SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of November 14,
2000, by and among Spatial Technology Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), and Dassault Systemes Corp., a
corporation organized under the laws of the State of Delaware (the "Purchaser").
WHEREAS:
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon one or more exemptions from the registration
requirements of United States federal and state securities laws.
B. The Purchaser desires to purchase, subject to the terms and
conditions stated in this Agreement, 555,556 shares of the Company's common
stock, par value $.01 per share (the "Common Stock") for an aggregate purchase
price of $2,000,000 (or approximately $3.60 per share).
NOW, THEREFORE, in consideration of the foregoing, the mutual promises,
conditions and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, each
of the Company and the Purchaser hereby agrees as follows:
1. CERTAIN DEFINITIONS.
-------------------
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"Business Day" shall mean any day on which the American Stock Exchange
(the "AMEX") or, if the Common Stock is not then traded on the AMEX, other
principal United States securities exchange or trading market on which the
Common Stock is listed or traded is open for trading.
"Investment Amount" shall mean $2,000,000.
"Material Adverse Effect" shall mean any material adverse effect on (i)
the Shares, (ii) the ability of the Company to perform its obligations hereunder
(including the issuance of the Shares) or under the registration rights referred
to in Section 5(k) below or (iii) the business, operations, properties or
financial condition of the Company and its subsidiaries, taken as a whole.
"Purchase Agreement" means that certain Purchase Agreement, dated July
4, 2000, as amended on September 2, 2000, among the Purchaser, the Company and
Spatial Components, LLC, a Delaware limited liability company.
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"Shares" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchaser at the Closing.
"Trading Day" shall mean a Business Day on which at least 10,000 shares
of Common Stock are traded on the principal United States securities exchange or
trading market on which such shares of Common Stock are listed or traded.
2. PURCHASE AND SALE OF SHARES.
---------------------------
a. Generally. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section 6
and Section 7 below, the Purchaser shall purchase the number of Shares
determined as provided in this Section 2, and the Company shall issue and sell
such number of Shares to the Purchaser for the Investment Amount as provided
below.
b. Number of Shares Purchased; Form of Payment; Closing Date.
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i. On the Closing Date (as defined below), the Company shall
sell and the Purchaser shall buy 555,556 Shares for an aggregate purchase price
equal to the Investment Amount (or approximately $3.60 per share).
ii. On the Closing Date, the Purchaser shall pay the
Investment Amount by wire transfer to the Company, in accordance with the
Company's written wiring instructions against delivery of certificates
representing the Shares being purchased by the Purchaser, and the Company shall
deliver such Shares against delivery of the Investment Amount.
iii. Subject to the satisfaction (or waiver) of the conditions
set forth in Section 6 and Section 7 below, the date and time of the sale of the
Shares pursuant to this Agreement (the "Closing") shall be the date and time of
the closing to be held pursuant to Section 1.05 of the Purchase Agreement or
such other date or time as the parties may mutually agree ("Closing Date"). The
Closing shall occur at the offices of Xxxxx & Xxxxxxx L.L.P., 0000 Xxxxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000, or at such other place as the parties may
otherwise agree.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
----------------------------------------------
The Purchaser represents and warrants to the Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the Shares for
the Purchaser's own account and not with a present view towards the distribution
thereof. The Purchaser understands and acknowledges that the Purchaser must bear
the economic risk of this investment indefinitely, unless the Shares are
registered pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), and any applicable state securities or blue sky laws or an exemption from
such registration is available, and that the Company has no present intention of
registering any such Shares other than as contemplated by Section 5(k).
