COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is dated as of September 29, 2000
(this "Purchase Agreement"), by and between XYBERNAUT CORPORATION, a Delaware
corporation, having its principal place of business located at 12701 Fair Lakes
Circle, Suite 550, Fairfax, Virginia 22033 (the "Company"), and ARCHWAY HOLDINGS
LIMITED, Gretton House, P.O. Box 65, Duke Street, Grand Turk, Turks & Caicos
Islands, British West Indies. (the "Investor").
W I T N E S S E T H
WHEREAS, the Company wishes sell to the Investor, and the Investor is
willing to buy from the Company, subject to the terms and conditions set forth
herein, $3,000,000 (the "Total Purchase Price") of Common Stock, par value $.01
per share (the "Common Stock"), of the Company.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreement contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. PURCHASE AND SALE; MUTUAL DELIVERIES. (a) Upon the following terms
and conditions, the Company shall issue and sell to the Investor and the
Investor shall purchase from the Company that number of shares of Common Stock
equal to the Total Purchase Price divided by a 24% discount of the Purchase
Price (as defined hereinafter) (the "Shares"), resulting in 717,703 Shares to be
issued upon the payment of the Purchase Price. Upon receipt of the Total
Purchase Price, the Company shall deliver to the Investor one or more
certificates representing the Shares, bearing substantially the following
legend:
THE SECURITIES REPRESENTED HEREBY (THE "SECURITIES") HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) As used herein "Purchase Price" shall mean the lowest bid
price of the Common Stock during the trading day immediately prior to the date
hereof.
(c) The Company shall also deliver, or cause to be delivered,
the original or execution copies of this Purchase Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Investor that:
(a) The Company has the corporate power and authority to enter
into this Purchase Agreement, and to perform its obligations hereunder. The
execution and delivery by the Company of this Purchase Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company.
This Purchase Agreement has been duly executed and delivered by the Company and
constitute the valid and binding obligation of the Company enforceable against
it in accordance with their respective terms, subject to the effects of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and to general equitable principles.
(b) Except as set forth in the SEC Documents (as hereinafter
defined), there is no pending, or to the knowledge of the Company, threatened,
judicial, administrative or arbitral action, claim, suit, proceeding or
investigation which might affect the validity or enforceability of this Purchase
Agreement or which involves the Company and which if adversely determined, could
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(c) No consent or approval of, or exemption by, or filing
with, any party or governmental or public body or authority is required in
connection with the execution, delivery and performance under this Purchase
Agreement or the taking of any action contemplated hereunder or thereunder.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation.
(e) The execution, delivery and performance of this Agreement
by the Company, and the consummation of the transactions contemplated hereby,
will not (i) violate any provision of the Company's articles of incorporation or
bylaws, (ii) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of the effect of, otherwise, give any
other contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract or other
agreement to which the Company is a party or by or to which the Company or any
of the Company's assets or properties may be bound or subject, (iii) violate any
order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body by which the Company, or the assets or
properties of
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the Company are bound, (iv) to the Company's knowledge, violate any statute, law
or regulation.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
hereby represents and warrants to the Company that:
(a) The Investor has the corporate power and authority to
enter into this Purchase Agreement and to perform its obligations hereunder. The
execution and delivery by the Investor of this Purchase Agreement, and the
consummation by the Investor of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of the Investor.
This Purchase Agreement has been duly executed and delivered by the Investor and
constitute the valid and binding obligation of the Investor, enforceable against
it in accordance with their respective terms, subject to the effects of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and to general equitable principles.
(b) The execution, delivery and performance by the Investor of
this Purchase Agreement, and the consummation of the transactions contemplated
hereby, do not and will not breach or constitute a default under any applicable
law or regulation or of any agreement, judgment, order, decree or other
instrument binding on the Investor.
