EXHIBIT 10.2
[LOGO] [LETTERHEAD]
September 8, 1997
Hemingfold Investments, Ltd.
c/o Bayard Trust Company Limited
2nd Floor, Queen's House
Don Road
St. Helier
Jersey JE1 4HP
Re: STOCK PURCHASE AGREEMENT (THE "AGREEMENT") AMONG GALACTICOMM
TECHNOLOGIES, INC., F/K/A I-VIEW SOFTWARE, INC. (THE "COMPANY"),
XXXXX XXXX ("XXXX"), XXXXXXX XXXXXXX ("XXXXXXX") AND HEMINGFOLD
INVESTMENTS, LTD ("HEMINGFOLD"), DATED NOVEMBER 21, 1996
Dear Sirs:
As you are aware, the Company is currently preparing a registration
statement to be filed with the United States Securities and Exchange Commission
(the "SEC") for an initial public offering ("IPO") of its securities. As part of
the IPO, the Company requests that the Agreement be amended so that:
(a) section 8.3 of the Agreement, regarding Xxxxxxxxxx's ratchet
right, be deleted in its entirety, effective immediately; and
(b) the following sections of the Agreement be deleted as of the date
(the "Effective Date") on which the Company's Registration Statement regarding
the initial public offering is declared effective by the SEC:
(i) Section 8.1, regarding Xxxxxxxxxx's preemptive rights; and
(ii) Section 8.2, regarding Xxxxxxxxxx's anti-dilution rights.
In consideration of such amendments, the Company shall issue to Hemingfold
300,000 shares (the "Shares") of the Company's common stock, par value $0.0001
per share (the "Common Stock"), within 10 days of your acceptance of the
amendments contained herein. Furthermore, the Company hereby represents and
warrants to Hemingfold that the Shares shall, upon issuance, be duly authorized,
validly issued and free from all encumbrances, other than any encumbrances
created by agreements entered into by Hemingfold. The Shares will be subject to
the registration rights contained in Article VI of the Agreement. However,
Xxxxxxxxxx shall pay the pro rata portion of the Registration Expenses (as such
term is defined in the Agreement) relating to the registration of the Shares.
Furthermore, as additional consideration for your acceptance of the
amendments contained herein and only for so long as Hemingfold beneficially owns
(as such term is defined in Rule 13d-3 of the Securities Exchange Act of 1934)
20% or more of the outstanding Common Stock, Xxxxx Xxxx and Xxxxxxx Xxxxxxx
hereby agree to vote all of their shares of Common Stock to elect: (a) effective
upon your acceptance hereof, one (1) person, nominated by Hemingfold, to the
Company's board of directors (the "Board"); and (b) after the Effective Date,
two (2) persons, nominated by Xxxxxxxxxx, to the Board. Xxxxxxxxxx acknowledges
and agrees that Xxxxx Xxxxxxxx, who is already a member of the Board, shall
count as Xxxxxxxxxx's initial nominee for election to the Board, upon your
acceptance hereof.
[LETTERHEAD] [LOGO]
Hemingfold Investments, Ltd.
September 8, 1997
Page 2
By agreeing to this amendment of the Agreement, Xxxxxxxxxx shall be deemed
to have represented and warranted to the Company as follows:
(a) Hemingfold is acquiring the Shares for its own account and for
investment and not with a view towards, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the Shares;
(b) Xxxxxxxxxx acknowledges that: (i) it has had the opportunity to
visit with Company and meet with its officers and other representatives to
discuss the Company's business, assets, liabilities, financial condition, cash
flow and operations; and (ii) all materials requested by Xxxxxxxxxx have been
provided to Hemingfold to Hemingfold's reasonable satisfaction;
(c) Hemingfold has made its own independent examination,
investigation, analysis and evaluation of the Company; and
(d) Hemingfold has undertaken such due diligence (including a review
of the assets, liabilities, books, records and contracts of the Company) as
Hemingfold deems adequate.
In accordance with your request and in further consideration of your
acceptance of the amendments contained herein, the Agreement is hereby amended
by adding the following sentence to Section 13.8 of the Agreement:
"However, Purchaser may assign its rights and obligations under this
Agreement to an Affiliate of Purchaser, without the consent of the other
parties hereto. Nevertheless, Purchaser shall promptly notify the other
parties hereto of any such assignment to an Affiliate of Purchaser"
All of the other terms and conditions of the Agreement shall remained
unchanged and in full force and effect. If you agree with this amendment to the
Agreement, please: (a) sign and date this letter in the space provided below;
and (b) return an original signed copy of the letter to us.
GALACTICOMM TECHNOLOGIES, INC.
By: /s/ XXXXX XXXX /s/ XXXXX XXXX
--------------------------- --------------------------------
Xxxxx Xxxx, Chairman & CEO Xxxxx Xxxx, individually
/s/ XXXXXXX XXXXXXX
----------------------------
Xxxxxxx Xxxxxxx, individually
Agreed to and accepted by:
HEMINGFOLD INVESTMENTS, LTD.
By: [ILLEGIBLE]
---------------------------
[HEMINGFOLD INVESTMENTS LIMITED]
[LETTERHEAD]
Date: September 8, 1997
Galacticomm Technologies, Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
U.S.A.
Attention: Mr. Xxxxx Xxxx, Chairman & CEO
RE: ASSIGNMENT OF XXXXXXXXXX'S INVESTMENTS AND OTHER RIGHTS
Dear Sirs:
On behalf of Hemingfold Investments, Ltd. ("Hemingfold"), I am writing to advise
Galacticomm Technologies, Inc. ("Galacticomm") that Xxxxxxxxxx intends to
transfer to a newly aquired subsidiary, Xxxxxxxxx Investments Ltd.
("Xxxxxxxxx"), its 2,255,866 shares of common stock of Galacticomm (the "Stock")
along with Xxxxxxxxxx's interests in the following contracts and other
instruments:
1. Stock Purchase Agreement, dated November 21, 1996 by and among I-View
Solftware, Inc. ("I-View") (the former name of Galacticomm), Xxxxx Xxxx
("Xxxx"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxxxxxxx, as amended by a
letter agreement (together, the "Stock Purchase Agreement");
2. Security Agreement, dated November 21, 1996, by and between I-View and
Hemingfold ("Security Agreement");
3. Intercreditor Agreement, dated November 21, 1996, by and among I-View,
Hemingfold, Union Atlantic Partners I Limited and Union Atlantic LC (the
"Intercreditor Agreement");
4. Escrow Agreement by and among Xxxxx, Xxxxxxx, Xxxxxxx, Brongsia, Xxxxxxx,
Xxxxxxxx & Xxxxxxxx, P.A., Xxxxxxxxxx, Xxxx, Xxxxxxx and Xxxxxxxx Xxxxxx
("Xxxxxx");
5. Letter Agreement by and between Galacticomm and Hemingfold providing for
the extension of registration rights under the Stock Purchase Agreement to
shares of Galacticomm held by Xxxx, Xxxxxxx and Xxxxxx that are subject to
warrants issued by those individuals to Hemingfold, dated March 15, 1997,
(the "Warrant Letter Agreement") following the exercise of the Warrants
(as defined below);
[LETTERHEAD]
6. Secured Convertible Promissory note made by I-View, dated November 21,
1996, to the order of Hemingfold in the principal amount of $1,250,000, as
amended by letter agreement by and between Galacticomm and Xxxxxxxxxx;
7. Warrant issued by Xxxx granting Hemingfold the right to purchase 1,200,000
shares of Galacticomm, dated March 15, 1997, (the "Xxxx Warrant");
8. Warrant issued by Xxxxxxx granting Hemingfold the right to purchase
1,200,000 shares of Galacticomm, dated March 15, 1997, (the "Xxxxxxx
Warrant");
9. Warrant issued by Xxxxxx granting Hemingfold the right to purchase 100,000
shares of Galacticomm, dated March 15, 1997, (the "Xxxxxx Warrant", and
together with the Xxxx Warrant and the Xxxxxxx Warrant, the "Warrants");
and
10. Subscription Agreement, dated May, 1997, by and between I-View and
Hemingfold for the purchase of 271,739 shares of I-View.
Following the assignment of the agreements, instruments and interests
therein described in subparagraphs nos. 1 through to 10 above and the
Galacticomm Stock (collectively, the "Galacticomm Interests") to
Xxxxxxxxx, Hemingfold intends to sell its 100% holdings of the common
stock of Xxxxxxxxx to an affiliate, the Xxxxx Xxxxx Xxxxxxxxxx Charitable
Trust.
On behalf of Xxxxxxxxxx, I request that Galacticomm acknowledge and
contract to the two proposed transfers of the Galacticomm Interests by
signing in the space indicated below and taking such other steps to affect
these transfers, such as reissuing the Stock in the name of Xxxxxxxxx,
seeking the agreement of Xxxx, Xxxxxxx and Xxxxxx to the matters set forth
in this letter and issuing and filing a new UCC-1 form in favor of
Xxxxxxxxx. Furthermore, Galacticomm's execution of this letter agreement
constitutes a representation by Galacticomm that, to its knowledge, there
are no contractual or other restrictions that prevent Hemingfold from
Transferring its Galacticomm Interests to Xxxxxxxxx as proposed, other
that the consent of Union Atlantic Partners I Limited and Union Atlantic
LC under the terms of the Intercreditor Agreement.
Hemingfold represents to Galacticomm that neither it nor Xxxxxxxxx is a
U.S. person. Hemingfold acknowledges that its assignment of its rights and
obligations under the above-listed agreements and instruments does not
relieve Hemingfold of its responsibilities for any misrepresentation
stated therein.
By signing in the space below, please acknowledge on behalf of Galacticomm
that it is Galacticomm's intent:
[LETTERHEAD]
1. That the third paragraph of the letter agreement amending the Stock
Purchase Agreement be construed so that the reference to Hemingfold in the
second line of said paragraph refers to all affiliates of Hemingfold,
including without limitation, Kemworthy; and
2. That the Warrant Letter Agreement be construed to be an amendment of the
Stock Purchase Agreement implementing the intent of the parties as stated
in the Warrant Letter Agreement to provide that the registration rights
set forth in the Stock Purchase Agreement shall apply to the shares to be
acquired by Hemingfold, or its affiliated assignee, pursuant to the
Warrants.
Thank you for your assistance in this matter.
Yours faithfully,
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Director
For and on behalf of
Hemingfold Investments Limited
Agreed this 8th day of September, 1997
Galacticomm Technologies, Inc.
/s/ XXXXX XXXX
----------------------
By: Xxxxx Xxxx
Its: Chief Executive Officer
Agreed this day of September, 1997
/s/ XXXXX XXXX /s/ XXXXXXX XXXXXXX /s/ XXXXXXXX XXXXXX
----------------- ---------------------- ------------------------
Xxxxx Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Union Atlantic Partners I Limited Union Atlantic LC
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXX
--------------------------------- ------------------------------------
By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Its: Authorized Agent Its: President
[XXXXXXXXX INVESTMENTS LIMITED]
[LETTERHEAD]
Galacticomm Technologies, Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
U.S.A. Via Facsimile and Post
ATTENTION: Mr. Xxxxx Xxxx, Chairman & CEO
Dear Sirs,
RE: DISCLOSURE STATEMENT
Pursuant to your request to inform you in connection with the proposed Initial
Public Offering of Galacticomm Technologies, Inc.("Company") we can inform you
as follows.
Xxxxxxxxx International, Limited ("Xxxxxxxxx") is the registered holder of
2,255,866 shares (the "Shares") of common stock of the Company, each with a par
value of $0.0001.
Xxxxxxxxx is the assignee to a stock purchase agreement by and between the
Company and Hemingfold Investments, Limited ("Hemingfold") and amendment
thereto, pursuant to which the Company shall issue to Xxxxxxxxx 300,000
additional shares of common stock in lieu of certain so-called "ratchet rights".
Xxxxxxxxx is also the assignee to three warrants, issued by three shareholders
of the Company to Hemingfold, pursuant to which Xxxxxxxxx is entitled to
purchase 2,500,000 additional shares of common stock.
Xxxxxxxxx is a company wholly owned by the Xxxxx Xxxxx Xxxxxxxxxx Charitiable
Trust. The Trustees of The Xxxxx Xxxxx Xxxxxxxxxx Charitiable Trust are Bayard
Trust Company Limited ("Bayard") and Xxxx Xxxxxxx Management (Guerrsey), Limited
("Mees Pierson"), Xxxxxx has designated Xxxxxx X. Xxxxxxx, director of Bayard,
and Xxxx X. Xxxxxx, director, to act on behalf of Xxxxxx. Xxxx Xxxxxxx has
designated Xxxx Xxxxxxxxx, director, and Xxxxx Xxxxx, director, to act on behalf
of Xxxx Xxxxxxx.
Xxxxxxx and its respective representatives jointly with Xxxx Xxxxxxx and its
respective representatives share the ultimate power to vote and dispose of these
shares.
Yours faithfully
For and on behalf of
XXXXXXXXX INVESTMENTS LIMITED
/s/ XXXXXX X. XXXXXXX
------------------------------
M.D. Crespel
Director
[XXXXXXXXX INVESTMENTS LIMITED]
[LETTERHEAD]
5th September 1997
VIA FACSIMILE AND POST
Galacticomm Technologies, Inc.
0000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
XXX
Attention: Mr. Xxxxx Xxxx, Chairman & CEO
Re: "BAD BOY" REPRESENTATIONS
Dear Sirs
Your counsel has requested that we advise you whether the "Bad Boy"
representations set forth in the enclosed are true and accurate with respect to
Xxxxxxxxx investments Limited and its "beneficial owners", as that term is used
in the U.S. securities laws. Please accept this letter as confirmation that the
representations are accurate as to said parties.
Yours faithfully
For and on behalf of
XXXXXXXXX INVESTMENTS LIMITED
/s/ XXXXXX X. XXXXXXX
-----------------------------
M.D. Crespel
Director
Enclosure
cc: Xxxxxx X. Xxxxxxx, esquire (w/enclosure)
