Exhibit 10.19
COMMON STOCK PURCHASE AGREEMENT
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This Agreement dated as of April 24, 1998, is entered into by and among
Netrix Corporation, a Delaware corporation (the "Company"), and the individuals
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and entities listed on Exhibit A hereto (the "Purchasers").
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In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Shares.
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1.1 Authorization. The Company has, or before the Closing (as
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defined in Section 2) will have, duly authorized the sale and issuance, pursuant
to the terms of this Agreement, of 230,000 shares of its Common Stock, $0.05 par
value per share (the "Common Stock").
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1.2 Sale of Shares. Subject to the terms and conditions of this
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Agreement, at the Closing the Company will sell and issue to each of the
Purchasers, and each of the Purchasers will purchase from the Company, the
number of shares of Common Stock set forth opposite such Purchaser's name on
Exhibit A for the purchase price of $1.25 per share. The shares of Common Stock
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being sold under this Agreement are referred to as the "Shares." The Purchasers
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are severally liable under this Agreement. This Agreement shall be deemed to be
separate agreements between the Company and each of the Purchasers, involving
separate sales of Shares from the Company to each of the Purchasers.
1.3 Use of Proceeds. The Company will use the proceeds from the sale
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of the Shares for working capital purposes.
2. The Closing. The closing ("Closing") of the sale and purchase of the
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Shares under this Agreement shall take place at the offices of Hale and Dorr
LLP, 1455 Pennsylvania Avenue, N.W., Suite 1000, Washington, D.C. 20004 at 10:00
a.m. on April 24, 1998, or at such other time, date and place as are mutually
agreeable to the Company and the Purchasers. At the Closing, the Company shall
deliver to each of the Purchasers a certificate for the number of Shares being
purchased by such Purchaser, registered in the name of such Purchaser, against
payment to the Company of the purchase price therefor, by wire transfer, check,
or other method acceptable to the Company. The date of the Closing is
hereinafter referred to as the "Closing Date." If at
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the Closing any of the conditions specified in Section 5 shall not have been
fulfilled, each of the Purchasers shall, at his or its election, be relieved of
all of his or its respective obligations under this Agreement without thereby
waiving any other rights he or it may have by reason of such failure or such
non-fulfillment.
3. Representations of the Company. Subject to and except as disclosed by
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the Company in Exhibit B hereto, the Company hereby represents and warrants to
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each of the Purchasers as follows:
3.1 Organization and Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
presently conducted and as proposed to be conducted by it, to enter into and
perform this Agreement and to carry out the transactions contemplated by this
Agreement, and to own, lease and operate its properties and assets and to carry
on its business as now being conducted. The Company has furnished to the
Purchaser true and complete copies of its Certificate of Incorporation and By-
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Laws, each as amended and restated to date and presently in effect. The Company
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and the subsidiaries of the Company (the "Subsidiaries"), as set forth in the
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Company Reports (as defined in Section 3.5), are duly qualified and licensed to
do business and are in good standing in each jurisdiction in which the conduct
of their business requires such qualification, except for jurisdictions in which
the failure to be so qualified, licensed or in good standing, individually or in
the aggregate, are not reasonably likely to have a material adverse effect on
the Company and the Subsidiaries taken as a whole or adversely affect the
Company's ability to perform its obligations hereunder or under any other
instrument or documents contemplated hereby.
3.2 Capitalization. The authorized capital stock of the Company
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(immediately prior to the Closing) consists of 15,000,000 shares of Common
Stock, of which 9,643,240 shares were issued and outstanding as of April 13,
1998, and 1,000,000 shares of Preferred Stock, $0.05 par value per share, none
of which shares are issued and outstanding. All of the issued and outstanding
shares of Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable.
3.3 Issuance of Shares. The issuance, sale and delivery of the
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Shares in accordance with this Agreement have been, or will be on or prior to
the Closing, duly authorized by all necessary corporate action on the part of
the Company, and all such shares have been duly reserved for issuance. The
Shares when so issued, sold and delivered against payment therefor in accordance
with the provisions of this Agreement will be duly and validly issued, fully
paid and non-assessable.