Notwithstanding anything in this Section 3(a) to the contrary, by making the
foregoing representation, the Purchaser does not agree to hold the Shares for
any minimum or other specific term and reserves
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the right to dispose of the Shares at any time in accordance with or pursuant to
a registration statement or an exemption from registration under the Securities
Act and any applicable state securities or blue sky laws.
b. Information. The Purchaser has been furnished all materials relating
to the business, finances and operations of the Company and its subsidiaries and
materials relating to the offer and sale of the Shares which have been requested
by the Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the Company and has received satisfactory answers to any such
inquiries. Neither such inquiries nor any other due diligence investigation
conducted by the Purchaser or its counsel or any of its representatives shall
modify, amend or affect the Purchaser's right to rely on the Company's
representations and warranties contained in Section 4 below.
c. Governmental Review. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Shares.
d. Authorization; Enforcement. The Purchaser has the requisite power
and authority to enter into and perform its obligations under this Agreement and
to purchase the Shares in accordance with the terms hereof. This Agreement has
been duly and validly authorized, executed and delivered on behalf of the
Purchaser and is a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
e. Transfer or Resale. The Purchaser understands that (i) except as
provided in Section 5(k), the Shares have not been and are not being registered
under the Securities Act or any state securities laws, and may not be
transferred unless (a) subsequently registered thereunder, (b) the Purchaser
shall have delivered to the Company an opinion of counsel reasonably acceptable
to the Company (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect that the
Shares to be sold or transferred may be sold or transferred under an exemption
from such registration, or (c) sold under Rule 144 promulgated under the
Securities Act (or a successor rule); and (ii) neither the Company nor any other
person is under any obligation to register such Shares under the Securities Act
or any state securities laws or to comply with the terms and conditions of any
exemption thereunder, in each case, other than pursuant to the registration
rights in Section 5(k). Notwithstanding the foregoing, no such registration
statement or opinion of counsel shall be necessary for a transfer by the
Purchaser to its stockholders in accordance with their interest in the
corporation.
f. Legends. The Purchaser understands that the Shares and, until such
time as the Shares have been registered under the Securities Act as
contemplated by the registration rights in Section 5(k) or otherwise may be sold
by the Purchaser under Rule 144, the certificates for the Shares will bear a
restrictive legend in substantially the following form:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States. The
securities represented hereby may not be offered or sold in
the absence of an effective registration statement for the
securities under applicable securities laws unless offered,
sold or transferred under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Shares upon which it is
stamped, if, (a) the sale of any such Shares is registered under the Securities
Act, (b) such holder provides the Company with an opinion of counsel, in form
and substance customary for opinions of counsel in comparable transactions, to
the effect that a public sale or transfer of any such Shares may be made without
registration under the Securities Act or (c) such holder provides the Company
with reasonable assurances that any such Shares can be sold under Rule 144. The
Purchaser agrees to sell all Shares, including those represented by a
certificate(s) from which the legend has been removed, pursuant to an effective
registration statement or under an exemption from the registration requirements
of the Securities Act. The legend shall be removed when such Shares may be sold
pursuant to an effective registration statement or sold under Rule 144(k).
g. Accredited Investor Status. The Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D ("Regulation
D") promulgated by the United States Securities and Exchange Commission (the
"SEC") under the Securities Act. The Purchaser is not registered as a broker or
dealer under Section 15(a) of the Securities Exchange Act of 1934, as amended,
or a member of the National Association of Securities Dealers.
h. Company Reliance. The Purchaser understands that the Shares are
being offered and sold to it in reliance on an exemption from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Purchaser's
compliance with, the representations, warranties, agreements, acknowledgments,
and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Shares.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
---------------------------------------------
The Company represents and warrants to the Purchaser as follows:
a. Organization and Qualification. The Company is a corporation, and
each of its subsidiaries is an entity, duly organized and existing under the
laws of the jurisdiction in which it is organized, and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company and each of its subsidiaries is duly qualified as a
foreign entity to do business and is in good standing in every jurisdiction in
which the nature of the business conducted by it makes such qualification
necessary and where the failure so to qualify would have a Material Adverse
Effect. The SEC Documents (as hereinafter defined) set
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forth the name of each of the Company's subsidiaries and its jurisdiction of
organization. Each of the Company's subsidiaries are wholly-owned.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and to issue and sell the Shares in accordance with the terms
hereof; (ii) the execution, delivery and performance of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby
(including, without limitation, the issuance and sale of the Shares) have been
duly authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors or its stockholders is
required; (iii) this Agreement has been duly executed and delivered by the
Company; and (iv) this Agreement constitutes the valid and binding obligation of
the Company enforceable against the Company in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity).
