Exhibit E
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
November 8, 2001 and is made by and between Princeton Video Image, Inc., a
Delaware corporation, (the "Seller") and Presencia en Medios, S.A. de C.V.,
a Mexican corporation, (the "Purchaser").
PRELIMINARY STATEMENTS
A. The Purchaser wishes to acquire from the Seller, and the Seller
wishes to sell to the Purchaser, the Shares (as hereinafter defined).
B. The Purchaser and the Seller each acknowledge that each party shall
have certain rights and obligations relating to the Shares as provided in
the Registration Rights Agreement dated as of September 20, 2001 by and
among the Seller and the investors named therein (the "Registration Rights
Agreement") and the Shareholders Agreement dated as of February 4, 2001 by
and among the Seller, PVI Holding, LLC and certain shareholders named
therein (the "Shareholders Agreement").
In consideration of the premises and the mutual promises hereinafter
set forth, the parties hereby agree as follows:
1. Definitions. All capitalized terms used in this Agreement shall
have the meanings assigned to them elsewhere in this Agreement or as
specified below:
"Agreement" shall have the meaning set forth in the opening
paragraph hereof.
"Closing" shall mean the closing of the sale to, and purchase by,
the Purchaser of the Shares.
"Material Adverse Effect" shall mean, when used in connection
with the Seller, any change or effect that, individually or in the
aggregate with all other such changes or effects, would have a material
adverse effect on the business, assets, results or operations, or financial
condition of such party and its subsidiaries taken as a whole or materially
impair the ability of such party to perform its obligations under this
Agreement.
"Person" shall mean and include an individual, a corporation, a
partnership, a trust, an incorporated organization, a limited liability
company, a joint stock corporation, a joint venture, a government or any
department, agency or political subdivision thereof and any other entity.
"Purchase Price" shall have the meaning set forth in Section 2.2.
"Purchaser" shall have the meaning set forth in the opening
paragraph hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect from time to time.
"Seller" shall have the meaning set forth in the opening
paragraph hereof.
"Shares" shall mean 615,385 shares of the Seller's common stock,
par value $.001.
2. Sale and Purchase of Shares.
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2.1 Agreement to Purchase and Sell. Upon the terms and subject to
the conditions set forth in this Agreement and upon the representations and
warranties made herein, the Seller is hereby selling to the Purchaser, and
the Purchaser is hereby purchasing from the Seller, the Shares.
2.2 Purchase Price. The purchase price for the Shares is $3.25
per share for an aggregate purchase price of $2,000,001 (the "Purchase
Price").
2.3 Closing. The Closing is occurring simultaneously herewith at
the offices of Smith, Stratton, Wise, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ on the date hereof.
2.4 Closing Actions. At the Closing, (i) the Purchaser is
delivering to the Seller the Purchase Price by wire transfer to such
account previously specified by the Seller in the amount of $615.39 and
delivery of a $1,999,385.61 promissory note in the form attached hereto as
Exhibit 2.4 (the "Note"), and (ii) the Seller is delivering to the
Purchaser a certificate representing the Shares.
2.5 Specific Performance. In the event that either party fails
to consummate the transaction contemplated hereby, the other party shall be
entitled to any and all rights and remedies available at law or in equity
by reason of such default, including but not limited to monetary damages
and the right to compel specific performance.
3. Representations and Warranties of the Seller. The Seller represents
and warrants to the Purchaser as follows, provided that, with respect to
Sections 3.3, 3.4 and 3.7, the Seller makes no representation herein with
respect to information known by the Purchaser, any of the Purchaser's
designees to the Seller's Board of Directors, any officer of Pubicidad
Virtual, S.A. de C.V., or the matters contemplated by the proposed
resolutions of the Seller's Board of Directors being adopted on the date
hereof.
3.1 Organization. The Seller is (a) a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, (b) has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its businesses as
presently conducted, (c) is duly qualified and in good standing to do
business in the States of New Jersey and New York, which constitute all of
the jurisdictions in which the conduct of the Seller's business or its
ownership, leasing or operation of property requires such qualification
where the absence of such qualification would have a Material Adverse
Effect on the Seller.
3.2 Authorization of Agreement. The Seller has full legal power
and authority to enter into and perform this Agreement. This Agreement has
been duly and validly executed and delivered by the Seller and constitutes
the valid and binding obligation of the Seller, enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity. The Shares have been duly
authorized, are duly and validly issued, fully paid and non-assessable, and
are free of any liens or encumbrances.
