EXHIBIT 10.1
SHARE DISPOSITION AGREEMENT
between
BOCA RESEARCH, INC.
and
INFOMATEC AG INTERNATIONAL, INC.
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May 31, 2000
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SHARE DISPOSITION AGREEMENT
AGREEMENT made and entered into on this 31st day of May, 2000, among
Boca Research, Inc., a Florida corporation (the "Company"), and Infomatec AG
International, Inc., a Delaware corporation (the "Purchaser").
WITNESSETH
WHEREAS, the Company sold to the Purchaser 1,747,965 shares of the
Company's Stock, par value $0.01 per share (the "Common Stock"), of the Company
pursuant to a Common Stock Purchase Agreement between the Company and the
Purchaser dated as of April 28, 1999, as amended by the Amended Common Stock
Purchase Agreement dated as of May 21, 1999 (the "Purchase Agreement");
WHEREAS, Section 2.08 of the Purchase Agreement contained certain
registration rights;
WHEREAS, the Purchaser has exercised the registration rights contained
in Section 2.08 of the Purchase Agreement;
WHEREAS, the Company has filed on the date hereof a Registration
Statement on Form S-3 (the "Form S-3") with respect to 1,250,000 shares of the
Common Stock pursuant to the request by the Purchaser; and
WHEREAS, the Company and the Purchaser are entering into this Agreement
to provide for certain rights and obligations in connection with the exercise of
the registration rights contained in Section 2.08 of the Purchase Agreement,
upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
Section 1.01 METHOD OF DISPOSITION. Upon the effectiveness of the Form
S-3, the Purchaser agrees to sell no more than 611,788 shares of Common Stock
held by Purchaser and registered under the Form S-3 in any given consecutive,
three-month period commencing on the date the Form S-3 is declared effective by
the Securities and Exchange Commission during the Effective Period (as defined
below).
Section 1.02 EFFECTIVE PERIOD. The Company shall use its reasonable
commercial efforts to cause the Form S-3 to become and remain effective for a
one-year period (the "Effective Period") commencing on the date such Form S-3 is
declared effective by the Securities and Exchange Commission.
Section 1.03 EXPENSES. Notwithstanding anything to the contrary in
Section 2.08 of the Purchase Agreement, the Company hereby agrees to pay the
expenses attributable to the registration of the shares of Common Stock held by
the Purchaser, other than fees and disbursements of the Purchaser's counsel and
any brokerage commissions, which are to be paid by the Purchaser.
Section 1.04 REGISTRATION RIGHTS. The parties hereby acknowledge that
upon the effectiveness of the Form S-3, the Company shall have fulfilled its
obligation to register the shares of Common Stock purchased by the Purchaser
under the Purchase Agreement pursuant to one request by the Purchaser under
Section 2.08 of the
Purchase Agreement. In addition, the parties acknowledge that, upon the
effectiveness of the Form S-3, the Purchaser shall be entitled to make one
additional request of the Company to register only those shares of Common Stock
purchased by the Purchaser under the Purchase Agreement pursuant to Section 2.08
of the Purchase Agreement and that any such registration shall be subject to
Sections 1.02 and 1.03 hereof.
ARTICLE II
Section 2.01 DISPOSITION OF COMMON STOCK. Nothing contained herein
shall in any way supersede, replace, diminish, or nullify any other restrictions
or obligations promulgated by the Securities Act of 1933, as amended, or
otherwise binding the Purchaser with respect to disposition of the Common Stock.
Section 2.02. ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, represent the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior oral and written agreements, arrangements and understandings among the
parties hereto with respect to such subject matter, and can be amended,
supplemented or changed, and any provision hereof can be waived, only by a
written instrument making specific reference to this Agreement signed by the
party against whom enforcement of any such amendment, supplement, modification
or waiver is sought.
Section 2.03. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns, including
any person to whom the Purchaser may assign its right and obligations to
purchase Common Stock and shall inure to the benefit of the parties hereto and,
their respective successors and assigns.
Section 2.04. PARAGRAPH HEADINGS. The paragraph headings contained in
this Agreement are for general reference purposes only and shall not affect in
any manner the meaning or interpretation of the terms or other provisions of
this Agreement.
Section 2.05. APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Florida,
applicable to contracts to be made, executed, delivered and performed wholly
within such state, and in any case, without regard to the conflicts of law
principles of such state.
Section 2.06. SEVERABILITY. If at any time subsequent to the date
hereof, any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall
have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
Section 2.07. EQUITABLE REMEDIES. The parties hereto agree that
irreparable harm would occur in the event that any of the covenants contained in
this Agreement were not performed in all material respects by the parties hereto
in accordance with their specific terms or conditions or were otherwise
breached, and that money damages are an inadequate remedy for breach thereof
because of the difficulty of ascertaining and quantifying the amount of damage
that will be suffered by the parties hereto in the event that such covenants are
not performed in accordance with their terms or are otherwise breached. It is
accordingly hereby agreed that the parties hereto shall be entitled to seek an
injunction or injunctions to restrain, enjoin and prevent breaches and
violations of any of the covenants, contained in this Agreement by the other
parties and to enforce specifically the terms and provisions hereof in any court
of the United States or any state having competent jurisdiction,
such remedy being in addition to and not in lieu of, any other rights and
remedies to which the other parties are entitled to at law or in equity.
Section 2.8. NO WAIVER. The failure of any party at any time or times
to require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 2.9. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, as of the day and year first above written.
COMPANY
BOCA RESEARCH, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
PURCHASER
INFOMATEC AG INTERANTIONAL, INC.
By: /s/ Eduard Will
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Authorized Signatory
