EXHIBIT 3
OMEGA
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of January
19, 2000, by and between, Omega Research, Inc., a Florida corporation
("Company"), and xxxxxxxxxxxxxxxx.xxx corp., a Florida corporation ("Online").
Capitalized terms used herein but not defined herein shall have the meanings set
forth in the Merger Agreement referred to below.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Online Trading Group, Inc., a Florida corporation ("Newco"), Company,
Online, Omega Acquisition Corporation, a Florida corporation and wholly-owned
subsidiary of Newco ("Omega Merger Sub"), and Onlinetrading Acquisition
Corporation, a Florida corporation and wholly-owned subsidiary of Newco ("Online
Merger Sub"), are entering into an Agreement and Plan of Merger and
Reorganization, dated as of the date hereof (the "Merger Agreement"), pursuant
to which, among other things, upon the terms and subject to the conditions
thereof, Online Merger Sub will be merged with and into Online with Online
continuing as the surviving corporation, and Omega Merger Sub will be merged
with and into Company with Company continuing as the surviving corporation
(collectively, the "Merger"); and
WHEREAS, as a condition and inducement to Online's willingness
to enter into the Merger Agreement, Online has required that Company agree, and
Company has agreed, to grant to Online an option to purchase certain newly
issued shares of Company's Common Stock, par value $.01 per share ("Company
Common Stock"), upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein and in the Merger Agreement,
the parties hereto agree as follows:
1. GRANT OF OPTION. Company hereby grants to Online an
irrevocable option (the "Company Option") to purchase up to 4,892,573 shares
(the "Company Shares") of Company Common Stock in the manner set forth below at
a price (the "Exercise Price") of $6.4422 per Company Share, payable in cash.
2. EXERCISE OF OPTION. The Company Option may be exercised by
Online, in whole or in part at any time or from time to time prior to its
termination when provided herein and on and after the occurrence of any of the
events which obligate Company to pay Online the amount set forth in Section 8.2
or Section 8.3 (c) of the Merger Agreement. In the event Online wishes to
exercise the Company Option, Online shall deliver to Company a written notice
(an "Exercise Notice") specifying the total number of Company Shares it wishes
to purchase; PROVIDED that, if prior notification to or approval of the
Department of Justice, the Federal Trade Commission and/or any other regulatory
or antitrust agency is required in connection with such purchase, Online shall
promptly file the required notice or application for approval, shall promptly
notify Company of such filing, and shall expeditiously process the same and the
period of time that otherwise would run
pursuant to this sentence shall run instead from the date on which any required
notification periods have expired or been terminated or such approvals have been
obtained and any requisite waiting period or periods shall have passed. Each
closing of a purchase of Company Shares (an "Option Closing") shall occur at a
place, on a date and at a time designated by Online in an Exercise Notice
delivered at least two business days prior to the date of the Option Closing.
The Company Option shall terminate upon (unless exercised pursuant to the terms
hereof prior to) the earlier of: (i) the Effective Time; (ii) the termination of
the Merger Agreement pursuant to Section 8.1 thereof (other than a termination
pursuant to Section 8.1(f) thereof or resulting from fraud or the wilful breach
or failure to perform of Company of any of its representations, warranties or
covenants set forth in the Merger Agreement or this Agreement (a "Wilful
Breach")); and (iii) one hundred eighty (180) days following any termination of
the Merger Agreement pursuant to Section 8.1(f) thereof or resulting from a
Wilful Breach by Company (or if, at the expiration of such one hundred eighty
(180) day period, the Company Option cannot be exercised by reason of any
applicable judgment, decree, order, law or regulation, 10 business days after
such impediment to exercise shall have been removed or shall have become final
and not subject to appeal).
3. CONDITIONS TO CLOSING. The obligation of Company to issue
the Company Shares to Online hereunder is subject to the conditions that (a) all
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, any Governmental Entity, if any, required in connection with
the issuance of the Company Shares hereunder shall have been obtained or made,
as the case may be; and (b) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect.