3.3 Disclosure. The registration statements, reports and proxy
statements filed by the Seller with the Securities and Exchange Commission,
including the financial statements contained therein (collectively, the
"SEC Reports"), complied, as of their respective dates, in all material
respects with the requirements of the Securities Act and the Securities Act
of 1934, as amended, and did not, 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 not misleading.
3.4 No Material Adverse Change. Except as set forth in Schedule
3.4, since June 30, 2001, there has been no material adverse change in the
financial condition, results of operations, assets, liabilities or business
of the Seller and its subsidiaries, taken as a whole, other than those
generally affecting Persons in the Seller's business, those generally
affecting the economy, those generally affecting the advertising market,
and those resulting from changes in general economic, political or
financial conditions, including without limitation changes occurring as a
result of terrorist activities, the effect of international conditions on
the financial markets in the United States, the suspension of trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange and the Nasdaq Stock Market ("Nasdaq"), and the escalation in
hostilities involving the United States.
3.5 Registration Rights Agreement. The Registration Rights
Agreement is in full force and effect and the Shares constitute Registrable
Securities (as defined under the Registration Rights Agreement) thereunder.
The Purchaser shall be entitled to all rights under the Registration Rights
Agreement with respect to the Shares purchased hereby.
3.6 Reorganization Agreement. Exclusively for purposes of
Sections 7.1(a), 7.2 and 7.4 of the Reorganization Agreement dated as of
December 28, 2000, by and among the Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Presence in Media, LLC, Virtual Advertisement LLC,
PVI LA, LLC, the Seller, and Princeton Video Image Latin America, LLC, as
amended (the "Reorganization Agreement") the Shares constitute shares of
PVI Common Stock (as such term is defined in the Reorganization Agreement).
3.7 No Consents or Approvals Required. No consents, approvals or
authorization of designation, declaration or filing with any governmental
or regulatory authority (other than in Mexico), agency, commission, body or
other governmental entity or by any court or other third party (other than
in Mexico) is required for the valid authorization, execution, delivery and
performance by the Seller of this Agreement or for the valid sale and
delivery of Shares.
3.8 Listing. The Seller has been approved for listing on, and no
notification of the issuance of the Shares is required to be given to,
Nasdaq.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Seller as follows:
4.1 Authorization of Agreement. The Purchaser has full legal
power and authority to enter into and perform this Agreement. This
Agreement has been duly and validly executed and delivered by the Purchaser
and constitutes the valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity.
4.2 Accredited Investor. The Purchaser is an accredited investor
within the meaning of Rule 501(a) promulgated under the Securities Act. The
Shares are being purchased or otherwise acquired for its own account and
not with the view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act. It
understands that the Shares have not been registered under the Securities
Act or any applicable state laws by reason of their issuance or
contemplated issuance in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act and such laws, and
that the reliance of the Seller and others upon this exemption is
predicated in part upon this representation and warranty. It further
understands that the Shares may not be transferred or resold without (a)
registration under the Securities Act and any applicable state securities
laws, or (b) an exemption from the requirements of the Securities Act and
applicable state securities laws.
4.3 Investment Evaluation. The Purchaser has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment to be made hereunder. It
has and has had access to all of the Seller's books and records and access
to the Seller's executive officers as the Purchaser has requested.
4.4 Legend. The Purchaser understands that the certificates for
the Shares bear a legend in substantially the following form in addition to
any other legends that may be required under any other documents to which
the Purchaser is a party.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES ACT
OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES ACTS OR, IN THE OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION OR IS IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S UNDER THE ACT. HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE ACT.
The Purchaser further agrees that the certificates for the Shares bear a
legend in substantially the following form pursuant to the requirements of
the Shareholders Agreement.
THE TRANSFER OF THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER
PROVISIONS SET FORTH IN A SHAREHOLDERS AGREEMENT DATED AS OF FEBRUARY
4, 2001 AMONG THE COMPANY AND CERTAIN SHAREHOLDERS NAMED THEREIN, A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY AND MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY.
4.5 Business Affairs. The Purchaser is aware of the Seller's
business affairs and financial condition and has acquired sufficient
information about the Seller to reach an informed and knowledgeable
decision to acquire the Shares. The Purchaser recognizes that investment in
the Shares involves a number of significant risks.
