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Exhibit 99.1
NAVIDEC, INC.
STOCK AND NOTE PURCHASE AGREEMENT
JULY 23, 1999
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TABLE OF CONTENTS
(CONTINUED)
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TABLE OF CONTENTS
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1. Purchase and Sale of Stock and Note 1
1.1 Sale and Issuance of the Shares and the Note 1
1.2 Closing 1
1.3 Sale of Additional Note(s) 2
2. Representations and Warranties of the Company 2
2.1 Organization, Good Standing and Qualification 2
2.2 Capitalization and Voting Rights 3
2.3 Authorization 3
2.4 Valid Issuance of Shares, Note Shares, and the Note 3
2.5 Consents 4
2.6 Litigation 4
2.7 Patents and Trademarks 4
2.8 Legal Compliance 4
2.9 Compliance with Other Instruments 5
2.10 Agreements; Action 5
2.11 Permits 5
2.12 Disclosure 5
2.13 Registration Rights 6
2.14 Corporate Documents 6
2.15 SEC Filings; Company Financial Statements 6
2.16 Changes in Conditions 6
2.17 Minute Books 7
3. Representations and Warranties of WFC 7
3.1 Authorization 7
3.2 Purchase Entirely for Own Account 7
3.3 Disclosure of Information 7
3.4 Investment Experience 8
3.5 Accredited Investor 8
3.6 Restricted Securities 8
3.7 Further Limitations on Disposition 8
3.8 Legends 9
4. Conditions of WFC's Obligations at Closing 9
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TABLE OF CONTENTS
(CONTINUED)
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4.1 Representations and Warranties 9
4.2 Performance 9
4.3 Compliance Certificate 9
4.4 Qualifications 9
4.5 Proceedings and Documents 9
4.6 Registration Rights Agreement 10
4.7 Opinion of Company Counsel 10
4.8 Marketing Agreement and Pricing Commitment 10
5. Conditions of the Company's Obligations at Closing 10
5.1 Representations and Warranties 10
5.2 Qualifications 10
6. Other Agreements 10
6.1 Approval of Articles Amendment 10
6.2 Public Disclosure 10
6.3 Nasdaq Listing 11
6.4 Further Assurances 11
6.5 Expenses 11
7. Miscellaneous 11
7.1 Successors and Assigns 11
7.2 Governing Law 11
7.3 Counterparts 11
7.4 Titles and Subtitles 11
7.5 Notices 11
7.6 Finder's Fee 12
7.7 Survival of Warranties 12
7.8 Amendment and Waivers 12
7.9 Severability 12
7.10 Entire Agreement 12
EXHIBITS:
Exhibit A - Form of Navidec Note
Exhibit B - Schedule of Exceptions
Exhibit C - Form of Registration Rights Agreement
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STOCK AND NOTE PURCHASE AGREEMENT
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THIS STOCK AND NOTE PURCHASE AGREEMENT (this "AGREEMENT") is made as of
the 23rd day of July 1999 by and among Navidec, Inc., a Colorado corporation
(the "COMPANY"), and WFC Holdings Corporation, a Delaware corporation ("WFC" or
"INVESTOR").
RECITALS
WHEREAS, WFC desires to purchase from the Company 380,000 shares of the
Company's common stock ("COMMON STOCK") representing approximately 4.9% of the
Company's outstanding capital stock on the closing date (after giving effect to
the purchase hereunder) (the "SHARES") at a price of $10.00 per share, and the
Company desires to issue and sell to WFC the Shares, on the terms and subject to
the conditions set forth herein.
WHEREAS, WFC currently wishes to acquire, and the Company wishes to
sell, an additional 620,000 shares of the Company's non-voting Common Stock,
except that the Company's Articles of Incorporation ("ARTICLES") do not provide
for the issuance of non-voting Common Stock.
WHEREAS, WFC has agreed to lend, and the Company has agreed to borrow,
$6,200,000 represented by a note in the form attached hereto as EXHIBIT A (the
"NOTE") convertible initially into 620,000 shares of the Company's non-voting
Common Stock (the "NOTE SHARES").
