1
Exhibit 10.13
STOCK PURCHASE AGREEMENT
BETWEEN
AREMISSOFT CORPORATION
A DELAWARE CORPORATION
AND
INFO-QUEST SA
A GREEK CORPORATION
1,600,000 SHARES OF COMMON STOCK, PAR VALUE, $0.001
September 10, 1999
2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of September
10, 1999, is made and entered into by and between AremisSoft Corporation, a
Delaware corporation (the "Company") on the one hand and Info-quest SA,a
corporation organized under the laws of Greece (the "Purchaser") on the other
hand. Reference to dollars in this Agreement shall mean United States dollars.
W I T N E S S E T H
WHEREAS, the Company desires to sell shares of its Common Stock, par
value .001 per share (the "Common Stock") to Purchaser who is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D, promulgated by
the United States Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended (the "Securities Act") upon the terms and
conditions contained herein; and
WHEREAS, the Purchaser desires to purchase Common Stock upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
representations, warranties, covenants, and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. PURCHASES
1.1 Purchase of AremisSoft Common Stock. Upon the terms and subject to
the conditions set forth in this Agreement, the Purchaser hereby agrees to
purchase from the Company, and the Company hereby agrees to issue and sell to
the Purchaser, one million six hundred thousand (1,600,000) shares of Common
Stock (the "Common Stock").
1.2 Consideration. In consideration of the purchase in Section 1.1, the
Purchaser hereby agrees to pay to the Company seventeen million six hundred
thousand dollars ($17,600,000), or $11.00 per share (the "Consideration").
1.3 Transfer of Funds. Within eight (8) business days from the date of
execution of this Agreement, the Consideration provided for in Section 1.2 above
should be delivered into the escrow established pursuant to Section 1.6 of this
Agreement via wire transfer to an account and pursuant to wire transfer
instructions to be provided by the Escrow Agent appointed by the parties
pursuant to Section 1.6 below.
1.4. Transfer of the Common Stock. Within eight (8) business days from
the date of execution of this Agreement, the Company shall deliver into the
escrow established pursuant to Section 1.6 of this Agreement stock
certificate(s) evidencing one million six hundred thousand (1,600,000) shares
of AremisSoft Common Stock issued in the name of the Purchaser or in a
different manner as the Purchaser shall determine and instruct Company in
3
writing.
1.5. Conditions to the Closing. The purchase of the Common Stock shall
be completed at a Closing on the Closing Date as provided for in Section 1.6
of this Agreement when all of the following conditions have been satisfied:
1.5.1. The Consideration provided for in Section 1.2 of this
Agreement has been received into the escrow, via wire transfer, as provided
for in Section 1.3 of this Agreement.
1.5.2. The Common Stock have been delivered into the escrow as
provided for in Section 1.4 of this Agreement.
1.5.3. The waiting period under the Xxxx-Xxxxx-Xxxxxx Act
codified at Section 7A of the Xxxxxxx Act has expired.
1.5.4. Any other regulatory approvals required to be obtained
prior to the Closing have been obtained by the Parties.
1.5.5. The simultaneous closing of the Stock Purchase
Agreement between Purchaser and LK Global (Holdings) NV of even date herewith.
1.6. The Closing; Closing Date. The Closing Date shall occur three (3)
days after all of the conditions set forth in Section 1.5 of this Agreement have
been satisfied (the "Closing Date"). The Closing shall occur at the offices of
Xxxxxx Eng Xxxx & Xxxxxxxx, 000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, XX, 00000,
or at such other time and place mutually agreed upon by the Parties. The parties
agree to execute a separate escrow agreement between the parties and an Escrow
Agent mutually acceptable to the Parties setting forth the duties and
responsibilities of the escrow, a form of which is attached hereto as Exhibit
"A".
1.7. Deliveries at the Closing. Upon the terms and conditions set forth
in this Agreement, at the Closing and on the Closing Date, the Escrow Agent
shall make the following deliveries, provided that all of the conditions set
forth in Section 1.5 of this Agreement have been satisfied:
(a) Deliveries to the Company at the Closing. At the Closing,
the Escrow Agent shall deliver to the Company, via wire transfer pursuant to
instructions provided to the Escrow Agent prior to the Closing, seventeen
million six hundred thousand dollars ($17,600,000) in immediately available
funds; and
(b) Deliveries the Purchaser at the Closing. At the Closing,
the Escrow Agent shall deliver to the Purchaser the stock certificate(s)
evidencing one million six hundred thousand (1,600,000) shares of AremisSoft
Common Stock issued in the name of the Purchaser or in a different manner as the
Purchaser shall have determined and instructed the Company in writing prior to
the Closing and a check or wire transfer representing all interest accrued on
the Consideration during the escrow period less the amount of $22,500
representing one half of the Federal Trade Commission filing fee to be
reimbursed to the Company.
4
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser that on the
date hereof and on the Closing Date:
2.1. Due Organization; Good Standing and Corporate Power. The Company
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 carry on its business as now conducted and as proposed to be
conducted, and to own, lease and operate any properties related to such
business, except where the failure to have such power and authority would not
individually or in the aggregate have a Material Adverse Effect (as defined
below). For purposes of this Agreement, a "Material Adverse Effect" shall mean
an event that could reasonably be expected to have a material adverse effect on
the business of the Company, or on its results of operations, properties or
financial condition; including, but not limited to, any event which reasonably
could be expected to result in a potential liability to the Company either
individually or in the aggregate in excess of ten percent (10%) of its current
assets as reflected on the Company's audited financial statements for the period
ended December 31, 1998.
2.2. Capitalization and Voting Rights.
2.2.1. On the Closing Date, the authorized capital stock of
the Company will consist of 85,000,000 shares of Common Stock, of which
13,530,051 shares shall be issued and outstanding, before the issuance of the
Common Stock, and 15,000,000 shares of Preferred Stock, par value .001 per
share, of which no shares are issued and outstanding. All of such issued and
outstanding shares of Common Stock will be validly issued, fully paid and the
holders thereof will not be entitled to any preemptive or other similar rights.
The rights, privileges, preferences and restrictions of the Common Stock and
Preferred Stock are as stated in the Company's Articles of Incorporation.
2.3. Authorization.
2.3.1. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the execution and delivery of
this Purchase Agreement and the sale and issuance of the Common Stock pursuant
hereto and the performance of the Company's obligations hereunder has been, or
will be, taken prior to the Closing Date.
2.3.2. The Common Stock when issued and delivered for the
consideration expressed and in compliance with the provisions of this Agreement,
will be duly authorized, validly issued, fully paid and nonassessable, will be
free of restrictions on transfer other than restrictions on transfer under this
Agreement and under applicable federal and state securities laws.
2.4. No Conflict; No Consents or Approvals Required. The Company is not
in violation or default of any provision of its articles of incorporation or
bylaws or in violation or default under any judgment, order, writ or decree or
agreement to which it is a party or by
5
which it is bound, or, to the best of its knowledge, of any provision of any
federal or state statute, rule or regulation of any country applicable to the
Company which violation or default, or violations and defaults in the aggregate,
would have a Material Adverse Effect. Neither the execution and delivery of this
Agreement by the Company, nor the consummation by the Company of the
transactions contemplated therein will:
2.4.1. conflict with or violate any provision of the
Certificate of Incorporation or Bylaws of the Company;
2.4.2. conflict with or violate any law, rule, regulation,
ordinance, order, writ, injunction, judgment or decree applicable to the Company
or by which it or any of its properties or assets are bound or affected; or
2.4.3. conflict with or 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, cancellation,
suspension, revocation, impairment, forfeiture or nonrenewal of, or result in
the creation of any lien, charge or encumbrance on any of the properties or
assets of the Company pursuant to any of the terms, conditions or provisions of,
any material note, bond, mortgage, indenture, deed of trust, lease, permit,
license, franchise, authorization, agreement or other instrument or obligation
to which the Company is a party or by which the Company or any of its respective
properties or assets are bound or affected.
