COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of January 29,
1998 by and between International CompuTex, Inc., a Georgia corporation
("Seller"), and Xxxxx New Ventures Limited, a Bermuda corporation ("Purchaser").
The parties hereby agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
---------------------------------
SECTION 1.01. Sale and Issuance of Common Stock. Subject to the
----------------------------------
terms and conditions of this Agreement, Purchaser agrees to purchase at the
Closing and Seller agrees to issue and sell to Purchaser at the Closing 300,000
shares (the "Shares") of Seller's Common Stock, par value $0.001 per share (the
"Common Stock") at a purchase price of $2,850,000 ($9.50 per share).
SECTION 1.02. Closing. (a) The purchase and sale of the Shares
--------
shall take place via telecopy on February 2, 1998 at 10:00 a.m. New York City
time, or at such other time as Seller and the Purchaser mutually agree upon,
orally or in writing (which time and place are designated as the "Closing"). At
the Closing, Seller shall deliver to the Purchaser certificates representing the
Shares being purchased hereby against delivery by the Purchaser to Seller of the
purchase price therefor by wire transfer payable in same-day funds to an account
specified by Seller. Delivery shall be made through the facilities of the
Depository Trust Company unless Purchaser shall otherwise instruct.
ARTICLE II
Representations and Warranties of Seller
----------------------------------------
Seller hereby represents and warrants to the Purchaser that:
SECTION 2.01. Organization, Good Standing and Qualification. Seller
----------------------------------------------
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted.
Seller is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a material adverse
effect on its business or properties. Seller does not have any subsidiaries.
SECTION 2.02. Capitalization. The authorized capital of Seller
---------------
consists, or will consist, immediately prior to the Closing, of:
(a) Common Stock. 20,000,000 shares of Common Stock, of which
-------------
3,250,690 shares are issued and outstanding.
(b) Options and Warrants. Except for (i) options issued or issuable
---------------------
for an aggregate of 499,310 shares of Common Stock under the 1995
Restricted Non-qualified Incentive Stock Option Plan, dated August 1, 1995,
and the 1996 Stock Option Plan, dated December 20, 1996, as proposed to be
amended, and (ii) the Warrant dated May 5, 1997 to purchase 112,500 shares
of Common Stock issued pursuant to the Underwriting Agreement dated April
29, 1997, there are no outstanding options, warrants, rights (including
conversion or preemptive rights) or agreements, orally or in writing, for
the purchase or acquisition from Seller of any shares of its capital stock
(the rights and options in clauses (i) and (ii) above being collectively
called the "Existing Equity Rights"). There exist no rights of first
refusal or similar rights in respect of shares of Seller's capital stock
issued or sold by Seller.
SECTION 2.03. Authorization. All corporate action on the part of
--------------
Seller, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of Seller hereunder and the authorization, issuance and delivery of
the Shares has been taken or will be taken prior to the Closing, and the
Agreement, when executed and delivered by Seller, shall constitute a valid and
legally binding obligation of Seller, enforceable against Seller in accordance
with its terms.
SECTION 2.04. Valid Issuance of Shares. The Shares being issued to
-------------------------
Purchaser hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of restrictions on transfer other
than restrictions on transfer under this Agreement and applicable state and
federal securities laws and not subject to any preemptive rights of others. The
issued and outstanding shares of Seller's Common Stock are duly and validly
issued, fully paid and nonassessable and have been issued in compliance with
applicable state and federal securities laws and are approved for quotation on
the Nasdaq National Market ("NNM") under the symbol "ICIQ". Based in part upon
the representations of Purchaser in this Agreement, the Shares will be issued in
compliance with all applicable federal and state securities laws and will be
listed on the NNM.
SECTION 2.05. Governmental Consents. No consent, approval, order or
----------------------
authorization of, or registration,
2
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of Seller is required in connection
with the consummation of the transactions contemplated by this Agreement.
SECTION 2.06. Litigation. Except as described in the SEC Documents
-----------
(as defined in Section 2.12) or Schedule 2.06 hereto, there is no action, suit,
proceeding or investigation pending or, to Seller's knowledge, currently
threatened against Seller that questions the validity of this Agreement or the
right of Seller to enter into it, or to consummate the transactions contemplated
hereby, or that would reasonably be expected to result, either individually or
in the aggregate, in any material adverse change in the business, assets,
condition, affairs or prospects of Seller, financially or otherwise, or any
change in the current equity ownership of Seller, nor is Seller aware that there
is any basis for the foregoing. Seller does not warrant, however, that the
litigation described in Schedule 2.06 will not become material, either favorably
or unfavorably to Seller, as such litigation progresses, it having been filed
recently and no discovery having been performed. The foregoing includes,
without limitation, any actions pending or threatened (or any basis therefor
known to Seller) involving the prior employment of any of Seller's employees,
their use in connection with Seller's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers. Except as described in Schedule
2.06, Seller is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality.
SECTION 2.07. Patents and Trademarks. The SEC Documents disclose all
-----------------------
material information pertaining to all patents, registered trademarks and trade
names, and pending applications therefor, owned by Seller. Seller has title and
ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and process material to its
business as now conducted without, to the best of Seller's knowledge, any
conflict with or infringement of the rights of others. Except as included in
the SEC Documents, and except for software licensed from Neuron Data, Inc. and
NobleNet, Inc., distributor for IONA Technologies, Inc., Seller is not party to
and has not granted any options, licenses, or agreements of any kind relating to
the foregoing, nor is Seller bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information, proprietary
rights or processes of any other person or entity. Seller has not received any
communications alleging that Seller has violated or, by conducting its business
as proposed, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity. To Seller's knowledge, none of its employees is obligated
under any contract (including
3
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere in any material respect with the use of his or her best efforts
to promote the interests of Seller or that would conflict with Seller's business
as proposed to be conducted. Neither the execution nor delivery of this
Agreement, nor the carrying on of Seller's business by the employees of Seller,
will conflict with or result in a breach of the terms, conditions or provisions
of, or constitute a default under, any contract, covenant or instrument under
which any of such employees is now obligated.
