EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of December 27,
2005, by and among CompuPrint, Inc., a North Carolina corporation ("CPPT" or the
"Seller"), the parent holding company of Terra Insight Corporation, a Delaware
corporation ("TIC"), and Esterna Limited ("Buyer"). Each of the Seller and Buyer
may be referred to individually herein as a "Party" and, collectively, as the
"Parties".
WHEREAS:
A. The Parties are executing and delivering this Agreement in reliance
upon an exemption from securities registration afforded by the rules and
regulations as promulgated by the United States Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the "1933
Act");
B. Buyer desires to purchase, and the Seller desires to issue and sell,
upon the terms and conditions set forth in this Agreement, securities of the
Seller (the "Securities") for the purchase price of USD $500,000, consisting of
500,000 shares of the Seller's common stock, par value $0.0001 per share (the
"Common Stock");
C. Information about the Seller is set forth in the Seller's filings with
the SEC (the "SEC Filings"). The information in the SEC filings relates to the
business and operations of TIC, which has recently been acquired by the Seller.
NOW THEREFORE, the Seller and Buyer hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES.
a. Purchase of Securities. On the Closing Date (as defined below),
the Seller shall issue and sell to Buyer, and Buyer agrees to purchase from the
Seller, the Securities.
b. Form of Payment. Upon execution of this Agreement, (i) Buyer
shall pay the purchase price of USD $500,000 (the "Purchase Price") for the
Securities to be issued and sold to Buyer at the Closing by cash or wire
transfer of immediately available funds. All of such funds shall be paid by wire
transfer to:
Account Name: Law Offices of Xxx Xxxxxxx, Escrow Account
Account No.: 00000000
ABA No.: 000-000-000
Bank: Citibank N.A.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
c. Closing Date. The date and time of the sale of the Securities
pursuant to this Agreement (the "Closing Date") shall be the date of acceptance
by the Seller of Buyer as a purchaser of its securities hereunder, and the
receipt and clearance of the Purchase Price (the "Closing"), provided that
payment of the Purchase Price for the Securities must leave Buyer's account on
or before December 31, 2005 for delivery to the Seller, and such Purchase Price
must be received by the Seller on or before January 3, 2006. If the payment is
not submitted by December 31, 2005, and no Closing has occurred by January 3,
2006, unless extended in a writing signed by the Seller, this Agreement shall be
null and void and deemed without effect.
2. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to the Seller that:
a. Investment Purpose. As of the date hereof, Buyer is purchasing
the Securities for its own account and not with a present view towards the
public sale or distribution thereof, except pursuant to sales registered or
exempted from registration under the 1933 Act; provided, however, that by making
the representations herein, Buyer does not agree to hold any of the Securities
for any minimum or other specific term and reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
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b. Accredited Investor Status. Buyer is a sophisticated investor (as
described in Rule 506(b)(2)(ii) of Regulation D) and an accredited investor (as
defined in Rule 501 of Regulation D), and Buyer has such experience in business
and financial matters that it has the capacity to protect its own interests in
connection with this transaction and is capable of evaluating the merits and
risks of an investment in the Securities pursuant to this Agreement. Buyer has
been represented by counsel and advisors of its choice. Buyer acknowledges that
an investment in the Securities pursuant to this Agreement is speculative and
involves a high degree of risk.
c. Reliance on Exemptions. Buyer understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Seller is relying upon the truth and accuracy of, and Buyer's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of Buyer to acquire the
Securities.
d. Information. Buyer has conducted its own independent
investigation of the Seller, and has had an opportunity to review the SEC
filings and all documents, records, books and other information pertaining to
Buyer's investment in the Seller that has been requested by Buyer. Buyer
represents that Buyer has carefully reviewed the information provided.
e. Governmental Review. Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities. There
is no representation that any registration statement will be declared effective.
