EXHIBIT 10.6
INVESTOR PURCHASE AGREEMENT
THIS AGREEMENT is made as of August 14, 1996, by and among
GLOBAL IMAGING SYSTEMS INC., a Delaware corporation (the "Company"), and XXXXXXX
NATIONAL LIFE INSURANCE COMPANY, a Michigan life insurance company (the
"Purchaser"). Except as otherwise indicated, capitalized terms used herein are
defined in Section 7 hereof.
The parties hereto agree as follows:
1. Authorization of Common Stock. The Company has authorized
the issuance and sale to the Purchaser of (i) 27,083.33 shares of its Class A
Common Stock, $.01 par value purchase (the "Class A Common Stock") and (ii)
4,802.52 shares of its Class C Common Stock, $.01 par value per share the "Class
C Common Stock"), having the rights and preferences set forth in the Company's
Charter (as defined in Section 3B below) attached hereto. The Class A Common
Stock and the Class C Common Stock purchased hereunder by Purchaser are
collectively referred to as the "Xxxxxxx Stock").
2. Purchase and Sale of the Stock. The parties will execute
and deliver counterparts of this Agreement, Amendment No. 3 to Registration
Agreement and Amendment No. 2 to Stockholders Agreement (as defined in Sections
3D and 3E below) on or about before the Closing (as hereinafter defined). The
purchase of the Xxxxxxx Stock by the Purchaser will occur at a closing
("Closing") to be held on a date mutually satisfactory to the Purchaser and the
Company not later than August 31, 1996. At the Closing, the Company will sell to
the Purchaser and, subject to the terms and conditions set forth herein, the
Purchaser will purchase from the Company 27,083.33 shares of Class A Common
Stock at a price of $90.00 per share and 4,802.52 shares of Class C Common Stock
at a price of $13.014 per share (in the aggregate, a total purchase price of
$2,500,000.00). The Closing of the purchase and sale of the Xxxxxxx Stock will
be effected by exchange of documents, certificates and agreements, by air
courier, facsimile transmission or other means satisfactory to the parties. At
the Closing, the Company will issue and deliver to the Purchaser certificates
evidencing the Class A Common Stock and the Class C Common Stock to be purchased
by the Purchaser, registered in Purchaser's name, against payment of the
purchase price therefor by check or wire transfer of funds in the amount set
forth in this Section 2.
3. Conditions of the Purchaser's Obligations at the Closing.
The obligation of the Purchaser to purchase and pay for the Xxxxxxx Stock at the
Closing is subject to the satisfaction as of the Closing of the following
conditions:
3A. Representations and Warranties. The representations and
warranties contained in Section 6 hereof will be true and correct at and as of
the Closing as though then made, except to the extent of changes caused by the
transactions expressly contemplated herein.
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3B. Certificate of Incorporation. The Company's Amended and
Restated Certificate of Incorporation in the form of Exhibit A (the "Charter"),
as so filed will be in full force and effect at the Closing and will not have
been further amended or modified.
3C. Equity Purchase Agreement. The Equity Purchase Agreement
dated June 9, 1994 (the "Equity Purchase Agreement") among the Company, Golder,
Thoma, Xxxxxxx, Xxxxxx Fund IV Limited Partnership ("GTCR IV") and Xxxxxx X.
Xxxxxxx, as amended by Amendment No. 1, will be in full force and effect as of
the Closing.
3D. Registration Agreement. The Company, the Purchaser and
certain other parties to the Registration Agreement will have entered into an
amendment to the Registration Agreement, in form and substance substantially
similar to Exhibit B attached hereto ("Amendment No. 3 to Registration
Agreement"), and the Registration Agreement will be in full force and effect as
of the Closing.
3E. Stockholders Agreement. The Company, the Purchaser and
certain other parties to the Stockholders Agreement will have entered into an
amendment to the Stockholders Agreement in form and substance substantially
similar to Exhibit C attached hereto ("Amendment No. 2 to Stockholders
Agreement"), and the Stockholders Agreement will be in full force and effect as
of the Closing.
