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EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of this 30th day of September, 1996, by and between METANETICS
CORPORATION, a Delaware corporation ("Metanetics"), and ACCIPITER II, INC., a
Florida corporation ("Purchaser").
WHEREAS, on September 22, 1995, the Certificate of Incorporation of
Metanetics (then known as New Meta Licensing Corporation) was filed by the
Secretary of State for the State of Delaware (the "Certificate");
WHEREAS, pursuant to the Certificate the authorized capital stock of
Metanetics consists solely of Ten Million (10,000,000) shares of Voting Common
Stock $.01 par value (the "Voting Common"), Three Million (3,000,000) shares of
Non-Voting Common Stock $.01 par value and Three Million (3,000,000) shares of
Preferred Stock $.01 par value;
WHEREAS, Metanetics' Board of Directors determined that it would be in
the best interest of Metanetics and its stockholders if Metanetics
deconsolidated from the Telxon Corporation ("Telxon") consolidated group;
WHEREAS, in satisfaction of one of the preconditions for
deconsolidation, Telxon's ownership of Metanetics capital stock was reduced
below 50%;
WHEREAS, on June 17, 1996, in connection with the termination of a
Metanetics' employee/shareholder, the Board of Directors of Metanetics approved
the repurchase and a subsequent resale of all shares of Metanetics' capital
stock owned by the former employee;
WHEREAS, on August 23, 1996, in a negotiated settlement of the stock
repurchase rights under the Amended and Restated Shareholder Agreement between
Metanetics and all of its shareholders and related severance matters, Metanetics
agreed to repurchase the former employee's Metanetics Voting Common Stock
(432,558 shares) (the "Repurchased Shares") for $1.0386 per share;
WHEREAS, in the absence of a resale of the Repurchased Shares, Telxon's
ownership of Metanetics would have exceeded 50%,which would by itself preclude
Metanetics' deconsolidation efforts and would also cause Metanetics to suffer
other adverse financial consequences; and
WHEREAS, to avoid these adverse consequences of the repurchase of the
Repurchased Shares, Metanetics desires to sell the Repurchased Shares to
Purchaser, and to assist Metanetics in avoiding such adverse consequences,
Purchaser desires to buy the Repurchased Shares from Metanetics.
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NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants and agreements hereinafter set
forth, the parties, intending to be legally and equitably bound, hereby agree as
follows:
1. SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
hereof, Metanetics shall sell, transfer and assign to Purchaser at Purchaser's
Florida address, and Purchaser shall purchase and acquire from Metanetics,
432,558 Shares of Voting Common (the "Purchased Shares"), for a purchase price
of $1.0386 per share for an aggregate purchase price of $449,254.73 (the
"Purchase Price"). The Purchase Price shall be payable by Purchaser through its
delivery to Metanetics of a Promissory Note in the form attached hereto.
2. REPRESENTATIONS AND WARRANTIES.
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(a) Metanetics hereby represents and warrants to Purchaser (with
respect to and only with respect to the shares of Voting Common hereby) being
sold hereby that:
(i) The execution, delivery and performance of this Agreement
does not and will not violate, conflict with or result in the breach of
any provision of (a) any material contract, agreement or instrument to
which it is a party or by or to which it or its assets or properties
may be bound or subject; or (b) any order, judgment, injunction, award,
decree, statute, law, rule or regulation of any jurisdiction applicable
to it. Such execution, delivery and performance will not result in the
creation of any lien or encumbrance on the Purchased Shares.
(ii) There are no outstanding orders, judgments, injunctions,
awards or decrees of any court, arbitrator or governmental or
regulatory body against it. There are no actions, suits or claims or
legal, administrative or arbitral proceedings or investigations
(whether or not the defense thereof or liabilities in respect thereof
are covered by insurance) pending or, to its knowledge, threatened,
against or involving it which could adversely effect its ability to
consummate the transactions contemplated hereby.
(iii) Upon its execution and delivery, this Agreement will be
the valid and binding obligation of Metanetics, enforceable in
accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, organization, moratorium or other laws of
general application affecting enforcement of creditors' rights; and (b)
general principles of equity that restrict the availability of
equitable remedies.
(iv) It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with all
requisite corporate power and lawful authority to own, lease and
operate its assets and properties and to carry on its business in the
manner presently conducted or contemplated by it.
(v) The execution, delivery and performance of this Agreement
does not and will not violate, conflict with or result in the breach of
any provision of its Certificate of Incorporation or By-laws, as either
may be amended.
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(vi) No consent, action, approval, order or authorization, or
declaration of or registration or filing with, any federal, state,
local or governmental agency or authority is required to be obtained or
made by Metanetics in connection with (a) the execution, delivery or
performance by Metanetics of this Agreement and of the other
instruments, agreements and documents required or contemplated
hereunder; and (b) the consummation of the transactions contemplated
hereby and thereby.
