EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
the 15 day of November, 1999, by and between NDC Automation, Inc., a Delaware
corporation (the "Company"), and J Xxxxxxx Industries, LP, a Delaware limited
partnership (the "Purchaser").
NOW, THEREFORE, in consideration of their respective promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Purchaser hereby
agree as follows:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Shares. In connection with that certain
Termination Agreement entered into by and between the Company, Portec, Inc. and
Xxxxxxx Acquisition Corp. dated the date hereof (the "Termination Agreement"),
the Company hereby issues and sells to Purchaser, and Purchaser hereby purchases
from the Company, 133,000 shares of common stock, $.01 par value, of the Company
("Shares"), for an aggregate purchase price of $50,000 ("Purchase Price") and
other good and valuable considerations, the receipt of which is hereby
acknowledged.
1.2. The Company is delivering (or causing its transfer agent to
deliver) a certificate representing the Shares being purchased hereunder against
delivery of Purchase Price from Purchaser; and Purchaser is paying the Purchase
Price by wire transfer to the Company against delivery by the Company of a
certificate representing the Shares being purchased hereunder.
2. Representations and Warranties of the Company. The Company hereby represents
and warrants to Purchaser that, except as set forth on a Disclosure Letter (the
"Disclosure Letter") furnished separately to Purchaser and its counsel referring
to this agreement:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business, properties, assets, liabilities, condition (financial or
otherwise), or results of operations ("Material Adverse Effect").
2.2 Authorization; Enforcement. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder, and the authorization, issuance, sale and
delivery of the Shares being sold hereunder has been taken and this Agreement
constitutes valid and legally binding obligations of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally,
or (ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.3 Capitalization. The authorized capital stock of the Company
consists solely of 11,000,000 Shares and 1,000,000 shares of preferred stock,
par value $.01 per share ("Preferred Stock"). As of August 12, 1999, (i)
3,453,451 Shares were outstanding, (ii) no Shares were held in the treasury of
the Company, (iii) options with respect to 249,027 Shares had been granted, and
an additional 15,000 Shares were reserved for issuance, in the aggregate, under
the Plans and (iv) no shares of Preferred Stock were outstanding. There are no
other shares of capital stock of the Company authorized, issued or outstanding.
All of the outstanding Shares have been validly issued and are fully paid and
nonassessable and not subject to preemptive rights. Except as set forth in this
Section 2.3, there are no subscriptions, options, stock appreciation rights,
warrants, rights (including preemptive rights), calls, convertible securities or
other agreements or commitments of any character relating to the issued or
unissued capital stock or other securities of the Company obligating the Company
to issue, or register the sale of, any securities of any kind. There are no
agreements or obligations of any kind or character to which the Company is a
party, or as to which the Company has knowledge, with respect to the voting of
Shares or the election of directors to its board.
2.4 Required Filings. No consent, approval or authorization of, or
filing, registration, qualification, declaration or designation
("Authorization") with or by, any federal, state, local or foreign court,
administrative agency, commission or other governmental authority or
instrumentality ("Governmental Entity") is required for the execution and
delivery by the Company of this Agreement or the consummation by the Company of
any of the transactions contemplated hereby, except the filing of Form D
pursuant to Regulation D promulgated under the Securities Act or other similar
post-closing filings as may be required.
2.5 No Conflicts. Neither the execution and delivery of this Agreement
by the Company, nor the consummation by Company of any of the transactions
contemplated hereby, (i) conflicts with or result in a breach of any of the
terms, conditions or provisions of its Certificate of Incorporation or By-Laws
or of any statute or administrative regulation, or of any order, writ,
injunction, judgment or decree of a governmental entity or of any arbitration
award to which the Company is a party or by which the Company is bound, or (ii)
violates, conflicts with, breaches, constitutes a default (or give rise to an
event which, with notice or lapse of time or both, would constitute a default)
under, or results in the termination of, or accelerates the performance required
by, or results in the creation of any lien or other claims, equities, security
interests, preemptive rights, judgments and other encumbrances ("Encumbrances")
upon any of the properties or assets of the Company under, any written or oral
note, bond, mortgage, indenture, deed of trust, license, lease, contract,
agreement or other instrument or written or oral obligation to which Company is
a party or to which any of its respective properties or assets are subject (each
being an "Obligation"), except for such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of liens or other
Encumbrances that do not and could not, individually or in the aggregate, (x)
have a Material Adverse Effect, or (y) materially impair the ability of the
Company to perform its obligations under the Agreement.
