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Exhibit 10.2
AGREEMENT OF UNDERSTANDING
This Agreement of Understanding (this "Agreement") is entered into by
and among xXxx.xxx, a Delaware corporation ("eFax"), XXXX.XXX, Inc., a Delaware
corporation ("JFAX"), and Integrated Global Concepts, Inc., an Illinois
corporation ("IGC"), this 30th day of June, 2000.
RECITALS
eFax (formerly xXxx.xxx, Inc.) and IGC entered into a Software
Development Agreement, executed on February 16, 1999 (the "Development
Agreement"), pursuant to which IGC agreed to modify IGC software developed for
eFax, including certain custom interfaces described in the Development
Agreement, and granted to eFax a non-exclusive license to the object code form
of the software developed.
eFax and IGC entered into a Co-Location Agreement, executed on February
16, 1999 (the "Co-Location Agreement"), pursuant to which IGC agreed to provide
certain co-location and other services to eFax.
IGC has performed services and developed software in addition to the
services and developments required pursuant to the terms of the Development and
Co-Location Agreements which IGC believes requires eFax to make additional
payments to IGC pursuant to the terms of the Development and Co-Location
Agreements. eFax denies that these services are additional, and instead believes
that the services are encompassed within the existing agreements.
eFax and JFAX are negotiating the terms of a merger agreement (the
"Merger Agreement") pursuant to which a subsidiary of JFAX would merge with and
into eFax upon the filing of the appropriate certificate of merger with the
Delaware Secretary of State and upon the merger becoming effective in accordance
with the terms of the certificate of merger (the "Merger") and become a wholly
owned subsidiary of JFAX.
eFax wished to acquire for its own use or the use of JFAX a
non-exclusive license to the source code for software developed by IGC.
eFax, JFAX and IGC desire to fully and completely settle all issues and
outstanding claims between eFax and IGC prior to the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, releases and covenants
contained herein, the parties agree as follows:
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1. Deliveries by IGC at the Closing. Subject to the fulfillment or
waiver by IGC of the conditions set forth in Section 22, IGC agrees to deliver
at the closing of the Merger (the "Closing," which term shall also refer to the
closing of the transactions set forth in this Agreement):
a. A copy of the registration rights agreement in the form attached
hereto as Exhibit A (the "Registration Rights Agreement") duly executed by IGC
and dated the date of the Closing (the "Closing Date").
b. A copy of the software license agreement in the form attached hereto
as Exhibit B (the "Software License Agreement") duly executed by IGC and dated
the Closing Date.
2. Deliveries by JFAX at the Closing. Subject to the fulfillment or
waiver of the conditions set forth in Section 23, at the Closing JFAX shall
deliver to IGC the following:
a. A certificate or certificates for 1,200,000 shares (the "Initial JFAX
Shares") of JFAX Common Stock, par value $0.01 per share (the "JFAX Common
Stock"), registered in the name of IGC, and a notice that a certificate or
certificates for 800,000 shares of JFAX Common Stock (the Escrowed JFAX Shares
(as defined below)) registered in the name of IGC has been delivered to the
escrow agent in accordance with the Escrow Agreement (as defined below).
b. A copy of the Registration Rights Agreement duly executed by JFAX and
dated the Closing Date.
c. A copy of an escrow agreement in essentially the form attached hereto
as Exhibit D (the "Escrow Agreement") duly executed by JFAX and the escrow agent
and dated the date of the Closing, providing for the delivery of up to 800,000
shares of JFAX Common Stock (the "Escrowed JFAX Shares") pursuant to the terms
set forth in Section 27.20 and the Escrow Agreement (the Initial JFAX Shares and
the Escrowed JFAX Shares are collectively referred to as the "JFAX Shares").
3. Deliveries by eFax at the Closing. Subject to the fulfillment or
waiver of the conditions set forth in Section 23, at the Closing, eFax shall
deliver to IGC the following:
a. Payment by certified check or wire transfer or such other method as
agreed to by eFax and IGC of the amounts payable pursuant to items (a) and (b)
of Section D of Exhibit A of the Co-Location Agreement as modified by Addendum
#1, dated May 10, 1999 (the "Fax Services Payments"), as calculated pursuant to
Section 9(b) hereof which at the time of the Closing are then due and payable.
Notwithstanding the foregoing, after the date of this Agreement and prior to the
Closing, eFax shall be required to make the Fax Service Payments as they become
due pursuant to items (a) and (b) of Section D of Exhibit A of the Co-Location
Agreement as modified on a monthly basis within ten (10)
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days of the end of each month, and if such Fax Service Payments are not received
within ten (10) days of the end of any month, then IGC's obligations to perform
services under the Co-Location Agreement shall terminate (following notice and
opportunity to cure in accordance with the provisions of the Co-Location
Agreement). After the date of the Merger Agreement, in the event that eFax does
not make any such Fax Services Payment, JFAX agrees to make any unpaid Fax
Services Payment to IGC within ten (10) days of JFAX's receipt of notice from
IGC of such non-payment.
b. A copy of the Software License Agreement duly executed by eFax and
dated the Closing Date.
4. Release of Rights by IGC.
a. Subject to the fulfillment or waiver by IGC of the conditions set
forth in Section 22, IGC effective as of the Closing Date, on behalf of itself
and its predecessors, successors, assigns, subsidiaries, officers, directors,
employees, attorneys, shareholders, insurers and affiliates, past and present
(collectively, the "IGC Parties"), will release and fully discharge JFAX and
eFax and each of their predecessors, successors, assigns, subsidiaries,
officers, directors, employees, attorneys, shareholders, insurers and
affiliates, past and present (the "Merger Parties"), from any and all claims,
demands and liabilities of whatever kind, whether presently known or unknown,
suspected or alleged, and whether for damages or for equitable relief, including
injunctive relief, corrective action, closure or remedial action, arising from
or related to any past services, equipment, software or other assets provided by
IGC to the Merger Parties whether pursuant to the Development Agreement, the
Co-Location Agreement or any other agreement or understanding, whether written
or oral (the "IGC Claims"). Such IGC Claims shall include, but not be limited
to, any services of any kind provided by IGC for any of the Merger Parties on or
prior to the date of this Agreement.
b. Notwithstanding the provisions of Section 4 (a), eFax shall be
required to make the Fax Services Payments which have accrued, but have not been
paid, prior to the date of this Agreement. The parties agree that as of the date
of this Agreement, eFax has made all of the Fax Services Payments for all
periods through May 31, 2000.
c. After the date of this Agreement, IGC shall not provide any services,
equipment, software or any other assets to eFax or JFAX pursuant to the
Development Agreement or the Co-Location Agreement or pursuant to any other
agreement or understanding, whether written or oral, except (i) services
specifically set forth in this Agreement, (ii) the services set forth in Exhibit
A to the Co-Location Agreement and (iii) such services, equipment, software or
any other assets as specifically agreed to in writing by eFax and IGC after the
date of this Agreement and at the price or rate specifically specified by eFax
and IGC in such writings. If IGC shall provide any services or assets other than
as permitted pursuant to this Section 4(c), neither eFax nor JFAX nor any other
Merger Party shall have any obligation to make any payment for such services or
assets.
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5. Release of Rights by JFAX and eFAX.
a. Subject to the fulfillment or waiver by JFAX and eFax of the
conditions set forth in Section 23, each of JFAX and eFax effective as of the
Closing Date, on behalf of itself and each of the Merger Parties, will release
and fully discharge each of the IGC Parties, from any and all claims, demands
and liabilities of whatever kind, whether presently known or unknown, suspected
or alleged, and whether for damages or for equitable relief, including
injunctive relief, corrective action, closure or remedial action, arising from
or related to any past services, equipment, software or other assets provided by
IGC to the Merger Parties whether pursuant to the Development Agreement, the
Co-Location Agreement or any other agreement or understanding, whether written
or oral (the "Merger Party Claims").
b. Notwithstanding the provisions of Section 5(a), IGC shall continue
after the date of this Agreement to have the contractual obligation to honor all
of the licenses transferred or granted to eFax pursuant to the Development
Agreement as modified by this Agreement and to provide the future services and
assets required to be provided by it pursuant to (i) the terms of this
Agreement, (ii) the Co-Location Agreement, (iii) any written agreement between
IGC and eFax and/or JFAX entered into after the date of this Agreement or (iv)
the terms of the Software License Agreement. In addition, IGC shall continue to
have the obligation to return to eFax any eFax assets held by IGC, including as
required pursuant to Section A of Exhibit A to the Co-Location Agreement;
provided that, eFax remains current with the Fax Service Payments and any other
payments due to IGC.
6. Nature of Releases. The releases of the IGC Claims and the Merger
Party Claims includes claims arising out of the execution of this Agreement or
the negotiations of this Agreement, or any purported representations or
omissions leading to this Agreement. Nothing in Section 4 or Section 5 extends
to claims for breach of any party's obligations under this Agreement, the
Registration Rights Agreement, the Software License Agreement or any services
performed after the Closing Date pursuant to the Co-Location Agreement, this
Agreement, including the Transition and Post-Termination Services (as defined in
Section 9(b)), or any separate written agreement executed after the date of this
Agreement. It is expressly understood by IGC, eFax and JFAX that each of them
has been advised of the provisions of California Civil Code Section 1542, which
reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Each of IGC, eFax and JFAX waives all rights and benefits which it now
has or in the future may have under and by virtue of the provisions of
California Civil Code Section 1542, with the purpose and intent that the
releases contained herein shall be construed as general and unqualified releases
pursuant to the terms hereof. Each of IGC, eFax and JFAX understands and
acknowledges that Sections 4 and 5 apply not only to all claims which are
presently known, anticipated or disclosed, but also to those which are presently
unknown, unanticipated or undisclosed. Each of IGC, eFax and JFAX acknowledges
and agrees that the waivers set forth in Sections 4 and 5 are essential and
material terms of this Agreement, without which the consideration relating
hereto would not have been delivered.
7. Covenants Not to Xxx. Each of IGC, eFax and JFAX on behalf of itself
and, in the case of IGC, the IGC Parties and, in the case of eFax and JFAX, the
Merger Parties hereby covenants and agrees never to institute or maintain
against, in the case of IGC, the Merger Parties and, in the case of eFax and
JFAX, the IGC Parties, any action or proceeding based in whole or in part upon
the matters with respect to which, in the case of IGC, the IGC Claims apply and,
in the case of eFax or JFAX, the Merger Party Claims apply.
8. No Admission of Liability. This Agreement, in part, is executed in
compromise of a dispute, and neither this Agreement nor any statement made in
the course of discussions that led to it is intended or shall be construed in
any respect as an admission of liability for any purpose by any party to this
Agreement.
9. Services, Exclusivity.
a. After the date of the execution of the Merger Agreement, , IGC shall
provide the following services and assets to eFax; provided that, JFAX may
require that after the Closing any services to be provided to eFax instead be
provided to JFAX:
(i) Services required pursuant to the Co-Location Agreement.
(ii) The transition services set forth on Exhibit C attached hereto
(the "Transition Services").
(iii) The post-termination services set forth on Exhibit C attached
hereto (the "Post-Termination Services") to be provided following the
Co-Location Agreement Termination (as defined in Section 9(b)).
(iv) The services required pursuant to Section 11.
b. If the Closing occurs in connection with this Agreement, the payment
for the services set forth in Section 9(a) shall consist solely of (i) the
delivery of the items by
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eFax and JFAX pursuant to Sections 2 and 3, (ii) the Fax Services Payments as
calculated pursuant to items (a) and (b) of Section D of Exhibit A of the
Co-Location Agreement and accrued during the term of the Co-Location Agreement;
provided that, if such calculation for a calendar month results in an amount
less than the actual payment for the previous calendar month, the amount of the
Fax Services Payment for such month shall equal the average of the three highest
monthly Fax Services Payments during the term of the Co-Location Agreement
(other than any monthly Fax Services Payment determined by such three-month
average) and (iii) the payments set forth in Exhibit C for the Post-Termination
Services. If the Closing occurs, no additional amounts shall be payable pursuant
to the terms of the Co-Location Agreement or any other agreement between eFax
and IGC except for payments required by this Agreement and any agreement in
writing entered into by eFax and IGC after the date of this Agreement. In the
event that this Agreement is terminated without the Closing occurring in
connection with this Agreement, the payment for services set forth in Section
9(a) shall consist of the Fax Services Payments as calculated pursuant to items
(a) and (b) of Section D of Exhibit A of the Co-Location Agreement for the
services provided pursuant to Section 9(a)(i). After the Closing, eFAX may
terminate the Co-Location Agreement (and therefore its obligation to make the
Fax Services Payments) at any time upon thirty (30) days' written notice to IGC
(the "Co-Location Agreement Termination"). The Co-Location Agreement Termination
shall also terminate IGC's obligation to provide the Transition Services. The
Fax Services Payment for any month during the term of this Agreement which is
not a complete month shall be the greater of (x) the amount for such partial
month calculated pursuant to items (a) and (b) of Section D of Exhibit A of the
Co-Location Agreement with the minimum monthly rate set forth in item (a) being
prorated and (y) the prorated amount of the average of the highest three months,
calculated as described above.
c. Each of eFax's and IGC's exclusivity obligations set forth in Section
E of Exhibit A to the Co-Location Agreement shall terminate at the time of the
Closing, and all future fees and other payments due in accordance with the
Co-Location Agreement or the Development Agreement shall thereafter terminate
and eFax shall have only such obligations as set forth in the Software License
Agreement (Exhibit B) and this Agreement.
