EXHIBIT 10.15
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 12, 1999, by and between
Xxxxxx X. Xxxxx, an individual residing at 00 Xxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx
00000 (the "Seller"), and Bathurst Ltd, with its offices at Britannic House,
Provideniales Turks and Caicos Isle, British West Indies (the "Buyer").
WHEREAS, the Seller has heretofore acquired 1,827,336 shares of the
common stock, par value $0.01 per share (the "Common Stock") (the "Shares"), of
Proginet Corporation, a Delaware corporation (the "Company"); and
WHEREAS, the Seller desires to sell the 1,827,336 Shares to the Buyer,
and the Buyer desires by buy such 1,827,336 Shares, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for such other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES AND RELATED MATTERS
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1.1. Sale of Shares. Upon the terms and subject to the conditions of
this Agreement, the Seller shall transfer, assign, set over and deliver to the
Buyer, and the Buyer shall purchase from the Seller, all of the Seller's right,
title and interest in and to 1,827,336 Shares.
1.2. Purchase Price. The purchase price for such Shares shall be in an
amount equal to U.S.$0.50 for each Share (the "Per Share Price") totaling nine
Hundred and Thirteen Thousand Six Hundred and Sixty Three United States Dollars
(U.S.$913,663.00) (the "Purchase Price").
1.3. Non-Refundable Deposit. Buyer agrees that on or prior to July 16,
1999, the Buyer shall irrevocably pay to the Seller a non-refundable deposit of
Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (U.S. $100,000) (the "Deposit"),
which shall be applied as a credit against the Purchase Price at the Closing (as
hereinafter defined). The Deposit shall be paid to the Seller by wire transfer
of immediately available U.S. funds in accordance with the wire instructions set
forth on Schedule A. If the Seller shall not have received the Deposit on or
prior to 5:00 p.m., New York City time, on July 16, 1999, then the Seller shall
have no further obligation of any kind whatsoever (including, without
limitation, any obligation to sell or otherwise transfer the 1,827,336 Shares,
or any portion thereof) to the Buyer under this Agreement or otherwise. If the
Seller shall not have received payment of the balance of the Purchase Price at
or prior to the Closing, then this Agreement shall be deemed terminated as of
the Closing Date (as hereinafter defined) and the Seller shall have no further
obligation of any
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kind whatsoever (including, without limitation, any obligation to sell the
1,827,336 Shares, or any portion thereof) to the Buyer under this Agreement or
otherwise.
1.4. Closing Payments and Delivery of Shares. The closing of the sale
and purchase of the Shares provided for herein (the "Closing") shall take place
at the offices of Xxxxxx & Xxxxxx , Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
at 10:00 a.m., New York City time, on September 14, 1999 (the "Closing Date") or
such other date, time and place as Buyer and Seller may mutually agree in
writing. Payment of the Purchase Price to the Seller (net of the credit for the
Deposit provided under Section 1.3) shall be made at the Closing by delivery to
the Seller of an official bank check, drawn on a New York money center bank,
payable to the order of the Seller in the amount of Eight Hundred and Thirteen
Thousand Six Hundred and Sixty Three United States Dollars (U.S. $813,663.00).
Upon delivery of such check, the Escrow Agent (as hereinafter defined) shall
deliver to the Buyer at the Closing all certificates representing the 1,827,336
Shares, duly endorsed in blank, or accompanied by stock transfer powers duly
endorsed in blank, in accordance with the Escrow Agreement.
1.5. Buyer's Voting Agreement. The Buyer hereby agrees to enter into a
Shareholder Voting Agreement with the Company agreeing to vote the Shares that
it shall purchase hereunder with the Board of Directors of the Company through
December 31, 2000.