WHEREAS, the conversion of the Note and the transfer of the Shares and
the Note Shares are subject to the restrictions of a Transfer and Conversion
Restriction Agreement (the "CONVERSION AGREEMENT") of even date herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company and WFC hereby agree as follows:
1. PURCHASE AND SALE OF STOCK AND NOTE
1.1 SALE AND ISSUANCE OF THE SHARES AND THE NOTE
. Subject to the terms and conditions of this Agreement, WFC agrees to purchase
at the Closing and the Company agrees to sell and issue to WFC at the Closing,
(a) the Shares at a per share price of $10.00, and (b) the Note in the principal
amount of Six Million Two Hundred Thousand Dollars ($6,200,000).
1.2 CLOSING
. The purchase and sale of the Shares and the Note shall take place at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, at 9:00 a.m., August 5, 1999 or at such other time and place as the
Company and WFC mutually agree (which time and place are designated as the
"CLOSING"). At the Closing, the Company will deliver to WFC a certificate
representing the Shares and the Note, and WFC will deliver to the Company
consideration for such
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Shares and the Note, consisting of a check or wire transfer payable to the order
of the Company in the amount of $10,000,000.
1.3 SALE OF ADDITIONAL NOTE(S)
.
(a) If after the Company's proposed public offering of the Company's
Common Stock (including any exercise(s) of the underwriter's option
(collectively the "PUBLIC OFFERING")), Investor owns less than 9.9% of the
Company's Fully Diluted capital stock (on an as converted basis and after giving
effect to the Public Offering price-based adjustment contained in the Note),
within 10 business days of the related closing Investor may make, in its sole
discretion, an additional loan hereunder pursuant to an irrevocable notice
(subject to customary closing conditions) in such amount so that Investor, upon
conversion of the initial Note and the additional loan, will own 9.9% of the
Company's Fully Diluted capital stock (after giving effect to the Public
Offering price based adjustment contained in the initial Note). Such 10-business
day period shall be extended to the extent reasonably necessary or practicable
to permit the closing of such loan(s). "FULLY DILUTED" means all shares of
Company Common Stock outstanding or issuable upon exercise of all outstanding
and reserved options, warrants or other convertible, exercisable or exchangeable
securities convertible, exercisable or exchangeable into shares of the Company
capital stock (on an as converted to Common Stock basis).
(b) Upon the funding of each additional loan hereunder, the Company
shall issue to the Investor an additional note substantially the same as the
initial Note, except that (i) the number of shares Company Common Stock into
which any additional Note(s) may be converted shall be based on the lower of
$10.00 per share of Common Stock or the per share price received by the Company
in the Public Offering and (ii) the additional note(s) shall not contain the
Public Offering price-based adjustment contained in the initial Note.
(c) Unless context requires otherwise, reference herein to the "NOTE"
shall be a collective reference to the initial and any subsequent notes issued
pursuant to the terms of this Section 1.3.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
. Unless context indicates otherwise, reference to the "COMPANY" shall be deemed
to be reference the Company and any of its subsidiaries. The Company hereby
represents and warrants to WFC that, except as set forth on the Schedule of
Exceptions attached as EXHIBIT B (the "SCHEDULE OF EXCEPTIONS"):
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION
. The Company is duly organized, validly existing and in good standing under the
laws of its state of incorporation and has all requisite corporate power and
authority to own and operate its property and assets and to carry on its
business as proposed to be conducted, to execute and deliver this Agreement, the
Note and the Registration Rights Agreement attached hereto as EXHIBIT C (the
"RIGHTS AGREEMENT") and the Conversion Agreement (collectively, the "ANCILLARY
AGREEMENTS"), to issue and sell the Shares, to issue the Note and the Common
Stock issuable upon conversion
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thereof, and to carry out the provisions of this Agreement and each Ancillary
Agreement (subject to amendment of its Articles of Incorporation (the
"ARTICLES") as amended). The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business, properties, prospects or
financial condition.
2.2 CAPITALIZATION AND VOTING RIGHTS
. The authorized capital of the Company consists of twenty million (20,000,000)
shares of Common Stock, of which as of June 30, 1999 Seven Million Three Hundred
Ninety-Three Thousand Six Hundred Fourteen (7,393,614) shares are issued and
outstanding. The outstanding shares of Common Stock are all duly and validly
authorized and issued, fully paid and nonassessable, and were issued in
compliance with the registration or qualification provisions of the Securities
Act of 1933, as amended (the "ACT") and any relevant state securities laws or
pursuant to valid exemptions therefrom. The Company has reserved Two Million
(2,000,000) shares of its Common Stock for issuance under its stock option plans
(collectively, the "COMPANY STOCK PLANS").
