Exhibit 10.37
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF DECEMBER 18, 1996
AMONG
INFORMATION MANAGEMENT ASSOCIATES, INC.
AND
THE PURCHASERS LISTED ON SCHEDULE 1.1 ATTACHED HERETO
Table of Contents
ARTICLE 1. TRANSFER OF SHARES AND RELATED MATTERS.......................1
1.1 The Sale..........................................................1
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1.2 Delivery of Shares................................................1
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ARTICLE 2. CLOSING......................................................1
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................1
3.1 Authority and Validity............................................1
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3.2 Organization and Standing; Corporate Power........................2
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3.3 Subsidiaries......................................................2
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3.4 Qualification.....................................................2
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3.5 Capitalization....................................................2
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3.6 Indebtedness of the Company.......................................3
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3.7 Disclosure........................................................3
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3.8 Intellectual Property.............................................3
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3.9 Environmental Matters.............................................3
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3.10 Financial Statements..............................................3
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3.11 Changes...........................................................4
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3.12 Litigation, Etc...................................................4
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3.13 Compliance with Other Instruments, etc............................4
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3.14 Use of Proceeds...................................................5
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3.15 No Violations of Securities Laws..................................5
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3.16 Brokers or Finders Fees, Etc......................................5
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ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.............5
4.1 Investment........................................................5
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4.2 Resale............................................................5
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4.3 Accredited Investor...............................................6
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4.4 Access to Information.............................................6
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4.5 Confidentiality...................................................6
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4.6 No Agents.........................................................6
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ARTICLE 5. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS..................6
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5.1 Representations...................................................6
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5.2 Authorization.....................................................6
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5.3 Acceptance by Counsel to the Purchasers...........................7
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5.4 Government Consents, Authorizations, Etc..........................7
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5.5 No Litigation or Legislation......................................7
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5.6 No Material Adverse Change........................................7
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5.7 Consents and Permits..............................................7
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ARTICLE 6. CONDITIONS TO OBLIGATIONS OF THE COMPANY.....................8
6.1 Representations...................................................8
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6.2 Legality..........................................................8
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6.3 Acceptance by Counsel to the Company..............................8
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ARTICLE 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION, ETC..............................8
7.1 Survival..............................................8
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7.2 Company's Agreement to Indemnify......................8
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ARTICLE 8. RESTRICTION ON TRANSFERABILITY....................8
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8.1 Restriction; Procedure for Transfer...................8
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8.2 Notice of Proposed Transfer...........................8
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ARTICLE 9. REGISTRATION UNDER SECURITIES ACT, ETC............9
9.1 Incidental Registration...............................9
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9.2 Registration Procedures..............................11
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9.3 Underwritten Offerings...............................15
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9.4 Preparation; Reasonable Investigation................18
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9.5 Indemnification......................................18
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ARTICLE 10. DEFINITIONS......................................22
ARTICLE 11. MISCELLANEOUS....................................24
11.1 Amendment, Modification and Waiver...................24
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11.2 Expenses; Transfer Taxes, Etc........................24
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11.3 Binding Effect; Benefits; Parties in Interest........24
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11.4 Entire Agreement.....................................24
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11.5 Headings.............................................25
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11.6 Notices..............................................25
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11.7 Counterparts.........................................25
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11.8 Governing Law........................................25
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11.9 Gender...............................................25
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STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT dated as of December 18, 1996 by and among
the purchasers listed on Schedule A attached hereto (collectively, the
"Purchasers"), and INFORMATION MANAGEMENT ASSOCIATES, INC. (the "Company").
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
ARTICLE 1. TRANSFER OF SHARES AND RELATED MATTERS
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1.1 The Sale. Subject to the terms and conditions of this Agreement,
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the Company hereby agrees to issue and sell to the Purchasers, and each
Purchaser hereby agrees to purchase from the Company, on the date of the Closing
(as hereinafter defined), the number of newly issued shares set forth opposite
such Purchaser's name on Schedule 1.1 attached hereto (collectively, the
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"Shares") of the common stock, no par value, of the Company ("Common Stock")
free and clear of all liens, claims, liabilities, restrictions or other
encumbrances at a purchase price of $16.00 per share (the "Purchase Price").
1.2 Delivery of Shares. On the Closing Date (as hereinafter defined),
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the Company will deliver to the Purchasers, against payment of the Purchase
Price, certificates representing the Shares.
ARTICLE 2. CLOSING
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The closing for the consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P. Hartford, Connecticut, 10:00 a.m. on December 18, 1996
or at such other time or place as the parties hereto shall mutually agree (the
"Closing Date").
