STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this “
Agreement ”)
is made and entered into as of May 12, 2008 (the “
Effective Date ”)
by and between g8wave Holdings, Inc., a Delaware corporation
(“
Holdings ”
or the “
Seller ”),
and Bradley M. Mindich, an individual (the “
Purchaser ”).
PMCG Management Company, LLC (“
PMCG ”)
is also a party to this Agreement solely for the purposes of
Article VIII hereof.
WHEREAS,
the Seller is the sole record and beneficial holder of all of
the issued and outstanding shares of common stock (the
“
Shares ”)
of g8wave, Inc., a Delaware corporation (the “
Corporation ”);
WHEREAS,
the Purchaser is the sole record and beneficial holder of
9,457,500 shares of common stock of Holdings (the
“
Holdings Shares ”);
and
WHEREAS,
pursuant to the terms of this Agreement, the Seller desires to
sell, and the Purchaser desires to buy, all of the Shares upon
the terms and conditions set forth below;
NOW,
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and
intending to be legally bound by the terms and conditions of
this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SHARES AND ASSUMPTION OF
LIABILITIES
SECTION
1.01
Purchase and Sale of Shares .
Subject to the terms and conditions of this Agreement, at the
Closing (as defined in
Section 2.01 ),
the Seller shall sell, convey, transfer, assign and deliver to the
Purchaser, and the Purchaser shall purchase, acquire and accept
from the Seller, all right, title and interest in and to the
Shares, free and clear of any and all liens, claims, security
interests, mortgages, restrictions, pledges, options, purchase
rights, or obligations of any kind, other than restrictions on
transfer under federal and applicable state securities laws
(collectively, “
Liens ”).
SECTION
1.02
Purchase Price .
Upon the terms and conditions set forth in this Agreement, in
consideration of the sale, conveyance, transfer, assignment and
delivery of the Shares pursuant to
Section 1.01 ,
at the Closing the Purchaser shall:
(a)
pay
to the Seller the amount of Thirty Thousand Dollars ($30,000)
in immediately available funds (the “
Cash Payment ”);
(b)
sell,
convey,
transfer, assign and deliver to the Seller all right, title
and interest in and to the Holdings Shares, free and clear of
any and all Liens;
(c)
assume
and agree to discharge the Assumed Liabilities (as defined
in
Section 1.03 hereof);
(d)
assume
and agree to pay the Compliance Costs (as defined in
Article VIII ),
to the extent provided in, and at the times required by,
Article VIII hereof;
and
(e)
at
the Purchaser’s expense, obtain the Insurance
Endorsement (as defined in
Section 6.01 hereof).
SECTION
1.03
Assumed Liabilities .
At the Closing, the Purchaser shall assume and agree to pay,
discharge and perform promptly when due all
Liabilities (as defined below) of the Seller to the extent such
Liabilities are known as of the Closing Date, including, but not
limited to, those Liabilities set forth on
Schedule I hereto
(but excluding all Liabilities related to the Seller’s
outstanding securities, which shall remain the liability of the
Seller) (collectively, the “
Assumed Liabilities ”).
As used herein, the term “
Liabilities ”
means any liability or obligation of any kind, character or
description, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined,
determinable or otherwise and whether or not the same is required
to be accrued or reflected on financial statements prepared in
accordance with generally accepted accounting principles. Anything
in this Agreement to the contrary notwithstanding, the Seller shall
be responsible for all Liabilities and obligations not expressly
assumed by the Purchaser under this Agreement, and the Purchaser
shall not be liable or responsible in any way for, or take subject
to, any Liabilities not so expressly assumed.
SECTION
1.04
Disclaimer of Warranties .