3F. Closing Documents. The Company will have delivered to the
Purchaser all of the following documents:
(i) an Officer's Certificate, dated the date of the
Closing, stating that the conditions specified in Sections 3A through
3E, inclusive, have been fully satisfied;
(ii) certified copies of the resolutions duly adopted by
the Company's Board of Directors authorizing the execution, delivery
and performance of this Agreement, Amendment No. 3 to Registration
Agreement, Amendment No. 2 to Stockholders Agreement, and each of the
other agreements contemplated hereby, the filing of the Charter
referred to in Section 3A, the issuance and sale of the Xxxxxxx Stock,
and the consummation of all other transactions contemplated by this
Agreement;
(iii) certified copies of the Charter and the Company's
bylaws, each as in effect at the Closing; and
(iv) such other documents relating to the transactions
contemplated by this Agreement as the Purchaser may reasonably
request.
3G. Proceedings. All corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated hereby to
be consummated at or prior to the Closing and all documents incident thereto
will be satisfactory in form and substance to the Purchaser.
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4. Covenants. Except as otherwise provided herein, prior to a
Qualified Public Offering:
4A. Financial Statements and Other Information. The Company
will deliver to the Purchaser (so long as the Purchaser holds any of the
Common Stock):
(i) as soon as available and in any event within thirty
(30) days after the end of each quarter, unaudited quarterly
consolidated and consolidating statements of income and changes in
consolidated financial position of the Company and its Subsidiaries
for such fiscal quarter and for the period from the beginning of the
fiscal year to the end of such quarter, and balance sheets of the
Company and its Subsidiaries as of the end of such quarterly period;
(ii) as soon as available and in any event within ninety
(90) days after the end of each fiscal year, consolidating and
consolidated statements of income and consolidated statements of
changes in financial position of the Company and its Subsidiaries for
each fiscal year and consolidating and consolidated balance sheets of
the Company and its Subsidiaries as of the end of such fiscal year,
accompanied by an opinion of a "Big Six" or other independent
accounting firm of recognized national standing acceptable to the
Purchaser and a copy of such firm's annual management letter to the
Board of Directors;
(iii) together with each delivery of financial statements
set forth in subsection 4A(i) and (ii) above, a management report
describing the operations and financial condition of the Company and
its Subsidiaries for the quarter then ended and the portion of the
current year then elapsed (or for the fiscal year then ended in the
case of year-end financials);
(iv) promptly, a notice of any change or expected change
in the corporate management of the Company;
(v) promptly, of its intention to enter into any
material contracts pursuant to which the Company shall incur material
debt;
(vi) any additional reports or other information
concerning the Company as the Board of Directors may from time to time
prescribe; and
(vii) with reasonable promptness, such other information
and financial data concerning the Company and its Subsidiaries as
Purchaser reasonably requests.
4B. Meeting of Directors. There will be at least four meetings
of the Company's Board of Directors during each fiscal year, at least one of
which will be held in each 90-day period during the Company's fiscal year.
Pursuant to the terms of the Stockholders Agreement, the number of directors on
the Board shall initially be established at five directors and one
representative designated by Purchaser shall be elected to such Board. The
Company will give Purchaser notice of each meeting of its Board at the same time
and in the same manner
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as notice is given to the directors, and the Company shall permit one individual
designated by Purchaser to attend as observer all meetings of its Board;
provided, however, in the event the Purchaser's representative director is
unable to attend the Board meeting, two individuals designated by Purchaser
shall be invited to attend as observers of such meeting.
4C. Common Stock Restrictions. So long as there is a Qualified
Holder, the Company will not, without the prior consent of each Qualified
Holder:
(i) directly or indirectly declare or pay any dividends
or make any distributions upon any of its equity securities unless
such dividend or distribution is also distributed, pro rata, to the
holders of Common Stock based on their respective interests as
provided in the Charter;
(ii) issue or enter into any agreement providing for the
issuance (contingent or otherwise) of equity securities that are
senior to or on parity with the Class C Common Stock, Class A Common
Stock or the Class B Common Stock;
(iii) become subject to, or permit any of its Subsidiaries
to become subject to, any agreement or instrument, which by its terms
would (under any circumstances) restrict the Company's right to
perform any of its obligations pursuant to the terms of this
Agreement, the Registration Agreement, the Stockholders Agreement, the
Charter or the Company's bylaws; or
(iv) except as contemplated by this Agreement or the
Stockholders Agreement, make any amendment to the Charter or the
Company's bylaws, or file any resolution of the Board of Directors
with the Delaware Secretary of State containing any provisions, which
would adversely affect or otherwise impair the rights of the holders
of the Class A or Class C Common Stock under this Agreement, the
Registration Agreement, the Stockholders Agreement, the Charter or the
Company's bylaws.