4. CLOSING. At each Option Closing, (a) Company will deliver
to Online a certificate or certificates in definitive form representing the
number of Company Shares designated by Online in its Exercise Notice, such
certificate or certificates to be registered in the name of Online or its
designee and to bear the legend set forth in Section 10, and (b) Online will
deliver to Company the aggregate Exercise Price for the Company Shares so
designated by wire transfer of immediately available funds or certified check or
bank check. At any Option Closing at which Online is exercising the Company
Option in part, Online shall present and surrender this Agreement to Company,
and Company shall deliver to Online an executed new agreement with the same
terms as this Agreement evidencing the right to purchase the remaining balance
of the shares of Company Common Stock purchasable hereunder.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY. Company
represents and warrants to Online that (a) Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has the corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder, (b) the execution and delivery of
this Agreement by Company and the consummation by Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Company and no other corporate proceedings on the part of Company
are necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and delivered by
Company and constitutes a valid and binding obligation of Company, enforceable
against Company
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in accordance with its terms, except as such enforceability may be limited by
bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity, (d) Company has taken all action
necessary to authorize and reserve for issuance and to permit it to issue, upon
exercise of the Company Option, and at all times from the date hereof through
the expiration of the Company Option will have reserved, that number of unissued
Company Shares that are subject to the Company Option, all of which, upon their
issuance and delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, (e) upon delivery of the Company
Shares to Online upon the exercise of the Company Option, Online will acquire
the Company Shares free and clear of all liens, claims, charges, encumbrances
and security interests of any nature whatsoever except those imposed by Online,
(f) assuming that the consents approvals, authorizations, permits, filings and
notifications referred to in subsection (g) are obtained or made, as applicable,
the execution and delivery of this Agreement by Company does not, and the
performance of this Agreement by Company will not, conflict with, or result in
any violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or the loss of a benefit under, or the creation of a lien,
pledge, security interest or other encumbrance on assets pursuant to (any such
conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation"), (A) any provision of the
articles of incorporation or by-laws, each as amended, of Company or (B) any
provisions of any material mortgage, indenture, lease, contract or other
agreement, instrument, permit, concession, franchise, or license or (C) any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Company or its properties or assets, except in the case of clauses (B) and
(C) immediately above, for violations which would not, individually or in the
aggregate, have a Material Adverse Effect on Company, and (g) except as
described in Section 2.3 of the Merger Agreement, the execution and delivery of
this Agreement by Company does not, and the performance of this Agreement by
Company will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity.
6. REPRESENTATIONS AND WARRANTIES OF ONLINE. Online represents
and warrants to Company that (a) Online is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has the
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this Agreement by
Online and the consummation by Online of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Online and no other corporate proceedings on the part of Online are necessary to
authorize this Agreement or any of the transactions contemplated hereby, (c)
this Agreement has been duly executed and delivered by Online and constitutes a
valid and binding obligation of Online, enforceable against Online in accordance
with its terms, except as such enforceability may be limited by bankruptcy and
other laws affecting the rights and remedies of creditors generally and general
principles of equity, (d) assuming that the consents, approvals, authorizations,
permits, filings and notifications referred to in subsection (e) are obtained or
made, as applicable, the execution and delivery of this Agreement by Online does
not, and the performance of this Agreement by Online will not, result in any
Violation pursuant to, (A) any provision of the articles of incorporation or
by-laws, each as amended, of Online, (B) any provisions of any material
mortgage, indenture, lease, contract or other agreement,
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instrument, permit, concession, franchise, or license or (C) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Online
or its properties or assets, except in the case of each of clauses (B) and (C)
immediately, above, for Violations which would not, individually or in the
aggregate, have a Material Adverse Effect on Online, (e) except as described in
Section 3.3 of the Merger Agreement and Section 2 of this Agreement, and except
as may be required under the Exchange Act, the execution and delivery of this
Agreement by Online does not, and the performance of this Agreement by Online
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity and (f) any Company Shares
acquired upon exercise of the Company Option will not be, and the Company Option
is not being, acquired by Online with a view to the public distribution thereof
and Online will not sell or otherwise dispose of such shares in violation of
applicable law or this Agreement.