SECTION 2.08. Compliance with Other Instruments. Seller is not, nor
----------------------------------
will it be on the date of Closing, in violation or default in any respect of any
provisions of its Restated Articles of Incorporation or By-laws or, in any
material respect, of any instrument, judgment, order, writ, decree or contract
to which it is a party or by which it is bound or of any provision of federal or
state statute, rule or regulation applicable to Seller. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any such violation or be in conflict with
or constitute, with or without the passage of time and giving of notice, either
a default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any material lien, charge
or encumbrance upon any assets of Seller.
SECTION 2.09. Agreements; Action. (a) Except as described in the SEC
-------------------
Documents and as listed in Schedule 2.09, there have been no material
agreements, understandings or proposed transactions between Seller and any of
its officers, directors, affiliates, or any affiliate thereof.
(b) Except as included in the SEC Documents, there are no
agreements, understandings, instruments, contracts or proposed transactions to
which Seller is a party or by which it is bound that involve (i) obligations
(contingent or otherwise) of, or payments to or by, Seller in excess of,
$50,000, other than in the ordinary course of Seller's business, or (ii) the
license of any patent, copyright, trade secret or other proprietary right to or
from Seller other than in the ordinary course of Seller's business.
(c) Since April 29, 1997, Seller has not (i) except for dividends in
the amount of $2,418,765 distributed in accordance with the S Corporation
Termination, Tax Allocation and Indemnification Agreement dated March 24, 1997,
paid any dividends, or authorized or made any distribution upon or with respect
to any class or series of its capital stock, (ii) except as disclosed in the SEC
Documents, incurred any indebtedness for money borrowed or incurred any other
liabilities individually in excess of $50,000 or in excess of $200,000 in the
aggregate, (iii) made any loans or advances to any person, other than ordinary
advances for travel expenses,
4
or (iv) other than in the ordinary course of business and consistent with past
practice, sold, exchanged or otherwise disposed of any of its assets or rights.
(d) Seller is not a party to, and is not bound by, any contract,
agreement or instrument, or subject to any restriction under its Restated
Articles of Incorporation or By-laws, that materially and adversely affects its
business as now conducted, its properties or its financial condition.
SECTION 2.10. Registration Rights. Except as contemplated herein, in
--------------------
the Warrants for 112,500 shares of Common Stock issued to the Underwriters in
the April 1997 public offering, and with respect to the 117,368 shares that may
be acquired by holders of the Debenture Holder Warrants (as such term was
defined in Seller's April 29, 1997 Prospectus), Seller has not granted or agreed
to grant any registration rights, including piggyback rights, to any person or
entity.
SECTION 2.11. Title to Property and Assets. Seller owns its property
-----------------------------
and assets free and clear of all mortgages, liens, loans and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not materially impair Seller's ownership or use of such property
or assets. With respect to the property and assets it leases, Seller is in
compliance with such leases in all material respects and holds a valid leasehold
interest free of any liens, claims or encumbrances.
SECTION 2.12. SEC Documents, Financial Statements. Since becoming
------------------------------------
registered under the Securities Exchange Act of 1934 (the "Exchange Act") on
April 29, 1997, Seller has filed all reports, schedules, forms, statements,
exhibits and other documents required to be filed by it with the Securities and
Exchange Commission (the "Commission") pursuant to the reporting requirements of
the Exchange Act (all of the foregoing, together with Registration Statement No.
333-21647, as amended, being referred to herein as the "SEC Documents"). As of
their respective dates, the SEC Documents complied in all material respects with
the applicable requirements of the Securities Act of 1933 (the "Securities Act")
and the Exchange Act and the rules and regulations of the Commission promulgated
thereunder applicable to such SEC Documents, and, as of their respective dates,
none of the SEC Documents taken as a whole (when read together with all exhibits
included therein and financial statement schedules thereto and documents (other
than exhibits) incorporated by reference therein) 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. As of their
respective dates, the financial statements of Seller included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto. Such financial statements
5
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of Seller as of the dates thereof and
the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustment).
SECTION 2.13. Employee Benefit Plans. Seller is in compliance in all
-----------------------
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which Seller would have any liability; Seller has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Section 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
for which Seller would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
SECTION 2.14. Tax Returns and Payments. Seller has filed all tax
-------------------------
returns and reports as required by law. These returns and reports are true and
correct in all material respects. Seller has paid all taxes and other
assessments due.
SECTION 2.15. Insurance. Seller has in full force and effect fire
----------
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
SECTION 2.16. Labor Agreements and Actions. Seller is not bound by
-----------------------------
or subject to (and none of its assets or properties is bound by or subject to)
any written or oral, express or implied, contract, commitment or arrangement
with any labor union, and no labor union has requested or, to the knowledge of
Seller, has sought to represent any of the employees, representatives or agents
of Seller. There is no strike or other labor dispute involving Seller pending,
or to the knowledge of Seller threatened, which could have a material adverse
effect on the assets, properties, financial condition, operating results or
business of Seller (as such business is presently conducted and as it is
proposed to be conducted), nor is Seller aware of any labor organization
activity involving its employees. Seller is not aware that
6
any officer or key employee intends to terminate their employment with Seller,
nor does Seller have a present intention to terminate the employment of any of
the foregoing. Seller has complied in all material respects with all applicable
state and federal equal employment opportunity laws and with other laws related
to employment.
SECTION 2.17. Offering. Subject to the truth and accuracy of
---------
Purchaser's representations set forth in this Agreement, the offer, sale and
issuance of the Shares as contemplated by this Agreement are exempt from the
registration requirements of the Securities Act of 1933 (the "Securities Act"),
and neither Seller nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
SECTION 2.18. Permits. Seller has all franchises, permits, licenses
--------
and any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects or financial condition of Seller and believes
that it can obtain, without undue burden or expense, any similar authority for
the conduct of its business as planned to be conducted. Seller is not in
default in any material respect under any of such franchises, permits, licenses
or other similar authority.