10. Obligations under the Development Agreement. Any obligation on the
part of IGC to provide development services under the Development Agreement
shall terminate at the time of the Closing; provided that, IGC shall continue to
have the obligation to provide the services set forth on Exhibit C hereto and
neither eFax nor JFAX shall be required to make any payments for such services
beyond the consideration set forth in this Agreement.
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11. Licensed Source Code, Ownership of Source Code.
a. After the date of the execution of the Merger Agreement, IGC, JFAX
and eFax will work together to ensure that the source code to the software to
which IGC will grant eFax and JFAX a license pursuant to the terms of the
Software License Agreement (the "Licensed Source Code") is, in eFax's and JFAX's
good faith determination, buildable and usable by eFax and/or JFAX. eFax, JFAX
and IGC agree to cooperate in good faith to define a delivery and verification
process to validate the Licensed Source Code in the manner set forth in this
Section 11(a); provided that, IGC shall not be required to deliver the Licensed
Source Code to JFAX and eFax prior to the Closing.
b. IGC and eFax agree that all of the software developed by IGC for its
own business and that of GSI Systems and that software developed by IGC for use
in connection with the eFax services, its development, operation, monitoring
and/or support, including, without limitation, billing, credit card processing,
customer sign-up/provisioning, reseller/branding support, web site hosting
functions, or otherwise relating to the eFax services and their use by eFax and
its customers, whether pursuant to the Development Agreement, the Co-Location
Agreement or otherwise will be the sole property of IGC at the time of the
Closing. IGC has previously granted to eFax a license to such software which
includes, but is not limited to, all computer software, and related designs,
algorithms, user interfaces and procedures constituting, incorporated into,
forming a part of, or otherwise related to the Custom Interface (as described in
the Development Agreement) or any other Deliverables (as defined in the
Development Agreement) or any of the following modules: (i) M9XX BFT reception
and conversion to email attachments, (ii) SOHO Fax TIFF reception and conversion
to email attachments, (iii) toll free 800/888/877 etc. service, (iv) premium
service as described as 30 days of storage, (v) OCR, (vi) web site hosting,
(vii) forwarding of fax messages based on customer defined entries, (viii)
automated forwarding to an email distribution list, (ix) voice, (x) send, (xi)
API, (xii) UK co-location, (xiii) E1 interface, (xiv) spam guard, (xv) network
monitoring interfaces (both server and telephony interface monitoring), (xvi)
co-brands (branding), (xvii) co-location of non-IGC equipment, (xviii) wireless
services, (xix) payment tech to the extent developed, (xx) cover sheet
generation, (xxi) financial/credit card reporting, (xxii) fax preview, (xxiii)
Try 2 Free, (xxiv) voicemail, (xxv) voice-to-email, (xxvi) network security and
(xxvii) corporate services. Concurrent with the Closing, to the extent not
already provided, IGC will provide eFax and JFAX with all of the source code,
object code and program documentation related to such software in accordance
with the Software License Agreement.
c. Customer/User Data Base, Name Space and DIDs. IGC and eFax hereby
confirm and agree that eFax's customer/user data bases (for both eFax and
HotSend related web sites) and all data fields and customer information included
therein (including, without limitation, all profiles, logs, histories,
subscriber data, usage data,
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download data, tracking data, xxxx data and balances), IP space, domain and name
space, and telephone DID numbers, and all intellectual property rights and other
rights and licenses in any of the foregoing, are and shall remain the sole and
exclusive property of eFax and that IGC has no rights whatsoever therein.
d. eFax Software. IGC and eFax hereby confirm and agree that the
software modules, set forth on Schedule 11(d) attached hereto, and all related
computer software, source code, object code, designs, algorithms, user
interfaces and procedures incorporated into, forming a part thereof, or
otherwise related thereto, and all intellectual property rights in any of the
foregoing, are and shall remain the sole and exclusive property of eFax and that
IGC has no rights whatsoever therein. IGC and eFax agree that the list set forth
on Schedule 11(d) may not be complete and other software modules may be the
property of eFax.
12. Change of JFAX Shares. If between the date of this Agreement and the
Closing, the outstanding shares of JFAX Common Stock shall have been changed
into a different number of shares or a different class, by reason of any stock
dividend, subdivision, reclassification, recapitalization, split, combination or
exchange of shares, the number of JFAX Shares to be delivered pursuant to this
Agreement shall be correspondingly adjusted to the extent appropriate to reflect
such stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of such shares
13. The Closing. The Closing shall take place in accordance with the
provisions of this Agreement and shall take place at such time and place as the
closing in connection with the Merger.
14. Representations and Warranties of eFax. eFax represents and warrants
to IGC and JFAX that:
a. Corporate Organization and Authority. eFax is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is presently
conducted. eFax has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations and to consummate the
transactions contemplated hereunder. The execution and delivery of this
Agreement by eFax and the consummation by eFax of the transactions contemplated
hereby have been duly authorized by all necessary corporate action of eFax and
no other corporate proceedings on the part of eFax are necessary to authorize
this Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by eFax and (assuming the due
authorization, execution and delivery by IGC and JFAX) constitutes the legal,
valid and binding obligation of eFax, enforceable against eFax in accordance
with its terms.
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b. No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by eFax do not, and
the performance of this Agreement by eFax will not, (A) conflict with or violate
the certificate of incorporation or bylaws of eFax, (B) conflict with or violate
any federal, state, local or foreign statute, law, rule, regulation, order,
ordinance, judgment or decree (each, a "Law") applicable to eFax, or by which it
or its properties are bound or affected, or (C) at the time of the Closing
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the property or assets of eFax,
pursuant to, or result in a change in any of the terms of any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which eFax is a party or by which eFax or any
of its properties is bound or affected, except, in the case of this clause (C),
for any such breaches, defaults or other occurrences which would not,
individually or in the aggregate, have a Material Adverse Effect (as defined
below) or prevent or delay the consummation of the transactions contemplated by
this Agreement. The term "Material Adverse Effect," with respect to any party to
this Agreement, shall mean a material adverse effect on the financial condition,
properties, business or results of operations of such party and its subsidiaries
taken as a whole.
(ii) Except for such approvals as are necessary to consummate the
Merger (the "Merger Approvals"), the execution and delivery of this Agreement by
eFax does not, and the performance of this Agreement by eFax (including, without
limitation, the consummation of the transactions hereunder) will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign.
(iii) Except for the Merger Approvals, no affirmative vote of the
shareholders of eFax is required, pursuant to Delaware General Corporation Law,
NASDAQ rules or regulations, any other Law, eFax's certificate of incorporation
or bylaws, or any agreements or contracts entered into by eFax, to approve this
Agreement.
(iv) eFax has not assigned or conveyed in any manner to any other
party any of its rights or obligations pursuant to the Development Agreement,
the Co-Location Agreement or any other agreement or understanding between IGC
and eFax, whether written or oral, or in connection with any matter as to which
eFax is granting a release pursuant to Section 5.
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15. Representations and Warranties of JFAX. JFAX represents and warrants
to IGC and eFAX that:
a. Corporate Organization and Authority. JFAX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is presently
conducted. JFAX has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations and to consummate the
transactions contemplated hereunder. The execution and delivery of this
Agreement by JFAX and the consummation by JFAX of the transactions contemplated
hereby have been duly authorized by all necessary corporate action of JFAX and
no other corporate proceedings on the part of JFAX are necessary to authorize
this Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by JFAX and (assuming the due
authorization, execution and delivery by IGC and eFax) constitutes the legal,
valid and binding obligation of JFAX, enforceable against JFAX in accordance
with its terms. Notwithstanding the foregoing, the parties understand and agree
that this Agreement is subject to the approval of the Board of Directors of
JFAX, which approval JFAX represents and warrants will be obtained in connection
with the approval by the JFAX Board of Directors of the Merger Agreement.
b. No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by JFAX do not, and
the performance of this Agreement by JFAX will not, (A) conflict with or violate
the certificate of incorporation or bylaws of JFAX, (B) conflict with or violate
any Law applicable to JFAX, or by which it or its properties are bound or
affected, or (C) at the time of the Closing result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of JFAX, pursuant to, or result
in a change in any of the terms of any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which JFAX is a party or by which JFAX or any of its properties is
bound or affected, except, in the case of this clause (C), for any such
breaches, defaults or other occurrences which would not, individually or in the
aggregate, have a Material Adverse Effect or prevent or delay the consummation
of the transactions contemplated by this Agreement.
(ii) Except for the Merger Approvals, the execution and delivery of
this Agreement by JFAX does not, and the performance of this Agreement by JFAX
(including, without limitation, the consummation of the transactions hereunder)
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, domestic or
foreign other than any filings and
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approvals required pursuant to the terms of the Registration Rights Agreement
and any notice filings required pursuant to any state "blue sky" laws.
(iii) Except for the Merger Approvals, no affirmative vote of the
shareholders of JFAX is required, pursuant to Delaware General Corporation Law,
NASDAQ rules or regulations, any other Law, JFAX's certificate of incorporation
or bylaws, or any agreements or contracts entered into by JFAX, to approve this
Agreement.
16. Representations and Warranties of IGC. IGC represents and warrants
to JFAX and eFAX that:
a. Corporate Organization and Authority. IGC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is presently
conducted. IGC has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations and to consummate the
transactions contemplated hereunder. The execution and delivery of this
Agreement by IGC and the consummation by IGC of the transactions contemplated
hereby have been duly authorized by all necessary corporate action of IGC and no
other corporate proceedings on the part of IGC are necessary to authorize this
Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by IGC and (assuming the due
authorization, execution and delivery by JFAX and eFax) constitutes the legal,
valid and binding obligation of IGC, enforceable against IGC in accordance with
its terms.
b. No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by IGC do not, and
the performance of this Agreement by IGC will not, (A) conflict with or violate
the articles of incorporation or bylaws of IGC, (B) conflict with or violate any
Law applicable to IGC, or by which it or its properties are bound or affected,
or (C) at the time of the Closing result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of IGC, pursuant to, or result in a
change in any of the terms of any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which IGC is a party or by which IGC or any of its properties is bound or
affected, except, in the case of this clause (C), for any such breaches,
defaults or other occurrences which would not, individually or in the aggregate,
have a Material Adverse Effect or prevent or delay the consummation of the
transactions contemplated by this Agreement.
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(ii) The execution and delivery of this Agreement by IGC does not,
and the performance of this Agreement by IGC (including, without limitation, the
consummation of the transactions hereunder) will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign.
(iii) No affirmative vote of the shareholders of IGC is required,
pursuant to Illinois Business Corporation Act or any other Law, IGC's articles
of incorporation or bylaws, or any agreements or contracts entered into by IGC,
to approve this Agreement.
(iv) IGC has not assigned or conveyed in any manner to any other
party any of its rights or obligations pursuant to the Development Agreement,
the Co-Location Agreement or any other agreement or understanding between IGC
and eFax, whether written or oral, or in connection with any matter as to which
eFax is granting a release pursuant to Section 4.
17. JFAX Shares. Assuming all conditions set forth in this Agreement are
satisfied, JFAX represents that all JFAX Shares subject to issuance pursuant to
this Agreement shall (a) be duly authorized, validly issued, fully paid and
nonassessable and (b) not be subject to any encumbrances, other than
restrictions imposed by applicable securities laws and those created by this
Agreement or any agreement expressly contemplated hereby.
18. Brokers. IGC represents and warrants to eFax and JFAX that no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement, based upon arrangements made by or on behalf of IGC. eFax represents
and warrants to IGC and JFAX that no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement, based upon arrangements
made by or on behalf of eFax. JFAX represents and warrants to IGC and eFax that
no broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement, based upon arrangements made by or on behalf of JFAX.
19. No Dispositions. IGC represents and warrants to eFax and JFAX that
IGC has not directly or indirectly, offered, offered to sell, contracted or
agreed to sell, granted any option to purchase or otherwise sold, disposed of,
loaned, pledged or granted any rights or engaged in any shorting or hedging
strategies with respect to any JFAX Common Stock, any options or warrants to
purchase any JFAX Common Stock or any securities convertible into, exercisable
or exchangeable for JFAX Common Stock.
13
20. Securities Law Compliance. Based in part on the representations made
by IGC in Section 21, JFAX represents and warrants to IGC that the issuance of
the JFAX Shares to IGC will be in compliance with all applicable federal and
state securities laws.
21. IGC Representations. IGC represents and warrants to eFAX and JFAX
that IGC is acquiring the JFAX Shares for its own account for investment and not
with a present view to, or for sale in connection with, any distribution thereof
in violation of the Securities Act of 1933, as amended (the "Securities Act").
All costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred by IGC, eFax and JFAX in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the person incurring such expense whether or not the Closing shall have
occurred. IGC has had access during the course of the transaction and prior to
its acquisition of the JFAX Shares to such information relating to JFAX as it
has desired, and IGC has had the opportunity to ask questions of and receive
answers from JFAX concerning the terms and conditions of the JFAX Shares and to
obtain additional information (to the extent JFAX possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to it or to which it had access. IGC is
experienced in evaluating companies such as JFAX, is able to fend for itself,
has such knowledge and experience in finance and business matters such that it
is capable of evaluating the risks and merits of its investment in JFAX and has
the ability to suffer the total loss of its investment. IGC understands that the
JFAX Shares will not be registered under the Securities Act or applicable state
securities laws, and are being issued in reliance on exemptions for private
offerings contained in Section 4(2) of the Securities Act and in reliance on
exemptions from the registration requirements of certain state securities laws,
on the basis that the securities will be acquired by a limited number of
accredited persons or entities. IGC acknowledges that it will not acquire the
JFAX Shares as a result of any general solicitation (as that term is used in
Regulation D promulgated under the Securities Act) with respect to the JFAX
Common Stock. IGC understands that the JFAX Shares may not be sold, transferred
or otherwise disposed of without registration under the Securities Act or an
exemption therefrom and that in the absence of an effective registration
statement covering the JFAX Shares or an available exemption from the
registration requirements of the Securities Act, the JFAX Shares must be held
indefinitely.
22. Conditions to the Obligations of IGC. The obligation of IGC to
deliver the items at the Closing required pursuant to Section 1 and to grant the
release set forth in Section 4 at the Closing is subject to the fulfillment, or
the waiver by IGC, of each of the following conditions on or before the Closing:
a. Legal Action. There shall not have been instituted or threatened
(orally or in writing) any legal proceeding seeking to prohibit or threaten the
consummation of the transactions contemplated by this Agreement. None of the
parties hereto shall be
14
prohibited by any order, writ, injunction or decree of any Governmental Entity
(as defined below) of competent jurisdiction from consummating the transactions
contemplated by this Agreement. The term "Governmental Entity" shall mean any
Federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign.
b. Consents and Approvals. All waivers, licenses, agreements, permits,
consents, approvals or authorizations of third parties or Governmental Entities
or any modifications or amendments to existing agreements with third parties
required to be obtained in connection with the consummation of the transactions
contemplated by this Agreement shall have been obtained and shall be in full
force and effect and without conditions or limitations which unreasonably
restrict the ability of the parties hereto to carry out the transactions
contemplated hereby.
c. Representations and Warranties. The representations and warranties of
eFax and JFAX contained in this Agreement shall be true and correct with the
same effect as if such representations and warranties had been made as of the
Closing Date.
d. Covenants. eFax and JFAX shall have performed and complied with all
of their agreements, covenants and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing Date and shall have
delivered at the Closing those items set forth in Sections 2 and 3.
e. Merger. All conditions necessary to complete the Merger, except for
the filing of the appropriate certificate of merger with the Secretary of the
State of Delaware, shall have been fulfilled.
f. Certificates. JFAX and eFax shall have delivered to IGC such
certificates of officers of JFAX and eFax, respectively, to evidence compliance
with the conditions set forth in this Section 22 as may reasonably be requested
by IGC.
23. Conditions to the Obligations of eFax and JFAX. The obligation of
eFax and JFAX to deliver the items at the Closing required pursuant to Sections
2 and 3 and to grant the release set forth in Section 5 at the Closing is
subject to the fulfillment, or the waiver by JFAX and eFax, of each of the
following conditions on or before the Closing:
a. Legal Action. There shall not have been instituted or threatened
(orally or in writing) any legal proceeding seeking to prohibit or threaten the
consummation of the transactions contemplated by this Agreement. None of the
parties hereto shall be prohibited by any order, writ, injunction or decree of
any Governmental Entity of competent jurisdiction from consummating the
transactions contemplated by this Agreement.
15
b. Consents and Approvals. All waivers, licenses, agreements, permits,
consents, approvals or authorizations of third parties or Governmental Entities
or any modifications or amendments to existing agreements with third parties
required to be obtained in connection with the consummation of the transactions
contemplated by this Agreement shall have been obtained and shall be in full
force and effect and without conditions or limitations which unreasonably
restrict the ability of the parties hereto to carry out the transactions
contemplated hereby.
c. Representations and Warranties. The representations and warranties of
IGC contained in this Agreement shall be true and correct with the same effect
as if such representations and warranties had been made as of the Closing Date.
d. Covenants. IGC shall have performed and complied with all of its
agreements (including the provision of the services required pursuant to Exhibit
C and the requirements of Section 11), covenants and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing and
shall have delivered at the Closing those items set forth in Section 1.
e. Merger. All conditions necessary to complete the Merger, except for
the filing of the appropriate certificate of merger with the Secretary of the
State of Delaware, shall have been fulfilled.
f. Certificates. IGC shall have delivered to JFAX such certificates of
officers of IGC to evidence compliance with the conditions set forth in this
Section 23 as may reasonably be requested by JFAX.
24. Covenants of JFAX and eFax. JFAX covenants and agrees with IGC that
prior to the Closing, JFAX shall prepare and file with the Nasdaq National
Market ("NASDAQ") an additional shares listing application, acceptable to
NASDAQ, listing the JFAX Shares and shall take all steps necessary to cause the
JFAX Shares to be approved for listing on NASDAQ. Prior to the Closing, eFax
shall not assign or convey in any manner to any other party any of its rights or
obligations pursuant to the Development Agreement, the Co-Location Agreement or
any other agreement or understanding between IGC and eFax, whether written or
oral, or in connection with any matter as to which eFax is granting a release
pursuant to Section 5.
25. Covenants of IGC. Prior to the Closing, IGC shall not assign or
convey in any manner to any other party any of its rights or obligations
pursuant to the Development Agreement, the Co-Location Agreement or any other
agreement or understanding between IGC and eFax, whether written or oral, or in
connection with any matter as to which eFax is granting a release pursuant to
Section 4.
16
26. Transfer of Restricted Securities.
a. Restricted Securities. "Restricted Securities" means (i) the JFAX
Shares and (ii) any other shares of capital stock of JFAX issued in respect of
such shares (as a result of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that the JFAX Shares
which are Restricted Securities shall cease to be Restricted Securities (x) upon
any sale of such shares pursuant to a registration statement under the
Securities Act, Section 4(l) of the Securities Act or Rule 144 under the
Securities Act or (y) at such time as such shares become eligible for sale under
Rule 144(k) under the Securities Act.
b. Requirements for Transfer. Restricted Securities shall not be sold or
transferred, and any such purported sale or transfer shall be void and of no
force and effect, unless either (i) the Restricted Securities first shall have
been registered under the Securities Act or (ii) JFAX first shall have been
furnished with an opinion of legal counsel from a law firm and in form and
substance reasonably satisfactory to JFAX to the effect that such sale or
transfer is exempt from the registration requirements of the Securities Act.
c. Legend. Each certificate representing Restricted Securities shall
bear a legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL SUCH SECURITIES ARE REGISTERED
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED."
The foregoing legend shall be removed from the certificates representing
any Restricted Securities, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144(k) under the Securities
Act.
27. Miscellaneous.
27.1 Termination Events.
a. This Agreement may, by notice given prior to or at the Closing,
be terminated: (i) by any party hereto if any Governmental Entity (A) shall have
issued an
17
order or taken any other action permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order or
other action shall have become final and nonappealable or (B) shall have failed
to issue an order or to take any other action necessary to fulfill the
conditions to this Agreement and such failure of a request to issue such order
or take such other action shall have become final and nonappealable; or (ii) by
any party if the Merger has not occurred on or before December 31, 2000, or such
later date as the parties may agree upon. If eFax and JFAX make the good faith
determination that the Merger will not occur on or prior to December 31, 2000,
they shall promptly notify IGC of such fact and this Agreement shall
automatically terminate upon IGC's receipt of such notification.
b. Each party's right of termination under this Section 27.1 is in
addition to any other rights it may have under this Agreement or otherwise, and
the exercise of a right of termination will not be an election of remedies. If
this Agreement is terminated pursuant to this Section 27.1, all further
obligations of the parties under this Agreement will terminate, except that the
obligations in Sections 27.4, 27.7, 27.8 and 27.15 and eFax's obligations to
make the payments set forth in the third sentence of Section 9(b) will survive.
27.2 Successors and Assigns. This Agreement may not be assigned by
operation of Law or otherwise without the express written consent of all of the
parties. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Notwithstanding the preceding sentence, following the Merger, eFax may assign
any rights which it has pursuant to this Agreement or the Software License
Agreement to JFAX. The Merger is expressly consented to by IGC for purposes of
this Section 27.2.
27.3 Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of this
Agreement and the closing of the transactions contemplated hereby, including any
investigation on the part of any party hereto.
27.4 Expenses. All costs and expenses, including, without limitation,
fees and disbursement of counsel, financial advisors and accountants, incurred
by any party hereto in connection with this Agreement and the transactions
contemplated hereby shall be paid by the person incurring such expenses whether
or not the Merger shall have occurred.
27.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in
18
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
27.6 Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement, each
party hereto shall be entitled to specific performance of the agreements and
obligations of each other party hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
27.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California (without giving
effect to its conflicts or choice of law provisions). Each of the parties hereto
irrevocably agrees that all legal actions or proceedings with respect to this
Agreement shall be brought and determined in the Federal court in the Northern
District of the State of California or in the state court in Santa Xxxxx County,
California, and each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the jurisdiction of the aforesaid
courts. Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure to serve process in accordance with applicable Law, (ii)
that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts and (iii) to the fullest
extent permitted by applicable Law, that (A) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (B) the venue of such suit,
action or proceeding is improper and (C) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
27.8 Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore it hereby irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any proceeding directly or indirectly arising out of or relating to this
Agreement or the transactions contemplated hereby.
27.9 Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) two
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via a
reputable nationwide overnight courier service
19
guaranteeing next business day delivery, in each case to the intended recipient
as set forth below:
If to JFAX:
XXXX.XXX, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to eFax:
xXxx.xxx
0000 Xxxxxx Xxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Secretary
Fax: (000) 000-0000
with a copy to:
Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx
A Professional Corporation
Three Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to IGC:
Integrated Global Concepts, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
20
Fax: (000) 000-0000
with a copy to:
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties written notice in the manner set forth in
this Section 27.9.
27.10 Complete Agreement. This Agreement (including the exhibits and
schedules) constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof and supersedes all prior or
contemporaneous agreements and understandings, both written and oral, relating
to their respective subject matter.
27.11 Amendment This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
27.12 Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
27.13 Counterparts; Facsimile Signatures. This Agreement may be
transmitted via telecopier and executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which when taken together
shall constitute one and the same document. This Agreement may be executed by
facsimile signatures.
27.14 Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
27.15 Public Announcements. Each of the parties hereto agrees that it
will not, without the prior approval of the other party, issue any press release
or written statement
21
for general circulation relating to the transactions contemplated hereby, except
as otherwise required by applicable law or regulation or NASDAQ rules (provided
that the issuing party shall nevertheless provide the other party with notice
of, and the opportunity to review, any such press release or written statement).
27.16 Future Waiver. No waiver by a party hereto of any condition or
provision of this Agreement shall be deemed a waiver of any similar or
dissimilar condition or provision at the same or any prior or subsequent time.
27.17 Different Facts. Each of the parties assumes the risk that one or
more assumptions or beliefs upon which it relies in entering into this Agreement
may subsequently be found to be incorrect or may change in the future and such
reliance or alteration in the facts relied upon shall not diminish or otherwise
affect the validity or enforceability of this Agreement.
27.18 Construction. This Agreement will not be construed against the
party preparing it, but will be construed as if prepared by all parties.
27.19 Co-Location and Development Agreement. The Co-Location and
Development Agreements shall be deemed to be amended as necessary to be
consistent with the terms of this Agreement; provided that, if this Agreement is
terminated prior to the Merger, such amendments shall no longer be in effect. In
addition, effective as of the Closing, IGC waives its first right to offer to
purchase any fax-related servers pursuant to Section A of Exhibit A to the
Co-Location Agreement.
27.20 Escrowed JFAX Shares. As security solely for IGC's obligation to
provide the Transition Services pursuant to the terms of this Agreement, IGC
agrees that the Escrowed JFAX Shares shall be deposited into escrow pursuant to
the Escrow Agreement with an institution selected by JFAX with IGC's reasonable
concurrence, to be held and distributed as provided below and in the Escrow
Agreement. JFAX agrees to deposit the Escrowed JFAX Shares into the escrow
account on the Closing Date. The parties agree that the Escrowed JFAX Shares
shall be released from escrow in accordance with the following schedule:
(a) One-half of the Escrowed JFAX Shares shall be released on the
earlier to occur of (i) ninety (90) days following the Closing Date and (ii) the
date upon which the customer/user data base information and the network
infrastructure with respect to fifty percent (50%) of eFax's customers as of the
Closing have been transitioned to a new operational system with JFAX in the
manner contemplated by paragraph 1.c. of Exhibit C attached hereto.
(b) All remaining Escrowed JFAX Shares shall be released on the date
upon which the customer/user data base information and the network
infrastructure with
22
respect to one hundred percent (100%) of eFax's customers have been transitioned
to a new operational system with JFAX in the manner contemplated by paragraph
1.c. of Exhibit C attached hereto.