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2.6 Valid Issuance of Shares. The Shares that are being purchased by
Purchaser hereunder shall be duly and validly issued, fully paid, and
nonassessable, and free of pre-emptive rights, liens and free of restrictions on
transfer other than restrictions under applicable state and federal securities
laws.
2.7 Exempt Offering. The offer, sale and issuance of the Shares as
contemplated by this Agreement are exempt from the registration requirements of
the Act, and neither the Company nor any authorized agent acting on its behalf
will take or fail to take any action hereafter that would cause the loss of such
exemption.
2.8 SEC Reports. The Company has timely filed (and has delivered to
Purchaser a true and complete copy of) each report, schedule, registration
statement and definitive proxy statement required to be filed or filed by the
Company with the SEC (including, without limitation, reports required to be
filed pursuant to Section 13(d) or 13(g) of the Exchange Act) since January 1,
1995 (the "SEC Reports"). As of their respective dates, the SEC Reports
(excluding the proxy statement filed in connection with the Merger Agreement
(the "Preliminary Proxy Statement")) comply in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act") or
the Exchange Act, as the case may be, and the applicable rules and regulations
of the SEC thereunder, and none of the SEC Reports, as of their respective
dates, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, except information set forth in the Preliminary Proxy Statement or
the Form 8-K relating to the Termination Agreement. Except for such matters, the
Company has corrected and updated, prior to the date hereof, all statements in
the SEC Reports which have required correction or updating, as the case may be,
and have filed all necessary amendments to the Company SEC Reports as required
by applicable law.
3. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to the Company that:
3.1 Authorization. Purchaser has full power and authority to enter into
this Agreement, and this Agreement constitutes valid and legally binding
obligation of Purchaser enforceable against it in accordance with its terms.
3.2 Purchase Entirely for Own Account. Purchaser is purchasing the
Shares for its own account for investment purposes only and not as a nominee or
agent, nor with a view to the resale or distribution of any part thereof, and
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. Purchaser does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
securities. The foregoing does not require Purchaser to hold any shares for any
minimum or other specific term and Purchaser reserves the right to dispose of
any or all of the shares at any time in accordance with or pursuant to a
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registration statement (to the extent provided under Section 4.2 below) or an
exemption from registration under the Securities Act.
3.3 Information. Purchaser has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Shares and the business, properties, prospects and financial
condition of the Company. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of Purchaser to rely thereon.
3.4 Accredited Investor Status. Purchaser is an "Accredited Investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
3.5 Restricted Securities. Purchaser understands that the shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Act, only in
certain limited circumstances. In this connection, Purchaser represents that it
is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.6 Legends. It is understood that the certificates evidencing the
Shares being purchased may bear one or all of the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR UNLESS REGISTRATION UNDER SUCH
ACT IS NOT REQUIRED."
3.7 No Other Representation or Warranty. Purchaser understands that the
Company is not making any other representation or warranty, express or implied,
including, without limitation, any representation or warranty as to the value of
the Shares, all of which are expressly disclaimed.
4. Miscellaneous.
4.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Purchaser contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing for a period of two years and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of Purchaser or
the Company; provided, however, that the foregoing time limitation shall not
apply to recovery for any inaccuracy in a representation or breach of warranty
in Section 2.2 or 2.4 of this Agreement.
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4.2 Registration. The Company will consider in good faith any
reasonable request of Purchaser to register a sale of the Shares under the
Securities Act after the first anniversary of the date hereof, provided
Purchaser shall pay the fees and expenses related thereto.
4.3 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without regard to the conflicts of law
principles thereof except that the purchase of Shares is taking place in the
State of Ohio.
4.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures will
be accepted as originals.
4.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.7 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified; (ii)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day; (iii) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (iv) one business day after deposit with a nationally
recognized overnight courier, specifying next business day delivery, with
written verification of receipt. All communications shall be sent to the party
to be notified at the address indicated for such party on the signature page
hereof, or at such other address as such party may designate by ten (10) days'
advance written notice to the other parties.
4.8 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and Purchaser.
4.9 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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4.10 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NDC AUTOMATION, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
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J XXXXXXX INDUSTRIES, LP
By J Xxxxxxx Holdings, LP, its General
Partner
By JRI, Inc., its General Partner
/s/ Xxxxx X Xxxxx
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