Exhibit 10.7
PUT AND CALL AGREEMENT
This Put and Call Agreement (this "Agreement") is made as of December
__, 2002, by and among WARP TECHNOLOGY HOLDINGS, INC., Inc., a Nevada
corporation (the "Company"), 6043577 Canada Inc., a Canadian corporation
("Newco") and all of the Shareholders of Spider Software Inc. as identified in
Schedule "A" hereto (the "Shareholder").
RECITALS
A. The Company, Newco and the Shareholders intend to execute a share exchange
agreement (the "Share Exchange Agreement") as of even date herewith.
B. The execution of this Agreement is a condition of the Shareholder's
obligations under the Share Exchange Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties hereto hereby agree as follows:
ARTICLE 1 - PUT OPTIONS
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1.01 Put Option
Each Shareholder shall have the option, exercisable at any time, to sell to the
Company all, but not less than all, of the Newco Preferred Shares held by it
(the "Put Option" and the Newco Preferred Shares which are the subject of a Put
Option are called "Put Shares").
1.02 Put Notice
If any Shareholder wishes to exercise the Put Option, that Shareholder shall
deliver to the Company a notice (the "Put Notice") which must:
(1) indicate whether the Shareholder is exercising the Put Option
set out in section 1.01;
(2) stipulate the time, the date and the place of completion of
the purchase of the Shareholder's shares which, in any event,
shall not be longer than three (3) business days after the
date of the Put Notice; and
(3) be executed by the Shareholder.
Promptly after a Put Notice is delivered to the Company (and in any event no
later than one business day thereafter), the Company will duly execute the Put
Notice acknowledging the terms thereof and the Company will deliver the Put
Notice to the Shareholder.
1.03 Price
The aggregate price for each Put Share shall be one (1) share of the common
stock of WARP Technology Holdings, Inc. ("WARP Common Stock")
1.04 Closing
Upon a Put Notice being delivered, a binding contract of purchase and sale for
the Put Shares will be formed between the Company and the Shareholder. The
purchase and sale of the Put Shares will take place at the offices of [<*F06C>]
at 10:00 a.m. three (3) business days after the Put Notice has been delivered,
or at such other time and place as the Company and the Shareholder agree upon
orally or in writing (which time and place are designated the "Put Closing"). At
the Put Closing, the Shareholder shall deliver to the Company a certificate
representing the Put Shares that the Company is purchasing against payment of
the purchase price therefor by the issuance to the Shareholder by the Company of
a certificate representing the requisite number of shares of WARP Common Stock,
as determined under paragraph 1.03 above.
ARTICLE 2 - THE COMPANY CALL OPTION
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2.01 Call Option
The Company shall have the option (the "Call Option") exercisable at any time
after three (3) years from the date of this Agreement to purchase from any
Shareholder all, but not less than all, of the Newco Preferred Shares held by
that Shareholder (the "Call Shares").
2.02 Call Notice
If the Company wishes to exercise the Call Option, it shall deliver to the
Shareholder a notice (the "Call Notice") which must:
(1) indicate that the Company is exercising its Call Option;
(2) stipulate the time, the date and the place of completion of
the purchase of Call Shares which, in any event, shall not be
longer than three (3) business days after the date of the Call
Notice; and
(3) be executed by the Company.
Promptly after a Call Notice is delivered to the Shareholder (and in any event
no later than one business day thereafter), the Shareholder will duly execute
the Call Notice acknowledging the terms thereof and the Shareholder will deliver
the Call Notice to the Company.
2.03 Price
The aggregate price for each Call Share shall be one (1) share of Warp Common
Stock.
2.04 Closing
Upon a Call Notice being delivered, a binding contract of purchase and sale for
the Call Shares will be formed between the Company and the Shareholder. The
purchase and sale of the Call Shares will take place at the offices of [o]
at 10:00 a.m. three (3) business days after the Call Notice has been delivered,
or at such other time and place as the Company and the Shareholder
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agree upon orally or in writing (which time and place are designated the "Call
Closing"). At the Call Closing, the Shareholder shall deliver to the Company
certificate(s) representing the Call Shares that the Company is purchasing
against payment of the purchase price therefor by the issuance by the Company to
the Shareholder of a certificate representing the requisite number of shares of
WARP Common Stock, as determined under paragraph 2.03 above.