[Signature page follows]
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXX.XXX
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: President
XXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
INTEGRATED GLOBAL CONCEPTS, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxxx
Title: President
24
EXHIBIT A
DECLARATION OF
REGISTRATION RIGHTS AGREEMENT
This Declaration of Registration Rights (the "Agreement") is made and
entered into as of _______ __, 2000, by and among XXXX.XXX, Inc., a Delaware
corporation (the "Company"), and Integrated Global Concepts, Inc., an Illinois
corporation (the "Holder").
This Agreement is made pursuant to the Agreement of Understanding, dated
as of June ___, 2000, by and among the Company, xXXX.Xxx ("EFAX"), and the
Holder (the "Agreement of Understanding").
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, certain terms (not otherwise defined
herein) shall have the meanings set forth in the Agreement of Understanding, and
the following terms shall have the following respective meanings:
AFFILIATE of a specified Person means any other Person that, directly
or indirectly, through one or more intermediates, controls, is controlled by or
is under common control with the Person specified, or who holds or beneficially
owns 50% or more of the equity interest in the Person specified or 50% or more
of the voting securities of the Person specified.
COMMISSION means the Securities and Exchange Commission.
COMMON STOCK means (except where the context otherwise indicates) the
Common Stock of the Company, par value $.01 per share, as constituted as of the
date hereof, and any capital stock into which such Common Stock may thereafter
be changed, and shall also include (i) capital stock of the Company of any other
class (regardless of how denominated) issued to the holders of shares of any
Common Stock upon any reclassification thereof which is also not preferred as to
dividends or liquidation over any other class of stock of the Company and which
is not subject to redemption and (ii) shares of common stock of any successor
corporation or acquiring corporation of the Company that may be acquired by
holders of the previous Common Stock.
CONTINUOUSLY EFFECTIVE means, with respect to a specified
registration statement, that it shall not cease to be effective and available
for transfers of Registrable Securities thereunder for longer than any thirty
(30) consecutive business days prior to the Expiration Date.
EFFECTIVENESS DATE means the date that is as soon as practicable, but
in no event more than sixty (60) days after the Filing Date.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
EXPIRATION DATE means the earlier of (i) the second (2nd) anniversary
of the date of this Agreement, or (ii) the date on which the Holder no longer
holds any Registrable Securities, provided that if any Holder is an Affiliate of
the Company, the Expiration Date shall
25
be the date which is three (3) months after the date upon which such Holder
ceases to be an Affiliate (provided further that in no event will the Expiration
Date be later than the fourth (4th) anniversary of the date of this Agreement.
FILING DATE means the date which is fifteen (15) days following the
date hereof.
HOLDER shall have the meaning set forth in the first paragraph
hereof, and as the context may require shall include its Affiliates and their
respective Transferees.
MAJORITY HOLDERS means, at the time of determination, the holders of
a majority of the Registrable Securities.
PERSON means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or governmental or other agency or political
subdivision thereof.
REGISTRABLE SECURITIES means any shares of Common Stock of the
Company owned by a Holder and received pursuant to the Agreement of
Understanding and any other shares of the Company's Common Stock issued in
respect of such shares, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (x) such securities shall have been disposed of
pursuant to an effective registration statement, or (y) such securities shall
have been transferred to any Person other than the Holder pursuant to Rule 144
(or any successor provision) or (z) shall be transferable pursuant to paragraph
(k) of Rule 144 (or any successor provision) under the Securities Act.
REGISTRATION EXPENSES means all expenses incident to the performance
of or compliance with the registration rights granted herein, including, without
limitation, all registration, filing, listing and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and expenses of the Company's counsel, the fees and expenses of
the Company's independent public accountants, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, and any fees and disbursements of underwriters
customarily paid by issuers and sellers of securities; provided, however, that
Registration Expenses shall not include underwriting discounts, commissions and
transfer taxes, if any, applicable to the Registrable Securities all of which
shall be borne by the Selling Holders.
RULE 144 means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
SECURITIES ACT means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the Commission
promulgated thereunder.
SELLING HOLDERS means those Holders who are participating in a
registration and who are selling Registrable Securities.
SHARES means the Company's Common Stock.
TRANSFEREE means the holder of Registrable Securities by a transfer
from a Holder or an Affiliate of a Holder; provided, however, that a Person
acquiring such Registrable Securities pursuant to a transfer under an effective
registration statement or pursuant to a sale under Rule 144 (or any successor
provision) shall not be a Transferee.
26
2. REGISTRATION RIGHTS.
(a) SHELF REGISTRATION.
(i) The Company shall prepare and file with the Commission on or
prior to the Filing Date a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration"). The Initial Shelf Registration
shall be on Form S-3 or another appropriate form permitting registration of such
Registrable Securities for resale by the Holders and shall include appropriate
provisions for sales by donees and pledgees of any Holder. The Company shall use
its reasonable efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act on or prior to the Effectiveness Date and to
keep the Shelf Registration Continuously Effective under the Securities Act
until the Expiration Date (the "Effectiveness Period"), or such shorter period
ending when (i) all Registrable Securities covered by the Shelf Registration
have been sold, or (ii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(ii) If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the Registrable
Securities registered thereunder), the Company shall use its reasonable efforts
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within thirty (30) business days of such
cessation of effectiveness amend the Initial or Subsequent Shelf Registration in
a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
shall use its reasonable efforts to cause the Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to keep such
Registration Statement Continuously Effective until the end of the Effectiveness
Period.
(iii) The Company shall supplement and amend the Initial Shelf
Registration or Subsequent Shelf Registration, as the case may be, if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration, if required by the Securities
Act.
(b) REGISTRATION STATEMENT FORM. The Company may, if permitted by
law, effect any registration required hereunder by the filing of a Registration
Statement on Form S-3 (or any successor or similar short-form registration
statement).
(c) EXPENSES. The Company shall pay all Registration Expenses
incurred in connection with the registration of Registrable Securities pursuant
to Section 2(a).
(d) EFFECTIVE REGISTRATION STATEMENT. Any registration pursuant to
this Agreement shall not be deemed to have been effected unless it has become
effective with the Commission.
27
(e) GOOD-FAITH RELIANCE.
The Company may rely and shall be protected in relying upon any resolution,
certificate, opinion, request, communication, demand, receipt or other paper or
document in good faith believed by it to be genuine and to have been signed or
presented by the proper party or parties.
3. REGISTRATION PROCEDURES.
(a) Whenever the Company effects the registration of any Registrable
Securities under the Securities Act hereunder, the Company, as expeditiously as
possible and subject to the terms and conditions herein, will use its reasonable
efforts to:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and to cause such
registration to become effective and remain effective as provided herein;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement Continuously
Effective and to comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement in
accordance with the intended method of disposition by the Selling Holders
thereof until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the Selling Holders
thereof set forth in such registration statement or, if earlier, until the
Expiration Date;
(iii) furnish to the Selling Holders such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under the
Securities Act, in conformity with the requirements of the Securities Act;
(iv) register or qualify all Registrable Securities covered by
such registration statement under such other United States state securities or
blue sky laws of such jurisdictions as the Selling Holders shall reasonably
request, to keep such registration statement qualification in effect for so long
as such registration remains in effect, and take any other action which may be
reasonably necessary or advisable to enable the Selling Holders to consummate
the disposition in such jurisdictions of the Registrable Securities owned by the
Selling Holders in accordance with the intended method of disposition by the
Selling Holders thereof, except that the Company shall not for any such purpose
be required to (a) qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified, (b) subject itself to taxation
in any such jurisdiction or (c) consent to general service of process in any
such jurisdiction;
(v) in any underwritten offering, and if reasonable and customary
in the context of such offering, use its reasonable efforts to furnish to the
Selling Holders a signed counterpart, addressed to the Selling Holders as
sellers of Registrable Securities (and the underwriters, if any), of
(x) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting
28
agreement), reasonably satisfactory to the Selling Holders in their
reasonable judgment, and
(y) a "comfort" or procedures letter, reasonably satisfactory
to the Selling Holders dated the effective date of such registration
statement (or, if such registration includes an underwritten public
offering, dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have certified the
Company's financial statements included in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
the accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such other
financial matters as such seller or such Holder (or the underwriters, if any)
may reasonably request;
(vi) immediately notify the Selling Holders, at any time when a
prospectus is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in a
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and promptly prepare and furnish to
the Selling Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus and registration statement as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(vii) comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12)
months, but not more than eighteen (18) months, beginning with the first full
calendar month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(viii) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
(ix) list all Registrable Securities covered by such registration
statement on any securities exchange on which any of the Common Stock is then
listed; and
(x) use every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(b) As a condition of these registration rights set forth herein, the
Company may require the Selling Holders, at their own expense, to furnish the
Company with such information regarding such Selling Holders and the
distribution of such securities as the
29
Company may from time to time reasonably request in writing, and the Selling
Holders agree to provide such information as is reasonably requested.
(c) The Selling Holders agree (A) that upon receipt of any notice
from the Company of the happening of any event of the kind described in
subdivision (vi) of Section 3(a), the Selling Holders will forthwith discontinue
their disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until the Selling Holders'
receipt of the copies of the supplemented or amended prospectus contemplated by
subdivision (vi) of Section 3(a) and, if so directed by the Company, will
deliver to the Company all copies, other than permanent file copies, then in the
Selling Holders' possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice and (B) that they will
immediately notify the Company, at any time when a prospectus relating to the
registration of such Registrable Securities is required to be delivered under
the Securities Act, of the happening of any event as a result of which
information previously furnished by the Selling Holders to the Company for
inclusion in such prospectus contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made.
(d) Notwithstanding anything in this Agreement to the contrary, the
Company will not be required to file any registration statement hereunder if it
receives an opinion of counsel of recognized expertise in Securities Act
matters, to the effect that the sale of all Registrable Securities in the manner
contemplated by the Selling Holders may be effected at any one time without
registration regardless of the identity or status of the buyer(s) of such
Registrable Securities. Also, the Company will not be required to file any
registration statement to cover Registrable Securities that are already
registered pursuant to a previous registration statement that is effective and
available for use by the Holders of such Registrable Securities to effect sales
thereof at such time.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN OFFERINGS. If requested by the underwriters for any
underwritten offering including the Selling Holders pursuant to a registration
under Section 2, the Company will enter into an underwriting agreement with such
underwriters for such offering and with the Selling Holders, such agreement to
be in form and substance reasonably satisfactory to the Company, the Selling
Holders and the underwriters and to contain such representations and warranties
by the Company and such other terms as are customarily contained in agreements
of this type, including, without limitation, indemnities to the effect and to
the extent substantially as provided in Section 6. The Selling Holders shall be
a party to such underwriting agreement and may, at their option (reasonably
exercised), require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of the Selling
Holders and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to
the obligations of the Selling Holders.
(b) SELECTION OF UNDERWRITERS. If a registration pursuant to Section
2 involves an underwritten offering, then the Company will be entitled to select
the underwriter or underwriters and the Underwriters' Representative therefor.
30
5. INDEMNIFICATION; CONTRIBUTION. If any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company shall indemnify and hold harmless each Selling
Holder, each Person, if any, who controls such Selling Holder within the meaning
of the Securities Act, and each officer, director, partner, and employee of such
Selling Holder and such controlling Person, against any and all losses, claims,
damages, liabilities and expenses (joint or several), including reasonable
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or any other federal or state laws, insofar
as such losses, claims, damages, liabilities and expenses arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto;
(ii) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein
not misleading; or
(iii) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law; provided, however, that the indemnification
required by this Section 5(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or expense to the extent (and only to the
extent) that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished to the
Company by any indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
Section 5 shall not apply to any underwriter to the extent that any such loss is
based on or arises out of an untrue statement or alleged untrue statement of a
material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such person at or prior to the confirmation of sale to such
person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so. The Company shall also indemnify underwriters
participating in the distribution and each person who controls any such
underwriter (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders. The Company may also require in any
underwriting agreement that it signs, reasonable indemnification and
contribution agreements in favor of the Company from the underwriters and the
Selling Holders.
(b) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action, suit, proceeding, investigation
or threat thereof made in writing for which such indemnified party may make a
claim under this Section 5, such
31
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel at its
own expense except as provided below. The failure to deliver written notice to
the indemnifying party within a reasonable time following the commencement of
any such action, if and to the extent prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 6 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 5. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within sixty (60) days of written notice thereof
to the indemnifying party (regardless of whether it is ultimately determined
that an indemnified party is not entitled to indemnification hereunder, but in
such event such amounts shall be refunded). Any such indemnified party shall
have the right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses or (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or in addition to those available to the indemnifying
party and that the assertion of such defenses would create a conflict of
interest such that counsel employed by the indemnifying party could not
faithfully represent the indemnified party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action, claim or
proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
claim or proceeding or separate but substantially similar or related actions,
claims or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such indemnified parties, unless in the reasonable
judgment of such indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
action, claim or proceeding, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel or
counsels). No indemnifying party shall be liable to an indemnified party for any
settlement of any action, proceeding or claim without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
(c) If the indemnification required by this Section 5 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 5:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect
32
the relative fault of the indemnifying party and indemnified party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. Notwithstanding the provision
of this subsection (i), each indemnified party shall not be required to
contribute any amount in excess of the net proceeds such indemnified party
received from the sale of Registrable Securities. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 5(a), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 5(c)(i). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(d) If indemnification is available under this Section 5, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 5 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 5(c).