c. Capitalization. As of the date hereof, the authorized capital stock
of the Company consists of 25,000,000 shares, consisting of two classes:
22,500,000 shares of Common Stock and 2,500,000 shares of preferred stock, par
value $.01 per Share (the "Preferred Stock"). According to a certificate from
the Company's transfer agent dated November 12, 2000, an aggregate of 11,887,307
shares of the Company's Common Stock were issued and outstanding as of the date
of such transfer agent certificate. No shares of the Company's Preferred Stock
are outstanding as of the date hereof. As of the date hereof, there is an
aggregate of 4,630,599 shares of the Company's Common Stock reserved for
issuance under the Company's stock option plans and employee stock purchase
plan. All of such outstanding shares of the Company's capital stock have been,
or upon issuance will be, validly issued, fully paid and nonassessable. Except
as set forth in this Section 4(c) or on the disclosure schedule (the "Schedule")
referencing this Section 4(c), no shares of capital stock of the Company
(including the Shares) or any of its subsidiaries are subject to preemptive
rights or any other similar rights of the stockholders of the Company or any
liens or encumbrances created or incurred by the Company. Except for the Shares
and as disclosed in this Section 4(c) or Schedule 4(c), as of the date of this
Agreement, (i) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exercisable or exchangeable for, any
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or such
subsidiaries, and (ii) there are no agreements or arrangements under which the
Company or any of its subsidiaries is obligated to register the sale of any of
its or their securities under the Securities Act (except as provided in Section
1.04(d) and 1.09 of the Purchase Agreement and the Registration Rights
Agreement, dated February 18, 2000 (the "Registration Rights Agreement"), among
the Company, the Purchaser and the other investors identified therein). Except
as set forth on Schedule 4(c), there are no securities or instruments containing
price-based antidilution or similar provisions that may be triggered by the
issuance of the Shares in accordance with the terms of this Agreement or the
Registration Rights Agreement and the holders of the securities and instruments
listed on such Schedule 4(c) have waived any rights they may have under any such
antidilution or similar
5
provisions in connection with the issuance of the Shares in accordance with the
terms of this Agreement or the Registration Rights Agreement. The Company has
made available to the Purchaser and counsel for the Purchaser true and correct
copies of the Company's Certificate of Incorporation as in effect on the date
hereof ("Certificate of Incorporation"), the Company's By-laws as in effect on
the date hereof (the "By-laws") and all other instruments and agreements
governing securities convertible into or exercisable or exchangeable for capital
stock of the Company, except for stock options granted under any employee
benefit plan or director stock option plan of the Company.
d. Issuance of Shares. The Shares are duly authorized and when issued
and paid for in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and
encumbrances, and will not be subject to preemptive rights or other similar
rights of stockholders of the Company and will not impose personal liability
upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement by the Company, and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation, the
issuance and sale of the Shares) will not (i) conflict with or result in a
violation of the Certificate of Incorporation or By-laws or (ii) conflict with,
or constitute a default (or an event which, with notice or lapse of time or
both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of any agreement, indenture
or instrument to which the Company or any of its subsidiaries is a party, or
result in a violation of any law, rule, regulation, order, judgment or decree
(including United States federal and state securities laws and regulations and
AMEX regulations) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries is bound
or affected (except, with respect to clause (ii), for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect). Neither
the Company nor any of its subsidiaries is in violation of its Certificate of
Incorporation, By-laws and other organizational documents and neither the
Company nor any of its subsidiaries is in default (and no event has occurred
which, with notice or lapse of time or both, would put the Company or any of its
subsidiaries in default) under, nor has there occurred any event giving others
(with notice or lapse of time or both) any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party, except for actual or possible
violations, defaults or rights as would not, individually or in the aggregate,
have a Material Adverse Effect. The businesses of the Company and its
subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any governmental entity, except for actual or possible violations,
if any, the sanctions for which either individually or in the aggregate would
not have a Material Adverse Effect. Except as specifically contemplated by this
Agreement and as required under the Securities Act and any applicable state
securities laws, the Company is not required to obtain any consent, approval,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency in order for it
to execute, deliver or perform any of its obligations under this Agreement
(including, without limitation, the issuance and sale of the Shares as provided
hereby) in accordance with the terms hereof. The Company is not in violation of
the listing requirements of the AMEX and does not reasonably anticipate that the
6
Common Stock will be delisted by AMEX in the foreseeable future based on its
rules (and interpretations thereof) as currently in effect.