7. PUT.
(a) EXERCISE. At any time during which the Company
Option is exercisable hereunder (the "Repurchase Period"), upon demand by
Online, Online shall have the right to sell to Company (or any successor entity
thereof) and Company (or such successor entity) shall be obligated to repurchase
from Online (the "Put"), all or any portion of the Company Option, to the extent
not previously exercised, at the price set forth in subparagraph (i) below,
and/or all or any portion of the Company Shares purchased by Online pursuant
thereto, at a price set forth in subparagraph (ii) below:
(i) the difference between the
"Market/Tender Offer Price" for shares of Company Common Stock as of the date
(the "Notice Date") notice of exercise of the Put is given to the other party
(defined as the greater of (A) the price per share offered as of the Notice Date
pursuant to any tender or exchange offer or other Takeover Proposal which was
made prior to the Notice Date and not terminated or withdrawn as of the Notice
Date (the "Tender Price") or (B) the 10 day trading average of the last sale
price of a share of Company Common Stock as reported on The Nasdaq National
Market over the period ending on the trading day immediately preceding the
Notice Date (the "Market Price")), and the Exercise Price, multiplied by the
number of Company Shares purchasable pursuant to the Company Option (or portion
thereof with respect to which Online is exercising its rights under this Section
7), but only if the Market/Tender Offer Price is greater than the Exercise
Price;
(ii) the Exercise Price paid by Online for
the Company Shares acquired pursuant to the Company Option plus the difference
between the Market/Tender Offer Price and the Exercise Price, but only if the
Market/Tender Offer Price is greater than the Exercise Price, multiplied by the
number of Company Shares so purchased;
(b) PAYMENT AND REDELIVERY OF COMPANY OPTION OR
SHARES. In the event Online exercises its rights under this Section 7, Company
shall, within 10 business days of the Notice Date, pay the required amount (the
"Repurchase Price") to Online in immediately available funds and Online shall
surrender to Company the Company Option or the certificates evidencing the
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Company Shares purchased by Online pursuant thereto, and Online shall represent
and warrant that it owns such shares and that such shares are then free and
clear of all liens, claims, charges and encumbrances of any kind or nature
whatsoever, other than any of the same created by Company or its affiliates.
(c) PAYMENT RESTRICTIONS. To the extent that Company
is prohibited under applicable law or regulation, or as a consequence of
administrative policy, from repurchasing the Company Option and /or Company
Shares in full, Company shall immediately so notify Online and thereafter
deliver or cause to be delivered, from time to time, to Online the portion of
the Repurchase Price that it is no longer prohibited from delivering, within
five business days after the date on which Company is no longer so prohibited;
PROVIDED that, if Company at any time after delivery of a notice of repurchase
pursuant to Section 7(a) is prohibited under applicable law or regulation, or as
a consequence of administrative policy, from delivering to Online the Repurchase
Price in full (and Company hereby undertakes to use its reasonable best efforts
to obtain all required regulatory and legal approvals and to file any required
notices as promptly as practicable in order to accomplish such repurchase),
Online may revoke its notice of the Put whether in whole or to the extent of the
prohibition, whereupon, in the latter case, Company shall promptly (1) deliver
to Online that portion of the Repurchase Price that Company is not prohibited
from delivering and (2) deliver to Online as appropriate, (A) a new Agreement
evidencing the right of Online to purchase that number of shares of Company
Common Stock obtained by multiplying the number of shares of Company Common
Stock for which the surrendered Agreement was exercisable at the time of
delivery of the notice of repurchase by a fraction, the numerator of which is
the Repurchase Price less the portion thereof theretofore delivered to Online
and the denominator of which is the Repurchase Price, and/or (B) to Online, a
certificate for the Company Shares it is then so prohibited from repurchasing.
8. REGISTRATION RIGHTS.
(a) Following any exercise of the Company Option,
Online may by written notice (the "Registration Notice") to Company request
Company to register under the Securities Act all or any part of the shares of
Company Common Stock acquired pursuant to this Agreement, including any voting
securities issued by way of dividend, distribution or otherwise in respect
thereof (the "Restricted Shares"), beneficially owned by Online (the
"Registrable Securities") in order to permit the sale or other distribution of
such Registrable Securities, including pursuant to a firm commitment
underwritten public offering; PROVIDED, HOWEVER, that any such Registration
Notice must relate to a number of shares equal to at least 3% of the outstanding
shares of Company Common Stock and that any rights to require registration
hereunder shall terminate with respect to any Shares that may be sold in any
90-day period pursuant to Rule 144 under the Securities Act. The Registration
Notice shall include a certificate executed by Online and its proposed managing
underwriter, which underwriter shall be an investment banking firm of nationally
recognized standing (the "Manager"), stating that Manager in good faith believes
that, based on the then prevailing market conditions, it will be able to sell
the Registrable Securities at a per share price equal to at least 85% of the
Fair Market Value of such shares. For purposes of this Section 8, the term "Fair
Market Value" shall mean the 10 day trading average of the last sale price of a
share of
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Company's Common Stock as reported on The Nasdaq National Market over the period
ending on the trading day immediately preceding the date of the Registration
Notice.