(e) The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 5 shall survive the completion of any
offering of Registrable Securities pursuant to a registration statement under
this Agreement, and otherwise.
6. COVENANTS OF THE COMPANY. The Company hereby agrees and covenants as
follows:
The Company shall file as and when applicable, on a timely basis, all
reports required to be filed by it under the Exchange Act. If the Company is
ever not required to file reports pursuant to the Exchange Act, thereupon the
request of any Holder of Registrable Securities, the Company shall make publicly
available the information specified in subparagraph (c)(2) of Rule 144 of the
Securities Act, and take such further action as may be reasonably required from
time to time and as may be within the reasonable control of the Company, to
enable the Holders to transfer Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act or any similar rule or regulation hereafter adopted by
the Commission.
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, claims, demands, waivers and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if delivered
personally by courier, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
33
(a) The Holder at:
Integrated Global Concepts, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
(b) The Company at:
XXXX.XXX, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, President and CEO, and
Xxxxxxxx X. Xxxxxxxx, Secretary and General Counsel
with a copy to:
Xxxxx X. Xxxxx, Xx.
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7.2 LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
7.3 ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
7.4 HEADINGS. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
7.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes
34
all prior agreements and understandings between the parties with respect to its
subject matter. 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 by a written instrument duly
executed by the Company and the Majority Holders. Each Holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by an amendment
or waiver authorized by this Section 7.5, whether or not any such Registrable
Securities shall have been marked to indicate such consent.
7.6 ASSIGNABILITY. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto;
provided, however, that the registration rights hereunder shall only be
available to Holders.
7.7 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.
7.8 VALIDITY, DUE AUTHORIZATION. By its execution hereof, the
Company and Suretalk each represents and warrants that it has the corporate
power to execute, deliver and perform the terms and provisions of this Agreement
and that it has taken all appropriate and necessary corporate action to
authorize the transactions contemplated hereby and the execution, delivery and
performance of this Agreement.
7.9 SPECIFIC PERFORMANCE. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each party hereto shall be entitled to specific performance of the
agreements and obligations of each other party hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
XXXX.XXX, INC.
By:
-------------------------------------
Name:
Title:
INTEGRATED GLOBAL CONCEPTS, INC.
By:
-------------------------------------
Name:
Title:
35
EXHIBIT B
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") is made and entered
into as of _______ __, 2000 by and among xXxx.xxx, a Delaware corporation
("eFax"), XXXX.XXX, Inc., a Delaware corporation ("JFAX"), and Integrated Global
Concepts, Inc., an Illinois corporation ("IGC").
BACKGROUND
A. IGC and eFax have entered into a Software Development Agreement,
executed on February 16, 1999 (the "Development Agreement"), and a Co-Location
Agreement, executed on February 16, 1999 (the "Co-Location Agreement"), pursuant
to which IGC provides certain development and co-location services to eFax.
B. eFax, IGC and JFAX have entered into an Agreement of Understanding,
dated June __, 2000 (the "Agreement of Understanding"), pursuant to which JFAX
on and after the Closing Date (as such term is defined in the Agreement of
Understanding) will issue 2.0 million shares of its Common Stock, par value
$0.01 per share (the "JFAX Shares"), to IGC pursuant to the Agreement and eFax
and JFAX will provide additional consideration to IGC.
C. As part of the consideration for the JFAX Shares and other
consideration to be provided by JFAX and eFAX, IGC has agreed to enter into this
Agreement.
NOW, THEREFORE, for good and valuable consideration, eFax, JFAX and IGC
agree as follows:
Article I -- Definitions
As used in this Agreement, each term listed below shall have the meaning
that is given after it:
1.1 "Correction" means a modification to the Licensed Software that
resolves Errors or bugs to the extent such modification occurs prior to the date
of the termination of the Transition Services in accordance with the provisions
of Section 9(b) of the Agreement of Understanding.
1.2 "Enhancements" means modifications to the Licensed Software other
than Corrections. Enhancements include, for example, modifications that improve
the efficiency and effectiveness of program functions, change such functions or
create new ones.
36
1.3 "Errors" means defects that cause the performance of the Licensed
Software to deviate materially from the program functions and specifications.
1.4 "IGC Enhancement" means any Enhancement to the Licensed Software
developed by or on behalf of IGC after the date of this Agreement, but on or
prior to the termination of the Transition Services in accordance with the
provisions of Section 9(b) of the Agreement of Understanding.
1.5 "Intellectual Property Rights" means (a) all proprietary rights
(such as, for example, patents, copyrights, trade secrets, confidential
information and all rights to apply for or register the same) in inventions,
algorithms, works of authorship, products or processes, whether or not
patentable or copyrightable and whether or not reflected in any patent
applications or copyright registration or any other public applications,
registrations or filings, related to the Licensed Software, including any IGC
Enhancements or Corrections, and (b) to the extent not set forth in (a), all
Licensed Patents.
1.6 "Licensed Patents" means any patents or patent applications and any
patent issued from such applications and any and all reissues, substitutions,
confirmations, registrations, revalidations, additions, continuations,
continuations in part or divisions of or to such patents or patent applications
thereof to the extent of IGC's interest therein, together with all corresponding
foreign applications and patents which have been or may be filed thereon.
Licensed Patents shall include any of the foregoing with respect to any patent
application made by IGC or on behalf of IGC or its shareholders, officers,
employees or principals prior to the date of this Agreement or within two years
following the date of this Agreement.
1.7 "Licensed Software" means the software programs specified in
Schedule A to this Agreement, together with any Corrections or IGC Enhancements
after the date of this Agreement.
1.8 "Object Code" means machine-readable computer code for the Licensed
Software.
1.9 "Party" means IGC, JFAX or eFax, as applicable. "Parties" shall
refer to all of IGC, JFAX and eFax.
1.10 "Program Documentation" means all product documentation and user
manuals for the Licensed Software.
1.11 "Source Code" means human-readable computer code for the Licensed
Software.
2
37
1.12 "Term" has the meaning set forth in Section 7.1.
1.13 "Transition Services" shall have the meaning set forth in Section
9(a) of the Agreement of Understanding.
Article II - License Grant
2.1 Grant of License. IGC grants to eFax and to JFAX, to the extent that
it legally may and subject to the express limitations of this Agreement, a
perpetual, assignable, non-exclusive, worldwide, royalty-free license (with the
right to sublicense through multiple levels of sublicensees) to use, copy,
reproduce, create derivative works of, distribute, publicly perform and publicly
display by all means now known or later developed the Licensed Software and the
other Intellectual Property Rights for any purpose. IGC will initially provide
eFax with up to 15 copies on CD-ROM of the Licensed Software in Source Code form
and in Object Code form as eFax may reasonably request. In addition, IGC agrees
to provide eFax with copies of all of the applicable Program Documentation. This
grant in no way limits any of the licenses transferred and granted to eFax
pursuant to the Development Agreement or otherwise.
Article III - Enhancements, Assistance
3.1 Notification of Enhancements. IGC agrees to promptly notify eFax of
any IGC Enhancements or Corrections, to fully disclose the IGC Enhancements and
Corrections to eFax and to provide to eFax Source Code for such IGC Enhancements
and Corrections.
3.2 Assistance. If requested by eFax, IGC agrees to provide, as part of
the Transition Services, reasonable instruction to eFax in the use of any
License Programs, including the IGC Enhancements.
Article IV -- Patent Prosecution and Intellectual Property Rights
Maintenance
4.1 IGC to Prosecute and Maintain. During the Term, IGC may, in its sole
discretion and at its sole expense, prosecute and maintain patent protection for
its technology; provided, however, that IGC shall not be required to seek any
patent protection. The rights to seek and maintain patent protection shall
include any IGC Enhancements.
4.2 Licensed Patents. IGC represents that Schedule 4.2 sets forth a
complete and accurate description of all measures taken by IGC to date to
prosecute patent protection for any Licensed Patent or to protect any other
Intellectual Property Right in any country. Any patent or other intellectual
property protection granted to IGC in connection with the Licensed Software or
the Licensed Patents shall be included as part
3
38
of the license granted to eFax and JFAX pursuant to Section 2.1.
Article V -- Infringement
5.1 Notice. Each of eFax, JFAX and IGC agrees that during the Term it
will promptly notify the other Parties in the event that it becomes aware of any
potential infringement of any Intellectual Property Rights.
5.2 Obligations. None of eFax, JFAX nor IGC shall have any obligation to
protect any Intellectual Property Rights from infringement. IGC, however, shall
have the right, in the sole judgment and discretion, to take such action as it
deems necessary, proper and justified to protect the Licensed Software and other
Intellectual Property Rights from infringement. If IGC elects to initiate any
infringement litigation, eFax and JFAX agree to execute such documents and
otherwise cooperate with IGC as may be necessary (but without significant
expense to eFax or JFAX) to perfect and maintain such Intellectual Property
Rights.
5.3 Notice to eFax and IGC. If IGC elects not to initiate infringement
litigation pursuant to this Article V, it will promptly notify eFax and JFAX and
eFax and JFAX may elect to bring suit against the alleged infringer at its sole
expense, and in its sole discretion. IGC will execute such documents and
otherwise cooperate with eFax or JFAX as may be necessary (but without
significant expense to IGC) to perfect and maintain such Intellectual Property
Rights.
5.4 Settlements and Recoveries. Any recovery, lump-sum settlement or
royalties recovered by eFax, JFAX or IGC in protecting the Intellectual Property
Rights shall be split as follows: (a) the Party paying for the legal proceedings
shall fully recover all of its out-of-pocket expenses and a reasonable charge
(as determined by paying Party's management) for the time of the paying Party's
personnel (it shall be deemed reasonable to allocate 150% of the employee's base
salary for the time spent on any proceeding) prior to any other payments, then
to the extent of any additional payments (b) in proportion to the value of the
Intellectual Property Rights to each Party as determined by an appraiser or
appraisers selected by the Parties. Unpaid amounts to the paying Party under (a)
shall earn interest at the rate of 1% per month. The Parties agree that any
determination of value by the appraiser or appraisers shall be definitive.
Article VI - Representations and Warranties
6.1 Representations and Warranties. IGC represents and warrants to eFax
and JFAX that (a) IGC has developed and owns, and has the right to grant the
license to, the Licensed Software and the other Intellectual Property Rights in
accordance with the terms and conditions of this Agreement; (b) neither the
Licensed Software nor any other Intellectual Property Right is the subject of
any encumbrance, lien or claim of ownership
4
39
by any third party prohibiting or otherwise superior to the license granted
hereunder; (c) neither the Licensed Software nor any other Intellectual Property
Right infringes or will infringe the intellectual property rights of any third
party; and (d) IGC has received no claims of any such infringement. IGC
represents that, except as set forth on Schedule 4.2 attached hereto, it has not
been granted any patents, filed any patent applications or registered any
copyrights or other Intellectual Property Rights in any country with regard to
the Licensed Software. Except as set forth on Schedule 6.1 attached hereto,
neither eFax nor JFAX to best of its knowledge is aware of any claim that the
Licensed Software infringes the intellectual property right of any third party.
6.2 Representation and Warranty Limit. Notwithstanding the provisions of
Section 6.1, the representation and warranty set forth in Section 6.1 (c) shall
not apply to any infringement or alleged infringement occurring after the date
of this Agreement and IGC shall not be liable for any liability as a result of
its representation and warranty set forth in Section 6.1(c) being untrue in
excess of $_________ [200,000, times the closing price of JFAX Common Stock on
the last trading day prior to the Closing].
Article VII -- Term and Termination
7.1 Term. This Agreement shall continue in full force and effect from
the date of this Agreement until the expiration of the last to expire of any
rights constituting or related to the Intellectual Property Rights, unless
earlier terminated by agreement of the Parties.
7.2 Continuing Rights. Termination of this Agreement for any reason
shall be without prejudice to the rights and obligations provided in Articles V
and VI and this Article VII.
Article VIII -- Miscellaneous
8.1 Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each Party
hereto shall be entitled to specific performance of the agreements and
obligations of each other Party hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
8.2 No Waiver. The waiver of any Party of any right under this Agreement
or of any breach of this Agreement shall not be deemed a waiver of future
enforcement of such right or the waiver of subsequent breach, whether or not
similar.
8.3 Notices. All notices, reports, requests or demands required or
permitted under this Agreement shall be forwarded, charges prepaid, by
registered air mail or by air
5
40
courier or may be sent by facsimile, with confirmed transmission, properly
addressed to the respective Parties. Notices given will be deemed effective upon
actual receipt at the addresses as follows (or such other address as designated
by a Party in writing to the other Parties):
If to eFax:
xXxx.xxx
0000 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Secretary
Fax: (000) 000-0000
with a copy to:
Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx
A Professional Corporation
Three Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to JFAX:
XXXX.XXX, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to IGC:
Integrated Global Concepts, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
6
41
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
8.4 Governing Law. This Agreement is to be construed under the laws of
the State of California, U.S.A.
8.5 Independent Contractors. No agency, partnership or joint venture is
hereby established. Each Party shall act hereunder as an independent contractor.
No Party shall enter into or incur, or hold itself out to third parties as
having authority to enter into or incur on behalf of the other Parties, any
contractual obligations, expenses or liabilities whatsoever.