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company hereby represents and warrants to the Purchasers as
follows:
3.1 Authority and Validity. The execution, delivery and performance of
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this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly and validly executed and delivered
by the Company and is the valid and binding obligation of the Company,
enforceable in accordance with its terms, except as such enforcement may be
affected or limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by applicable
principles of equitable remedies. Neither the execution, delivery
and performance of this Agreement, nor the consummation of the transactions
contemplated hereby or compliance by the Company with any of the provisions
hereof will (i) conflict with or result in a breach of any material provision of
its Charter or By-laws; (ii) violate or conflict with the terms of any material
agreement to which the Company is a party or by which it is bound; or (iii)
violate any law, statute, rule or regulation or judgement, order, writ,
injunction or decree of any court, administrative agency or governmental body
applicable to Company.
3.2 Organization and Standing; Corporate Power. The Company is a
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corporation duly organized and existing under the laws of the State of
Connecticut and is in good standing under such laws. The Company has requisite
corporate power and authority to own, lease and operate its properties and
assets, and to carry on its business as presently conducted. The Company has all
requisite corporate power and authority to enter into and perform all of its
obligations under this Agreement.
3.3 Subsidiaries. On the date hereof, the Company has one wholly owned
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subsidiary, Information Management Associates Limited, a United Kingdom company,
and no other subsidiaries.
3.4 Qualification. Attached as Schedule 3.4 is a true and complete
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list of all jurisdictions in which the Company is duly qualified as a foreign
corporation authorized to do business, or has a pending application for such
qualification. Except as set forth in Schedule 3.4, the Company is in good
standing in each such jurisdiction in which it is so qualified. The
jurisdictions identified in Schedule 3.4 are the only jurisdictions in which the
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nature of the Company's activities or the character of the properties it owns or
leases makes such qualification necessary, other than those jurisdictions in
which the failure to be so qualified would not have a material adverse effect on
the financial condition, assets, liabilities (absolute, accrued, contingent or
otherwise), reserves, business, operations or prospects of the Company.
3.5 Capitalization. Attached as Schedule 3.5 is a true and accurate
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list of the authorized capital stock of the Company and the issued and
outstanding stock of the Company. Attached as Schedule 3.5 is a true and
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accurate list of the issued or outstanding shares of capital stock or securities
convertible or exchangeable into, or outstanding stock purchase warrants or
other options or rights to purchase shares of its capital stock or other equity
securities of the Company. All issued and outstanding shares have been duly
authorized and validly issued, are fully paid and non-assessable. When
authorized and issued, the Shares will not be subject to any pre-emptive rights
or rights of first refusal. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
non-assessable and will be free of any liens or encumbrances;
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provided, however, that the Shares will be subject to restrictions on transfer
imposed under applicable state and federal securities laws.
3.6 Indebtedness of the Company. Schedule 3.6 correctly describes all
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secured and unsecured Indebtedness of the Company outstanding, or for which the
Company has commitments, on the date of this Agreement. Except as disclosed on
Schedule 3.6 the Company is not in default with respect to any Indebtedness or
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any instrument or agreement relating thereto.
3.7 Disclosure. Neither this Agreement nor the Schedules hereto
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contains (in each case, as of its date) any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
3.8 Intellectual Property. The Company owns or has valid rights to use
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all Intellectual Property Rights used in or necessary to conduct the Company's
business as heretofore conducted or planned to be conducted in the foreseeable
future, except for Intellectual Property Rights which are not material to the
conduct of the Company's business.
3.9 Environmental Matters. The Company is in compliance with the
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provisions of all federal, state and local laws relating to pollution or
protection of the environment applicable to it or to real property owned or
leased by it or to the ownership, use, operation or occupancy thereof, except
for violations or liabilities which individually or in the aggregate could not
reasonably be expected to have a material adverse effect on the Company. Neither
the Company nor any Person has engaged in any activity in violation of any
provision of any federal, state or local law relating to pollution or protection
of the environment, which violation could reasonably be expected to have a
material adverse effect on the Company. The Company has no liability, absolute
or contingent, under any federal, state or local law relating to pollution or
protection of the environment, except for liabilities which individually or in
the aggregate could not reasonably be expected to have a material adverse effect
on the Company.
3.10 Financial Statements. The unaudited consolidated balance sheet
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and related statement of operations of the Company as of December 31, 1995 and
the unaudited consolidated balance sheet and related statement of operations of
the Company as of September 30, 1996 (collectively, the "Financial Statements"),
which have been made available to Purchasers, fairly present the Company's
assets, liabilities, financial position and results of operations as of the
respective dates thereof and for the periods then ended, and were prepared in
accordance with generally accepted accounting principles, consistently applied
(subject, in the case of unaudited
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statements, to normal year-end audit adjustments). As of the date of this
Agreement, there is no fact (other than any matters of a general economic or
political nature which do not affect the Company uniquely) known to the Company
which materially adversely affects or in the future may (so far as the Company
can now reasonably foresee) materially adversely affect the financial condition,
assets, liabilities (absolute, accrued, contingent or otherwise), reserves,
business operations or prospects of the Company which has not been set forth in
this Agreement or the Schedules hereto.