5. Fees and Expenses. Each party shall be responsible for payment of
its own fees and expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
6. Indemnification; Survival.
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6.1 Indemnity. Each of the Seller and the Purchaser agrees to
indemnify, defend and hold harmless the other, its affiliates and their
respective shareholders, directors, officers, partners, employees, agents,
successors and assigns from and against all losses, damages, liabilities,
deficiencies or obligations, including, without limitation, all claims,
actions, suits, proceedings, demands, judgments, assessments, fines,
interest, penalties, costs and expenses (including settlement costs and
reasonable legal fees) to which any of them may become subject as a result
of any and all misrepresentations or breaches of a representation or
warranty made by it herein.
6.2 Survival. All representations made herein by the Seller and
the Purchaser shall survive the closing of the transactions contemplated
hereby for a period of six (6) months. Any matter as to which a claim has
been asserted by notice to the other party that is pending or unresolved at
the end of such survival period shall continue to be covered by this
Section 6 until such matter is finally terminated or otherwise resolved by
the parties under this Agreement or by a court of competent jurisdiction
and any amounts payable hereunder are finally determined and paid.
7. Successors and Assigns; Parties in Interest. This Agreement shall
bind and inure to the benefit of (a) the Purchaser, (b) the Seller and (c)
their respective successors and assigns, including without limitation any
Person who succeeds to the rights and properties of the Seller as a result
of a merger, consolidation, acquisition of substantially all of the
Seller's assets or similar transaction. No party may assign its rights
under this Agreement without the consent of the other, which consent shall
not be unreasonably withheld; provided, however, that the Purchaser may
assign its rights under Section 6.1 hereof at any time to any Person which
it controls so long as such assignee assumes the obligations of the
Purchaser under Section 6.1 of this Agreement and Purchaser remains liable
for all such obligations.
8. Entire Agreement. This Agreement (as amended from time to time) and
the other writings referred to herein or delivered pursuant hereto which
form a part hereof contain the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
9. Notices. All notices, requests, consents and other communications
hereunder to any party shall be in writing and shall be delivered in person
or duly sent by overnight courier, facsimile transmission or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by the addressee to the
addressor listing all parties:
(a) If to the Purchaser:
Presencia en Medios, S.A. de ▇.▇.
▇▇▇▇▇▇ # ▇▇▇-▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
With a copy (which shall not constitute notice) to:
Fried, Frank , Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 212-859-4000
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(b) If to the Seller:
Princeton Video Image, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
Smith, Stratton, Wise, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been give in
the case of (a) facsimile transmission on the date sent, (b) personal
delivery on the date of such delivery, (c) overnight courier on the day
following delivery to such courier and (d) mailing on the third day after
the posting thereof.
10. Changes. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the consent of the affected party.
11. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute
but one agreement.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
conflict of laws.
14. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Further Assurances. The parties hereto shall, subsequent to the
date hereof, execute and deliver such further documentation, and take such
further action, in each case without cost to the other party, as shall be
reasonably requested by such other party hereto to further evidence and
perfect the completion of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf.
PRINCETON VIDEO IMAGE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:Chairman
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PRESENCIA EN MEDIOS, S.A. DE C.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title:Director General
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SCHEDULE 3.4
1. ▇▇▇▇ ▇▇▇▇▇▇ resigned as Vice President of Sales and Marketing
effective October 12, 2001.
2. Sportvision Inc. successfully inserted virtual advertising into
the World Series telecast, which was televised by Fox Network in
October and November 2001.
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Exhibit 2.4
$1,999,385.61 November 8, 2001
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises
to pay to Princeton Video Image, Inc. (the "Lender") at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ or at such other address as it may
designate in writing, on or before 5:00 p.m., Eastern Standard Time, on
November 15, 2001, the principal sum of one million nine hundred
ninety-nine thousand, three hundred eighty-five and 61/100 dollars
($1,999,385.61).
All amounts payable hereunder which are not paid when due shall bear
interest, compounded daily, at an annual rate of 12% from the date payment
was due to the date payment is made.
In case any part of the principal or interest payable hereunder is not
paid when due, the Borrower promises to pay, on demand, all costs and
expenses of collection, including, without limitation, reasonable
attorneys' fees, incurred by the Lender..
The Borrower hereby waives presentment, demand for payment, protest,
notice of dishonor and additional notice of any kind.
This Promissory Note shall be governed by the laws of the State of New
Jersey.
PRESENCIA EN MEDIOS, S.A. DE C.V.
By:
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Name:
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Title:
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