The following Form of Securities Purchase Agreement was entered into with the
following individuals and entities as follows:
INDIVIDUAL / ENTITY DATE OF AGREEMENT SHARES PURCHASED PURCHASE PRICE ($)
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ October 27, 1999 666,667 500,000.25
▇▇▇▇ ▇. ▇▇▇▇▇▇ October 26, 1999 266,667 200,000.25
▇▇▇▇ ▇. ▇▇▇▇▇ October 26, 1999 200,000 150,000.00
O.T. Finance, SA October 26, 1999 22,000 16,500.00
▇▇▇▇ Trust October 26, 1999 28,000 21,000.00
The ▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable October 26, 1999 10,000 7,500.00
Living Trust
▇▇▇▇▇ Partners, L.P. October 26, 1999 140,000 105,000.00
VDC COMMUNICATIONS, INC.
-------------------------------------
FORM OF SECURITIES PURCHASE AGREEMENT
-------------------------------------
SHARES OF COMMON STOCK
AT $0.75 PER SHARE
-------------------------------------
OCTOBER -----, 1999
CONFIDENTIAL
------------
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement" or the "Securities
Purchase Agreement") is entered into as of the _____th day of October, 1999, by
and between VDC Communications, Inc., a Delaware corporation ("VDC" or the
"Company"), and the investor whose name appears at the end of this Agreement
("Purchaser" or "Subscriber").
R E C I T A L S:
----------------
The Company wishes to obtain additional working capital and the
Purchaser desires to provide such working capital to the Company through the
purchase of certain shares of the Company's common stock, $.0001 par value per
share (the "Common Stock"), being privately offered by the Company.
NOW, THEREFORE, in consideration of the premises hereof and the
agreements set forth herein below, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Sale and Purchase of Shares.
Subject to the terms and conditions hereof, the Company agrees
to issue and sell, and the Purchaser agrees to purchase that number of shares of
Common Stock (the "Shares") identified on the signature page hereof at a
purchase price of $0.75 per share. The total purchase price is set forth on the
signature page hereof (the "Purchase Price"). The Purchase Price is payable upon
subscription in cash, check or wire transfer. If paying by check, the check
should be made payable to "VDC Communications, Inc." and delivered to VDC
Communications, Inc. at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
No broker, investment banker or any other person will receive
from the Company any compensation as a broker, finder, adviser or in any other
capacity in connection with the purchase of the Shares hereunder.
2. Description of the Shares.
(a) Restricted Securities. The Shares shall be "restricted
securities" as that term is defined under Rule 144 of the Securities Act of
1933, as amended (the "Act"), and may not be offered for sale or sold or
otherwise transferred in a transaction which would constitute a sale thereof
within the meaning of the Act unless (i) such security has been registered for
sale under the Act and registered or qualified under applicable state securities
laws relating to the offer and sale of securities; or (ii) exemptions from the
registration requirements of the Act and the registration or qualification
requirements of all such state securities laws are available and the Company
shall have received an opinion of counsel that the proposed sale or other
disposition of such securities may be effected without registration under the
Act and would not result in any violation of any applicable state securities
2
laws relating to the registration or qualification of securities for sale, such
counsel and such opinion to be satisfactory to the Company.
(b) Voting Rights; Dividends. Holders of Common Stock of the
Company have equal rights to receive dividends when, as, and if declared by the
Board of Directors out of funds legally available therefor. Holders of Common
Stock of the Company have one vote for each share held of record and do not have
cumulative voting rights.
(c) Liquidation; Redemption. Holders of Common Stock of the
Company are entitled upon liquidation of the Company to share ratably in the net
assets available for distribution, subject to the rights, if any of holders of
any preferred stock of the Company then outstanding. Shares of Common Stock of
the Company are not redeemable and have no preemptive or similar rights. All
outstanding shares of Common Stock of the Company are fully paid and
nonassessable.