ARTICLE III
Representations and Warranties of Purchaser
-------------------------------------------
The Purchaser hereby represents, warrants and covenants to and for the
benefit of Seller that:
SECTION 3.01. Authorization. All corporate action on the part of
--------------
Purchaser, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of Purchaser hereunder has been taken prior to Closing, and
delivered by Purchaser and shall constitute a valid and legally binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
SECTION 3.02. Purchase Entirely for Own Account. The Shares to be
----------------------------------
acquired by it will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and it has no present intention of selling, granting any participation
in, or otherwise distributing the same. It does not presently have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Shares. It understands that this sale of the Shares has
not been, and will not be, registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends
7
upon, among other things, the bona fide nature of its investment intent and the
accuracy of its representations as expressed herein. It represents that it has
not been formed for the specific purpose of acquiring the Shares.
SECTION 3.03. Disclosure of Information. It has received all the
--------------------------
information it considers necessary or appropriate for deciding whether to
acquire the Shares. It further represents that it has had an opportunity to ask
questions and receive answers from Seller regarding the terms and conditions of
the offering of the Shares. The foregoing, however, does not limit or modify
the representations and warranties of Seller in Article II of this Agreement or
the right of the Purchaser to rely thereon.
SECTION 3.04. Investment Experience. It has substantial experience
----------------------
in evaluating and investing in private placement transactions so that the
Purchaser is capable of evaluating the merits and risks of its investment in
Seller. By reason of its business or financial experience or the business or
financial experience of its professional advisors who are unaffiliated with and
who are not compensated by Seller or any affiliate or selling agent of Seller,
directly or indirectly, it has the capacity to protect its own interests in
connection with the purchase of the Shares hereunder.
SECTION 3.05. Restricted Securities. It understands that the Shares
----------------------
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from Seller in a transaction not involving a
public offering and that under such laws and applicable regulations such Shares
may be resold without registration under the Securities Act only in certain
limited circumstances. In this respect, it represents that it is familiar with
Rule 144 promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and otherwise by the
Securities Act.
SECTION 3.06. Further Limitations on Disposition. Without in any way
-----------------------------------
limiting the representations set forth above, the Purchaser further agrees not
to make any disposition of all or any portion of the Shares unless and until the
conditions set forth in paragraphs (a) and (b) are satisfied:
(a) Either (x) there is in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such Registration Statement; or (y) (i) the
Purchaser shall have notified Seller of the proposed disposition and shall
have furnished Seller with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by
Seller, the Purchaser shall have furnished Seller with an opinion of
counsel, reasonably satisfactory to Seller, that such disposition will not
require registration under
8
the Securities Act or any applicable state securities laws. It is agreed
that Seller will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances; provided, however,
-------- -------
the Purchaser acknowledges that the transfer agent for the Common Stock may
require opinions of counsel for any transactions made pursuant to Rule 144.
(b) Any resale prior to February 2, 2001, pursuant to paragraph (a)
will be limited to no more than 100,000 shares in any six month period.
Notwithstanding the foregoing provisions of this Section 3.06, a transfer by the
Purchaser to a constituent shareholder (including any constituent of a
constituent) of the Purchaser if such transferee is an accredited investor (as
defined in Rule 501(a) under the Securities Act) shall be permitted if the
transferee or transferees agree in writing to be subject to the terms hereof to
the same extent as if they were the Purchaser hereunder.
SECTION 3.07. Legends. It is understood that the Shares may bear one
--------
or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
(b) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the
certificate so legended.
SECTION 3.08. Accredited Investor. It is an accredited investor as
--------------------
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
SECTION 3.09. Organization and Good Standing. Purchaser is a
-------------------------------
corporation duly organized and in good standing under the laws of Bermuda and
has all requisite corporate power and authority to carry on its business as now
conducted and to execute and deliver this Agreement.
ARTICLE IV
Conditions of Purchaser's Obligations at Closing
------------------------------------------------
The obligations of the Purchaser to Seller under this Agreement at the
Closing are subject to the fulfillment,
9
on or before such Closing, of each of the following conditions:
SECTION 4.01. Representations and Warranties. The representations
-------------------------------
and warranties of Seller contained in Article II shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of such date.
SECTION 4.02. Performance. Seller shall have performed and complied
------------
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before such Closing.
SECTION 4.03. Certificates of Officers. Seller shall deliver to
-------------------------
Purchaser at such Closing certificates of the officers of Seller certifying that
the conditions specified in Sections 4.01 and 4.02 have been fulfilled and as to
such other matters as the Purchaser may reasonably request.
SECTION 4.04. Proceedings and Documents. All corporate and other
--------------------------
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Purchaser, and the Purchaser shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
SECTION 4.05. Opinion of Counsel. The Purchaser shall have received
-------------------
from Xxxxxxxx & Xxxxx, counsel for Seller, an opinion, dated as of the Closing,
in the form attached hereto as Exhibit A.
SECTION 4.06. No Material Adverse Change. (i) Seller shall not have
---------------------------
sustained since September 30, 1997, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, and (ii) there shall not have been any change in the capital stock or
long-term debt of Seller or any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
earnings, general affairs, business, operations, properties, management,
stockholders' equity, results of operations or prospects of Seller, taken as a
whole, the effect of which, in any such case described in clause (i) or (ii), is
in Purchaser's sole judgment so material and adverse as to make it impracticable
or inadvisable to proceed with the purchase of the Shares.
10
ARTICLE V
Conditions of Seller's Obligations at Closing
---------------------------------------------
The obligations of Seller to the Purchaser under this Agreement are
subject to the fulfillment, on or before the Closing, of each of the following
conditions:
SECTION 5.01. Representations and Warranties. The representations
-------------------------------
and warranties of the Purchaser contained in Article III shall be true on and as
of the Closing with the same effect as though such representations and
warranties had been made on and as of such date.
ARTICLE VI
Covenants of Seller
-------------------
SECTION 6.01. Agreement as to Voting of the Shares. Purchaser hereby
-------------------------------------
agrees and covenants that, through February 2, 2000 (or such earlier date as may
apply as set forth in Section 6.04), on each occasion on which shareholders of
Seller are entitled to vote or consent on any issue, whether at an annual or
special meeting of shareholders, by written consent or otherwise (hereinafter
collectively referred to as "Shareholder Votes"), Purchaser shall designate Xxxx
X. Xxxxx, who currently is Chief Executive Officer of Seller ("Dahan"), as its
proxy or attorney-in-fact to vote or otherwise act with respect to the Shares on
behalf of Purchaser in all respects in connection with the Shareholder Votes,
including without limitation granting to him a proxy to vote in his discretion
on any action that may be taken at an annual or special meeting of shareholders
whether or not such action was described in any proxy statement or solicitation
prepared on behalf of Seller. The term "Shares" as used in this Article VI
shall include also any other shares of Common Stock or other securities of
Seller that are issued to Purchaser with respect to the Shares pursuant to a
stock dividend, stock split or otherwise.
SECTION 6.02. Execution of Proxies and Powers of Attorney. Promptly
--------------------------------------------
upon request of Dahan or of Seller, but in any event within not more than 10
days after written notice is given to Purchaser requesting execution of an
enclosed or previously furnished proxy, power of attorney or other written
authorization that would grant to Dahan the right to vote or consent with
respect to the Shares with respect to any Shareholder Vote, Purchaser shall duly
execute such proxy, power of attorney or other written authorization and cause
such proxy, power of attorney or other written authorization to be delivered to
Dahan at the address for Seller as established pursuant to Section 8.06, or to
such other address as Dahan may furnish to Purchaser by not less than 10 days
prior written notice. Purchaser shall not make any attempt to revoke or
supersede any such proxy, power of attorney or other
11
written authorization given to Dahan pursuant to this Article VI, nor may
Purchaser make any attempt to vote the Shares directly or through any other
person, proxy or attorney-in-fact with respect to any Shareholder Vote as to
which a proxy, power of attorney or other written authorization has been given
to or has been requested by or on behalf of Dahan. Any attempt by Purchaser to
do so in violation of this Article VI shall be void and ineffective, and Seller
is hereby authorized to so notify the transfer agent for the common stock and
any inspector(s) of election with respect to any Shareholder Vote. Purchaser
hereby designates Dahan as its attorney-in-fact (which designation is hereby
deemed to be coupled with an interest) for the limited purpose of providing
notices, casting votes and taking any other actions, including the execution of
any ballots, instruments or other documents necessary to effectuate the purposes
of this Article VI.
SECTION 6.03. Scope of Voting Rights. In his exercise of the voting
-----------------------
rights established pursuant to this Article VI, Dahan shall, in his uncontrolled
discretion, in respect of any and all of the Shares, possess and be entitled to
exercise the right to vote thereon for every purpose, in person or by proxy, to
waive any share privilege in respect thereof (excluding any right or privilege
to subscribe for any additional shares of Common Stock, which shall remain
vested in Purchaser notwithstanding any other provision of this Article VI), and
to consent to any lawful corporate act of Seller, as though absolute owner of
the Shares. Dahan is specifically authorized by way of example, without
limiting his rights hereunder, to vote the Shares for, or to consent in respect
thereof to, any increase or reduction of the shares of Seller, any agreement of
consolidation, merger, share exchange or the sale or other disposition of all,
substantially all, or any part of the property, assets and franchises of Seller
and the granting, ratification or confirmation of any option or options therefor
(whether or not such option or options extend(s) beyond the term of this
Agreement), or the dissolution of Seller, and the judgment of Dahan as to the
adequacy of the consideration thereby to be received by the Seller and Purchaser
(provided each shareholder is treated uniformly, share for share) shall be
conclusive and binding upon Purchaser and all persons claiming through or under
Purchaser. Dahan may, directly or indirectly, transact any lawful business with
Seller, notwithstanding the rights granted to him hereunder. Dahan may also
serve as director and compensated officer of Seller and may vote the Shares for
himself, as such. The granting of voting rights to Dahan under this Article VI
shall not constitute him as a fiduciary under applicable law.
SECTION 6.04. Termination of Voting Rights. The voting rights
-----------------------------
granted under this Article VI shall extend through the earlier of (i) the date
set forth in Section 6.01, or (ii) the date on which Purchaser and Purchaser's
"Affiliates", as such term is defined in the Securities Act, on a collective
basis beneficially own less than 150,000
12
shares of Common Stock, or (iii) the death or incapacity of Dahan, at which time
the voting rights granted under this Article VI shall terminate automatically.
For purposes of this Section 6.04, the number of shares shall be adjusted
appropriately to reflect any stock dividend, stock split or similar transaction.
SECTION 6.05. Applicability to Transferees; Legend on Certificates.
-----------------------------------------------------
The voting rights granted under this Article VI shall apply to Purchaser and
Purchaser's Affiliates during the period set forth in this Article VI. Any
Shares transferred during such period to a transferee that is not an Affiliate
of Purchaser shall be free from any of the provisions of this Article VI,
provided that such transfer is in compliance with all of the terms of this
Agreement. Each certificate representing the Shares shall, during the period in
which this Article VI remains applicable as to such Shares, bear on its front or
reverse a prominent legend referring to the terms of this Article VI, as
follows:
THE VOTING RIGHTS WITH RESPECT TO THESE SECURITIES ARE LIMITED BY THE TERMS
OF AN AGREEMENT BETWEEN THE HOLDER HEREOF AND THE COMPANY, TERMINATING,
WITH RESPECT TO SUCH VOTING RESTRICTIONS, NOT LATER THAN FEBRUARY 2, 2000.
A COPY OF SUCH AGREEMENT IS MAINTAINED AT THE EXECUTIVE OFFICES OF THE
COMPANY AND A COPY THEREOF IS AVAILABLE TO THE HOLDER FROM THE COMPANY UPON
REQUEST.
SECTION 6.06. Enforcement, Third Party Beneficiary. Either the
-------------------------------------
Seller or Dahan shall have the right to enforce the terms of this Article VI by
specific performance, in addition to any other legal or equitable remedies that
may be available to Seller or Dahan. Notwithstanding any other provision of
this Agreement to the contrary, any legal action related to this Article VI,
whether brought by Purchaser, Seller or Dahan, shall be brought in a state or
federal court in Xxxxxx County, Georgia, which the parties agree shall have
exclusive jurisdiction over any such action. Purchaser, on its own behalf and
on behalf of any Affiliate of Purchaser that is a transferee of the Shares,
hereby waives any argument or claim that such courts are not a convenient forum
for any such action or that jurisdiction or venue is not proper for any reason
whatsoever. The parties specifically intend that Xxxx X. Xxxxx is and shall be
deemed to be a third-party beneficiary of this Article VI and shall have the
full right to enforce the provisions hereof in his own behalf.
ARTICLE VII
Registration Rights
-------------------
SECTION 7.01. Definitions. As used herein, "Holders" means Purchaser
------------
and any persons or entities to whom the rights granted under this Article VII
are transferred by any Purchaser, their successors or assigns, and "Registrable
Securities" shall mean, with regard to the exercise of any
13
right pursuant to Section 7.02, (i) the 90,000 Shares bearing the legend
specified in Section 7.08 and (ii) any other shares of Common Stock of Seller
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, the Shares referred to in clause
(i).
SECTION 7.02. Incidental Registration. If Seller at any time
------------------------
proposes to file prior to February 2, 2003, on its behalf or on behalf of any of
its security holders (other than Holders of Registrable Securities) (the
"demanding security holders") a registration statement under the Securities Act
on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of Seller
pursuant to any employee benefit plan, respectively) for the general
registration of securities to be sold for cash with respect to its Common Stock
or any other class of equity security (as defined in Section 3(a)(11) of the
Exchange Act) of Seller, it will give written notice to all Holders of the
Registrable Securities at least four weeks before the initial filing with the
Commission of such registration statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
Seller. The notice shall offer to include in such filing the aggregate number
of shares of Registrable Securities, as such Holders may request.
Each Holder of any Registrable Securities desiring to have Common
Stock registered under this Section 7.02 shall advise Seller in writing within
10 days after the date of receipt of such offer from Seller, setting forth the
amount of such Common Stock for which registration is requested. Seller shall
thereupon include in such filing the number of shares of Common Stock for which
registration is so requested, subject to the following sentence, and shall use
its best efforts to effect registration under the Securities Act of such shares.
If a public offering is proposed for the securities being registered by Seller
or such demanding security holder and the managing underwriter of such public
offering advises Seller in writing that, in its opinion, the distribution of the
Common Stock requested to be included in the registration concurrently with the
securities being registered by Seller or such demanding security holder would
materially and adversely affect the distribution of such securities by Seller or
such demanding security holder, then Seller, if applicable, and all selling
security holders (including, if applicable, the Holders and the demanding
security holder who initially requested such registration) shall reduce (to the
extent Seller has a contractual right to impose such a reduction) the amount of
securities each intended to distribute through such offering on a pro rata
basis; provided, however, that Seller shall not be required to reduce the amount
-------- -------
of securities to be distributed on its behalf to less than 50% of the aggregate
number of securities to be registered in such offering.
14
SECTION 7.03. Registration Procedures. If Seller is required by the
------------------------
provisions of this Article VII to effect the registration of any of Purchaser's
securities under the Securities Act, Seller will, as expeditiously as possible:
(a) promptly prepare and file with the Commission a registration
statement with respect to such securities and cause such registration
statement to become and remain effective for a period of time required for
the disposition of such securities by the Holders thereof, but not to
exceed three months from the effective date thereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities covered by
such registration statement until the earlier of such time as all such
securities have been disposed of in a public offering or the expiration of
three months, and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the Holders of such securities set forth in such
registration statement;
(c) furnish to such Holders such number of copies of such registration
statement, each amendment and supplement thereto, and the prospectus
included in such registration statement (including each preliminary
prospectus), all in conformity with the requirements of the Securities Act,
and such other documents, as such Holders may reasonably request;
(d) notify such Holders promptly after Seller shall receive notice
thereof, of the time when such registration statement became effective or
when any amendment or supplement to any prospectus forming a part thereof
has been filed;
(e) notify such Holders promptly of any request by the Commission for
the amending or supplementing of such registration statement or prospectus
forming a part thereof or for additional information;
(f) advise such Holders after Seller shall receive notice or otherwise
obtain knowledge of the issuance of any order by the Commission suspending
the effectiveness of such registration statement or amendment thereto or of
the initiation or threatening of any proceeding for that purpose, and
promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal promptly if such stop order should be issued;
15
(g) use its best efforts to register or qualify such securities under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as each Holder (or any underwriter on behalf
of such Holder) of such securities shall request (provided that Seller
shall not be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not then qualified or to
file any general consent to service of process), and do such other
reasonable acts and things as may be required of it to enable such Holder
to consummate the disposition in such jurisdiction of such securities;
(h) furnish on the date that such securities are delivered to
underwriters for sale pursuant to such registration or, if such securities
are not being sold through underwriters, on the date that such registration
statement becomes effective, (i) an opinion dated such date, of the
independent counsel representing Seller for the purposes of such
registration, addressed to such underwriters, if any, and, if such
securities are not being sold through underwriters, then to the Holder
making such request, in customary form and covering matters of the type
customarily covered in such legal opinions and (ii) a comfort letter dated
such date, from the independent certified public accountants of Seller,
addressed to such underwriters, if any, and, if such securities are not
being sold through underwriters, then to the Holder making such request in
a customary form and covering matters of the type customarily covered by
such comfort letters as such underwriters or such Holder, as the case may
be, shall reasonably request;
(i) enter into customary agreements (including one or more
underwriting agreements in customary form) and take such other actions as
are reasonably required or reasonably requested by such Holders or any
underwriter on behalf thereof in order to expedite or facilitate the
disposition of such securities;
(j) use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, but not later than 18 months after the
effective date of such registration statement, an earnings statement
covering the period of at least 12 months beginning with the first full
month after the effective date of such registration statement, which
earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act (including, at the option of Seller, Rule 158);
(k) notify such Holders at any time when a prospectus relating to such
registration statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which such registration
statement contains an untrue statement of
16
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and, at
the request of any such Holder, prepare a supplement or amendment to such
registration statement so that such registration statement will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(l) cause all shares of Common Stock being so registered to be listed
on each securities exchange on which similar securities issued by Seller
are then listed or, if similar securities are not then listed, take all
reasonable action either to list such shares on a securities exchange or to
facilitate the trading of the securities on the Nasdaq National Market; and
(m) provide a transfer agent and registrar for all shares of Common
Stock being so registered not later than the effective date of such
registration statement.
It shall be a condition precedent to the obligation of Seller to take
any action pursuant to this Article VII in respect of the securities which are
to be registered at the request of any Holder of the Registrable Securities that
such Holder shall furnish to Seller such information regarding the securities
held by such Holder and the intended method of disposition thereof as Seller
shall reasonably request and as shall be required in connection with the action
taken by Seller. Seller may reasonably rely upon any such information so
furnished by a Holder.
SECTION 7.04. Expenses. All expenses incurred in complying with this
---------
Article VII, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), printing expenses,
fees and disbursements of counsel and accountants for Seller and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
Section 7.03(g), shall be paid by Seller, except any discount or commissions
------
payable to any underwriter by such Holders and fees and expenses of counsel for
such Holders.
SECTION 7.05. Indemnification and Contribution. (a) In the event of
---------------------------------
any registration under the Securities Act pursuant to this Article VII of any
Registrable Securities, Seller will indemnify and hold harmless the Holder
thereof against any losses, claims, damages, liabilities or expenses, joint or
several, to which such Holder may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of any material fact contained, on the effective
date thereof, in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
17
prospectus contained therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Holder for any legal or any
other expenses incurred by such Holder in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
--------
however, that Seller shall not be liable in any such case to the extent that
-------
such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, preliminary prospectus, prospectus or
amendment or supplement in reliance upon and in conformity with written
information furnished to Seller by such Holder or an underwriter on behalf of
such Holder expressly for use therein; and provided further that the foregoing
-------- -------
indemnity agreement with respect to any prospectus shall not inure to the
benefit of the Holder if it is conclusively determined by a court of competent
jurisdiction not subject to appeal that a copy of a prospectus was not sent or
given by or on behalf of the Holder to the purchaser of the Common Stock who has
asserted a claim, if required by law to have been so delivered, at or prior to
the written confirmation of the sale of Common Stock to such person, and if a
prospectus would have cured the defect giving rise to such loss, claim, damage
or liability;
(b) Each Holder of Registrable Securities, by acceptance of the
registration provisions provided herein, agrees to indemnify and hold harmless
Seller against any losses, claims, damages, liabilities or expenses, joint or
several, to which Seller may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any registration
statement under which securities were registered under the Securities Act at the
request of such Holder, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any such
registration statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with written information furnished
to Seller by such Holder expressly for use therein; and will reimburse Seller
for any legal or other expenses reasonably incurred by Seller in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the
18
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection except to the extent it has been materially prejudiced by such
failure. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 7.05 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to therein or
if the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of Seller on the one hand and the
relevant Holder on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by Seller on the one hand or the relevant Holder on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Seller and each
Holder registering securities under this Article VII agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
19
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Holder registering securities under this
Article VII shall be required to contribute any amount in excess of the amount
by which the total price at which the securities registered and sold by such
Holder exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of Seller under this Section 7.05 shall be in
addition to any liability which Seller may otherwise have and shall extend, upon
the same terms and conditions, to each person (including each underwriter) who
participated in the offering of the registered securities and to each person, if
any, who controls any Holder registering securities under this Article VII or
any such person (including each such underwriter) within the meaning of Section
15 of the Securities Act; and the obligations under this Section 7.05 of any
Holder registering securities under this Article VII shall be in addition to any
liability which such Holder may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of Seller and to each person,
if any, who controls Seller within the meaning of Section 15 of the Securities
Act.
SECTION 7.06. Inspection of Records and Documents. Each Holder and
------------------------------------
underwriter participating in any disposition pursuant to the registrations
described in this Article VII, and any attorney, accountant or other agent
retained by any such Holder or underwriter (collectively, the "Inspectors"),
shall have conducted, at dates, times and locations reasonably specified by such
Inspectors, such investigations, inquiries and conferences with such directors,
officers, employees and agents (including, without limitation, outside
accountants and counsel) of Seller and its subsidiaries, been furnished and
reviewed such documentation of Seller and its subsidiaries and conducted such
other procedures, as the Inspectors deem necessary, in their sole judgment, to
have a satisfactory "due diligence" defense under Section 11 of the Securities
Act in connection with such registrations.
SECTION 7.07. Assignment of Registration Rights. Each Holder of
----------------------------------
Registrable Securities may assign all or any part of its rights under this
Article VII to any Affiliate of such Holder to whom such Holder sells, transfers
or assigns such Registrable Securities. In the event that the Holder shall
assign its rights pursuant to this Article VII in connection with the transfer
of less than all its Registrable Securities, the Holder shall also retain its
rights with respect to its remaining Registrable Securities.
