EXHIBIT 99.21
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated as of August 8,
2001, is entered into by and between JPW Opportunity Fund, LTD., a Texas limited
partnership (the "Purchaser"), and Xxxxxxxxx, LTD., a Texas limited partnership
(the "Seller"), and a stockholder of Netpliance, Inc., a Delaware corporation
(the "Company").
WHEREAS, the Seller owns 4,163,868 shares of the common stock, par value
$.01 per share (the "Common Stock"), of the Company;
WHEREAS, the Seller has offered for sale, and the Purchaser has agreed to
purchase, 530,000 shares (the "Shares") of the Common Stock owned by the Seller;
and
WHEREAS, the Seller is a party to an MBO Member Agreement with Xxxx X.
XxXxxx ("XxXxxx"), dated December 21, 2000 (the "MBO Agreement"), pursuant to
which the Seller became a member of a buyout group in a proposed transaction in
which all shares of the Common Stock not owned by the buyout group would be
converted into the right to receive cash or other consideration (the "Buyout"),
and pursuant to which the Seller agreed to not enter into any transaction to
sell or to purchase shares of Common Stock prior to the consummation of the
Buyout without the prior written consent of XxXxxx;
NOW THEREFORE, the parties hereby agree as follows:
1. Purchase and Sale of Shares. Upon the basis of the representations and
warranties and subject to the terms and conditions set forth herein, the Seller
agrees to sell all of the Shares to the Purchaser on the Closing Date (as
hereinafter defined) at a price of $0.39 per Share, or an aggregate of
$206,700.00 (the "Purchase Price"), and upon the basis of the representations
and warranties, and subject to the terms and conditions, set forth herein, the
Purchaser agrees to purchase the Shares from the Seller on the Closing Date at
the Purchase Price.
2. Closing. The closing of the purchase and sale of the Shares shall take
place on August 8, 2001 at the offices of Company, or on such other date or at
such other time or place as the Seller and the Purchaser may agree upon in
writing (such time and date of the closing being referred to herein as the
"Closing Date").
3. Closing Deliveries; Cooperation. Upon payment of the Purchase Price in
full in immediately available funds by or on behalf of the Purchaser to the
Seller (to an account specified in writing by the Seller to the Purchaser prior
to the Closing Date), the Seller will deliver to the Purchaser a certificate or
certificates representing the Shares, duly endorsed to the Purchaser or
accompanied by stock powers duly executed by the Seller, in form and substance
reasonably satisfactory to the Purchaser, or shall arrange for the book-entry
delivery of the Shares by causing The Depository Trust Company ("DTC") to
transfer the Shares into the account of a financial institution identified by
the Purchaser that is a participant in the DTC in accordance with DTC's
procedures for such transfer. After the Closing, the Seller agrees to use its
best efforts, and to cooperate with the Purchaser, to cause any certificate or
certificates
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representing the Shares to be free of any restrictive legend. The parties
acknowledge that counsel to the Seller or the Company may rely upon the
representations and warranties contained in this Agreement in rendering an
opinion to the transfer agent for the Common Stock regarding the removal of any
such restrictive legend from such certificate of certificates.
4. Representations and Warranties of the Seller. The Seller represents
and warrants, as of the date hereof and as of the Closing Date, as follows:
(a) The Seller has the capacity to enter into this Agreement and to sell,
assign, transfer and deliver to the Purchaser, pursuant to the terms and
conditions of this Agreement, the Shares. This Agreement is a legal, valid and
binding agreement of the Seller enforceable against the Seller in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) Except for this Agreement and the MBO Agreement, there are no
outstanding options, warrants or rights to purchase or acquire, or agreements
(whether voting or otherwise) relating to, the Shares.
(c) The Seller has good and marketable title to the Shares, free and clear
of all liens, claims, security interests and encumbrances of any nature. Upon
delivery hereunder by the Seller to the Purchaser of the certificates evidencing
the Shares and upon payment by the Purchaser to the Seller of the Purchase Price
therefor, the Purchaser will acquire good and marketable to the Shares, free and
clear of all liens, claims, security interests and encumbrances of any nature
(except those created by the Purchaser).
(d) The sale of the Shares hereunder will not, with or without the giving
of notice or the lapse of time, or both, (a) to the Seller's knowledge, violate
any provision of law, statute, rule or regulation to which the Seller is
subject, (b) violate any order, judgment or decree applicable to the Seller, or
(c) after receiving the consent of XxXxxx to the sale of the Shares, conflict
with, or result in a breach or default under, any term or condition of any
agreement or other instrument to which the Seller is a party or by which it is
bound.
(e) The Seller acquired, and fully paid for, the Shares at least two years
prior to the date of this Agreement.
(f) The Seller is not an affiliate (within the meaning of Rule 144 under
the Act (as defined below)) of the Company and has not been such an affiliate
for at least three months prior to the date of this Agreement.
5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants that:
(a) The Purchaser has the capacity to enter into this Agreement and to buy
the Shares from the Seller pursuant to the terms and conditions of this
Agreement. This Agreement is a
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legal, valid and binding agreement of the Purchaser enforceable against the
Purchaser in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court before
which any proceeding therefor may be brought.
(b) The Purchaser understands that the sale of the Shares hereunder has
not been registered under the Securities Act of 1933, as amended (the "Act"),
based on the exemption from registration provided by Section 4(1) of the Act,
and that the Seller's reliance on such exemption depends in part on the
Purchaser's representations and warranties in this Agreement.
(c) The Purchaser is purchasing the Shares for investment for its own
account and not with a view to the distribution thereof except in compliance
with the Act and applicable state securities laws; provided, that the Purchaser
may at any time sell or otherwise dispose of all or any part of the Shares by
registration under the Act and applicable state securities laws or pursuant to
an exemption from such registration available thereunder. The Purchaser will not
sell or otherwise transfer any interest in the Shares except in compliance with
the registration requirements, or an exemption therefrom, of the Act and
applicable state securities laws.
(d) The Purchaser is an "accredited investor," as such term is defined in
Rule 501(a) under the Act, who by reason of its business and financial
experience has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of an investment in the
Shares. The Purchaser has had the opportunity to ask questions of, and receive
answers from, the Company and its officers and agents and has received all
information concerning the Company that it has reasonably requested in
connection with its purchase of the Shares.
(e) The purchase of the Shares hereunder will not, with or without the
giving of notice or the lapse of time, or both, (a) to the Purchaser's
knowledge, violate any provision of law, statute, rule or regulation to which
the Purchaser is subject, (b) violate any order, judgment or decree applicable
to the Purchaser, or (c) conflict with, or result in a breach or default under,
any term or condition of any agreement or other instrument to which the
Purchaser is a party or by which it is bound.
(f) The Purchaser understands that no federal or state or other
governmental agency has passed upon or made any recommendation or endorsement
with respect to the Shares.
6. Conditions to Closing. The obligations of each party hereunder shall
be subject to the accuracy of the representations and warranties of the other
party hereto as of the date hereof and as of the Closing Date, as if such
representations and warranties had been made on and as of such date, and the
performance by the other party of its obligations hereunder.
7. Survival of Representations and Warranties. The respective agreements,
representations, warranties and other statements made by or on behalf of each
party hereto pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any party, and shall
survive delivery of any payment for the Shares.
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8. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, and such
counterparts shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, and no other person shall have
any right or obligation hereunder. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party hereto. Any
assignment contrary to the terms hereof shall be null and void and of no force
or effect.
(c) Each party agrees that it will make no press release or other public
statement or announcement of the terms of this Agreement without the consent of
the other party; provided, however, that nothing contained herein shall prohibit
any party from disclosing the terms of this Agreement or such other matters if
required by law, rule or regulation. The Purchaser acknowledges that Xxxxxxx X.
Xxxxxxxxx is required to file this Agreement as an exhibit to his current
Schedule 13D filing with the Securities and Exchange Commission, dated December
22, 2000, as amended, and hereby consents to such filing.
(d) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior agreements or
understandings, whether written or oral, between the parties respecting such
subject matter.
9. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
TEXAS.
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IN WITNESSES WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
SELLER:
XXXXXXXXX, LTD.,
a Texas limited partnership
By; No. 100 Hill Rock, LLC,
its General Partner
By:
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Xxxxxxx X. Xxxxxxxxx, President
PURCHASER:
JPW OPPORTUNITY FUND, LTD.,
a Texas limited partnership
By: -----------------------------------
its general partner
The undersigned hereby acknowledges and consents, pursuant to the terms of the
MBO Agreement, to the sale of the Shares by the Seller to the Purchaser, as
contemplated by this Agreement, and confirms that the Purchaser is not bound by
the MBO Agreement and that, after such sale, such Shares will no longer be
subject to the terms of the MBO Agreement:
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Xxxx X. XxXxxx
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