f. SEC Documents; Financial Statements. Except for the failure to
timely file a required report on Form 8-K in connection with the acquisition of
Prescient Technologies, Inc., since January 1998, the Company has timely filed
all reports, schedules, forms, statements and other documents required to be
filed by it with the SEC pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and has filed all registration statements and
other documents required to be filed by it with the SEC pursuant to the
Securities Act (all of the foregoing filed prior to the date hereof, and all
exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). The Company has made available to the Purchaser
and to counsel for the Purchaser true and complete copies of the SEC Documents
not filed on XXXXX and reasonably requested by Purchaser, except for the
exhibits and schedules thereto and the documents incorporated therein by
reference. As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act or the Securities
Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any statements made in
any such SEC Documents that are or were required to be updated or amended under
applicable law have been so updated or amended. As of their respective dates,
the financial statements of the Company included in the SEC Documents complied
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC applicable with respect thereto. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates thereof
and the results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal and recurring year-end
audit adjustments). Except as set forth in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to the date of such SEC Documents and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in such SEC Documents, which liabilities and obligations referred
to in clauses (i) and (ii) of this sentence would not individually or in the
aggregate, have a Material Adverse Effect.
g. Absence of Certain Changes. Except as disclosed in the SEC
Documents, since March 31, 2000, there has been no change or development which
individually or in the aggregate has had or could have a Material Adverse
Effect.
h. Absence of Litigation. Except as disclosed in the SEC Documents and
set forth on Schedule 4(h), there is no action, suit, proceeding, inquiry or
investigation before or by any
7
court, public board, government agency, self-regulatory organization or body
pending or, or to the knowledge of the Company, threatened against or affecting
the Company, or any of its subsidiaries, or any of their directors or officers
in their capacities as such, except as would not have a Material Adverse Effect.
i. Intellectual Property. The Company and each of its subsidiaries owns
or is licensed to use all patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, permits, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) and
other similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business as now being conducted and as proposed
to be conducted. Neither the Company nor any of its subsidiaries is infringing
or in conflict with any other person with respect to any Intangibles. Neither
the Company nor any of its subsidiaries has received written notice that it is
infringing upon third party Intangibles. Neither the Company nor any of its
subsidiaries has entered into any consent, indemnification, forbearance to xxx
or settlement agreements with respect to the validity of the Company's or such
subsidiary's ownership or right to use its Intangibles and, to the knowledge of
the Company, there is no basis for any such claim to be successful. The
Intangibles are valid and enforceable, and no registration relating thereto has
lapsed, expired or been abandoned or canceled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
in good standing. The Company has complied, in all material respects, with its
contractual obligations relating to the protection of the Intangibles used
pursuant to licenses. To the Company's knowledge, no person is infringing on or
violating the Intangibles owned or used by the Company.
j. Agreements. Except for the transactions contemplated by the Purchase
Agreement and except as filed as Exhibits to the SEC Documents or as set forth
in Schedule 4(j), there are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company or any of its subsidiaries is a party or by which it is bound that
may involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $250,000 (other than licenses pursuant to license
agreements entered into in the ordinary course of the Company's business) or
(ii) the license of any patent, copyright, trade secret or other proprietary
right to or from the Company (other than licenses pursuant to license agreements
entered into in the ordinary course of the Company's business), or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's or its subsidiaries' products or services, or (iv)
indemnification by the Company or any subsidiary with respect to infringements
of proprietary rights (other than indemnification obligations arising from
purchase or sale agreements entered into in the ordinary course of business) or
(v) transactions between the Company and any of the Company's or its
subsidiaries' officers, directors, affiliates, or any affiliates thereof (other
than pursuant to employment agreements or stock or benefit plans), or (vi)
employment of the Company's officers or (vii) incurrence of any indebtedness for
money borrowed or any other liabilities (other than with respect to dividend
obligations, distributions, indebtedness and other obligations incurred in the
ordinary course of business or as disclosed in the SEC Documents) individually
in excess of $250,000 or, in the case of indebtedness and/or liabilities
individually less than $250,000, in excess of $500,000 in the aggregate, or
(viii) the making of any loans or advances to
8
any person, other than ordinary advances for travel expenses, or (ix) the sale,
exchange or other disposition of any of its assets or rights, other than
licenses in the ordinary course of business.
