EXHIBIT 99.5: FORM OF SUBSCRIPTION AGENT AGREEMENT.
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of the ___ day of
May, 2001, by and between PurchaseSoft, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as subscription agent
(the "Agent"). All terms not defined herein shall have the meaning given in the
prospectus (the "Prospectus") included in the Registration Statement on Form
S-3, File No. 333-_______, filed by the Company with the Securities and Exchange
Commission (the "Commission") on May ___, 2001, as amended by any amendment
filed with respect thereto (collectively the "Registration Statement").
RECITALS
WHEREAS, the Company has caused the Registration Statement to be filed
with the Commission relating to a proposed distribution by the Company of
non-transferable subscription rights (the "Subscription Rights") to purchase
shares of the Company's common stock, par value $0.01 per share ("Common
Stock"), upon the exercise of such Subscription Rights (the distribution of the
Subscription Rights and the sale of shares of Common Stock upon the exercise
thereof as contemplated by the Registration Statement is referred to herein as
the "Rights Offering");
WHEREAS, the Subscription Rights will be distributed on or about May ___, 2001
to holders of record of shares of Common Stock (the "Holders") as of
the close of business on May ___, 2001 (the "Record Date") at a rate of
1.52 Subscription Right for each share of Common Stock held on the
Record Date;
WHEREAS, the Company has authorized the issuance of an aggregate number of
authorized and unissued shares of Common Stock (the "Underlying
Shares") equal to the aggregate number of Subscription Rights to be
distributed pursuant to the Rights Offering;
WHEREAS, Holders will be entitled to subscribe to purchase at a per
share price of $0.88 (the "Subscription Price") one Underlying Share for each
Subscription Right held (the "Basic Subscription Privilege"), which right to
subscribe for such Underlying Shares pursuant to the Basic Subscription
Privilege is not transferable;
WHEREAS, Holders will also be entitled to subscribe to purchase any
underlying Shares that are not subscribed for through the Basic Subscription
Privilege, subject to proration by the Company, if necessary (the
"Over-Subscription Privilege"), which right to subscribe for such Underlying
Shares pursuant to the Over-Subscription Privilege is not transferable; and
WHEREAS, the Company wishes the Agent to perform certain acts on behalf
of the Company, and the Agent is willing to so act, in connection with the
Rights Offering as set forth herein, all upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
ARTICLE 1: APPOINTMENT OF AGENT
1.1 The Company hereby appoints the Agent to act as agent for the Company in
accordance with the instructions set forth in this Agreement, and the Agent
hereby accepts such appointment.
ARTICLE 2: ISSUANCE OF SECURITIES
2.1 The Company has authorized the issuance of the Subscription Rights and,
following the Record Date and the effectiveness of the Registration Statement,
promptly will issue such Subscription Rights to the Holders as contemplated by
the Registration Statement. The Company will promptly notify the Agent upon the
effectiveness of the Registration Statement. As transfer agent and registrar for
the shares of Common Stock, the Agent shall provide such assistance as the
Company may require in order to effect the distribution of the
Subscription Rights to Holders, including assistance in determining the
number of Subscription Rights to be distributed to each such Holder and
assistance in distributing the Subscription Documents (as defined in Section
5.2 hereof) evidencing the Subscription Rights and all other ancillary
documents and issuance of the Underlying Shares.
2.2 The Company has authorized the issuance of and will hold in reserve the
Underlying Shares, and upon the valid exercise of Subscription Rights, the
Company will issue Underlying Shares to validly exercising Holders as set forth
in the Registration Statement.
ARTICLE 3: SUBSCRIPTION RIGHTS AND ISSUANCE OF SUBSCRIPTION DOCUMENTS
3.1 Each set of Subscription Documents shall contain a Subscription Certificate
which shall be non-transferable. The Agent shall, in its capacity as transfer
agent and registrar of the Company, maintain a register of Subscription
Certificates and the Holders thereof. Each Subscription Certificate shall,
subject to the provisions thereof, entitle the Holder in whose name it is
recorded to the following:
(a) With respect to Holders only, the right to subscribe for prior to
the May ___, 2001, as such date may be extended with respect to certain
shareholders (the "Expiration Date"), at the Subscription Price a number of
shares equal to 1.52 Underlying Shares for every share of Common Stock held by
each Holder on the Record Date (the "Basic Subscription Privilege"); and
(b) With respect to Holders only, the right to subscribe for additional
shares of Common Stock, subject to the availability of such shares and to the
allotment of such shares as may be available among Holders who exercise their
Over-subscription Privilege on the basis specified in the Prospectus; PROVIDED,
HOWEVER, that such Holder has exercised such Holder's Basic Subscription
Privilege in full.