2.5. Disclosure. The Company has provided the Purchaser with copies of
the Company's final prospectus, dated April 22, 1999 (hereinafter the
"Prospectus"), relating to the Company's initial public offering of 3,300,000
shares of common stock, and the Company's SEC Form 10-Q for the quarter ended
June 30, 1999 (hereinafter the "Form 10-Q") as disclosure documents relating to
the Company's business and financial condition. Neither this Agreement, the
exhibits and schedules hereto, nor any other written statements or certificates
made or delivered by the Company to the Purchaser in connection herewith
including, but not limited to, the Company's Prospectus and Form 10-Q, contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein and therein not misleading.
2.6. Offering. Assuming the accuracy of the representations set forth
in Section 3 hereof, the offer, sale and issuance of the Common Stock to the
Purchaser on the Closing Date as contemplated by this Agreement are exempt from
the registration requirements of the Securities Act.
2.7. Binding Effect. This Agreement and all other agreements and
instruments contemplated hereunder, constitute a valid and binding agreement of
the Company, enforceable in accordance with its respective terms subject to
applicable bankruptcy, insolvency, and other laws affecting the enforcement of
creditors' rights generally.
2.8. Financial Authorization. The consolidated balance sheet of the
Company as of December 31, 1998 (the "1998 Balance Sheet") and related
consolidated statement of operations, changes in stockholders' equity and cash
flows for the fiscal year then ended,
6
reported on by Xxxxxxx Xxxx Xxxxxxx, included in the Company's Prospectus,
fairly present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Company as of such date and results of
operations and cash flows for such fiscal year.
2.9. Intellectual Property. The Company has sufficient title and
ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes necessary for its
business as now conducted without, to the knowledge of the Company, any conflict
with or infringement of the rights of others. The Company has not received any
communications alleging that it has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company, or that would conflict
with the Company's business as proposed to be conducted.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants that on the date hereof and on
the Closing Date:
3.1. Authorization. All action on the part of the Purchaser, and its
officers, directors and stockholders, necessary for the purchase of the Common
Stock pursuant hereto and the performance of the Purchaser's obligations
hereunder has been taken.
3.2. Purchase Entirely for Own Account. This Agreement is made with the
Purchaser in reliance upon such Purchase's representation to the Company, which
by the Purchaser's execution of this Agreement the Purchaser hereby confirms,
that the Common Stock to be purchased by the Purchaser are being acquired for
investment purposes for the Purchaser's own account and not with a view to the
resale or distribution of any part thereof except in accordance with applicable
federal and state securities laws.
3.3. Reliance Upon Purchaser's Representations. The Purchaser
understands that the Common Stock has not been registered under the Securities
Act on the grounds that the transactions contemplated by this Agreement and the
issuance of the Common Stock hereunder are exempt from registration under the
Securities Act pursuant to Section 4(2) thereof, and Regulation D promulgated
thereunder, and that the Company's reliance on such exemption is predicated on
the Purchaser's representations set forth herein.
3.4. Receipt of Information. The Purchaser has received all the
information, including, but not limited to, the Company's Prospectus and Form
10-Q, as well as all other information it considers necessary or appropriate for
deciding whether to purchase the Common Stock. The Purchaser further represents
that it has had the opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Common Stock
hereby, and the business, properties, prospects, and financial condition of the
Company and to obtain additional information (to the extent the Company
7
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify the accuracy of any information furnished to the
Purchaser or to which the Purchaser has access.
3.5. Investment Experience. The Purchaser represents that it is
experienced in evaluating and investing in securities of companies in the
software and information technology industry space and acknowledges that it is
able to fend for itself, can bear the economic risk of the investment, and has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the investment in the Common
Stock. The Purchaser further represents that it has not been organized solely
for the purpose of acquiring the Common Stock.
3.6. Accredited Investor. The Purchaser represents and warrants that it
is an "accredited investor" as that term is defined in SEC Rule 501(a) of
Regulation D, 17 C.F.R. 230.501(a).
3.7. Resales under SEC Rule 144. The Purchaser understands that the
Common Stock issued, or to be issued, hereunder may not be sold in the United
States or to a U.S. person, without registration under the Securities Act or an
exemption therefrom. Furthermore, the Purchaser understands that the Purchaser
will be deemed an "affiliate" under SEC Rule 144, 17 C.F.R. 230.144 ("Rule
144"), and that all resales of the Common Stock must be made in compliance with
Rule 144.
3.8. Restrictive Legend. Each certificate representing the Common Stock
shall (unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend in a form substantially as follows (in
addition to any legend required under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS
AND MAY NOT BE SOLD, OFFERED TO SALE, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT RELATING TO THE SECURITIES WHICH IS EFFECTIVE
UNDER THE SECURITIES ACT, (ii) RULE 144 PROMULGATED UNDER THE
SECURITIES ACT OR (iii) AN OPINION OF COUNSEL OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE."
4. ADDITIONAL COVENANTS BY THE PARTIES
4.1. Board Representation. Upon the Purchaser's acquisition of an
aggregate of fifteen percent (15%) of the Company's issued and outstanding
shares of voting common stock, the Company shall increase the size of its Board
of Directors
8
to nine (9) and shall appoint two (2) directors nominated by the Purchaser.
Thereafter, for so long as the Purchaser owns fifteen percent (15%) or more up
to twenty percent (20%) of the Company's issued and outstanding shares of voting
common stock, the Company shall include in its slate of director nominees the
two (2) directors nominated by the Purchaser at the Company's annual meeting of
stockholders. Upon the Purchaser's acquisition of an aggregate of twenty percent
(20%) of the Company's issued and outstanding shares of voting common stock, the
Company shall increase the size of its Board of Directors to ten (10) and shall
appoint another director for a total of three (3) directors nominated by the
Purchaser. Thereafter, for so long as the Purchaser owns twenty percent (20%) or
more of the Company's issued and outstanding shares of voting common stock, the
Company shall include in its slate of director nominees the three (3) directors
nominated by the Purchaser at the Company's annual meeting of stockholders.
Thereafter, in the event that the number of directors is changed, the Purchaser
shall be entitled to nominate thirty percent (30%) of the directors rounded to
the nearest whole number, provided however, if the Purchaser owns less than
twenty (20%) but more than fifteen percent (15%), then the number of directors
Purchaser may nominate shall be reduced to twenty two percent (22%) of the
directors rounded to the nearest whole number. However, in the event that
Purchaser owns less than fifteen percent (15%) but more than ten percent (10%),
then the number of directors Purchaser is entitled to nominate shall be reduced
to ten percent (10%) of the number of directors rounded to the nearest whole
number. Finally, if Purchaser owns less than ten percent (10%) of the Company's
issued and outstanding shares, then the Purchaser shall not be entitled to
nominate any director.
4.2. Standstill Agreement. Purchaser agrees that from and after the
date of this Agreement (the "Standstill Period"),the Purchaser will not, nor
will it permit any of its Affiliates to, from or after the date such person
becomes an Affiliate, without the prior approval of a majority vote (a
"Requisite Board Vote") of the directors who are not the directors nominated by
the Purchaser pursuant to this Agreement or otherwise Affiliates of the
Purchaser (the "Disinterested Directors") do any of the following:
4.2.1. acquire, or offer to acquire, whether by purchase,
gift, or by joining a partnership or other group (as defined in SEC Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), any shares of the Company's voting Common or Preferred Stock (the
"Voting Stock"), securities convertible into, exchangeable for, or exercisable
for Voting Stock, which would result in the Purchaser beneficially owning more
than fifty percent (50%) of the Company's voting stock as defined by SEC Rule
13d-3; or
4.2.2. (i) solicit, initiate or participate in any
"solicitation" of "proxies" or become a "participant" in any "election contest"
(as such terms are defined or used in Regulation 14A under the Exchange Act,
disregarding clause (iv) of Rule 14a-1(1)(2) and including any exempt
solicitation pursuant to Rule 14a-2(b)(1)); call, or in any way participate in a
call for, any special meeting of stockholders of the Company (or take any action
with respect to acting by written consent of the
9
stockholders); request, or take any action to obtain or retain any list of
holders of any securities of the Company; initiate or propose any stockholder
proposal or participate in the making of, or solicit stockholders for the
approval of, one or more stockholder proposals relating to the Company's Voting
Stock; (ii) deposit any Voting Stock in a voting trust or subject them to any
voting agreement or arrangements, except as provided for herein; (iii) form,
join, or in any way participate in a group with respect to any shares of Voting
Stock, or any securities the ownership thereof would make the owner a beneficial
owner of Voting Stock; (iv) otherwise act to control or influence the Company or
the management, the Disinterested Directors, policies or affairs of the Company
(other than solely by and through directors nominated by the purchaser pursuant
to this Agreement); (v) to disclose any intent, purpose, plan or proposal with
respect to this Agreement or the Company, its Affiliates or the board of
directors, management, policies, or affairs or securities or assets of the
Company or its Affiliates that is inconsistent with this Agreement, including
any intent, purpose, plan or proposal that is conditioned upon, or that would
require the Company or any of its Affiliates to make public disclosure relating
to any such intent, purpose, plan, proposal or condition; or (vi) assist,
advise, encourage or act in concert with any person with respect to, or seek to
do, any of the foregoing.