1.6. Seller's Lock-up Agreement. Subject to his receipt of the Deposit
in accordance with Section 1.3, Seller agrees that he shall not sell or transfer
to anyone other than the Buyer any shares owned by him until September 15, 1999
or the earlier termination of this Agreement.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLER
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The Seller hereby represents and warrants to, and agrees with, the
Buyer, as of the date hereof and as Closing Date, as follows:
2.1. Capacity; Authority; Validity. The Seller has all necessary
capacity, power and authority to enter into this Agreement and to perform all
the obligations to be performed by the Seller hereunder; this Agreement and the
consummation by the Seller of the transactions contemplated hereby has been duly
and validly authorized by all necessary action of the Seller; this Agreement has
been duly executed and delivered by the Seller; and assuming the due execution
and delivery of this Agreement by the Buyer, this Agreement constitutes the
legal, valid and binding obligation of the Seller enforceable against the Seller
in accordance with its terms.
2.2. Title to Shares. The Seller is the sole owner of, and has good,
valid and marketable title to, 1,827,336 Shares, free and clear of any lien,
pledge, claim, security interest, encumbrance or charge of any kind (together,
"Lien"), other than pursuant to (i) that certain Stock Redemption Agreement
dated as of October 20, 1998 by and between the Company and the Seller, and (ii)
that certain Escrow Agreement dated as of October 20, 1998 and as amended
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by the amendment thereto of even date herewith (the "Escrow Agreement") by and
among the Company, the Seller, and Xxxxxx Xxxxxx Flattau & Klimpl, LLP (the
"Escrow Agent"). Other than as contemplated by this Agreement, the Seller shall
not sell, assign, or otherwise transfer all or any portion of his right, title
and interest in and to the Shares, or create, incur, assume or permit to exist
any Lien on the Shares.
2.3. No Violation of Law or Agreement. Neither the execution and
delivery of this Agreement by the Seller, nor the consummation of the
transactions contemplated hereby by the Seller, will violate any judgment,
order, writ, decree, law, rule or regulation or agreement applicable to the
Seller or create any Lien over the Shares.
2.4. No Consents. Other than as set forth in the Escrow Agreement, to
the best of the Seller's knowledge, no consent, approval or authorization of or
declaration or filing with any governmental authority or other persons or
entities on the part of the Seller is required in connection with the execution
or delivery of this Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE BUYER
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The Buyer hereby represents and warrants to, and agrees with, the
Seller, as of the date hereof and as Closing Date, as follows:
3.1. Organization. The Buyer is a company duly organized and validly
existing and in good standing under the laws of the Turks and Caicos Islands.
3.2. Capacity; Authority; Validity. The Buyer has all necessary
capacity, power and authority to enter into this Agreement and to perform all
the obligations to be performed by the Buyer hereunder; this Agreement and the
consummation by the Buyer of the transactions contemplated hereby has been duly
and validly authorized by all necessary action of the Buyer; this Agreement has
been duly executed and delivered by the Buyer; and assuming the due execution
and delivery of this Agreement by the Seller, this Agreement constitutes the
legal, valid and binding obligation of the Buyer enforceable against the Buyer
in accordance with its terms.
3.3. Brokerage. The Buyer has not incurred and will not incur any
liability for investment banker's brokerage or finder's fees in connection with
this Agreement and the transactions contemplated hereby. To the extent such
broker may have been retained by the Buyer, the Buyer will indemnify and hold
the Seller harmless from an against any liability for investment banker's,
brokerage or finder's fees in connection with the Agreement and the Buyer's
purchase of the Shares.
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3.4. Investment. The Shares will be acquired by the Buyer for its own
account, for investment purposes and not with a view to, or for resale in
connection with, the distribution thereof in violation of any applicable
securities laws, rules or regulations. Neither the Buyer nor any affiliate
thereof is a party to any other agreement or contract or understanding providing
for the purchase of Common Stock from any other person or entity at a price per
share that exceeds the Per Share Price.
3.5. No Consents. Other than as set forth in the Escrow Agreement, to
the best of the Seller's knowledge, no consent, approval or authorization of or
declaration or filing with any governmental authority or other persons or
entities on the part of the Seller is required in connection with the execution
or delivery of this Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE IV
MISCELLANEOUS
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4.1. Notices. All notices and other communications by the Buyer or
Seller hereunder shall be in writing to the other party and shall be deemed to
have been duly given when delivered in person or by an overnight courier
service, or sent via telecopy transmission and verification received, or when
posted by the United States postal service, registered or certified mail, return
receipt requested with postage prepaid, at the address set forth on the
signature page hereto or to such other addresses as a party may from time to
time designate to the other party by written notice thereof, effective only upon
actual receipt.