4D. Negative Covenants. So long as there is a Qualified
Holder, the Company will not, without the prior consent of each Qualified
Holder;
(i) except as otherwise provided in the Stockholders
Agreement, merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person (other than (i) a
merger whereby the Company shall become the owner of more than 50% of
the voting power of such Person or (ii) merger between the Company and
a wholly-owned Subsidiary; (but only if the Company is the surviving
corporation and its certificate of incorporation is not amended or
modified thereby) or between wholly-owned Subsidiaries);
(ii) except as otherwise provided in the Stockholders
Agreement, sell, lease or otherwise dispose of, or permit any
subsidiary to sell, lease or otherwise dispose of substantially all of
the Company's consolidated assets in any transaction or series of
related transactions (other than sales in the ordinary course of
business).
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(iii) except as otherwise provided in the Stockholders
Agreement, liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction;
(iv) enter into or permit a Subsidiary to enter into any
transaction with GTCR or any Affiliate of GTCR (other than the Company
and its Subsidiaries) except in the ordinary course of business and in
an arm's length transaction; or
(v) change the nature of its business;
(vi) issue or sell any shares of the capital stock, or
rights to acquire shares of the capital stock, of any Subsidiary to
any Person other than the Company or another Subsidiary.
4E. Affirmative Covenants. So long as there is a Qualified
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Holder, unless otherwise consented to by each Qualified Holder, the Company
will, and will cause each Subsidiary to:
(i) at all times cause to be done all things necessary
to maintain, preserve and renew its corporate existence and all
material licenses, authorizations and permits necessary to the conduct
of its businesses;
(ii) maintain and keep its properties in good repair,
working order and condition (ordinary wear and tear excepted), and
from time to time make all necessary or desirable repairs, renewals
and replacements, so that its businesses may be properly and
advantageously conducted at all times in all material respects;
(iii) pay and discharge when payable all taxes,
assessments and governmental charges imposed upon its properties or
upon the income or profits therefrom (in each case before the same
becomes delinquent and before penalties accrue thereon) and all claims
for labor, materials or supplies which if unpaid might by law become a
lien upon any of its properties, unless and to the extent that the
same are being contested in good faith;
(iv) comply with all other material provisions of any
material contract or agreement to which it is a party or by which it
is bound, whether oral or written, express or implied, and pay all
material obligations which it has incurred or may incur pursuant to
any such contract or agreement as such obligations become due, unless
and to the extent that the same are being contested in good faith;
(v) comply with all applicable laws, rules and
regulations of all governmental authorities, the violation of which
might reasonably be expected to have a material adverse effect upon
the financial condition, operations or business prospects of the
Company or any Subsidiary;
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(vi) apply for and continue in force with good and
reputable insurance companies adequate insurance covering risks of
such types and in such amounts as are customary for well-insured
corporations of similar size engaged in similar lines of business;
(vii) make all required filings under the Xxxx-Xxxxx-
Xxxxxx Act for all acquisitions by the Company or any Subsidiary; and
(viii) maintain proper books of record and account which
fairly present its financial condition and results of operations and
make provisions on its financial statements for all such proper
reserves as in each case are required in accordance with generally
accepted accounting principles, consistently applied.
4F. Registration of Transfer. The Company will keep at its
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principal office (or such other place as the Company reasonably designates) a
register for the registration of stock. Upon the surrender of any certificate
representing shares of Common Stock at such place, the Company will, at the
request of the registered holder of such certificate and subject to the
restrictions on transfer set forth in this Agreement, execute and deliver a new
certificate or certificates in exchange therefor representing the number of
shares of Common Stock represented by the surrendered certificate, and the
Company forthwith will cancel such surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
shares of Common Stock as is requested by the holder of the surrendered
certificate and will be substantially identical in form to the surrendered
certificate. The issuance of new certificates will be made without charge to the
holders of the surrendered certificates for any issuance tax in respect thereof
or other costs incurred by the Company in connection with such issuance.
4G. Financial Statements. Notwithstanding anything herein to
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the contrary, the obligation of the Company to deliver the financial statements
and reports set forth in subsection 4A(i), (ii) and (iii) above shall continue
until such time as all of the Common Stock of the Purchaser is registered under
the Securities Act and the Company has an obligation to provide such financial
information to the Purchaser pursuant to the Securities Exchange Act.