4.3. Regulatory Compliance. The Parties agree to cooperate one with the
other in the preparation and filing of all required regulatory filings
including, but not limited to, the filing by Purchaser of a Schedule 13D and
Form 3 with the SEC and any notice filings with the Federal Trade Commission
under Section 7A of the Xxxxxxx Act.
4.4. Press Releases and Publicity. The parties agree not to issue any
press release or otherwise disclose the existence of this agreement or any
proposed business relationship between the parties without the prior written
consent of the other party unless such disclosure is required by U.S. Federal
Securities laws or the rules of the NASDAQ Stock Market. The consent of the
other party to a proposal for public disclosure shall not be unreasonably
withheld.
4.5. NASDAQ Listing. The Company agrees that it will not voluntarily
remove from listing on the NASDAQ Stock Market the Company's common stock,
unless it is to transfer such listing to another public securities market or
stock exchange in the United States. In addition, the Company agrees not to
voluntarily undertake any action which would result in the removal of the shares
from listing on the NASDAQ Stock Market.
4.6. Preemptive Rights. Purchaser shall have the right to acquire from
the Company an amount of any newly issued equity securities or convertible debt
securities which the Company may issue, from time to time, sufficient in
quantity to maintain Purchaser's percentage equity ownership immediately before
the issuance of the newly issued equity or convertible debt securities giving
effect to the conversion of any convertible debt or preferred stock ("Preemptive
Rights). The exercise of the Preemptive Rights granted pursuant to this Section
4.6 shall be on the same terms and
10
conditions as the terms and conditions applicable to the purchasers of the newly
issued securities. The Preemptive Rights granted to Purchaser shall also apply
to the exercise of stock options and warrants previously issued by the Company
or covered under the Company's stock option plans, except that the purchase
price for the shares shall be at the fair market value of the shares at the time
of issuance, and not the exercise price of the stock option or warrant. The
Company undertakes to promptly notify Purchaser of any new issuances of equity
or convertible debt securities and Purchaser shall have fourteen (14) days from
the date of said notice in which to notify the Company of the exercise of
Preemptive Rights. Thereafter, Purchaser shall have thirty (30) days in which to
purchase the securities covered by the Preemptive Rights.
4.7. Lock-up Agreement. For a period of twelve (12) months from the
Closing Date (the "Lock-up Period") Purchaser agrees that it will not sell,
transfer, or otherwise dispose of any of the Company's shares it may own if the
transaction will result in Purchaser owning less than twenty percent (20%) of
the Company's issued and outstanding shares without the prior written consent of
the Company.
4.8. Right of First Refusal. As additional consideration for the sale
of the Common Stock to Purchaser pursuant to this Agreement, Purchaser grants to
the Company a right of first refusal to purchase any shares of the Company's
common stock owned by the Purchaser for which the Purchaser intends to sale,
transfer or otherwise dispose of on the same terms and conditions which the
Purchaser intends to sell to any bona fide third party. In this respect, the
Purchaser shall provide the Company with fourteen (14) days prior written notice
of any proposed sell, transfer, or other disposition of the Common Stock with a
description of the price and other terms and conditions applicable to the
transaction. If the Company elects to exercise its right of first refusal, then
it shall notify the Purchaser of the exercise of its right and shall transfer
the consideration and close the transaction within thirty (30) days from the
exercise of its right.
4.9. Registration Rights Agreement. As additional consideration for the
purchase of the Common Stock, the Purchaser shall be granted registration rights
on the Common Stock as more specifically provided for in the Registration Rights
Agreement attached hereto as "Exhibit A".
4.10. Terminating Event Prior to the Closing Date. If, prior to the
Closing Date the Company has materially breached any representation or warranty
in this Agreement or is in material breach of any of the covenants provided for
in tthis Agreement, or any of the events specified in Sections 4.10.1. through
4.10.6. below shall occur, then notwithstanding anything else to the contrary in
this Agreement the Purchaser may terminate this Agreement without any further
liability to the Company:
4.10.1. If the Board of Directors approves of, or the Company
incurs, any debt or issues any guarantee which in the aggregate are in excess of
$50 million;
11
4.10.2. If the Company disposes of all of its intellectual
property, or if the Board of Directors approves of such disposal;
4.10.3. If the Board of Directors approves of, or the Company
completes an acquisition of another company or assets of another company in a
transaction valued in excess of $100 million;
4.10.4. If the Board of Directors approves of, or the Company
commences a voluntary liquidation proceeding;
4.10.5. If the Company materially amends its certificate of
incorporation or its bylaws or if the Board of Directors approves such
amendment; or
4.10.6. If the Company repurchases in the aggregate in excess
of twenty percent (20%) of its issued and outstanding shares of common stock or
the Board of Directors approves such repurchase.
5. MISCELLANEOUS
5.1. Entire Agreement. This Agreement, together with the agreements
attached hereto as exhibits, constitutes the entire agreement among the parties
and no party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein and therein.
5.2. Survival of Warranties. The warranties, representations, and
covenants of the Company and the Purchaser, jointly and severally, contained in
or made pursuant to this Agreement shall survive the execution and delivery of
this Agreement.
5.3. Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Company and the
Purchaser. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the Company or the Purchaser, or their respective
successors and assigns, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
Notwithstanding anything else to the contrary in this Agreement, the Purchaser
may transfer the shares of AremisSoft Common Stock acquired by it pursuant to
this Agreement and the Stock Purchase Agreement between LK Global (Holdings) NV
and the Purchaser of even date herewith (the "LK Holdings Agreement"), to a
wholly owned subsidiary of the Purchaser, provided however, that the subsidiary
of the Purchaser also agrees to be jointly and severally obligated with the
Purchaser to perform all of Purchaser's obligations under this Agreement and the
LK Holdings Agreement.
5.4. Governing Law. This Agreement shall be governed by and construed
in
12
accordance with the laws of the State of New York.
5.5. Counterparts and Signatures. 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 agreement. This Agreement may
be executed and transmitted to the parties by electronic means, including, but
not limited to, by facsimile machine, and facsimile signatures shall have equal
dignity with original signatures.
5.6. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.7. Notices. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by facsimile, telex or
telegram or by an overnight courier service or three (3) days after deposit in
the U.S. Mail, certified with postage prepaid, addressed as follows:
If to Company: AremisSoft Corporation
Xxxxxxxxxx Xxxxx
Xxxxxx Xxx
Xxxxxx, Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Attn: Dr. Lycourgos X. Xxxxxxxxx
with copies to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
If to Purchaser: Info-quest SA
AL. Xxxxxx 00
Xxxxxx 00000 Xxxxxx
Attn: Xxxxxxxxx Xxxxxx, CEO
or to such other addresses as a party may designate by five (5) days'
prior written notice to the other party.
5.8. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which
13
such party may be entitled.