8.6 Assignment. This Agreement shall be binding upon the Parties and
their respective successors and permitted assigns. This Agreement may be
otherwise assigned by a Party only with the prior written consent of the other
Parties; provided, however, that eFax may assign any of its rights and
obligations hereunder, in whole or in part, to JFAX.
8.7 No Third-Party Beneficiary. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the Parties hereto, or
their respective successors and permitted assigns, any benefits, rights or
remedies.
8.8 Severability. Should any provision of this Agreement be, become or
be held illegal, invalid or unenforceable to any extent, then such provision
shall be modified rather than held illegal, invalid or unenforceable if possible
in order to achieve the intent of the Parties; such provision shall be
ineffective only to the extent of such unenforce-ability or prohibition and
otherwise be enforced to the greatest extent permitted by law; and such
unenforceability or prohibition in any jurisdiction shall not (i) invalidate or
render unenforceable the said provision as applied to other circumstances or in
any other jurisdiction or (ii) affect or invalidate the remaining provisions of
this Agreement, which shall otherwise remain in full force and effect.
8.9 Public Announcements. Each of the Parties hereto agrees that it will
not, without the prior approval of the other Parties, issue any press release or
written
7
42
statement for general circulation relating to the transactions contemplated
hereby, except as otherwise required by applicable law or regulation or NASDAQ
rules (provided that the issuing Party shall nevertheless provide the other
Parties with notice of, and the opportunity to review, any such press release or
written statement).
8.10 Integration. This Agreement constitutes the entire agreement
between the Parties hereto relating to the subject matter hereof and supersedes
all prior and contemporaneous negotiations, agreements, representations,
understandings and commitments with respect thereto except for the applicable
provisions of the Co-Location Agreement, the Agreement of Understanding and the
obligations as to confidentiality pursuant to the all prior confidentiality
agreements between eFax and IGC. No terms or provisions of this Agreement shall
be varied, extended or modified by any prior or subsequent statement, conduct or
act of any of the Parties, except by a written instrument specifically referring
to and executed in the same manner as this Agreement.
8.11 Counterparts. This Agreement and any amendments hereto 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.
8.12 Sale of Servers. In the event that eFax sells any eFax Servers
containing IGC Software (as discussed in Exhibit A to the Development Agreement)
or makes any other sale containing any Intellectual Property Rights, eFax will
not be required to make any payments to IGC in connection with such sales, and
will delete all IGC Software and any Intellectual Property Rights prior to
delivery of the sale assets to anyrchaser.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed by an authorized representative as of the date and year first above
written.
xXXX.XXX INTEGRATED GLOBAL
CONCEPTS, INC.
By: By:
------------------------------ --------------------------------
Its: Its:
----------------------------- -------------------------------
XXXX.XXX, INC.
By:
------------------------------
Its:
-----------------------------
8
43
SCHEDULE A
LICENSED SOFTWARE
"Licensed Software" shall mean all of the software (which term for all
purposes of this Schedule A shall be deemed to include all related source code,
object code, designs, algorithms, user interfaces and procedures) that eFax
and/or IGC uses as of the date of the Agreement in connection with the services
performed by eFax and/or IGC for eFax's customers or in connection with any
related billing, credit card processing, customer sign-up/provisioning,
reseller/branding support, API, user data base and web site hosting functions,
or otherwise relating to the eFax services and their use by eFax and its
customers, whether pursuant to the Development Agreement, the Co-Location
Agreement or otherwise, including, without limitation:
1. All software which is used by IGC in performing services for eFax
pursuant to the Co-Location Agreement, including, but not limited to, all IGC
software for fax communications from the Brooktrout boards, managing the fax
files through the network of servers, directing the traffic over both the
inbound and outbound T1 and E1 telephone interfaces (lines), and the web
site/network infrastructure. Such software shall include software related to
data bases of all faxes, logs, user data and other customer information as
required by the web site, billing interface and server network.
2. To the extent not included above, all software constituting,
incorporated into, forming a part of, or otherwise related to the Custom
Interface (in each case as described in the Development Agreement) or any other
Deliverables (as defined in the Development Agreement).
3. To the extent not included elsewhere, the software represented by the
Source Code deposited with an escrow agent pursuant to the terms of the Source
Code Escrow Agreement among IGC, eFax and Brambles Information Management as the
Escrow Agent, last executed on February 24, 1999.
4. To the extent not included elsewhere, any software or other
Intellectual Property Rights used by IGC in the performance of the Development
Agreement or the Co-Location Agreement.
5. Software to monitor directly and/or remotely the eFax network.
6. Software to remotely troubleshoot equipment on the network including
telephony interfaces.
7. All application program interfaces (APIs) that interface with the
system and the software for the back end processes that support them.
9
44
8. To the extent not included above, all software constituting,
incorporated into, or forming a part of, or otherwise related to the following
software modules: (i) M9XX BFT reception and conversion to email attachments,
(ii) SOHO Fax TIFF reception and conversion to email attachments, (iii) toll
free 800/888/877 etc. service, (iv) premium service as described as 30 days of
storage, (v) OCR, (vi) web site hosting, (vii) forwarding of fax messages based
on customer defined entries, (viii) automated forwarding to an email
distribution list, (ix) voice, (x) send, (xi) API, (xii) UK co-location, (xiii)
E1 interface, (xiv) spam guard, (xv) network monitoring interfaces (both server
and telephony interface monitoring), (xvi) co-brands (branding), (xvii)
co-location of non-IGC equipment, (xviii) wireless services, (xix) payment tech
to the extent developed, (xx) cover sheet generation, (xxi) financial/credit
card reporting, (xxii) fax preview, (xxiii) Try 2 Free, (xxiv) voicemail, (xxv)
voice-to-email, (xxvi) network security and (xxvii) corporate services.
9. To the extent not included above, all software identified, depicted
or otherwise referred to in the items delivered by IGC pursuant to clauses (i),
(ii), (iii) or (iv) of Section 1 of Exhibit C (Transition and the
Post-Termination Services) to the Agreement of Understanding.
10. All software created in accordance with the terms of the Transition
and Post-Termination Services Agreement (Exhibit C to the Agreement of
Understanding).
10
45
SCHEDULE 4.2
As of June 30, 2000: None
11
46
SCHEDULE 6.1
As of June 30, 2000: None
12
47
EXHIBIT C
TRANSITION AND POST-TERMINATION SERVICES
The Transition Services and the Post-Termination Services shall
be as set forth below. Terms not defined below shall have the meanings set forth
in the Agreement to which this Exhibit is attached.
1. Transition Services. The "Transition Services" shall mean the services
provided by IGC's team of developers currently used to provide development
services to eFax, including without limitation Xxxx Xxxxxxxxx, Xxxx Xxxxxxxxx,
Xxx Xxxxx and Xxxx Xxxxxx (and by any other personnel who may be required to
provide the following services) as may be necessary to provide for:
a. The continued operation, maintenance and completion of all
outstanding development work in connection with the Corporate Program, including
completion of the eFAX API functions that pertain to the Corporate Program, in
which IGC is engaged on the date of this Agreement.
b. The continued operation and maintenance of all computer software,
computer hardware and network infrastructure used by IGC in connection with the
performance by IGC under the Co-Location Agreement or otherwise in connection
with the services performed by eFax and/or IGC for eFax's customers or in
connection with any related billing, credit card processing, customer
sign-up/provisioning, reseller/branding support, API, user data base or web site
hosting functions.
c. The services necessary to transition the services provided by eFax to
its customers (the "eFax Services") to a new operational system with JFAX,
including among other tasks, IGC's assisting in transitioning the customer/user
data bases (for both eFax and HotSend related web sites) and all data fields and
customer information included therein (including without limitation all
profiles, logs, histories, subscriber data, usage data, download data, tracking
data, billing data and balances) and network infrastructure (including, without
limitation, DIDs, trunks, servers, IP space, domain and name space) to a new
system and training JFAX personnel on the organization of the relevant software
code of the current eFax system. In addition, IGC will provide those services
necessary to fulfill the requirements of Section 11 of the Agreement. JFAX shall
determine all aspects of the design, implementation and development of the new
operational system.
The "Transition Services" shall further include the creation by IGC of true,
complete and correct copies of the following:
48
i. Comprehensive system architecture diagrams and technical
documentation for the eFax network, identifying and diagramming the location of
each piece of hardware and software in the network, and detailing how each such
piece of hardware and software is connected to the eFax database, the eFax data
network and the PSTN.
ii. A comprehensive process/data flow chart for the eFax network,
detailing each of the business processes that support the billing of eFax
customers. This flow chart shall explain in reasonable detail, without
limitation: (A) how billing cycles are determined, (B) how customer usage and
resulting billing data are generated, and (C) how customer billing data are
communicated from the various points-of-presence on the eFax network to the
customer data base.
iii. Comprehensive software architecture diagrams and technical
documentation detailing, as to each system in the eFax network (including each
of the systems and modules referenced in Section 11(b) of the Agreement) the
various blocks of software/code which comprise each such system, how such blocks
have been built on top of one another, and the specific function performed by
each such block.
iv. A copy of all applicable database schemas accompanied, with
respect to each schema, by a document describing the use of such schema, each of
the tables therein, and each of the columns in those tables, as well as an
export of each such database schema and sufficient sample data for each such
schema so as to allow JFAX to duplicate the eFAX database in its entirety on a
test server for purposes of evaluating the data migration effort with the
assistance of IGC.
IGC will develop and provide the items set forth in clause (iv) above no
later than 30 days after the date of the Merger Agreement. Initially, IGC will
develop and provide, no later than 30 days after the date of the Merger
Agreement, the items set forth in clauses (i), (ii), and (iii) above in
reasonably detailed form sufficient to permit JFAX technical personnel to
understand the overall eFax network and infrastructure and to estimate the scope
of the migration effort described in paragraph c. above. Following this initial
delivery of documentation, IGC will develop and provide, within 30 days after
request by JFAX, more detailed versions of each of the items set forth in
clauses (i), (ii), and (iii) above, in each case meeting the "comprehensive"
standard set forth in such clauses and at a level of detail as specified by JFAX
following JFAX's review of the initially delivered documentation..
2. Direction of Transition Services. JFAX shall consult with and direct IGC as
to how it should assist in the Transition Services and JFAX and IGC shall
jointly determine the relative priority of transition, operations and support
tasks to be undertaken by IGC. Notwithstanding the preceding sentence, IGC will
perform the Transition Services and
49
the Post-Termination Services as an independent contractor, and nothing
contained in the Agreement or in this Exhibit shall be construed to create or
imply a joint venture, partnership, principal-agent or employment relationship
among the parties to the Agreement. No party to the Agreement shall take any
action or permit any action to be taken on its behalf which purports to be done
in the name of or on behalf of any other party to the Agreement and no party
will have any power or authority to bind any other party or create any
obligation or responsibility express or implied on the other party's behalf or
in its name.
3. Payment for the Transition Services. The consideration for IGC's performing
the Transition Services shall be the payments set forth in Section 9(b) of the
Agreement and, in the event the Closing occurs, a portion of the JFAX Shares.
4. Term of Transition Services. Unless earlier terminated pursuant to the terms
of Section 9(b) of the Agreement, the period in which IGC shall be required to
perform the Transition Services shall terminate on the first anniversary of the
date of the Agreement.
5. Post-Termination Services. The "Post-Termination Services" shall mean
technical support as eFax and/or JFAX may request from time to time following
the termination of the Transition Services. IGC agrees to provide up to 25 hours
per month of Post-Termination Services at a rate of $100 per hour for such
services during a period which shall begin upon the termination of the
Transition Services and shall end on the earlier of (a) JFAX's notification to
IGC that it will no longer require any Post-Termination Services or (b) the
first anniversary of the termination of the Transition Services. Neither eFax
nor JFAX shall be required to use any amount of the Post-Termination Services.
6. Performance of Services. All work to be performed by IGC pursuant to this
Exhibit may be performed at IGC's facilities except as may be reasonably
required by the nature of the services. IGC will perform all services in good
faith and in a timely manner and agrees to commit sufficient resources to
performing the services. IGC agrees to make the Transition Services one of its
high priorities and to make the Transition Services its highest priority
relative to any other development project(s).
7. Software and License Rights. eFax and JFAX agree to provide IGC with those
portions of eFax's and JFAX's software, or such other information, materials and
technology owned or controlled by eFax and JFAX which IGC reasonably requires in
order to perform the services. eFax and JFAX also grant to IGC any license
rights (on a royalty-free, non-exclusive, non-transferable basis) necessary for
IGC to perform the services; provided that, such license rights shall terminate
upon the completion of such services. eFax and JFAX will retain all ownership
rights in and to their respective technology and IGC will gain no rights in or
to eFax's or JFAX's technology except as set forth in this Exhibit and necessary
for IGC to perform the services required by this Exhibit. IGC will retain all
ownership rights in and to its Intellectual Property Rights and
50
Licensed Software (as such terms are defined in the Software License Agreement)
and any software created pursuant to the terms of this Agreement.