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3.4 Authority for Agreement. The execution, delivery and performance
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by the Company of this Agreement, and the consummation by the Company of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by the
Company and constitutes the valid and binding obligation of the Company
enforceable in accordance with its terms. The execution of and performance of
the transactions contemplated by this Agreement and compliance with its
provisions by the Company will not violate any order, writ, injunction, decree,
law, statute, rule or regulation applicable to the Company or any of its
Subsidiaries or any of their respective properties or assets and will not
conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or require a consent or waiver
under, its Certificate of Incorporation or By-Laws (each as amended and restated
to date) or any indenture, note, bond, mortgage, lease, agreement or other
instrument to which the Company or a Subsidiary is a party or by which it or any
of their respective properties are bound.
3.5 Reports, Financial Statements and Private Placement Memorandum.
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The Company has previously furnished or made available to the Purchasers
complete and accurate copies, as amended or supplemented, of its (a) Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, as filed with
the SEC, (b) all other reports filed by the Company under Section 13 of the
Exchange Act with the SEC since January 1, 1998 (such reports are collectively
referred to herein as the "Company Reports") and (c) the Company's Confidential
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Private Placement Memorandum, dated April 14, 1998, containing interim financial
information and disclosures for the period since December 31, 1997 (the
"Memorandum"). The Company Reports constitute all of the documents required to
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be filed by the Company under Section 13 of the Exchange Act with the SEC since
January 1, 1998. As of their respective dates, each of the Company Reports and
the Memorandum did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements and unaudited interim financial
statements of the Company included in the Company Reports and the Memorandum (i)
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, (ii) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby (except as may be indicated therein or in the notes thereto, and
in the case of quarterly financial statements, as permitted by form 10-Q under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (iii)
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fairly present the consolidated financial condition, results of operations and
cash flows of the Company as of the respective dates thereof and for the periods
referred to therein, and (iv) are consistent with the books and records of the
Company. Except as and to the extent set forth in the
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Company Reports or the Memorandum, the Company and its Subsidiaries have no
liability or obligation of any nature (whether accrued, absolute, contingent or
otherwise) other than liabilities and obligations that, individually and in the
aggregate, are not reasonably likely to have a material adverse effect on the
Company and its Subsidiaries taken as a whole or adversely affect the Company's
ability to perform its obligations hereunder, or any other instrument or
document contemplated hereby. The Company is eligible to use Form S-3 to effect
the registration under the Securities Act (as defined below) of outstanding
shares of its Common Stock for resale.
3.6 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company
in connection with the execution and delivery of this Agreement or the offer,
issuance, sale and delivery of the Shares as contemplated by this Agreement,
except such filings as shall have been made prior to and shall be effective on
and as of the Closing. Based on the representations made by the Purchasers in
Section 4 of this Agreement, the offer and sale of the Shares to the Purchasers
will be in compliance with applicable Federal and state securities laws.
3.7 Absence of Certain Changes or Events. Since the date of the
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Memorandum, there has not been, occurred or arisen any change in, or any event
(including any damage, destruction or loss whether or not covered by insurance),
condition or state of facts of any character that, individually or in the
aggregate, have or are reasonably likely to have a material adverse effect on
the Company or the Company's ability to perform its obligations hereunder, or
under any other instrument or document contemplated hereby.