f. Transfer or Resale. Buyer understands that: (i) except as
provided for herein, the sale or re-sale of the Securities has not been and is
not being registered under the 1933 Act or any applicable state securities laws,
and the Securities may not be transferred unless (a) the Securities are sold
pursuant to an effective registration statement under the 1933 Act, (b) Buyer
shall have delivered to the Seller an opinion of counsel that shall be in form,
substance and scope customary for opinions of counsel in comparable transactions
to the effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration to the reasonable
satisfaction of the Seller, (c) the Securities are sold or transferred to an
"affiliate" (as defined in Rule 144 promulgated under the 1933 Act (or a
successor rule) ("Rule 144")) of Buyer who agrees to sell or otherwise transfer
the Securities only in accordance with this Section 2(f) and who is an
accredited investor, or (d) the Securities are sold pursuant to Rule 144, and
Buyer shall have delivered to the Seller an opinion of counsel that shall be in
form, substance and scope customary for opinions of counsel in corporate
transactions to the reasonable satisfaction of the Seller; (ii) any sale of such
Securities made in reliance on Rule 144 may be made only in accordance with the
terms of said Rule and further, if said Rule is not applicable, any re-sale of
such Securities under circumstances in which the seller (or the person through
whom the sale is made) may be deemed to be an underwriter (as that term is
defined in the 0000 Xxx) may require compliance with some other exemption under
the 1933 Act or the rules and regulations of the SEC thereunder; and (iii)
neither the Seller nor any other person is under any obligation to file to
register such Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder (in each case,
other than pursuant to the provisions herein). Notwithstanding the foregoing or
anything else contained herein to the contrary, the Securities may be pledged as
collateral in connection with a bona fide margin account or other lending
arrangement.
g. Legends. Buyer understands that until such time as the Securities
have been registered under the 1933 Act or otherwise may be sold pursuant to
Rule 144 without any restriction as to the number of securities as of a
particular date that can then be immediately sold, the Securities may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such Securities):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities may not be sold, transferred or assigned in the absence
of an effective registration statement for the securities under said
Act, or an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions, that
registration is not required under said Act or unless sold pursuant
to Rule 144 under said Act."
h. Authorization; Enforcement. This Agreement has been duly
authorized and validly executed and delivered by Buyer and is a valid and
binding agreement of Buyer enforceable against it in accordance with its terms
(i) subject to applicable bankruptcy, insolvency, or similar laws relating to,
or affecting generally the
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enforcement of, creditors' rights and remedies or by other equitable principles
of general application, (ii) subject to a court's discretionary authority with
respect to the granting of specific performance, injunctive relief or other
equitable remedies and (iii) except to the extent the indemnification and
contribution provisions, if any, contained in any this Agreement may be limited
by applicable federal or state securities laws or unenforceable as against
public policy..
i. Residency. Buyer is a resident of the jurisdiction set forth
immediately below Buyer's name on the signature page hereto.
j. Not an Affiliate. Buyer is not an officer, director or
"affiliate" (as that term is defined in Rule 405 under the 0000 Xxx) of the
Seller.
k. Absence of Conflicts. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby and
thereby, and compliance with the requirements hereof and thereof by Buyer, will
not violate any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on Buyer or (a) violate any provision of any indenture,
instrument or agreement to which Buyer is a party or is subject, or by which
Buyer or any of its assets is bound; (b) conflict with or constitute a material
default thereunder; (c) result in the creation or imposition of any lien
pursuant to the terms of any such indenture, instrument or agreement, or
constitute a breach of any fiduciary duty owed by Buyer to any third party; or
(d) require the approval of any non-governmental agency third-party (which has
not been obtained) pursuant to any material contract, agreement, instrument,
relationship or legal obligation to which Buyer is subject or to which any of
its assets, operations or management may be subject.
l. Manner of Sale. At no time was Buyer presented with or solicited
by or through any leaflet, public promotional meeting, television advertisement
or any other form of general solicitation or advertising.
m. Broker/Finder. Buyer represents that no broker or finder is
entitled to any commission or fee.
n. Corporate Matters. Buyer has been informed of certain proposals
of the Seller, and Buyer consents to, and approves of, each of the following
proposed actions of the Seller, which may be effected in one or more
transactions: a proposed reincorporation of CPPT under the laws of the State of
Delaware; a proposed parent-subsidiary merger of CPPT and TIC under the laws of
the State of Delaware; a proposed name change of the Seller to "Terra Insight
Corporation" or such other corporate name as is selected by its Board of
Directors; an increase in the authorized common stock of the Seller to
250,000,000 shares; and the reservation and the issuance of up to 5,000,000
shares, or such greater amount as would represent 5% of CPPT's equity, pursuant
to a stock incentive plan (the "Stock Incentive Plan"). Buyer waives any
entitlement to appraisal or dissenter rights in connection with the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to Buyer that:
a. Organization and Qualification. Each of TIC and CPPT is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, organized or formed, with full power
and authority (corporate and other) to own, lease, use and operate its
properties and to carry on its business as and where now owned, leased, used,
operated and conducted. Each of TIC and CPPT is duly qualified or intends to
apply for qualification as a foreign corporation to do business and is in good
standing in every jurisdiction in which its ownership or use of property or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would not have a
Material Adverse Effect. "Material Adverse Effect" means any material adverse
effect on the business, operations, assets, financial condition or prospects of
the Seller, if any, taken as a whole, or on the transactions contemplated hereby
or by the agreements or instruments to be entered into in connection herewith.
b. Authorization; Enforcement. The Seller has all requisite
corporate power and authority to enter into and perform this Agreement and to
consummate the transactions contemplated hereby and thereby and to issue the
Securities, in accordance with the terms hereof and thereof. The execution and
delivery of this Agreement by the Seller and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by the
Board of Directors of the Seller. This Agreement has been duly executed and
delivered by the Seller by its authorized representative, and such authorized
representative is the true and official representative
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with authority to sign this Agreement and the other documents executed in
connection herewith and bind the Seller accordingly. This Agreement constitutes
a legal, valid and binding obligation of the Seller enforceable against the
Seller in accordance with its terms.
c. Capitalization. As of December 19, 2005, the authorized capital
stock of the Seller consists of 100,000,000 shares of Common Stock, of which
42,508,338 shares are issued and outstanding, and 1,000,000 shares of preferred
stock, of which no shares are issued and outstanding. Except as specifically
described in this Section 3(c), as of the date of this Agreement, no shares of
Common Stock or preferred stock are currently reserved for issuance. All of such
outstanding and/or reserved shares of capital stock are, or upon issuance will
be, duly authorized, validly issued, fully paid and nonassessable. No shares of
capital stock of the Seller are subject to preemptive rights or any other
similar rights of the shareholders of the Seller or any liens or encumbrances.
The Seller has outstanding 6% convertible debentures (convertible at $1.00 per
share) in the principal amount of $3 million, due December 31, 2007, with the
right by the holder to purchase an additional $2 million in convertible
debentures on identical terms. As of December 19, 2005, the Seller has stock
options outstanding for the purchase of 3,100,000 shares at $0.32 per share,
250,000 shares at $0.80 per share, 413,333 shares at $0.80 per share, 500,000
shares at $1.00 per share, and 500,000 shares at $0.80 per share. As of December
19, 2005, the Seller has common stock purchase warrants as follows: 150,000
warrants, exercisable until June 12, 2006 at $1.25 per share and thereafter
exercisable until December 12, 2006 at $1.50 per share; and 2,000,000 warrants,
exercisable until March 12, 2005 at $1.15 per share and thereafter exercisable
until June 12, 2006 at $1.50 per share, provided that the initial exercise of
these warrants must be for the purchase of at least 1,000,000 shares of common
stock. If the Seller retains its investor relations consultant to continue as
its investor relations consultant, the Seller will issue an additional 325,000
restricted shares to the consultant at that time. The Seller is negotiating for
the employment of a senior financial officer who is a certified public
accountant, or possessed of other qualifications, and if hired, such financial
officer may receive stock options outside the Stock Incentive Plan for the
purchase of up to 375,000 shares, subject to certain vesting provisions. The
Seller has a Stock Incentive Plan, pursuant to which the Seller will reserve
5,000,000 shares, or such greater amount as would represent 5% of CPPT's equity,
for future issuance to eligible employees, officers, directors, and consultants.
In each case, except as specifically described herein, in other documents made
known to the Buyer, or in the SEC Filings, there do not presently, nor shall
there as of the Closing Date, exist any outstanding options, warrants, rights
(including, without limitation, rights of first refusal, anti-dilution,
conversion, preemptive or similar rights) or agreements for the purchase or
acquisition from the Seller of any shares of its capital stock or any securities
convertible into or ultimately exchangeable or exercisable for any shares of its
capital stock.
d. Issuance of Securities. The Securities to be issued and sold
hereunder will be (i) duly and validly issued, fully paid and nonassessable,
with no personal liability attaching to the ownership thereof, (ii) free of
restrictions on transfer other than restrictions on transfer under this
Agreement and securities laws, (c) free of any liens, mortgages, claims,
charges, security interests, restrictions or encumbrances of any kind ("Liens")
other than as may be created by Buyer, and (d) not subject to any rights of
first refusal, preemptive or similar rights existing prior to the issuance
thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement by it and the consummation by it of the transactions contemplated
hereby and thereby will not (i) conflict with or result in a violation of any
provision of its Certificate of Incorporation or By-laws in effect, (ii) violate
or conflict with, or result in a breach of any provision of, or constitute a
default (or an event which with notice or lapse of time or both could become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture, patent, patent
license or instrument to which it is a party, or (iii) result in a violation of
any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and regulations of any self-regulatory
organizations to which it or its securities are subject) applicable to it or by
which any of its property or asset is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect). It is not in violation of its Certificate of Incorporation,
By-laws or other organizational documents and it is not in default (and no event
has occurred which with notice or lapse of time or both could put it in default)
under, and it has not taken any action or failed to take any action that would
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which it is a party
or by which any of its property or assets is bound or affected, except for
possible defaults as would not, individually or in the aggregate, have a
Material Adverse Effect. Its businesses are not being conducted, and shall not
be conducted so long as Buyer owns any of the Securities, in violation of any
law, ordinance or regulation of any governmental entity. Except as specifically
contemplated by this Agreement and as required under the 1933 Act and any
applicable state securities laws, it is not required to obtain any consent,
authorization or order of, or make any
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filing or registration with, any court, governmental agency, regulatory agency,
self regulatory organization or stock market in order for it to execute, deliver
or perform any of its obligations under this Agreement in accordance with the
terms hereof or thereof; all of such consents, authorizations, orders, filings
or registrations have been made or obtained or will be made or obtained within
the required statutory or regulatory time periods, if any.
f. Absence of Litigation. There is no action, suit, claim,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to its
knowledge, threatened against or affecting it, or its officers or directors in
their capacity as such that would materially affect it.
g. Intellectual Property. The Seller has the rights (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as now being conducted. To its knowledge, it is not infringing upon or
in conflict with any right of any other person with respect to any Intangibles.
No adverse claims have been asserted by any person to the ownership or use of
any Intangibles that would materially adversely affect its use of any
Intangibles.
h. No Materially Adverse Contracts, Etc. The Seller is not subject
to any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation which in its judgment has or is expected in the future
to have a material adverse effect on its operations or proposed operations. It
is not a party to any contract or agreement which in the judgment of its
officers has or is expected to have a material adverse effect on its operations.
i. Information. The Seller represents that, as of the date of this
Agreement, the SEC Filings are materially correct and do not contain an untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein not misleading. .
4. COVENANTS.
a. Use of Proceeds. SELLER shall use the proceeds from the sale of
the Securities for its working capital.
b. Registration Statement. Buyer shall be entitled to the benefit of
certain registration rights with respect to the shares of common stock issuable
pursuant to this Agreement. If the Company, at any time from the date of this
Agreement until such time that the shares underlying the Securities paid for or
irrevocably committed for are eligible for resale pursuant to Rule 144, proposes
to file a new registration statement to register any of its common stock under
the Securities Act for sale to the public (including, pursuant to any existing
commitments to register the Company's common stock), whether for its own account
or for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 and any successor forms thereto), each
such time the Company will give written notice to such effect to Buyer at least
10 days prior to such filing. Upon the written request of Buyer, received by the
Company within 10 days after the giving of any such notice by the Company, to
register any of the shares of common stock eligible to be included in such a
registration statement pursuant to the rules, interpretations and/or guidance of
the SEC, the Company will cause, at Company's expenses, such shares of common
stock to be covered by the registration statement proposed to be filed by the
Company, all to the extent requisite to permit the sale or other disposition by
the holder of such shares so registered.
Notwithstanding the foregoing, in the event that the Seller's securities
are publicly traded but the Securities are not eligible for resale pursuant to
Rule 144 after one year from the Closing Date, and the Securities have not been
registered for resale within one year from the Closing Date pursuant to the
piggyback registration rights described above, the Seller agrees to file a
registration statement covering resale of the Securities, to the extent eligible
to be included in a resale registration statement for Buyer as a selling
stockholder pursuant to the rules, interpretations and/or guidance of the SEC,
upon written notice from Buyer received by the Seller after one year from the
Closing Date. The Seller shall prepare for submission such registration
statement no later than 60 days from the date of receipt of such written notice,
provided that if such 60 day period should fall within 45 days of the filing due
date of the Seller's 10-QSBs or 90 days of in the case of the Seller's 10-KSBs,
then such period shall be extended by 30 days.
c. Cooperation of Buyer. Buyer shall provide relevant and accurate
information to the Company and shall cooperate with the Company in the
preparation and submission of the registration statement.
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5. CONDITIONS TO THE SELLER'S OBLIGATION. The obligation of the Seller
hereunder to issue and sell the Securities to Buyer at the Closing is subject to
the satisfaction, at or before the Closing Date of each of the following
conditions thereto, provided that these conditions are for the Seller's sole
benefit and may be waived by the Seller at any time in its sole discretion:
a. Buyer shall have executed this Agreement, and delivered the same
to the Seller.
b. Buyer shall have delivered and the Purchase Price shall have been
received in accordance with Section 1 and paid at a Closing.
c. The representations and warranties of Buyer shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date), and Buyer shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by Buyer
at or prior to the Closing Date.
d. No undisclosed litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
6. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. The obligation of Buyer
to purchase the Securities at the Closing is subject to the satisfaction, at or
before the Closing Date of each of the following conditions, provided that these
conditions are for Buyer's sole benefit and may be waived by Buyer at any time
in their sole discretion:
a. The Seller shall have executed this Agreement.
b. The representations and warranties of the Seller shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Seller shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Seller at or prior to the Closing Date.
c. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction
or any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the transactions
contemplated by this Agreement.
d. No material undisclosed event shall have occurred which could
reasonably be expected to have a material adverse effect on the Seller.
7. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS AND THE NEW YORK
STATE COURTS LOCATED IN NEW YORK COUNTY IN THE STATE OF NEW YORK WITH RESPECT TO
ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY EXPRESS MAIL SHALL BE DEEMED IN EVERY RESPECT
EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR PROCEEDING.
NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL NON-APPEALABLE
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JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
The Parties hereby waive a trial by jury in any action, proceeding or
counterclaim brought by either of the Parties hereto against the other in
respect of any matter arising out or in connection with this Agreement.
b. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement.
c. Headings. The headings of this Agreement are for convenience of
reference only and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. In the event that any provision of this Agreement
is invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
e. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the Parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Seller nor Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. Except as
provided herein, no provision of this Agreement may be waived or amended other
than by an instrument in writing signed by the party to be charged with
enforcement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by express mail or delivered personally or
by courier (including a recognized overnight delivery service) and shall be
effective three days after being sent by express mail, or upon receipt, if
delivered personally or by courier (including a recognized overnight delivery
service), in each case addressed to a party. The addresses for such
communications shall be:
If to the Seller:
Attn.: Xxxxx Xxxxxxxxx, Chief Executive Officer
Terra Insight Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
Attn.: Xxx Xxxxxxx, Esq.
Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
If to Buyer:
At the address and facsimile number listed on the
signature page hereof.
Each party shall provide notice to the other party of any change in address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties and their successors and assigns. Neither
the Seller nor Buyer shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other. Notwithstanding the
foregoing, subject to Section 2(f), any Buyer may assign its rights hereunder to
any person that purchases Securities in a private transaction from Buyer or to
any of its affiliates.
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h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the Parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
i. Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
j. No Strict Construction. The language used in this Agreement will
be deemed to be the language chosen by the Parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
k. Survival. The representations, warranties and covenants made by
each of the Seller and Buyer in this Agreement, the annexes, schedules and
exhibits hereto and in each instrument, agreement and certificate entered into
and delivered by them pursuant to this Agreement, shall survive the Closing and
the consummation of the transactions contemplated hereby. In the event of a
breach or violation of any of such representations, warranties or covenants, the
party to whom such representations, warranties or covenants have been made shall
have all rights and remedies for such breach or violation available to it under
the provisions of this Agreement, Irrespective of any investigation made by or
on behalf of such party on or prior to the Closing Date.
l. Indemnification.