3.11 Changes. Except as set forth in Schedule 3.11 hereto, since
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September 30, 1996, there has not been:
(a) any change in the Company's assets, liabilities, condition
(financial or otherwise) or business which individually or in the
aggregate is materially adverse to the Company, or which is not
in the ordinary course of business;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the Company's
business or assets or other properties;
(c) any issuance or sale by the Company of any shares of its capital
stock or other securities except for shares of Senior Preferred
Convertible Stock issued in November 1996; and
(d) any other event or condition which has materially and adversely
affected the Company's business.
3.12 Litigation, Etc. Except as disclosed in Schedule 3.12, there is
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no litigation or government investigation or proceeding either existing, pending
or, to the Company's knowledge, threatened against the Company or affecting any
of the Company's properties or assets, in any court or before or by any federal,
state, municipal or other governmental authority, or which affects this
Agreement or any action taken or to be taken by the Company hereunder.
3.13 Compliance with Other Instruments, etc. The Company is not in
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violation of any term of its Certificate of Incorporation or By-Laws, and the
Company is not in violation of any term of any agreement or instrument to which
it is a party or by which it is bound or any term of any applicable law,
ordinance, rule or regulation of any governmental authority or any term of any
applicable order, judgment or decree of any court, arbitrator or governmental
authority, the consequences of which violation could reasonably be expected to
have a material adverse effect on the financial condition, assets, liabilities
(absolute, accrued, contingent or otherwise), reserves, business, operations or
prospects of the Company.
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3.14 Use of Proceeds. The Company will use the proceeds from the sale
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of the Shares for general corporate purposes.
3.15 No Violations of Securities Laws. Subject to the accuracy of the
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Purchasers' representations in Section 4 hereof, the offer and sale of the
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Shares hereunder are and will be exempt from the registration and prospectus
delivery requirements of the Securities Act and are and will be exempt from the
registration, permit or qualification requirements of all applicable state
securities laws or such requirements have been or will be satisfied. The Company
has not offered or sold the Shares to anyone other than the Purchasers. Neither
the Company nor any person acting on its behalf has taken any action which would
require the registration of the Shares under Section 5 of the Securities Act,
including, without limitation, engaging in any form of general solicitation.
3.16 Brokers or Finders Fees, Etc. No agent, broker, investment
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banker, person or firm acting on behalf of the Company or under its authority is
or will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with the sale of the Shares contemplated hereby.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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Each Purchaser hereby represents and warrants to the Company as
follows:
4.1 Investment. Such Purchaser is acquiring the Shares for investment
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for its own account and not with a view to, or for resale in connection with,
any distribution thereof. The Purchaser understands that the Shares have not
been registered under the Securities Act or under the securities laws of any
State, by reason of specific exemptions from the registration provisions of the
Securities Act and such state laws which depend upon, among other things, the
accuracy of the Purchaser's representations herein and the bona fide nature of
the Purchaser's investment intent as expressed herein.
4.2 Resale. Such Purchaser acknowledges that the Shares must be held
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indefinitely unless the Shares are subsequently registered under the Securities
Act and applicable state securities laws or an exemption from such registration
is available. Each certificate representing (i) the Shares, and (ii) any other
securities issued in respect of the Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted by law) be stamped or otherwise imprinted with a legend in
the following form (in addition to any legend required under applicable state
securities laws, rules or regulations):
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, OR THE CONNECTICUT UNIFORM SECURITIES ACT. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACTS EXCEPT PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 Accredited Investor. Such Purchaser is an "accredited investor" as
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that term is used in Rule 501 promulgated under the Securities Act. Each
Purchaser is resident in the state set forth in his address on Schedule 1.1
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attached hereto.
4.4 Access to Information. Such Purchaser acknowledges that he has
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received such information and made such investigation and analysis as he deems
appropriate of the business and prospects of the Company and has been afforded
an opportunity to meet with and ask questions of and receive answers from,
management of the Company.
4.5 Confidentiality. Such Purchaser agrees to keep permanently
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confidential any information provided or to be provided to the Purchaser by the
Company in connection with the purchase and sale of the Shares, including
without limitation, this Agreement, the Schedules attached hereto and any and
all information, financial or otherwise, relating to the Company which may
hereafter be provided to such Purchaser.
4.6 No Agents. Such Purchaser acknowledges that the Shares are being
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offered by the Company through its directors and executive officers and that no
other person has acted as agent or broker in connection with the offering and
sale of the Shares and no other person has been authorized to give any
information or make any representation concerning the Company or the Shares.
ARTICLE 5. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
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The obligations of the Purchasers to perform this Agreement are
subject to the satisfaction of the following conditions unless waived by the
Purchasers:
5.1 Representations. The representations made by the Company in
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Section 3 hereof shall be true and correct when made, and shall be true and
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correct on the Closing Date with the same force and effect as if they had been
made on and as of said date.