ARTICLE 3 - MISCELLANEOUS
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3.01 Definitions
All capitalized terms used but not defined herein shall have the meanings set
forth in the Share Exchange Agreement.
3.02 Successors and Assigns
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any Newco Preferred Shares).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.03 Positive Covenant
Newco shall, and the Company shall cause Newco to, maintain itself as a
corporation validly existing and in good standing under the laws of Canada.
3.04 Negative Covenant
Each Shareholder understands that the Newco Preferred Shares and all WARP Common
Stock received by such Shareholder pursuant to this Agreement may not be
transferred, encumbered, sold, hypothecated, or otherwise disposed of unless
such transfer or other disposition has been registered under the Securities Act
of 1933 or, in the opinion of counsel reasonably satisfactory to the Company, is
exempt from registration under that Act, and has been registered or qualified
or, in the opinion of such counsel, is exempt from registration or qualification
under applicable provincial securities laws. Such Seller understands that the
Company is under no obligation to register or seek an exemption under the United
States federal securities laws, Canadian securities laws, state securities laws,
provincial securities laws or any other securities laws or to cause or permit
the Newco Preferred Shares or WARP Common Stock to be transferred in the absence
of any such registration or exemption.
3.05 Notice of Company and Stockholder Matters
The Company shall provide the Shareholders (in the same manner as if the
Shareholders were holders of Common stock) with:
(a) any notice of any meeting of the Company's stockholders; and
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(b) any other notice provided to holders of Common stock.
3.06 Legending of Securities.
Each certificate of Newco Preferred Stock and/or WARP Common Stock to be issued
to the Shareholders pursuant to this Agreement shall bear substantially the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR ANY STATE SECURITIES LAWS. THESE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT OR LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT, IN THE CIRCUMSTANCES, REQUIRED UNDER SAID ACT".
3.07 Specific Performance
The Company and Newco recognize that the rights of the Shareholders under this
Agreement are unique and, accordingly, the Shareholders will, in addition to
such other remedies available to them at law or in equity, have the right to
enforce their rights under this Agreement by actions for injunctive relief and
specific performance to the extent permitted by law. This Agreement is not
intended to limit or abridge any rights of the Shareholders that exist apart
from this Agreement.
3.08 Governing Law
This Agreement shall be governed by and construed under the laws of the State of
New York.
3.09 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
3.10 Titles and Subtitles
The titles and subtitles used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement.
3.11 Notices
Unless otherwise provided, any notice under this Agreement shall be delivered in
writing and shall be deemed effectively delivered (a) upon personal delivery to
the party to be notified, (b) upon confirmation of receipt by fax by the party
to be notified, or (c) two business days after deposit with a reputable
overnight courier, prepaid for overnight delivery and addressed to the party to
be notified at the address indicated on the signature page hereto, or at such
other address as such party may designate by ten days' advance written notice to
the other party delivered in the foregoing manner.
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3.12 Legal Fees and Expenses
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, including an arbitration, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.13 Amendments and Waivers
Any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of all parties
hereto; provided, however, that any party hereto may waive any of such party's
rights hereunder without obtaining the consent of any other party.
3.14 Severability
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
3.15 Entire Agreement
This Agreement (including the exhibits hereto) and the documents referred to
herein constitute the full and entire agreement among the parties and no party
shall be liable or bound to any other party in any manner by any warranties,
representations or covenants, except as specifically set forth herein or
therein.
3.16 Termination
This Agreement shall terminate and all rights hereunder shall expire upon the
consummation of either the Put Closing or the Call Closing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
WARP TECHNOLOGY HOLDINGS, INC.
By:
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Authorized Signatory
Address:
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Fax:
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Phone:
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6043577 Canada Inc.
By:
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Authorized Signatory
Address:
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Fax:
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Phone:
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Schedule "A"
List of Shareholders
Name Signature
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