Exhibit 10.2
XYVISION ENTERPRISE SOLUTIONS, INC.
Series A Convertible Preferred Stock Purchase Agreement
This Agreement dated as of July 1, 1999 is entered into by and between
Xyvision Enterprise Solutions, Inc., a Delaware corporation (the "Company"),
and Tudor Trust (the "Purchaser").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Shares.
1.1 Authorization. The Company has duly authorized the sale and
issuance, pursuant to the terms of this Agreement, of 300,000 shares of
its Series A Convertible Preferred Stock, $.001 par value per share
(the "Series A Preferred").
1.2 Sale of Shares. Upon the execution of this Agreement, the Company
will sell and issue to the Purchaser, and the Purchaser will purchase,
300,000 shares of Series A Preferred for the purchase price of $2.50
per share. The shares of Series A Preferred being sold under this
Agreement are referred to as the "Shares." To effect such sale and
purchase of the Shares, the Company shall deliver to the Purchaser a
certificate for the Shares, registered in the name of the Purchaser,
against payment to the Company of the purchase price therefor, by wire
transfer, check or other method acceptable to the Company.
2. Representations of the Company. The Company hereby represents and
warrants to the Purchaser as follows:
2.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to conduct
its business as presently conducted and as proposed to be conducted by
it and to enter into and perform this Agreement and to carry out the
transactions contemplated by this Agreement.
2.2 Capitalization. The authorized capital stock of the Company
(immediately prior to the execution of this Agreement) consists of (i)
10,000,000 shares of common stock, $.001 par value per share (the
"Common Stock"), of which 2,800,000 shares are issued and outstanding
and owned by Xyvision, Inc. ("Xyvision"), and (ii) 5,000,000 shares of
Preferred Stock, $.001 par value per share, of which 700,000 shares
have been designated as Series A Preferred, of which 400,000 shares are
issued and outstanding. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable.
2.3 Authority for Agreement; Issuance of Shares. The execution,
delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part
of the Company. Without limiting the generality of the foregoing, the
issuance, sale and delivery of the Shares in accordance with this
Agreement, and the issuance and delivery of the shares of Common Stock
issuable upon conversion of the Shares, have been duly authorized by
all necessary corporate action on the part of the Company. The Shares
when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of
Common Stock issuable upon conversion of the Shares when issued upon
such conversion, will be duly and validly issued, fully paid and
nonassessable. This Agreement has been duly executed and delivered by
the Company and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms.
2.4 SEC Reports . Xyvision has filed with the Securities and Exchange
Commission all reports and statements required to be filed by Xyvision
under Section 13 or 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since March 31, 1997 (such reports and
statements are collectively referred to herein as the "Xyvision
Reports"). The Xyvision Reports comply in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder. As of their respective dates, the Xyvision Reports did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
2.5 Absence of Material Adverse Change. Since March 31, 1999, there has
been no material adverse change in the business, results of operations
or financial condition of the Company, it being acknowledged that the
Company has continued to incur operating losses and utilize cash.
3. Representations of the Purchaser. The Purchaser represents and
warrants to the Company as follows: 3.1 Investment. The Purchaser is
acquiring the Shares, and the shares of Common Stock into which the
1
Shares may be converted, for its own account for investment and not
with a view to, or for sale in connection with, any distribution
thereof, nor with any present intention of distributing or selling the
same; and the Purchaser has no present or presently contemplated
agreement, undertaking, arrangement, obligation, indebtedness or
commitment providing for the disposition thereof. The Purchaser is an
"accredited investor" as defined in Rule 501(a) under the Securities
Act of 1933, as amended (the "Securities Act").
3.2 Authority. The execution, delivery and performance by the Purchaser
of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Purchaser. This Agreement has been
duly executed and delivered by the Purchaser and constitutes a valid
and binding obligation of the Purchaser enforceable in accordance with
its terms.
3.3 No Registration of Shares. The Purchaser acknowledges that the
Shares to be purchased by it have not been registered under the
Securities Act. Each certificate representing the Shares shall bear a
legend substantially in the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered,
sold or otherwise transferred, pledged or hypothecated unless and
until such shares are registered under such Act or an opinion of
counsel satisfactory to the Company is obtained to the effect that
such registration is not required."
3.4 Experience. The Purchaser is familiar with the business, results of
operations, assets and liabilities of both Xyvision and the Company;
the officers of the Company have made available to the Purchaser any
and all information which it has requested and has answered to the
Purchaser's satisfaction all inquiries made by it; and the Purchaser
has sufficient knowledge and experience in investing in companies
similar to the Company so as to be able to evaluate the risks and
merits of its investment in the Company and is able financially to bear
the risks thereof.
4. Miscellaneous.
4.1 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
4.2 Amendments and Waivers. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived only with the
written consent of the Company and the Purchaser.
4.3 Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original, and all of which shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
4.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, exclusive of its
choice of law and conflicts of law rules.
IN WITNESS WHEREOF, this Series A Convertible Preferred Stock Purchase
Agreement has been executed as of the date first above written.
XYVISION ENTERPRISE SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------
▇▇▇▇▇ ▇▇▇▇▇
President
TUDOR TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
2