4.2. Assignment. This Agreement shall not be assigned by the Buyer
without the Seller's prior written consent.
4.3. Entire Agreement. This Agreement constitutes the entire agreement
by the parties hereto and supersedes any other agreement, whether written or
oral, that may have been made or entered into between them relating to the
matters contemplated hereby.
4.4. Amendments and Waivers. This Agreement may be amended, modified,
superseded, or canceled, and any of the terms, representations, warranties or
covenants hereof may be waived, only by written instrument executed by both of
the parties hereto or, in the case of a waiver, by the party waiving compliance.
4.5. Captions; Counterparts, Execution. The captions in this Agreement
are for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
4.6. Survival of Representations and Warranties.. The representations
and warranties contained herein shall survive the execution and delivery of this
agreement.
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4.7. Expenses. Each party hereto shall bear his or its own fees, taxes
and expenses in connection with the negotiation, preparation, execution and
delivery of this Agreement, including, without limitation, fees and expenses of
counsel.
4.8. New York Jurisdiction. Each of Seller and Buyer hereby irrevocably
submits to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York and/or any state court of the State of New
York located in New York County or in Nassau County (the "Jurisdictional
Courts") in any action, suit or proceeding brought against Seller or Buyer and
related to, or in connection with, this Agreement or any instrument, agreement
or document referred to herein, or any transaction contemplated hereby and to
the extent permitted by applicable law, Seller and Buyer each hereby waives and
agrees not to assert as a defense by way of answer, motion or otherwise, in any
such suit, action, or proceeding, any claim that Seller or Buyer is not
personally subject to the jurisdiction of the Jurisdictional Courts, that the
suit, action or proceeding is brought in an inconvenient forum, that the venue
of the suit, action or proceeding is improper or inconvenient, or that this
Agreement or any instrument, agreement or document referred to herein or the
subject matter hereof or any matter relating hereto may not be enforced in or by
such Jurisdictional Courts. Seller and Buyer hereby irrevocably agree that
service of process may be made upon each of them by certified or registered mail
to their respective addresses listed on the signature pages of this Agreement or
by any method authorized by the laws of the State of New York or the Federal
Rules of Civil Procedure, as the case may be. Buyer hereby irrevocably appoints
Xx. Xxx Xxxxxxxx c/o Mintmire & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, XX 00000. Telephone# 000-000-0000, Fax # 000-000-0000 as its agent for
service of process in the United States for the purposes of any action, suit or
proceeding brought against Buyer and related to, or in connection with this
Agreement or any instrument, agreement or document referred to herein, or any
transactions contemplated hereby.
4.9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflicts
of laws principles.
[The next page is the signature page.]
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IN WITNESS WHEREOF, The Buyer and the Seller have caused this Agreement
to be duly executed as of the date first above written.
_________________________
Xxxxxx X. Xxxxx
Address:
00 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxx, Esq.
Telecopy No.: (000) 000-0000
Bathurst Ltd.
By:______________________
Name:_________________
Title:________________
Address: X.X. Xxx 00 Britannic House
Provideniales Turks and Caicos Isle.
British West Indies
Attention: Mr. Xxxxxx Nortcote
The undersigned does hereby acknowledge, agree and consent to, as of the date
hereof, the terms and provisions of this Agreement and does hereby and forever
waive any and all rights relating to the Shares contained in the Stock
Redemption Agreement including, without limitation, the rights of first refusal
contained in Section 3 thereof, or in the Escrow Agreement, provided that the
Closing shall occur.
PROGINET CORPORATION
By:____________________________
Name: Xxxxx X. Xxxxx
Title: President, CEO
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SCHEDULE A
Seller's Wire Instructions
ABA 000000000 Owner Mellon Bank
Further Credit 101-1730 Xxxxxxx Xxxxx
Further Credit 840 19F96 Xxxxxx Xxxxx
