STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of August 29, 1997 by and between Liberty
Technologies, Inc. a Pennsylvania corporation (the "Company"), Edison Venture
Fund, L.P. a Delaware limited partnership (the "Seller"), and the purchasers
whose names are set forth on Schedule I hereto (the "Purchasers").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the parties agree as follows:
SECTION 1. Agreement to Sell and Purchase the Common Stock. At the
Closing (as defined in Section 2), Seller will sell to each Purchaser, and each
Purchaser will buy from Seller, upon the terms and conditions hereinafter set
forth, the number of shares of the Company's common stock, $0.01 par value, set
forth next to such Purchaser's name on Schedule I hereto (the "Shares") at a
purchase price per Share of $4.0625. Seller also agrees to assign to the
Purchasers, with the Shares, any and all registration rights Seller has under
that certain Stock and Warrant Purchase Agreement dated October 27, 1987 between
the Company and Seller and that certain Stock Purchase Agreement dated February
23, 1989 between the Company and the Investors listed therein (collectively, the
"Stock Purchase Agreements"), and pursuant to Section 17 of each of the Stock
Purchase Agreements, the Company agrees to honor such rights as exercised by the
Purchasers pursuant to the terms of this Agreement.
SECTION 2. Closing. The closing ("Closing") of the purchase and sale of
the Shares hereunder shall occur at the offices of Pepper, Xxxxxxxx & Xxxxxxx in
Conshohocken, Pennsylvania promptly (and in any event within two business days)
after the first to occur of (i) an indication to the Company by the Securities
and Exchange Commission (the "SEC") that the SEC has declined to review the
Company's Registration Statement on Form S-3 (to be prepared and filed pursuant
to Section 8 below) (the "Form S-3"), or (ii) an indication to the Company by
the SEC that the SEC has completed its review and has no further comments on the
Company's Registration Statement on Form S-3 and acceptance by the SEC of the
Company's acceleration request with respect to the Form S-3 (the "Closing
Date"). At the Closing,
(a) The Escrow Agent (as defined in Section 3) shall deliver to Seller
the Total Aggregate Purchase Price, as set forth on Schedule I hereto (the
"Aggregate Purchase Price"), by a certified or official bank check or checks or
by wire transfer to an account to be designated by Seller by written notice to
the Purchasers and the Escrow Agent prior to the Closing Date.
(b) Seller shall deliver to each of the Purchasers certificates for the
Shares duly endorsed or accompanied by stock powers duly endorsed for transfer
in blank, with any required transfer stamps affixed thereto.
SECTION 3. Escrow. Promptly (and in any event within three business
days) after the execution of this Agreement, each Purchaser shall deposit with
Rubin, Baum, Xxxxx, Constant & Xxxxxxxx (the "Escrow Agent") cash in the amount
set forth next to such Purchaser's name on Schedule I hereto. The Escrow Agent
shall deposit the Aggregate Purchase Price into a bank deposit or money market
account mutually agreed upon by Seller and the Purchasers (the "Escrow
Account"). The Escrow Agent shall hold the Aggregate Purchase Price in the
Escrow Account until the Closing Date, and on the Closing Date, the Escrow Agent
shall deliver the Aggregate Purchase Price to Seller in accordance with Section
2. Any interest earned upon the Aggregate Purchase Price in the Escrow Account
from the date hereof to the Closing Date shall be either (i) credited and
delivered to Seller at Closing if the price of the Company's common stock as
listed in The Wall Street Journal on the Closing Date is equal to or greater
than $4.0625, or (ii) distributed pro rata among the Purchasers at Closing if
the price of the Company's common stock as listed in The Wall Street Journal on
the Closing Date is less than $4.0625.
SECTION 4. Conditions to Closing. (a) Seller's obligation to close the
transaction shall be subject to the following conditions, any one or more of
which may be waived by Seller:
(1) receipt by the Seller of a certified or official bank
check or checks or wire transfer of funds in the full amount
of the Aggregate Purchase Price; and
(2) the accuracy of the representations and warranties made by
the Purchasers herein as of the date hereof and as of the
Closing Date; and
(3) the fulfillment of those undertakings of the Purchasers
and the Company to be fulfilled prior to the Closing.