3.8 Intellectual Property Matters. The Company and its Subsidiaries
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own or possess adequate licenses or other valid rights to use all material
patents, trademarks, service marks trade names, copyrights, trade secrets,
applications for trademarks and service marks, know-how and information and
other proprietary and intellectual property rights used or held for use in
connection with the business of the Company and its Subsidiaries as presently
conducted (including in connection with services provided by the Company and its
Subsidiaries to third parties). To the Company's knowledge, there is no
proceeding challenging the validity of any of the foregoing rights that,
individually or in the aggregate, is reasonably likely to have a material
adverse effect on the Company and its Subsidiaries taken as a whole. To the
best of the Company's knowledge, there are no infringements of any proprietary
or intellectual property rights owned by or licensed by or to the Company or any
Subsidiary of the Company that, individually or in the aggregate, are reasonably
likely to have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
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4. Representations of the Purchasers. Each of the Purchasers severally
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represents and warrants to the Company as follows:
4.1 Investment. Such Purchaser is acquiring the Shares for his or
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its own account for investment and not with a view to, or for sale in connection
with, any distribution thereof, nor with any present intention of distributing
or selling the same; and, except as contemplated by this Agreement and the
Exhibits hereto, Purchaser has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for
the disposition thereof.
4.2 Authority. Such Purchaser has full power and authority to enter
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into and to perform this Agreement in accordance with its terms. Any Purchaser
that is a corporation, partnership or trust represents that it has not been
organized, reorganized or recapitalized specifically for the purpose of
investing in the Company.
4.3 Experience. Such Purchaser has carefully reviewed the
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representations and other information concerning the Company contained in this
Agreement, the Company Reports (including, without limitation, the risk factors
contained therein) and the Memorandum and has made such detailed inquiry
concerning the Company, its business and its personnel as he or it saw fit; the
officers of the Company have made available to such Purchaser any and all
written information which he or it has requested and have answered to such
Purchaser's satisfaction all inquiries made by such Purchaser; and such
Purchaser has sufficient knowledge and experience in investing in companies
similar to the Company so as to be able to evaluate the risks and merits of his
or its investment in the Company and is able financially to bear the risks
thereof.
4.4 Accredited Investor. Such Purchaser is an Accredited Investor
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within the definition set forth in Rule 501(a) of the Securities Act of 1933, as
amended (the "Securities Act").
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5. Conditions to the Obligations of the Purchasers. The obligation of
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each of the Purchasers to purchase Shares at the Closing is subject to the
fulfillment, or the waiver by such Purchaser, of each of the following
conditions on or before the Closing:
5.1 Accuracy of Representations and Warranties. Each representation
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and warranty contained in Section 3 shall be true on and as of the Closing Date
with the same effect as though such representation and warranty had been made on
and as of that date.
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5.2 Performance. The Company shall have performed and complied with
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all agreements and conditions contained in this Agreement required to be
performed or complied with by the Company prior to or at the Closing.
5.3 Certificates and Documents. The Company shall have delivered to
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the Purchasers:
(a) The Certificate of Incorporation of the Company, as amended and in
effect as of the Closing Date (including the Certificate of Designation),
certified by the Secretary of State of the State of Delaware;
(b) Certificates, as of the most recent practicable dates, as to the
corporate good standing of the Company issued by the Secretary of State of the
State of Delaware;
(c) By-laws of the Company, as amended and in effect as of the Closing
Date, certified by its Secretary or Assistant Secretary as of the Closing Date;
and
(d) Resolutions of the Board of Directors of the Company, authorizing and
approving all matters in connection with this Agreement and the transactions
contemplated hereby, certified by the Secretary or Assistant Secretary of the
Company as of the Closing Date.
5.4 Compliance Certificate. The Company shall have delivered to the
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Purchasers a certificate, executed by the President and Chief Executive Officer
of the Company, dated the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 5.1, 5.2 and 5.3 of this Agreement.
5.5 Opinion of Counsel. The Company shall have furnished to the
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Purchasers the opinion, dated as of the Closing Date, of its counsel addressed
to the Purchasers, that:
(a) The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware with full corporate power and authority
to own and operate its properties and to conduct its business as set forth in
the Memorandum. To the knowledge of such counsel, the Company's authorized
capital stock is as set forth in the Memorandum and the issued and outstanding
capital stock as of the date of the Memorandum is as set forth in the
Memorandum.