(b) Company shall use commercially reasonable efforts
to effect, as promptly as practicable, the registration under the Securities Act
of the unpurchased Registrable Securities; PROVIDED, HOWEVER, that (i) Online
shall not be entitled to more than two effective registration statements
hereunder and (ii) Company will not be required to file any such registration
statement during any period of time (not to exceed 60 days after such request in
the case of clause (A) below or 90 days in the case of clauses (B) and (C)
below) when (A) Company is in possession of material non-public information
which it reasonably believes would be detrimental to be disclosed at such time
and, based on consultation with counsel to Company, such information would have
to be disclosed if a registration statement were filed at that time; (B) Company
is required under the Securities Act to include audited financial statements for
any period in such registration statement and such financial statements are not
yet available for inclusion in such registration statement; or (C) Company
determines, in its reasonable good faith, judgment, that such registration would
interfere with any financing, acquisition or other material transaction
involving Company or any of its affiliates. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 180 days after the filing with the SEC of the initial registration
statement, then such registration shall not be taken into account as an
effective registration for purposes of clause (i) above. Company shall use
commercially reasonable efforts to cause any Registrable Securities registered
pursuant to this Section 8 to be qualified for sale under the securities or Blue
Sky laws of such jurisdictions as Online may reasonably request and shall
continue such registration or qualification in effect in such jurisdiction;
PROVIDED, HOWEVER, that Company shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction by reason of
this provision.
(c) The registration rights set forth in this Section
8 are subject to the condition that Online shall provide Company with such
information with respect to Online's Registrable Securities, the plans for the
distribution thereof, and such other information with respect to Online as, in
the reasonable judgment of counsel for Company, is necessary to enable Company
to include in such registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(d) If Company securities of the same type as the
Registrable Securities are then authorized for quotation or trading or listing
on the New York Stock Exchange, The Nasdaq National Market, Nasdaq or any other
securities exchange or automated quotations system, Company, upon the request of
Online, shall promptly file an application, if required, to authorize for
quotation, trading or listing the shares of Registrable Securities on such
exchange or system and will use its reasonable best efforts to obtain approval,
if required, of such quotation, trading or listing as soon as practicable.
(e) A registration effected under this Section 8
shall be effected at Company's expense, except for underwriting discounts and
commissions and fees and expenses of
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counsel to Online, and Company shall provide to the underwriters such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten public offerings
as such underwriters may reasonably require. In connection with any such
registration, the parties agree (i) to indemnify each other and the underwriters
in the customary manner and (ii) to enter into an underwriting agreement in form
and substance customary for transactions of the type contemplated hereby with
the Manager and the other underwriters participating in such offering.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) In the event of any change in Company Common
Stock by reason of stock dividends, splits, mergers (other than the Merger),
recapitalizations, combinations, exchange of shares or the like, the type and
number of shares or securities subject to the Company Option, and the Exercise
Price per share, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction so that Online shall receive,
upon exercise of the Company Option, the number and class of shares or other
securities or property that Online would have received in respect of the Company
Common Stock if the Company Option had been exercised immediately prior to such
event or the record date therefor, as applicable.
(b) In the event that Company shall enter in an
agreement: (i) to consolidate with or merge into any person, other than in
connection with the Merger or into Online or any of its subsidiaries, and shall
not be the continuing or surviving corporation of such consolidation or merger;
(ii) to permit any person, other than in connection with the Merger or Online or
one of its subsidiaries, to merge into Company and Company shall be the
continuing or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Company Common Stock shall be changed into or
exchanged for stock or other securities of Company or any other person or cash
or any other property or the outstanding shares of Company Common Stock
immediately prior to such merger shall after such merger represent less than 50%
of the outstanding shares and share equivalents of the merged company; or (iii)
to sell or otherwise transfer all or substantially all of its assets to any
person, other than Online or any of its subsidiaries, then, and in each such
case, the agreement governing such transaction shall make proper provision so
that upon the consummation of any such transaction and upon the terms and
conditions set forth herein, Online shall receive for each Company Share with
respect to which the Company Option has not been exercised an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of one share of Company Common Stock less
the Exercise Price (and, in the event of an election or similar arrangement with
respect to the type of consideration to be received by the holders of Company
Common Stock, subject to the foregoing, proper provision shall be made so that
the holder of the Company Option would have the same election or similar rights
as would the holder of the number of shares of Company Common Stock for which
the Company Option is then exercisable).
