EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of June 19,
2007 and is entered into by and between Rye 68, LLC a Delaware limited liability
company having offices c/o Salisbury & Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Rye 68") and Xxxxxxx Xxxxxx, 00 Xxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx, XX0 0XX Xxxxxx Xxxxxxx ("Xx. Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xx. Xxxxxx is currently the beneficial and record owner of
711,658 shares of Class A Common Stock ("Numerex Shares") of Numerex Corp., a
Pennsylvania corporation ("Numerex");
WHEREAS, Xx. Xxxxxx desires to sell to Rye 68 and Rye 68 desires to buy
from Xx. Xxxxxx 500,000 Numerex Shares on the terms and conditions stated
herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, Xx. Xxxxxx hereby sells, assigns and transfers to Rye 68, and Rye 68
hereby purchases and acquires from Xx. Xxxxxx 500,000 Numerex Shares (the
"Purchased Shares").
2. Purchase Price: Amount and Payment.
A. Amount. In consideration for the sale, assignment and transfer of the
Purchased Shares by Xx. Xxxxxx to Rye 68, Rye 68 shall pay to Xx. Xxxxxx a
purchase price in the amount of Four Million One Hundred Twenty Five Dollars (US
$4,125,000) (the "Purchase Price"). One half of the Purchase price, Two Million
Sixty Two Thousand and Five Hundred Dollars ($2,062,500) shall be paid to Xx.
Xxxxxx on the Closing Date (as defined below). The balance of the Purchase Price
shall be paid on the Closing Date by the issuance, execution and delivery by Rye
68 to Xx. Xxxxxx of a Promissory Note and Stock Pledge in the form of Exhibit A
hereto (the "Note").
B. The Note. On the Closing Date, Rye 68 shall deliver to Xx. Xxxxxx the
original copy of the Note. The Note shall be issued in an original principal
amount equal to one half of the Purchase Price ($2,062,500), and shall accrue
interest from the date thereof through and until June 19, 2010 (the "Maturity
Date") at the rate of eight percent (8.00%) per annum.
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3. Closing. Consummation of the purchase and sale of the Purchased Shares
contemplated in this Agreement (the "Closing") shall take place immediately
after the execution of this Agreement at the office of Salisbury & Xxxx LLP, at
10:00 am New York City time, on June 19, 2007 (the "Closing Date"). All acts,
deliveries, payments and other documents relating to the transactions
contemplated hereby shall be deemed to occur contemporaneously and
simultaneously upon the occurrence of the last act, delivery, or payment and
none of such acts, deliveries or payments shall be effective unless and until
the last of the same shall have occurred. .
A. Deliveries at the Closing. At the Closing: Xx. Xxxxxx shall deliver the
Purchased Shares by delivery of one or more original stock certificates
representing the Purchased Shares, duly endorsed with appropriate signature
guarantees for transfer to Rye 68 or attaching stock powers or other instruments
of transfer with appropriate signature guarantees relating thereto, executed in
blank;
i. Rye 68 shall deliver 250,000 Numerex Shares to the Escrow Agent
with appropriate signature guarantees or stock powers or other instruments
of transfer with appropriate signature guarantees relating thereto,
executed in blank in accordance with the Escrow Agreement in the form of
Exhibit B hereto (the "Escrow Agreement");
ii. Rye 68 shall (x) pay Xx. Xxxxxx Two Million Sixty Two Thousand
Five Hundred Dollars $2,062,500 by wire transfer in immediately available
funds and (y) deliver to Xx. Xxxxxx the executed Note;
iii. Rye 68 shall deliver to Xx. Xxxxxx a certificate of the
Secretary of Rye 68, certifying that attached thereto is a true and
complete copy of resolutions adopted by the Board of Managers of Rye 68,
authorizing the execution, delivery and performance of the Transaction
Documents ; and
iv. The parties hereto shall deliver to each other such other
documents, instruments and agreements as reasonably requested by the
parties.
4. Representations and Warranties.
A. Representations and Warranties of Rye 68. Rye 68 hereby represents and
warrants to Xx. Xxxxxx that the following statements are true and correct:
i. Valid Existence. Rye 68 is a limited liability company duly
formed, validly existing and in good standing under the laws of the State
of Delaware. Rye 68 has all requisite power and authority to execute,
deliver and to perform all of its obligations under this Agreement, the
Note and the Escrow Agreement (collectively, the "Transaction Documents").
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ii. Authorization; No Conflict. The execution, delivery and
performance by Rye 68 of the Transaction Documents are within its company
powers, have been duly authorized by all necessary and appropriate action,
and the Transaction Documents have been duly and validly executed and
delivered by Rye 68.
iii. Binding Obligations. Each of the Transaction Documents
constitutes a legal, valid and binding obligation of Rye 68, enforceable
against it in accordance with the terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).
iv. No Violation. The execution, delivery and performance by Rye 68
of each Transaction Document does not and will not violate any provision
of any applicable law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect, or result
in a breach of or constitute a default under Rye 68's governing documents
or any indenture or loan or credit agreement or any other material
agreement, lease or instrument to which Rye 68 is a party or by which its
properties may be bound or affected .
v. Approvals. No consent of any person or entity and no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required in
connection with the execution, delivery or performance of any Transaction
Document that has not been obtained.
vi. Litigation. No action, suit or proceeding is pending or,
threatened against Rye 68 before any court or governmental authority which
relates to any Transaction Document or any action to be taken pursuant
thereto.
vii. Compliance with Laws. Rye 68 is in compliance in all material
respects with all laws, rules, regulations and requirements of any
governmental authority applicable to its business and properties.
viii. Investment Intent. The Purchased Shares are being acquired
from Xx. Xxxxxx solely for Rye 68's own account for investment purposes,
not as a nominee or agent, and not with a view to resell or distribute and
without any present intention of selling, offering to sell or otherwise
disposing of or distributing the Purchased Shares or any portion thereof
in any transaction other than a transaction complying with the
registration requirements under applicable securities laws and
regulations, including federal, state and provincial laws and regulations
of the U.S., or pursuant to an exemption therefrom.
ix. Financial Wherewithal. Rye 68 has adequate net worth and means
for providing for Rye 68's current financial needs and contingencies, has
no need for liquidity of investment with respect to the Purchased Shares
that are being acquired and is in a financial position to bear the
economic risk of the Purchased Shares.
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x. Accredited Investor. Rye 68 is an "Accredited Investor" as
defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended.
xi. Finder's Fees. Rye 68 has not retained any finder or broker in
connection with the transactions contemplated in the Transaction
Documents, and Rye 68 agrees to indemnify and to hold Xx. Xxxxxx harmless
for and from any liability for commission or compensation in the nature of
a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for
which Rye 68, or any person or entity on behalf of Rye 68, is or may be
responsible as a result of the transactions contemplated in the
Transaction Documents.
B. Representations and Warranties of Xx. Xxxxxx. Xx. Xxxxxx hereby
represents and warrants to Rye 68 that the following statements are true and
correct as of the date hereof:
i. Binding Obligations. Each of the Transaction Documents
constitutes a legal, valid and binding obligation of Xx. Xxxxxx,
enforceable against him in accordance with the terms thereof, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
ii. Approvals. No consent of any person or entity and no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required in
connection with the execution, delivery or performance by Xx. Xxxxxx of
the Transaction Documents that has not been obtained.
iii. Litigation. No action, suit or proceeding is pending or,
threatened against Xx. Xxxxxx before any court or governmental authority
which relates to the Purchased Shares and/or the Transaction Documents or
any action to be taken pursuant thereto.
iv. Liens on Purchased Shares. Xx. Xxxxxx owns, beneficially and of
record, all of the Purchased Shares, free and clear of any restrictions on
transfer (other than rights exercisable by Numerex, restrictions arising
under this Agreement or under the federal or state securities laws),
claims, taxes, pledges, liens, hypothecations, encumbrances, options,
warrants, rights, contracts, calls, puts, shareholder agreements,
subscription agreements, voting trust agreements, proxies, securities
convertible or exchangeable into or for the Purchased Shares or other
commitments or agreements of any kind.
v. Access to Information. Xx. Xxxxxx has been given the opportunity
to have access to non-public information regarding Numerex, including, in
particular, the current financial condition of Numerex, and the risks
associated therewith and has utilized such access to Xx. Xxxxxx'x
satisfaction for the purpose of obtaining information or verifying
information. Xx. Xxxxxx acknowledges that he has been afforded access to
senior executives of Numerex . (including Numerex's Chief Executive
officer and Chief Financial Officer) and that he has asked them questions
sufficient to satisfy himself that he is aware of Numerex's financial
status and prospects. Xx. Xxxxxx acknowledges that he has been afforded an
opportunity to request and review any documents necessary to confirm his
awareness of Numerex's financial status and prospects.
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vi. Inside Information. Xx. Xxxxxx acknowledges and confirms that he
possesses confidential, non-public information about Numerex Corp. and its
financial status and prospects and agrees that with the exception of the
sale to Rye 68 he must refrain from buying or selling Numerex shares until
such information in his possession is no longer confidential and
non-public.
vii. Finder's Fees. Xx Xxxxxx has not retained any finder or broker
in connection with the transactions contemplated in the Transaction
Documents, and Xx. Xxxxxx agrees to indemnify and to hold Rye 68 harmless
for and from any liability for commission or compensation in the nature of
a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for
which Xx. Xxxxxx, or any person or entity on behalf of Xx. Xxxxxx, is or
may be responsible as a result of the transactions contemplated in the
Transaction Documents.
5. Miscellaneous.
A. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including telecopier) and shall be effective (a)
if given by mail, when deposited in the mails or (b) if given by telecopier,
when so telecopied. Notices hereunder shall be mailed or telecopied as follows:
If to Rye 68: c/o Xxxxxx Xxxx, Esq.
Salisbury & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
.
If to Xx. Xxxxxx: Xx. Xxxxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx
XX0 0XX,
Xxxxxx Xxxxxxx
B. No Waiver. No delay or failure on the part of any party hereto to
exercise any right, power or privilege granted under this Agreement or any other
Transaction Document or available at law or in equity, shall impair any such
right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege.
No waiver shall be valid against any party unless made in writing and signed
thereby, and then only to the extent expressly specified therein.
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C. Expenses. Each of the parties shall pay all of its own costs and
expenses (including without limitation attorneys' fees and expenses) incurred in
connection with the negotiation, preparation, execution, and delivery of this
Agreement and the other Transaction Documents.
D. Amendments. Any provision or right under this Agreement or the other
Transaction Documents may be amended or waived by any party thereto only if such
amendment or waiver is in writing and is signed by both parties.
E. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, that neither party may assign or otherwise
transfer any of its rights or obligations under this Agreement or any other
Transaction Document to any person or entity without the prior written consent
of the other party (except Xx. Xxxxxx shall be permitted to assign or otherwise
transfer any of his rights to his relatives, family trusts etc.).
F. Further Assurances. Each party hereto shall, at its own expense,
promptly execute and deliver all such other and further documents, agreements
and instruments in compliance with or accomplishment of the covenants and
agreements of such party contained herein, all as may be reasonably necessary or
appropriate in connection herewith.
G. Severability. If any part of any provision contained in this Agreement
shall be invalid or unenforceable under applicable law, said part shall be
ineffective to the extent of such invalidity only, without in any way affecting
the remaining parts of said provision or the remaining provisions.
H. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same instrument.
I. Neutral Construction. The parties have negotiated this Agreement and
all of the terms and conditions contained herein in good faith and at arms'
length, and each party has been represented by counsel during such negotiations.
No term, condition or provision contained in this Agreement shall be construed
against any party or in favor of any party (x) because such party or such
party's counsel drafted, revised, commented upon or did not comment upon, such
term, condition or provision; or (y) because of any presumption as to any
inequality of bargaining power between or among the parties. Furthermore, all
terms, conditions and provisions contained in this Agreement shall be construed
and interpreted in a manner which is consistent with all other terms, conditions
and provisions contained in this Agreement.
J. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS).
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K. JURISDICTION AND VENUE. EACH OF THE PARTIES HERETO AGREES, WITHOUT
POWER OF REVOCATION, THAT ANY CIVIL SUIT OR ACTION BROUGHT AGAINST IT AS A
RESULT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR UNDER ANY OTHER
TRANSACTION DOCUMENT TO WHICH IT IS A PARTY WILL BE BROUGHT AGAINST IT EITHER IN
THE SUPREME COURT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT LOCATED IN NEW YORK CITY.
EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH
COURTS AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTIONS THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF SUCH
CIVIL SUIT OR ACTION AND ANY CLAIM THAT SUCH CIVIL SUIT OR ACTION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREES THAT FINAL
JUDGMENT IN ANY SUCH CIVIL SUIT OR ACTION SHALL BE CONCLUSIVE AND BINDING UPON
IT AND SHALL BE ENFORCEABLE AGAINST IT BY SUIT UPON SUCH JUDGMENT IN ANY COURT
OF COMPETENT JURISDICTION.
L. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES THE RIGHT EITHER OF THEM MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR
TORT, AT LAW OR EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.
FURTHER, EACH PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
OTHER PARTY, NOR THEIR COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION.
M. Entire Agreement. The Transaction Documents together with any exhibits
and schedules attached thereto, constitute the entire understanding of the
parties with respect to the subject matter thereof, and any other prior or
contemporaneous agreements, whether written or oral, with respect thereto are
expressly superseded thereby.
N. No Implied Rights. Nothing herein express or implied, is intended to or
shall be construed to confer upon or give to any person or entity, other than
the parties hereto and their affiliates, any interest, rights, remedies or other
benefits with respect to or in connection with any agreement or provision
contained herein or contemplated hereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
RYE 68 LLC
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Manager
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/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
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