(d) Restriction Upon Resale. The Subscriber hereby agrees that
the Shares shall be subject to restrictions upon the transfer, sale, encumbrance
or other disposition of the Shares. See "UNDERSTANDING OF INVESTMENT RISKS" AND
"REGISTRATION RIGHTS".
3. Shares Offered in a Private Placement Transaction.
The Shares offered by this Securities Purchase Agreement are
being offered as a non-public offering pursuant to Section 4(2) and Regulation D
of the Act ("Regulation D").
4. Binding Effect of Securities Purchase Agreement; The Closing.
This Securities Purchase Agreement shall not be binding on the
Company unless and until an authorized executive officer of the Company has
evidenced acceptance thereof by executing the signature page at the end hereof.
The Company may accept or reject this Securities Purchase Agreement in its sole
discretion if the Purchaser does not meet the suitability standards established
herein, or for any other reason. A closing (the "Closing") will occur
contemporaneously with the execution of this Agreement by all parties hereto.
5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company as follows:
(a) Accredited Investor. The Purchaser has such knowledge and
experience in business and financial matters such that the Purchaser is capable
of evaluating the merits and risks of purchasing the Shares. The Purchaser is
either an "accredited investor" as that term is defined in Rule 501 of
Regulation D of the Act or a "qualified institutional buyer" as that term is
defined in Rule 144A of the Act, and represents that he satisfies the
suitability standards identified in Section 10 hereof;
3
(b) Loss of Investment. The Purchaser('s) (i) overall
commitment to investments which are not readily marketable is not
disproportionate to his net worth; (ii) investment in the Company will not cause
such overall commitment to become excessive; (iii) can afford to bear the loss
of his entire investment in the Company; and (iv) has adequate means of
providing for his current needs and personal contingencies and has no need for
liquidity in his investment in the Company;
(c) Special Suitability. The Purchaser satisfies any special
suitability or other applicable requirements of his state of residence and/or
the state in which the transaction by which the Shares are purchased occurs;
(d) Investment Intent. The Purchaser hereby acknowledges that
the Purchaser has been advised that this offering has not been registered with,
or reviewed by, the Securities and Exchange Commission ("SEC") because this
offering is intended to be a non-public offering pursuant to Section 4(2) and
Regulation D of the Act. The Purchaser represents that the Purchaser's Shares
are being purchased for the Purchaser's own account and not on behalf of any
other person, for investment purposes only and not with a view towards
distribution or resale to others. The Purchaser agrees that the Purchaser will
not attempt to sell, transfer, assign, pledge or otherwise dispose of all or any
portion of the Shares unless they are registered under the Act or unless in the
opinion of counsel an exemption from such registration is available, such
counsel and such opinion to be satisfactory to the Company. The Purchaser
understands that the Shares have not been registered under the Act by reason of
a claimed exemption under the provisions of the Act which depends, in part, upon
the Purchaser's investment intention;
(e) State Securities Laws. The Purchaser understands that no
securities administrator of any state has made any finding or determination
relating to the fairness of this investment and that no securities administrator
of any state has recommended or endorsed, or will recommend or endorse, the
offering of the Shares;
(f) Authority; Power; No Conflict. The execution, delivery and
performance by the Purchaser of the Agreement are within the powers of the
Purchaser, have been duly authorized and will not constitute or result in a
breach or default under, or conflict with, any order, ruling or regulation of
any court or other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which the Purchaser is a party or by which
the Purchaser is bound, and, if the Purchaser is not an individual, will not
violate any provision of the charter documents, Bylaws, indenture of trust,
operating agreement, or partnership agreement, as applicable, of the Purchaser.
