May 4, 2001
Xx. Xxxx Poyiadjis
AremisSoft Corporation
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
This letter sets forth the agreement of Groupe Nova, S.A., a corporation
organized under the laws of the British Virgin Islands (the "Purchaser"), and
AremisSoft Corporation, a Delaware corporation (the "Company"), regarding the
purchase by the Purchaser from the Company of the Company's common stock (the
"Common Stock") on the date hereof. All references to Dollars in this Agreement
are to United States Dollars. The parties agree as follows:
1. Purchase of the Shares. This Agreement relates to the purchase by the
Purchaser of one million (1,000,000) shares (the "Shares") of the Company's
Common Stock for an aggregate purchase price of $15,000,000, which purchase is
being settled by the parties on the date hereof. The Purchaser and the Company
acknowledge that the purchase price per share is $15.00 per share and the
closing price on the date of this Agreement was $15.81 per share representing a
discount to the closing price of five percent (5%).
2. Representations and Warranties of the Company.
2.1 The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. The Company
has the requisite corporate power and authority to enter into and perform
this Agreement and to issue and sell the Shares in accordance with the
terms hereof. The execution, delivery and performance of this Agreement by
the Company and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action. This Agreement has been, or will be, duly executed and delivered on
behalf of the Company by a duly authorized officer. This Agreement
constitutes, or shall constitute when executed and delivered, a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms.
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2.2 The Shares have been duly authorized by all necessary corporate
action and, when paid for and issued in accordance with the terms hereof,
the Shares shall be validly issued and outstanding, fully paid and
nonassessable, and the Purchaser shall be entitled to all rights accorded
to a holder of Common Stock.
2.3. The Company represents and warrants that (a) the Shares have been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a registration statement on Form S-3, Commission File
Number 333-54528, (the "Registration Statement"); and (b) the Company has
filed, or will file, a prospectus supplement to the Registration Statement
(the "Prospectus Supplement") in connection with this transaction. Copies
of the Registration Statement and the Prospectus Supplement, each as filed,
or to be filed, and, in the case of the Registration Statement, declared
effective by the Securities and Exchange Commission, are annexed hereto as
Exhibits "A" and "B," respectively.
2.4. The Company has taken, or will take, all action necessary on its
part, to list the Shares for trading on the NASDAQ system or any relevant
market or system, if applicable. The Company will continue to take all
action necessary to continue the listing or trading of its Common Stock on
the NASDAQ Stock Market (NMS) or any other relevant market or system, if
applicable, and will comply in all respects with the Company's reporting,
listing (including, without limitation, the listing of the shares) or other
obligations under the rules of the NASDAQ Stock Market (NMS) or any other
relevant market or system.
2.5. The Company has delivered or made available to the Purchaser true
and complete copies of the filings on Forms 10-K, 10-Q and 8-K filed by the
Company with the Securities and Exchange Commission since February 8, 2001
(collectively, the "Commission Filings"). The Company has not provided to
the Purchaser any information which, according to applicable law, rule or
regulation, should have been disclosed publicly by the Company but which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of their respective dates, each of the
Commission Filings complied in all material respects with the requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules
and regulations of the Commission promulgated thereunder and other federal,
state and local laws, rules and regulations applicable to such documents,
and, as of their respective dates, none of the Commission Filings referred
to above contained 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 Commission Filings comply as to form in all material
respects with applicable accounting requirements and the published rules
and regulations of the Commission or other applicable rules and regulations
with respect thereto. No event or circumstance has occurred or exists with
respect to the Company or its subsidiaries or their respective businesses,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
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3. Representations and Warranties of the Purchaser.
3.1. The Purchaser is a corporation duly incorporated, validly
existing and in good standing under the laws of the British Virgin Islands.
The Purchaser has the requisite corporate power and authority to enter into
and perform this Agreement and to purchase the Shares in accordance with
the terms hereof. The execution, delivery and performance of this Agreement
by the Purchaser and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered on
behalf of the Purchaser by a duly authorized officer. This Agreement
constitutes, or shall constitute when executed and delivered, a valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms.
3.2. The Purchaser is an "accredited investor" within the meaning of
SEC Rule 501(a)(3), 17 C.F.R. 230.501(a)(1) as a corporation not formed for
the specific purpose of investing in the Shares with total assets in excess
of $5,000,000.
4. Other Covenants and Agreements.
4.1. The Company will promptly notify the Purchaser of (a) any stop
order or other suspension of the effectiveness of the Registration
Statement and (b) the happening of any event as a result of which the
prospectus included in the Registration Statement includes an untrue
statement of a material fact or omits 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.
4.2. The Company and the purchaser will indemnify each other as
provided in Exhibit "C" attached hereto against liability with respect to
the Registration Statement (including, without limitation, the Prospectus
Supplement) relating to the Shares sold by the Company to the Purchaser
pursuant to the Agreement. For purposes of said Exhibit C, capitalized
terms used therein without definition shall have the same meanings therein
as are ascribed to said terms in this Agreement.
4.3. This Agreement and the legal relations between the parties hereto
with respect to any purchase of Common Stock by the Purchaser hereunder
shall be governed and construed in accordance with the substantive laws of
the State of Delaware without giving effect to the conflicts of law
principles thereunder.