(c) The Investor has such knowledge and prior substantial
investment experience in financial and business matters, including investment in
non-listed and non-registered securities, and has had the opportunity to engage
the services of an investment advisor, attorney or accountant to read the SEC
Documents and to evaluate the merits and risks of investment in the Company and
the Securities.
(d) The Investor is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act").
(e) The Investor is not a "U.S. Person" as that term is
defined in Regulation S promulgated under the Securities Act.
(f) The Investor is acquiring the Shares, the Warrants and the
shares of Common Stock issuable upon exercise of the Warrants (the "Warrant
Shares") solely for the Investor's own account for investment and not with a
view to or for sale in connection with a distribution of any of the Shares or
the Warrant Shares;
(g) The Investor does not have a present intention to sell the
Shares, the Warrants or the Warrant Shares (collectively, the "Securities"), nor
a present arrangement or intention to effect any distribution of any of the
Securities to or through any person or entity for purposes of selling, offering,
distributing or otherwise disposing of any of the Securities;
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(h) The Investor may be required to bear the economic risk of
the investment indefinitely because none of the Securities may be sold,
hypothecated or otherwise disposed of unless subsequently registered under the
Securities Act and applicable state securities laws or an exemption from
registration is available. Any resale of any of the Securities can be made only
pursuant to (i) a registration statement under the Securities Act which is
effective and current at the time of sale or (ii) a specific exemption from the
registration requirements of the Securities Act. In claiming any such exemption,
the Investor will, prior to any offer or sale or distribution of any Securities
advise the Company and, if requested, provide the Company with a favorable
written opinion of counsel, in form and substance satisfactory to counsel to the
Company, as to the applicability of such exemption to the proposed sale or
distribution;
(i) The Investor understands that the exemption afforded by
Rule 144 promulgated by the Securities and Exchange Commission under the
Securities Act ("Rule 144") will not become available for at least one year from
the date of payment for the Securities and any sales in reliance on Rule 144, if
then available, can be made only in accordance with the terms and conditions of
that rule, including, among other things, a requirement that the Company then be
subject to, and current, in its periodic filing requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, among
other things, a limitation on the amount of shares of Common Stock that may be
sold in specified time periods and the manner in which the sale can be made;
that, while the Company's Common Stock is registered under the Exchange Act and
the Company is presently subject to the periodic reporting requirements of the
Exchange Act, there can be no assurance that the Company will remain subject to
such reporting obligations or current in its filing obligations; and that, in
case Rule 144 is not applicable to a disposition of the Securities, compliance
with the registration provisions of the Securities Act or some other exemption
from such registration provisions will be required; and
(j) The Investor understands that legends shall be placed on
the certificates evidencing the Shares, the Warrants and the Warrant Shares to
the effect that the Shares, the Warrants and the Warrant Shares, respectively,
have not been registered under the Securities Act or applicable state securities
laws and appropriate notations thereof will be made in the Company's stock
books. Stop transfer instructions will be placed with the transfer agent of the
securities constituting the Common Stock.
4. COVENANTS OF THE COMPANY. (a) The Company covenants and agrees to
use its best efforts to register the Shares and the Warrant Shares and to
include the Shares and the shares of Common Stock issuable upon exercise of the
Warrants set forth in Section 4(d) hereof, in a registration statement to be
filed with the Securities and Exchange Commission on or before November 15,
2000.
(b) Current Public Information. The Company has furnished or
made available to the Investor true and correct copies of all registration
statements, reports and documents, including proxy statements (other than
preliminary proxy statements), filed with the Securities and Exchange Commission
(the "SEC") by or with respect to the
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Company since December 31, 1999 and prior to the date of this Agreement,
pursuant to the Securities Act or the Exchange Act (collectively, the "SEC
Documents"). The SEC Documents are the only filings made by or with respect to
the Company since December 31, 1999 pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act or pursuant to the Securities Act. The Company has
filed all reports, schedules, forms, statements and other documents required to
be filed under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act since
January 1, 1999 and prior to the date of this Agreement. The Company meets the
"Registrant Requirement" for eligibility to use Form S-3 under the Securities
Act in order to register the Company's Common Stock for resales.
(c) SEC Documents. The Company has not provided to the
Investor any information which according to applicable law, rule or regulation,
should have been disclosed publicly prior to the date hereof by the Company but
which has not been so disclosed. As of their respective dates, the SEC Documents
complied, and all similar documents filed with the SEC prior to the Closing Date
will comply, in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and rules and regulations of the
SEC promulgated thereunder and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained, nor will any similar document filed with the SEC prior to the Closing
Date contain, 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. The financial statements of the Company included in the SEC
Documents, as of the dates thereof, complied, and all similar documents filed
with the SEC prior to the Closing Date will comply, as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC and other applicable rules and regulations with respect
thereto. Such financial statements were prepared in accordance with generally
accepted accounting principles applied on a consistent basis 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
as permitted by Form 10-Q of the SEC) and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of the dates thereof and the consolidated results of operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments).
(d) Warrants. The Company agrees to issue to the Investor at
the Closing, transferable divisible warrants (the "Warrants") to purchase up to
119,880 shares of Common Stock. Such Warrants shall bear an exercise price per
share of Common Stock equal to $6.25 and shall be exercisable, immediately upon
issuance, and for a period of five (5) years thereafter, in the form annexed
hereto as Exhibit 4(d). The Warrants shall be callable by the Company if the
market price of the Shares exceeds two hundred percent (200%) of the Purchase
Price for any ten (10) trading days during a fifteen (15) trading day period.
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(e) Reimbursement. If (i) the Investor, other than by reason
of its gross negligence or willful misconduct, becomes involved in any capacity
in any action, proceeding or investigation brought by any stockholder of the
Company, in connection with or as a result of the consummation of the
transactions contemplated by this Purchase Agreement, or if such Investor
impleaded in any such action, proceeding or investigation by any Person, or (ii)
the Investor, other than by reason of its gross negligence or willful misconduct
or by reason of its trading of the Common Stock in a manner that is illegal
under the federal securities laws or other actions, becomes involved in any
capacity in any action, proceeding or investigation brought by the Commission
against or involving the Company or in connection with or as a result of the
consummation of the transactions contemplated by this Purchase Agreement, or if
the Investor is impleaded in any such action, proceeding or investigation by any
Person, then in any such case, the Company will reimburse the Investor for its
reasonable legal and other expenses (including the cost of any investigation and
preparation) incurred in connection therewith, as such expenses are incurred. In
addition, other than with respect to any such matter in which the Investor is a
named party, the Company will pay the Investor the charges, as reasonably
determined by the Investor, for the time of any officers or employees of the
Investor devoted to appearing and preparing to appear as witnesses, assisting in
preparation for hearings, trials or pretrial matters, or otherwise with respect
to inquiries, hearing, trials, and other proceedings relating to the subject
matter of this Agreement. The reimbursement obligations of the Company under
this paragraph shall be in addition to any liability which the Company may
otherwise have, shall extend upon the same terms and conditions to any
Affiliates of the Investors who are actually named in such action, proceeding or
investigation, and partners, directors, agents, employees and controlling
persons (if any), as the case may be, of the Investors and any such Affiliate,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Company, the Investors and any such
Affiliate and any such Person. The Company also agrees that neither the Investor
nor any such Affiliate, partners, directors, agents, employees or controlling
persons shall have any liability to the Company or any person asserting claims
on behalf of or in right of the Company in connection with or as a result of the
consummation of the Transaction Documents except to the extent that any losses,
claims, damages, liabilities or expenses incurred by the Company result from the
gross negligence or willful misconduct of the Investor or any such Affiliate.
5. DELIVERY OF SHARES. (a) Promptly following the delivery by the
Investor of the Total Purchase Price for the Shares in accordance with Section 1
hereof, the Company will irrevocably instruct its transfer agent to issue to the
Investor legended certificates representing the Shares.