The Purchaser expressly acknowledges and agrees that it has
performed such due diligence on the Corporation and its
subsidiaries as the Purchaser has deemed necessary in order to
enter into this Agreement and consummate the transaction
contemplated hereby. Except as expressly set forth in
Article III hereof,
the Seller makes no representation or warranty of any kind or
nature with respect to the Shares, the Corporation (including its
subsidiaries) or the business thereof, and assets of the
Corporation (including its subsidiaries) are transferred with the
Shares on an “AS IS, WHERE IS AND WITH ALL FAULTS AND
NONCOMPLIANCE WITH LAWS” WITH NO WARRANTY OF HABITABILITY OR
FITNESS FOR HABITATION, with respect to real property, land,
buildings, improvements and any real property which is the subject
of any leases, and WITH NO WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, with respect to the physical condition of
personal property and inventory, any and all of which warranties
(both express and implied) the Seller hereby expressly disclaims.
All of the foregoing real and personal property shall be further
subject to normal wear and tear on the land, buildings,
improvements and equipment and normal and customary use of the
inventory and supplies in the ordinary course of business up to the
Closing Date.
ARTICLE II
THE CLOSING
SECTION
2.01
Time and Place of Closing .
Upon the terms and conditions set forth in this Agreement, the
closing of the transactions contemplated by this Agreement (the
“
Closing ”)
shall take place at the offices of Nutter, McClennen & Fish,
LLP, World Trade Center West, 155 Seaport Boulevard, Boston,
Massachusetts 02210, or at such other place, time or date as may be
mutually agreed upon in writing by the parties, at 9:00 A.M.
Eastern Time on the day (the “
Closing Date ”)
immediately following the date on which all conditions precedent
and other matters required to be completed as of the Closing have
been completed or waived in writing by the party entitled to the
satisfaction or performance thereof.
SECTION
2.02
Deliveries by the Seller .
At the Closing, the Seller shall deliver to the Purchaser the
following, all of which shall be reasonably acceptable to the
Purchaser in both form and substance:
(a)
Stock
certificates representing all of the Shares, which shall be
accompanied by duly endorsed blank stock powers, and all
documents, instruments, and certificates necessary to transfer
and assign all right, title, and interest in and to the Shares
to the Purchaser.
(b)
The
corporate seal, corporate record books, stock books and stock
ledgers of the Corporation.
(c)
The
resignations of William Duke and Habib Khoury as trustees of
the Corporation’s 401(k) plan.
(d)
The
Assignment and Assumption Agreement in the form attached
hereto as
Exhibit A (the
“
Assignment and Assumption Agreement ”),
duly executed by the Seller.
(e)
A
certificate, duly executed by the Seller, certifying that the
Seller’s representations and warranties set forth in
this Agreement are true and correct as of the Closing Date,
and all covenants required to be performed by the Seller under
this Agreement prior to the Closing Date have, in all material
respects, been performed.
(f)
All
other documents, instruments and writings required to be
delivered by the Seller at or prior to the Closing pursuant to
this Agreement or otherwise in connection with the
transactions contemplated hereby.
SECTION
2.03
Deliveries by the Purchaser .
At the Closing, the Purchaser shall deliver to the Seller the
following, all of which shall be reasonably acceptable to the
Seller in both form and substance:
(a)
Stock
certificates representing all of the Holdings Shares, which
shall be duly endorsed for transfer to the Seller, and all
documents, instruments, and certificates necessary to transfer
and assign all right, title, and interest in and to the
Holdings Shares to the Seller.
(b)
The
Cash Payment payable pursuant to
Section 1.02(a) ,
by
wire transfer or by other immediately available funds to an account
designated by the Seller.
(c)
The
Assignment and Assumption Agreement, duly executed by the
Purchaser.
(d)
A
certificate, duly executed by the Purchaser, certifying that
the Purchaser’s representations and warranties set forth
in this Agreement are true and correct as of the Closing Date,
and that all covenants required to be performed by the
Purchaser under this Agreement prior to the Closing Date have,
in all material respects, been performed.
(e)
All
other documents, instruments and writings required to be
delivered by the Purchaser at or prior to the Closing pursuant
to this Agreement or otherwise in connection with the
transactions contemplated hereby.
