by which any property or
asset of the Company or any of its subsidiaries are bound or affected, except,
in all cases other than violations pursuant to clause (i) above, for such
conflicts, defaults, terminations, amendments, acceleration, cancellations and
violations as would
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not, individually or in the aggregate, have a material adverse effect on the
Company. The Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency in order for it to execute, deliver or perform any of its obligations
under this Agreement or issue and sell the Shares in accordance with the terms
hereof (other than any filings which may be required to be made by the Company
with the Commission or state securities administrators subsequent to the
Closing, and any registration statement which may be filed pursuant hereto);
provided that, for purposes of the representation made in this sentence, the
Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Purchasers herein.
Section 2.2 Representations and Warranties of the Purchasers. Each of
the Purchasers hereby makes the following representations and warranties to the
Company with respect solely to itself and not with respect to any other
Purchaser:
(a) Organization and Standing of the Purchasers. If the
Purchaser is an entity, such Purchaser is a corporation, limited liability
company or partnership duly incorporated or organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization.
(b) Authorization and Power. The Purchaser has the requisite
power and authority to enter into and perform this Agreement and to purchase the
Shares being sold to it hereunder. The execution, delivery and performance of
this Agreement, by such Purchaser and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate,
company or partnership action (if the Purchaser is an entity), and no further
consent or authorization of such Purchaser or its Board of Directors,
stockholders, members, managers or partners, as the case may be, is required.
This Agreement has been duly executed and delivered by the Purchasers. This
Agreement constitutes a valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, or similar laws
relating to, or affecting generally the enforcement of, creditor's rights,
remedies or by other equitable principles of general application.
(c) No Conflicts. The execution, delivery and performance of
this Agreement by such Purchaser, and the consummation by such Purchaser of the
transactions contemplated herein do not (i) violate any provision of such
Purchaser's charter documents, bylaws, partnership agreement, operating
agreement or other organizational documents, or (ii) conflict with, constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or instrument to which
such Purchaser is a party, or result in a violation of any law, rule or
regulation, or any order, judgment or decree of any court or governmental agency
applicable to such Purchaser or its properties (except for such conflicts,
defaults and violations as would not, individually or in the aggregate, have a
material adverse effect on such Purchaser). Such Purchaser is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Shares in accordance with the terms hereof,
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provided that for purposes of the representation made in this sentence, such
Purchaser is assuming and relying upon the accuracy of the relevant
representations and agreements of the Company herein.
(d) Acquisition for Investment. Such Purchaser is purchasing
the Shares solely for its own account for the purpose of investment and not with
a view to or for sale in connection with distribution. Such Purchaser does not
have a present intention to sell the Shares nor a present arrangement (whether
or not legally binding) or intention to effect any distribution of the Shares to
or through any person or entity; provided, however, that by making the
representations herein and subject to Section 2.2(f) below, such Purchaser does
not agree to hold the Shares for any minimum or other specific term and reserves
the right to dispose of the Shares at any time in accordance with Federal
securities laws applicable to such disposition. Such Purchaser acknowledges that
it is able to bear the financial risks associated with an investment in the
Shares and that it has been given full access to such records of the Company and
the subsidiaries and to the officers of the Company and the subsidiaries as it
has deemed necessary or appropriate to conduct its due diligence investigation.
(e) Accredited Purchasers. Such Purchaser is an "accredited
investor" as defined in Regulation D promulgated under the Securities Act and is
a resident of the jurisdiction indicated on Exhibit A hereto.
(f) Rule 144. Such Purchaser understands that the Shares must
be held indefinitely unless such Shares are registered under the Securities Act
or an exemption from registration is available. Such Purchaser acknowledges that
such person is familiar with Rule 144 of the rules and regulations of the
Commission, as amended, promulgated pursuant to the Securities Act ("Rule 144"),
and that such person has been advised that Rule 144 permits resales only under
certain circumstances. Such Purchaser understands that to the extent that Rule
144 is not available, such person will be unable to sell any Shares without
either registration under the Securities Act or the existence of another
exemption from such registration requirement.
(g) General. Such Purchaser understands that the Shares are
being offered and sold in reliance on a transactional exemption from the
registration requirement of Federal and state securities laws and the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of such Purchaser set forth
herein in order to determine the applicability of such exemptions and the
suitability of such Purchaser to acquire the Shares. Purchaser understands that
no United States federal or state agency or any government or governmental
agency has passed upon or made any recommendation or endorsement of the Shares.