5.2 Authorization. All action necessary to authorize the execution,
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delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby shall have been duly and validly taken by the
Company and the Company shall
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have full power and right to consummate the transactions contemplated hereby.
5.3 Acceptance by Counsel to the Purchasers. The form and substance of
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all legal matters contemplated hereby and of all papers delivered hereunder
shall be acceptable to counsel to the Purchasers.
5.4 Government Consents, Authorizations, Etc. All consents,
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authorizations, orders or approvals of, and filings or registrations with, any
federal, state, local or foreign governmental commission, board or other
regulatory body which are required for or in connection with the execution,
delivery and performance of this Agreement by the Company, and the consummation
of the transactions contemplated hereby shall have been duly obtained or made.
5.5 No Litigation or Legislation. No federal, state, local or foreign
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statute, rule or regulation shall have been enacted or litigation, proceeding,
government inquiry or investigation commenced or threatened which prohibits,
restricts or delays the consummation of the transactions contemplated by this
Agreement or any of the conditions to the consummation of such transactions or
adversely affects the desirability of consummating the transactions contemplated
hereby.
5.6 No Material Adverse Change. In the judgment of the Purchasers, no
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material adverse change shall have occurred in the financial condition, assets,
liabilities (absolute, accrued, contingent or otherwise), reserves, business,
operations or prospects of the Company since September 30, 1996, other than (x)
changes which have not been, either in any case or in the aggregate, materially
adverse to the Company, and (y) any matters of a general economic or political
nature which do not affect the Company uniquely.
5.7 Consents and Permits. The Company shall have received all
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consents, permits and other authorizations, and made all such filings and
declarations, as may be required pursuant to any law, statute, regulation or
rule (federal, state, local or foreign) in connection with the transactions
contemplated by this Agreement, or as may be required pursuant to any agreement,
order or decree to which the Company is a party or to which it is subject, in
connection with the transactions contemplated by this Agreement.
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ARTICLE 6. CONDITIONS TO OBLIGATIONS OF THE COMPANY
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The obligations of the Company to perform this Agreement are subject
to the satisfaction of the following conditions unless waived by the Company:
6.1 Representations. The representations made by Purchasers in Section
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4 hereof shall be true and correct when made, and shall be true and correct on
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the Closing Date with the same force and effect as if they had been made on and
as of said date.
6.2 Legality. At the time of Closing the sale of the Shares to the
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Purchasers shall be legally permitted by all laws and regulations to which the
Purchasers and the Company are subject.
6.3 Acceptance by Counsel to the Company. The form and substance of
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all legal matters contemplated herein and of all papers delivered hereunder
shall be acceptable to counsel to the Company.
ARTICLE 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION,
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ETC.
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7.1 Survival. All representations and warranties made by any party to
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this Agreement, including, without limitation, all representations and
warranties made on any Schedule or Exhibit attached hereto or document delivered
hereunder, shall survive the Closing and the consummation of the transactions
contemplated hereby.
7.2 Company's Agreement to Indemnify. The Company hereby agrees to
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indemnify and save the Purchasers harmless from and against, for and in respect
of, any and all damages, losses, obligations, liabilities, claims, actions or
causes of action, encumbrances, costs, and expenses (including, without
limitation, reasonable attorneys' fees) arising from the untruth, inaccuracy or
breach or nonfulfillment of any representation, warranty, covenant or agreement
of the Company, contained in or made pursuant to this Agreement, including any
Exhibit or Schedule attached hereto or certificate delivered hereunder.
ARTICLE 8. RESTRICTION ON TRANSFERABILITY
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8.1 Restriction; Procedure for Transfer. The Shares shall not be
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transferable except upon the conditions specified in this Section 8, which
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conditions are intended to ensure compliance with the Securities Act and
applicable State securities laws.
8.2 Notice of Proposed Transfer. Prior to any proposed transfer of any
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of the Shares (other than a transfer pursuant to
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registration under the Securities Act), the holder thereof shall give written
notice to the Company of such holder's intention to effect such transfer at
least thirty (30) days prior to the date of transfer and shall specify the
proposed purchase price and the other terms and conditions relating to such
proposed transfer. Each such notice shall describe the manner and circumstances
of the proposed transfer in sufficient detail, and shall be accompanied by a
written opinion of legal counsel that shall be reasonably satisfactory to the
Company, addressed to the Company, to the effect that the proposed transfer of
the Shares may be effected without registration under the Securities Act and
applicable State securities laws.
ARTICLE 9. REGISTRATION UNDER SECURITIES ACT, ETC.
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9.1 Incidental Registration.