(iii) Except under the Company Stock Plans or as set forth on the
Schedule of Exceptions, there are not outstanding any options, notes, rights
(including conversion or preemptive rights or rights of first refusal) or
obligations for the purchase or acquisition from the Company of any shares of
its capital stock. Except as set forth on the Schedule of Exceptions, the
Company is not a party or subject to any agreement or understanding and, to the
best of the Company's knowledge, there is no agreement or understanding between
any other persons or entities which affects or relates to the voting or giving
of written consents with respect to any security or by a director of the
Company.
2.3 AUTHORIZATION
. Subject to stockholder approval of an amendment to the Company's Articles to
allow for the issuance of non-voting Common Stock in connection with the
conversion of the Note and for free convertibility of non-voting Common Stock
into voting Common Stock (the "ARTICLES APPROVAL"), all corporate action on the
part of the Company and its officers, directors and stockholders necessary for
the authorization, execution and delivery of this Agreement and the Ancillary
Agreements, the performance of all obligations of the Company hereunder and
thereunder, and the authorization, issuance (or reservation for issuance), sale
and delivery of the Shares and the Note being sold hereunder and the Note Shares
issuable upon conversion of the Note has been taken or will be taken prior to
the Closing, and this Agreement and the Ancillary Agreements constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent the indemnification provisions
contained in Rights Agreement may be limited by applicable federal or state
securities laws. The Company's Board of Directors has unanimously approved the
Articles Approval.
2.4 VALID ISSUANCE OF SHARES, NOTE SHARES, AND THE NOTE
. The Shares and the Note being purchased by WFC hereunder, when issued, sold
and delivered in
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accordance with the terms of this Agreement for the consideration expressed
herein, will be validly issued, fully paid and nonassessable (in the case of the
Shares) and will be free of restrictions on transfer other than restrictions on
transfer under this Agreement, the Conversion Agreement or the Bank Holding
Company Act (the "BHC ACT") and applicable securities laws and, based in part
upon the representations of WFC in this Agreement, will be issued in compliance
with the registration and qualification provisions of all applicable federal and
state securities laws. Subject to the Articles Approval, the Note Shares
issuable upon conversion of the Note have been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Note, will be
validly issued, fully paid and nonassessable and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement, the BHC Act
and applicable securities laws.
2.5 CONSENTS
. Except as set forth on the Schedule of Exceptions, no consent, approval, order
or authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of a
company or any other person or entity not a party to this Agreement is required
in connection with the consummation of the transactions contemplated by this
Agreement, except for the filing pursuant to Section 25102(f) of the California
Corporate Securities Law of 1968, as amended, and the rules thereunder, which
filings will be effected within 15 days of the sale of the Shares or within 15
days of the issuance of the Note Shares and the Note hereunder or within 15 days
of the issuance of the Note Shares.
2.6 LITIGATION
. There is no action, suit, proceeding or investigation pending or currently
threatened against the Company that questions the validity of this Agreement or
the Ancillary Agreements, or the right of the Company, as applicable, to enter
into any such agreement, or to consummate the transactions contemplated hereby
or thereby, or that might have, either individually or in the aggregate, a
material adverse effect on the assets or condition of the Company and
financially or otherwise (a "MATERIAL ADVERSE EFFECT").
2.7 PATENTS AND TRADEMARKS
. To the best of its knowledge, the Company owns or possesses sufficient legal
rights to all patents, trademarks, servicemarks, trade names, copyrights, trade
secrets, licenses, information, proprietary rights and processes necessary for
its business as now conducted without any conflict with or infringement of the
rights of others, except for any failure that individually or in the aggregate
would not have a Material Adverse Effect on the Company. The Company has not
received any oral or written communications alleging that it has violated or
that its business as currently conducted would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity, except for any such violation
that individually or in the aggregate would not have a Material Adverse Effect
on the Company.
2.8 LEGAL COMPLIANCE
. The Company has complied in all material respects with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, regional, local,
and foreign governments (and all agencies thereof), and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been filed or
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commenced against it alleging any failure so to comply, except for any such case
that would individually or in the aggregate would not result in a Material
Adverse Effect.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS
. The Company is not in violation or default of any provision of its Articles or
Bylaws, or, except as provided in the Schedule of Exceptions, in any material
respect of any instrument, judgment, order, writ, decree or contract to which it
is a party or by which it is bound, or, to the best of its knowledge, of any
provision of any federal or state statute, rule or regulation applicable to it.