8. Warranties. IGC hereby represents and warrants that (a) all IGC employees or
contractors that will have access to eFax or JFAX Confidential Information (as
defined below) shall be under written obligation to protect such Confidential
Information at least to the same degree as set forth in this Exhibit; (b) all
IGC software and the other recognized protected intellectual property rights
(collectively, the "IP Rights") used in connection with the services is and will
be original works of IGC and any third parties will have executed assignment of
such parties' rights to IGC; (c) none of the IP Rights, nor any element thereof,
will be subject to any restrictions or to any mortgages, liens, pledges,
security interests, encumbrances or encroachments prohibiting or otherwise
superior to the licenses granted by the Software License Agreement; and (d) the
IP Rights will not include any harmful code, including without limitation,
viruses, Trojan horses, time bombs or other code the purpose of which is to
interfere with the functionality of any software.
9. Confidentiality. Each of the parties agrees to hold any other party's
Confidential Information in strict confidence and not disclose the Confidential
Information to any third party unless such disclosure is authorized by the party
who owns such Confidential Information; eFax shall not disclose, and hereby
warrants that it has not disclosed any Confidential Information of IGC to JFAX;
provided that after the date of the Merger Agreement, eFax and JFAX shall be
permitted to disclose to each other any Confidential Information of IGC. The
provisions of this Section 9 shall apply for a period of three years after the
Closing Date. No party to the Agreement shall use any other party's Confidential
Information for any purpose except as expressly permitted hereunder. Each party
agrees to take reasonable steps to protect any other party's Confidential
Information and to ensure that such Confidential Information is not disclosed,
distributed or used in violation of the provisions of this Exhibit. The
foregoing prohibition on disclosure of Confidential Information will not apply
to the extent certain Confidential Information is required to be disclosed by
the receiving party as a matter of law or by order of a court; provided that the
receiving party uses reasonable efforts to provide the disclosing party with
prior notice of such obligation to disclose and reasonably assists in obtaining
a protective order therefor. "Confidential Information" shall mean the software
of eFax, JFAX or IGC in source code or any other form, and all source code,
object code, designs, algorithms, user interfaces and procedures incorporated
thereinto, forming a part thereof, or otherwise related thereto, and all
intellectual property rights in any of the foregoing and any other information
disclosed by a party to the Agreement to another party and clearly marked or
otherwise clearly designated as "confidential" or the equivalent or known to the
receiving party to be Confidential Information of the other party. A party's
Confidential Information will not include any information that: (i) is or
becomes a part of the public domain through no wrongful act or omission of the
other party; (ii) was in the other party's lawful possession prior to the
disclosure and had not
51
been obtained by the other party either directly or indirectly from the
disclosing party and was not otherwise subject to confidential treatment; (iii)
is lawfully disclosed to the other party by a third party without restriction on
disclosure; or (iv) is independently developed by the other party by employees
or agents without access to the party's Confidential Information and such
development is not pursuant to a contractual obligation to develop such
information for such other party.
10. Miscellaneous. The provisions of Article 27 of the Agreement shall apply to
this Exhibit.
52
SCHEDULE 11(d)
EFAX SOFTWARE
For purposes of Section 11(d) of the Agreement, the following software modules
owned by eFax shall be the property of eFax as set forth in Section 11(d):
1. All eFax viewer technology, including viewers, JSDSDK and other libraries on
multiple platforms, including Windows and Macintosh.
2. All conversion technology, including the TIFF to EFX converter and its
various derivatives and the EFX to EFX converter (header stamping, ad insertion,
audio insertion).
3. The eFax Messenger Plus client software and technology.
4. The DEMIME module, used to decode incoming e-mail from xxxxxxxx.xxx.
5. The EFX and HOT file formats.
6. The ad serving technology in eFax's implementation, except the method of
compiling, recalling and caching user demographic data for access at runtime, as
implemented in portions of update.cgi.
7. The live update technology, including the CGI script supporting it, except
for the portion specified in Section 6.
8. The structure and UI design of the HDML/WML for wireless services, except the
method of recalling message transmission/reception data from remote servers and
the methods for forwarding/resending messages to fax or email destinations.
9. The table design/structure, session expiration, UI design, and functionality
of the PDA services for Palm and Omnisky, except the method for recalling
message transmission/reception data from remote servers and the methods for
forwarding/resending messages to fax or email destinations.
10. The eFax web site user interface, and look and feel.
11. All software, design, architecture and system configurations (including
virus scanning) running on or in connection with the document rasterization
servers (the so-called "mighty rasty" servers) which have been configured by
eFax, delivered to IGC, and subsequently updated by eFax from time to time,
including but not limited to the ASP web pages and software processes supporting
the `eFax Send for the Web' product and the back-end process allowing the
xxxx.xxx e-mail domain to receive a variety of
53
document formats (currently over 30) and convert them to faxes, except the mail
server deamno and its related libraries that run on multiple servers that
actually provide the mechanism by which the xxxxxxxx.xxx domain is able to
receive electronic messages of any format (not limited to the 30 document
formats that the "mighty rasty" servers are able to handle) as this software is
owned by neither xXxx.xxx nor IGC, software that is responsible for the parsing
of the raw email messages after they have been received by the above mentioned
mail server(s), software that resolves the sender's email address to an eFax
user account either directly or indirectly via an alias list, software that
resolves the recipient email addresses to fax message destinations information,
software that converts TIFF files to faxes which includes custom fax cover page
generation and further queuing to outbound fax servers, any processes that log
fax information to user activity log databases, and any software that is
responsible for final fax delivery via telephony circuits and result reporting
to the original user as to the delivery status of the fax as well as charges
incurred to that user during fax transmission.
12. All software, design, architecture and systems configuration of the eFax Web
Toolkit, including the Java servlet and applet.
13. The eFax API definition (defined originally by Xxx Xxxxxxx).
14. The technique and process of performing a binary file transfer for the
purpose of submitting a file for faxing from a remote third-party server to the
eFax service programatically which uses the WebSend services (e.g., the
mechanism that XDrive will use to submit files for faxing).
15. The design, architecture and processes used in the WebView prototype for
converting fax images form TIFF or EFX into GIF format to allow real-time
viewing of faxes in different zoom levels and resolutions by a user in a web
browser (currently under development).
16. The technique and process of transferring files from a co-located server to
a client server (e.g., used in the WebView project currently under development).
17. The design and implementation of the eFax Corporate Client being written for
eFax by FaxBack Inc.
18. Design and implementation of e-mail tracking and web tracking systems for
tracking users' behavior with received e-mails and their usage of the eFax web
site.
19. All communications and users, including the terms of service, help system,
e-mail text (including, but not limited to, fax delivery e-mails, fax send
errors and confirmations, newsletters, technical support texts such as those
currently sent out xxx XXXX, xxx.).
0
00
00. The TIF2TXT design, architecture, module and process, used to convert TIF
images into editable text via OCR.
3
55
Exhibit D
ESCROW AGREEMENT (this "Agreement"), dated as of __________, 2000, among
XXXX.XXX, Inc., a Delaware corporation (the "Company"), Integrated Global
Concepts, Inc., an Illinois corporation ("IGC"), and ___________, a national
banking association (the "Escrow Agent").
RECITALS
WHEREAS, this Agreement is entered into in connection with the Agreement
of Understanding, dated as of June __, 2000, by and among the Company, xXXX.xxx,
Inc. and IGC (the "Agreement of Understanding"), which provides for the issuance
by the Company to IGC of 2,000,000 shares of the Company's common stock, par
value $.01 per share (the "Common Stock");
WHEREAS, the Company and IGC have agreed to deposit 800,000 shares (the
"Escrow Shares") of such Common Stock with the Escrow Agent pursuant to this
Agreement; and
WHEREAS, the Agreement of Understanding provides for the Company to
deliver the Escrow Shares to the Escrow Agent upon the Closing that is taking
place on the date of this Agreement (the "Closing" or the "Closing Date"), such
Escrow Shares to be held by the Escrow Agent in escrow subject to the terms and
conditions of this Agreement, and in order to facilitate the purposes of the
Agreement of Understanding.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein and in
the Agreement of Understanding, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
1.1 Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
"Agreement of Understanding" has the meaning set forth in the recitals
of this Agreement.
56
"Certified Notice" shall mean written notice certified either (x) by the
Company (in certain circumstances specified herein) or (y) by IGC (in certain
other circumstances specified herein) or (z) by both the Company and IGC (in
certain other circumstances specified herein).
"Closing" or the "Closing Date" have the meanings set forth in the
recitals of this Agreement.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Dispute" shall mean any bona fide dispute, civil action, suit, claim,
arbitration, mediation or other disagreement or proceeding arising out of or in
connection with an alleged breach by IGC of its obligation to provide Transition
Services in accordance with the Agreement of Understanding, for which damages or
other remedies or relief have been claimed by the Company and not paid in full
pursuant to the Agreement of Understanding.
"Dividend" has the meaning set forth in Section 2.1(b).
"Escrow Agent" has the meaning set forth in the first paragraph of this
Agreement.
"Escrow Shares" has the meaning set forth in the recitals of this
Agreement.
"Final Judgment" shall mean any final judgment or order not subject to
further appeal issued by a court with competent jurisdiction over the parties to
a Dispute.
"Judgment" shall mean any order, consent decree, judgment, sanction,
ruling or other remedial action taken by a court, arbitrator or other entity
with competent jurisdiction over the parties to a Dispute, or any agreement or
other settlement executed by the relevant parties in resolution of a Dispute.
"Other Escrow Property" has the meaning set forth in Section 2.1(b).
"Permitted Investments" means (i) U.S. Government Obligations with a
maturity of one year or less; or (ii) certificates of deposit or acceptances
with a maturity of one year or less of the Escrow Agent or any other financial
institution that is a member of the United States Federal Reserve System having
combined capital and surplus and undivided profits of not less than $500,000,000
or (iii) investment funds which invest primarily in U.S. Government Obligations
of which the Escrow Agent or any of its affili-
57
ates are a sponsor, investment advisor, manager, custodian or agent and for
which the Escrow Agent may be separately compensated, provided that such
investment or deposit is not prohibited by Federal or state banking laws
applicable to the Escrow Agent.
"Transition Services" has the meaning set forth in the Agreement of
Understanding.
"U.S. Government Obligations" means direct obligations of the United
States of America.
1.2 Other Definitions. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Agreement
of Understanding.
ARTICLE II
Escrow Arrangement
2.1 Delivery of Escrow Shares and Other Escrow Property to the Escrow
Agent, Etc. (a) On the Closing Date, the Company will deliver the Escrow Shares
to the Escrow Agent pursuant to Section 27.20 of the Agreement of Understanding.
The Escrow Agent will hold such Escrow Shares in escrow and will not transfer
any interest in such Escrow Shares except pursuant to the terms of this
Agreement and except as required by law.
(b) If the Company shall declare and pay any dividend on the Escrow
Shares, whether in the form of cash, Common Stock, other capital stock of the
Company or any other property, or whether as a stock split or other subdivision
of the Common Stock (a "Dividend"), during the term of this Agreement, the
Company shall deliver such Dividend on the Escrow Shares to the Escrow Agent
(any such Dividend and any Permitted Investments and any proceeds thereof, being
herein called the "Other Escrow Property", which term shall also include any
proceeds of the Escrow Shares). The Escrow Agent will hold the Other Escrow
Property in escrow and will not transfer any interest in the Other Escrow
Property except pursuant to the terms of this Agreement and except as required
by law.
2.2 Pledge and Grant of Security Interest. IGC hereby grants to the
Escrow Agent, for the benefit of the Company, a security interest in the Escrow
Shares and the Other Escrow Property, and any proceeds thereof, as collateral
security for the performance by IGC of its obligations to perform Transition
Services for the Company pursuant to the Agreement of Understanding. Upon any
release of the Escrow Shares or
58
Other Escrow Property, this security interest shall be null and void with
respect to any such released Escrow Shares or Other Escrow Property.
2.3 Delivery by Escrow Agent of Escrow Property Upon Certain Events. (a)
At any time during the term of this Agreement and upon receipt of a Certified
Notice from the Company and IGC certifying the number of Escrow Shares and Other
Escrow Property to be delivered to or upon the order of the Company or IGC, the
Escrow Agent shall deliver such number of Escrow Shares and Other Escrow
Property to or upon the order of the Company or IGC, as applicable. The Escrow
Agent will continue to hold the remaining Escrow Shares and Other Escrow
Property, if any, in escrow and will not transfer any interest in such Escrow
Shares or Other Escrow Property except pursuant to the terms of this Agreement
and except as required by law.
(b) Notwithstanding the provisions of Section 2.3(a) above, promptly
following receipt by the Escrow Agent of a Certified Notice from IGC stating
that one of the dates described in Section 27.20(a) of the Agreement of
Understanding has occurred, the Escrow Agent shall deliver notice to the Company
of the receipt of such a Certified Notice from IGC. In the absence of receipt by
the Escrow Agent, within ten (10) days following delivery of such notice to the
Company, of a Certified Notice from the Company certifying that there exists a
Dispute or Disputes, the Escrow Agent shall deliver one-half of the Escrow
Shares and one-half of the Other Escrow Property then in its possession to or
upon the order of IGC. (The Escrow Agent will continue to hold the remaining
Escrow Shares and Other Escrow Property in escrow and will not transfer any
interest in such Escrow Shares or Other Escrow Property except pursuant to the
terms of this Agreement and except as required by law.) However, if the Escrow
Agent shall received a Certified Notice from the Company certifying that there
exists a Dispute or Disputes, then no such delivery of Escrow Shares and any
Other Escrow Property shall occur pursuant to this subsection 2.3(b); instead,
any such distribution would occur pursuant to 2.3(a) above or 2.3(d) below.