(b) Within five (5) business days (such third business day,
the "Delivery Date") after the business day on which the Company has received
both the notice of sale (by facsimile or other delivery) and the original Common
Stock certificate (and if the same are not delivered to the Company on the same
date, the date of delivery of the second of such items), the Company (i) shall
deliver, and shall cause legal counsel selected by the Company to deliver, to
its transfer agent (with copies to Investor) an
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appropriate instruction and opinion of such counsel, for the delivery of
unlegended Shares issuable upon the sale of the Shares pursuant to the
registration statement for the Shares; provided that such registration statement
at the time of sale has been declared effective by the Commission and is current
(the "Unlegended Shares"); and (ii) transmit the certificates representing the
Unlegended Shares (together, unless otherwise instructed by the Investor, with
Common Stock not sold), to the Investor at the address specified in a notice of
sale (which address may be the Investor's address for notices as contemplated by
Section 6 hereof or a different address) via express courier, by electronic
transfer or otherwise.
(c) In lieu of delivering physical certificates representing
the Unlegended Shares, if the Company's transfer agent is participating in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer program,
upon request of the Investor and its compliance with the provisions contained in
this paragraph, so long as the certificates therefor do not bear a legend and
the Investor thereof is not obligated to return such certificate for the
placement of a legend thereon, the Company shall use its best efforts to cause
its transfer agent to electronically transmit the Unlegended Shares by crediting
the account of Investor's Prime Broker with DTC through its Deposit Withdrawal
Agent Commission system.
6. NOTICES. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or seven (7) business days after deposit in the
United States Postal Service, by (a) advance copy by fax, and (b) mailing by
express courier or registered or certified mail with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten days
advance written notice to each of the other parties hereto.
COMPANY: XYBERNAUT CORPORATION
12701 Fair Lakes Circle
Suite 550
Fairfax, Virginia 22033
ATTN: John F. Moynahan, Chief Financial Officer
Telephone No.: (703) 631-6925
Facsimile No.: (703) 631-3903
with a copy to: Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
ATTN: Martin Eric Weisberg, Esq.
Telephone No.: (212) 704-6000
Facsimile No.: (212) 704-6288
Investor: At the address set forth on the first page of this Agreement.
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with a copy to: Krieger & Prager, LLP
39 Broadway, Suite 1440
New York, New York 10006
ATTN: Samuel Krieger
Telephone No.: (212) 363-2900
Facsimile No.: (212) 363-2999
7. SEVERABILITY. If a court of competent jurisdiction determines that
any provision of this Purchase Agreement is invalid, unenforceable or illegal
for any reason, such determination shall not affect or impair the validity,
legality and enforceability of the other provisions of this Purchase Agreement.
If any such invalidity, unenforceability or illegality of a provision of this
Purchase Agreement becomes known or apparent to any of the parties hereto, the
parties shall negotiate promptly and in good faith in an attempt to make
appropriate changes and adjustments to such provision specifically and this
Purchase Agreement generally to achieve as closely as possible, consistent with
applicable law, the intent and spirit of such provision specifically and this
Purchase Agreement generally.
8. EXECUTION IN COUNTERPARTS. This Purchase Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same Purchase Agreement.
9. CONSENT TO JURISDICTION. Each of the Company and the Investor (i)
hereby irrevocably submits to the jurisdiction of the United States District
Court sitting in the Southern District of New York and the courts of the State
of New York located in New York county for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby and (ii) hereby waives, and agrees not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Investor consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 9 shall affect or limit any right to serve
process in any other manner permitted by law.
10. GOVERNING LAW. This Purchase Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without giving
effect to choice of law provisions.
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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement
as of the date first written above.
XYBERNAUT CORPORATION
By: ______________________________________
Name: Steven Newman
Title: Vice Chairman
ARCHWAY HOLDINGS LIMITED
By: ______________________________________
Name: ________________________________
Title: _______________________________
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