k. Foreign Corrupt Practices. Neither the Company, its subsidiaries, or
any director, officer, agent, employee or other person acting on behalf of the
Company or any of its subsidiaries has, in the course of such person's actions
for, or on behalf of, the Company, or any of its subsidiaries, used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the United
States Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
l. Environment. Except as disclosed in the SEC Documents (i) there is
no environmental liability, nor, to the knowledge of the Company, factors likely
to give rise to any environmental liability, affecting any of the properties of
the Company or any of its subsidiaries that, individually or in the aggregate,
would have a Material Adverse Effect and (ii) neither the Company nor any of the
subsidiaries has violated any environmental law applicable to it now or
previously in effect, other than such violations or infringements that,
individually or in the aggregate, have not had and will not have a Material
Adverse Effect.
m. Title. The Company does not own any real property. Any real property
and facilities held under lease by the Company or any of its subsidiaries are
held by the Company or such subsidiary under valid, subsisting and enforceable
leases with such exceptions which have not had and will not have a Material
Adverse Effect.
n. Insurance. The Company and its subsidiaries maintain such insurance
relating to their business, operations, assets, key-employees and officers and
directors as is appropriate to their business, assets and operations, in such
amounts and against such risks as are customarily carried and insured against by
owners of comparable businesses, assets and operations, and such insurance
coverages will be continued in full force and effect to and including the
Closing Date other than those insurance coverages in respect of which the
failure to continue in full force and effect could not reasonably be expected to
have a Material Adverse Effect.
o. Disclosure. All information relating to or concerning the Company
and its subsidiaries set forth in this Agreement or provided to the Purchaser in
writing in connection with the transactions contemplated hereby is true and
correct in all material respects and the Company has not omitted to state any
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
information contained within any of the foregoing related to future events, or
the projected future financial performance of the Company, including any
financial projections, or descriptions of potential strategic or business
relationships between the Company and third parties.
p. No Brokers. Except for Xxxx Capital Partners, Inc., the Company has
not engaged any person to which or to whom brokerage commissions, finder's fees,
financial advisory fees or
9
similar payments are or will become due in connection with this Agreement or the
transactions contemplated hereby.
q. Tax Status. The Company and each of its subsidiaries has made or
filed all federal, state and local income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject and has paid
all taxes and other governmental assessments and charges, shown or determined to
be due on such returns, reports and declarations, except those being contested
in good faith, and has set aside on its books provisions adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes claimed to be
due by the taxing authority of any jurisdiction. The Company has not executed a
waiver with respect to any statute of limitations relating to the assessment or
collection of any federal, state or local tax. Except as set forth in Schedule
4(q), none of the Company's tax returns has been or is being audited by any
taxing authority.
r. No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Shares being offered
hereby.
s. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Shares being offered hereby under the Securities Act or cause this offering of
Shares to be integrated with any prior offering of securities of the Company for
purposes of the Securities Act or any applicable stockholder approval
provisions, including, without limitation, the applicable AMEX regulations.
t. Real Property Holding Corporation. Neither the Company nor any
subsidiary of the Company is a real property holding corporation within the
meaning of Section 897(c)(2) of the Code and any regulations promulgated
thereunder.
u. ERISA. The Company has complied in all material respects with the
applicable rules and regulations of the Employee Retirement Income Security Act
of 1974, as amended, with respect to any employee benefit plans subject thereto.
5. COVENANTS.
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a. Best Efforts. Each of the Company and the Purchaser shall use its
best efforts timely to satisfy each of the conditions set forth in Section 6 and
Section 7 of this Agreement.
b. Blue Sky Laws. The Company shall, on or before the Closing Date,
take such action as the Company shall reasonably determine is necessary to
qualify the Shares for sale to the Purchaser pursuant to this Agreement under
applicable securities or "blue sky" laws of the states of the United States or
obtain exemption therefrom, and shall provide evidence of any such action so
taken to the Purchaser and counsel for the Purchaser as soon as practicable
after such filing.