(b) The Shares have been duly and validly authorized and issued and are
fully paid and nonassessable, and no holders of any outstanding shares of
capital stock have any preemptive rights.
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(c) The Warrant Shares (as defined below), when sold and issued pursuant
to the terms and conditions set forth in the Warrant (as defined below) will
have been duly and validly authorized and issued and will be fully paid and
nonassessable and no holder of any outstanding shares of capital stock will have
any preemption rights.
5.6 Minimum Investment. Purchasers shall have tendered at the
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Closing aggregate consideration not less than $50,000.00 for the purchase of
Shares.
6. Condition to the Obligations of the Company. The obligations of the
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Company under Section 1.2 of this Agreement are subject to fulfillment, or the
waiver, of the following conditions on or before the Closing:
6.1 Accuracy of Representations and Warranties. The representations
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and warranties of the Purchasers contained in Section 4 shall be true on and as
of the Closing Date with the same effect as though such representations and
warranties had been made on and as of that date.
6.2 Minimum Investment. Purchasers shall have tendered at the
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Closing aggregate consideration of not less than $50,000.00 for the purchase of
Shares.
6.3 Questionnaire. Each of the Purchasers shall have completed,
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executed and delivered to the Company or Qualified Purchaser Questionnaire in
the form attached hereto as Exhibit C.
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7. Registration Rights.
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The Purchasers and Flomenhaft (as defined below) shall have the
following registration rights with respect to the Shares issued to them
hereunder:
7.1 Registration Rights. The Company shall utilize reasonable
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efforts to cause, within forty five (45) days following the Closing Date, a
registration statement on Form S-3 to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "Securities
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Act") or an existing registration statement on Form S-3 (the "Registration
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Statement") to be amended for the purpose of registering the Shares, any shares
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of Common Stock ("Warrant Shares") issued upon exercise of the Common Stock
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Purchase Warrant (the "Warrant") to be distributed to L. Flomenhaft & Co.,
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Incorporated ("Flomenhaft") upon the Closing and the shares of Common Stock, if
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any, issued pursuant to the last two sentences of this Section 7.1 (the
"Additional Shares"). Flomenhaft shall be a direct and intended beneficiary of
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the covenants and provisions of this Article 7 with respect to the Warrant
Shares, for resale on a continuous basis from time to time by a Holder thereof.
For purposes of this Article 7, a person is deemed to be a "Holder" of Shares or
Warrant
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Shares whenever such person or entity is the record owner of Shares or Warrant
Shares and the term "Shares" shall include any Additional Shares. Thereafter,
the Company will use commercially reasonable best efforts to have the
Registration Statement become effective and cause the Shares and Warrant Shares
to be registered under the Securities Act, and registered, qualified or exempted
under the state securities laws of such jurisdictions as any Holder reasonably
requests, as soon as is reasonably practicable. If the Company fails to file
such Registration Statement within sixty (60) days following the Closing Date,
subject to compliance by the Company with any applicable stockholder approval
requirements imposed by law or any securities exchange or listing organization
then the Company shall issue and deliver (i) to each of the Purchasers a number
of shares of Common Stock equal to ten percent (10%) of the number of Shares
originally issued to such Purchaser pursuant to this Agreement and (ii) to
Flomenhaft a number of warrants equal to ten percent (10%) of the number of
warrants originally issued to Flomenhaft pursuant to this Agreement and the
Placement Agent Agreement (the "Placement Agent Agreement"), dated as of April
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21, 1998, by and between the Company and Flomenhaft. If the Company fails to
file the Registration Statement within 120 days of the Closing Date, and within
each subsequent sixty (60) day period thereafter, subject to compliance by the
Company with any applicable stockholder approval requirements imposed by law or
any securities exchange or listing organization then the Company shall issue and
deliver upon the expiration of each such period (y) to each of the Purchasers a
number of shares of Common Stock equal to ten percent (10%) of the number of
Shares originally purchased by such Purchaser pursuant to this Agreement and (z)
to Flomenhaft a number of warrants equal to ten percent (10%) of the number of
warrants originally issued to Flomenhaft pursuant to this Agreement and the
Placement Agent Agreement.
7.2 Expenses of Registration. All expenses incident to the Company's
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performance of or compliance with this Section 7, including, without limitation,
all registration and filing fees (including all expenses incident to filing with
Nasdaq or any other exchange), fees and expenses of complying with securities
and blue sky laws, printing and copying expenses, fees and expenses of the
Company's counsel and accountants, and the fees and disbursements of all
independent public accountants, and the fees and disbursements of all
independent public accountants (including the expenses of any audit and/or "cold
comfort" letter) shall be paid by the Company.
7.3 Furnishing of Documents. The Company shall furnish to the
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Holders such reasonable number of copies of the Registration Statement, such
prospectuses as are contained in the Registration Statement and such other
documents as the Holders may reasonable request in order to facilitate the
offering of the Shares.
7.4 Amendments and Supplements. The Company shall prepare and
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promptly file with the Commission, and promptly notify the Holders of the filing
of
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such amendments or supplements to the Registration Statement or prospectuses
contained therein, as may be necessary to correct any statements or omissions
if, at the time when a prospectus relating to the Shares or Warrants are
required to be delivered under the Securities Act, any event shall have occurred
as a result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Company shall
also advise the Holders promptly after it shall receive notice of the issuance
of any stop order by the Commission suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued.
If, after a Registration Statement becomes effective, the Holders desire that
the Registration Statement be amended or the Company advises the Holders that
the Company considers it appropriate that the Registration Statement (and all
other registration statements of the Company then effective and outstanding) be
amended, the Holders shall suspend any further sales of the Shares until the
Company advises the Holders that the Registration Statement has been amended.
7.5 Duration. The Company shall maintain the effectiveness of the
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Registration Statement until such time as the Company reasonably determines that
the Holders will be eligible to sell all of the Shares then owned by the Holders
without the need for continued registration of the shares, in three month
periods immediately preceding the termination of the effectiveness of the
Registration Statement. The Company's obligations contained in Sections 7.2,
7.3 and 7.4 shall terminate on the second anniversary of the Closing Date.
Notwithstanding the foregoing, (a) the Company may delay filing a Registration
Statement, and may withhold efforts to cause the Registration Statement to
become effective, if the Board of Directors of the Company in its good faith
judgment, determines that any registration of Shares should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction or
activity involving the Company or any of its subsidiaries (a "Valid Business
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Reason"), (b) the Company may postpone filing a Registration Statement until
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such Valid Business Reason no longer exists, but in no event for more than sixty
(60) days and (c) in case a Registration Statement has been filed, the Company
may cause such Registration Statement to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such Registration Statement
until such Valid Business Reason no longer exists, but in no event for more than
sixty (60) days (such period of postponement or withdrawal under sub clause (b)
or (c) above, the "Postponement Period"); and the Company shall give written
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notice of its determination to postpone or withdraw a Registration Statement and
of the fact that the Valid Business Reason for such postponement or withdrawal
no longer exists, in each case promptly after the
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occurrence thereof; provided, however, the Company shall not be permitted to
postpone or withdraw a Registration Statement within seventy five (75) days
after the expiration of any Postponement Period. The Holder agree that, upon
receipt of any notice from the Company that the Company has determined to
postpone or withdraw any Registration Statement, the Holder will discontinue any
disposition of Shares pursuant to such Registration Statement and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Shares that was in effect at the time of receipt
of such notice. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time as the
Valid Business Reason that caused such withdrawal or postponement no longer
exists (but in no event later than three months after the date of the
postponement or withdrawal), use its reasonable efforts to effect the
registration under the Securities Act of Shares covered by the withdrawn or
postponed registration statement in accordance with Section 7.1.