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(a) Right to Include Registrable Securities. If the Company at any
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time proposes to register any of its securities under the
Securities Act (other than by a registration on Form S-4 or
S-8, or any successor or similar forms), whether or not for
sale for its own account, it will each such time give prompt
written notice to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this
Section 9.1. Upon the written request of any such holder made
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within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of
disposition thereof), the Company will use its best efforts to
effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested
to register by the holders thereof, to the extent requisite to
permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so
to be registered, by inclusion of such Registrable Securities
in the registration statement which covers the securities
which the Company proposes to register, provided that if, at
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any time after giving written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such
registration, the Company shall determine for any reason
either not to register or to delay registration of such
securities, the Company may, at its election, give written
notice of such determination to each holder of Registrable
Securities and, thereupon, (i) in the case of a determination
not to register, shall be relieved of
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its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation
to pay the Registration Expenses in connection therewith), and
(ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering
such other securities. The Company will pay all Registration
Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 9.1.
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(b) Priority in Incidental Registrations. If (i) a registration
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pursuant to this Section 9.1 involves an underwritten offering
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of the securities so being registered, whether or not for sale
for the account of the Company, to be distributed (on a firm
commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for
such a transaction, (ii) the Registrable Securities so
requested to be registered for sale for the account of holders
of Registrable Securities are not also to be included in such
underwritten offering (either because the Company has not been
requested so to include such Registrable Securities pursuant
to Section 9.3(b) or, if requested to do so, is not obligated
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to do so under Section 9.3(b)), and (iii) the managing
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underwriter of such underwritten offering shall inform the
Company and holders of the Registrable Securities requesting
such registration by letter of its belief that the
distribution of all or a specified number of such Registrable
Securities concurrently with the securities being distributed
by such underwriters would interfere with the successful
marketing of the securities (other than such Registrable
Securities and other shares or securities so requested to be
included) being distributed by such underwriters within a
price range acceptable to the holders of securities other than
the Registrable Securities covered by such registration
requested to be included in such registration (such writing to
state the basis of such belief and the approximate number of
such Registrable Securities which may be distributed without
such effect), then the Company may, upon written notice to all
holders of such Registrable Securities and the holders of any
other shares or securities which shall have exercised in
respect of such offering registration rights comparable to the
rights granted under this
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Section 9.2 (which other shares or securities are not to be
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included in such underwritten offering), reduce pro rata (if
and to the extent stated by such managing underwriter to be
necessary to eliminate such effect) the number of such
Registrable Securities and shares or other securities so that
the resultant aggregate number of such Registrable Securities
and other shares or other securities so included in such
registration shall be equal to the number of shares stated in
such managing underwriter's letter. Notwithstanding the
foregoing, with respect to any registration initiated pursuant
to the exercise of "demand" registration rights by any holder
of securities of the Company, other than the holders of the
Registrable Securities, the holders of Registrable Securities
shall have no right to include any Registrable Securities in
such registration unless all of the securities requested to be
registered by the holders exercising such "demand"
registration rights have been included in such registration
and have not been subjected to any reduction by underwriters.
9.2 Registration Procedures. If and whenever the Company is required to
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use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 9.1 the Company shall, as
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expeditiously as possible:
(i) prepare and (within 90 days after the end of the period within
which requests for registration may be given to the Company or
in any event as soon thereafter as possible) file with the
Commission the requisite registration statement to effect such
registration (including such audited financial statements as
may be required by the Securities Act or the rules and
regulations promulgated thereunder) and thereafter use its
reasonable best efforts to cause such registration statement
to become and remain effective for the time period required by
this Agreement, provided, that before filing such registration
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statement or any amendments thereto the Company will furnish
to the counsel selected by the holders of Registrable
Securities which are to be included in such registration
copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection
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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 disposition of all
securities covered by such registration statement until the
earlier of such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement or the expiration of 90 days after such
registration statement becomes effective, it being understood
that following the expiration of the relevant time period, the
Company shall have no further obligation to maintain the
effectiveness of such registration statement;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement such number of conformed copies of
such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to
facilitate the public sale or other disposition of the
Registrable Securities owned by such seller;
(iv) use its reasonable best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities laws or
blue sky laws of such jurisdictions as any seller thereof and
any underwriter of the securities being sold by such seller
shall reasonably request, to keep such registrations or
qualifications in effect for so long as such registration
statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable such seller
and underwriter to consummate the disposition in such
jurisdictions of the securities owned by such seller, except
that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not but for the requirements
of this subdivision (iv) be obligated to be so qualified, or
to consent to general service of process in any such
jurisdiction;
-12-
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller (and the underwriters,