SECTION
2.04
Cancellation of Holding Shares .
Effective immediately following the Closing, the Seller shall be
deemed to have cancelled and retired the Holding Shares without any
further action required by the Seller, the Purchaser, or any other
party.
SECTION
2.05
Termination of Mindich Employment Agreement .
Effective concurrently with the Closing, that certain Employment
Agreement, dated April 21, 2006, between the Corporation and
Bradley Mindich (which agreement subsequently was assumed by the
Seller), as amended by that certain Amendment to Employment
Agreement, dated January 25, 2008, between the Seller and Mr.
Mindich, shall terminate and no longer have any force or effect,
and neither party shall have any further Liability to the other
thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Purchaser that the
following representations and warranties are true and correct
as of the Effective Date:
SECTION
3.01
Corporate Power and Authority .
The Seller has all necessary corporate power and authority to
execute and deliver this Agreement and any agreement or instrument
entered into by the Seller in connection herewith (collectively,
the “
Transaction Documents ”)
and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby.
Subject to the receipt of the Required Stockholder Approval (as
defined in
Section 5.01 below),
the execution and delivery of the Transaction Documents by the
Seller and the consummation by the Seller of the transactions
contemplated thereby have been duly and validly authorized by all
necessary corporate action on the part of the Seller, and no other
corporate proceedings on the part of the Seller are necessary to
authorize the Transaction Documents or to consummate the
transactions contemplated thereby. The Transaction Documents to
which the Seller is a party have been duly and validly executed and
delivered by the Seller and, assuming the Transaction Documents
have been duly and validly executed and delivered by the
counterparties thereto, constitute the legal, valid and binding
obligations of the Seller enforceable against the Seller in
accordance with their respective terms, except as enforceability
thereof may be limited by (a) the application of bankruptcy,
reorganization, insolvency and other laws affecting
creditors’ rights generally and (b) equitable principles
being applied at the discretion of a court before which any
proceeding may be brought.
SECTION
3.02
No Conflict .
The execution and delivery of the Transaction Documents by the
Seller does not, and the performance of the Transaction Documents
by the Seller will not, (a) conflict with or violate the charter or
bylaws of the Seller, or (b) conflict with or violate, in any
material respect, any law, rule, regulation, order, judgment or
decree applicable to the Seller and will not conflict with or
result in any default under any material contract, obligation or
commitment of the Seller.
SECTION
3.03
Required Filings and Consents .
The execution and delivery of the Transaction Documents by the
Seller does not, and the performance of the Transaction Documents
by the Seller will not, require any consent, approval,
authorization or permit of, or pre-Closing filing with or
notification to, any national, federal, state, provincial or local
governmental, regulatory or administrative authority, agency,
commission, court, tribunal, arbitral body or self-regulated
entity, domestic or foreign, subject to applicable requirements, if
any, of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “
Securities Act ”),
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”),
and state securities laws (“
Blue Sky Laws ”).
SECTION
3.04
Capitalization .
On the date hereof, the authorized capital stock of the Corporation
consists of 3,000 shares of common stock, par value $0.001 per
share, of which one (1) share is issued and outstanding. All of the
issued and outstanding shares of capital stock of the Corporation
are validly issued, fully paid and nonassessable and are owned by
Holdings.
SECTION
3.05
Title to the Shares .
The Seller is the sole beneficial and record owner of, and has all
right, title, and interest in and to, the Shares, and has good,
valid, and marketable title to the Shares, free and clear of all
Liens, and upon delivery of the Shares pursuant hereto, the
Purchaser will acquire all right, title, and interest in, and good
and valid title to, the Shares, free and clear of all
Liens.
SECTION
3.06
Actions by Officers and Directors .
