Exhibit 10.16
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made, entered into
and effective the ___ day of _________ 2000, between ▇▇▇▇▇.▇▇▇ Inc., a Delaware
corporation having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company"), and _____________________, a ________________ corporation
organized under the laws of the _____________ and having an office at
______________________________, (the "Purchaser"). The parties hereto agree as
follows.
1. SALE AND PURCHASE OF SECURITIES.
(a) AGREEMENT TO PURCHASE AND SELL. The Company agrees to sell to the
Purchaser and, in reliance on the representations, warranties and covenants made
herein by the Company, the Purchaser agrees to purchase from the Company, (i)
______________ shares of the Company's Common Stock (the "Shares") at a price
per share equal to $6 and (ii) a warrant in the form attached hereto as Exhibit
A (the "Warrant") to acquire ____________ shares of the Company's Common Stock
at an exercise price of $.01 per share (the "Warrant Shares").
(b) PURCHASE PRICE OF SECURITIES. The Purchase Price payable by the
Purchaser for the Shares and the Warrants shall be __________________ U.S.
Dollars ($__________). Such Purchase Price shall be paid, by bank wire transfer
to an account designated by the Company in writing to the Purchaser, upon the
Company's delivery of the Stock Certificates to the Purchaser.
2. REPRESENTATIONS AND WARRANTIES. To induce the Purchaser to enter
into and perform its obligations under this Agreement, the Company hereby
represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND EXISTENCE. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware;
it has obtained all licenses and permits and has filed all registrations in all
jurisdictions that are necessary to the operation of its present business. The
Company is duly qualified as a foreign corporation in all jurisdictions where
such qualification is required.
(b) AUTHORIZATION AND NON-CONTRAVENTION. The execution and delivery of
this Agreement by the Company and the performance of the duties of the Company
set forth herein are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, have been approved by the
Company's Board of Directors, do not require the approval of the Company's
stockholders and do not contravene (i) the Company's Certificate of
Incorporation or Bylaws or (ii) any statute, rule, regulation or other law or
any contractual restriction binding on or affecting the Company, and do not
result in or require the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its properties.
(c) FULLY-PAID AND NONASSESSABLE SECURITIES. The Shares and the Warrant
Shares to be delivered to Purchaser pursuant to the terms of this Agreement
and/or upon the exercise of the Warrant will, on delivery in accordance with the
terms hereof and thereof, be duly authorized, validly issued, fully paid,
nonassessable and free and clear of any and all liens, encumbrances or
restrictions, other than the express restrictions on resale described elsewhere
herein.
(d) ENFORCEABILITY OF OBLIGATIONS. This Agreement is the legal, valid
and binding obligation of the Company, enforceable against it in accordance with
its terms.
(e) CLAIMS AND LITIGATION. There are no claims, actions or proceedings,
pending or threatened, by or against or affecting the Company, including actions
before a court, governmental agency or arbitrator, other than those arising or
instituted after the date of this Agreement and prior to Closing in which the
amount claimed as loss or damage (or if no specific amount is claimed, then the
Company's good faith reasonable estimate of the amount that will be claimed)
exceeds $20,000 in the aggregate. Furthermore, the Company has no knowledge of
any conflict between its rights respecting the tvemail technologies and the
rights of others or of the basis for any claim that has not yet been asserted.
(f) TAXES. The Company has filed all required federal, state and other
tax returns and paid any and all income, sales, property or other taxes due
pursuant thereto or pursuant to any assessment received by the Company, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. All such tax returns filed by the Company
accurately reflect the tax due by the Company for the fiscal periods for which
such returns were filed.
(g) STOCK AND RECORDS. All outstanding capital stock of the Company was
and is properly issued, duly paid and non-assessable, and all books and records
of the Company, including but not limited to its minute books, bylaws, and books
of account, are accurate and complete.
