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EXHIBIT 10.15
CONDITIONAL SERIES B STOCK PURCHASE AGREEMENT
THIS CONDITIONAL SERIES B STOCK PURCHASE AGREEMENT (this "Agreement"),
dated as of December 21, 1999, by and between XXXXXXXXXX.XXX, INC., a Florida
corporation (the "Company") and H.T.E., INC., a Florida corporation ("HTE"),
O.F. XXXXX, X.X. XXXXXX, XXXXXXX X. XXXXXX AND XXXXXX X. XXXXX (HTE and each
individual, individually and collectively, the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue rights to purchase its common
stock, par value $.0001 per share (the "Common Stock"), pursuant to a
registration statement on Form S-1 filed with the Securities and Exchange
Commission in December 1999 (the "Rights Offering");
WHEREAS, in the event that at least $5,000,000 in rights (the
"Threshold Amount") are not exercised in the aggregate pursuant to the Rights
Offering, the Company will require additional financing; and
WHEREAS, in the event that the Threshold Amount is not raised and the
Company requests (the "Purchase Notice") that the Purchaser provide additional
financing, the Purchaser desires to provide the Company such required
additional financing in the manner and amount, and pursuant to the terms and
conditions, set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto do hereby agree as follows:
1. Purchase and Sale of Stock. In the event that the Threshold
Amount is not raised in the Rights Offering and the Company's Board of
Directors determines that delivery of the Purchase Notice is in the best
interests of the Company, the Company hereby agrees to sell and transfer to the
Purchaser, and the Purchaser hereby agrees to purchase and accept from the
Company in the aggregate, 2,000,000 shares of the Company's Series B Preferred
Stock, par value $.01 per share (the "Purchased Shares"), for an aggregate
purchase price of $2,000,000 (the "Purchase Price"). Of the aggregate 2,000,000
Purchased Shares, HTE agrees to purchase 1,000,000 shares for $1,000,000, and
each individual Purchaser agrees to purchase 250,000 shares each for $250,000
each. The terms of the Series B Preferred Stock are set forth in the Company's
Amended and Restated Articles of Incorporation filed with the Secretary of
State of Florida on or about the date hereof.
2. Payment of Purchase Price; Transfer of Stock; Other
Consideration. (a) Upon receipt of payment from the Purchaser by the Company of
the full Purchase Price, the Company shall promptly make, or cause to be made,
delivery to the Purchaser stock certificates representing the Purchased Shares,
either duly endorsed for transfer or newly issued in each Purchaser's name,
with all applicable tax stamps affixed.
(b) As an inducement to the Purchaser to execute this Agreement, the
Company shall issue the Purchaser warrants entitling the Purchaser to purchase
an aggregate of 1,000,000 shares of Common Stock at an exercise price of $2.00
per share. The Company shall issue to HTE warrants to
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purchase 500,000 shares of Common Stock for $1,000,000, and to each individual
Purchaser warrants to purchase 125,000 shares of Common Stock for $250,000
each. The terms of the warrants are set forth in a warrant agreement entered
into between the Company and each Purchaser, substantially in the form attached
hereto as Exhibit B.
3. Representations and Warranties. Each Purchaser hereby severally
represents, warrants and covenants to the Company that, in connection herewith:
(a) Review and Evaluation of Information regarding the
Company. The Purchaser has had an opportunity to examine the governing
instruments and the material disclosure and other documents and records of the
Company. The Purchaser has had an opportunity to ask questions and receive
answers from the Company and from representatives of the Company concerning the
Company's financial condition and business and to obtain such other information
that he has deemed necessary to make a fully informed decision.
(b) Purchaser's Financial Experience. The Purchaser is
sufficiently experienced in financial and business matters to be capable of
evaluating the merits and risks of its/his investment in the Purchased Shares.
The Purchaser is familiar with the nature and risks attending investments.
(c) Suitability of Investment. The Purchaser understands that
the Purchased Shares are speculative investments and involve a high degree of
risk, including but not limited to: there is no guarantee of success of the
business of the Company; he may not receive any return (economic or otherwise)
on his investment, and management and the majority shareholders of the Company
have extreme latitude and generally, the sole discretion, to determine the
financial picture, operations and potential dissolution of the Company. The
Purchaser has evaluated the merits and risks of the Purchaser's proposed
investment in the Purchased Shares, including those risks particular to the
Purchaser's personal situation, and he has determined that this investment is
suitable for the Purchaser. The Purchaser has adequate financial resources for
an investment of this character, and, at this time, the Purchaser could bear a
complete loss of his investment. Further, the Purchaser will continue to have,
after making his investment in the Purchased Shares, adequate means of
providing for his current needs, the needs of those dependent on him, and
possible personal contingencies.
(d) Investment Intent. The Purchaser is purchasing the
Purchased Shares for investment purposes only and for his own account, and has
no present commitment, agreement or intention to sell, distribute or otherwise
dispose of any of them or to enter into any such commitment or agreement.
(e) Unregistered Securities; Limitations on Disposition. The
Purchaser understands that the Purchased Shares are "restricted securities"
under the Securities Act of 1933, as amended (the "Act") and are being sold
without registration under federal or any state securities laws ("Securities
Laws") by reason of specific exemptions from registration and that the Company
is relying on the information given herein in its determination of whether such
specific exemptions are available. The Purchaser understands that because the
Purchased Shares have not been and will not be registered under the Securities
Laws, they cannot be sold unless and until they are subsequently registered or
an exemption from registration is available. The Purchaser acknowledges and
understands that the Company is under no obligation to register the Purchased
Shares. The
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Purchaser acknowledges and understands that the certificates evidencing the
Purchased Shares will bear a restrictive legend to the effect of this
subsection 2(e). The Purchaser represents that he can afford to hold the
Purchased Shares for an indefinite period of time. The Purchaser understands
that a public market for the Purchased Shares may never exist.
(f) Rule 144. The Purchaser is familiar with the provisions
of Rule 144 promulgated under the Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof, in a nonpublic offering subject to the satisfaction of
certain conditions. The Purchased Shares may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires among other
things: (i) the availability of certain public information about the Company;
(ii) the resale occurring not less than one year after the party has purchased,
and made full payment for, within the meaning of Rule 144, the securities to be
sold; and (iii) in the case of an affiliate, or of a non-affiliate who has held
the securities less than two years, the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as defined in the Securities Exchange Act of 1934) and the amount of
securities being sold during any three month period not exceeding the specified
limitation therein, if applicable.
(g) Non-Reliance Regarding Tax Consequences. The Purchaser is
not relying on the Company or any representation contained herein with respect
to the tax or economic effect of his investment in the Purchased Shares. The
Purchaser has reviewed with the Purchaser's own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Purchaser is relying solely on
such advisors and not on any statements or representations of the Company or
any of its representatives. The Purchaser understands that it/he shall be
responsible for the Purchaser's own tax liability that may arise as a result of
this investment or the transactions contemplated by this Agreement. The
Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as
amended (the "Code"), taxes as ordinary income the difference between the
purchase price for the Purchased Shares and the fair market value of the
Purchased Shares as of the date any restrictions on the Purchased Shares lapse.
(h) Prohibitions on Cancellation, Termination, Revocation,
Transferability, and Assignment. The Purchaser hereby acknowledges and agrees
that, except as may be specifically provided herein or by applicable law, it is
not entitled to cancel, terminate, or revoke this Agreement. The Purchaser
further agrees that it may not transfer or assign its rights or obligations
under this Agreement without the written consent of the Company.
(i) Authority to Enter into Agreement. The Purchaser has the
full right, power and authority to execute and deliver this Agreement and
perform his obligations hereunder, and when executed and delivered, this
Agreement will constitute a valid and legally binding obligation of such
Purchaser.
(j) Legends. Each certificate representing the Purchased
Shares may be endorsed with the following legends:
The securities represented by this certificate have
been acquired for investment and have not been
registered under the
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Securities Act of 1933, as amended, or qualified
under the laws of any state. Such shares may not be
sold or transferred in the absence of such
registration or such qualification unless the
transfer is in accordance with Rule 144 or similar
rule or unless the corporation receives an opinion
of counsel reasonably acceptable to it stating that
such sale or transfer is exempt from the
registration and prospectus delivery requirements of
said act and any applicable state securities laws.
Copies of the agreement covering the purchase of
these shares and restricting their transfer may be
obtained at no cost by written request made by the
holder of record of this certificate to the
secretary of the corporation at the principal
executive offices of the corporation.
4. Representations and Warranties of the Company. The Company
hereby represents, warrants and covenants to the Purchaser that, in connection
herewith:
(a) Ownership of Shares. The Company is the sole beneficial
and record owner of the Purchased Shares and that the Company has good, clear
and marketable title to the Purchased Shares, free of any liens, claims,
contractual restrictions, pledges, security interests or other encumbrances.
(b) Authority to Enter into Agreement. The Company has the
full right, power and authority to execute and deliver this Agreement and
perform his obligations hereunder.
5. Indemnification.
(a) The Company shall indemnify the Purchaser and hold him
harmless, upon demand, from and against any losses, damages, expenses or
liabilities, including without limitation reasonable attorneys' fees and
expenses, which the Purchaser may sustain, suffer or incur arising from or in
connection with the Company's breach of any covenant, representation, warranty,
agreement, obligation or undertaking hereunder. This indemnity shall survive
the closing of the transactions hereunder.
(b) The Purchaser shall indemnify the Company and hold him
harmless, upon demand, from and against any losses, damages, expenses or
liabilities, including without limitation reasonable attorneys' fees and
expenses, which the Company may sustain, suffer or incur arising from or in
connection with the Purchaser's breach of any covenant, representation,
warranty, agreement, obligation or undertaking hereunder. This indemnity shall
survive the closing of the transactions hereunder.
6. Governing Law; Jurisdiction. This Agreement will be governed by,
construed and enforced in accordance with the laws of the State of Florida.
7. Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes and terminates
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any prior communication, agreement or understanding, whether written or oral.
This Agreement may be modified only by a writing signed by all parties.
8. Notices. Whenever notice is provided for in this Agreement, it
shall be given in writing and hand delivered, or mailed by registered or
certified mail, return receipt requested, or sent by telecopier to 0000
Xxxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx 00000, in the case of the Company,
and at the addresses set forth in the records of the Company, in the case of
the Purchaser. The date of delivery shall be the date received if delivered by
hand or sent by telecopier, or within three (3) days of mailing, if mailed. Any
party may change the address to which notice shall be delivered or mailed by
notice duly given.
9. Benefits. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, beneficiaries,
legal representatives, successors, and assigns (including successive as well
immediate successors to and assigns of said parties).
10. Severability. In the event that any of the provisions of this
Agreement, or portions thereof, are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity and enforceability of the
remaining provisions, or portions thereof, shall not be affected thereby.
11. Section Headings. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and the year first set forth above.
THE COMPANY:
XXXXXXXXXX.XXX, INC.
By: /s/ O. F. Xxxxx
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Name: O. F. XXXXX
Title: PRESIDENT AND
CHIEF EXECUTIVE OFFICER
{Signatures continued on following page}
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PURCHASER:
H.T.E., INC.
By: /s/ X. X. Xxxxxx, Jr.
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Name: X. X. XXXXXX, JR.
Title: EXECUTIVE VICE PRESIDENT
/s/ O. F. Xxxxx
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O. F. XXXXX
/s/ X. X. Xxxxxx, Jr.
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X. X. XXXXXX, JR.
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
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