if any) of
(a) an opinion of counsel for the Company, dated the
effective date of such registration statement (and, if
such registration includes an underwritten public
offering, an opinion dated the date of the closing under
the underwriting agreement), reasonably satisfactory in
form and substance to such seller, and
(b) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration
includes an underwritten public offering, a letter dated
the date of the closing under the underwriting
agreement), signed by the independent public accountants
who have certified the Company's financial statements
included in such registration statement, covering
substantially the same matters with respect to such
registration statement (and the prospectus included
therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such
financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten public
offerings of securities and, in the case of the
accountants' letter, such other financial matters, and,
in the case of the legal opinion, such other legal
matters, as such seller (or the underwriters, if any) may
reasonably request;
(vii) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating
to a registered offering thereof is required to be delivered
under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus
included in such registration statement,
-13-
as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and at the request of
any such seller promptly prepare and furnish to such seller and each
underwriter, if any, a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(viii) otherwise 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, an earnings statement
covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after
the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
-------------
Securities Act, and will furnish to each such seller at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not
file any thereof to which any such seller shall have reasonably
objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(ix) enter into such agreements and take such other actions as sellers of
such Registrable Securities holding 51% of the shares so to be sold
shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(x) use its reasonable best efforts to list all equity securities covered
by such registration statement on any securities exchange on which any
of such equity securities are then listed.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company
-14-
such information regarding such seller and the distribution of such securities
as the Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in subdivision (vii) of this
Section 9.2, such holder will forthwith discontinue such holder's disposition of
-----------
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section 9.2 and, if so directed by the Company, will deliver to the Company (at
-----------
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the periods mentioned in paragraph (ii) of
this Section 9.2 shall be extended by the length of the period from and
-----------
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received such notice to the date on which
each such seller has received the copies of the supplemented or amended
prospectus contemplated by paragraph (vii) of this Section 9.2.
-----------
If any such registration or comparable statement refers to any holder
of Registrable Securities by name or otherwise as the holder of any securities
of the Company then such holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such
holder, to the effect that the holding by such holder of such securities is not
to be construed as a recommendation by such holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar federal statute
or the rules and regulations promulgated thereunder then in force, the deletion
of the reference to such holder.
9.3 Underwritten Offerings.
----------------------
(a) Incidental Underwritten Offerings. If the Company at any time
---------------------------------
proposes to register any of its securities under the
Securities Act as contemplated by Section 9.1 and such
-----------
securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any holder of
Registrable Securities as provided in Section 9.1 and subject
-----------
to the provisions of Section 9.1(b), use its best efforts to
--------------
arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder
-15-
among the securities to be distributed by such underwriters, provided
--------
that if the managing underwriter of such underwritten offering shall
inform the holders of the Registrable Securities requesting such
registration and the holders of any other shares or securities which
shall have exercised, in respect of such underwritten offering,
registration rights comparable to the rights under Section 9.1 by
-----------
letter of its belief that inclusion in such underwritten distribution
of all or a specified number of such Registrable Securities or of such
other shares or securities so requested to be included would interfere
with the successful marketing of the securities (other than such
Registrable Securities and other shares or securities so requested to
be included) within a price range acceptable to the Company or in the
case of a secondary offering, the holders of securities other than
Registrable Securities requested to be included in such registration
by the underwriters (such writing to state the basis of such belief
and approximate number of such Registrable Securities and shares or
other securities so requested to be included which may be included in
such underwritten offering without such effect), then the Company may,
upon written notice to all holders of such Registrable Securities and
of such other shares or securities so requested to be included,
exclude pro rata from such underwritten offering (if and to the extent
stated by such managing underwriter to be necessary to eliminate such
effect) the number of such Registrable Securities and shares or such
other securities so requested to be included the registration of which
shall have been requested by each holder of Registrable Securities and
by the holders of such other securities, so that the resultant
aggregate number of such Registrable Securities and of such other
shares or securities so requested to be included which are included in
such underwritten offering shall be equal to the approximate number of
shares stated in such managing underwriter's letter. The holders of
Registrable Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the
obligations of such
-16-
underwriters under such underwriting agreement be conditions precedent to
the obligations of such holders of Registrable Securities. Any such holder
of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements
regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation
required by law. Notwithstanding the foregoing, with respect to any
registration initiated pursuant to the exercise of "demand" registration
rights by any holder of securities of the Company other than the holders
of Registrable Securities, the holders of Registrable Securities shall
have no right to include any Registrable Securities in such registration
unless all of the securities requested to be registered by the holders
exercising such "demand" registration rights have been included in such
registration and have not been subjected to any reduction by underwriters.
(b) Holdback Agreements.
-------------------
(i) Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities, if so required by the managing
underwriter, not to effect any public sale or distribution of any
equity securities of the Company, during the seven days prior to and
the 90 days after any underwritten registration pursuant to Section
-------
9.1 has become effective, except as part of such underwritten
---
registration, whether or not such holder participates in such
registration.