(b) The Purchasers' obligation to close the transaction shall be
subject to the accuracy of the representations and warranties made by Seller
herein as of the Closing and the fulfillment of those undertakings of Seller and
the Company to be fulfilled prior to Closing as set forth herein.
(c) Seller's and the Purchasers' obligation to close the transaction
shall be subject to the further condition that arrangements satisfactory to the
Purchasers and the Company shall have been made providing for the Form S-3 to be
filed by the Company pursuant to Section 8 to be declared effective promptly
following the Closing.
SECTION 5. Representations, Warranties and Covenants of Seller. Seller
hereby represents and warrants to, and covenants with, the Purchasers, as of the
date hereof and as of the Closing Date, that:
(a) Seller now has, and on the Closing Date will have, good and
marketable title to and unrestricted power to vote and sell the Shares owned by
Seller free and clear of any lien, pledge, charge, security interest,
restriction or encumbrance of any kind other than restrictions on sale arising
under federal securities law (each a "Lien") and, upon purchase and payment
therefor and delivery to the Purchasers thereof in accordance with the terms of
this Agreement, each Purchaser will obtain good and marketable title to such
Shares free and clear of any Lien. All Shares owned by Seller have been duly
authorized and validly issued and are fully paid and non-assessable. All Shares
to be sold by Seller are registered in the name of such Seller.
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(b) Seller has the legal power, right and authority to enter into and
perform this Agreement, and to perform each of its obligations hereunder. The
execution, delivery and performance of this Agreement by Seller (i) requires no
action by or in respect of, or filing with, or consent of, any governmental
body, agency or official or any other person or entity and (ii) does not
contravene, or constitute a default under, any provision of applicable law or
regulation or of any agreement, judgment, injunction, order, decree or any other
instrument binding upon such Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller,
enforceable in accordance with its terms.
SECTION 6. Representations, Warranties and Covenants of the Purchasers.
(a) Each of the Purchasers severally represent and warrant to, and
covenant with, Seller and the Company, as of the date hereof and as of the
Closing Date, that:
(1) such Purchaser is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended (the
"Securities Act") and also is knowledgeable, sophisticated and
experienced in making, and is qualified to make decisions with
respect to investments in private placement transactions;
(2) such Purchaser is acquiring the number of Shares set forth
next to such Purchaser's name on Schedule I hereto for his or
its own account for investment and with no present intention
of distributing any of such Shares and that no arrangement or
understanding exists with any other person regarding the
distribution of any of such Shares (this representation and
warranty not limiting such Purchaser's right to sell pursuant
to an effective registration statement registering the Shares
for resale or to be indemnified pursuant to the provisions
hereof);
(3) such Purchaser will not, directly or indirectly,
voluntarily offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act, applicable state
securities laws and the respective rules and regulations
promulgated thereunder;
(4) such Purchaser has had an opportunity to ask questions and
receive answers from the management of the Company regarding
the Company and its business and has reviewed and considered
all information it deemed relevant in making an informed
decision to purchase the Shares;
(5) such Purchaser has completed or caused to be completed the
Purchaser Questionnaire which is a part hereof and the answers
thereto are true and correct to the best knowledge of such
Purchaser as of the date hereof and will be true and correct
as of the effective date of the Registration Statement (as
defined in Section 8(a));
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(6) such Purchaser will notify the Company immediately of any
change in any of such information until such time as the
Purchaser has sold all of its Shares or until the Company is
no longer required to keep the Registration Statement
effective pursuant to Section 8(a)(4); and
(7) such Purchaser has, in connection with its decision to
purchase Shares, relied solely upon the documents that the
Company was required to file under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") during the twelve
months preceding the date of this Agreement.