5. Transfer of Restricted Securities.
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(i) Restricted Securities are transferable pursuant to
(a) public offerings registered under the Securities Act, (b) Rule 144
or Rule 144A of the Securities and Exchange Commission (or any similar
rule then in force) if such rule is available and (c) subject to the
conditions specified in subparagraph (ii) below, any other legally
available means of transfer.
(ii) In connection with the transfer of any Restricted
Securities (other than a transfer described in subparagraph 5(i)(a) or
b above), the holder thereof will deliver written notice to the
Company describing the transfer or proposed transfer, together with an
opinion of counsel which (to the Company's reasonable satisfaction) is
knowledgeable in securities law matters to the effect that such
transfer of Restricted
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Securities may be effected without registration of such Restricted
Securities under the Securities Act. In addition, if the holder of the
Restricted Securities delivers to the Company an opinion of counsel
that no subsequent transfer of such Restricted Securities will require
registration under the Securities Act, the Company will promptly upon
such contemplated transfer deliver new certificates for such
Restricted Securities which do not bear the Securities Act legend set
forth in Section 8C. If the Company is not required to deliver such
new certificates for such Restricted Securities not bearing such
legend, the holder thereof will not transfer the same until the
prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this paragraph.
(iii) Upon the request of the Purchaser, the Company shall
promptly supply to the Purchaser or its prospective transferees all
information regarding the Company required to be delivered in
connection with a transfer pursuant to Rule 144A of the Securities and
Exchange Commission.
6. Representations and Warranties of the Company. As a
material inducement to the Purchaser to enter into this Agreement and purchase
the Xxxxxxx Stock, the Company hereby represents and warrants that:
6A. Organization and Corporate Power. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to do business in every jurisdiction
in which the failure so to qualify might reasonably be expected to have a
material adverse effect on the financial condition, operating results or
business prospects of the Company. The Company has all requisite corporate power
and authority and all material licenses, permits and authorizations necessary to
own and operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement. The copies of the Company's Charter and bylaws
that have been furnished to the Purchaser reflect all amendments made thereto at
any time prior to the date of this Agreement and are correct and complete.
6B. Capital Stock and Related Matters.
(i) As of the Closing and immediately thereafter, the
authorized capital stock of the Company consists of (a) 300,000 shares
of Class A Common Stock, of which 202,608.841 shares are issued and
outstanding, (b) 350,000 shares of Class B Common Stock, of which
62,048.345 shares are issued and outstanding, and 1,961 shares will be
reserved for issuance to employees, officers and directors of the
Company not affiliated with GTCR, and (c) 350,000 shares of Class C
Common Stock of which 4,802.5 shares are issued and outstanding. As of
the Closing: (i) the Class A Common Stock purchased by Purchaser
hereunder constitutes ten (10%) percent of all of the outstanding
shares of the Class A Common Stock on a fully diluted basis; (ii) the
Class C Common Stock purchased by Purchaser hereunder constitutes one
hundred (100%) percent of all of the outstanding shares of the Class C
Common Stock on a fully diluted basis and such stock would constitute,
if immediately converted into Class B Common Stock, ten (10%) of the
Class B Common Stock on a fully diluted basis; and (iii) the
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Xxxxxxx Stock constitutes ten (10%) percent of the capital stock of the
Company on a fully diluted basis. As of the Closing, the Company will
not have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock, nor will it have
outstanding any rights or options to subscribe for or to purchase its
capital stock or any stock or securities convertible into or
exchangeable for its capital stock. As of the Closing, the Company will
not be subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital
stock, except pursuant to its Charter, this Agreement, the Stockholders
Agreement and the Executive Agreements. As of the Closing, all of the
outstanding shares of the Company's capital stock will be validly
issued, fully paid and nonassessable.
(ii) There are no statutory or contractual
stockholders preemptive rights with respect to the issuance of the
Xxxxxxx Stock hereunder. Based in part on the investment
representations of the Purchaser in Section 8C, the Company has not
violated any applicable federal or state securities laws in connection
with the offer, sale or issuance of the Xxxxxxx Stock hereunder and the
offer, sale and issuance of the Xxxxxxx Stock hereunder do not require
registration under the Securities Act or any applicable state
securities laws. To the best of the Company's knowledge, there are no
agreements among the Company's stockholders with respect to the voting
or transfer of the Company's capital stock or with respect to any other
aspect of the Company's affairs other than the Xxxxxxx Credit
Agreement, Equity Purchase Agreement, the Registration Agreement, the
Executive Agreements and the Stockholders Agreement.