However, from time to time as may be consistent with its rights and obligations
under the Agreement of Understanding, the Company agrees that it will promptly
provide a Certified Notice under Section 2.3(a) with respect to (i) amounts that
are not subject to a Dispute or Disputes or (ii) amounts that subsequently cease
to be subject to a Dispute or Disputes.
(c) Notwithstanding the provisions of Section 2.3(a) above, promptly
following receipt by the Escrow Agent of a Certified Notice from IGC stating
that the date described in Section 27.20(b) of the Agreement of Understanding
has occurred, the Escrow Agent shall deliver notice to the Company of the
receipt of such a Certified Notice from IGC. In the absence of receipt by the
Escrow Agent, within ten (10) days following delivery of such notice to the
Company, of a Certified Notice from the Company certifying that there exists a
Dispute or Disputes, the Escrow Agent shall deliver all remaining Escrow Shares
and Other Escrow Property then in its possession to or upon the order of
59
IGC. However, if the Escrow Agent shall have received a Certified Notice from
the Company certifying that there exists a Dispute or Disputes, then no such
delivery of Escrow Shares and any Other Escrow Property shall occur pursuant to
this subsection 2.3(b); instead, any such distribution would occur pursuant to
2.3(a) above or 2.3(d) below. However, from time to time as may be consistent
with its rights and obligations under the Agreement of Understanding, the
Company agrees that it will promptly provide a Certified Notice under Section
2.3(a) with respect to (i) amounts that are not subject to a Dispute or Disputes
or (ii) amounts that subsequently cease to be subject to a Dispute or Disputes.
(d) At any time during the term of this Agreement and upon the receipt
by the Escrow Agent of a Certified Notice from the Company and IGC certifying
that there exists a Judgment, or from the Company and IGC certifying that there
exists a Final Judgment, so long as the Certified Notice sets forth the amount
of such Judgment or Final Judgment and the number of Escrow Shares and amount of
Other Escrow Property to be delivered to or upon the order of the Company or
IGC, the Escrow Agent shall deliver such number of Escrow Shares and amount of
such Other Escrow Property as specified in such Certified Notice to or upon the
order of the Company or IGC, as applicable.
2.4 Voting of Escrow Shares. Prior to the delivery by the Escrow Agent
to the Company or to IGC, as the case may be, of the Escrow Shares and Other
Escrow Property pursuant to Section 2.3 above, IGC shall have the sole power to
exercise any voting rights attendant to the Escrow Shares and to any shares that
constitute Other Escrow Property.
2.5 Term of Escrow. The term of this Escrow Agreement and the security
interest created pursuant to Section 2.2 above will commence upon receipt by the
Escrow Agent of the Escrow Shares and will terminate when the last of the Escrow
Shares and any Other Escrow Property has been delivered out of escrow pursuant
to this Agreement, provided that Articles III and IV shall survive any such
termination.
2.6 Investment. The Escrow Agent agrees to invest all cash held by it
pursuant to this Agreement in Permitted Investments at the written direction of
the Company and IGC in the form of a Certified Notice and to hold such
investments until their maturity unless directed by Certified Notice to
liquidate such investments in order to make distributions pursuant to Section
2.3 above. The Escrow Agent shall not be liable for any loss of principal or
interest or for any penalty that may result from following any investment
instructions contained in any such Certified Notices.
2.7 Notice and Opportunity to Cure. The Company hereby agrees for the
benefit of IGC that if, on the date which is sixty (60) days following the
Closing Date (such sixtieth (60th) day, the "Notice Date"), the Company is aware
of any condition or failure to perform on the part of IGC that is the basis for
a Dispute as of the Notice Date,
60
then, within five (5) days following the Notice Date, the Company shall deliver
notice to IGC of such condition or failure to perform so as to give IGC the
opportunity to cure the same. The preceding sentence shall not apply to any
condition(s) or failure(s) to perform on the part of IGC of which the Company
becomes aware following the Notice Date, and the Company shall have the right to
deliver a Certified Notice of Dispute regarding any such condition(s) or
failure(s) to perform notwithstanding the Company's failure to deliver a notice
in accordance with the preceding sentence.
2.8 Representations and Warranties. (a) Each of the Company and IGC
represents and warrants, with respect to itself, that (i) it has the requisite
power and authority and has taken all action necessary in order to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
(ii) this Agreement is a valid and binding agreement enforceable against it in
accordance with its terms, (iii) the execution and delivery of this Agreement by
it does not, and the consummation of the transactions contemplated hereby by it
will not, constitute or result in (A) a breach or violation of, or a default
under, its charter documents, if applicable, or (B) a breach or violation of, a
default under, the acceleration of or the creation of a lien, pledge, security
interest or other encumbrance on assets (with or without the giving of notice or
the lapse of time) pursuant to, any provision of any contract to which it is a
party or any law, ordinance, rule or regulation or judgment, decree, order,
award or governmental or non-governmental permit or license to which it is
subject, except, in the case of clause (B) above, for such breaches, violations,
defaults or accelerations that, alone or in the aggregate, could not prevent,
materially delay or materially burden the transactions contemplated by this
Agreement and such liens, pledges, security interests or other encumbrances as
may be created pursuant to this Agreement.
(b) The Escrow Agent represents and warrants that (i) it has the
requisite corporate power and authority and has taken all corporate action
necessary in order to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and (ii) this Agreement is a valid and binding
agreement of the Escrow Agent enforceable against the Escrow Agent in accordance
with its terms.
ARTICLE III
The Escrow Agent
3.1 The Escrow Agent. (a) ____________ is hereby appointed as Escrow
Agent in accordance with the terms and conditions set forth herein, and the
Escrow Agent hereby accepts such appointment.
61
(b) Subject to the other terms and conditions hereof, the Escrow
Agent hereby irrevocably declares that it will hold all right, title and
interest in and to the Escrow Shares and any Other Escrow Property in escrow
upon the terms set forth herein.
(c) The Escrow Agent shall not be concerned with, nor shall it
have any duties or obligations under the Agreement of Understanding, but instead
its sole duties shall be to comply with this Escrow Agreement and any
instructions given in accordance with the terms hereof. Further, the Escrow
Agent shall not be deemed to have knowledge of any matter set forth in such
agreements that has not been set forth in this Escrow Agreement.
(d) IGC agrees to provide to the Escrow Agent such stock powers
and other instruments of transfer as the Escrow Agent may from time to time
reasonably request for purposes of administering the escrows created hereunder.
To that end, IGC hereby further grants to the Escrow Agent the following power
of attorney:
POWER OF ATTORNEY
Know all persons by these presents, that the grantor of this
power of attorney constitutes and appoints __________as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and xxxxx, in any and all
capacities, to sign any and all instruments of transfer for the purposes
of the Escrow Agreement, dated as of ________, 2000, among XXXX.XXX,
Inc., Integrated Global Concepts, Inc. and ____________, with respect to
any of the Escrow Shares or Other Escrow Property (as defined in such
Escrow Agreement), granting unto said attorney-in-fact and agent, full
power and authority to do and perform to all intents and purposes as the
grantor of this power of attorney might do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or its
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
3.2 Compensation and Indemnification of Escrow Agent. (a) The
Company agrees to pay the Escrow Agent such fees as the Company and the Escrow
Agent shall from time to time agree for all services rendered by the Escrow
Agent hereunder and, from time to time, on demand of the Escrow Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Escrow Agent
and its officers, directors and agents for, and to hold each of them harmless
against, any loss, liability or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Escrow Agent, for anything done
or omitted by the Escrow Agent in connection with the acceptance and
administration
62
of this Agreement, including the costs and expenses of defending any claim of
liability directly arising therefrom.
(b) The Escrow Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered, or omitted by it in
connection with its administration of this Agreement in reliance upon any
Certified Notice signed by the proper party or parties.
3.3 Merger or Consolidation of Escrow Agent. Any corporation into
which the Escrow Agent or any successor escrow agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Escrow Agent or any successor escrow agent shall be
party or any corporation succeeding to the corporate trust business of the
Escrow Agent or a successor escrow agent as a whole or substantially as a whole,
whether by sale or otherwise shall be the successor to the Escrow Agent under
this Agreement without any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
escrow agent under the provisions of Section 3.5 hereof, and any Escrow Shares
or Other Escrow Property held by the Escrow Agent prior to such transaction
shall be deemed to be held by such successor thereafter.
3.4 Duties of Escrow Agent. The Escrow Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions:
(a) The Escrow Agent may consult with its legal counsel, and the
opinion of such counsel shall be full and complete authorization and protection
to the Escrow Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Escrow Agent deems it necessary or desirable that any fact or
matter be proved or established by the Company or IGC prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be provided
conclusively by Certified Notice delivered to the Escrow Agent. Any such
certificate shall be full authorization to the Escrow Agent for any action taken
or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Escrow Agent shall be liable hereunder only for its own
gross negligence, bad faith or willful misconduct.
(d) The Escrow Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or be required
to verify the same.
63
All such statements and recitals shall be deemed to have been made by the
Company and IGC only.
(e) The Escrow Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution and delivery hereof by the Escrow Agent) or in respect
of the validity or execution of any stock certificate representing Escrow
Shares; nor shall it be responsible for any breach by the Company or IGC of any
covenant or condition contained in this Agreement; nor shall it by any act
hereunder be deemed to make any representation or warranty as to whether any
Escrow Shares (or any Other Escrow Property) will be validly authorized and
issued, fully paid and nonassessable.
(f) Each of the Company and IGC agrees that it will perform,
execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Escrow Agent for the carrying
out or performing by the Escrow Agent of the provisions of this Agreement.
(g) The Escrow Agent is hereby authorized and directed to accept
Certified Notice with respect to the performance of its duties hereunder and to
apply to any officer of the Escrow Agent for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with the instructions of
any such officer.
(h) The Escrow Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents.
3.5 Change of Escrow Agent. The Escrow Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and IGC by registered or certified mail. The Company, with
the written consent of IGC, may remove the Escrow Agent or any successor escrow
agent upon 30 days' notice in writing, mailed to the Escrow Agent or successor
escrow agent, as the case may be, by registered or certified mail. If the Escrow
Agent resigns or is removed or otherwise becomes incapable of acting, the
Company and IGC shall appoint a successor to the Escrow Agent. If the Company
and IGC fails to agree upon and make such appointment within a period of 30 days
after such removal or after notification in writing of such resignation or
incapacity by the resigning or incapacitated Escrow Agent, then either IGC, JFAX
or the Escrow Agent may apply to any court of competent jurisdiction for the
appointment of a new Escrow Agent. Any successor escrow agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or the laws of any state, in good
standing,
64
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by a federal or state authority and which
has at the time of its appointment as escrow agent a combined capital and
surplus of at least $250,000,000. After appointment, the successor escrow agent
shall, without further action, be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Escrow Agent; but the
predecessor Escrow Agent shall deliver and transfer to the successor escrow
agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for this purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Escrow Agent and mail a notice thereof
in writing to IGC. Failure to give any notice provided for in this Section 3.5,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Escrow Agent or the appointment of the successor
escrow agent, as the case may be.
ARTICLE IV
Miscellaneous and General
4.1 Amendment; Waiver. This Agreement may not be modified or
amended except by a written instrument signed by the Company, IGC and the Escrow
Agent and referring specifically to this Agreement.
4.2 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, IGC or the Escrow Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
4.3 Binding Effect. The agreements herein set forth shall be
mutually binding upon, and inure to the mutual benefit of, the Company, IGC and
the Escrow Agent. The parties do not intend that any third party shall enjoy any
rights under this Agreement and no such third party shall be entitled to make
any claim, or bring any action to enforce this Agreement against either party to
this Agreement even if the third party receives some benefit from this
Agreement.
4.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
65
4.5 Notices. Any notice, request, instruction or other document
(including without limitation any Certified Notice) to be given hereunder by any
party shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid, next-day air courier or facsimile to each of
the other parties hereto at the following respective addresses (or to substitute
addresses of which like notice is given):
(a) if to the Company, at
XXXX.XXX, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(b) if to IGC:
Integrated Global Concepts, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
66
(c) if to the Escrow Agent, at
-------------------
-------------------
-------------------
Facsimile No.:
--------------
Telephone No.:
--------------
Attention:
------------------
(d) if to the Transfer Agent, at
American Securities Transfer & Trust, Inc.
00000 X. Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx Xxxxxxxx
4.6 Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute one and the same agreement.
4.7 Entire Agreement, etc. This Agreement (and the other
agreements referred to herein) (a) constitutes the entire agreement, and
supersedes all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof, and (b) shall not be transferable or assignable (except as
provided in Article III in the case of the Escrow Agent and except with the
prior written consent of the non-assigning parties, which shall not be
unreasonably withheld) and is not intended to create any obligations to, or
rights in respect of, any persons other than the parties hereto.
4.8 Captions. The Article, Section and paragraph captions herein
are for convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions
hereof.
67
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
XXXX.XXX, INC.
By:
--------------------------------
Name:
Title:
INTEGRATED GLOBAL CONCEPTS, INC..
By:
--------------------------------
Name:
Title:
-----------------------,
as Escrow Agent
By:
--------------------------------
Name:
Title:
