EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK TRANSFER PURCHASE AGREEMENT (this "Agreement") is entered
into as of April 13, 1998, by and among AWARD SOFTWARE INTERNATIONAL, INC., a
California corporation (the "Company"), SUN CORPORATION ("Sun") and AXIS
CORPORATION ("Axis").
RECITALS
A. On April 30, 1997, the Company, Sun and Axis entered into a
Memorandum of Understanding to organize and incorporate a joint stock company
under the laws of Japan ("Award Japan").
B. In connection with the above transaction, each of Sun and Axis owned
stock (the "Stock") representing a 19% interest in Award Japan. (The 19%
interest of Sun to be hereinafter referred to as the "Sun Stock" and the 19%
interest of the Axis to be hereinafter referred to as the "Axis Stock").
C. Award desires to irrevocably and unconditionally purchase the Sun
Stock and the Axis Stock, and Sun and Axis desire to irrevocably and
unconditionally sell the Sun Stock and Axis Stock, respectively.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements, covenants and conditions set forth herein, and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. PURCHASE OF STOCK. Sun and Axis (each a "Seller" and collectively the
"Sellers") each unconditionally and irrevocably agree to sell to the Company the
Sun Stock and the Axis Stock, respectively, and the Company unconditionally and
irrevocably agrees to purchase from each of Sun and Axis, the Sun Stock and the
Axis Stock, respectively. The purchase price to be paid by the Company for each
of the Sun Stock and the Axis Stock shall be US $120,000 and paid in Award
Software stock. The number of shares will be determined by the average price of
Award Software stock for the five day period prior to the day of closing. The
purchase price (US $120,000) will be supported by an independent appraisal (the
"Appraisal") to be completed by the closing.
2. CLOSING DATE. The closing for the transfer of the Stock (the "Closing")
shall be held at the offices of the Company at such time after the Appraisal as
the parties hereto agree upon, in no event later than ten (10) business days
after the Appraisal has abeen delivered (the "Closing Date").
3. CLOSING.
3.1 (a) At the Closing, Sun and Axis will deliver to the Company stock
certificates representing the Sun Stock and the Axis Stock, respectively,
against payment by or on behalf of the Company of the purchase price for each
such interest by wire transfer, or by such other means as shall be mutually
agreeable to Sun or Axis, as the case may be, and the Company.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller hereby represents
and warrants, with respect to the Stock to be transferred by it pursuant to this
Agreement, severally but not jointly, to Company:
4.1 AUTHORIZATION. All action on the part of the Seller necessary for the
execution and delivery of this Agreement and the performance of all of his
obligations hereunder, has been taken, and this Agreement constitutes a valid
and legally binding obligation of the Seller enforceable in accordance with its
terms.
4.2 TITLE TO INTEREST. The Seller has good and marketable title to the
Stock and owns the Stock beneficially and of record. Good and marketable title
to the Stock will be conveyed to the Company pursuant to this Agreement free
and clear of any liens, claims or other encumbrances, except such restrictions
on transfer which arise under federal and state securities laws.
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4.3 RIGHT TO SELL. The Seller has not made any prior sale or transfer of
such Stock.
5. FURTHER ACTION. The parties hereto agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
6. AMENDMENT. This Agreement may be amended, or any provision hereof waived,
only with the prior written consent of the Company and each Seller whose rights
or obligations hereunder would be so affected by such amendment or waiver.
7. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
8. MISCELLANEOUS. This Agreement shall be governed by and construed under the
laws of the State of California as such laws are applied to agreements between
residents of such state entered into and to be performed entirely within such
state. This Agreement shall be binding upon the transferees, successors,
permitted assigns and legal representatives of the parties. This Agreement
constitutes the full, complete and final agreement of the parties and supersedes
all prior agreements, written or oral, with respect to the subject matter
herein. This Agreement may be executed in any number of counterparts, each of
which shall he deemed an original but all of which together shall constitute one
and the same instrument.
9. ATTORNEYS' FEES. In the event that any dispute among the parties to this
Agreement, the prevailing party or parties, as the case may be, in such dispute
shall be entitled to recover from the losing party or parties, as the case may
be, reasonable fees, costs and expenses of enforcing any right of such
prevailing party or parties, as the case may be, under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, reasonable
fees, costs and expenses of appeals.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
COMPANY: SELLER:
AWARD SOFTWARE INTERNATIONAL, INC. SUN CORPORATION
By: By:
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Name: Name:
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Title: Title:
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AXIS CORPORATION
By:
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Name:
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Title:
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