Other than in the ordinary course of the business of the
Corporation, no officer, director, employee or agent of Holdings
who is also an officer, director, employee or agent of the
Corporation, other than the Purchaser, has made any material
binding commitment, or incurred any material liability, on behalf
of the Corporation without the approval of the board of directors
of the Corporation.
SECTION
3.07
Liabilities .
To the knowledge of the Seller, the Liabilities set forth on
Schedule I hereto are the only Liabilities of the
Seller.
SECTION
3.08
Brokers .
Neither Holdings nor the Corporation has incurred or become liable
for any broker’s commission or finder’s fee related to
or in connection with the transactions contemplated by this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The
Purchaser represents and warrants to the Seller that the
following representations and warranties are true and correct
as of the Effective Date:
SECTION
4.01
Authorization .
The Purchaser has the legal capacity and authority to execute and
deliver this Agreement and each Transaction Document to which the
Purchaser is a party and to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby
and thereby. The Transaction Documents to which the Purchaser is a
party are valid and binding obligations of the Purchaser
enforceable in accordance with their respective terms except as
enforceability thereof may be limited by (a) the application of
bankruptcy, reorganization, insolvency and other laws affecting
creditors’ rights generally and (b) equitable principles
being applied at the discretion of a court before which any
proceeding may be brought.
SECTION
4.02
No Conflict .
The execution and delivery of the Transaction Documents by the
Purchaser does not, and the performance of the Transaction
Documents by the Purchaser will not, conflict with or violate, in
any material respect, any law, rule, regulation, order, judgment or
decree applicable to the Purchaser and, subject to obtaining the
requisite waivers (the “
Lock-Up Waivers ”)
of the transfer restrictions set forth in that certain Lock-Up
Letter Agreement executed by the Purchaser (and other officers and
directors of Holdings) in favor of the purchasers of shares of
Holdings sold in the PIPE (as defined therein), will not conflict
with or result in any default under any material contract,
obligation or commitment of the Purchaser.
SECTION
4.03
Required Filings and Consents .
The execution and delivery of the Transaction Documents by the
Purchaser does not, and the performance of the Transaction
Documents by the Purchaser will not, require any consent, approval,
authorization or permit of, or pre-Closing filing with or
notification to, any national, federal, state, provincial or local
governmental, regulatory or administrative authority, agency,
commission, court, tribunal, arbitral body or self-regulated
entity, domestic or foreign, except for applicable requirements, if
any, of the Securities Act, the Exchange Act and Blue Sky
Laws.
SECTION
4.04
Title to the Holdings Shares .
The Purchaser is the sole beneficial and record owner of, and has
all right, title, and interest in and to, the Holding Shares, and
has good, valid, and marketable title to the Holdings Shares, free
and clear of all Liens, and upon delivery of the Holdings Shares
pursuant hereto, the Seller will acquire all right, title, and
interest in, and good and valid title to, the Holdings Shares, free
and clear of all Liens. No party has any preemptive rights or
rights of first refusal in or to the Holdings Shares.
SECTION
4.05
Brokers .
The Purchaser has not incurred or become liable for any
broker’s commission or finder’s fee related to or in
connection with the transactions contemplated by this
Agreement.
SECTION
4.06
Purchase Entirely for Own Account .
The Purchaser is purchasing the Shares solely for the
Purchaser’s own account for investment and not with a view to
or for sale in connection with any distribution of the Shares or
any portion thereof (within the meaning of Section 2(11) of the
Securities Act). The Purchaser either (a) has a pre-existing
business or personal relationship with the Corporation or any of
its officers, directors or controlling persons, or (b) by reason of
the Purchaser’s business or financial experience or the
business or financial experience of the Purchaser’s
professional advisors who are unaffiliated with and who are not
directly or indirectly compensated by the Seller, the Corporation
or any affiliate or selling agent of the Seller or the Corporation,
could reasonably be assumed to have the capacity to evaluate the
merits and risks of an investment in the Shares and to protect the
Purchaser’s own interests in connection with this
transaction. The Pu
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