6C. Authorization: No Breach. The execution, delivery and
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performance of this Agreement, Amendment No. 3 to Registration Agreement,
Amendment No. 2 to Stockholders Agreement, the Charter and all other agreements
and transactions contemplated hereby to which the Company is a party have been
duly authorized by the Company. This Agreement, Amendment No. 3 to Registration
Agreement, Amendment No. 2 to Stockholders Agreement, the Charter and all other
agreements contemplated hereby each constitutes a valid and binding obligation
of the Company, enforceable in accordance with its terms. The execution and
delivery by the Company of this Agreement, Amendment No. 3 to Registration
Agreement, Amendment No. 2 to Stockholders Agreement and all other agreements
and transactions contemplated hereby to which the Company is a party, the
offering, sale and issuance of the Xxxxxxx Stock hereunder, and fulfillment of
and compliance with the respective terms hereof and thereof by the Company, do
not and will not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii) result in
the creation of any lien, security interest, charge or encumbrance upon the
Company's capital stock or assets pursuant to, (iv) give any third party the
right to accelerate any obligation under, (v) result in a violation of, or (vi)
require any authorization, consent, approval, exemption or other action by or
notice to any court or administrative or governmental body pursuant to, the
Charter or bylaws of the Company, or any law, statute, rule or regulation to
which the Company is subject, or any agreement, instrument, order, judgment or
decree to which the Company is a party or by which it is bound.
6D. Tax Matters. The Company has filed all tax returns which
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it is required to file; all such returns are true and correct in all material
respects; the Company has in all
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material respects paid all taxes owed by it or which it is obligated to withhold
from amounts owing to any employee, creditor or third party; the Company has not
waived any statute of limitations with respect to taxes or agreed to any
extension of time with respect to a tax assessment or deficiency; the assessment
of any additional taxes for periods for which returns have been filed is not
expected; and there are no material unresolved questions or claims concerning
the Company's tax liability. The Company has not made an election under Section
341(f) of the Internal Revenue Code of 1986, as amended (the "Code").
6E. Litigation, etc. There are no actions, suits, proceedings,
---------------
orders, investigations or claims pending or, to the best of the Company's
knowledge, threatened against or affecting the Company at law or in equity, or
before or by any governmental department, commission, board, bureau, agency or
instrumentality; the Company is not subject to any arbitration proceedings under
collective bargaining agreements or otherwise or, to the best of the Company's
knowledge, any material governmental investigations or inquiries (including
inquiries as to the qualification to hold or receive any license or permit);
and, to the best of the Company's knowledge, there is no basis for any of the
foregoing. The Company has not received any opinion or memorandum or legal
advice from legal counsel to the effect that it is exposed, from a legal
standpoint, to any liability or disadvantage which may be material to its
business.
6F. Brokerage. Except for the fees of Green Xxxxxxx & Bunch,
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there are no claims against the Company for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon the Company. The
Company will pay, and hold the Purchaser harmless against, any liability, loss
or expense (including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
6G. Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the other agreements contemplated hereby, or the
consummation by the Company of any other transaction contemplated hereby or
thereby.
6H. ERISA. The Company does not presently maintain or
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contribute to, nor has ever maintained or contributed to, any "employee benefit
plan," as such term is defined in Section 3 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), with respect to which the Company is
required to file Internal Revenue Service ("IRS") Form 5500, and the Company
does not presently contribute to nor ever has contributed to any "multi-employer
plan," as such term is defined in Section 3 of ERISA.
6I. Compliance with Laws. The Company is not in violation of
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any law or any regulation or requirement which violation might reasonably be
expected to have a material adverse effect upon the financial condition,
operating results or business prospects of the Company and the Company has not
received notice of any such violation.
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6J. Disclosure. Neither this Agreement nor any of the
schedules, attachments, written statements, documents, certificates or other
items prepared or supplied to the Purchaser by or on behalf of the Company with
respect to the transactions contemplated hereby contains any untrue statement of
a material fact or omits a material fact necessary to make each statement
contained herein or therein not misleading. There is no fact which the Company
has not disclosed to the Purchaser in writing and of which any of its officers,
directors or executive employees is aware and which could reasonably be
anticipated to have a material adverse effect upon the existing or expected
financial condition, operating results, assets, customer relations, employee
relations or business prospects of the Company.
