EXHIBIT C
STOCK REPURCHASE AGREEMENT
AGREEMENT (the "Agreement") dated as of __________ __, 2002 by and
between ASA International Ltd., a Delaware corporation (the "Company") and Xxxxx
X. Xxxxxxxx, an individual residing at 00 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxx 00000
(the "Stockholder"). This Agreement is being entered into in connection with
that certain Agreement and Plan of Merger by and among the Company, Rainmaker
Software, Inc., and CompuTrac, Inc. dated as of January 3, 2002 (the "Merger
Agreement"). Capitalized terms used without definition herein shall have the
meanings ascribed to them in the Merger Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Stockholder and his children are to be issued, pursuant to
the terms of the Merger Agreement, _______ (___________) shares of the Company's
Common Stock, par value $.01 per share, which shares are herein referred to as
the "Shares";
WHEREAS, the parties hereto desire to enter into this Agreement to
further the interests of the Company and its present and future stockholders;
WHEREAS, the Company and the Stockholder are required to enter into
this Agreement as a condition to the Closing of the Merger;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties do agree as follows:
1. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) "Aggregate Proceeds" shall mean the gross proceeds received by the
Stockholder from (i) the sale of Guaranteed Shares in a Market Sale
and (ii) the sale of Shares in a Company Purchase, in each case before
any deduction for commissions or other selling expenses.
(b) "Company Purchase" shall mean the sale of any Shares by the
Stockholder to the Company pursuant to Sections 2 or 3 hereof.
(c) "Formula Price" shall mean an amount equal to the following:
[(Aggregate Number of Guaranteed Shares previously sold by the
Stockholder in Company Purchases and Market Sales) + (Number of Shares
to be Purchased) x $1.35] - Aggregate Proceeds received by the
Stockholder to date from the sale of Guaranteed Shares in Company
Purchases and Market Sales.
(d) "Guaranteed Shares" shall mean all of the Shares other than
Non-Guaranteed Shares as defined in Sections 4 and 6(d) hereof.
(e) "Market Sale" shall mean the sale of any Shares by the Stockholder in
a Brokers' Transaction, as such term is defined in Rule 144(g)
pursuant to the Securities Act of 1933, as amended.
(f) "Monthly Allotment" shall mean _____ Shares per calendar month
commencing with the first calendar month following the Effective Time,
subject to increase as contemplated by Section 3 hereof.
2. Stockholder Sale. During each calendar month commencing on the first month
following the Effective Time, the Stockholder may give written notice (a
"Stockholder Notice") to the Company that he proposes to sell some or all of the
Monthly Allotment of Shares for such calendar month. Within five (5) business
days of the Company's receipt of such notice (the "Stockholder Notice Period"),
the Company shall either (a) purchase some or all of the Shares specified in the
Stockholder Notice from the Stockholder or (b) provide written notice to the
Stockholder (a "Market Sale Notice") that the Stockholder must first offer to
sell such portion of the Shares which are the subject of the Stockholder Notice
as is specified in the Market Sale Notice in a Market Sale, for a period of five
(5) business days (the "Market Sale Period"), at or above a limit price to be
specified by the Company in the Market Sale Notice. Any Shares which are the
subject of a Market Sale Notice and which remain unsold at the end of the Market
Sale Period shall be purchased by the Company at the expiration of the Market
Sale Period.
3. Company Purchase. During each calendar month commencing on the first
month after the Effective Time, the Company may give written notice (a "Company
Purchase Notice") to the Stockholder that the Company proposes to purchase some
or all of the Monthly Allotment of Shares for such calendar month. Within five
(5) business days of the Stockholder's receipt of such notice (the "Company
Purchase Notice Period"), the Stockholder shall either (a) sell all or part of
the Shares specified in the Company Purchase Notice to the Company or (b)
provide written notice to the Company (a "No Sale Notice") that the Stockholder
declines the Company's offer to purchase such portion of the Shares which are
the subject of the Company Purchase Notice as is specified in the No Sale
Notice, whereupon the Shares which are the subject of the No Sale Notice shall
be deemed to be "Non-Guaranteed Shares."