5.9. Amendments and Waivers. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by the parties.
5.10 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: AremisSoft Corporation
/s/ Xxxxxxxxx Xxxxxx By: /s/ Lycourgos X. Xxxxxxxxx
------------------------------- ------------------------------------
Lycourgos X. Xxxxxxxxx
Chief Executive Officer
PURCHASER: Info-quest SA
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Xxxxxxxxx Xxxxxx
Chairman of the Board and CEO
14
EXHIBIT "A"
ESCROW AGREEMENT
This Escrow Agreement and Instructions (the "Agreement") dated as of
September 10, 1999 is made and entered into by and among AremisSoft Corporation,
a Delaware corporation (the "Company"), Info-quest SA, a corporation organized
under the laws of Greece (the "Purchaser"), and [NAME OF BANK ACTING AS ESCROW]
(the "Escrow Agent").
WHEREAS, the Purchaser and the Company have entered into a Stock
Purchase Agreement dated September 10, 1999 (the "Stock Purchase Agreement");
and
WHEREAS, the Stock Purchase Agreement, pursuant to Section 1.6, calls
for an escrow to facilitate the payment of the purchase price and delivery of
the shares and to accommodate the time and location difference between the
parties; and
WHEREAS, the Purchaser and the Company desire to appoint [NAME OF BANK
ACTING AS ESCROW] to act as Escrow Agent to receive the deposit of, (i)
1,600,000 shares of the Company's Common Stock (the "Escrowed Shares") from the
Company and (ii) the purchase price of $17,600,000 USD (the "Purchase Price")
from the Purchaser and to distribute the same to the relevant parties under the
terms set forth herein and the Stock Purchase Agreement after all of the
conditions to the Closing specified in Section 1.5 of the Stock Purchase
Agreement have been satisfied; and
WHEREAS, the Escrow Agent agrees to maintain an escrow account pursuant
to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, it is hereby agreed
as follows:
1. ESTABLISHMENT OF ESCROW ACCOUNT; DELIVERIES TO AND BY THE ESCROW AGENT.
Within eight (8) business days of the execution of the Stock Purchase Agreement,
the Company shall deliver stock certificates representing the Escrowed Shares in
the name of Info-quest SA to the Escrow Agent and the Purchaser shall deliver
the Purchase Price to the Escrow Agent via wire transfer instructions to be
provided by the Escrow Agent.
2. ESCROW AGENT TO HOLD ESCROWED SHARES AND TRANSFER PURCHASE PRICE TO AN
INTEREST BEARING ACCOUNT. The Escrow Agent shall hold and release the Escrowed
Shares and the Purchase Price only in accordance with the terms and conditions
of this Agreement. As soon as practicable after receipt of the Purchase Price,
the Escrow Agent shall deposit the Purchase Price into an interest bearing
account for the benefit of the Purchaser. After deducting $22,500 to be
transferred to the Company as reimbursement for the Federal Trade Commission
filing fee paid by the Company on Info-quest SA's behalf, the Escrow Agent shall
return all interest accrued on the Purchase Price to the Purchaser upon release
of the Escrowed Shares and the Purchase Price, as provided in Section 3 below.
3. RELEASE OF ESCROWED SHARES AND PURCHASE PRICE. Subject to the provisions of
Section 8, the Escrow Agent shall release the Escrowed Shares to the Purchaser
and the Purchase Price plus $22,500 as reimbursement for one half of the Federal
Trade Commission filing fee
1
15
to the Company on the Closing Date, as that term is defined in the Stock
Purchase Agreement. A check or wire transfer representing all interest accrued
on the Purchase Price during the Escrow Period, less $22,500 to be paid to the
Company as reimbursement for the Federal Trade Commission filing fee, shall be
delivered to the Purchaser along with the Escrowed Shares. In the event, (i) the
Escrow Account has not been established within eight (8) business days of the
execution of this Agreement or such other date as is agreed in writing by the
Company and the Purchaser and delivered to the Escrow Agent, (ii) a final
objection is entered by the Federal Trade Commission concerning the consummation
of the transactions by the parties, or (iii) this Agreement is terminated
pursuant to Section 4.10 of the Stock Purchase Agreement or by the Purchaser and
the Company by mutual agreement and notification thereof to the Escrow Agent
prior to delivery of the Escrowed Shares and the Purchase Price, the Escrow
Agent shall return the Escrowed Shares to the Company and the Purchase Price,
including any accrued interest, less the $22,500 Federal Trade Commission filing
fee, to the Purchaser within five (5) days from the Escrow Agent's receipt of
delivery instructions from the appropriate party.
4. ACKNOWLEDGMENT; DISPUTES. The parties acknowledge that the only terms and
conditions upon which the Escrowed Shares are to be released are set forth in
Section 3 of this Agreement. The Company and the Purchaser reaffirm their
agreement to abide by the terms and conditions of this Agreement with respect to
the release of the Escrowed Shares and the Purchase Price. Any dispute with
respect to the release of the Escrow Shares shall be resolved pursuant to
Section 8 or by agreement among the affected parties.
5. ESCROW PERIOD. The duration of the escrow (the "Escrow Period") shall begin
with the delivery of the Escrowed Shares and Purchase Price to the Escrow Agent
and shall terminate when all deliveries required to be made by the Escrow Agent
pursuant to this Agreement have in fact been made.
During the Escrow Period, the Purchaser and the Company are aware,
understand and agree that they are not entitled to any of the Purchase Price or
any of the Escrowed Shares, nor any of the rights, preferences or privileges
pertaining thereto, unless and until the Escrowed Shares are released to the
Purchaser and the Purchase Price is released to the Company. Until the release
by the Escrow Agent, the Escrowed Shares shall be deemed to be beneficially
owned by the Company, as treasury shares. Notwithstanding such status as
treasury shares, during the Escrow Period, the Company shall not encumber, in
any way, the Escrowed Shares.
6. DUTIES OF ESCROW AGENT. The Escrow Agent acts hereunder as depository only
and is not responsible or liable for the sufficiency, correctness, authenticity
or validity of any instrument deposited with it thereunder, or the identity,
authority or right of any person executing or depositing the same. The Escrow
Agent is authorized and directed to hold the Escrowed Shares and the Purchase
Price, and at the time the Escrowed Shares are to be delivered to the
appropriate party, as required by Section 3 above, the Escrow Agent will
transmit the Escrowed Shares by certified mail or courier to the address
provided by the appropriate party and the Escrow Agent will transmit the
Purchase Price via wire or other means as provided by the appropriate party.
7. RIGHTS AND LIABILITIES OF THE PARTIES. The Escrow Agent shall have the right
to act upon any notice, request, waiver, consent or other paper, document, or
facsimile of the same believed by the Escrow Agent to be genuine and to be
signed by the proper party or parties. The Escrow Agent shall not be liable for,
and both of the parties agree to indemnify and hold
2
16
the Escrow Agent harmless from and against, liability for any error of judgment
or for any act done or step taken or omitted by it in good faith, or for any
mistake of fact or law, or for anything which it may do or refrain from doing in
connection herewith, except its own wilful misconduct or recklessness. The
Escrow Agent shall have no duties to anyone other than those signing this
Agreement.
8. CONTROVERSIES. If any controversy arises between the parties concerning the
subject matter of this Agreement or its terms or conditions, the Escrow Agent
will not be required to determine the controversy or to take any action
regarding it. The Escrow Agent may hold all documents and instruments and may
wait for settlement of any such controversy by final appropriate legal
proceedings or other means as, in the Escrow Agent's sole discretion, it deems
to be required. In such event, the Escrow Agent will not be liable for interest
or damages arising from any nondelivery thereunder. Furthermore, the Escrow
Agent may, at its option, file an action of interpleader requiring the parties
to answer and litigate any claims and rights between themselves. The Escrow
Agent is authorized to deposit with the clerk of the court all documents and
instruments held, and the parties agree to pay all costs, expenses, charges, and
attorneys' fees incurred by the Escrow Agent due to any such interpleader
action. Upon initiating such action, the Escrow Agent shall be fully released
and discharged of and from all obligations and liability imposed by the terms of
this Agreement.
9. ACTIONS BY THE ESCROW AGENT. The Escrow Agent shall be entitled to act and
rely upon any statement, request, notice or instructions respecting this
Agreement given to the Escrow Agent by the parties. However, any statement or
notice to the Escrow Agent under this Agreement, or with respect to the
termination of this Agreement, must be confirmed in writing to the Escrow Agent.