(b) Each Purchaser agrees not to make any sale of the Shares without
(i) complying with the requirements of Section 8(b), and (ii) effectively
causing the prospectus delivery requirements under the Securities Act to be
satisfied. Each Purchaser acknowledges that there may occasionally be times when
the Company must suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the Commission
or until the Company has amended or supplemented such prospectus. Each Purchaser
hereby severally covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchasers notice of the suspension of the use of said prospectus and ending
at the time the Company gives such Purchasers notice that the Purchasers may
thereafter effect sales pursuant to said prospectus. Each Purchaser further
acknowledges and agrees that the Shares are not transferable on the books of the
Company unless the Purchaser executes and delivers to Seller, the Company and to
the Company's transfer agent a certificate in the form attached hereto as
Exhibit A.
(c) Each Purchaser further severally represents and warrants to, and
covenants with, Seller that (i) such Purchaser has full right, power, authority
and capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of such Purchaser enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Purchasers herein may be legally
unenforceable.
(d) The Purchasers will not, prior to the effectiveness of the
Registration Statement, sell, offer to sell, solicit offers to buy, dispose of,
loan, pledge or grant any right with respect to (collectively, a "Disposition"),
the common stock of the Company, nor will the Purchasers engage in any hedging
or other transaction which is designed to or could reasonably be expected to
lead to or result in a Disposition of Common Stock of the Company by the
Purchasers or any other person or entity. Such prohibited hedging or other
transactions would include without limitation effecting any short sale or having
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in effect any short position (whether or not such sale or position is against
the box and regardless of when such position was entered into) or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to the common stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the common stock of the Company.
SECTION 7. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Seller and the
Purchasers herein shall survive the execution of this Agreement, the delivery to
the Purchasers of the Shares being purchased and the payment therefor.
SECTION 8. Registration of the Shares; Compliance with the Securities
Act.
(a) Registration Procedures and Expenses. The Company shall, in
accordance with the terms of the Stock Purchase Agreements:
(1) as soon as practicable, give written notice to the holders
of any Restricted Securities (as such term is defined in the
Stock Purchase Agreements) of the Company of the Company's
intention to register the Shares pursuant to this Section 8;
(2) as soon as practicable (and in any event within five (5)
business days after the date hereof), prepare and file with
the Commission a registration statement on Form S-3 (the
"Registration Statement") covering the resale of the Shares by
the Purchasers from time to time on the Nasdaq National Market
or in privately negotiated transactions;
(3) use its best efforts, subject to receipt of necessary
information from the Purchasers, to cause the Registration
Statement to become effective as soon as practicable but in no
event later than sixty days after the date thereof;
(4) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep the
Registration Statement effective for a period not exceeding,
with respect to each Purchaser's Shares purchased hereunder,
the earlier of (i) the second anniversary of the Closing Date,
(ii) such time after the first anniversary of the Closing Date
when such Purchaser's Shares purchased hereunder and then
owned by such Purchaser represent no more than one percent of
the Company's outstanding common stock, or (iii) such time as
all Shares purchased by such Purchaser pursuant to this
Agreement have been sold pursuant to the Registration
Statement.
(5) furnish to each of the Purchasers with respect to the
Shares registered under the Registration Statement (and to
each underwriter, if any, of such Shares) such number of
copies of prospectuses and preliminary prospectuses in
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conformity with the requirements of the Securities Act and
such other documents as the Purchaser may reasonably request,
in order to facilitate the public sale or other disposition of
all or any of the Shares by the Purchasers, provided, however,
that the obligation of the Company to deliver copies of
prospectuses or preliminary prospectuses to the Purchasers
shall be subject to the receipt by the Company and Seller of
reasonable assurances from the Purchaser that the Purchaser
will comply with the applicable provisions of the Securities
Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses or
preliminary prospectuses;
(6) file documents required of the Company for normal blue sky
clearance in all states specified in writing by the Purchaser,
provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so
consented; and
(7) bear all expenses in connection with the procedures in
paragraphs (1) through (6) of this Section 8(a) and the
registration of the Shares pursuant to the Registration
Statement, including the reasonable fees and expenses, if any,
of counsel or other advisers to the Purchasers.
The Company understands that each of the Purchasers disclaims being an
underwriter, but a Purchaser being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder.