7.6 Further Information. If the Shares owned by a Holder are
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included in any registration, such Holder shall furnish the Company such
information regarding itself as the Company may reasonably request and as shall
be required in connection with any registration, qualification or compliance
referred to in this Agreement.
7.7 Indemnification.
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(i) The Company will indemnify and hold harmless the
Holders and each person, if any, who controls a Holder within the meaning of the
Securities Act, from and against any and all losses, damages, liabilities, costs
and expenses to which the Holders or any such controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses are caused by any untrue statement of
any material fact contained in the Registration Statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of or
based upon the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that, the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability, cost or expense arises out of or is based
upon an untrue statement or omission so made in conformity with information
furnished by or on behalf of any Holder or such controlling person in writing
specifically for use in the preparation thereof.
(ii) Each of the Holders will indemnify and hold harmless
the Company and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any and all losses, damages,
liabilities, costs and
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expenses to which the Buyer or any such controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement of any
material fact contained in the Registration Statement, any prospectus contained
therein or any amendment or supplement thereto, or arise out of or are based
upon the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, to the extent and only to the extent that
such untrue statement or omission was so made in reliance upon and in strict
conformity with written information furnished by or on behalf of such Holder
specifically for use in the preparation thereof.
8. Transfer of Shares.
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8.1 Restricted Shares. "Restricted Shares" means (i) the Shares and
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(ii) any other shares of capital stock of the Company issued in respect of such
shares (as a result of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that shares of Common
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Stock which are Restricted Shares shall cease to be Restricted Shares (i) upon
any sale pursuant to the Registration Rights Agreement, Section 4(1) of the
Securities Act or Rule 144 under the Securities Act or (ii) at such time as they
become eligible for sale under Rule 144(k) under the Securities Act.
8.2 Requirements for Transfer.
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(a) Restricted Shares shall not be sold, pledged, hypothecated or
otherwise disposed of or transferred unless either (i) they first shall have
been registered under the Securities Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act.
(b) Notwithstanding the foregoing, no registration or opinion of
counsel shall be required for (i) a transfer by a Purchaser which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner, if the transferee agrees in writing to be subject to
the terms of this Section 8 to the same extent as if he were an original
Purchaser hereunder, or (ii) a transfer made in accordance with Rule 144 under
the Securities Act.
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8.3 Legend. Each certificate representing Restricted Shares shall
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bear a legend substantially in the following form:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be offered, sold or
otherwise transferred, pledged or hypothecated unless and until such shares
are registered under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing
any Restricted Shares, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144(k) under the Securities
Act.
9. Miscellaneous.
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9.1 Successors and Assigns; Assignment. The provisions of this
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Agreement shall be binding upon, and inure to the benefit of, the respective
successors, assigns, and heirs, executed and minus of the parties hereto. This
Agreement, and the rights and obligations of a Purchaser hereunder, may not be
assigned by such Purchaser to any person or entity without the prior written
permission of the Company.
9.2 Confidentiality. Each of the Purchasers agrees that he or it
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will keep confidential and will not use, disclose or divulge any confidential,
proprietary or secret information which such Purchaser may obtain from the
Company pursuant to financial statements, reports and other materials submitted
by the Company to the Purchaser pursuant to this Agreement, unless such
information is known, or until such information becomes known, to the public;
provided, however, that such Purchaser may disclose such information to his or
its attorneys, accountants, consultants, and other professionals to the extent
necessary to obtain their services in connection with the Purchaser's investment
in the Company provided that such persons agree to maintain the confidentiality
of such information.