(a) The Seller hereby agrees to indemnify and hold harmless Buyer
and its officers, directors, partners and members (collectively, the "Buyer
Indemnitees"), from and against any and all damages, and agrees to reimburse
Buyer Indemnitees for all reasonable out-of-pocket fees and expenses (including
the reasonable fees and expenses of legal counsel), in each case promptly as
incurred by the Buyer Indemnitees and to the extent arising out of or in
connection with:
(i) any material misrepresentation, omission of fact or breach
of any of its representations or warranties contained in this Agreement; or
(ii) any material failure by it to perform in any material
respect any of its covenants, agreements, undertakings or obligations set forth
in this Agreement.
(b) Buyer hereby agrees to indemnify and hold harmless the Seller
and its affiliates, and their officers, directors, partners and members
(collectively, the "Company Indemnitees"), from and against any and all damages,
and agrees to reimburse the Company Indemnitees for all reasonable out-of-pocket
fees and expenses (including the reasonable fees and expenses of legal counsel),
in each case promptly as incurred by the Company Indemnitees and to the extent
arising out of or in connection with:
(i) any material misrepresentation, omission of fact or breach
of any of any Buyer's representations or warranties contained in this Agreement;
or
(ii) any material failure by Buyer to perform in any material
respect any of its covenants, agreements, undertakings or obligations set forth
in this Agreement.
(c) Promptly after receipt by either party hereto seeking
indemnification pursuant to this Section 8(m) (an "Indemnified Party") of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a "Claim"), the
Indemnified Party promptly shall notify the party from whom indemnification
pursuant to this Section 8(l) is being sought (the "Indemnifying Party") of the
commencement thereof; but the omission to so notify the Indemnifying Party shall
not relieve it from any liability that it otherwise may have to the Indemnified
Party, except to the extent that the Indemnifying Party is actually prejudiced
by such omission or delay. In connection with any Claim as to which both the
Indemnifying Party and the Indemnified Party are parties, the Indemnifying Party
shall be entitled to assume the defense thereof. Notwithstanding the assumption
of the defense of any Claim by the Indemnifying Party, the Indemnified Party
shall have the right to employ separate legal counsel and to participate in the
defense of such Claim, and the Indemnifying Party shall bear the reasonable
fees, out-of-pocket costs and expenses of such separate legal counsel to the
Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed
to pay such fees, out-of-pocket costs
8
and expenses, (y) the Indemnified Party reasonably shall have concluded that
representation of the Indemnified Party and the Indemnifying Party by the same
legal counsel would not be appropriate due to actual or, as reasonably
determined by legal counsel to the Indemnified Party, potentially differing
interests between such parties in the conduct of the defense of such Claim, or
if there may be legal defenses available to the Indemnified Party that are in
addition to or disparate from those available to the Indemnifying Party, or (z)
the Indemnifying Party shall have failed to employ legal counsel reasonably
satisfactory to the Indemnified Party within a reasonable period of time after
notice of the commencement of such Claim. If the Indemnified Party employs
separate legal counsel in circumstances other than as described in clauses (x),
(y) or (z) above, the fees, costs and expenses of such legal counsel shall be
borne exclusively by the Indemnified Party. Except as provided above, the
Indemnifying Party shall not, in connection with any Claim in the same
jurisdiction, be liable for the fees and expenses of more than one firm of legal
counsel for the Indemnified Party (together with appropriate local counsel). The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party (which consent shall not unreasonably be withheld), settle or
compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnified Party from all liabilities
with respect to such Claim or judgment.
[signature page follows]
9
IN WITNESS WHEREOF, the undersigned Buyer and the Seller have caused
this Agreement to be duly executed as of the date first above written.
SELLER: COMPUPRINT, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
TERRA INSIGHT CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
BUYER: ESTERNA LIMITED
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
JURISDICTION OF INCORPORATION,
ORGANIZATION OR FORMATION: Cypriot limited company
ADDRESS: Riga Feraiou 0, Xxxxx Xxxxxxxx, xxx,00
Xxxxxxxx, Xxxxxx
TELEPHONE: 000-00-000000
FACSIMILE: 000-00-000000