4.4. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same agreement. Delivery of an executed copy of a
signature page to this Agreement by facsimile transmission shall be
effective as delivery of a manually executed copy of this Agreement and
shall be effective and enforceable as the original.
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If the foregoing correctly reflects the terms of our agreement, please
execute a copy of this letter which, when executed by the Company, will
constitute a valid and binding agreement between us.
Very truly yours,
Groupe Nova, S.A.
By: -----------------------------
Xxxxx Xxxxxx, General Manager
AGREED TO:
COMPANY:
AremisSoft Corporation
By: -----------------------
Roys Poyiadjis, Co-CEO
C-1
EXHIBIT 'C'
TERMS OF INDEMNIFICATION
(1) Indemnification by the Company. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the Purchaser
within the meaning of Section 15 of the Securities Act of 1933, as amended (the
"Securities Act"); or Section 20(a) of the Securities Exchange Act,. as amended
(the "Exchange Act"); from and against any losses, claims, damages, liabilities,
costs and expenses (including, without limitation, reasonable costs of defense
and investigation and all attorneys' fees and expenses) to which the Purchaser
and each person, if any, who controls the Purchaser may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of, or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained, or incorporated by reference, in the Registration Statement
relating to Shares being sold to the Purchaser (including the prospectus dated
February 8, 2001, and any prospectus supplements thereto (the "Prospectus
Supplements") which are a part of the Registration Statement), or any amendment
to the Registration Statement, or (ii) the omission or alleged omission to state
in that Registration Statement or any document incorporated by reference in the
Registration Statement, a material fact required to be stated therein or
necessary to make the statements therein not misleading (an "Indemnifiable
Matter").
The Company will reimburse the Purchaser and each such controlling person
promptly upon demand for any legal or other costs or expenses reasonably
incurred by the Purchaser or the controlling person in investigating, defending
against, or preparing to defend against any claim relating to an Indemnifiable
Matter, except that the Company will not be liable to the extent such claim,
suit or proceeding which results in a loss, claim, damage, liability or expense
arises out of or is based upon, an untrue statement, alleged untrue statement,
omission or alleged omission, included in any Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement in reliance upon, and in
conformity with, written information furnished by the Purchaser to the Company
for inclusion in the Prospectus Supplement.
(2) Indemnification Procedure. Promptly after a person receives notice of a
claim or the commencement of an action, suit or proceeding for which the person
intends to seek indemnification under Paragraph (a) or (b), the person will
notify the indemnifying party in writing of the claim or commencement of the
action, suit or proceeding, but failure to notify the indemnifying party will
not relieve the indemnifying party rom liability under Paragraph (a) or (b),
except to the extent the indemnifying party has been materially prejudiced by
the failure to give notice. The indemnifying party will he entitled to
participate in the defense of any claim, action, suit or proceeding as to which
indemnification is being sought, and if the indemnifying party acknowledges in
writing the obligation to indemnify the party against whom the claim, action,
suit or proceeding is brought, the indemnifying party may (but will not be
required to) assume the defense against the claim, action, suit or proceeding
with legal counsel chosen by the indemnifying party. After an indemnifying party
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notifies an indemnified party that the indemnifying party wishes to assume the
defense of a claim, action, suit or proceeding the indemnifying party will not
be liable for any legal or other expenses incurred by the indemnified party in
connection with the defense against the claim, action, suit or proceeding,
except that if, in the opinion of legal counsel to the indemnifying party, one
or more of the indemnified parties should be separately represented in
connection with a claim, action, suit or proceeding the indemnifying party will
pay the fees and expenses of one separate counsel for the indemnified parties.
Each indemnified party, as a condition precedent to receiving indemnification as
provided in Paragraph (a) or (b), will, at the cost and expense of the
indemnifying party, cooperate in all reasonable respects with the indemnifying
party in the defense of the claim, action, suit or proceeding as to which
indemnification is sought. No indemnifying party will he liable for any
settlement of any claim, action, suit or proceeding effected without its prior
written consent. No indemnifying party will, without the prior written consent
of the indemnified party, effect any settlement of a pending or threatened
claim, action or proceeding with respect which an indemnified party is, or is
informed that it may be, made a party and for which it would be entitled to
indemnification, unless the settlement includes an unconditional release of the
indemnified party from all liability and claims which are the subject matter of
the pending or threatened action.
(3) Contribution. If for any reason the indemnification provided for in
this agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost or
expense referred to in Paragraph (a) or (b), each indemnifying party will, in
lieu of indemnifying the indemnified party, contribute to the amount paid or
payable by the indemnified party as a result of the loss, claim, damage,
liability, cost or expense (i) in the proportion which is appropriate to reflect
the relative benefits received by the indemnifying party, on the one hand, and
by the indemnified party, on the other hand, from the sale of stock which is the
subject of the claim, action, suit or proceeding which resulted in the loss,
claim, liability, cost or expense or (ii) if that allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits of the sale of stock, but also the relative fault of the
indemnifying party and the indemnified party with respect to the statements or
omissions which are the subject of the claim, action, suit or proceeding that
resulted in the loss, claim, damage, liability, cost or expense as well as any
other relevant equitable considerations.