(vii) Metanetics is authorized to issue Ten Million
(10,000,000) shares of Voting Common Stock $.01 par value, Three
Million (3,000,000) shares of Non-Voting Common Stock $.01 par value
and Three Million (3,000,000) shares of Preferred Stock $.01 par value,
of which Four Million Three Hundred Eighty One Thousand Three Hundred
Ninety Five (4,381,395) shares of Voting Common Stock are issued and
outstanding as of the date hereof, immediately prior to the
consummation of the transactions hereunder. There is no other class of
capital stock authorized, issued or outstanding. The Purchased Shares
will, when issued and paid for, be validly issued, fully paid, and
nonassessable, and all such shares have been issued in compliance with
all applicable federal and state securities laws.
(b) Purchaser hereby represents and warrants to Metanetics as
follows:
(i) Purchaser has all necessary power and authority under all
applicable provisions of law to execute and deliver this Agreement and
to carry out Purchaser's obligations hereunder. All actions by
Purchaser required for the lawful execution and delivery of this
Agreement have been effectively taken prior to the Closing. Upon its
execution and delivery, this Agreement will be the valid and binding
obligation of Purchaser, enforceable in accordance with its terms,
except (a) as limited by applicable bankruptcy, insolvency,
organization, moratorium or other laws of general application affecting
enforcement of creditors' rights; and (b) general principles of equity
that restrict the availability of equitable remedies.
(ii) All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings
with any governmental or banking authority on the part of Purchaser
required in connection with the consummation of the transactions
contemplated in this Agreement have been obtained prior to and shall be
effective as of the Closing.
(iii) Purchaser understands that the Purchased Shares
purchased by it hereunder have not been registered under the Securities
Act of 1993, as amended (the "Securities Act"). Purchaser also
understands that the shares are being offered and sold pursuant to
exemptions from registration contained in the Securities Act and
applicable state securities laws based in part upon Purchaser's
representations contained in this Agreement.
(iv) Purchaser understands and agrees that it bears the
economic risk of this investment indefinitely unless and until the
shares acquired hereunder are registered pursuant to the Securities
Act, or an exemption from registration is available. Purchaser
understands that Metanetics has no present intention of registering the
shares being sold
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hereunder or any shares of its capital stock. Purchaser also
understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even
if available, such exemption may not allow Purchaser to transfer all or
any portion of such shares.
(v) Purchaser is acquiring the Purchased Shares for
Purchaser's own account for investment only, and not with a view toward
their distribution.
(vi) Purchaser represents that by reason of its business or
financial experience, Purchaser has the capacity to protect its own
interests in connection with the transactions contemplated in this
Agreement and can bear the risk of such investment without materially
impairing its financial condition. Further, Purchaser is aware of no
publication of any advertisement in connection with the transactions
contemplated in this Agreement.
(vii) A principal stockholder of Purchaser is an officer and
director of Telxon, Metanetics' parent corporation, and as such is
fully aware of all material information relating to Metanetics,
including its business and financial affairs, and has had full and free
access to all such information. Purchaser has had an opportunity to
discuss Metanetics' business, management and financial affairs with
directors, officers and management of Metanetics and has had the
opportunity to review Metanetics' operations and facilities. Purchaser
also has had the opportunity to ask questions of and receive answers
from Metanetics and its management regarding the transactions
contemplated hereby.
(viii) Purchaser is an "accredited investor" as that term is
defined in Regulation D under the Securities Act. Specifically,
Purchaser (and/or its stockholders) meets one or more of the following
definitions of an "accredited investor":
(A) A natural person whose net worth, either
individually or jointly with such person's spouse, at the same
time of the Closing (defined below), exceeds $1,000,000;
(B) A natural person who had an individual income in
excess of $200,000 or joint income with that person's spouse
in excess of $300,000 in 1994 and 1995, and reasonably expects
to have individual income reaching the same level in 1996;
(C) A corporation, not formed for the specific
purpose of acquiring shares the Purchased Shares, with assets
in excess of $5,000,000.
For purposes of the above definitions of "accredited investor," the
term "net worth" means the excess of total assets over total
liabilities. In calculating net worth, Purchaser may include the
estimated fair market value of the Purchaser's stockholders' principal
residence as an asset. In determining individual "income," Purchaser
should add to Purchaser's stockholders' individual adjusted gross
income (exclusive of any spousal income) any amounts attributable to
tax exempt income received, losses claimed as a
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limited partner in any limited partnership, deductions claimed for
depletion, contributions to an XXX or Xxxxx retirement plan, alimony
payments, and any amount by which income from long-term capital gains
has been reduced in arriving at adjusted gross income, and should
subtract any unrealized capital gain.