ARTICLE 4: FRACTIONAL SUBSCRIPTION RIGHTS AND SHARES
4.1 The Company shall not issue fractions of Subscription Rights nor shall the
Agent distribute Subscription Certificates which evidence fractional
Subscription Rights. The number of Subscription Rights issued to each Holder
will be rounded down to the nearest whole number. All questions as to the
validity and eligibility of any rounding of fractional Subscription Rights shall
be determined by the Company in its sole discretion, and its determination shall
be final and binding. The Company shall not issue fractional shares of Common
Stock to exercising Holders upon exercise of Subscription Rights.
ARTICLE 5: FORM AND EXECUTION OF SUBSCRIPTION DOCUMENTS
5.1 Each Subscription Certificate shall evidence the Subscription Rights of the
Holder therein named to purchase Common Stock upon the terms and conditions set
forth in the Subscription Documents.
5.2 Upon the written advice of the Company, signed by any of its duly authorized
officers, as to the Record Date, the Agent shall, from a list of the Company's
stockholders as of the Record Date to be prepared by the Agent in its capacity
as transfer agent of the Company, prepare and record Subscription Certificates
in the names of the Holders, setting forth the number of Subscription Rights to
subscribe for the Company's Common Stock calculated on the basis of 1.52
Subscription Rights for each share of Common Stock recorded on the books in the
name of each such Holder. Each Subscription Certificate shall be dated as of the
Record Date and shall be executed manually or by facsimile signature of a duly
authorized officer of the Agent. Upon the written advice, signed as aforesaid,
as to the effective date of the Registration Statement, the Agent shall promptly
countersign and deliver the Subscription Certificate, together with a copy of
the Prospectus, instruction letter and any other document as the Company deems
necessary or appropriate (collectively the "Subscription Documents"), to all
Holders with record addresses in the United States (including its territories
and possessions and the District of Columbia). No Subscription Documents shall
be valid for any purpose unless so executed. Delivery shall be by first class
mail (without registration or insurance).
5.3 Subscription Documents will not be mailed to Holders having a registered
address outside the United States, or to those Holders having APO or FPO
addresses. The Subscription Rights to which such Subscription Certificates
relate will be held by the Agent for such Holders, accounts until instructions
are received to exercise the Subscription Rights.
ARTICLE 6: EXERCISE OF SUBSCRIPTION RIGHTS; EXERCISE PRICE; EXPIRATION DATE
6.1 Each Holder may exercise some or all of the Subscription Rights evidenced by
the Subscription Certificate (but not in amounts of less than one Subscription
Right or an integral multiple thereof) by delivering to the Agent, on or prior
to 5:00 p.m., New York City time, on June 20, 2001 (the "Expiration Date"),
properly completed and executed Subscription Documents evidencing such
Subscription Rights (with signatures guaranteed, if required by Section 6.9
hereof, by a financial institution (including commercial banks, savings and loan
associations and brokerage houses) that is a member of a recognized signature
guarantee or medallion program within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended (each, an "Eligible Institution")),
together with payment of the Subscription Price for each Underlying Share
subscribed for pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege, as the case may be.
6.2 In the case of Holders of Subscription Rights that are held of record
through The Depository Trust Company ("DTC"), exercises of the Basic
Subscription Privilege may be effected by instructing DTC to transfer
Subscription Rights from the DTC account of such Holder to the DTC account of
the Agent, together with payment of the Subscription Price for each Underlying
Share subscribed for pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege. Alternatively, a Holder may exercise the
Subscription Rights evidenced by the Subscription Certificate by effecting
compliance with the procedures for guaranteed delivery set forth in Section 6.3
below.
6.3 If a Holder wishes to exercise Subscription Rights, but time will not permit
such Holder to cause the Subscription Certificate evidencing such Subscription
Rights to reach the Agent on or prior to the Expiration Date, such Subscription
Rights may nevertheless be exercised if all of the following conditions (the
"Guaranteed Delivery Procedures") are met:
(a) such Holder has caused payment in full of the Subscription Price
for each Underlying Share being subscribed for pursuant to the Basic
Subscription Privilege and the Over-Subscription Privilege to be received (in
the manner set forth in Section 6.5 hereof) by the Agent on or prior to the
Expiration Date;
(b) the Agent receives, on or prior to the Expiration Date, a guarantee
notice (a "Notice of Guaranteed Delivery"), substantially in the form provided
with the Subscription Documents, from an Eligible Institution, stating the name
of the exercising Holder, the number of Subscription Rights represented by the
Subscription Certificate or Subscription Certificates held by such exercising
Holder, the number of Underlying Shares being subscribed for pursuant to the
Basic Subscription Privilege and the number of Underlying Shares, if any, being
subscribed for pursuant to the Over-Subscription Privilege, and guaranteeing the
delivery to the Agent of the Subscription Certificate evidencing such
Subscription Rights at or prior to 5:00 p.m., New York City time, on the date
three over-the-counter ("OTC") trading days following the date of the Notice of
Guaranteed Delivery; and
(c) the properly completed Subscription Certificate(s) evidencing the
Subscription Rights being exercised, with any required signatures guaranteed,
are received by the Agent, or such Subscription Rights are transferred into the
DTC account of the Agent, at or prior to 5:00 p.m., New York City time, on the
date three OTC trading days following the date of the Notice of Guaranteed
Delivery relating thereto. The Notice of Guaranteed Delivery may be delivered to
the Agent in the same manner as Subscription Certificates at the addresses set
forth above, or may be transmitted to the Agent by telegram or facsimile
transmission (facsimile: (000) 000-0000).
6.4 The Subscription Rights shall expire at 5:00 p.m., New York City time, on
the Expiration Date.
6.5 If an exercising Holder has not indicated the number of Subscription Rights
being exercised, or if the Subscription Price payment forwarded by such Holder
to the Agent is not sufficient to purchase the number of shares subscribed for,
the Holder will be deemed to have exercised the Basic Subscription Privilege
with respect to the maximum number of whole Subscription Rights which may be
exercised for the Subscription Price delivered to the Agent and, to the extent
that the Subscription Price payment delivered by such Holder exceeds the
Subscription Price multiplied by the maximum number of whole Subscription Rights
which may be exercised (such excess being the "Subscription Excess"), the Holder
will have been deemed to exercise its Over-Subscription Privilege to purchase,
to the extent available, that number of whole shares of Common Stock equal to
the quotient obtained by dividing the Subscription Excess by the Subscription
Price, up to the maximum
number of shares purchasable by such Holder. The Agent, as soon as
practicable after the exercise of the Subscription Rights, shall mail to such
Holders any portion of the Subscription Excess not applied to the purchase of
Common Stock pursuant to the Over-Subscription Privilege, without interest or
deduction.
6.6 The Agent shall hold all proceeds of the Rights Offering in a segregated
bank account (the "Bank Account"). Upon receipt by the Agent of a written notice
from the Company and following issuance of the Underlying Shares, the Agent
shall and is hereby directed to withdraw from the Bank Account in which the
proceeds of the Rights Offering have been held and pay to, credit to the account
of or otherwise transfer to the Company all such Funds. At the request of the
Company, any portion of the Underlying Shares shall be issued and the
corresponding proceeds shall be remitted to the Company.
6.7 The Agent is authorized to accept only Subscription Certificates (other than
Subscription Certificates delivered in accordance with the procedure for
guaranteed delivery set forth in Section 6.3, or transfers of Subscription
Rights to its account at DTC), received prior to 5:00 p.m., New York City time,
on the Expiration Date.
6.8 Once a Holder has exercised a Subscription Right, such exercise may not be
revoked.
6.9 If a Holder requests that the certificate representing the Common Stock to
be issued in a name other than the name of the Holder or such certificate is to
be sent to an address other than the address shown on such Holder's Subscription
Certificate, the signatures on such Subscription Certificate must be guaranteed
by an Eligible Institution.