The execution, delivery and performance by the Company of this Agreement and the
Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby will not result in any such violation or be in conflict with
or constitute, with or without the passage of time and giving of notice, either
a default under any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization, or approval applicable to the Company, its business or operations
or any of its assets or properties.
2.10 AGREEMENTS; ACTION
.
(a) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Articles or Bylaws, that adversely affects its business as now conducted, its
properties or its financial condition (including exclusive licensing or
distribution agreements and non-compete agreements).
(b) The Company is not party to any agreement with any financial
institution which provides for delivery of a Drive-Off solution prior to, or on
terms more favorable than, the solution proposed to be delivered to ▇▇▇▇▇ Fargo
& Co. under the agreements between it and the Company (relative to the
co-branded site).
(c) The Company has no current plans to (i) consolidate with or
merge into any other corporation, (ii) sell, convey or dispose of all or
substantially all of the assets of the Company or engage in a series of related
transactions in which more than fifty percent (50%) of the voting power of the
Company would be disposed of with any corporation, partnership, association or
other business entity or individual, in connection with a change of control or
(iii) engage in any other form of acquisition, liquidation, dissolution or
winding up the Company.
2.11 PERMITS
. The Company has all franchises, permits, licenses, and any similar authority
necessary for the conduct of its business as now being conducted by it, the lack
of which could have a Material Adverse Effect on the Company, and the Company
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Company is not
in default in any material respect under any of such franchises, permits,
licenses, or other similar authority.
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2.12 DISCLOSURE
. The Company has fully provided WFC with all the information that WFC has
requested for deciding whether to purchase the Shares and the Note and all
information which the Company believes is reasonably necessary to enable a
reasonable WFC to make such decision. Neither this Agreement nor any other
statements or certificates made or delivered in connection herewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading.
2.13 REGISTRATION RIGHTS
. Except as provided in the Rights Agreement or in the Schedule of Exceptions,
the Company has not granted or agreed to grant any registration rights pursuant
to any agreement currently still in effect, including piggyback rights, to any
person or entity.
2.14 CORPORATE DOCUMENTS
. The Articles and Bylaws of the Company are in the form previously provided to
counsel for WFC.
2.15 SEC FILINGS; COMPANY FINANCIAL STATEMENTS
.
(a) The Company has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission (the
"SEC") since January 1, 1996, and has made available to WFC such forms, reports
and documents in the form filed with the SEC. All such required forms, reports
and documents (including those that the Company may file subsequent to the date
hereof) are referred to herein as the "COMPANY SEC REPORTS." As of their
respective dates, Company SEC Reports (i) were prepared in accordance with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC thereunder applicable to such the Company
SEC Reports, and (ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. None of the Company's subsidiaries is required to file any
forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the Company SEC Reports,
including any Company SEC Reports filed after the date hereof until the Closing,
(i) complied as to form in all material respects with the published rules and
regulations of the SEC with respect thereto, (ii) was prepared in accordance
with GAAP applied on a consistent basis throughout the periods involved (except
as may be indicated in the Note thereto or, in the case of unaudited interim
financial statements, as may be permitted by the SEC on Form 10-Q under the
Securities Exchange Act of 1934) and (iii) fairly presented the consolidated
financial position of the Company and its subsidiaries as at the respective
dates thereof and the consolidated results of the Company's operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements may not contain footnotes and were or are subject to normal and
recurring year-end adjustments.
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2.16 CHANGES IN CONDITIONS
. Since December 31, 1998, there has not been:
(a) any material sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets owned by the
Company or sale of a material amount of other assets (other than any transfer to
its subsidiary ▇▇▇▇▇▇▇▇.▇▇▇, Inc.) ;
(b) any resignation or termination of employment of any key
officer of the Company;
(c) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company; or
(d) to the Company's knowledge, any other event or condition
of any character which might have a Material Adverse Effect on the Company.
2.17 MINUTE BOOKS
. The minute books of the Company provided to counsel to WFC contain a complete
summary of all meetings of directors and stockholders (prior to becoming a
public company) and all actions by written consent without a meeting by the
directors and stockholders since the time of incorporation and reflect all
actions by the directors (and any committee of the directors) and stockholders
referred to in such minutes accurately in all material respects.