(b) Transfer of Shares After Registration. Each Purchaser agrees that
he or it will not effect any disposition of the Shares that would constitute a
sale within the meaning of the Securities Act or applicable state securities
laws except as contemplated in the Registration Statement referred to in Section
8(a). The Purchasers agree that to sell shares pursuant to the Registration
Statement:
(1) The Purchaser must notify the Company three (3) business
days prior to sale through the Company's counsel, Xxxxx X.
Xxxxxxx, at the address provided in Section 10(a) hereto, of
his or its intent to sell, so as to confirm that no event has
occurred or is expected to occur which would make the
Registration Statement false or misleading in any material
respect, and to ensure that the Registration Statement in its
possession is current in all material respects and has not
been suspended. The Company may refuse to permit the Purchaser
to resell pursuant to the Registration Statement, provided
that it must notify the Purchaser in writing within three (3)
business days that such a sale would violate federal
securities laws unless the Registration Statement is updated.
In such an event, the Company shall use its best efforts to
amend the Registration Statement if necessary and take all
other actions necessary to allow such sale under the federal
securities laws within ten (10) business days of Purchaser's
initial notification, and shall notify the Purchaser promptly
after it has determined that such sale has become
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permissible under the federal securities laws. Notwithstanding
the foregoing, within any twelve (12) month period the Company
shall not, except upon advice of counsel as to the necessity
pursuant to federal securities laws, under any circumstances
be entitled to exercise its right to refuse to permit resale
of any Shares pursuant to the Registration Statement (i) more
than two (2) times or (ii) for an aggregate period in excess
of thirty (30) days. Each Purchaser hereby covenants and
agrees that it will not sell any Shares pursuant to the
Registration Statement during the periods the Registration
Statement is withdrawn as set forth in this Section.
(2) If the Company or its counsel does not, within such three
(3) business days, notify the Purchaser that it is exercising
its right to delay such sale, the Purchaser may proceed with
such sale provided that it arranges for delivery of a current
prospectus to the transferee. Upon receipt of a request
therefor, the Company has agreed to provide an adequate number
of current prospectuses to each Purchaser and to supply copies
to any other parties requiring such prospectuses.
(3) The Purchaser must also deliver to Seller and the
Company's counsel a Notice of Sale substantially in the form
attached hereto as Exhibit A, so that the Shares may be
properly transferred.
(c) Indemnification. The Company and Purchasers agree that the
following provisions regarding indemnification shall control over the
corresponding provisions in the Stock Purchase Agreements. For the purpose of
this Section 8(c):
(1) the term "Selling Shareholder" shall mean any person or
entity selling Shares pursuant to the Registration Statement,
and any affiliate thereof;
(2) the term "Registration Statement" shall include any
preliminary prospectus, final prospectus, exhibit, supplement
or amendment included in or relating to the Registration
Statement referred to in Section 8(a); and
(3) the term "untrue statement" shall mean any untrue
statement or alleged untrue statement of a material fact in
the Registration Statement, or any omission or alleged
omission to state in the Registration Statement a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to which
such Selling Shareholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement, or arise out of any failure by the Company to fulfill any undertaking
included herein or in the Registration Statement, and the Company promptly will
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reimburse such Selling Shareholder for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Shareholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Shareholder to comply with the
covenants and agreements contained herein.
Each of the Purchasers severally agrees to indemnify and hold harmless
the Company (and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure of any of such Purchaser to comply with its covenants
and agreements contained herein, or any untrue statement if such untrue
statement was made in reliance upon and in conformity with written information
furnished by or on behalf of such Purchaser specifically for use in preparation
of the Registration Statement, and such Purchaser promptly will reimburse the
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8(c), such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person, such
indemnifying person shall be entitled to participate therein, and, to the extent
it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in connection
with the defense thereof, provided, however, that if there exists or shall exist
an actual or potential conflict of interest that would make it inappropriate, in
the opinion of counsel to the indemnified person, for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
If the indemnification provided for in this Section 8(c) is unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
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proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or a Purchaser on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Purchasers
agree that it would not be just and equitable if contribution pursuant to this
paragraph were determined by pro rata allocation (even if the Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to above
in this paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, no Purchaser shall be required
to contribute any amount in excess of the amount by which the net amount
received by the Purchaser from the sale of the Shares to which such loss relates
exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Purchaser's obligations in this paragraph to contribute
are several in proportion to their sales of the Shares to which such loss
relates and not joint.