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c. Reporting Status. So long as the Purchaser beneficially owns any
Shares, the Company shall timely file all reports required to be filed with the
SEC pursuant to the Exchange Act, and shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would permit such termination.
d. Use of Proceeds. The Company shall use the net proceeds from the
sale of the Shares in order to fund the Company's sales and marketing activities
for working capital and for other general corporate purposes, including
potential strategic acquisitions, but in no event shall the Company use such net
proceeds to repurchase any outstanding securities of the Company or for any
other distribution with respect to outstanding securities of the Company.
e. Listing. Promptly after the Closing Date, the Company shall secure
the listing of the Shares upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed or
quoted (subject to official notice of issuance). The Company will use its best
efforts to continue the listing and trading of its Common Stock on AMEX (or, if
listing is moved, the New York Stock Exchange ("NYSE") or the Nasdaq National
Market ("NASDAQ")), and will comply in all material respects with the Company's
reporting, filing and other obligations under the bylaws or rules of AMEX, NYSE
or NASDAQ, as the case may be.
f. Corporate Existence. So long as the Purchaser beneficially owns any
Shares, the Company shall maintain its corporate existence, except in the event
of a merger, consolidation or sale of all or substantially all of the Company's
assets, as long as the surviving or successor entity in such transaction assumes
the Company's obligations hereunder and under the agreements and instruments
entered into in connection herewith.
g. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, shall, directly or
indirectly, make any offers or sales of any security or solicit any offers to
buy any security under circumstances that would require registration of the
Shares being offered hereby under the Securities Act or cause this offering of
Shares to be integrated with any prior or future offering of securities of the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, the applicable regulations
of AMEX, NYSE or NASDAQ, as the case may be.
h. Restrictions on Purchase. The Purchaser agrees not to purchase any
shares of the Company's Common Stock in the open market or in privately
negotiated transactions from non-affiliates for a period of one year from the
Closing Date, without the prior approval of the Board of Directors of the
Company.
i. Indemnification by the Company. The Company shall indemnify, defend
and hold the Purchaser, and its affiliates, officers, directors, stockholders,
employees and agents, harmless with respect to any and all demands, claims,
actions, suits, proceedings, assessments, judgments, costs, losses, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees) ("Losses") asserted against, resulting from, imposed upon or incurred by
any such indemnified party directly relating to or arising out of: (a) the
inaccuracy of any representation or warranty of the Company contained herein or
in any instrument or certificate
11
delivered pursuant to this Agreement, and (b) the breach of any covenant or
agreement by the Company.
j. Indemnification by the Purchaser. The Purchaser shall indemnify,
defend and hold the Company, and its affiliates, officers, directors,
stockholders, employees and agents, harmless with respect to any and all Losses
asserted against, resulting from, imposed upon or incurred by any such
indemnified party directly relating to or arising out of: (a) the inaccuracy of
any representation or warranty of the Purchaser contained herein or in any
instrument or certificate delivered pursuant to this Agreement, and (b) the
breach of any covenant or agreement by the Purchaser.
k. Registration Rights. The Purchaser will have registration rights in
respect of the shares of Common Stock purchased hereunder as provided in Section
1.04(d) and 1.09 of the Purchase Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
----------------------------------------------
The obligation of the Company hereunder to issue and sell Shares to the
Purchaser at the Closing hereunder is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions thereto; provided,
however, that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion.
a. The Purchaser shall have executed this Agreement and delivered the
same to the Company.
b. The Purchaser shall have delivered the Investment Amount in
accordance with Section 2(b) above.
c. The representations and warranties of the Purchaser shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date), and the Purchaser shall
have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO THE PURCHASER'S OBLIGATION TO PURCHASE SHARES.