(h) CONVERTIBLE SECURITIES AND STOCK PURCHASE RIGHTS. Except as set
forth on Schedule 1 hereto, no shares of the Company's unissued capital stock
are reserved for any purpose. Except as set forth on Schedule 1 hereto, there
are no other outstanding commitments, warrants, options, securities convertible
into the Company's stock or other rights to acquire any shares of the Company's
capital stock; there are no preemptive or similar rights with respect to the
issuance or sale of the Company's capital stock; there is no commitment of the
Company to issue or sell any shares of its capital stock; there are no
agreements that now or in the future require the Company to repurchase, redeem,
retire or otherwise acquire any shares of its capital stock; and there are no
agreements (other than agreements designed to require compliance with federal or
state securities laws) restricting the transfer of any shares of the Company's
capital stock.
(i) TITLE TO PROPERTY. The Company has good and marketable title to all
property and assets to be owned by it including, without limitation, all of the
intellectual property and all assets shown in the Company's March 31, 1999
balance sheet, free of all liens, encumbrances, pledges and security interests.
(j) INVESTMENTS. The Company has no ownership interest or other
investment in any other person, corporation, partnership or other entity.
(k) OUTSTANDING GUARANTIES. The Company has no outstanding guaranties
or other agreements relating to the debts or liabilities of any other Person
except for such wholly and partially owned subsidiaries as listed in Exhibit B.
(l) SEC FILINGS. The Company has filed (i) all forms, reports,
statements and other documents required to be filed with the Securities and
Exchange Commission ("SEC'), including, without limitation (1) all Annual
Reports on Form l0-KSB, (2) all Quarterly Reports on Form l0-QSB, (3) all proxy
statements relating to meetings of stockholders (whether annual or special), (4)
all Reports on Form 8-K, (5) all other reports or registration statements and
(6) all amendments and supplements to all such reports and registration
statements (collectively, the "the Company SEC Reports") and (ii) all forms,
reports, statements and other documents required to be filed with any other
applicable federal regulatory authorities (all such forms, reports, statements
and other documents being referred to herein, collectively, as the "the Company
2
Reports"). The Company Reports were prepared in all material respects in
accordance with the requirements of applicable law (including, with respect to
the Company SEC Reports, the Securities Act and Exchange Act, as the case may
be, and the roles and regulations of the SEC thereunder applicable to such the
Company SEC Reports) and (y) did not at the time they were filed 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.
(m) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made in sub-paragraphs (a) through (1) of this Paragraph 2 are true
and correct on the date of this Agreement and shall be true and correct on the
date of the Closing, (ii) shall survive the sale of Common Stock for a period of
one year after the date of the Closing, except to the extent that such
representations and warranties are determined to have been untrue as of the date
hereof or the date of the Closing because of claims or actions (whether based on
alleged violations of securities laws, fraud, preemptive rights or otherwise) by
current or former stockholders of the Company based on events which occurred
prior to the date of this Agreement. All of such representations and warranties
are deemed to be material.
3. AFFIRMATIVE COVENANTS.
(a) SEC REPORTING OBLIGATIONS. For so long as the Company's Common
Stock is registered under the Securities Exchange Act of 1934, as amended, the
Company (i) will file all forms, reports, statements and other documents
required to be filed with the Securities and Exchange Commission ("SEC"),
including, without limitation (1) all Annual Reports on Form 10-KSB, (2) all
Quarterly Reports on Form l0-QSB, (3) all proxy statements relating to meetings
of stockholders (whether annual or special), (4) all Reports on Form 8-K, (5)
all other reports or registration statements and (6) all amendments and
supplements to all such reports and registration statements and (ii) all forms,
reports, statements and other documents required to be filed with any other
applicable federal or state regulatory authorities. The Company Reports shall be
prepared in all material respects in accordance with the requirements of
applicable law (including, the Securities Act and Exchange Act, as the case may
be, and the rules and regulations of the SEC thereunder applicable to such
Company Reports) and shall not at the time they are filed 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 are made, not misleading.