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ARTICLE III.
Covenants
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Section 3.1 Transfer or Resale. Each Purchaser severally, and not
jointly, understands that (i) the sale or resale of the Shares have not been and
are not being registered under the Securities Act or any state securities laws,
and agrees that the Shares may not be transferred unless (a) the resale of the
Shares has been registered thereunder; or (b) Purchaser shall have delivered to
the Company an opinion of counsel (which opinion shall be in form, substance and
scope customary for opinions of counsel in comparable transactions) to the
effect that the Shares to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; or (c) the Shares are sold
under Rule 144 promulgated under the Securities Act (or a successor rule); and
(ii) neither the Company nor any other person is under any obligation to
register such Securities under the Securities Act or any state securities laws
(other than pursuant to Article V).
ARTICLE IV.
Conditions
Section 4.1 Conditions Precedent to the Obligation of the Company to
Sell the Shares at the Closing. The obligation hereunder of the Company to issue
and sell the Shares to the Purchasers is subject to the satisfaction or waiver,
at or before the Closing, of each of the conditions set forth below. These
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
(a) Accuracy of Each Purchaser's Representations and
Warranties. The representations and warranties of each Purchaser shall be true
and correct in all material respects as of the date when made and as of the
Closing as though made at that time, except for representations and warranties
that are expressly made as of a particular date, which shall be true and correct
in all material respects as of such date.
(b) Performance by the Purchasers. Each Purchaser shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by such Purchaser at or prior to the Closing, including having
paid by wire transfer of funds in accordance with this Agreement the Purchase
Price set forth opposite such Purchaser's name on Exhibit A, such Purchaser
shall have executed and delivered this Agreement to the Company.
(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) Second Tranche Closing; Consulting Agreement. The Second
Tranche Closing shall have occurred and Xx. Xxxxxxx shall have executed and
delivered the Consulting Agreement to the Company.
Section 4.2 Conditions Precedent to the Obligation of the Purchasers to
Purchase the Shares at the Closing. The obligation hereunder of each Purchaser
to acquire and pay for the
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Shares are subject to the satisfaction or waiver, at or before the Closing, of
each of the conditions set forth below. These conditions are for each
Purchaser's sole benefit and may be waived by such Purchaser at any time in its
sole discretion.
(a) Accuracy of the Company's Representations and Warranties.
Each of the representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
as though made at that time (except for representations and warranties that
speak as of a particular date), which shall be true and correct in all material
respects as of such date.
(b) Performance by the Company. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) Second Tranche Closing; Consulting Agreement. The Second
Tranche Closing shall have occurred and the Company shall have executed and
delivered to Xx. Xxxxxxx the Consulting Agreement.
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ARTICLE V.
Registration Rights
Section 5.1 Piggyback Registration Rights. If, at any time following
the Closing Date, the Company proposes to file with the Commission a
registration statement relating to an offering of its equity securities under
the Securities Act on any form (other than Form S-4 or Form S-8 or their then
equivalents) on which the Shares may be registered, it shall give the Purchasers
written notice of its intention to file such registration statement. If either
Purchaser so elects, by written notice to the Company given within fifteen (15)
days after their receipt of such notice from the Company, such Purchaser may
elect to have all or any portion of such Purchaser's Shares registered by such
registration statement if such registration statement becomes effective (but the
Company shall have no obligation to cause or attempt to cause such registration
statement to become or remain effective). The registration rights set forth in
this Article V shall also apply to any shares of Common Stock issued as a result
of stock dividends, stock splits or other capital adjustments or exchanges in
connection with the Shares.
Section 5.2 Expenses. The registration referred to in Section 5.1 shall
be accomplished at the sole expense of the Company except that the Purchasers
who own the Shares so registered shall pay whatever additional costs (including
filing fees) are incurred by the Company solely as a result of the inclusion of
such Shares in the registration statement.
Section 5.3 Underwritten Offerings. If other securities being
registered by such registration statement are being sold publicly through one or
more investment banking firms serving as underwriters, the Purchasers who own
the Shares to be included in such registration statement must agree to sell
their Shares through such underwriters and the Purchasers who do not elect to
have Shares registered will agree upon the request of such underwriters, to
defer the public sale of their Shares for a period of one hundred twenty (120)
days following the effective date of the registration statement. The Company
shall have no obligation to amend such registration statement after it becomes
effective to reflect subsequent events and the any Purchaser owning registered
Shares will not make any sales in reliance on such registration statement if
Buyer has advised such Purchasers that the information in the registration
statement is no longer current. If any Purchaser shall request inclusion of any
Shares held by such Purchaser in the registration of other securities of Company
and such proposed registration by Company is, in whole or in part, an
underwritten public offering, and if the managing underwriter determines and
advises the Company in writing that inclusion in such registration of all
proposed securities (including securities being offered by or on behalf of
Company and securities covered by requests for registration) would adversely
affect the marketability of the offering of the securities proposed to be
registered by the Company, then such Purchaser shall be entitled to participate
pro rata (based on the number of shares owned by the respective holders) with
the other shareholders having similar piggyback incidental registration rights
with respect to such registration to the extent the managing underwriter
determines that such Shares may be included without such adverse effect and
subject to any demand registration rights.
Section 5.4 Exclusions. Notwithstanding anything herein to the
contrary, the Company shall not be required to register any Shares on any
registration statement filed pursuant to the
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Registration Rights Agreement dated as of September 17, 1999 between the Company
and the investors party thereto. Notwithstanding anything herein to the
contrary, the Company shall not be required to register any Shares if counsel
for the Company opines that such Shares may be sold publicly by the Purchaser
owning such Shares without registration under the Securities Act (including
reliance on Rule 144 under the Securities Act), of if the Company, at its
expense, procures a "no-action" letter from the Securities and Exchange
Commission indicating that the Staff will take no action if the Shares are sold
without registration.
Section 5.5 Indemnity. If any Shares are registered, the Purchasers
owning such Shares and the Company will enter into a cross indemnity agreement
in form and substance satisfactory to counsel for the Company, by which the
Company will indemnify such Purchasers against any liability arising under the
1933 Act, except to the extent that liability arises in connection with
information supplied to the Company by such Purchasers or their agents, and such
Purchasers shall indemnify the Company in connection with such latter
information.
Section 5.6 Transfer. The registration right granted by this Agreement
shall be for the benefit of the Purchasers only and may not be transferred in
connection with any transfer of the Shares or otherwise.
ARTICLE VI.
Stock Certificate Legend
Section 6.1 Legend. Each certificate representing the Shares shall be
stamped or otherwise imprinted with a legend substantially in the following form
(in addition to any legend required by applicable state securities or "blue sky"
laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SAID SHARES CANNOT BE
SOLD, TRANSFERRED, DISPOSED OF, PLEDGED OR HYPOTHECATED IN ANY MANNER
WHATSOEVER UNLESS REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR, IF IN THE OPINION OF COMPANY COUNSEL, AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS IS IN FACT APPLICABLE TO SAID SHARES.
The Company agrees to reissue certificates representing the Shares,
without the legend set forth above if at such time, prior to making any transfer
of any Shares such holder thereof shall give written notice to the Company
describing the manner and terms of such transfer and removal as the Company may
reasonably request and such holder otherwise complies with the terms of this
Agreement. The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of any Shares upon which
it is stamped if, unless otherwise required by state securities laws, (a) the
sale of such Shares is registered under the Securities Act (including
registration pursuant to Rule 416 thereunder) as contemplated hereby (b) such
holder provides the Company with an opinion of counsel, in form, substance and
scope customary for
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opinions of counsel in comparable transactions, to the effect that a sale or
transfer of such Shares may be made without registration under the Securities
Act; or (c) such holder provides the Company with reasonable assurances that
such Shares can be sold under Rule 144(k). Each Purchaser agrees to sell all
Shares, including those represented by a certificate(s) from which the legend
has been removed, pursuant to an effective registration statement, under an
exemption from the registration requirements of the Securities Act or in
accordance with Rule 144(k). In the event the above legend is removed from any
Shares and the effectiveness of a registration statement covering such Shares is
suspended or the Company determines that a supplement or amendment thereto is
required by applicable securities laws, then upon reasonable advance notice to
such Purchaser the Company may require that the above legend be placed on any
such Shares that cannot then be sold pursuant to an effective registration
statement, under an exemption from the registration requirements of the
Securities Act or under Rule 144(k) and such Purchaser shall cooperate in the
replacement of such legend. Such legend shall thereafter be removed when such
Shares may again be sold pursuant to an effective registration statement, under
an exemption from the registration requirements of the Securities Act or under
Rule 144(k). The restrictions on transfer contained in Section 6.1 shall be in
addition to, and not by way of limitation of, any other restrictions on transfer
contained in any other section of this Agreement.
ARTICLE VII.
Termination
Section 7.1 Termination by Mutual Consent. This Agreement may be
terminated at any time prior to the Closing by the mutual written consent of the
Company and the Purchasers.
Section 7.2 Other Termination. This Agreement may be terminated by the
action of the Board of Directors of the Company or by any one or more of the
Purchasers at any time if the Closing shall not have been consummated by the
Closing Date, as long as the failure to so consummate is not the fault of the
terminating party.
Section 7.3 Effect of Termination. In the event of termination by the
Company or any one or more of the Purchasers of this Agreement or any part
hereof, written notice thereof shall forthwith be given to the other party and
the transactions contemplated by this Agreement shall be terminated without
further action by either party. If this Agreement is terminated as provided in
Section 7.1 or 7.2 herein, this Agreement shall become void and of no further
force and effect, except for Sections 9.1 and 9.2, and Article VIII herein.
Nothing in this Section 7.3 shall be deemed to release the Company or any
Purchaser from any liability for any breach under this Agreement, or to impair
the rights of the Company and the Purchasers to compel specific performance by
the other party of its obligations under this Agreement.
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ARTICLE VIII.
Indemnification
Section 8.1 General Indemnity. The Company agrees to indemnify and hold
harmless the Purchasers (and its respective directors, officers, affiliates,
agents, successors and assigns) from and against any and all losses,
liabilities, deficiencies, costs, damages and expenses (including, without
limitation, reasonable attorney's fees, charges and disbursements) incurred by
the Purchasers as a result of any inaccuracy in or breach of the
representations, warranties or covenants made by the Company herein. Each
Purchaser severally but not jointly agrees to indemnify and hold harmless the
Company and its directors, officers, affiliates, agents, successors and assigns
from and against any and all losses, liabilities, deficiencies, costs, damages
and expenses (including, without limitation, reasonable attorneys fees, charges
and disbursements) incurred by the Company as result of any inaccuracy in or
breach of the representations, warranties or covenants made by such Purchaser
herein.
Section 8.2 Indemnification Procedure. Any party entitled to
indemnification under this Article VIII (an "indemnified party") will give
written notice to the indemnifying party of any matters giving rise to a claim
for indemnification; provided, that the failure of any party entitled to
indemnification hereunder to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Article VIII except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any action, proceeding or claim is brought against an
indemnified party in respect of which indemnification is sought hereunder, the
indemnifying party shall be entitled to participate in and, unless in the
reasonable judgment of the indemnified party a conflict of interest between it
and the indemnifying party may exist with respect of such action, proceeding or
claim, to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. In the event that the indemnifying party advises an
indemnified party that it will contest such a claim for indemnification
hereunder, or fails, within thirty (30) days of receipt of any indemnification
notice to notify, in writing, such person of its election to defend, settle or
compromise, at its sole cost and expense, any action, proceeding or claim (or
discontinues its defense at any time after it commences such defense), then the
indemnified party may, at its option, defend, settle or otherwise compromise or
pay such action or claim. In any event, unless and until the indemnifying party
elects in writing to assume and does so assume the defense of any such claim,
proceeding or action, the indemnified party's costs and expenses arising out of
the defense, settlement or compromise of any such action, claim or proceeding
shall be losses subject to indemnification hereunder. The indemnified party
shall cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action or claim by the indemnifying party and
shall furnish to the indemnifying party all information reasonably available to
the indemnified party which relates to such action or claim. The indemnifying
party shall keep the indemnified party fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. If
the indemnifying party elects to defend any such action or claim, then the
indemnified party shall be entitled to participate in such defense with counsel
of its choice at its sole cost and expense. The indemnifying party shall not be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent. Notwithstanding anything in this Article VIII to the
contrary, the indemnifying party
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shall not, without the indemnified party's prior written consent, settle or
compromise any claim or consent to entry of any judgment in respect thereof
which imposes any future obligation on the indemnified party or which does not
include, as an unconditional term thereof, the giving by the claimant or the
plaintiff to the indemnified party of a release from all liability in respect of
such claim. The indemnification required by this Article VIII shall be made by
periodic payments of the amount thereof during the course of investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred, so long as the indemnified party irrevocably agrees to refund such
moneys if it is ultimately determined by a court of competent jurisdiction that
such party was not entitled to indemnification. The indemnity agreements
contained herein shall be in addition to (a) any cause of action or similar
rights of the indemnified party against the indemnifying party or others, and
(b) any liabilities the indemnifying party may be subject to pursuant to the
law.
ARTICLE IX.
Miscellaneous
Section 9.1 Fees and Expenses. Each party shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and
all other expenses, incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
Section 9.2 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Purchasers acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof or
thereof, this being in addition to any other remedy to which any of them may be
entitled by law or equity.
(b) Each of the Company and the Purchasers (i) hereby
irrevocably submits to the jurisdiction of the United States District Court
sitting in the Southern District of New York for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Company and
the Purchasers consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing in this
Section 9.2 shall affect or limit any right to serve process in any other manner
permitted by law.
Section 9.3 Entire Agreement; Amendment. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and, except as specifically
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set forth herein neither the Company nor any of the Purchasers makes any
representations, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by a written
instrument signed by the Company and the holders of at least two-thirds (2/3) of
the Shares then outstanding, and no provision hereof may be waived other than by
an a written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Shares then
outstanding.
Section 9.4 Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery by telex (with correct answer back
received), telecopy or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company: Xxxxxx X. Xxxxx, President and CEO
Net Value Holdings, Inc.
Xxx Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxx X. Xxxxxx, Esq.
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to any Purchaser: At the address of such Purchaser set forth on
Exhibit A to this Agreement
Any party hereto may from time to time change its address for notices
by giving at least ten (10) days written notice of such changed address to the
other party hereto.
Section 9.5 Waivers. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provisions, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
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Section 9.6 Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 9.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns. A
Purchaser may only assign his rights hereunder if the entity to be assigned such
rights has provided assurances to the Company reasonably satisfactory to the
Company that such entity can comply with the representations and warranties set
forth in Section 2.2 of this Agreement. After the Closing, the assignment by a
party to this Agreement of any rights hereunder shall not affect the obligations
of such party under this Agreement.
Section 9.8 No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section 9.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions.
Section 9.10 Survival. The covenants, representations and warranties of
the Company and the Purchasers shall survive indefinitely.
Section 9.11 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. In the event any signature is
delivered by facsimile transmission, the party using such means of delivery
shall cause additional executed signature pages to be physically delivered to
the other parties within five days of the execution and delivery hereof.
Section 9.12 Publicity. The Company agrees that it will not disclose,
and will not include in any public announcement, the name of the Purchasers,
unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement.
Section 9.13 Severability. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of such provision, had never been contained
herein, so that such provisions would be valid, legal and enforceable to the
maximum extent possible.
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Section 9.14 Further Assurances. From and after the date of this
Agreement, upon the request of any Purchaser or the Company, each of the Company
and the Purchasers shall execute and deliver such instrument, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorize officer as of the date first above
written.
NET VALUE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
PURCHASERS:
RS ORPHAN FUND, L.P.,
a California limited partnership
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
RS ORPHAN OFFSHORE FUND, L.P.,
a Cayman Islands exempted limited partnership
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
EXHIBIT A to the
COMMON STOCK PURCHASE AGREEMENT
FOR NET VALUE HOLDINGS, INC.
Names and Address Number of
of Purchaser Shares Purchased Purchase Price
----------------- ---------------- --------------
RS ORPHAN FUND, LP. 473,462 $473,462
a California limited partnership
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Managing Director
General Partner
Phone: 000-000-0000
Fax: 000-000-0000
Residence: California
RS ORPHAN OFFSHORE FUND, L.P. 202,912 $202,912
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Managing Director
General Partner
Phone: 000-000-0000
Fax: 000-000-0000
Residence: Cayman Islands
