September 7, 2000
Acqua Wellington North American Equities Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Limited
Xxxxxxxx Xxxxxxxx Centre
Xxxx Xxx Xxxxxx, X.X. Xxx XX-0
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement of Acqua Wellington North American
Equities Fund, Ltd. (the "Purchaser") and AremisSoft Corporation, a Delaware
corporation (the "Company"), regarding the purchase by the Purchaser from the
Company of the Company's common stock (the "Common Stock") on the date hereof.
The parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser of 474,871
shares (the "Shares") of the Company's Common Stock for an aggregate purchase
price of $12,000,000, which purchase is being settled by the parties on the date
hereof.
2. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of Delaware. The Company has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue and sell the Shares in accordance with the terms hereof. The execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action. A copy of the duly executed
resolutions of the Board of Directors of the Company is attached hereto as
Exhibit "B". This Agreement has been duly executed and delivered on behalf of
the Company by a duly authorized officer. A copy of a duly executed incumbency
certificate of the Company's duly authorized officers is attached hereto as
Exhibit "C". This Agreement constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
3. The Shares have been duly authorized by all necessary corporate
action and, when paid for or issued in accordance with the terms hereof, the
Shares shall be validly issued and outstanding, fully paid and nonassessable,
and the Purchaser shall be entitled to all rights accorded to a holder of Common
Stock.
4. The Company represents and warrants that (a) the Shares have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a registration statement on Form S-3, Commission File Number
333-31768, (the "Registration Statement"); and (b) the Company has filed a
prospectus supplement to the Registration Statement (the "Prospectus
Supplement") in connection with this transaction. Copies of the Registration
Statement and the Prospectus Supplement, each as filed and, in the case of the
Registration Statement, declared effective by the Securities and Exchange
Commission, are annexed hereto as Exhibits "D" and "E," respectively.
Acqua Wellington North American Equities Fund
September 7, 2000
Page 2
5. The Company has taken all action necessary on its part: to list the
Shares for trading on the NASDAQ system or any relevant market or system, if
applicable. A copy of the Company's listing application with NASDAQ or any other
relevant market or system is attached hereto as Exhibit "F."
6. The Company will continue to take all action necessary to continue
the listing or trading of its Common Stock on the NASDAQ Stock Market (NMS) or
any relevant market or system, if applicable, and will comply in all respects
with the Company's reporting, listing (including, without limitation, the
listing of the shares) or other obligations under the rules of the NASDAQ Stock
Market (NMS) or any relevant market or system.
7. The Company has delivered or made available to the Purchaser true and
complete copies of the filings on Forms 10-K, 10-Q and 8-K filed by the Company
with the Securities and Exchange Commission since September 1, 2000
(collectively, the "Commission Filings"). The Company has not provided to the
Purchaser any information which, according to applicable law, rule or
regulation, should have been disclosed publicly by the Company but which has not
been so disclosed, other than with respect to the transactions contemplated by
this Agreement. As of their respective dates, each of the Commission Filings
complied in all material respects with the requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules and regulations of the
Commission promulgated thereunder and other federal, state and local laws, rules
and regulations applicable to such documents, and, as of their respective dates,
none of the Commission Filings referred to above contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the Commission Filings comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. No event or circumstance has occurred or
exists with respect to the Company or its subsidiaries or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
8. The Company will promptly notify the Purchaser of (a) any stop order
or other suspension of the effectiveness of the Registration Statement and (b)
the happening of any event as a result of which the prospectus included in the
Registration Statement includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
9. The Company may not issue a press release or otherwise make a public
statement or announcement with respect to the completion of the transaction
contemplated hereby without the prior consent of the Purchaser.
Acqua Wellington North American Equities Fund
September 7, 2000
Page 3
10. The Company and the purchaser will indemnify each other as provided
in Exhibit "A" attached hereto against liability with respect to the
Registration Statement (including, without limitation, the Prospectus
Supplement) relating to the Shares which were sold by the Company to the
Purchaser. For purposes of said Exhibit A, capitalized terms used therein
without definition shall have the same meanings therein as are ascribed to said
terms in this Agreement.
11. This Agreement and the legal relations between the parties hereto
with respect to any purchase of Common Stock by the Purchaser hereunder shall be
governed and construed in accordance with the substantive laws of the State of
New York without giving effect to the conflicts of law principles thereunder.
Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when Executed by the
purchaser, will constitute an agreement between the Company and the Purchaser.
Very truly yours,
AREMISSOFT CORPORATION
By: ___________________________
Roys Poyiadjis
Chief Executive Officer
AGREED TO:
PURCHASER:
Acqua Wellington North American Equities Fund, Ltd.
By: __________________________
Name:
Title:
EXHIBIT 'A'
TERMS OF INDEMNIFICATION
(1) Indemnification by the Company. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of
1933, as amended (the "Securities Act"); or Section 20(a) of the
Securities Exchange Act,. as amended (the "Exchange Act"); from and
against any losses, claims, damages, liabilities, costs and expenses
(including, without limitation, reasonable costs of defense and
investigation and all attorneys' fees and expenses) to which the
Purchaser and each person, if any, who controls the Purchaser may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of, or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated
by reference, in the Registration Statement relating to Shares being
sold to the Purchaser (including the prospectus dated September 1, 2000,
and the prospectus supplement dated September ___, 2000 (the "Prospectus
Supplement") which are a part of the Registration Statement), or any
amendment or supplement to the Registration Statement, or (ii) the
omission or alleged omission to state in that Registration Statement or
any document incorporated by reference in the Registration Statement, a
material fact required to be stated therein or necessary to make the
statements therein not misleading (an "Indemnifiable Matter").
The Company will reimburse the Purchaser and each such controlling
person promptly upon demand for any legal or other costs or expenses
reasonably incurred by the Purchaser or the controlling person in
investigating, defending against, or preparing to defend against any
claim relating to an Indemnifiable Matter, except that the Company will
not be liable to the extent such claim, suit or proceeding which results
in a loss, claim, damage, liability or expense arises out of or is based
upon, an untrue statement, alleged untrue statement, omission or alleged
omission, included in any Prospectus Supplement or any amendment or
supplement to the Prospectus Supplement in reliance upon, and in
conformity with, written information furnished by the Purchaser to the
Company for inclusion in the Prospectus Supplement.
(2) Indemnification Procedure. Promptly after a person receives notice of a
claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraph (a) or (b), the
person will notify the indemnifying party in writing of the claim or
commencement of the action, suit or proceeding, but failure to notify
the indemnifying party will not relieve the indemnifying party rom
liability under Paragraph (a) or (b), except to the extent the
indemnifying party has been materially prejudiced by the failure to give
notice. The indemnifying party will he entitled to participate in the
defense of any claim, action, suit or proceeding as to which
indemnification is being sought, and if the indemnifying party
acknowledges in writing the obligation to indemnify the party against
whom the claim, action, suit or proceeding is brought, the indemnifying
party may (but will not be required to) assume the defense against the
claim, action, suit or proceeding with legal counsel chosen by the
indemnifying party. After an indemnifying party notifies an indemnified
party that the indemnifying party wishes to assume the defense of a
claim, action, suit or proceeding the indemnifying party will not be
liable for any legal or other expenses incurred by the indemnified party
in connection with the defense against the claim, action, suit or
proceeding, except that if, in the opinion of legal counsel to the
indemnifying party, one or more of the indemnified parties should be
separately represented in connection with a claim, action, suit or
proceeding the indemnifying party will pay the fees and expenses of one
separate counsel for the indemnified parties. Each indemnified party, as
a condition precedent to receiving indemnification as provided in
Paragraph (a) or (b), will, at the cost and expense of the indemnifying
party, cooperate in all reasonable respects with the indemnifying party
in the defense of the claim, action, suit or proceeding as to which
indemnification is sought. No indemnifying party will he liable for any
settlement of any claim, action, suit or proceeding effected without its
prior written consent. No indemnifying party will, without the prior
written consent of the indemnified party, effect any settlement of a
pending or threatened claim, action or proceeding with respect which an
indemnified party is, or is informed that it may be, made a party and
for which it would be entitled to indemnification, unless the settlement
includes an unconditional release of the indemnified party from all
liability and claims which are the subject matter of the pending or
threatened action.
(3) Contribution. If for any reason the indemnification provided for in this
agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost
or expense referred to in Paragraph (a) or (b), each indemnifying party
will, in lieu of indemnifying the indemnified party, contribute to the
amount paid or payable by the indemnified party as a result of the loss,
claim, damage, liability, cost or expense (i) in the proportion which is
appropriate to reflect the relative benefits received by the
indemnifying party, on the one hand, and by the indemnified party, on
the other hand, from the sale of stock which is the subject of the
claim, action, suit or proceeding which resulted in the loss, claim,
liability, cost or expense or (ii) if that allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits of the sale of stock, but also the relative
fault of the indemnifying party and the indemnified party with respect
to the statements or omissions which are the subject of the claim,
action, suit or proceeding that resulted in the loss, claim, damage,
liability, cost or expense as well as any other relevant equitable
considerations.