At any time during the Escrow Period, the Escrow Agent has the authority to
release the Escrowed Shares from escrow solely to the transfer agent for the
purpose of breaking down the certificates held under this Agreement so long as
the Escrow Agent first obtains the written consent of the Company and the
Purchaser.
10. EXPENSES. The parties agree and acknowledge that all expenses of Escrow
Agent in administering this escrow, other than expenses relating to a
controversy concerning this escrow, shall be paid solely by the Company without
the right of contribution from the Purchaser. Notwithstanding the foregoing, the
Company and the Purchaser each agree to pay one half of all expenses incurred by
the Escrow Agent with respect to any controversies which may arise pursuant to
this Agreement.
11. NOTICES. All notices or other communications required hereunder shall be in
writing and shall be sufficient in all respects and shall be deemed delivered
after 5 days if sent via registered or certified mail, postage prepaid; the next
day if sent by overnight courier service; or one business day after
transmission, if sent by facsimile to the following:
If to the Company: AremisSoft Corporation
Xxxxxxxxxx Xxxxx
Xxxxxx Xxx
Xxxxxx, Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Attn: Dr. Lycourgos X. Xxxxxxxxx
3
17
with a copy to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
If to the Purchaser: Info-quest SA
AL. Xxxxxx 00
Xxxxxx 00000 Xxxxxx
Attn: Xxxxxxxxx Xxxxxx, CEO
If to Escrow Agent: [TO BE SUPPLIED]
Any party hereto may change its address for purposes hereof by notice
to all other parties hereto.
12. GOVERNING LAW. This Agreement shall be construed in accordance with the laws
of the State of California.
13. SIGNATURES AND COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which may be deemed an original, but all of which together
shall constitute one and the same instrument. This Agreement may be transmitted
and executed by the parties by electronic means, including, but not limited to
by facsimile machine, and facsimile signatures shall have equal integrity, force
and effect as an original signature.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
THE COMPANY: AREMISSOFT CORPORATION
By:
---------------------------------
Dr. Lycourgos X. Xxxxxxxxx
Chief Executive Officer
THE PURCHASER: INFO-QUEST SA
By:
---------------------------------
Xxxxxxxxx Xxxxxx
Chief Executive Officer
ESCROW AGENT: [NAME OF ESCROW AGENT
By:
---------------------------------
19
REGISTRATION RIGHTS AGREEMENT
BETWEEN
AREMISSOFT CORPORATION
A DELAWARE CORPORATION
AND
INFO-QUEST SA
A CORPORATION ORGANIZED UNDER THE LAWS OF GREECE
SEPTEMBER 10, 1999
20
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of this 10th day of September, 1999 by and between AremisSoft Corporation, a
Delaware corporation ("AremisSoft" or the "Company"), and Info-quest SA
("Info-quest").
RECITALS
WHEREAS, Info-quest SA has entered into Stock Purchase Agreements of even date
herewith (the "Purchase Agreements") wherein AremisSoft and LK Global (Holdings)
NV agree to sell and Info-quest agrees to purchase two million eight hundred
thousand (2,800,000) shares of AremisSoft Common Stock pursuant to an exemption
from the registration requirements under the Securities Act of 1933, as amended
(the "Securities Act"); and
WHEREAS, AremisSoft and Info-quest desire to enter into this Agreement in
order to grant to Info-quest the right to register the shares of Common Stock
purchased by Info-quest pursuant to the Purchase Agreements.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used herein, the following terms shall have the following
respective meanings:
"Affiliate" of a specified Person shall mean any Person that directly or
indirectly controls, is controlled by, or is under common control with such
specified Person. A Person shall be deemed to control another Person if such
Person owns fifty percent (50%) or more of any equity interest in the
"controlled" Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock or partnership interests, by contract,
agreement or understanding (whether oral or written), or otherwise.
"Designated Transferee" shall have the meaning set forth in Section 10
hereof.
"EASDAQ" shall mean the European Association of Securities Dealers
Automated Quotation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" or "Holders" shall mean Info-quest SA, any Affiliate of Info-quest
SA and any Designated Transferees who are holders of record of any Registrable
Shares, and any combination of one or more such Holders.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the National Association of Securities Dealers
Automated Quotation.
21
"Other Holders" shall mean Persons other than the Holders who are holders of
record of equity securities of AremisSoft to whom AremisSoft grants or has
granted registration rights pursuant to a written agreement.
"Person" shall mean any individual, corporation, association, partnership,
group (as defined in Section 13(d)(3) of the Exchange Act), limited liability
company, joint venture, business trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Registrable Shares" shall mean the all of the shares of AremisSoft Common
Stock owned by the Holder on the date hereof or acquired by the Holder
subsequently thereto.
"Registration Expenses" shall have the meaning set forth in Section 7(a)
hereof.
"SEC" shall mean the Securities and Exchange Commission or any successor
agency.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. Incidental Registrations
Right to Include Registrable Shares. On or after twelve (12) months
from the Closing Date as specified in the Purchase Agreement, each time
AremisSoft shall determine to file a registration statement under the Securities
Act in connection with a proposed offer and sale for cash of any equity
securities (other than an offering of debt securities that are convertible into
equity securities, an offering of equity securities in connection with a SEC
Rule 145 transaction registered on Form S-4, or an offering of equity securities
solely pursuant to an employee stock option plan or other employee benefit plan
registered on Form S-8 or any similar form under the Securities Act) either by
it or by any holders of its outstanding equity securities, AremisSoft will give
prompt written notice of its determination to each Holder and of such Holder's
rights under this Section 2, at least thirty (30) days prior to the anticipated
filing date of such registration statement. Upon the written request of each
Holder made within twenty one (21) days after the receipt of any such notice
from AremisSoft (which request shall specify the Registrable Shares intended to
be disposed of by such Holder), AremisSoft will use its best efforts to effect
the registration under the Securities Act of all Registrable Shares that
AremisSoft has been so requested to register by the Holders thereof, to the
extent required to permit the disposition of the Registrable Shares so to be
registered; provided, however, that (i) if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
AremisSoft shall determine for any reason not to proceed with the proposed
registration of the securities to be sold by it, AremisSoft may, at its
election, give written notice of such determination to each Holder of
Registrable Shares and thereupon shall be relieved of its obligation to register
any Registrable Shares in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection therewith), and (ii)
if such registration involves an underwritten offering, all Holders of
Registrable Shares requesting to be included in AremisSoft's registration must
sell their Registrable Shares to the underwriters on the same terms and
conditions as apply to AremisSoft, with such differences, including any with
respect to indemnification and liability insurance, as may be customary or
appropriate in combined primary and secondary offerings. If a registration
requested pursuant to this Section 2.1 involves an underwritten public
22
offering, any Holder of Registrable Shares requesting to be included in such
registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration. No registration
effected under this Section 2 shall relieve AremisSoft of its obligations to
effect registrations upon request under Section 4 hereof.
Priority in Incidental Registration. If a registration pursuant to this
Section 2 involves an underwritten offering and the managing underwriter(s) in
good faith advise(s) AremisSoft in writing that, in its opinion, the number of
securities that AremisSoft, the Holders and any other Persons intend to include
in such registration exceeds the largest number of securities that can be sold
in such offering without having an adverse effect on such offering (including
the price at which such securities can be sold), then AremisSoft will include in
such registration (i) first, if the registration pursuant to this Section 2 was
initiated by Other Holders exercising demand registration rights, one hundred
percent (100%) of the securities such Other Holders propose to sell (except to
the extent the terms of such Other Holders' registration rights provide
otherwise); (ii) second, one hundred percent (100%) of the securities AremisSoft
proposes to sell for its own account; and (iii) third, to the extent that the
number of securities that such Other Holders exercising demand registration
rights and AremisSoft propose to sell is less than the number of securities that
AremisSoft has been advised can be sold in such offering without having the
adverse effect referred to above, such number of Registrable Shares that the
Holders have requested to be included in such registration pursuant to Section
2.1 hereof and such number of securities that Other Holders exercising
incidental or "piggyback" registration rights of equal priority have requested
to be included in such registration and which collectively, in the opinion of
such managing underwriter(s), can be sold without having the adverse effect
referred to above (provided that if the number of Registrable Shares requested
to be registered pursuant to Section 2.1 hereof plus the number of securities
requested to be registered by Other Holders exercising such incidental or
"piggyback" registration rights exceeds the number that AremisSoft has been
advised can be sold in such offering without having the adverse effect referred
to above, the number of such Registrable Shares and other securities to be
included in such registration by the Holders and such Other Holders shall be
allocated pro rata (based on Common Stock equivalents) among such Holders and
such Other Holders on the basis of the relative number of Registrable Shares or
other securities that each such Holder and Other Holder has requested to be
included in such registration).
3. Holdback Agreements.
If any registration of Registrable Shares shall be in connection with
an underwritten public offering, the Holders shall not effect any public sale or
distribution (except in connection with such public offering), of any equity
securities of AremisSoft, or of any security convertible into or exchangeable or
exercisable for any equity security of AremisSoft (in each case, other than as
part of such underwritten public offering), during the one hundred eighty (180)
day period (or such lesser period as the managing underwriter(s) may permit)
beginning on the effective date of such registration, if, and to the extent, the
managing underwriter(s) of any such offering determine(s) such action is
necessary or desirable to effect such offering; provided, however, that each
Holder has received the written notice required by Section 2.1 hereof; provided,
however, that each Holder shall not be obligated to comply with such
restrictions arising as a result of an underwritten public offering subject to
Section 2 hereof more than once in any twelve (12) month period; and provided,
further, that no Holder owning less than five percent (5%) of the outstanding
shares of AremisSoft shall
23
be obligated to comply with such restrictions if such Holder is not including
shares for sale in such offering.
4. Registration on Request.
Request by Holders. On or after twelve (12) months from the Closing
Date specified in the Purchase Agreement, upon the written request of the
Holders of seventy five percent (75%) of the Registrable Shares that AremisSoft
effect the registration under the Securities Act of all or part of such Holders'
Registrable Shares, and specifying the amount and the intended method of
disposition thereof, AremisSoft will promptly give notice of such requested
registration to all other Holders of Registrable Shares and, as expeditiously as
possible, use its best efforts to effect the registration under the Securities
Act of: (i) the Registrable Shares that AremisSoft has been so requested to
register by Holders of at least seventy five percent (75%) of the Registrable
Shares; and (ii) all other Registrable Shares that AremisSoft has been requested
to register by any other Holder thereof by written request received by
AremisSoft within twenty one (21) days after the giving of such written notice
by AremisSoft (which request shall specify the intended method of disposition of
such Registrable Shares); provided, however, that AremisSoft shall not be
required to effect more than one (1) registration in any twelve (12) month
period nor more than two (2) registrations in total pursuant to this Section 4;
provided, further, that AremisSoft shall not be obligated to file a registration
statement relating to a registration request under this Section 4 (x) if the
registration request is delivered after delivery of a notice by AremisSoft of an
intended registration and prior to the effective date of the registration
statement referred to in such notice, (y) within a period of one hundred eighty
(180) days after the effective date of any other registration statement of
AremisSoft requested by a Holder pursuant to this Section 4 or pursuant to which
any Holder included Registrable Shares, or (z) if the Board of AremisSoft
determines in good faith that, in view of the advisability of deferring public
disclosure of material corporate developments, such registration and the
disclosure required to be made in connection therewith would not be in the best
interests of AremisSoft at such time or that, in light of other factors and
considerations (including without limitation the pendency of a presently
effective registration statement initiated by AremisSoft), such registration
would be seriously detrimental to AremisSoft (in which event AremisSoft's
obligation to file a registration statement under this Section 4 shall be
deferred for a period not to exceed thirty (30) days from the receipt of the
registration request). The Holders initially requesting a registration pursuant
to this Section 4 may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such request by
providing a written notice to AremisSoft revoking such request; provided,
however, that, in the event the Holders shall have made a written request for a
demand registration (I) that is subsequently withdrawn by the Holders after
AremisSoft has filed a registration statement with the SEC in connection
therewith but prior to such demand registration being declared effective by the
SEC or (II) that is not declared effective solely as a result of the failure of
Holders to take all actions reasonably required in order to have the
registration and the related registration statement declared effective by the
SEC, then, in any such event, such demand registration shall be counted as a
demand registration for purposes of this Section 4(a). Promptly after the
expiration of the twenty one (21) day period referred to in clause (ii) above,
AremisSoft will notify all the Holders to be included in the registration of the
other Holders and the number of shares of Registrable Shares requested to be
included therein.
Registration Statement Form. If any registration requested pursuant to
this Section 4 that is proposed by AremisSoft to be effected by the filing of a
registration statement on Form
24
S-3 (or any successor or similar short-form registration statement) shall be in
connection with an underwritten public offering, and if the managing
underwriter(s) shall advise AremisSoft in writing that, in its opinion, the use
of another form of registration statement is of material importance to the
success of such proposed offering, then such registration shall be effected on
such other form.
Effective Registration Statement. A registration requested pursuant to
this Section 4 will not be deemed to have been effected unless it has become
effective under the Securities Act and has remained effective for one hundred
eighty (180) days or such shorter period as all the Registrable Shares included
in such registration have actually been sold thereunder. In addition, if within
one hundred eighty (180) days after it has become effective, the offering of
Registrable Shares pursuant to such registration is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court, such registration will be deemed not to have been effected for
purposes of this Section 4.
Priority in Requested Registrations. If a requested registration
pursuant to this Section 4 involves an underwritten offering and the managing
underwriter(s) in good faith advise(s) AremisSoft in writing that, in its
opinion, the number of securities requested to be included in such registration
(including securities of AremisSoft that are not Registrable Shares) exceeds the
largest number of securities that can be sold in such offering without having an
adverse effect on such offering (including the price at which such securities
can be sold), then AremisSoft will include in such registration (i) first, one
hundred percent (100%) of the Registrable Shares requested to be registered
pursuant to Section 4.1 hereof (provided that if the number of Registrable
Shares requested to be registered pursuant to Section 4.1 hereof exceeds the
number that AremisSoft has been advised can be sold in such offering without
having the adverse effect referred to above, the number of such Registrable
Shares to be included in such registration by the Holders shall be allocated pro
rata among such Holders on the basis of the relative number of Registrable
Shares each such Holder has requested to be included in such registration); (ii)
second, to the extent that the number of Registrable Shares requested to be
registered pursuant to Section 4.1 hereof is less than the number of securities
that AremisSoft has been advised can be sold in such offering without having the
adverse effect referred to above, such number of shares of equity securities
AremisSoft requests to be included in such registration, and (iii) third, to the
extent that the number of Registrable Shares requested to be included in such
registration pursuant to Section 4.1 hereof and the securities that AremisSoft
proposes to sell for its own account are, in the aggregate, less than the number
of equity securities that AremisSoft has been advised can be sold in such
offering without having the adverse effect referred to above, such number of
other securities proposed to be sold by any Other Holder that, in the opinion of
such managing underwriter(s), can be sold without having the adverse effect
referred to above (provided that if the number of such securities of such Other
Holder requested to be registered exceeds the number that AremisSoft has been
advised can be sold in such offering without having the adverse effect referred
to above, the number of such securities to be included in such registration
pursuant to this Section 4.4 shall be allocated pro rata among all such Other
Holders on the basis of the relative number of securities each such Other Holder
has requested to be included in such registration).
5. Registration Procedures.
25
If and whenever AremisSoft is required by the provisions of Section 2
or 4 hereof to use its best efforts to effect or cause the registration of
Registrable Shares, AremisSoft shall as expeditiously as possible:
prepare and, in any event within sixty (60) days after the end of
the period within which a request for registration may be given to AremisSoft,
file with the SEC a registration statement with respect to such Registrable
Shares and use its best efforts to cause such registration statement to become
effective;
prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of tone hundred eighty (180) days and to comply with the provisions of
the Securities Act, the Exchange Act, and the rules and regulations promulgated
thereunder with respect to the disposition of all the securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the Holders thereof set forth in such registration
statement; provided, however, that (A) before filing a registration statement
(including an initial filing) or prospectus, or any amendments or supplements
thereto, AremisSoft will furnish to one counsel selected by the Holders of a
majority of the Registrable Shares covered by such registration statement copies
of all documents proposed to be filed, which documents will be subject to the
review and comment of such counsel, and (B) AremisSoft will notify each Holder
of Registrable Shares covered by such registration statement of any stop order
issued or threatened by the SEC, any other order suspending the use of any
preliminary prospectus or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, and take all
reasonable actions required to prevent the entry of such stop order, other order
or suspension or to remove it if entered;
furnish to each Holder and each underwriter, if applicable, of
Registrable Shares covered by such registration statement such number of copies
of the registration statement and of each amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and summary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as each Holder of Registrable Shares covered by
such registration statement may reasonably request in order to facilitate the
disposition of the Registrable Shares by such Holder;
use its best efforts to register or qualify such Registrable
Shares covered by such registration statement under the state securities or blue
sky laws of such jurisdictions as each Holder of Registrable Shares covered by
such registration statement and, if applicable, each underwriter, may reasonably
request, and do any and all other acts and things that may be reasonably
necessary to consummate the disposition in such jurisdictions of the Registrable
Shares owned by such Holder, except that AremisSoft shall not for any purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this Section 5.1.4., it would
not be obligated to be so qualified;
use its best efforts to cause such Registrable Shares covered by
such registration statement to be registered with or approved by such other
governmental
26
agencies or authorities as may be necessary to enable the Holders thereof to
consummate the disposition of such Registrable Shares;
if at any time when a prospectus relating to the Registrable
Shares is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus as then in effect would
include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, immediately give written notice thereof to each Holder and the
managing underwriter or underwriters, if any, of such Registrable Shares and
prepare and furnish to each such Holder a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Shares, such prospectus shall
not include an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading;
use its best efforts to list any portion of such Registrable
Shares not already listed on any securities exchange on which similar securities
of AremisSoft are then listed, and enter into customary agreements including a
listing application and indemnification agreement in customary form, provided
that the applicable listing requirements are satisfied, and provide a transfer
agent and registrar for such Registrable Shares covered by such registration
statement not later than the effective date of such registration statement;
enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as each Holder of
Registrable Shares being sold or the underwriter or underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Shares, including customary indemnification and opinions;
use its best efforts to obtain a "cold comfort" letter or letters
from AremisSoft's independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters as the Holders
of the Registrable Shares being sold or the underwriters retained by such
Holders shall reasonably request;
make available for inspection by representatives of any Holder of
Registrable Shares covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by such
Holders or any such underwriter, all financial and other records pertinent
corporate documents and properties of AremisSoft and its subsidiaries' officers,
directors and employees to supply all information and respond to all inquiries
reasonably requested by such Holders or any such representative, underwriter,
attorney, accountant or agent in connection with such registration statement;
promptly prior to the filing of any document that is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement), provide copies of such
document to counsel to the Holders of Registrable Shares covered by such
registration statement and to the managing underwriter(s), if any, make
AremisSoft's representatives available for discussion of such
27
document and make such changes in such document prior to the filing thereof as
counsel for such Holders or underwriter(s) may reasonably request;
otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable after the effective date of the registration
statement, an earning statement that shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations promulgated
thereunder;
not later than the effective date of the applicable registration
statement, use its best efforts to provide a CUSIP number for any portion of
such Registrable Shares not already included in a CUSIP number for similar
securities of AremisSoft, and provide the applicable transfer agents with
printed certificates for the Registrable Shares that are in a form eligible for
deposit with the Depository Trust Company;
notify counsel for the Holders of Registrable Shares included in
such registration statement and the managing underwriter or underwriters, if
any, immediately and confirm the notice in writing, (A) when the registration
statement, or any post-effective amendment to the registration statement, shall
have become effective, or any supplement or amendment to the prospectus shall
have been filed, (B) of the receipt of any comments from the SEC and (C) of any
request of the SEC to amend the registration statement or amend or supplement
the prospectus or for additional information; and
cooperate with each seller of Registrable Shares and each
underwriter, if any, participating in the disposition of such Registrable Shares
and their respective counsel in connection with any filings required to be made
with NASD, NASDAQ or EASDAQ.
Each Holder of Registrable Shares hereby agrees that, upon receipt
of any notice from AremisSoft of the happening of any event of the type
described in Section 5.1.6. hereof, such Holder shall forthwith discontinue
disposition of such Registrable Shares covered by such registration statement or
related prospectus until such Holder's receipt of the copies of the supplemental
or amended prospectus contemplated by Section 5.1.6. hereof, and, if so directed
by AremisSoft, such Holder will deliver to AremisSoft (at AremisSoft's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the prospectus covering such Registrable Shares at the time of receipt of
such notice. In the event AremisSoft shall give any such notice, the period
mentioned in Section 5.1.2. hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5.1.6. hereof and including the date when such Holder shall
have received the copies of the supplemental or amended prospectus contemplated
by Section 5.1.6. hereof. If for any other reason the effectiveness of any
registration statement filed pursuant to Section 4 hereof is suspended or
interrupted prior to the expiration of the time period regarding the maintenance
of the effectiveness of such Registration Statement required by Section 5.1.2.
hereof so that Registrable Shares may not be sold pursuant thereto, the
applicable time period shall be extended by the number of days equal to the
number of days during the period beginning with the date of such suspension or
interruption to and ending with the date when the sale of Registrable Shares
pursuant to such registration statement may be recommenced.
28
Each Holder hereby agrees to provide AremisSoft, upon receipt of
its request, with such information about such Holder to enable AremisSoft to
comply with the requirements of the Securities Act and to execute such
certificates as AremisSoft may reasonably request in connection with such
information and otherwise to satisfy any requirements of law.
6. Underwritten Registrations. Subject to the provisions of Sections 2, 3 and 4
hereof, any of the Registrable Shares covered by a registration statement may be
sold in an underwritten offering at the discretion of the Holder thereof. In the
case of an underwritten offering pursuant to Section 2 hereof, the managing
underwriter(s) that will administer the offering shall be selected by
AremisSoft; provided, however, that such managing underwriter(s) shall be
reasonably satisfactory to the Holders of a majority of the Registrable Shares
to be registered. In the case of any underwritten offering pursuant to Section 4
hereof, the managing underwriter(s) that will administer the offering shall be
selected by the Holders of a majority of the Registrable Shares to be
registered; provided, however, that such underwriter(s) shall be reasonably
satisfactory to AremisSoft.
7. Expenses.
Subject to Section 7.2., AremisSoft shall pay all fees, costs and
expenses of all registrations pursuant to Sections 2 or 4 hereof, including all
SEC, stock exchange, NASD, NASDAQ or EASDAQ registration and filing fees and
expenses, reasonable fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by the rules of NASD, NASDAQ or
EASDAQ, fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel for the underwriters, if
any, in connection with blue sky qualifications of the Registrable Shares),
rating agency fees, the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange or
national market system on which similar securities issued by AremisSoft are then
listed, fees and disbursements of counsel for AremisSoft and all independent
certified public accountants (including the expenses of any annual audit,
special audit and "cold comfort" letters required by or incident to such
performance and compliance), the reasonable fees and expenses of special experts
required to be retained by AremisSoft in connection with such registration, and
the reasonable fees and expenses of other Persons required to be retained by
AremisSoft (collectively, "Registration Expenses").
The Holders shall pay the following: any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of Registrable
Shares by the Holders pursuant to this Agreement, printing expenses (including
expenses of printing certificates for Registrable Shares and prospectuses),
messenger, telephone and delivery expenses, the fees and disbursements of the
underwriters (including expenses relating to "road shows" and other marketing
activities) and all fees, costs and expenses of counsel to the Holders in
connection with any registration pursuant to this Agreement.
8. Indemnification.
Indemnification by AremisSoft. In the event of any registration of
any securities of AremisSoft under the Securities Act pursuant to Section 2 or 4
hereof, AremisSoft will, and it hereby does, indemnify and hold harmless, to the
extent permitted by law, each of the Holders of any Registrable Shares covered
by such registration
29
statement, each Affiliate of such Holder (other than AremisSoft) and their
respective directors and officers, each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such Holder or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with AremisSoft's
consent, which consent shall not be unreasonably withheld) to which any
Indemnified Party may become subject under the Securities Act, state securities
or blue sky laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Party is a party thereto) or expenses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereof, (ii) any
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 by AremisSoft of any federal, state or common law rule or
regulation applicable to AremisSoft and relating to action required of or
inaction by AremisSoft in connection with any such registration, and AremisSoft
will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, liability, action or proceeding; provided, however, that AremisSoft
shall not be liable to any Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereof or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information with respect to such Holder furnished to AremisSoft by such
Holder specifically for use in the preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Holder or any Indemnified Party and shall survive the transfer of
such securities by such Holder.
Indemnification by the Holders and the Underwriters. AremisSoft
may require, as a condition to including any Registrable Shares in any
registration statement filed in accordance with Section 2 or 4 hereof, that
AremisSoft shall have received an undertaking reasonably satisfactory to it from
the Holders of such Registrable Shares or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 8(a)
hereof) AremisSoft with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information with respect to the
Holders of the Registrable Shares being registered or such underwriter furnished
to AremisSoft by such Holders or such underwriter specifically for use in the
preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement, or a document incorporated by reference
into any of the foregoing; provided, however, that no such Holder shall be
liable for any indemnity claims in excess of the amount of the net proceeds
received by such Holder from the sale of Registrable Shares. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of AremisSoft or any of the Holders, or any of their respective
Affiliates (other
30
than AremisSoft), directors, officers or controlling Persons, and shall survive
the transfer of such securities by such Holder.
Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 8, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of the indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 8, except to the extent
that the indemnifying party is actually materially prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the
right, at the sole cost and expense of the indemnifying party, to employ counsel
to represent the indemnified party and its respective controlling persons,
directors, officers, employees or agents who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by the indemnified
party against such indemnifying party under this Section 8 if (i) the employment
of such counsel shall have been authorized in writing by such indemnifying party
in connection with the defense of such action, (ii) the indemnifying party shall
not have promptly employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action or counsel, or (iii) any indemnified
party shall have reasonably concluded that there may be defenses available to
such indemnified party or its respective controlling persons, directors,
officers, employees or agents which are in conflict with or in addition to those
available to an indemnifying party; provided, further, that the indemnifying
party shall not be obligated to pay for more than the expenses of one firm of
separate counsel for the indemnified party (in addition to the reasonable fees
and expenses of one firm serving as local counsel). No indemnifying party will
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
Contribution. If the indemnification provided for in this Section 8
shall for any reason be unavailable to any indemnified party under Section 8.1
or 8.2 hereof or is insufficient to hold it harmless in respect of any loss,
claim, damage or liability, or any action in respect of any loss, claim, damage
or liability, or any action in respect thereof referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the indemnified party and indemnifying
party or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
indemnified party and indemnifying party with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
Notwithstanding any other provision of this Section 8.4, no Holder of
Registrable Shares shall be required to contribute
31
an amount greater than the dollar amount of the net proceeds received by such
Holder with respect to the sale of any such Registrable Shares. 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.
Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 8 (with appropriate modifications)
shall be given by AremisSoft and each Holder of Registrable Shares with respect
to any required registration or other qualification of securities under any
federal or state law or regulation other than the Securities Act.
Non-Exclusivity. The obligations of the parties under this Section
8 shall be in addition to any liability that any party may otherwise have to any
other party.
9. Other Covenants
9.1. Rule 144. AremisSoft covenants that it will file in a timely
manner the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder (or, if
AremisSoft is not required to file such reports, it will, upon the request of
any Holder of Registrable Shares, make publicly available such information), and
it will take such further action as any Holder of Registrable Shares may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Shares without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Shares, AremisSoft will deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
anything else to the contrary, the registration rights granted to the Holder
under this Agreement shall not be available for any sale of Registrable
Securities which could be sold in compliance with SEC Rule 144 and all
registration rights granted to the Holder under this Agreement shall terminate
once the Registrable Securities can be sold pursuant to SEC Rule 144(k) ( a
period of two years from the issuance of the Registrable Securities so long as
the Holder is not an Affiliate of the Company.)
9.2. Early Release From Lock-up and Acceleration of Registration
Rights. If, during the first twelve (12) months from the Closing Date specified
in the Purchase Agreements the Company has materially breached any
representation or warranty in Section 2 of the Stock Purchase Agreement between
the Holder and the Company of even date herewith, or is in material breach of
any of the covenants provided for in the aforesaid Stock Purchase Agreement, or
any of the events specified in Sections 9.2.1. through 9.2.6. below shall occur
which were disapproved by a unanimous vote of the directors nominated by the
Holder pursuant to Section 4.1 of the aforesaid Stock Purchase Agreement at a
meeting of the Company's Board of Directors, then notwithstanding anything else
to the contrary in this Agreement or in the Stock Purchase Agreement the Holder
shall be released from the Lock-up provisions of the aforesaid Stock Purchase
Agreement and the registration rights provided for in this Agreement shall
become immediately available:
9.2.1. If the Board of Directors approves of, or the Company incurs,
any debt or issues any guarantee which in the aggregate are in
excess of $50 million;
32
9.2.2. If the Company disposes of all of its intellectual property,
or if the Board of Directors approves of such disposal;
9.2.3. If the Board of Directors approves of, or the Company
completes an acquisition of another company or assets of
another company in a transaction valued in excess of $100
million;
9.2.4. If the Board of Directors approves of, or the Company
commences a voluntary liquidation proceeding;
9.2.5. If the Company materially amends its certificate of
incorporation or its bylaws or if the Board of Directors
approves such amendment; or
9.2.6. If the Company repurchases in the aggregate in excess of
twenty percent (20%) of its issued and outstanding shares of
common stock or the Board of Directors approves such
repurchase.
10. Miscellaneous
Successor and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as provided herein, no party may assign any of its
rights or delegate any of its duties under this Agreement without the express
consent of the other parties hereto. The provisions of this Agreement that are
for the benefit of the parties hereto other than AremisSoft shall also be for
the benefit of and enforceable by any subsequent Holder of any Registrable
Shares, subject to the terms of this Agreement. Notwithstanding anything else to
the contrary in this Agreement, the Holder may transfer the Registrable Shares
to a wholly owned subsidiary of the Purchaser, provided however, that the
subsidiary of the Holder also agrees to be jointly and severally obligated with
the Holder to perform all of Holder's obligations under this Agreement and the
Purchase Agreements.
Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts (including by
facsimile signatures), each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
Agreement.
Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
33
Entire Agreement. This Agreement and the Purchase Agreement is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by
AremisSoft with respect to the securities issued pursuant to the Purchase
Agreement. This Agreement supersedes all prior Agreements and understandings
between the parties with respect to such subject matter.
Notices. All notices or other communications required hereunder shall
be in writing and shall be sufficient in all respects and shall be deemed
delivered after 5 days if sent via registered or certified mail, postage
prepaid; the next day if sent by overnight courier service; or one business day
after transmission if sent by facsimile, to the following:
34
If to Company: AremisSoft Corporation
Xxxxxxxxxx Xxxxx
Xxxxxx Xxx
Xxxxxx, Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Attn: Dr. Lycourgos X. Xxxxxxxxx
with copies to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
If to Holder: Info-quest SA
AL. Xxxxxx 00
Xxxxxx 00000 Xxxxxx
Attn: Xxxxxxxxx Xxxxxx
Any party hereto may change its address for purposes hereof by notice to all
other parties hereto.
Amendments and Waivers. Any term of 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 with
the written consent of the parties. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon the Investor, its
successors or assigns, and each future holder of such securities and AremisSoft.
A waiver by any party hereto of a default in the performance of //// //// ////
35
this Agreement shall not operate as a waiver of any future or other default,
whether of a like or different kind.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AREMISSOFT CORPORATION
By:
Roys Poyiadjis
President
INFO-QUEST SA
By: ______________________________
Xxxxxxxxx Xxxxxx, CEO