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10. RESTRICTIVE LEGENDS. Each certificate representing shares
of Company Common Stock issued to Online hereunder shall, to the extent
applicable, include 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, OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATIONS ARE AVAILABLE. SUCH SECURITIES ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT, DATED AS OF JANUARY 19, 2000, A COPY OF WHICH MAY BE OBTAINED FROM
THE ISSUER.
11. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor the rights or the
obligations of either party hereto are assignable, except by operation of law,
or with the written consent of the other party. Nothing contained in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto and their respective permitted assigns any rights or remedies
of any nature whatsoever by reason of this Agreement. Any Restricted Shares sold
by Online in compliance with the provisions of Section 8 shall, upon
consummation of such sale, be free of the restrictions imposed with respect to
such shares by this Agreement, unless and until Online shall repurchase or
otherwise become the beneficial owner of such shares, and any transferee of such
shares shall not be entitled to the rights of Online. Certificates representing
shares sold in a registered public offering pursuant to Section 8 shall not be
required to bear the legend set forth in Section 10.
12. SPECIFIC PERFORMANCE. The parties recognize and agree that
if for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
this Agreement, neither party will allege, and each party hereby waives the
defense, that there is an adequate remedy at law.
13. ENTIRE AGREEMENT. This Agreement and the Merger Agreement
(including the Online Disclosure Schedule, the Omega Disclosure Schedule and the
Newco Disclosure Schedule relating thereto) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
14. FURTHER ASSURANCE. Each party will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
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15. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect. In the event any court or other competent authority holds any provision
of this Agreement to be null, void or unenforceable, the parties hereto shall
negotiate in good faith the execution and delivery of an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision. Each party agrees that, should any court or other competent authority
hold any provision of this Agreement or part hereof to be null, void or
unenforceable, or order any party to take any action inconsistent herewith, or
not take any action required herein, the other party shall not be entitled to
specific performance of such provision or part hereof or to any other remedy,
including but not limited to money damages, for breach hereof or of any other
provision of this Agreement or part hereof as the result of such holding or
order.
16. NOTICES. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telecopied or
sent by certified or registered mail, postage prepaid, and shall be deemed to be
given, dated and received when so delivered personally, telecopied or, if
mailed, five business days after the date of mailing to the following address or
telecopy number, or to such other address or addresses as such person may
subsequently designate by notice given hereunder.
(a) if to Online, to:
xxxxxxxxxxxxxxxx.xxx corp.
0000 X. Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx zum Xxxxx, President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Broad & Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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(b) if to Company, to:
Omega Research, Inc.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
agreements made and to be performed entirely within such State without regard to
any applicable conflicts of law rules.
18. DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
20. EXPENSES. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
21. AMENDMENTS; WAIVER. This Agreement may be amended by the
parties hereto and the terms and conditions hereof may be waived only by an
instrument in writing signed on behalf of each of the parties hereto, or, in the
case of a waiver, by an instrument signed on behalf of the party waiving
compliance.
22. PREVAILING PARTY LEGAL FEES. The prevailing party in any
litigation or other proceeding brought to enforce the terms of this Agreement
shall be entitled to receive from the nonprevailing party its reasonable
attorneys' and paralegals' fees and costs before and at trial and at
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all appellate and other tribunal levels, in addition to its other remedies
hereunder or at law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXXXXXXXXXXXX.XXX CORP.
By: /s/ XXXXXX ZUM TOBEL
---------------------------------
Name: XXXXXX ZUM XXXXX
Title: PRESIDENT
OMEGA RESEARCH, INC.
By: /s/ XXXXX X. XXXX
------------------------------
Name: XXXXX X. XXXX
Title: CO-CEO
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