The signatures of the Purchaser on the Agreement are genuine, and the signatory,
if the Purchaser is an individual, has legal competence and capacity to execute
the same, or, if the Purchaser is not an individual, the signatory has been duly
authorized to execute the same; and the Agreement constitutes the legal, valid
and binding obligations of the Purchaser, enforceable in accordance with its
terms;
(g) No General Solicitation. The Purchaser acknowledges that
no general solicitation or general advertising (including communications
published in any newspaper, magazine or other broadcast) has been received by
4
him and that no public solicitation or advertisement with respect to the
offering of the Shares has been made to him;
(h) Advice of Tax and Legal Advisors. The Purchaser has relied
solely upon the advice of his own tax and legal advisors with respect to the tax
and other legal aspects of this investment;
(i) Broker Fees. The Purchaser is not aware that any person,
and has been advised that no person, will receive from the Company any
compensation as a broker, finder, adviser or in any other capacity in connection
with the purchase of the Shares;
(j) Access to Information. Purchaser has had access to all
material and relevant information concerning the Company, its management,
financial condition, capitalization, market information, properties and
prospects necessary to enable Purchaser to make an informed investment decision
with respect to its investment in the Shares. Purchaser has carefully read and
reviewed, and is familiar with and understands the contents thereof and hereof,
including, without limitation, the risk factors referenced in this Agreement.
See "UNDERSTANDING OF INVESTMENT RISKS." Purchaser acknowledges that it has had
the opportunity to ask questions of and receive answers from, and to obtain
additional information from, representatives of the Company concerning the terms
and conditions of the acquisition of the Shares and the present and proposed
business and financial condition of the Company, and has had all such questions
answered to its satisfaction and has been supplied all information requested;
(k) Review of Reports. The Purchaser acknowledges that it has
been provided with an opportunity to review: (i) a copy of the Company's Annual
Report on Form 10-K for the year ended June 30, 1999; (ii) a copy of the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, as
amended; (iii) a copy of the Company's Registration Statement on Form S-1 (SEC
File Number 333-80107); and (iv) all other recent reports filed by the Company
with the Securities and Exchange Commission under the Securities Exchange Act of
1934 (collectively, the "Reports").
(l) Understanding the Nature of Securities. The Purchaser
understands and acknowledges that:
(i) The Shares have not been registered under the
Act or any state securities laws and are being issued and sold in reliance upon
certain exemptions contained in the Act;
(ii) The Shares are "restricted securities" as that
term is defined in Rule 144
promulgated under the Act;
(iii) The Shares cannot be sold or transferred
without registration under the Act and applicable state securities laws, or
unless the Company receives an opinion of counsel reasonably acceptable to it
5
(as to both counsel and the opinion) that such registration is not necessary;
and
(iv) The Shares and any certificates issued in
replacement therefor shall bear the
following legend, in addition to any other legend required by law or otherwise:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
REGISTRATION, OR THE AVAILABILITY OF EXEMPTION FROM REGISTRATION,
UNDER THE ACT and any applicable state securities laws, BASED ON AN
OPINION LETTER OF COUNSEL SATISFACTORY TO THE COMPANY."
(m) Information Provided. The Purchaser has, on or before the
date of the Closing, been afforded the opportunity to review and is familiar
with the Reports and has based his decision to invest solely on the information
contained therein, and the information contained within this Agreement and the
associated exhibits and schedules, and has not been furnished with and is not
relying upon any other literature, prospectus or other information except as
included in the Reports or this Agreement.
6. Indemnification. The Purchaser shall indemnify and hold harmless the
Company and the Company's officers, directors and employees from and against any
and all loss, damage or liability (including attorneys' fees), due to, or
arising out of, a breach or inaccuracy of any representation or warranty
contained in Section 5.
7. Understanding of Investment Risks. Any investment in the Shares
should not be made by a Purchaser who cannot afford the loss of his entire
Purchase Price. THE PURCHASER ACKNOWLEDGES THAT THE SHARES OFFERED HEREBY HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, OR
ANY STATE SECURITIES COMMISSIONS, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
SECURITIES PURCHASE AGREEMENT OR ANY EXHIBIT HERETO. PRIOR TO MAKING AN
INVESTMENT IN THE SHARES, THE PURCHASER HAS FULLY CONSIDERED, AMONG OTHER
THINGS, THE FINANCIAL AND OTHER INFORMATION SET FORTH IN THE REPORTS AS WELL AS
THE RISK FACTORS ENUMERATED IN THE COMPANY'S FORM 10-K FOR THE YEAR ENDED JUNE
30, 1999, AND ACKNOWLEDGES THAT SUCH INFORMATION HAS BEEN CONSIDERED PRIOR TO
MAKING THIS INVESTMENT DECISION.
8. Registration Rights. The Company has agreed to advise the Purchaser
by written notice prior to the filing of a registration statement under the Act
(excluding registration on Forms ▇-▇, ▇-▇ or any successor forms thereto),
covering securities of the Company to be offered and sold to the public
generally (whether on behalf of the Company or selling security holders) and
6
shall, upon the request of the Purchaser given at least five (5) calendar days
prior to the filing of such registration statement, include in any such
registration statement such information as may be required to permit the public
resale of the Shares; provided, however, that in the event the resale of the
Shares has not been previously included within a registration statement, the
Company shall in any event file a registration statement under the Act within
one year of the Closing, the purpose of which is to register the resale of the
Shares. The registration rights associated with the Shares are described more
particularly and are subject in full to the terms of a Registration Rights
Agreement between the parties and dated the date hereof (the "Registration
Rights Agreement").
The Company is currently working on a registration statement
on Form S-1 (the "Current S-1"); Further, the Company shall use reasonable
efforts to include the Shares in the Current S-1; provided, however, that an
explicit condition precedent to the inclusion of the Shares in the Current S-1
is that the Purchaser shall immediately return or provide to the Company, or
return or provide upon such other schedule as the Company shall provide in
writing, any document or information requested by the Company in connection with
or associated with the inclusion of the Shares in the Current S-1. This
paragraph shall serve as written notice prior to the filing of a registration
statement in accordance with the terms of the Registration Rights Agreement.
The Company's obligation to register the Shares extends only
to the inclusion of the Shares in a registration statement which covers the
public resale thereof. In all events, the Company shall have no obligation: (i)
to assist or cooperate in the offering or disposition of such Shares; (ii) to
obtain a commitment from an underwriter relative to the sale of such Shares; or
(iii) to include such Shares within an underwritten offering of the Company. The
Company shall assume no responsibility for the manner of sale, timing of sale,
or sales price relating to the resale of the Shares.
9. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser as follows:
(a) Organization and Standing of the Company. The Company is a
duly organized and validly existing corporation in good standing under the laws
of the State of Delaware with adequate power and authority to conduct the
business in which it is now engaged and has the corporate power and authority to
enter into this Agreement, and is duly qualified and licensed to do business as
a foreign corporation in such other jurisdictions as is necessary to enable it
to carry on its business, except where failure to do so would not have a
material adverse effect on its business;
(b) Corporate Power and Authority. The execution and delivery
of this Agreement and the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Company. No other corporate act or
proceeding on the part of the Company is necessary to authorize this Agreement.
When duly executed and delivered by the parties hereto, this Agreement will
constitute a valid and legally binding obligation of the Company enforceable
against it in accordance with its terms, except as such enforceability may be
7
limited by (i) bankruptcy, insolvency, moratorium, reorganization or other
similar laws and legal and equitable principles limiting or affecting the rights
of creditors generally; and/or (ii) general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
10. IMPORTANT CONSIDERATIONS: SUITABILITY STANDARDS - WHO SHOULD
INVEST.
INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE OF RISK AND IS
SUITABLE ONLY FOR PERSONS OF SUBSTANTIAL FINANCIAL RESOURCES WHO HAVE NO NEED
FOR LIQUIDITY IN THEIR INVESTMENT.
A substantial number of state securities commissions have
established investor suitability standards for the marketing within their
respective jurisdictions of restricted securities. Some have also established
minimum dollar levels for purchases in their states. The reasons for these
standards appear to be, among others, the relative lack of liquidity of
securities of such programs as compared with other securities investments.
Investment in the Shares involves a high degree of risk and is suitable only for
persons of substantial financial means who have no need for liquidity in their
investments.
The Company has adopted as a general investor suitability
standard the requirement that each Subscriber for Shares represents in writing
that the Subscriber: (a) is acquiring the Shares for investment and not with a
view to resale or distribution; (b) can bear the economic risk of losing his
entire investment; (c) his overall commitment to investments which are not
readily marketable is not disproportionate to his net worth, and an investment
in the Shares will not cause such overall commitment to become excessive; (d)
has adequate means of providing for his current needs and personal contingencies
and has no need for liquidity in this investment in the Shares; (e) has
evaluated all the risks of investment in the Company; and (f) has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of investing in the Company or is relying on his own
purchaser representative in making an investment decision.
In addition, all of the Subscribers for Shares must be: (1)
extremely sophisticated investors with substantial net worth and experience in
making investments of this nature; and (2) "accredited investors," as defined in
Rule 501 of Regulation D under the Act, by meeting any of the following
conditions:
(i) he or she has an individual income in excess of $200,000
in each of the two most recent years or joint income with his or her spouse in
excess of $300,000 in each of those years, and he or she reasonably expects an
income in excess of the aforesaid levels in the current year, or
8
(ii) he or she has an individual net worth, or a joint net
worth with his or her spouse, at the time of his or her purchase, in excess of
$1,000,000 (net worth for these purposes includes homes, home furnishings and
automobiles), or
(iii) he or she otherwise satisfies the Company that he or she
is an accredited investor, as defined in Rule 501 under the Act.
Other categories of investors included within the definition
of accredited investor include the following: certain institutional investors,
including certain banks, whether acting in their individual or fiduciary
capacities; certain insurance companies; federally registered investment
companies; business development companies (as defined under the Investment
Company Act of 1940); Small Business Investment Companies licensed by the Small
Business Administration; certain employee benefit plans; private business
development companies (as defined in the Investment Advisers Act of 1940); tax
exempt organizations (as defined in Section 501(c)(3) of the Internal Revenue
Code) with total assets in excess of $5,000,000; entities in which all the
equity owners are accredited investors; and certain affiliates of the Company.
A partnership Subscriber, which satisfies the requirements set
forth in clauses (a) through (f) above shall satisfy the suitability standards
if it is an accredited investor by reason of clause (iii) above, or if all of
its partners are accredited investors. A corporate subscriber, which satisfies
the requirements set forth in clauses (a) through (f) above shall satisfy the
investor suitability standards if it is an accredited investor by reason of
clause (iii) above, or if all of its shareholders are accredited investors.
Corporate subscribers must have net worth of at least three (3) times the amount
of their investment in the Shares.
The suitability standards referred to above represent minimum
suitability requirements for prospective purchasers and the satisfaction of such
standards by a prospective purchaser does not necessarily mean that the Shares
are a suitable investment for such purchaser. The Company may, in circumstances
it deems appropriate, modify such requirements. The Company may also reject
subscriptions for whatever reasons, in its sole discretion, it deems
appropriate.
Securities Purchase Agreements may not necessarily be accepted
in the order in which received. Purchasers who are residents of certain states
may be required to meet certain additional suitability standards.
THE ACCEPTANCE OF A SUBSCRIPTION FOR SHARES BY THE COMPANY
DOES NOT CONSTITUTE A DETERMINATION BY THE COMPANY THAT AN INVESTMENT IN THE
SHARES IS SUITABLE FOR A PROSPECTIVE INVESTOR. THE FINAL DETERMINATION OF THE
SUITABILITY OF INVESTMENT IN THE SHARES MUST BE MADE BY THE PROSPECTIVE INVESTOR
AND HIS OR HER ADVISERS.
9
11. State Law Considerations.
(a) For Residents of All States.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR
OWN EXAMINATION OF THE ISSUER'S SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT, AND THE APPLICABLE STATES SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
THE INVESTOR MUST RELY ON THE INVESTOR'S OWN EXAMINATION OF
THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED, IN MAKING AN INVESTMENT DECISION ON
THESE SECURITIES.
(b) Florida Residents. Pursuant to Section 517.061(11) (a) (5)
of the Florida statute, when sales are made to five or more persons in Florida,
Florida investors have a three day right of rescission. If a Florida resident
has executed a Securities Purchase Agreement, he may elect, within three
business days after signing the subscription agreement, to withdraw from the
Agreement and to receive a full refund and return (without interest) of any
money paid by him. A Florida resident's withdrawal will be without any further
liability to any person. To accomplish such withdrawal, a Florida resident need
only send a letter or telegram to the Company at the address set forth in this
Agreement indicating their intention to withdraw. Such letter or telegram must
be sent and postmarked prior to the end of the aforementioned third business
day. If a Florida resident sends a letter, it is prudent to send it by certified
mail, return receipt requested, to insure that it is received and also to
evidence the time and date when it is mailed. Should a Florida resident make
this request orally, he should ask for written confirmation that his request has
been received.
(c) New Jersey Residents. Neither the Attorney General of the
State nor the Bureau of Securities has passed on or endorsed the merits of this
Securities Purchase Agreement. The filing of the Securities Purchase Agreement
with the Bureau of Securities does not constitute approval of the issue or the
10
sale thereof by the Bureau of Securities or the Department of Law and public
safety of the State of New Jersey. Any representation to the contrary is
unlawful.
(d) New York Residents. This Securities Purchase Agreement has
not been filed with or reviewed by the Attorney General of the State of New York
prior to its issuance and use. The Attorney General of the State of New York has
not passed on or endorsed the merits of this Agreement. Any representation to
the contrary is unlawful. This Agreement does not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made. In light of the circumstances under with they were made, not
misleading, it contains a fair summary of the material terms of documents
purported to be summarized herein.
12. Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by certified mail, return receipt requested (provided that facsimile
notice shall be deemed received on the next business day if received after 5:00
p.m. Eastern Standard Time), or (c) on the next business day, if sent by a
nationally recognized overnight delivery service, in each case to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
If to the Company:
VDC Communications, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman & C.E.O.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
VDC Communications, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
VDC Corporate Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11
If to Purchaser:
to the address set forth at the end of this Agreement or to
such other addresses as may be specified in accordance herewith from time to
time.
13. Survival of Representations and Warranties. Representations and
warranties contained herein shall survive the execution and delivery of this
Agreement.
14. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and permitted assigns of the parties hereto, provided that
this Agreement and the interests herein may not be assigned by either party
without the express written consent of the other party.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut without regard to the
principles of conflict of laws.
16. Arbitration. All controversies arising out of or related to this
Agreement shall be determined by binding arbitration applying the laws of the
State of Connecticut. Any arbitration between the parties shall be conducted at
the Company's offices in Greenwich, Connecticut, or at such other location
designated by the Company, before the American Arbitration Association (the
"AAA"). The decision of the arbitrator(s) shall be final and binding upon the
parties and judgment may be obtained thereon by either party in a court of
competent jurisdiction. Each party shall bear the cost of preparing and
presenting its own case. The cost of the arbitration, including the fees and
expenses of the arbitrator(s), shall be shared equally by the parties hereto
unless the award otherwise provides. Nothing in this section will prevent either
party from resorting to judicial proceedings if interim injunctive relief under
the laws of the State of Connecticut from a court is necessary to prevent
serious and irreparable injury to one of the parties, and the parties hereto
agree that the state courts in Stamford, Connecticut and the United States
District Court in the District of Connecticut in Bridgeport, Connecticut shall
have exclusive subject matter and in personam jurisdiction over the parties for
purposes of obtaining interim injunctive relief.
17. Sections and Other Headings. The section and other headings
contained in this Agreement are for the convenience of reference only, and do
not constitute part of this Agreement or otherwise affect any of the provisions
hereof.
18. Pronouns. Whenever the context of this Agreement may require, any
pronoun will include the corresponding masculine, feminine and neuter form, and
the singular form of nouns and pronouns will include the plural.
19. Counterpart Signatures. This Agreement may be executed in multiple
counterparts each of which shall be an original but all of which together shall
constitute one and the same instrument. This Agreement may also be executed and
delivered by exchange of facsimile copies showing the signatures of the parties,
12
and those signatures need not be affixed to the same copy. The facsimile copies
showing the signatures of the parties will constitute originally signed copies
of the Agreement requiring no further execution.
20. Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
21. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchaser make any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by an
instrument in writing signed by the party to be charged with enforcement.
22. Construction. This Agreement and any related instruments will not
be construed more strictly against one party then against the other by virtue of
the fact that drafts may have been prepared by counsel for one of the parties,
it being recognized that this Agreement and any related instruments are the
product of negotiations between the parties and that both parties have
contributed to the final preparation of this Agreement and all related
instruments.
23. Agreement Read and Understood. Both parties hereto acknowledge that
they have had an opportunity to consult with an attorney, and such other experts
or consultants as they deem necessary or prudent, regarding this Agreement and
that they, or their designated agents, have read and understand this Agreement.
24. United States Dollars. All dollar amounts stated herein refer to
and are payable solely in United States Dollars.
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have caused this Agreement to be signed.
Purchaser:
^ Shares/$^ -------------------------------
Number and dollar amount ^
of Shares purchased -
Purchase Price
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Address/Residence of Purchaser:
---------------------------------------------
---------------------------------------------
Social Security Number:
----------------------
Accredited Investor Certification
(Place INITIALS on the appropriate line(s))
---- (i) I am a natural person who had individual income of more
than $200,000 in each of the most recent two years or joint income
with my spouse in excess of $300,000 in each of the most recent two
years and reasonably expect to reach that same income level for
the current year ("income", for purposes hereof, should be computed as
follows: individual adjusted gross income, as reported (or to be
reported) on a federal income tax return, increased by (1) any
deduction of long-term capital gains under Section 1202 of the Internal
Revenue Code of 1986 (the "Code"), (2) any deduction for depletion
under Section 611 et seq. of the Code, (3) any exclusion for
interest under Section 103 of the Code and (4) any losses of a
partnership as reported on Schedule E of Form 1040); or
---- (ii) I am a natural person whose individual net worth (i.e., total
assets in excess of total liabilities), or joint net worth with my
spouse, will at the time of purchase of the Shares be in excess of
$1,000,000; or
---- (iii) The Purchaser is an investor satisfying the requirements of
Section 501(a)(1), (2) or (3) of Regulation D promulgated under the
Securities Act, which includes but is not limited to, a self-directed
employee benefit plan where investment decisions are made solely by
persons who are "accredited investors" as otherwise defined in
Regulation D; or
---- (iv) The Purchaser is a "qualified institutional buyer" as
that term is defined in Rule 144A of the Securities Act; or
---- (v) The Purchaser is a trust, which trust has total assets in
excess of $5,000,000, which is not formed for the specific purpose
of acquiring the Shares offered hereby and whose purchase is directed
by a sophisticated person as described in Rule 506(b)(ii) of Regulation
D and who has such knowledge and experience in financial and business
matters that he is capable of evaluating the risks and merits of an
investment in the Shares; or
---- (vi) I am a director or executive officer of the Company; or
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---- (vii) The Purchaser is an entity (other than a trust) in which all of
the equity owners meet the requirements of at least one of the above
subparagraphs.
Agreed and Accepted by
VDC COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman & C.E.O.
Dated:
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