6K. Closing Date. The representations and warranties of the
Company contained in this Section 6 and elsewhere in this Agreement and all
information contained in any exhibit, schedule or attachment hereto or in any
writing delivered by, or on behalf of, the Company to any Purchaser will be true
and correct in all material respects on the date of the Closing as though then
made, except as affected by the transactions expressly contemplated by this
Agreement.
7. Definitions. For the purposes of this Agreement, the
following terms have the meanings set forth below:
"Affiliates" shall have the meaning set forth in Rule 405
of the Securities Act.
"Class A Common Stock" shall mean the authorized and
issued Class A common stock of the Company.
"Class B Common Stock" shall mean the authorized and
issued Class B common stock of the Company.
"Class C Common Stock" shall mean the authorized and
issued Class C Common Stock of the Company.
"Common Stock" shall mean the capital stock of the Company
consisting of the Class A, B and C Common Stock.
"Executive Agreements" shall mean those certain executive
agreements with Xxxxxxx, Xxxxxxx Xxxxxxxxx and other principal executives of the
Company pursuant to which such executives will purchase up to an aggregate of
8,823.5 shares of Class B Common (as adjusted from time to time for any stock
splits, stock dividends, recombinations, mergers, recapitalizations,
reclassifications or any similar event).
"GTCR" means Golder, Thoma, Cressey, Rauner, Inc.
"Xxxxxxx Credit Agreement" means the Credit Agreement
dated as of August 14, 1996 among the Company, its Subsidiaries, the Purchaser
and PPM America, Inc., as Agent.
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"Officer's Certificate" means a certificate signed by the
Company's president or its chief financial officer, stating that (i) the officer
signing such certificate has made or has caused to be made such investigations
as are necessary in order to permit him to verify the accuracy of the
information set forth in such certificate and (ii) to the best of such officer's
knowledge, such certificate does not misstate any material fact and does not
omit to state any fact necessary to make the certificate not misleading.
"Person" means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
"Qualified Holder" means the Purchaser (together with its
successors and its Affiliates) provided the Purchaser owns at least 50% of the
outstanding shares of Class C Common Stock issued to Purchaser pursuant to this
Agreement.
"Qualified Public Offering" has the meaning assigned to
such term in the Stockholders Agreement.
"Registration Agreement" means the Registration Agreement
dated as of June 9, 1994 by and among the Company and each of its stockholders,
as amended by Amendment Nos. 1, 2 and 3.
"Restricted Securities" means the Xxxxxxx Stock issued
hereunder, and any securities issued with respect thereto by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Restricted Securities, such securities will cease to be Restricted
Securities when they have (a) been effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
(b) become eligible for sale and have actually been sold to the public pursuant
to Rule 144 or rule 144A (or any similar provision then in force) under the
Securities Act or (c) been otherwise transferred and new certificates for them
not bearing the Securities Act legend set forth in Section 8C have been
delivered by the Company in accordance with paragraph 5(ii). Whenever any
particular securities cease to be Restricted Securities, the holder thereof will
be entitled to receive from the Company, without expense, new securities of like
tenor not bearing a Securities Act legend of the character set forth in Section
8C.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar federal law then in force.
"Securities Exchange Act" means the Securities Exchange
Act of 1934, as amended, or any similar federal law then in force.
"Stockholders Agreement" means the Stockholders Agreement
dated as of June 9, 1994 by and among the Company and each of its stockholders,
as amended by Amendment Nos. 1 and 2.
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"Subsidiary" means any corporation of which the securities
having a majority of the ordinary voting power in electing the board of
directors are, at the time as of which any determination is being made, owned by
the Company either directly or through one or more Subsidiaries.
8. Miscellaneous.
8A. Expenses. The Company agrees to pay, and hold the
Purchaser harmless against liability for the payment of, (i) the reasonable fees
and expenses of their counsel arising in connection with the negotiation,
execution and consummation of the transactions contemplated by this Agreement,
(ii) reasonable fees and expenses incurred with respect to any amendments or
waivers (whether or not the same become effective) under or in respect of this
Agreement, the agreements contemplated hereby or the Charter, (iii) stamp and
other taxes which may be payable in respect of the execution and delivery of
this Agreement or the issuance, delivery or acquisition of any shares of Class C
Common Stock issued hereunder, and (iv) reasonable fees and expenses incurred in
respect of the enforcement of the rights granted under this Agreement, the
agreements contemplated hereby and the Charter.
8B. Remedies. The Purchaser will have all rights and remedies
set forth in this Agreement and the Charter and all rights and remedies which
the Purchaser has been granted at any time under any other agreement or contract
and all of the rights the Purchaser has under any law. Any Person having any
rights under any provision of this Agreement will be entitled to enforce such
rights specifically, to recover damages by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law.
8C. Purchaser's Investment Representations. Purchaser hereby
represents that it is acquiring the Restricted Securities purchased hereunder or
acquired pursuant hereto for its own account with the present intention of
holding such securities for purposes of investment, that it is an Accredited
Investor as that term is defined in Rule 501 under the Securities Act and that
it has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws; provided that nothing contained herein will prevent Purchaser and
subsequent holders of Restricted Securities from transferring such securities in
compliance with the provisions of Section 5 hereof. Each certificate for
Restricted Securities will be imprinted with a legend in substantially the
following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
transfer of the securities represented by this certificate is
subject to the conditions specified in the Investor Purchase
Agreement, dated as of August 14, 1996, by and between the
issuer (the "Company") and Xxxxxxx National Life Insurance
Company, and the Company reserves the right to refuse the
transfer of such securities until such conditions have been
fulfilled with respect to such transfer. A copy of such
conditions will be furnished by the Company to the holder
hereof upon written request and without charge.
-12-
8D. Amendment and Waiver. Except as otherwise expressly
--------------------
provided herein, the provisions of this Agreement may be amended or modified
only by written agreement of the Company and the Purchaser. No other course of
dealing between the parties or third-party beneficiaries hereof or any delay in
exercising any rights hereunder shall operate as a waiver of any rights of any
such parties.
8E. Survival of Representations and Warranties. All
------------------------------------------
representations and warranties contained herein or made in writing by any party
in connection herewith will survive the execution and delivery of this
Agreement, regardless of any investigation made by the Purchaser or on its
behalf.
8F. Successors and Assigns. Except as otherwise expressly
----------------------
provided herein or in any instruments of transfer or assignment, all covenants
and agreements contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In addition, and
whether or not any express assignment has been made, the provisions of this
Agreement which are for the Purchaser's benefit as a purchaser or holder of
Common Stock are also for the benefit of, and enforceable by, any subsequent
holder of such Common Stock.
8G. Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
8H. Counterparts. This Agreement may be executed
------------
simultaneously in counterparts, both of which need not contain the signatures of
more than one party, but both such counterparts taken together will constitute
one and the same Agreement.
8I. Descriptive Headings. The descriptive headings of this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
8J. Governing Law. The corporate law of Delaware will govern
-------------
all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement and the exhibits and schedules hereto will be governed by the
internal law, and not the law of conflicts, of New York.
8K. Notices. All notices, demands or other communications to
-------
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, or sent by telex or facsimile transmission, or sent by receipted air
courier, or mailed by certified or registered mail, return receipt requested and
postage prepaid, to the recipient. Such notices, demands and other
communications will be sent to the Company and the Purchaser at the address
indicated below:
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Notice to the Company:
Global Imaging Systems Inc.
X.X. Xxx 000000
Xxxxx, XX 00000-0000
Attention: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Notice to the Purchaser:
Xxxxxxx National Life Insurance Company
c/o PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Private Placements
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx
0000 Xxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
8L. Xxxx-Xxxxx-Xxxxxx Compliance. In connection with any
transaction in which the Company is involved which is required to be reported
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended from
time to time (the "HSR Act"), the Company shall prepare and file all documents
with the Federal Trade Commission and the United States Department of Justice
which may be required to comply with the HSR Act, and shall promptly furnish all
materials thereafter requested by any of the regulatory agencies having
jurisdiction over such filings, in connection with the transactions contemplated
thereby. The Company shall take all reasonable actions and shall file and use
reasonable best efforts to have declared effective or approved all documents and
notifications with any governmental or regulatory bodies, as may be necessary or
may reasonably be requested under federal antitrust laws for the consummation of
the subject transaction.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
GLOBAL IMAGING SYSTEMS INC.
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxxx, Vice President
and Chief Financial Officer
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM AMERICA, INC., Attorney-in-Fact
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Xxxxxxxx Xxxxx
Vice President
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