-----------------------------------------------------------
The obligation of the Purchaser hereunder to purchase Shares to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following
12
conditions, provided that these conditions are for the Purchaser's sole benefit
and may be waived by the Purchaser at any time in the Purchaser's sole
discretion:
a. The Company shall have executed this Agreement and delivered the
same to the Purchaser.
b. The Company shall have instructed its transfer agent to issue to the
Purchaser duly executed certificates representing the number of Shares.
c. Trading in the Common Stock (or on AMEX generally) shall not have
been suspended or be under threat of suspension by the SEC or AMEX.
d. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties shall be true
and correct as of such date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Date. The Purchaser shall have received a
certificate, executed on behalf of the Company by its Vice President,
Administration and Corporate Controller, dated as of the Closing Date, to the
foregoing effect and attaching true and correct copies of the resolutions
adopted by the Company's Board of Directors authorizing the execution, delivery
and performance by the Company of its obligations under this Agreement.
e. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
f. The Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, in form and substance acceptable to
counsel for the Purchaser.
g. From the date of this Agreement through the Closing Date, there
shall not have occurred any Material Adverse Effect.
h. The Company shall have provided advance notice to AMEX of the
issuance of the Shares and provided the Purchaser with oral or written evidence
of the Company's compliance with all applicable rules of AMEX.
8. GOVERNING LAW; MISCELLANEOUS.
----------------------------
a. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
13
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and by the Purchaser. Any waiver
by the Purchaser, on the one hand, or the Company, on the other hand, of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision of or any breach of any
other provision of this Agreement. The failure of the Purchaser, on the one
hand, or the Company, on the other hand to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
If to the Company:
Spatial Technology Inc.
0000 00xx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Chief Executive Officer
14
With a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
If to the Purchaser
Dassault Systemes
0 Xxxx Xxxxxx Xxxxxxxx
XX000
0000 Xxxxxxxx Xxxxx
Xxxxxx
Telephone No.: 00.0.00.00.00.00
Facsimile No.: 33.1.42.0445.81
Attention: Xxxxxxxx de Tersant
With a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 212-848-7179
Attention: Xxxxxx Xxxx, Xx., Esq.
Each party shall provide notice to the other parties of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchaser.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by any other person.
i. Survival. The representations and warranties of the Company and the
agreements and covenants set forth in Sections 4, 5 and 8 shall survive the
Closing notwithstanding any due diligence investigation conducted by or on
behalf of the Purchaser. Moreover, none of the representations and warranties
made by the Company herein shall act as a waiver of any rights or remedies the
Purchaser may have under applicable federal or state securities laws. The
Company
15
agrees to indemnify and hold harmless the Purchaser and each of the Purchaser's
officers, directors, employees, partners, members, agents and affiliates for
loss or damage relating to the Securities purchased hereunder arising as a
result of or related to any breach by the Company of any of its representations
or covenants set forth herein, including advancement of expenses as they are
incurred.
j. Publicity. The Company and the Purchaser shall have the right to
review and comment upon the issuance of any press releases, or the filing of any
SEC or AMEX filings, or any other public statements with respect to the
transactions contemplated hereby. The Purchaser shall be provided documents to
review at least 48 hours prior to the filing or other issuance thereof except
that draft press releases shall be provided to the Purchaser at least 24 hours
prior to issuance. Within the time period required by the SEC, the Company shall
file a Current Report on Form 8-K or other appropriate form with the SEC
disclosing the transactions contemplated hereby, if required in the judgment of
counsel to the Company.
k. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. Termination. In the event that the Closing Date shall not have
occurred on or before November 20, 2000, unless the parties agree otherwise,
this Agreement shall terminate at the close of business on such date.
Notwithstanding any termination of this Agreement, any party not in breach of
this Agreement shall preserve all rights and remedies it may have against
another party hereto for a breach of this Agreement prior to or relating to the
termination hereof.
m. Equitable Relief. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Purchaser by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that the
Purchaser shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or other
security being required.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Securities Purchase Agreement to be duly executed as of the date
first above written.
SPATIAL TECHNOLOGY INC.:
By: /s/ R. Xxxxx Xxxxxx
---------------------------------
Name: R. Xxxxx Xxxxxx
Title:
DASSAULT SYSTEMES CORP.:
By: /s/ Xxxxxxxx de Tersant
---------------------------------
Name: Xxxxxxxx de Tersant
Title:
