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EXHIBIT 4.12
FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") dated as of March 26,1999, by and
between International Microcomputer Software, Inc. a California corporation
("IMSI"), and StarBase Corporation, a Delaware corporation ("STARBASE").
WHEREAS, IMSI currently owes STARBASE an amount equal to $121,231 (the
"Fees") pursuant to a License Agreement and Invoices, dated October 22, 1998,
between IMSI and STARBASE (the "License Agreement"), and
WHEREAS, IMSI and STARBASE now desire to set forth certain terms and
provisions with respect to the payment by IMSI of the Fees:
NOW, THEREFORE in consideration of the foregoing and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
1. Payment of the Fees. Notwithstanding anything to the contrary in the
License Agreement with respect to the form and timing of payment of the Fees,
the obligation to pay the Fees shall be satisfied in full upon compliance by
IMSI with the terms and provisions of this Agreement.
2. Issuance of the Shares. As soon as reasonably practicable after
execution of this Agreement, IMSI will issue to STARBASE ten thousand seven
hundred fifty (10,750) shares of IMSI's Common Stock (the "Common Stock"), no
par value (collectively, the "Shares").
3. Sale.
a. Sale. The Shares may be sold by one or more of the following means of
distribution (subject to the provisions of this Agreement): (a) a block trade in
which the broker-dealer so engaged will attempt to sell Shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account; (c) an over-the-counter distribution in
accordance with the rules of Nasdaq; (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (e) in privately
negotiated transactions.
4. Representations, Warranties and Covenants of IMSI. IMSI represents
and warrants to and covenants with STARBASE as follows:
a. Registration. IMSI shall use its reasonable best efforts to
cause the shares of IMSI Common Stock that are issuable pursuant to this
Agreement to be registered on a registration statement (or to be issued pursuant
to a then-effective registration statement) on Form S-3 (or successor form)
promulgated by the Securities
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and Exchange Commission (the "Commission") under the 1933 Act, as soon as
reasonably practicable after the execution of this Agreement. IMSI shall file
the Form S-3 no later than April 15, 1999. In addition, STARBASE acquires piggy
back registration rights. Nothing herein shall require IMSI to separately
register the Shares.
b. At the date the Registration Statement becomes effective (the
"Effective Date") under the Securities Act of 1933, as amended (the "Securities
Act") or the time of effectiveness of any post-effective amendment to the
Registration Statement, at the time the Prospectus is first filed with the
Commission pursuant to Rule 424 (b) of the Regulations (if a Rule 424 (b) filing
is required) promulgated under the Securities Act (the "Regulations"), at the
time any supplement to or amendment of the Prospectus is filed with the
Commission and at the time any document filed under the License Act is filed,
the Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and the Regulations or the License
Act and the respective rules and regulations thereunder and do not or will not
contain an untrue statement of a material fact and do not or will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading.
c. The Shares, when issued and delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
non-assessable, will not have been issued in violation of any preemptive rights
and will be free and clear of any pledge, mortgage, security interest, lien or
other encumbrance of any nature whatsoever, but will bear restrictive legend
regarding the unregistered nature of the shares until such shares are
effectively registered.
d. If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event shall occur as a
result of which the Prospectus as then amended or supplemented, in the judgment
of IMSI or STARBASE, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Regulations, or to file under the License Act so as to
comply therewith any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
(i) IMSI will notify STARBASE promptly and prepare and file with the Commission
an appropriate amendment or supplement (in form and substance satisfactory to
STARBASE) which will correct such statement or omission or which will effect
such compliance and will use its best efforts to have any amendment to the
Registration Statement docked declared effective by the Commission as soon as
possible and (ii) STARBASE shall suspend trading in the Shares until (A) such
amendment or supplement to the Prospectus has been
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filed or (B) any amendment to the Registration Statement has been declared
effective by the Commission.
e. IMSI will pay all fees and expenses with respect to the
preparation and filing of the Registration Statement and the registration of the
Shares. If however, STARBASE requests that the Shares be registered
independently from another IMSI registration ("Accelerated Registration), then
STARBASE shall pay all fees and expenses with respect to the preparation and
filing of the Registration Statement and the registration of the Shares that are
a result of such Accelerated Registration.
f. So long as the Form S-3 is effective within 180 days of
filing, STARBASE releases and forever discharges payment of the Fees pursuant to
the terms and conditions of the License Agreement.
5. Indemnification.
a. IMSI agrees to indemnify and hold harmless STARBASE, against any and all
losses, liabilities, claims, damages and expenses incurred (including but not
limited to attorneys' fees), to which it may become subject under the Securities
Act, the License Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise solely out of any
untrue statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or the Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that IMSI shall not be liable to STARBASE for any such
losses, liabilities, claims, damages or expenses which arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission contained or made in the Registration Statement or the Prospectus or
any amendment thereof or Supplement thereto in reliance upon and in conformity
with information furnished to IMSI by STARBASE.
b. Promptly after receipt by any indemnified party under
subsection a. above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the party against whom
indemnification is to be sought in writing of the commencement thereof. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such
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action, (ii) the indemnifying party shall not have employed counsel to have
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying party.
Anything in this subsection to the contrary notwithstanding, the indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent;provided, however, that such consent was not
unreasonably withheld.
6. Entire Agreement. This Agreement and the License Agreement (to the
extent not inconsistent herewith) constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
written agreements and negotiations and oral understandings, if any, with
respect thereto. This Agreement may not be amended or supplemented except by an
instrument in writing signed by each of the parties hereto.
7. Notices. All notices, requests and other communications hereunder
shall be in writing and delivered in person or by registered or certified mail
(postage prepaid, return receipt requested), overnight courier or facsimile,
addressed as follows:
if to STARBASE, to:
Director of Finance
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to IMSI, to:
International Microcomputer Software, Inc.
00 Xxxxxxx Xxx
Xxxxxx, XX 00000
Attn: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The address of a party, for the purposes of this Section 7, may be changed by
giving written notice to the other party of such change in the manner provided
herein for giving notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days mailing, if sent
by registered or certified mail; the next business clay after timely delivery to
the courier, if sent by overnight courier; and when receipt is
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acknowledged, if sent by facsimile transmission (except that a notice of change
of address shall not be deemed to have been given until actually received by the
addressee).
8. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of California, without regard to the conflicts of law
principles thereof.
9. Investment Representations. STARBASE represents and warrants that it
is an "accredited investor" as defined by Regulation D; that it is acquiring the
Shares for its own account, for the purpose of investment and not with a view
to, or resale in connection with, any distribution thereof; that STARBASE has
had access to all information regarding IMSI and its present business, assets,
liabilities and financial condition; that STARBASE reasonably considers
important in making the decision to acquire the Shares under this Agreement; and
that STARBASE understands that the Shares are restricted securities and may not
be sold except pursuant to the Form S-3, some other registration statement, or
pursuant to an applicable exemption from federal and state registration
requirements.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first set forth above.
Starbase INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: _________________________ By: ______________________________
Name: _______________________ Name: Xxxxxxxx X. Xxxxxxx
Title: Title: Chief Operating Officer
