EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is entered into
effective as of October 2, 2006 ("EFFECTIVE DATE"), by and between New ProSys
Corp., a country-regionGeorgia corporation ("BUYER"), and Xxxxx Xxxxxx
("SELLER"), an individual and resident of placecountry-regionGeorgia.
RECITAL:
A. Seller owns three hundred eighty-four thousand (384,000) shares of
the Common Stock, no par value (the "SHARES"), of ProSys Information Systems,
Inc., a Georgia corporation (the "COMPANY").
B. Buyer desires to purchase, and Seller desires to sell, all of the
Shares pursuant to the terms and conditions of this Agreement.
C. Buyer and Seller are also parties to that certain Asset Purchase
Agreement (the "ASSET PURCHASE AGREEMENT") with the Company, Xxxxxxxx Xxxxx and
Xxxx Microproducts Inc., a California corporation ("PARENT").
AGREEMENT:
In consideration of the mutual covenants contained in this Agreement
and other good and valuable consideration, the parties agree to the terms and
conditions in this Agreement intending to be legally bound by them. All
capitalized terms used in this Agreement that are not otherwise defined shall
have the meaning set forth in the Asset Purchase Agreement.
1. Purchase of Seller's Shares. Buyer hereby agrees to purchase from
Seller, and Seller hereby agrees to sell, convey, transfer and assign to Buyer
at the Closing, all of Seller's rights, title to and interest in the Shares, for
a total purchase price (the "PURCHASE PRICE") consisting of: (i) $1,129,808 in
cash payable at Closing as provided in Section 5; (ii) shares of Parent Common
Stock, par value $0.01 issuable as provided in Section 1.1; and (iii) 1 /26th of
the Contingent Payments contemplated in Section 2.10 and Exhibit 2.10(a) of the
Asset Purchase Agreement. Payment of the Purchase Price is subject to the terms
of this Agreement, and is subject to set-off as provided in Section 2.9 and
Section 10 of the Asset Purchase Agreement, and all references to the Purchase
Price shall be deemed to include and refer to such Purchase Price as and if so
reduced.
1.1. Stock; Escrow. Subject to Section 1.2, Seller shall be
entitled to receive that number of shares of Parent Common Stock equal
to $326,923 divided by the Per Share Value (as defined in the Asset
Purchase Agreement), determined as of the Closing Date; provided,
however, that, as set forth in the Escrow Agreement, $192,308 of such
amount of Parent Common Stock (the "ESCROWED SHARES") shall be
deposited into an escrow account and paid or distributed therefrom in
accordance with the Escrow Agreement.
1.2. No Fractional Shares. No certificate or scrip
representing fractional shares of Parent Common Stock shall be issued,
and such fractional share interests will not entitle the owner thereof
to vote or to any rights of a stockholder of Buyer. Notwithstanding any
other provision of this Agreement, if the Company would otherwise have
been entitled to receive a fraction of a share of Parent Common Stock,
the Company shall receive, in lieu thereof, cash (without interest) in
an amount equal to such fractional part of a share of Parent Common
Stock multiplied by the Per Share Value determined as of the Closing
Date.
2. Representations and Warranties of Seller. Seller makes the following
representations and warranties to Buyer:
2.1. No Liens on Stock. Seller represents and warrants that he
owns the Shares free of all liens, encumbrances, pledges and third
party rights, other than as disclosed in the Asset Purchase Agreement
and the Disclosure Letter, and that the Shares are not subject to any
pending or threatened litigation.
2.2. Authority; Binding Agreement. Seller represents and
warrants that he has the authority to consummate the transactions
contemplated by this Agreement and has the full and unrestricted right,
power and authority (without consent of any other person or entity,
other than as disclosed in the Asset Purchase Agreement and the
Disclosure Letter) to enter into and carry out his obligations under
this Agreement. This Agreement constitutes a valid and binding
obligation of Seller.
2.3. Purchase Agreement Representations and Warranties. Seller
agrees that all representations and warranties made by Seller in the
Asset Purchase Agreement shall be incorporated by reference into this
Agreement as if fully set forth herein.