ARTICLE 7: VALIDITY OF SUBSCRIPTIONS
7.1 Irregular subscriptions and improperly executed Subscription Documents not
otherwise covered by specific instructions herein shall be submitted to an
appropriate officer of the Company and handled in accordance with his or her
instructions. Such instructions will be documented by the Agent indicating the
instructing officer and the date thereof.
ARTICLE 8: OVERSUBSCRIPTION
8.1 GENERAL. To the extent Holders do not exercise all of the Subscription
Rights issued to them pursuant to the Basic Subscription Privilege, any
Underlying Shares represented by such Subscription Rights will be offered by
means of the Over-Subscription Privilege to the Holders who have exercised all
of the Subscription Rights issued to them pursuant to the Basic Subscription
Privilege and who wish to acquire more than the number of Underlying Shares to
which they are entitled. Only Holders who exercise all the Subscription Rights
issued to them pursuant to the Basic Subscription Privilege may indicate, on the
Subscription Certificate that they submit with respect to the exercise of the
Subscription Rights issued to them, how many Underlying Shares they desire to
purchase pursuant to the Over-Subscription Privilege. If sufficient Underlying
Shares remain after completion of the Basic Subscription Privilege, all
Over-Subscription requests will be honored in full. If sufficient Underlying
Shares are not available to honor all Over-Subscription requests, the available
shares will be allocated pro rata (subject to elimination of fractional shares
and the provisions of Sections 8.1(b) and (c) hereof) among Holders who exercise
the Over-Subscription Privilege in proportion to the number of shares each
Holder purchased pursuant to the Basic Subscription Privilege; PROVIDED,
HOWEVER, that if such pro rata allocation results in any Holder being allocated
a greater number of shares than such Holder subscribed for pursuant to the
exercise of such Holder's Over-Subscription Privilege, then such Holder will be
allocated only such number of shares as such Holder subscribed for and the
remaining shares will be allocated among all other Holders exercising the
Over-Subscription Privilege.
8.2 As soon as practicable after the expiration date and the allocation of
shares subscribed for pursuant to the Over-Subscription Privilege, the Agent
shall refund to each Holder any amount paid by such Holder and not applied
toward the purchase of Underlying Shares pursuant to such Holder's exercise of
its Over-Subscription Privilege.
ARTICLE 9: DELIVERY OF STOCK CERTIFICATES
9.1. As soon as practicable after the Expiration Date, the Agent shall deliver
to such exercising Subscription Rights holder certificates representing the
shares of Common Stock purchased pursuant to the Basic Subscription Privilege
and the Over-Subscription Privilege, if any.
ARTICLE 10: REPORTS
10.1 The Agent shall notify both the Company and its designated representatives
by telephone as requested during the period commencing with the mailing of
Subscription Documents and ending on the Expiration Date (and in the case of
guaranteed deliveries pursuant to Section 6.3 the period ending three OTC
trading days after the Expiration Date), which notice shall thereafter be
confirmed in writing, of (i) the number of Subscription Rights exercised on the
day of such request, (ii) the number of Underlying Shares subscribed for
pursuant to the Basic Subscription Privilege and the Over-Subscription
Privilege, if any, and the number of such Subscription Rights for which payment
has been received, (iii) the number of Subscription Rights subject to guaranteed
delivery pursuant to Section 6.3 on such day, (iv) the number of Subscription
Rights for which defective exercises have been received on such day and (v)
cumulative totals derived from the information set forth in clauses (i) through
(iv) above. At or before 5:00 p.m., New York City time, on the first OTC trading
day following the Expiration Date, the Agent shall certify in writing to the
Company the cumulative totals through the Expiration Date derived from the
information set forth in clauses (i) through (iv) above. The Agent shall also
maintain and update a listing of Holders who have fully or partially exercised
their Subscription Rights and Holders who have not exercised their Subscription
Rights. The Agent shall provide the Company or its designated representatives
with the information compiled pursuant to this Article 10 as any of them shall
request. The Agent hereby represents, warrants and agrees that the information
contained in each notification referred to in this Article 10 shall be accurate
in all material respects.