REPORTS TO STOCKHOLDERS. For so long as the Company's Common Stock is
registered under the Securities Exchange Act of 1934, as amended, the Company
will hold an annual meeting of shareholders for the election of directors within
180 days after the end of each of the Company's fiscal years and, within 180
days after the end of each of the Company's fiscal years, will provide the
Company's shareholders with the audited financial statements of the Company as
of the end of the fiscal year just completed prior thereto. Such financial
statements shall be those required by Rule 14a-3 under the Securities Exchange
Act of 1934, as amended, and shall be included in an annual report meeting the
requirements of the Rule. Further, the Company agrees to make available to the
Company's shareholders in printable form within 60 days after the end of each
fiscal quarter of the Company (other than the last fiscal quarter in any fiscal
year) reasonably itemized financial statements of the Company and its
subsidiaries, if any, for the fiscal quarter just ended and a narrative
discussion of such financial statements and the business conducted by the
Company and its subsidiaries, it any, during such quarter.
3
(C) TRANSFER REGISTRATION. The Company shall not register any transfer
of the Shares not made in accordance with the provisions of Regulation S ("Reg
S"), pursuant to registration under the Securities Act of 1933, as amended, or
pursuant to an available exemption from registration under such Act.
Furthermore, the Company will not issue the Warrant Shares upon exercise of the
Warrant until the Company is reasonably satisfied that (i) the Warrant is not
exercised within the United States, and (ii) that the Warrant Shares shall not
be delivered within the United States upon exercise, other than in offerings
deemed to meet the definition of "offshore transaction" pursuant to Rule 902(h)
of the Act, unless registered under the Act or an exemption from such
registration is available.
4. CLOSING. The Purchaser shall not be obligated to perform its
obligations hereunder unless all of the following conditions which the Company
is hereby obligated to satisfy and perform shall have been satisfied and
performed on or prior to the Closing.
(a) AUTHORIZATION. Execution and performance of all terms and
conditions hereof by the Company shall have been approved by its Board of
Directors, in a resolution in a manner satisfactory in form and substance to the
Purchaser, and the Company shall have duly executed and delivered this Agreement
and stock certificates evidencing the Purchase hereunder.
(b) PERFORMANCE. The Company shall have delivered to Purchaser, all of
the schedules, certificates and other papers required to be delivered on or
before the date of this Agreement. None of the Company's representations and
warranties set forth in this Agreement or any information contained in any
schedule, attachment or exhibit hereto or in any writing delivered to the
Purchaser shall be or shall have been discovered by the Purchaser or its
attorneys, accountants, employees or other personnel to be untrue or incorrect
in any material respect on the date of the Closing.
(c) CLOSING PAPERS. The Company shall have delivered to the Purchaser
all of the following: (i) an officers' certificate dated the date of the Closing
satisfactory in form and substance to the Purchaser stating that the
representations in Paragraph 2 are true and correct as of such date; (ii)
certified copies satisfactory in form and substance to the Purchaser of the
resolutions described in sub-paragraph 3(a); and (iii) such other materials as
the Purchaser shall reasonably require.
(d) WAIVER. Any Closing condition or covenant specified in this Section
4 may be waived by the Purchaser, and such waiver shall be deemed to have been
made to the extent the Purchaser agrees to and consummates the Closing and one
or more of the conditions set forth in this Section 4 have not been fully
satisfied.
5. INVESTOR REPRESENTATIONS; TRANSFER. The Purchaser represents and
warrants that it: (i) an "accredited investor" as defined under federal
securities laws; (ii) is not a "U.S. Person", as defined in Reg S; (iii) that
the Shares, the Warrant and, if applicable, the Warrant Shares, are being
acquired by the Purchaser for its own account and the Purchaser is not acquiring
the Shares, the Warrant, or the Warrant Shares for the account or benefit of a
"U.S. Person"; (iv) has its principal place of business in
______________________; (v) that such acquisition is made without any present
intention of reoffering, reselling or distributing the Shares, the Warrant or
the Warrant Shares; (vi) prior to making such acquisition, the Purchaser was
given unrestricted access to all of the Company's books and records for the
purpose of personally examining any such documents as the Purchaser deemed
material to his investment decision; and (vii) prior to making such acquisition,
the Purchaser was given an opportunity to ask questions of and receive answers
from the Company's officers, directors, attorneys and accountants respecting any
matter which the Purchaser deemed material to its investment decision and all
such questions have been answered to the full satisfaction of the Purchaser. The
Purchaser further understands that all
4
certificates representing shares and warrants of the Purchaser shall bear the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ISSUED IN RELIANCE ON
REGULATION S OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE ACT OR ANY STATE SECURITIES LAW, AND THEY MAY NOT BE SOLD OR
TRANSFERRED EXCEPT PURSUANT TO REGULATION S, REGISTRATION UNDER THE ACT
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS. FURTHERMORE, ALL HEDGING TRANSACTIONS INVOLVING THESE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT.
The Purchaser further covenants to only resell the Shares, the Warrant
or the Warrant Shares in accordance with the provisions of Reg S, pursuant to
registration under the Securities Act of 1933, as amended, or pursuant to an
exemption thereunder and shall not engage in any hedging transactions with
regard to the Shares unless in compliance with such Act. The foregoing
restrictions on the transferability of the Shares shall cease and terminate (i)
when such securities shall have been effectively registered under the Securities
Act and all applicable state securities laws, or otherwise disposed of in
accordance with the requirements of Reg S or another exemption under the
Securities Act, or (ii) the Company shall have received an opinion of counsel
reasonably acceptable to the Company to the effect that such restrictions are no
longer required in order to ensure compliance of any future transfer with the
Securities Act and all applicable state securities laws. Whenever such
restrictions shall terminate as to any of the Shares or the Warrant, the holder
thereof shall be entitled to receive from the Company, without expense, new
certificates of like tenor not bearing the legend set forth above.
6. NOTICE. All notices, requests, demands and other communications
relating to this Agreement shall be in writing, including by facsimile or email,
addressed to the address set forth herein or such other address as any party
shall notify the other party in writing, and shall be effective, in the case of
written notice by mail, upon placement into the mails (first class, postage
prepaid), and in the case of notice by facsimile or email, on the day sent.
7. OTHER PROVISIONS. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the original parties hereto and their
respective heirs, personal representatives, successors and assigns. This
Agreement shall be governed by the laws of the State of Vermont except to the
extent such laws are preempted by federal law. If any of the provisions
contained in this Agreement are invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. Any provision of this
Agreement may be waived by the person entitled to the benefit thereof; provided,
no delay or failure on the part of any person in exercising any right hereunder,
and no partial or single exercise thereof, shall constitute a waiver of any
other fights hereunder. 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. This Agreement may only
be modified in writing signed by all the parties hereto.
8. SUBMISSION TO EXCLUSIVE JURISDICTION. With respect to actions and
proceedings to enforce the provisions of, arising from, or relating to this
Agreement or the transactions contemplated hereby, each of the parties hereto
consents to personal jurisdiction in the state or federal courts of Vermont and
irrevocably agrees that all such actions and proceedings shall be litigated
exclusively in such courts. Further, each of the parties hereto waives any
objection that it may have to the conduct of any action or proceeding in any
such court based on improper venue
5
or FORUM NON CONVENIENS. Each of the parties hereto waives personal service of
any and all process upon it and agrees that valid service of process may be made
by mail or courier service directed to it at the address set forth herein and
that service so made shall be deemed to be completed upon the earlier of actual
receipt or ten (10) days after the same shall have been posted.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement, effective as of the date first above written.
▇▇▇▇▇.▇▇▇ INC.
BY: _________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, PRESIDENT AND CEO
[NAME OF PURCHASER]
BY: _________________________________
[NAME, TITLE]
7
EXHIBIT A
8
EXHIBIT B
WEBATM, INC., SOLUTIONET, LTD. AND NAVIS TECHNOLOGIES, INC.
9
SCHEDULE 1
1. 5,000,000 shares of the Company's Convertible Preferred Stock, par
value $.01 per share.
2. Warrants to acquire 2,000,000 shares of the Company's Common Stock par
value $.01 per share.
3. Options to acquire shares of the Company's Common Stock issued to
certain employees and consultants as incentive compensation.
4. 1-Year 12 Percent Convertible Debenture Due May 3, in the principal
amount of $30,000.
5. 1-Year 12 Percent Convertible Debenture Due May 3, 2000, in the
principal amount of $50,000.
10