3. REPRESENTATIONS AND WARRANTIES OF WFC
. WFC hereby represents and warrants that:
3.1 AUTHORIZATION
. WFC has full power and authority to enter into this Agreement, and the
Ancillary Agreements, and each such agreement constitutes its valid and legally
binding obligation to which it is a party, enforceable 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, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent the indemnification provisions contained in
Registration Rights Agreement may be limited by applicable federal or state
securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT
. This Agreement is made with WFC in reliance upon its representation to the
Company, which by its execution of this Agreement it hereby confirms, that the
Shares and Note to be received by WFC and, the Note Shares issuable upon
conversion of the Note (collectively, the "SECURITIES") will be acquired for
investment for WFC's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that WFC has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, WFC further represents that it does not
have any contract, undertaking, agreement or arrangement
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with any person to sell, transfer or grant participation to such person or to
any third person, with respect to any of the Securities.
3.3 DISCLOSURE OF INFORMATION
. WFC believes it has received all the information it considers necessary or
appropriate for deciding whether to purchase the Shares and the Note. WFC
further represents that it has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the offering of
such Shares and the Note and the business, properties 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 WFC to rely thereon.
3.4 INVESTMENT EXPERIENCE
. WFC is an investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Shares and the Note. WFC also represents it has not been organized solely
for the purpose of acquiring the Shares and the Note.
3.5 ACCREDITED INVESTOR
. WFC is an "ACCREDITED INVESTOR" within the meaning of SEC Rule 501 of
Regulation D, as presently in effect.
3.6 RESTRICTED SECURITIES
. WFC understands that the Securities it is purchasing 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 Securities Act of 1933, as amended (the
"ACT"), only in certain limited circumstances. In addition, WFC represents that
it is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.7 FURTHER LIMITATIONS ON DISPOSITION
. Without in any way limiting the above, WFC further agrees not to make any
disposition of all or any portion of the Securities unless, and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and Section 6 of this Agreement, and:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) WFC shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, WFC shall have furnished the Company with an opinion
of counsel, reasonably satisfactory to the Company that such disposition will
not require registration of such shares under the Act. It is agreed that the
Company
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will not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such Registration Statement or opinion of counsel shall be necessary
for a transfer by a partnership to a partner of such partnership or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner or the transfer by gift, will or
intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were an original investor hereunder.
3.8 LEGENDS
. It is understood that the certificates evidencing the Securities shall bear
the following legend:
"The securities represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933, as amended. Such securities may not be sold or
transferred in the absence of such registration or unless the
Corporation receives an opinion of counsel reasonably acceptable to it
stating that such sale or transfer is exempt from the registration and
prospectus delivery requirements of said Act. Copies of the agreements
covering the purchase of these shares and restricting their transfer
may be obtained at no cost by written request made by the holder of
record of this Certificate to the Secretary of the Corporation at the
principal executive offices of the Corporation."
4. CONDITIONS OF WFC'S OBLIGATIONS AT CLOSING
. The obligations of WFC to purchase the Shares and the Note at the Closing are
subject to the fulfillment of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES
. The representations and warranties of the Company contained in Section 2 shall
be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Closing.
4.2 PERFORMANCE
. The Company shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
COMPLIANCE CERTIFICATE. The President of the Company shall deliver to WFC at the
Closing a certificate stating that the conditions specified in Sections 4.1 and
4.2 have been fulfilled.
QUALIFICATIONS. All prior authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection
with the
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transactions contemplated at the Closing and all documents incident thereto
shall be reasonably satisfactory in form and substance to WFC's counsel, and
they shall have received all such counterpart original and certified or other
copies of such documents as they may reasonably request.
4.6 REGISTRATION RIGHTS AGREEMENT
. The Company and WFC shall have entered into the Registration Rights Agreement
in the form attached hereto as EXHIBIT C.
OPINION OF COMPANY COUNSEL. WFC shall have received from Benesch, Friedlander,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, an opinion in form and substance
reasonably satisfactory to WFC's dated as of the Closing.
4.8 MARKETING AGREEMENT AND PRICING COMMITMENT
. ▇▇▇▇▇ Fargo & Co. and the Company shall have prior to or simultaneously to the
Closing entered into the Marketing Agreement and Pricing Commitment.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
. The obligations of the Company to WFC under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
WFC:
5.1 REPRESENTATIONS AND WARRANTIES
. The representations and warranties of WFC contained in Section 3 shall be true
on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
5.2 QUALIFICATIONS
. All authorizations, approvals, or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are
required in connection with the lawful issuance and sale of the Securities
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
6. OTHER AGREEMENTS
.
6.1 APPROVAL OF ARTICLES AMENDMENT
. In connection with each Company stockholders meeting after the date hereof
(annual or special), the Company will take all action necessary in accordance
with the Colorado law and its Articles of Incorporation and Bylaws to effect the
Articles Amendment until such amendment is adopted. The Company will use its
commercially reasonable efforts to solicit from its stockholders proxies in
favor of the adoption and approval of the Articles Amendment and will take all
other action necessary or advisable to secure the vote or consent of its
stockholders required by the rules of Nasdaq or Colorado law to obtain such
approvals. In each proxy statement with respect to each such stockholders
meeting the Company's Board of Directors shall recommend that the Company
stockholders approve the Articles Amendment. WFC agrees to vote all of its
shares of Common Stock in favor of the Articles Amendment.
6.2 PUBLIC DISCLOSURE
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. WFC and the Company will consult with each other, and to the extent
practicable, agree, before issuing any press release or otherwise making any
public statement with respect to the transaction contemplated hereby (including
any statement contained in a document filed by the Company with the SEC) and
will not issue any such press release or make any such public statement prior to
such consultation, except as may be required by law or any listing agreement
with a national securities exchange.
6.3 NASDAQ LISTING
. The Company agrees to authorize for listing on Nasdaq the shares of Company
Common Stock issuable, and those required to be reserved for issuance, in
connection with this Agreement and the Note.
6.4 FURTHER ASSURANCES
. Upon the terms and subject to the conditions set forth in this Agreement, each
of the parties agrees to use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
6.5 EXPENSES
. The Company shall pay all costs and expenses that it incurs with respect to
the negotiation, execution, delivery and performance of this Agreement. The
Company shall reimburse WFC for all reasonable fees and expenses (including
without limitation all accounting, consulting, travel and other third party fees
and expenses) up to $40,000.
7. MISCELLANEOUS
.
7.1 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 Securities).
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.
7.2 GOVERNING LAW
. This Agreement shall be governed by and construed under the laws of the State
of Delaware as applied to agreements among California residents entered into and
to be performed entirely within Delaware.
7.3 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.
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7.4 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.
7.5 NOTICES
. All notices and other communications required or permitted hereunder shall be
in writing, shall be effective when given, and shall in any event be deemed to
be given upon receipt or, if earlier, (a) five (5) days after deposit with the
U.S. Postal Service or other applicable postal service, if delivered by first
class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one
(1) business day after the business day of deposit with Federal Express or
similar overnight courier, freight prepaid or (d) one (1) business day after the
business day of facsimile transmission, if delivered by facsimile transmission
with copy by first class mail, postage prepaid, and shall be addressed (i) if to
any WFC, at WFC's address as set forth beneath WFC's signature to this
Agreement, and (ii) if to the Company, at the address of its principal corporate
offices (attention: Secretary), or at such other address as a party may
designate by ten days' advance written notice to the other party pursuant to the
provisions above.
7.6 FINDER'S FEE
. Except for any fee payable to First Security ▇▇▇ ▇▇▇▇▇▇ in connection with the
transactions contemplated by this Agreement (which must be acceptable to WFC),
each party represents that it neither is nor will be obligated for any finders'
fee or commission in connection with this transaction. WFC agrees to indemnify
and hold harmless the Company from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which WFC or any of
its officers, partners, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless WFC from any liability for any
commission or compensation in the nature of a finders' fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its directors, officers, employees or representatives is
responsible.
7.7 SURVIVAL OF WARRANTIES
. The warranties, representations and covenants of the Company and Investor
contained in or made pursuant to this Agreement shall not survive.
7.8 AMENDMENT AND WAIVERS
. Any term of this Agreement may be amended and 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 the holders
of a majority of the Common Stock issued hereunder and issuable upon conversion
of the Note. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and the
Company.
7.9 SEVERABILITY
. If one or more provisions of this Agreement are held to be unenforceable under
applicable law,
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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.
7.10 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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[NAVIDEC STOCK AND NOTE PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Stock and Note
Purchase Agreement as of the date first above written.
COMPANY: NAVIDEC, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, President
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Benesch, Friedlander, ▇▇▇▇▇▇ & Aronoff LLP
▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WFB: ▇▇▇▇▇ FARGO HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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