9.3 Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to the Company, at 13595 Dulles Technology Drive, Herndon, Virginia
22071, Attention: President, or at such other address or addresses as may have
been furnished in writing by the Company to the Purchasers, with a copy to David
Sylvester, Esq., Hale
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and Dorr LLP, The Willard Office Building, 1455 Pennsylvania Avenue, N.W., Suite
1000, Washington, D.C. 20004;
If to a Purchaser, at his or its address set forth on Exhibit A, or at such
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other address or addresses as may have been furnished to the Company in writing
by such Purchaser; or
If to Flomenhaft, at 225 West 34th Street, Suite 2008, New York, New York
10122, Attention: Ted Flomenhaft or at such other address or addresses as may
have been furnished in writing by Flomenhaft to the Company or the Purchasers,
with a copy to Eric Simonson, Esq., Kronish, Lieb, Weiner & Hellman LLP, 1114
Avenue of the America, New York, New York 10036.
Notices provided in accordance with this Section 9.3 shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
9.4 Brokers. Each of the Company and the Purchaser (i) represents
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and warrants to the other parties hereto that other than Flomenhaft he or it
has retained no finder or broker in connection with the transactions
contemplated by this Agreement, and (ii) will indemnify and save the other
parties harmless from and against any and all claims, liabilities or obligations
with respect to brokerage or finders' fees or commissions, or consulting fees
incurred by such party in connection with the transactions contemplated by this
Agreement except for such fees payable to Flomenhaft asserted by any person on
the basis of any statement or representation alleged to have been made by such
indemnifying party.
9.5 Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter.
9.6 Amendments and Waivers. Except as otherwise expressly set forth
----------------------
in this Agreement, any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the Purchaser. Any amendment or waiver effected in accordance
with this Section 9.6 shall be binding upon each holder of any Shares (including
shares of Common Stock into which such Shares have been converted) and each
future holder of all such securities and the Company. No failure or delay of
any party to this Agreement in exercising any power or right under this
Agreement will operate as a waiver thereof, and no waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
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9.7 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall be one and the same document.
9.8 Section Headings. The section headings are for the convenience
----------------
of the parties and in no way alter, modify, amend, limit, or restrict the
contractual obligations of the parties.
9.9 Severability. The invalidity or unenforceability of any
------------
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
9.10 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware.
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[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
THE COMPANY:
NETRIX CORPORATION
By:
--------------------------------
--------------------------------------
THE PURCHASERS:
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Jonathan Eilian
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Steven Nodvin
--------------------------------------
Edelpraud Elper-Nodvin
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Kasper Terhorst
GALT FINANCIAL, LTD.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
--------------------------------------
John Theodoracopules
G-V CAPITAL CORP.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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Kevin Muzin
--------------------------------------
Adam Hershey
--------------------------------------
Jonathan Rothschild
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Leonard Flomenhaft
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EXHIBIT A
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Name and Address No. of Shares of Aggregate
of the Purchasers Common Stock Purchase Price
- ----------------- ---------------- --------------
Jonathan Eilian 32,000 $ 40,000
c/o Starwood Capital
3 Pickwick Plaza (250)
Greenwich, CT 06830
Stephen Nodvin and Edelpraud
Elper-Nodvin 40,000 $500,000
TeleVideo Global, inc.
448 North Cedar Bluff Road, #350
Knoxville, TN 37923-9906
Kasper Terhorst 12,000 $ 15,000
4477 F Shadow Hills Blvd.
Santa Barbara, CA 93105
Galt Financial, Ltd. 40,000 $ 50,000
125 West Shore Road
Huntington, NY 11743
John Theodoracopules 20,000 $ 25,000
National Shipping
545 Madison Avenue, 6th Floor
New York, NY 10022
G-V Capital Corp. 40,000 $ 50,000
Stanley Kaplan
150 Vanderbilt Motor Parkway
Suite 311
Hauppage, NY 11788
Kevin Muzin 4,000 $ 5,000
181 Housatonic Avenue
Stratford, CT 06497
Adam Hershey 8,000 $ 10,000
2025 Broadway 2G
New York, NY 20023
Jonathan Rothschild 20,000 $ 25,000
300 Mercer Street, #28F
New York, NY 10003-6742
Leonard Flomenhaft 14,000 $ 17,500
L. Flomenhaft & Company, Inc.
225 West 34th Street (2008)
New York, NY 10122
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