(ii) The Company agrees (x) if so required by the managing underwriter
not to effect any public sale or distribution of its equity securities
or securities convertible into or exchangeable or exercisable for any
of such securities during the seven days prior to and the 90 days
after any underwritten registration pursuant to Section 9.1 has become
-----------
effective, except as part of such underwritten registration and except
pursuant to registrations on Form S-4 and S-8, or any successor or
similar forms thereto, and (y) to cause each holder of its equity
securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased from
the Company at any
-17-
time after the date of this Agreement (other than in a public
offering) to agree not to effect any such public sale or
distribution of such securities during such period.
9.4 Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such holders' and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
9.5 Indemnification.
---------------
(a) Indemnification by the Company. In the event of any registration
------------------------------
of any securities of the Company under the Securities Act pursuant to
this Section 9, the Company will indemnify and hold harmless the
---------
holder of any Registrable Securities covered by such registration
statement, its directors, officers, agents, employees, general
partners, limited partners, each other Person who participates as an
underwriter in the offering or sale of such securities and each other
Person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such holder or
Requesting Holder or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such holder or Requesting Holder or any
such director, officer, agent, employee, general partner, limited
partner or underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities
were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission
to state therein a material fact required to be stated therein or
-18-
necessary to make the statements therein not misleading, and the
Company will reimburse such holder, and each such director, officer,
agent, employee, general partner, limited partner, underwriter and
controlling person for any reasonable legal or any other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable in any such case to the
--------
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) 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, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company through an instrument
duly executed by such holder specifically stating that it is for use
in the preparation thereof and, provided further that the Company
----------------
shall not be liable to any Person who participates as an underwriter,
in the offering or sale of Registrable Securities or to any other
Person who participates as an underwriter, in the offering or sale of
Registrable Securities or to any other Person, if any, who controls
such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of such
Person's failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, within the time required
by the Securities Act to the Person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior
to the written confirmation of the sale of Registrable Securities to
such Person if such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or
such Requesting Holder or any such director, officer, agent, employee,
general partner, limited partner, underwriter or controlling person
and shall survive the transfer of such securities by such holder.
(b) Indemnification by the Sellers. In the event of any registration
------------------------------
of Registrable Securities under the Securities Act pursuant to this
Section 9, each seller of Registrable Securities will (severally and
---------
not jointly) indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 9.5)
-----------
the Company, each director of the Company, each officer of the Company
and each other person, if any, who controls the Company within the
meaning of the
-19-
Securities Act, with respect to any statement or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such
seller specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect, regardless of any investigation made
by or on behalf of the Company or any such director, officer or
controlling person and shall survive the transfer of such securities
by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
----------------------
party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this
Section 9.5, such indemnified party will, if a claim in respect
-----------
thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action, provided that
--------
the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 9.5, except to the extent that
-----------
the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties
may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent
that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified 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 for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement of any such action which does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. No indemnified
-20-
party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by
an indemnifying party without the consent of such indemnifying party.
(d) Other Indemnification. Indemnification similar to that specified
---------------------
in the preceding subdivisions of this Section 9.5 (with appropriate
-----------
modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or
other qualification of securities under any Federal or state law or
regulation of any governmental authority, other than the Securities
Act.
(e) Indemnification Payments. The indemnification required by this
------------------------
Section 9.5 shall be made by periodic payments of the amount thereof
-----------
during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
(f) Contribution. If for any reason the indemnification provided for
------------
in the preceding paragraphs of this Section 9 is unavailable to an
---------
indemnified party or is insufficient to hold it harmless as
contemplated by the preceding clauses (a) and (b), then the
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such, claim, damage, liability or expense in such
proportion as is appropriate to reflect not only the relative benefits
received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and indemnifying party in
connection with the actions which resulted in such loss, claim,
damage, liability or expense, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party
in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.5(f) were
--------------
-21-
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. 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. No holder of Registrable Securities shall be
required to contribute in an amount greater than the dollar amount of proceeds
received by such holder with respect to the sale of such holder's Registrable
Securities.
ARTICLE 10. DEFINITIONS
----------- -----------
As used herein, unless the context otherwise requires, the following
terms have the following meanings:
Commission: The Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act.
Common Stock: As defined in Section 1.1 hereof, such term to include
------------ -----------
any stock into which such Common Stock shall have been changed or any stock
resulting from any reclassification of such Common Stock, and all other stock of
any class or classes (however designated) of the Company the holders of which
have the right, without limitation as to amount, either to all or to a share of
the balance of current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference.
Company: As defined in the introduction to this Agreement, such term
-------
to include any corporation which shall succeed to or assume the obligations of
the Company hereunder.
Control: The possession, directly or indirectly, of the power, whether
-------
or not exercised, to direct or cause the direction of the management or policies
of any Person, whether through the ownership of voting securities, by contract
or otherwise; "Controlling" and "Controlled" shall have meanings correlative to
the foregoing.
Copyrights: Registered or unregistered United States or foreign
----------
copyrights (including but not limited to copyrights in computer programs,
related documentation, and data bases) and United States and foreign copyright
registrations, and applications for registration and all renewals and extensions
thereof.
Exchange Act: The Securities Exchange Act of 1934, or any similar
------------
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
Intellectual Property Rights: All Trademarks, Patents, Copyrights, and
----------------------------
Know-How and Technical Information.
-22-
NASD: The National Association of Securities Dealers, Inc.
----
Know-How and Technical Information: Data, plans, trade secrets,
----------------------------------
technologies, processes, specifications, know-how, operating experience and
information (business, economic and technical) relating to the foregoing.
Patents: United States and foreign patents and patent applications,
-------
certificates of invention, utility models, and all renewals, extensions,
reissues, divisions, continuations and continuations-in-part thereof.
Person: An individual, a partnership, a joint venture, a corporation,
------
a trust, an unincorporated organization, an association or any other entity or a
government or any department or agency thereof.
Purchasers: As defined in the introduction to this Agreement.
----------
Registrable Securities: (a) The shares of Common Stock purchased
----------------------
pursuant to this Agreement; and (b) any securities issued or issuable with
respect to any securities referred to in the foregoing subdivision by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, once issued such certificates shall
cease to be Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) they shall have been distributed to the
public pursuant to Rule 144 (or any successor or similar provision) under the
Securities Act, (c) they shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them immediately
thereafter shall not require registration or qualification of them (other than
by the issuer, an underwriter or an affiliate [as such term is defined in the
Securities Act and the regulations promulgated thereunder] of the issuer) under
the Securities Act or any similar state law then in force, or (d) they shall
have ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's
---------------------
performance of or compliance with Section 9, including, without limitation, all
---------
registration, filing and NASD fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, premiums and other costs of policies of
insurance (if any) against liabilities arising out of the public offering of the
Registrable Securities
-23-
being registered or officers and directors insurance and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions and transfer
taxes, if any.
Securities Act: The Securities Act of 1933, or any similar federal
--------------
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
Trademarks: All registered and unregistered trademarks, service marks,
----------
corporate names, tradenames, logos, designs, product or business identifiers and
trade dress together, in each case, with the good will of the business
symbolized thereby, and United States, state and foreign trademark or
servicemark registrations or applications for registration and all amendments,
renewals and extensions thereof.
Transfer: Any sale, assignment, pledge or other disposition of any
--------
security, or of any interest therein, which could constitute a "sale" as that
term is defined in Section 2(3) of the Securities Act.
ARTICLE 11. MISCELLANEOUS
----------- -------------
11.1 Amendment, Modification and Waiver. This Agreement shall not be
----------------------------------
altered or otherwise amended except pursuant to an instrument in writing signed
by the Purchasers and the Company, and any obligation owed to a party under this
Agreement may only be waived in a writing signed by such party. The waiver by
any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach.
11.2 Expenses; Transfer Taxes, Etc. All fees, costs and expenses
-----------------------------
incurred by the Company in connection with, relating to or arising out of the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby shall be borne by the Company. The Company
shall pay all sales, use and excise taxes and all registration, recording or
transfer taxes which may be payable in connection with the transactions
contemplated by this Agreement.
11.3 Binding Effect; Benefits; Parties in Interest. This Agreement
---------------------------------------------
shall be binding upon, inure to the benefit of, and be enforceable by, the
respective successors, assigns, heirs and legal representatives of the parties
hereto; provided, however, that this Agreement shall not be assignable by the
-------- -------
Company or the Purchasers without the prior written consent of the other.
11.4 Entire Agreement. This Agreement (including the Schedules
----------------
attached hereto), and the other writings referred to herein or delivered
pursuant hereto contain the entire
-24-
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings with respect to such subject
matter.
11.5 Headings. The section and paragraph headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.6 Notices. All notices, claims, certificates, requests, demands and
-------
other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, mailed (by first-class mail, postage
prepaid), transmitted by telex or telecopier or sent by air courier guaranteeing
overnight delivery as follows:
If to the Company, to:
Information Management Associates, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxxx
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to any Purchaser, to such Purchaser at the address set forth in
Schedule A;
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given, in the case of personal
delivery, on the date of delivery and in the case of mailing five (5) days after
such mailing.
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
11.8 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Connecticut.
11.9 Gender. Any reference to the masculine gender shall be deemed to
------
include the feminine and neuter genders unless the context otherwise requires.
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
THE COMPANY:
INFORMATION MANAGEMENT ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
President
THE PURCHASERS:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx
-26-
Schedule 1.1
------------
List of Purchasers
------------------
Name, Address and Purchase
Social Security Number Number of Shares Price
---------------------- ---------------- --------
Xxxxxxx Xxxxxxx 10,000 $160,000
[ADDRESS APPEARS HERE]
Xxxxxx Xxxx 4,400 $ 70,400
[ADDRESS APPEARS HERE]