3. Representations and Warranties of Buyer. Buyer makes the following
representations and warranties to Seller:
3.1. Authority; Binding Agreement. Buyer represents and
warrants that it has the authority to consummate the transactions
contemplated by this Agreement and has the full and unrestricted right,
power and authority (without consent of any other person or entity) to
enter into and carry out his obligations under this Agreement. This
Agreement constitutes a valid and binding obligation of Buyer.
3.2. Investment Purpose in Acquiring the Shares. Buyer is
acquiring the Shares for its own account for investment purposes only
and not with a view to their resale or distribution. Buyer has no
present intention to divide its participation with others or to resell
or otherwise dispose of all or any part of the Shares.
3.3. Restricted Securities. Buyer acknowledges that the Shares
are restricted securities. Buyer agrees that if it sells or distributes
the Shares in the future, it shall do so pursuant to the requirements
of the Securities Act of 1933 and applicable state securities
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laws. Buyer acknowledges that the Shares bear a restrictive legend with
substantially the following language:
"The shares represented by this Certificate have been issued
without registration under the Securities Act of 1933, and no
transfer of them will be made by the Corporation or its
transfer agent unless done pursuant to an effective
registration statement under the Securities Act of 1933, as
amended, and under appropriate state laws, or there is
presented to the Corporation an opinion of counsel
satisfactory to it to the effect that such registration is not
required."
The Buyer has been advised that the Company has received an
opinion of counsel satisfactory to the Company pursuant to which the
sale of the Shares is exempt from registration under all applicable
federal and state securities laws.
3.4. Knowledgeable Investor. Buyer acknowledges that it is
fully aware of and advised concerning the present financial condition
of the Company, its business affairs and its prospects for future
business.
3.5. Accredited Investor. Buyer represents and warrants that
it is an accredited investor as such term is defined in Regulation D
promulgated under the Securities Act of 1933, as amended.
4. Conditions to Closing. The respective obligations of each party to
consummate the transactions under this Agreement shall be subject to the
representations and warranties of Seller and Buyer, respectively, contained in
this Agreement being true and correct on the Closing Date as though such
representations and warranties were made on such date, and shall be further
subject to, and shall occur immediately following, the closing of the
transactions contemplated by the Asset Purchase Agreement.
5. Closing. The consummation of the transactions contemplated by this
Agreement (the "CLOSING") shall occur on, or promptly after, October 2, 2006 in
accordance with the provisions of the Asset Purchase Agreement. The date of such
Closing shall be referred to herein as the "CLOSING DATE.
6. Indemnification; Remedies. The provisions of Section 10 of the Asset
Purchase Agreement are hereby incorporated herein by reference and shall apply
to the representations, warranties covenants and obligations of Seller and Buyer
hereunder.
7. General.
7.1. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be addressed to the
parties at the addresses set forth for Buyer and Seller in the Asset
Purchase Agreement. Addresses may be changed by written notice given
pursuant to this section.
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7.2. Entire Agreement; Modification and Waiver; Binding
Effect. This Agreement, together with the Asset Purchase Agreement and
any related written agreements specifically referred to herein,
represents the only agreement among the parties concerning the subject
matter hereof and supersedes all prior agreements, whether written or
oral, relating thereto. No purported amendment, modification, or waiver
of any provision hereof shall be binding unless set forth in a written
document signed by all parties (in the case of amendments or
modifications) or by the party to be charged thereby (in the case of
waivers). This Agreement shall be binding upon and inure to the benefit
of Seller, Buyer, and Company, and their respective heirs,
representatives, successors, and assigns.
7.3. Severability. If any provision of this Agreement is held
to be unenforceable or void, such provision shall be deemed to be
severable and shall in no way affect the validity of the remaining
terms of this Contract.
7.4. Counterparts. This Agreement may be executed in
counterparts and by different parties on different counterparts with
the same effect as if the signatures thereto were on the same
instrument. This Agreement shall be effective and binding upon the
parties hereto at such time as both parties have executed a counterpart
of this Agreement.
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Each of the parties has caused this Agreement to be executed in the
manner appropriate to each intending to be legally bound.
SELLER: BUYER:
NEW PROSYS CORP.
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx Its: Chief Financial Officer
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