ARTICLE 11: LOSS OR MUTILATION
11.1 Upon receipt by the Company and the Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a
Subscription Certificate, and, in case of loss, theft or destruction, of
indemnity and/or security satisfactory to them, which may be in the form of an
open penalty bond, and reimbursement to the Company and the Agent of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Subscription Certificate if mutilated, the Company will make and deliver a
new Subscription Certificate of like tenor to the Agent for delivery to the
registered owner in lieu of the Subscription Certificate so lost, stolen,
destroyed or mutilated. If required by the Company or the Agent an indemnity
bond must be sufficient in the judgment of both to protect the Company, the
Agent or any agent thereof from any loss which any of them may suffer if a
Subscription Certificate is replaced.
ARTICLE 12: COMPENSATION FOR SERVICES
12.1 The Company agrees to pay to the Agent a fee in the amount of seven
thousand five hundred dollars ($7,500) as compensation for its services in
acting as Agent, plus postage fees incurred in the performance of Agent's duties
hereunder.
ARTICLE 13: INSTRUCTIONS AND INDEMNIFICATION
13.1 The Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any written instructions
or directions furnished to it by Xxxxxx X. XxXxxxxxx, the Company's Chairman and
Chief Executive Officer, Xxxxx X. Xxxxx, the Company's General Counsel, or
Xxxxxx X. Xxxx, the Company's Chief Financial Officer, or their designees (each,
an "Authorizing Person"), whether in conformity with the provisions of this
Agreement or constituting a modification hereof or a supplement hereto. Without
limiting the generality of the foregoing or any other provision of this
Agreement, the Agent, in connection with its duties hereunder, shall not be
under any duty or obligation to inquire into the validity or invalidity or
authority or lack thereof of any instruction or direction from an Authorizing
Person of the Company which conforms to the applicable requirements of this
Agreement and which the Agent reasonably believes to be genuine and shall not be
liable for any delays, errors or loss of data occurring by reason of
circumstances beyond the Agent's control.
(b) The Company also agrees to indemnify and hold the Agent harmless
against any losses, claims, actions, damages, liabilities, costs or expenses
(including reasonable fees and disbursements of legal counsel) (collectively,
"Claims") that the Agent may incur or become subject to, arising from or out of
any claim or liability resulting from actions taken as Agent pursuant to this
Agreement; PROVIDED, HOWEVER, that such covenant and agreement does not extend
to, and the Agent shall not be indemnified or held harmless with respect to,
such Claims incurred or suffered by the Agent as a result, or arising out, of
the Agent's negligence, misconduct, bad faith or breach of this Agreement. In
connection therewith: (i) in no case shall the Company be liable with respect to
any Claim against the Agent unless the Agent shall have notified the Company in
writing of the assertion of a Claim against it promptly after the Agent shall
have notice of a Claim or shall have been served with the summons or other legal
process giving information as to the nature and basis of the Claim; PROVIDED,
HOWEVER, that the failure of the Agent to notify the Company in the above manner
will absolve the Company of liability only when such failure will result or has
resulted in prejudice to the Company with respect to such claim; (ii) the
Company shall be entitled to control the defense of any suit brought to enforce
any such Claim; and (iii) the Agent agrees not to settle or compromise any Claim
with respect to which it may seek indemnification from the Company without the
prior written consent of the Company. In no event shall the Company be liable
for the fees and expenses of any additional counsel that the Agent may retain.
(c) The Agent shall be protected and shall incur no liability for or in respect
of any action taken, suffered or omitted by it without negligence and in good
faith in connection with its administration of this Agreement in reliance upon
any Subscription Certificate, or written power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other
paper or document reasonably believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged by the proper person or
persons.
ARTICLE 14: FUTURE INSTRUCTIONS AND INTERPRETATION
14.1 All questions as to the timeliness, validity, form and eligibility of any
exercise of Subscription Rights will be determined by the Company whose
determinations shall be final and binding. The Company in its sole discretion
may waive any defect or irregularity, permit a defect or irregularity to be
corrected within such time as it may determine or reject the purported exercise
of any Subscription Right. Subscriptions will not be deemed to have been
received or accepted until all irregularities have been waived or cured within
such time as the Company determines in its sole discretion. Neither the Company
nor the Agent shall be under any duty to give notification of any defect or
irregularity in connection with the submission of Subscription Documents or
incur any liability for failure to give such notification.
14.2 The Agent is hereby authorized and directed to accept written instructions
with respect to the performance of its duties hereunder from an authorized
officer of the Company, and to apply to such officers for written advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
written instructions of any such officer.
ARTICLE 15: PAYMENT OF TAXES
15.1 The Company covenants and agrees that it will pay when due and payable all
documentary, stamp and other taxes, if any, which may be payable in respect of
the issuance or delivery of any Subscription Certificate or of the Underlying
Shares; PROVIDED, HOWEVER, that the Company shall not be liable for any tax
liability arising out of any transaction which results in, or is deemed to be,
an exchange of Subscription Rights or shares or a constructive dividend with
respect to the Subscription Rights or shares, and PROVIDED FURTHER, that the
Company shall not be required to pay any tax or other governmental charge which
may be payable in respect of the issuance or delivery of certificates for shares
of Common Stock in name other than that of the registered Holder of such
Subscription Certificate evidencing the Subscription Rights exercised, and the
Agent shall not issue any such certificate until such tax or governmental
charge, if required, shall have been paid.
ARTICLE 16: CANCELLATION AND DESTRUCTION OF SUBSCRIPTION CERTIFICATES
16.1 All Subscription Certificates surrendered for the purpose of exercise,
exchange, or substitution shall be canceled by the Agent, and no Subscription
Certificates shall be issued in lieu thereof except as expressly permitted by
provisions of this Agreement. The Company shall deliver to the Agent for
cancellation and retirement, and the Agent shall so cancel and return, any other
Subscription Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Agent shall deliver all canceled Subscription
Certificates to the Company, or shall, at the written request of the Company,
destroy such canceled Subscription Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
ARTICLE 17: CHANGES IN SUBSCRIPTION CERTIFICATE
The Agent may, without the consent or concurrence of the Holders in whose names
Subscription Certificates are registered, by supplemental agreement or
otherwise, concur with the Company in making any changes or corrections in a
Subscription Certificate that it shall have been advised by counsel (who may be
counsel for the Company) is appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error therein or herein contained, and which shall not be inconsistent with the
provision of the Subscription Certificate except insofar as any such change may
confer additional rights upon the Holders.
ARTICLE 18: ASSIGNMENT AND DELEGATION
18.1 Neither this Agreement nor any rights or obligations hereunder may be
assigned or delegated by either party without the prior written consent
of the other party.
18.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns. Nothing in this
Agreement is intended or shall be construed to confer upon any other person any
right, remedy or claim or to impose upon any other person any duty, liability or
obligation.
ARTICLE 19: NOTICES TO THE COMPANY, HOLDERS AND AGENT.
19.1 All notices and other communications provided for or permitted hereunder
shall be made by hand delivery, prepaid certified first-class mail (return
receipt requested), or telecopier (with written confirmation of receipt):
(a) if to the Company, to:
PurchaseSoft, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Exchange Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to a Holder, at the address shown on the registry books of
the Company.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when by certified mail, two
business days after being deposited in the mail, postage prepaid, if mailed as
aforesaid; and when receipt is acknowledged, if telecopied.
ARTICLE 20: MISCELLANEOUS PROVISIONS
20.1 GOVERNING LAW. The validity, interpretation and performance of this
Agreement shall be governed by the law of the Commonwealth of Massachusetts,
without regard to its principles of conflicts of law. The parties agree that
with respect to all unresolved disputes arising out of this Agreement they shall
submit to the jurisdiction of any state or federal court sitting in Boston,
Massachusetts.
20.2 SEVERABILITY. The parties hereto agree that if any of the provisions
contained in this Agreement shall be determined invalid, unlawful or
unenforceable to any extent, such provisions shall be deemed modified to the
extent necessary to render such provisions enforceable. The parties hereto
further agree that this Agreement shall be deemed severable, and the invalidity,
unlawfulness or unenforceability of any term or provision thereof shall not
affect the validity, legality or enforceability of this Agreement or of any term
or provision hereof.
20.3 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
20.4 CAPTIONS. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
20.5 FACSIMILE SIGNATURES. Any facsimile signature of any party hereto shall
constitute a legal, valid and binding execution hereof by such party.
20.6 FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are
necessary to effect the purposes of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals, as of the day and year first above written.
PURCHASESOFT, INC.
By:
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Xxxxxx X. Xxxx, Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
Title:
