Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as
of July 27, 2005, between Viewpoint Corporation, a Delaware
corporation (the “COMPANY”), and Federal Partners,
L.P., a Delaware limited partnership (the
“PURCHASER”).
PREAMBLE
The Company has duly authorized the
issuance of 1,290,323 shares of the Company’s common stock,
par value $.001 per share (the “COMMON STOCK”),
pursuant to the provisions of this Stock Purchase
Agreement.
Each party hereto agrees as follows
for the benefit of the other party:
ARTICLE ONE
DEFINITIONS
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SECTION
1.01.
DEFINITIONS.
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“BOARD OF DIRECTORS”
means, as to any Person, the board of directors of such Person or
any duly authorized committee thereof.
“BOARD RESOLUTION”
means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have
been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such
certification.
“BUSINESS DAY” means any
day other than a Saturday, Sunday or any other day on which banking
institutions in The City of New York are required or authorized by
law or other governmental action to be closed.
“CAPITAL STOCK” means
(1) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents, however
designated, of corporate stock, including each class of common
stock and preferred stock of such Person and (2) with respect to
any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
“CLOSING” has the
meaning set forth in Section 2.02.
“COMMON STOCK” has the
meaning set forth in the Preamble.
“COMMISSION” means the
Securities and Exchange Commission, or any successor agency thereto
with respect to the regulation or registration of
securities.
“COMPANY” means the
party named as such in the Preamble until a successor replaces it
pursuant to this Stock Purchase Agreement.
“EXCHANGE ACT”
means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto.
“GAAP” is defined to
mean generally accepted accounting principles in the United States
of America as in effect from time to time, including, without
limitation, those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant
segment of the accounting profession.
“LIEN” means any lien,
mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
“OPINION OF COUNSEL”
means a written opinion from legal counsel which counsel may be
counsel to or an employee of the Company.
“PERSON” means an
individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political
subdivision thereof.
“REGISTRATION RIGHTS
AGREEMENT” means the Registration Rights Agreement, dated as
of July 27, 2005, by and between the Company and the Purchaser, as
amended from time to time.
“SECURITIES ACT”
means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto.
“STOCK PURCHASE
AGREEMENT” means this Stock Purchase Agreement, dated as of
July 27, 2005, by and between the Company and the Purchaser, as
amended from time to time.
“SUBSIDIARY,” with
respect to any Person, means (i) any corporation of which the
outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly,
by such Person, or (ii) any other Person of which at least a
majority of the voting interest under ordinary circumstances is at
the time, directly or indirectly, owned by such Person.
“WHOLLY OWNED
SUBSIDIARY” of any Person means any Subsidiary of such Person
of which all the outstanding voting securities (other than
directors’ qualifying shares) are owned by such Person or any
Wholly Owned Subsidiary of such Person.
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SECTION
1.02.
RULES OF CONSTRUCTION.
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Unless the context otherwise
requires:
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(1)
an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
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(2) “or”
is not exclusive;
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(3)
words in the singular include the plural, and words in the plural
include the singular;
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(4)
provisions apply to successive events and transactions;
and
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(5) “herein,”
“hereof” and other words of similar import refer to
this Stock Purchase Agreement as a whole and not to any particular
Article, Section or other subdivision.
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ARTICLE TWO
THE COMMON STOCK
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SECTION
2.01.
PURCHASE AND SALE OF THE COMMON STOCK.
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Subject to the terms and conditions
of this Stock Purchase Agreement and in reliance on the
representations, warranties and covenants of the parties contained
herein, the Company shall issue and deliver 1,290,323 shares of
Common Stock to the Purchaser, and the Purchaser shall purchase
such Common Stock from the Company for the aggregate purchase price
of $2,000,000, at the Closing described in Section 2.02.
The closing of the transactions
contemplated by Section 2.01 (the “CLOSING”) shall take
place at 3:00 p.m. on the date hereof at the offices of Patterson,
Belknap, Webb & Tyler LLP or at such other place as the Company
and Purchaser shall mutually agree.
At the Closing, the Company shall
deliver to the Purchaser certificates representing the Common Stock
to be purchased by the Purchaser at the Closing duly registered in
the name of the Purchaser. Delivery of such certificates to the
Purchaser shall be made against receipt by the Company from the
Purchaser of the aggregate purchase price set forth in Section 2.01
by wire transfer of immediately available funds to an account
designated by the Company in writing for such purpose.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
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SECTION
3.01.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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In order to induce the Purchaser to
enter into this Stock Purchase Agreement and purchase the Common
Stock, the Company represents and warrants to the Purchaser as
follows:
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(a)
Organization, Good Standing and Corporate Power . The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the
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State of
Delaware, with all requisite corporate power and authority to own
its properties and to conduct its business as presently conducted.
The Company is qualified to do business and is in good standing (or
has active status) in each jurisdiction in which the failure to be
so qualified could have a Material Adverse Effect (as hereinafter
defined). The Company has all requisite corporate power and
authority to enter into this Stock Purchase Agreement and to
perform its obligations hereunder, including, without limitation,
the issuance and sale of the Common Stock.
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(b)
Due Authorization; Enforceability; No Conflicts . The
Company has taken all corporate and stockholder action necessary to
authorize the execution, delivery and performance by it of this
Stock Purchase Agreement. Assuming the due execution and delivery
of this Stock Purchase Agreement by the Purchaser, this Stock
Purchase Agreement constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to the
enforcement of creditors’ rights generally, the availability
of equitable remedies and to general equity principles. The
execution, delivery and performance by the Company of this Stock
Purchase Agreement and compliance by the Company with the terms
hereof will not violate, conflict with or cause an event of default
under the Company’s Certificate of Incorporation or the
Company’s Bylaws, or any resolutions of the Company’s
Board of Directors or stockholders or any agreement, instrument,
judgment, order, law, rule or regulation applicable to the Company
or by which the Company is bound or to which any of the
Company’s properties are subject, except where such
violation, conflict or event of default would not result in a
material adverse effect on the Company’s business, financial
condition, results of operations or properties (a “MATERIAL
ADVERSE EFFECT”). The Common Stock, upon issuance in
accordance with the terms of this Stock Purchase Agreement, are and
will continue upon issuance to be duly authorized, validly issued,
fully-paid and nonassessable and free of any Liens, claims or
encumbrances and rights of first refusal.
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(c)
Capitalization . The authorized Capital Stock of the Company
consists of (i) 5,000,000 shares of preferred stock, par value
$.001 per share, of which no shares are issued and outstanding, and
(ii) 100,000,000 shares of Common Stock, of which 58,142,086
shares are issued and outstanding. Except as set forth on SCHEDULE
3.01(c) annexed hereto, there are no outstanding subscriptions,
rights, options, warrants, conversion rights, agreements or other
claims for the purchase or acquisition from the Company of any
shares of its Capital Stock or obligating the Company to issue,
repurchase, register or otherwise acquire, any shares of its
Capital Stock or any securities convertible into, exercisable or
exchangeable for, or otherwise entitling the holder to acquire, any
shares of Capital Stock of the Company.
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(d)
Reports and Financial Statements . The Company has
previously furnished the Purchaser with true and complete copies,
as amended or supplemented, of the following documents, to the
extent not available on the EDGAR system (i) Annual Report on
Form 10-K for the year ended December 31, 2004, as filed with the
Commission, (ii) proxy statements relating to all meetings of its
shareholders (whether annual or special) since June 1, 2005 and
(iii) all other reports or registration statements
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filed by the
Company with the SEC since December 31, 2004 (such reports,
registration statements and other filings, together with any
amendments or supplements thereto, are collectively referred to as
the “COMPANY COMMISSION FILINGS”). The Company
Commission Filings constituted all of the documents required to be
filed by the Company with the Commission since December 31, 2004.
As of their respective dates, such Company’s Commission
Filings (as amended or supplemented) complied in all material
respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and 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 consolidated financial statements and any
unaudited interim financial statements of the Company included in
such Company’s Commission Filings comply as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect
thereto, and have been prepared in accordance with GAAP (except as
may be indicated therein or in the notes thereto and, in the case
of the quarterly financial statements, as permitted by Form 10-Q
under the Exchange Act) and fairly present in all material respects
the financial position of the Company at the dates thereof and the
results of its operations and its cash flows for the periods then
ended.
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(e)
Absence of Certain Changes or Events . Except as publicly
disclosed or otherwise disclosed in writing or orally (provided
that any oral disclosure hereunder must be made to Steve Duff)
prior to the date of this Stock Purchase Agreement or as otherwise
contemplated by this Stock Purchase Agreement, since, March 31,
2005, there has not been any material adverse change or material
adverse development in the financial condition, results of
operations, or the business or properties of the
Company.
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(f)
Information in the Registration Statement . None of the
information relating to the Company, its officers or directors,
supplied by the Company for inclusion or incorporation by reference
in the registration statement (the “REGISTRATION
STATEMENT”) to be filed with the Commission by the Company
pursuant to the Registration Rights Agreement to be entered into
between the Company and the Purchaser or any amendments or
supplements thereto, will, at the time it becomes effective under
the Securities Act and at the effective date, contain any untrue
statement of material fact or omit to state any 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. If at any time prior to the effective
date any event with respect to the Company, its officers or
directors should occur which is required to be described in an
amendment, or a supplement to, the Registration Statement, such
event shall be so described and such description in such amendment
or supplement of such information will not contain any statement
which, at the time and in light of circumstances under which it is
made, is false or misleading with respect to any material fact or
omits to state any material fact required to be stated therein or
in the Registration Statement or necessary to make the statements
therein or in the Registration Statement not false or
misleading.
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(g)
Compliance With Laws . The conduct of the business of the
Company complies in all material respects with all statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees
applicable thereto. Except as set forth on SCHEDULE 3.01(g) annexed
hereto, the Company has not received notice of any alleged material
violation of any statute, law, regulation, ordinance, rule,
judgment, order or decree from any governmental authority
applicable to the Company or any of its assets or properties which
has not been satisfactorily disposed of.
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(h)
Consents . Except as set forth on SCHEDULE 3.01(h) annexed
hereto, no consent or waiver of, order or approval by, or filing
with any governmental authority or other third party is required in
connection with the Company’s execution, delivery and
performance of this Stock Purchase Agreement.
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(i)
Litigation Proceedings . Except as set forth on SCHEDULE
3.01(i) annexed hereto, there is no action, suit, notice of
violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company or any
of its properties before or by any court, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign) which (i) adversely affects or challenges
the legality, validity or enforceability of any of this Stock
Purchase Agreement and (ii) could reasonably be expected to,
individually or in the aggregate, have a Material Adverse
Effect.
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(j)
No Default or Violation . Except as set forth on SCHEDULE
3.01(j) annexed hereto, the Company (i) is not in default under or
in violation of any indenture, loan or other credit agreement or
any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) is not in
violation of any order of any court, arbitrator or governmental
body applicable to it, (iii) is not in violation of any statute,
rule or regulation of any governmental authority to which it is
subject or (iv) is not in default under or in violation of its
Certificate of Incorporation, Bylaws or other organizational
documents, respectively, except in each case for defaults and
violations which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. The
business of the Compan
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