20
SECTION 7.08. Legend on Certificate(s). Inasmuch as less than all
-------------------------
the Shares shall carry with them registration rights under this Article VII, at
the Closing the Company shall give instructions that the Shares be issued in the
form of two certificates, with one certificate representing 90,000 shares of
Common Stock and bearing a legend prominently referring to the registration
rights provided under this Article VII, and with the other certificate
representing 210,000 shares and bearing a legend while held by a Holder
prominently referring to the absence of such rights. Any replacement
certificates issued therefor shall reflect, similarly, the existence or absence
of such rights in accordance with the terms of this Article VII.
ARTICLE IX
Miscellaneous
-------------
SECTION 8.01. Survival. The warranties and representations of Seller
---------
and Purchaser contained in or made pursuant to this Agreement shall survive for
a period of 4 years after the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Purchaser or Seller. All agreements and
covenants contained herein shall survive indefinitely until, by their respective
terms, they are no longer operative.
SECTION 8.02. Transfer; Successors and Assigns. The terms and
---------------------------------
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
SECTION 8.03. Governing Law. This Agreement shall be governed by and
--------------
construed under the laws of the State of Georgia.
SECTION 8.04. Counterparts. 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 instrument.
SECTION 8.05. Title and Subtitles. The titles and subtitles used in
--------------------
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 8.06. Notices. (a) All notices, requests, demands and other
--------
communications under this Agreement or in connection herewith shall be given to
or made upon Purchaser at Xxxxx New Ventures Limited, Par La Ville Place, 14 Par
La Ville Road, Xxxxxxxx XX JK Bermuda, with a copy to X.X.X.
00
Xxxxxxxxxx, XXX Management X.X.X., 00 Xxx Xxxxxxxxx Xxxxxxxxx, B.P. 89 MC 98007,
Monaco Cedex or, if to Seller to International CompuTex, Inc., 0000 Xxxxxxxxxx
Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000; attention: Chief Executive
Officer.
(b) All notices, requests, demands and other communications given or
made in accordance with the provisions of this Agreement shall be in writing,
and shall be sent by certified or registered mail, postage prepaid, return
receipt requested, and shall be deemed to be given or made when receipt is so
confirmed.
(c) Any party may, by written notice to the other, alter its address
or respondent, and such notice shall be considered to have been given 10 days
after confirmation of receipt thereof.
SECTION 8.07. Finder's Fee. Each party represents and warrants that
-------------
it neither is nor will be obligated for any finder's fee or commission in
connection with this transaction. The Purchaser agrees to indemnify and to hold
harmless Seller from any liability for any commission or compensation in the
nature of a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which Purchaser or any of its officers,
employees, or representatives is responsible in connection with this
transaction. Seller agrees to indemnify and hold harmless Purchaser from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which Seller or any of its officers, employees or representatives
is responsible in connection with this transaction.
SECTION 8.08. Expenses. Seller covenants and agrees with the
---------
Purchaser that Seller will pay or cause to be paid upon demand the following:
(i) the fees, disbursements and expenses of Seller's counsel and accountants in
connection with the purchase and sale of the Shares; (ii) all expenses in
connection with the qualification of the Shares, for offering and sale under
state securities laws, including the fees and disbursements of counsel for
Purchaser in connection with such qualification; (iii) the cost of preparing
stock certificates; (iv) the cost and charges of any transfer agent or
registrar; (v) all fees and expenses provided for in Article VII; (vi) all out-
of-pocket costs and expenses associated with the filing of any Schedule 13-D,
Schedule 13-G or any successor form or the filing of any amendment thereto
required to be filed under the Exchange Act as a result of the Shares being
included in a filing by a group because of the voting rights granted under
Article VI of this Agreement; and (vii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 8.08.
22
SECTION 8.09. Indemnification. Seller agrees to indemnify and hold
----------------
harmless each Holder, the Purchaser and the directors, officers, employees and
agents of the Purchaser and each person who controls the Purchaser within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any lawsuit, action or claim that they
or any of them are part of a "control group", a "controlling shareholder" or an
"affiliate" of Seller, or any lawsuit or other action arising out of or based
upon a claim made pursuant to Section 13(d) under the Exchange Act and the rules
promulgated thereunder or any successor provision thereto as a result of the
Shares being included in a filing by a group because of the voting rights
granted under Article VI of this Agreement, and agrees to reimburse each such
indemnified party, within 30 business days after such expenses are incurred, for
all reasonable fees and expenses of counsel or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action.
SECTION 8.10. Amendments and Waivers. 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), only with the written consent of Seller and the holders of a
majority of the Shares purchased hereunder. Any amendment or waiver effected in
accordance with this Section shall be binding upon each transferee of any
Shares, each future holder of all such Shares, and Seller.
SECTION 8.11. Severability. If one or more provisions of this
-------------
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
SECTION 8.12. Entire Agreement. This Agreement dated January 29,
-----------------
1998, constitutes the entire Agreement between the parties hereto pertaining to
the subject matter hereof and thereof, and any and all other prior written or
oral agreements existing between the parties hereto are expressly canceled.
23
IN WITNESS WHEREOF, the parties have executed this Purchase Agreement
as of the date first above written.
XXXXX NEW VENTURES LIMITED,
by
---------------------------
Name: J.A.M. Vijverberg
Title:
INTERNATIONAL COMPUTEX, INC.,
by
--------------------------
Name:
Title:
24
EXHIBIT A
OPINION OF COUNSEL
XXXXXXXX & XXXXX
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Georgia, with
corporate power and authority to own its properties and conduct its
business, and is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each other jurisdiction in which the
nature of its business or the character or location of its properties
requires such qualification, except where failure so to qualify will not
materially affect the business, properties or financial condition of the
Company;
(ii) (a) the authorized capitalization of the Company as of the date
hereof is 20,000,000 shares of Common Stock, par value $.001 per share; (b)
the shares of Common Stock now outstanding have been duly authorized
and validly issued, are fully paid and non-assessable, conform to the
description thereof set forth in the SEC Documents, have not been issued in
violation of the preemptive rights of any shareholder and, except as
described in the SEC Documents, are not subject to any restrictions upon
the voting or transfer thereof; (c) all the Shares have been duly
authorized and, when paid for as provided herein, shall be validly issued,
fully paid and non-assessable, shall not have been issued in violation of
the preemptive rights of any shareholder, and no personal liability shall
attach to the ownership thereof; (d) the shareholders of the Company do not
have any preemptive rights or other rights to subscribe for or purchase,
and, except as provided in the Purchase Agreement and except pursuant to
restrictions on transferability imposed under federal and state securities
laws, there are no restrictions upon the voting or transfer of, any of the
Shares; and (E) to the best of our knowledge, except for the options and
warrants described in Section 2.02(b) of the Purchase Agreement, there are
no preemptive rights or options, warrants, conversion privileges or other
rights (or agreements for any such rights) outstanding to purchase or
otherwise obtain any of the Company's securities;
(iii) the certificates evidencing the Shares are each in valid and
proper legal form;
(iv) the Purchase Agreement has been duly authorized, executed and
delivered by the Company and (assuming due execution and delivery thereof
by the Purchaser) is a valid and binding agreement enforceable in
accordance with its terms, subject to the following qualifications:
Exhibit A - 1
(a) The enforceability of the Purchase Agreement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting generally the enforcement of creditors'
rights;
(b) The enforceability of the Purchase Agreement is subject to
and may be affected by general principles of equity; and
(c) Rights of indemnity and contribution under the Agreement may
be limited by federal or state securities laws.
(v) to the knowledge of such counsel, except as described in Schedule
2.06, (a) there is no pending, threatened or contemplated legal or
governmental proceeding affecting the Company which could materially and
adversely affect the business, property, operations, condition (financial
or otherwise) or earnings of the Company, or which questions the validity
of the Purchase Agreement, or of any action to be taken by the Company
pursuant thereto; and (b) there is no legal or governmental proceeding, or
regulation required to be described or referred to in the SEC Documents or
in any similar document that will be filed with respect to the period
ending on the date hereof;
(vi) to the knowledge of such counsel (a) the Company is not in
violation of or default under the Purchase Agreement; and (b) the execution
and delivery thereof and the incurrence of the obligations therein set
forth and the consummation of the transactions therein contemplated shall
not result in a violation of, or constitute a default under, the Articles
of Incorporation or By-laws of the Company, or any material obligation,
agreement, covenant or condition contained in any bond, debenture, note or
other evidence of indebtedness, or in any material contract, indenture,
mortgage, loan agreement, lease, joint venture or other agreement or
instrument to which the Company is a party or by which its assets are
bound, or any material order, rule, regulation, writ, injunction or decree
of any government, governmental instrumentality or court;
(vii) the SEC Documents (except for the financial statements, notes
thereto and other financial information contained therein, as to which no
opinion need be rendered) comply as to form in all material respects with
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations thereunder; and such counsel has no reason to believe that the
SEC Documents, on the respective effective or filing dates contained any
untrue statement of a material fact or omitted to state any 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;
Exhibit A - 2
(viii) all descriptions contained in the SEC Documents of contracts
and other documents are accurate and fairly present the information
required to be described in all material respects, and such counsel is
familiar with all contracts and other documents referred to in, or filed as
exhibits to, the SEC Documents and, to the knowledge of such counsel, no
contract or document of a character required to be summarized or described
therein or to be filed as an exhibit thereto is not so summarized,
described or filed;
(ix) the descriptions contained in the SEC Documents which purport to
summarize the provisions of statutes, rules and regulations are accurate
summaries in all material respects, and such descriptions fairly present in
all material respects the information shown, and the descriptions contained
in the SEC Documents that concern matters of law or legal conclusions have
been reviewed by such counsel and are correct in all material respects; and
(x) no authorization, approval, consent or license of any governmental
or regulatory authority or agency is necessary in connection with: (a) the
authorization, issuance, sale, or delivery of the Shares by the Company or
(b) the execution, delivery and performance of the Purchase Agreement by
the Company.
Exhibit A - 3
SCHEDULE 2.06
Seller and its Vice President of Sales, Xxxxxx Xxxxxxx, have been
named as defendants in a legal action brought by Aspect Development, Inc. and
its subsidiary Cadis, Inc. In this suit, brought in the U.S. District Court,
Northern District of California, Aspect and Cadis have alleged that Xx. Xxxxxxx,
formerly of Cadis, misappropriated certain trade secrets, breached his fiduciary
duty, breached his employee confidentiality agreement and intentionally
interfered with Aspect's and Cadis' business relations. Similar allegations
were made against Seller. In a temporary ruling, effective until a hearing
scheduled for February 6, 1998, the court ordered Xx. Xxxxxxx to comply with
this employee confidentiality agreement, and ordered Seller and Xx. Xxxxxxx to
not destroy confidential Cadis documents (which they do not possess) but
specifically ruled that neither Seller nor Xx. Xxxxxxx is restricted from
contacting any customers or prospective customers of any of the parties.
Seller and Xx. Xxxxxxx categorically deny that they are in possession
of any trade secrets or confidential information of Aspect or Cadis, that Seller
has ever been in possession of such information or that Xx. Xxxxxxx has been in
possession of any such information since his departure from Cadis. In the event
jurisdiction is established in this case, Seller and Xx. Xxxxxxx intend to
vigorously defend against all of the allegations made by Aspect and Cadis and to
bring counterclaims against Aspect and Cadis for actions taken by them for the
improper purpose of restricting Seller's ability to compete in the component and
supplier management (CSM) market, seeking damages as well as injunctive relief,
in addition to recovery of its legal fees and other costs of defending the
action.
While Seller does not believe that this litigation will have a
material adverse affect on Seller's business, operations or financial condition,
there can be no assurance that this litigation will not become material at a
later date.
Exhibit A - 4