3. CLOSING. The closing of the transactions contemplated hereunder (the
"Closing") shall be held at such times and places as the parties may agree.
4. INDEMNIFICATION. Notwithstanding anything to the contrary in this
Agreement, Purchaser and Metanetics shall indemnify and hold harmless the other
against and from any and all losses, fees, costs, expenses, damages,
obligations, liabilities and claims (including, without limitation, any and all
fees, costs and expenses whatsoever reasonably incurred by it or its counsel in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any threatened or
asserted claim) arising directly or indirectly out of: (a) any failure of any
representation or warranty of such party to be correct and complete when made,
or (b) any failure by such party to perform and observe fully all obligations
and conditions to be performed or observed by that party under this Agreement.
Notwithstanding the foregoing or anything herein to the contrary, no claim for
indemnification may be asserted after September 30, 1997.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of Purchaser
to purchase the Purchased Shares are subject to the satisfaction, at or prior to
the Closing, of the following conditions, any one or more of which may be waived
by such Purchaser:
(a) The representations and warranties made by Metanetics in
Section 2(a) hereof shall be true and correct in all material respects
at the Closing with the same force and effect as if they had been made
as of the date of the Closing, and Metanetics shall have performed all
obligations and conditions herein required to be performed or observed
by it on or prior to Closing.
(b) At the time of Closing, the sale of the Purchased Shares
shall be legally permitted by all laws and regulations to which
Purchaser and Metanetics are subject.
(c) Metanetics shall have obtained any and all consents,
permits, and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as
properly may be obtained subsequent to the Closing).
(d) Purchaser or its counsel has had the opportunity to review
copies of all corporate documents of Metanetics as the Purchaser
reasonably may have requested.
(e) The Telxon Board of Directors shall have approved of
Purchaser's purchase of the Purchased Shares.
6. CONDITIONS TO METANETICS' OBLIGATIONS. Metanetics' obligation to
sell the Purchased Shares at Closing is subject to the satisfaction, on or prior
to Closing, of the following conditions, any one or more of which may be waived
by it:
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(a) The representations and warranties made by Purchaser in
Section 2(b) hereof shall be true and correct in all material respects
at the date of the Closing, with the same force and effect as if they
had been made on and as of said date, and Purchaser shall have
performed all obligations and conditions herein required to be
performed or observed by it on or prior to Closing.
(b) At the time of Closing, the sale of the Purchased Shares
shall be legally permitted by all laws and regulations to which
Purchaser and Metanetics are subject.
(c) Purchaser shall have obtained any and all consents,
permits, and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement (except for such as
properly may be obtained subsequent to the Closing).
(d) Purchaser shall have performed and complied with all
agreements and conditions herein required to be performed or complied
with by Purchaser on or before the Closing.
(e) The Telxon Board of Directors shall have approved of
Purchaser's purchase of the Purchased Shares.
8. ENTIRE AGREEMENT. This Agreement and any other writing specifically
identified herein or specifically contemplated hereby, taken together, contain
the entire agreement among the parties hereto with respect to Metanetics' sale
and Purchaser's acquisition of shares hereunder and supersedes all previous
written or oral negotiations, commitments and writings with respect thereto.
9. HEADINGS. The paragraph headings used herein are for convenience of
reference only and do not form a part hereof and do not in any way modify,
interpret or set forth the intentions of the parties.
10. SURVIVAL. All agreements, obligations, warranties, and
representations under this Agreement shall survive the Closing and any
investigations made by the parties until September 30, 1997.
11. GENDER AND NUMBER. When permitted by the context, each pronoun used
in this Agreement includes the same pronoun in other genders or numbers, and
each noun used in this Agreement, including each capitalized term defined
herein, includes the same noun in other numbers.
12. SUCCESSORS. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by and against the respective heirs, personal
representatives, successors, and assigns of each party to this Agreement.
13. NO THIRD-PARTY BENEFIT. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective
successors and assigns, and nothing contained in this Agreement shall be
construed as creating any rights or benefits in or to any third party.
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14. GOVERNING LAW. All questions concerning the validity or meaning of
this Agreement or relating to the rights and obligations of the parties with
respect to performance under this Agreement shall be construed and resolved
under the laws of the State of Ohio, without regard to conflict of laws
principles.
15. SEVERABILITY. The intention of the parties to this Agreement is to
comply fully with all laws and public policies, and this Agreement shall be
construed consistently with all laws and public policies to the extent possible.
If any court of competent jurisdiction determines it is impossible to construe
any provision of this Agreement consistently with any law or public policy and
consequently holds that provision to be invalid, such holding shall in no way
effect the validity of the other provisions of this Agreement, which shall
remain in full force and effect.
16. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
METANETICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Its: Senior Vice President
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ACCIPITER II, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: Executive Vice President
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