4. Cumulation. Any portion of any Monthly Allotment of Shares which are not
the subject of either a Stockholder Sale Notice or a Company Purchase Notice
shall be added to and increase the number of Shares included in any subsequent
Monthly Allotments until such Shares are included in either a Stockholder Sale
Notice or a Company Purchase Notice.
5. Purchase Price. With respect to any Shares that are purchased by the
Company from the Stockholder pursuant to Section 2 hereof, the purchase price
for such Shares shall be the lesser of (a) ($1.35) x (the number of Shares to be
purchased) or (b) the Formula Price, but in no event less than zero. With
respect to any Shares that are purchased by the Company from the Stockholder
pursuant to Section 3 hereof, the purchase price for such Shares shall be the
greater of (a) ($1.35) x (the number of Shares to be purchased) or (b) the
Formula Price.
6. Provisions Related to Market Sales.
(a) Notwithstanding anything to the contrary set forth in Section 2(b), the
Company may not require the Stockholder to offer any Shares in a Market Sale to
the extent that, at the time of such proposed Market Sale, the Stockholder is
not legally entitled to sell or offer such Shares for sale in a Market Sale.
(b) In the event that the Stockholder gifts any Shares or sells any Shares
in a Market Sale other than a Market Sale required by the Company pursuant to a
Market Sale Notice, such Shares shall be deemed to have come first from any then
unsold Non-Guaranteed Shares.
(c) In connection with any Market Sale or gift, the Stockholder shall
provide the Company with notice of such Market Sale or gift, as applicable,
within five (5) business days. In the case of a gift, the notice shall provide
the date, number of Shares and name of donee(s). In the case of a Market Sale,
the notice shall provide sufficient information to permit the Company to
determine the amount of any future payments which may be due from the Company to
the Stockholder pursuant to Section 5 hereof.
(d) Nothing in this Agreement shall prohibit the Stockholder from (i)
gifting any Shares (A) free of any provisions of this Agreement to any
organization qualifying under Section 501(c)(iii) of the Internal Revenue Code
of 1986, as amended, or (B) to any other donee(s) who agree in writing that
their Shares shall be bound by this Agreement, or (ii) selling Shares in excess
of the Monthly Allotment in a Market Sale to the extent that the Stockholder is
legally entitled to sell or offer such Shares for sale; provided, however, that
prior to any such gift or sale pursuant to this Section 6(d), the Stockholder
shall give written notice (in accordance with Section 14 hereof) to the Company
of the number of Shares and, with respect to a proposed sale, the lowest price
per Share (the "Limit Price") at which the Stockholder proposes to sell such
Shares (an "Additional Sale Notice"). The Stockholder may amend or cancel the
Additional Sale Notice any time prior to a Company Acceptance Notice (defined
below). The Stockholder may gift or commence selling Shares in a Market Sale, at
or above the Limit Price, at any time after delivery of the Additional Sale
Notice (in accordance with Section 14 hereof). The Company shall have the right,
exercisable by giving notice in accordance with Section 14 hereof (the "Company
Acceptance Notice"), at any time within five (5) days of the Company's receipt
of such Additional Sale Notice, to purchase from the Stockholder some or all of
the Shares which are the subject of the Additional Sale Notice and which remain
unsold at the time of the Company Acceptance Notice, at the Limit Price. Any
Shares purchased by the Company pursuant to this Section 6(d) shall be deemed to
be Guaranteed Shares for purposes of this Agreement. Any Shares gifted pursuant
to Section 6(d)(i)(A) of this Agreement, and/or any Shares which are the subject
of an Additional Sale Notice and which are not purchased by the Company pursuant
to this Section 6(d) and are sold in accordance with the Additional Sale Notice,
shall be deemed to be Non-Guaranteed Shares for purposes of this Agreement.
7. Closing. The closing of any purchase of Shares by the Company from the
Stockholder shall occur within three (3) business days after the expiration of
the applicable Stockholder Notice Period, Company Purchase Notice Period,
Company Acceptance Notice Period or Market Sale Period, as the case may be. The
Company shall designate a brokerage account to be used for the transfer of
Shares from the Stockholder to the Company. If such brokerage account is
maintained at the same broker where the Stockholder maintains a brokerage
account holding the Shares to be transferred, any transfer costs shall be borne
by the Stockholder. Otherwise, any costs of transfer shall be borne by the
Company.
8. Term. This Agreement shall terminate upon the earlier of (a) the sale of
all of the Guaranteed Shares or (b) the last day of the forty-eighth calendar
month following the Effective Time. Upon such termination, neither the Company
nor the Stockholder shall have any further obligations to the other party
hereunder.
9. Security. The Company's obligations pursuant to this Agreement shall
be secured by a first lien on the real estate located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx.
10. Adjustments. If, from time to time during the term of this Agreement
there is any stock dividend or stock split or similar change in the number of
outstanding securities of the Company, then, in such event, any and all new,
substituted or additional securities to which Stockholder is entitled by reason
of his ownership of Shares shall be immediately included in the word "Shares"
for all purposes of this Agreement. The price per Share for all purposes of this
Agreement shall be appropriately adjusted after each such event.
11. Legend. Any certificates representing the Shares shall be issued free
of any restrictive legend.
12. Not an Employment Contract. Nothing in this Agreement is meant to
constitute a contract of employment for a stated term or give rise to any other
contractual rights, obligations or guarantees related to Stockholder's
employment with the Company.
13. Further Actions. The parties agree to execute such further instruments
and to take such further actions as may reasonably be necessary to carry out the
intent of this Agreement.
14. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon (a) personal delivery, (b)
transmission by electronic mail, provided that receipt is confirmed by the
recipient by telephonic communication, or (c) upon the first day following
deposit for next day delivery with a nationally recognized overnight delivery
service, in each case as addressed to the other party hereto at its or his
address hereinafter shown, or at such other address as such party may designate
by ten days' advance written notice to the other party hereto.
If to Company: ASA International Ltd.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx,
Chief Executive Officer
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxxxx@xxxxxx.xxx
with a copy to: Xxxx X. Xxxxxx, Esquire
Xxxxxxx Xxxxxx & Green, P.C.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxx.xxx
If to Stockholder: Xxxxx X. Xxxxxxxx
00 Xxxxxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Email: xxxxx@xxxxxxxxx.xxx
with a copy to: Xxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx, P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxx.xxx
15. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the Commonwealth of Massachusetts (without
regard to the conflict of law principles thereof).
16. Waivers; Amendments. No waiver of any right hereunder by any party shall
operate as a waiver of any other right, or of the same right with respect to any
subsequent occasion for its exercise, or of any right to damages. No waiver by
any party of any breach of this Agreement shall be held to constitute a waiver
of any other breach or a continuation of the same breach. All remedies provided
by this Agreement are in addition to all other remedies provided by law. This
Agreement may not be amended except in a writing signed by the parties hereto.
17. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the respective legal representatives, successors and
assigns of the parties hereto; provided however, that without the consent of the
other party, the Company may assign its rights, but not its obligations, under
this Agreement, and the Stockholder may not assign his rights or obligations
under this Agreement; provided, however, that any donee of Shares pursuant to
Section 6(d)(i)(B) who agrees in writing to be bound by the provisions of this
Agreement shall be entitled to the same rights as the Stockholder with respect
to any Shares received by such donee.
18. Severability. If any provision of this Agreement shall be declared void
or unenforceable by any judicial or administrative authority, the validity of
any other provisions and of the entire Agreement shall not be affected thereby.
19. 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.
20. Prior Understandings. This Agreement represents the complete agreement
of the parties with respect to the transactions contemplated hereby and
supersedes all prior agreements and understandings.
21. Headings. Headings in this Agreement are included for reference only and
shall have no effect upon the construction or interpretation of any part of this
Agreement.
22. Beneficial Owners. The Company shall be entitled to deal with the
Stockholder as if the Stockholder were the sole beneficial owner of all Shares.
[Next Page is Signature Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: ASA INTERNATIONAL LTD.
_______________________________ By: _______________________________
Name: _______________________________
Title: _______________________________
STOCKHOLDER
_______________________________ By: ____________________________________
Witness Xxxxx X. Xxxxxxxx
[Stockholder's Children]
_______________________________ By: ____________________________________
Witness [Name]
_______________________________ By: ____________________________________