The indemnifying party shall not make any settlement of any claims
indemnified against hereunder without the prior written consent of the
indemnified party or parties, which consent shall not be unreasonably withheld.
The Company, upon the reasonable request of a Purchaser, will meet with
such Purchaser or a representative thereof at the Company's headquarters to
discuss all information relevant for disclosure in the Registration Statement
covering the Stock and will otherwise cooperate with any Purchaser conducting an
investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters; provided, that, the
Company shall not be required to disclose any confidential information to or
meet at its headquarters with any Purchaser until and unless the Purchaser shall
have entered into a confidentiality agreement in the form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
(d) Termination of Conditions and Obligations. The restrictions imposed
by Section 6 or this Section 8 upon the transferability of the Shares shall
cease and terminate as to any particular number of the Shares when such Shares
shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition set
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forth in the Registration Statement covering such Shares or at such time as an
opinion of counsel satisfactory to the Company shall have been rendered to the
effect that such restrictions are not necessary in order to comply with the
Securities Act.
(e) Information Available. So long as the Registration Statement is
effective covering the resale of Shares owned by the Purchasers, the Company
will furnish to the Purchasers:
(i) as soon as practicable after it is filed, a copy of each
Form 10-K, Form 10-Q and Form 8-K filed by the Company with
the Commission;
(ii) upon the reasonable request of the Purchasers, all other
information concerning the Company that is generally available
to the public; and
(iii) upon the reasonable request of the Purchasers, an
adequate number of copies of the prospectuses relating to the
resale of the Shares to supply to any party requiring such
prospectuses.
SECTION 9. Indemnification. Each party agrees to indemnify and hold
harmless the other parties from and against any losses, claims, damages or
liabilities, together with all reasonable costs and expenses related thereto
(including, without limitation, reasonable legal fees and expenses) arising from
the breach of any of its representations, warranties, covenants or agreements
contained herein.
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid:
(a) if to the Company to:
Xxxxx X. Xxxxxxx, Esq.
Company Counsel
Liberty Technologies, Inc.
Xxx Xxxx, 000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
(b) if to Seller to: with a copy to:
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx, Esq.
Edison Venture Fund, X.X. Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxx Xxxxx #0 000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
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the Purchasers, at its address as set forth on the signature page to this
Agreement, or at such other address or addresses as may have been furnished to
the Company in writing.
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set forth
above, (ii) if made by telex, telecopy or facsimile transmission, at the time
that receipt thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service, or (iv) if
sent by registered or certified mail, on the fifth business day following the
day such mailing is made.
SECTION 11. Changes. Any term of this Agreement may be amended or
compliance therewith waived with the written consent of Seller, the Company, and
the holders of a majority of the Shares purchased pursuant to this Agreement.
SECTION 12. Assignment. The rights and obligations under this Agreement
may not be assigned by any party hereto without the prior written consent of the
other parties.
SECTION 13. Benefit. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no person
or entity shall be regarded as a third-party beneficiary of this Agreement.
SECTION 14. Waiver. The Company agrees that its duly authorized
signature to this Agreement shall act as a waiver of Seller's and Seller's
counsel's obligations under Section 10.4 of both of the Stock Purchase
Agreements.
SECTION 15. Expenses. Each of the parties hereto shall pay its own fees
and expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
SECTION 16. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 17. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania and United States federal law.
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SECTION 19. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
SECTION 20. Termination. In the event the Closing has not taken place
by January 31, 1998 due to the failure to occur of either of the events
specified in clauses (i) and (ii) of Section 2, then either the Seller (by
written notice to the Purchasers) or Purchasers, who have agreed to purchase a
majority of the Shares (by written notice to the Seller and all other
Purchasers) may terminate this Agreement. Upon any such termination the Escrow
Agent shall return to each Purchaser the funds deposited by such Purchaser
(together with any interest in respect thereof).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as this 29th
day of August, 1997.
LIBERTY TECHNOLOGIES, INC. EDISON VENTURE FUND, L.P.
By: EDISON PARTNERS, L.P.,
Its General Partner
By: /s/ R. Xxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ------------------------------
Title: President and CEO General Partner
PURCHASERS:
/s/ Xxxxx X. Xxxxxxxx /s/ Xxx X. Xxxxxx
---------------------------------- ---------------------------------
Xxxxx X. Xxxxxxxx Xxx X. Xxxxxx
503 Xxxxxxx x/x Xxxxxx Xxxxxxxx
Xxxx Xxxxxxx, XX 00000 0000 Xxxx Xxxxxx, Xxxxx 0000X
Fax: 000-000-0000 Xxxxxx, XX 00000
Fax: 000-000-0000
/s/ L. Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
---------------------------------- ---------------------------------
L. Xxxx Xxxxxx Xxxxxxx X. Xxxxx
Atlanta Investment Company Two Houston Center
000 Xxxxxxxx Xxxx. 909 Fanin, Suite 3250
Incline Village, NV 89460 Xxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxx, Esq.
---------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx Xxxxxx Xxxxxxx, Esq.
X.X. Xxx 000 000 Xxxxx Xxxxxxxx Xxx.
Xxxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
ENERGY CONSOLIDATION, INC.
/s/ Xxxxxxx X. Xxxxx
----------------------------------
By: Xxxxxxx X. Xxxxx
------------------------------
Title: Chairman
Two Houston Center
000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
-13-
Schedule I
Number of Aggregate
Name of Purchaser Shares Purchased Purchase Price
----------------- ---------------- --------------
Xxxxx X. Xxxxxxxx 12,000 $ 48,750.00
Xxx X. Xxxxxx 40,000 $ 162,500.00
Atlanta Selective Fund 40,000 $ 162,500.00
Number Six, L.P.
Xxxxxxx X. Xxxxx 40,000 $ 162,500.00
Xxxxxxx X. Xxxxx 40,000 $ 162,500.00
Xxxxxx Xxxxxxx, Esq. 10,972 $ 44,573.75
Energy Consolidation, Inc. 225,000 $ 914,062.50
======= =============
TOTAL 407,972 $1,657,386.25
Exhibit A
Date:
-------------------------
Xxxxx X. Xxxxxxx, Esq.
Liberty Technologies, Inc.
Xxx Xxxx, 000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
Edison Venture Fund, L.P.
000 Xxxxx Xxxxx #0
Xxxxxxxxxxxxx, XX 00000
Re: Liberty Technologies, Inc.
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
[official name of shareholder] ______________________________________________
("Shareholder") hereby certifies that Shareholder has sold [number]___________
shares of Liberty Technologies, Inc. Common Stock on [date] ________________ in
accordance with registration statement number [fill in number or otherwise
identify registration statement] ___________________ and the requirements of
delivering a current prospectus has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or Institution):
-------------------------------
Name of Individual representing
Purchaser (if an Institution):
------------------------------
Title of Individual representing
Purchaser (if an Institution):
-----------------------------
Signature by:
Individual Purchaser or
Individual representing Purchaser:
-------------------------
PURCHASER QUESTIONNAIRE
Name of Purchaser:
------------------------------------
Number of Shares to be Purchased:
------------------------------------
Name in which Shares are to be
registered (or specify DTC
settlement):
------------------------------------
Address of registered holder
(if other than DTC):
------------------------------------
------------------------------------
------------------------------------
Social Security or Tax ID No. of
registered holder (if other
than DTC):
------------------------------------
Contact name and telephone number
regarding settlement and
registration:
------------------------------------
Name
------------------------------------
Telephone Number
Number of shares of common stock of the Company beneficially owned by the
Purchasers (meaning shares owned or controlled or which the Purchasers has the
right to acquire or vote), other than the Shares being purchased pursuant
hereto:
--------------------------------
Have you or your organization had any position, office or other material
relationship within the past three years with the Company.
Yes No
------ ------
Do you or your organization have any direct or indirect affiliation or
association with any NASD member?
Yes No
------ ------
If yes to either of the last two questions, please indicate the nature of any
such relationships below:
