Exhibit 3
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of this 10th
day of May, 2000, by and between NAM Corporation, a Delaware corporation (the
"Company"), with offices located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxx
Xxxx 00000; ISO Investment Holdings, Inc., a Delaware corporation (the
"Purchaser"), with offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000 and Insurance Services Office, Inc., a Delaware corporation and
parent of Purchaser ("ISO"), with offices at 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
WHEREAS, the Company wishes to issue and sell to the Purchaser the
Purchased Securities (as defined below); and
WHEREAS, the Purchaser wishes to purchase the Purchased Securities on
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Purchase.
(a) The Purchaser hereby purchases (i) shares (the "Shares") of common
stock, par value $.001 per share (the "Common Stock") of the Company as set
forth below, and (ii) a warrant (the "Warrant"), in the form attached hereto as
Exhibit A, to purchase a certain number of shares of Common Stock of the Company
(the "Warrant Shares") and at an exercise price per Warrant Share (the Shares,
Warrant and Warrant Shares collectively referred to as the "Purchased
Securities") as determined below. The total number of Shares issuable hereunder
shall be determined by dividing the aggregate purchase price of the Shares by
the price per share.
(b) The total consideration for the Shares is a price of $4,000,000,
with a price per share ("Price per Share") equal to the greater of (i) $5 and
7/8, and (ii) the average closing price of a share of Common Stock as reported
by the Nasdaq SmallCap Market for the five (5) trading days preceding the
Closing Date (the "Market Price"), payable upon execution of this Agreement by
wire transfer of immediately available funds (collectively, the "Purchase
Price"). If the Market Price is equal to or greater than $5 and 7/8, then the
Warrant Shares shall be 180,000 at an exercise price equal to one hundred and
thirty percent (130%) of the Price per Share. If the Market Price is less than
$5 and 7/8, then the Warrant Shares shall be 200,000 and the exercise price per
share shall equal the Market Price.
2. Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of Camhy
Karlinsky & Xxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 or such other
place as determined by the
Company, on such date as is mutually agreed upon by the Company and the
Purchaser, no later than May 11, 2000 (the "Closing Date"). At the Closing, the
Company shall (i) issue irrevocable instructions to its transfer agent to
prepare for delivery to the Purchaser a certificate for Shares being purchased
hereunder, and (ii) shall deliver the Warrant to the Purchaser, each duly
registered in the Purchaser's name against payment in full by the Purchaser of
the Purchase Price. As part of the Closing, Mr. Israel shall enter into a
Co-Sale Agreement with the Purchaser.
3. Designation of Board Nominee. (a) Effective as of the Closing, and
for so long as the Purchaser holds at least 25% of its Shares purchased
hereunder (subject to adjustment for stock splits, stock dividends, and the
like), the Purchaser shall have the right to designate one individual to be
included as part of the slate of nominees recommended by the directors of the
Company for election at each annual meeting of stockholders of the Company at
which directors of the Company are elected, and at any other time at which
stockholders of the Company shall have the right to, or shall, vote for
directors of the Company. At the time of the Closing, Roy Israel, Xxxxx Israel
and Xxxxxxx Xxxxxxx shall agree to vote all of their shares of Common Stock in
favor of such designee for as long as the Purchaser has the right to designate a
board member. Purchaser's designee shall be Xxxxx Xxxxx.
(b) In the event of any vacancy on the board of directors created by
the resignation, removal, incapacity, or death of any person designated by
Purchaser or under this Section 3, or upon request of the Purchaser, Purchaser
shall have the right to designate a nominee to fill such vacancy, as long as
such new designee is acceptable to the Company.
4. Preemptive Rights.
(a) If the Company proposes to issue, sell or exchange, or agree to
issue, sell or exchange (i) any equity security of the Company, (ii) any debt
security of the Company which by its terms is convertible into or exchangeable
for any equity security of the Company or (iii) any option, warrant or other
right to subscribe for, purchase or otherwise acquire any equity security or any
debt security referred to in clause (i) or (ii) above (collectively,
"Securities") to any person or entity, the Company shall deliver to the
Purchaser an offer (the "Preemptive Offer") to issue such number of Securities
to it to enable it to retain its fully-diluted ownership position in the Company
that it held immediately prior to the proposed issuance, sale, or exchange (the
"Offered Securities") upon the same terms set forth as such offer. The
Preemptive Offer shall state that the Company proposes to issue such Securities
and specify their number and terms (including purchase price). The Preemptive
Offer shall remain open for a period of 20 days (the "Preemptive Period") from
the date of its delivery unless earlier withdrawn by the Company as a result of
termination by the Company of the proposed issuance, sale or exchange giving
rise to the Preemptive Offer. For purposes of this Section 4, the Purchaser's
"fully diluted ownership position" shall mean the proportion that the number of
shares of Common Stock issued and held, or issuable upon exercise or conversion
of any debt or equity securities of the Company convertible into or exchangeable
for shares of Common Stock of the Company then held by such Purchaser bears to
the total number of shares of Common Stock then outstanding (assuming full
conversion and exercise of all convertible or exercisable securities then
outstanding).
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(b) Purchaser may accept the Preemptive Offer by delivering to the
Company a written notice (the "Purchase Notice") within the Preemptive Period
and the appropriate amount of funds to purchase such Offered Securities. The
Purchase Notice shall state the number (the "Preemptive Number") of Offered
Securities Purchaser desires to purchase. If Purchaser fails to deliver the
Purchase Notice within the Preemptive Period, Purchaser shall forfeit the right
to participate in the purchase of the Offered Securities.
(c) Notwithstanding anything to the contrary in this Section 4, the
Company shall not be required to extend a Preemptive Offer to the Purchaser with
respect to (i) the issuance or sale of options to purchase shares of Common
Stock to employees, consultants, advisors, and directors, pursuant to any stock
option plan approved by the Company's Board of Directors or otherwise approved
by the Board of Directors, (ii) the issuance of shares of Common Stock upon
exercise or conversion of any debt or equity securities of the Company
convertible into shares of Common Stock of the Company outstanding as of the
Closing or subsequent thereto, including, without limitation, the Equity Line of
Credit in existence as of the date hereof; (iii) the issuance of shares of
Common Stock upon exercise of the Warrant, (iv) shares of the Company's Common
Stock or preferred stock issued in connection with any stock split or stock
dividend; (v) securities issued as consideration to the acquisition of another
corporation or entity, or any portion thereof, by the Company by consolidation,
merger, purchase of securities or purchase of all or substantially all of the
assets thereof, provided that such transaction or series of transactions has
been approved by the Board of Directors; (vi) securities issued as part of
strategic alliances which have been approved by the Board of Directors; or (vii)
securities issued as equity "kickers" issued in connection with a
non-convertible debt financing, leasing transaction or other similar type of
transaction approved by the Board of Directors.
(d) The preemptive rights set forth in this Section 4 shall terminate
(i) immediately upon the Purchaser owning less than 25% of its Shares purchased
hereunder or (ii) upon (A) the acquisition of all or substantially all the
assets of the Company or (B) an acquisition of the Company by another
corporation or entity by consolidation, merger or other reorganization in which
the holders of the Company's outstanding voting stock immediately prior to such
transaction own, immediately after such transaction, securities representing
less than fifty percent (50%) or more of the voting power of the corporation or
other entity surviving such transaction.
5. Expenses. Each party shall bear all of their its expenses incurred
in connection with the transactions contemplated under this Agreement.
6. Representations of the Company. The Company represents and warrants
to the Purchaser that:
(a) Organization of the Company. The Company is a corporation duly
organized and in good standing under the laws of the State of Delaware and has
all requisite corporate authority to own its properties and to carry on its
business as now being conducted. The Company does not have any subsidiaries and
does not own more that fifty percent (50%) of
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or control any other business entity, except as set forth in the Company's
reports, proxy statement or registration statements with the Securities and
Exchange Commission ("SEC") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or the Securities Act of 1933, as amended (the
"Securities Act") (collectively, the "SEC Documents"). The Company is duly
qualified and is in good standing as a foreign corporation to do business in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the
failure so to qualify would not have any effect on the business, operations,
properties, or financial condition of the Company that is material and adverse
to the Company and its subsidiaries and affiliates, taken as a whole, and/or any
condition, circumstance, or situation that would prohibit or otherwise interfere
with the ability of the Company to enter into and perform any of its obligations
under this Agreement in any material respect (collectively, a "Material Adverse
Effect").
(b) Authority. The Company has the requisite corporate power and
corporate authority to enter into and perform its obligations under this
Agreement. The execution, issuance and delivery of this Agreement, the Common
Stock certificates, and the Warrant by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action and no further consent or authorization of the Company or its
board of directors or stockholders is required. This Agreement, the Common Stock
certificates and the Warrant shall be, as of the Closing, duly executed and
delivered by the Company, and as of the Closing, shall constitute valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application;
(c) Capitalization. The authorized capital stock of the Company
consists of 15,000,000 shares of Common Stock, $.001 par value per share and
5,000,000 shares of preferred stock, par value $.001 per share, 2,100 of which
have been designated as Series A Exchangeable Preferred Stock. As of May 1,
2000, there were 3,450,609 shares of Common Stock and 1,850 shares of Series A
Exchangeable Preferred outstanding. Except for (i) outstanding options and
warrants as set forth in the SEC Documents and (ii) options and warrants set
forth in Schedule 6(c) hereto, there are no outstanding securities nor any
agreements or understandings pursuant to which any securities of the Company may
become outstanding. The Company is not a party to any agreement granting
registration or anti-dilution rights to any person with respect to any of its
equity or debt securities, except as set forth in the SEC Documents. All of the
outstanding shares of Common Stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable. The Company has
duly and validly authorized and reserved for issuance shares of Common Stock
sufficient in number for issuance upon the proper exercise of the Warrant.
(d) Common Stock. The Company has registered its Common Stock pursuant
to Section 12(b) of the Exchange Act and is in full compliance with all
reporting requirements of the Exchange Act, and the Company is in compliance
with all requirements for the continued
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listing or quotation of its Common Stock, and such Common Stock is currently
quoted on the NASDAQ SmallCap Market.
(e) Exemption from Registration; Valid Issuances. Subject to the
accuracy of the Purchaser's representations in Section 7, the sale of the
Purchased Securities will not require registration under the Securities Act
and/or any applicable state securities law. When issued and paid for in
accordance with this Agreement, the Purchased Securities will be duly and
validly issued, fully paid, and non-assessable. Neither the sale of the
Purchased Securities, nor the Company's performance of its obligations under
this Agreement will (i) result in the creation or imposition by the Company of
any liens, charges, claims or other encumbrances upon the Purchased Securities
or, except as contemplated herein, any of the assets of the Company.
(f) No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the
Company's Certificate of Incorporation or By-Laws or (ii) conflict with, or
constitute a material default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or
instrument, or any "lock-up" or similar provision of any underwriting or similar
agreement to which the Company is a party, or (iii) result in a violation of any
federal, state or local law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or by which any material property or asset of the Company is bound or
affected, nor is the Company otherwise in violation of, conflict with or default
under any of the foregoing (except in each case for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not have, individually or in the aggregate, a Material Adverse Effect). The
business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental entity, except for possible
violations that either singly or in the aggregate would not have a Material
Adverse Effect. The Company is not required under any Federal, state or local
law, rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Common Stock or the Warrant in accordance with
the terms hereof (other than any SEC, Nasdaq, Boston Stock Exchange or state
securities filings that may be required to be made by the Company subsequent to
Closing and any shareholder approval required by the rules applicable to
companies whose common stock trades on the Nasdaq SmallCap Market); provided
that, for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Purchaser herein.
(g) Litigation and Other Proceedings. Except as disclosed in the SEC
Documents, there are no lawsuits or proceedings pending or, to the knowledge of
the Company, threatened, against the Company or any subsidiary, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which could reasonably be expected to have a Material Adverse
Effect. Except as set forth in the SEC Documents, no
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judgment, order, writ, injunction or decree or award has been issued by or, to
the knowledge of the Company, requested of any court, arbitrator or governmental
agency which could result in a Material Adverse Effect.
(h) Insurance. The Company and each subsidiary maintains property and
casualty, general liability, workers' compensation, personal injury and other
similar types of insurance with financially sound insurers that is adequate,
consistent with industry standards and the Company's historical claims
experience. The Company has not received notice from, and has no knowledge of
any threat by, any insurer (that has issued any insurance policy to the Company)
that such insurer intends to deny coverage under or cancel, discontinue or not
renew any insurance policy presently in force.
(i) Tax Matters.
(i) The Company and each subsidiary has filed all Tax Returns
which it is required to file under applicable laws; all such Tax Returns are
true and accurate and has been prepared in compliance with all applicable laws;
the Company has paid all Taxes due and owing by it or any subsidiary (whether or
not such Taxes are required to be shown on a Tax Return) and have withheld and
paid over to the appropriate taxing authorities all Taxes which it is required
to withhold from amounts paid or owing to any employee, stockholder, creditor or
other third parties; and since June 30, 1999, the charges, accruals and reserves
for Taxes with respect to the Company (including any provisions for deferred
income taxes) reflected on the books of the Company are adequate to cover any
Tax liabilities of the Company if its current tax year were treated as ending on
the date hereof.
(ii) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file tax returns that the Company or any
subsidiary is or may be subject to taxation by that jurisdiction. There are no
foreign, federal, state or local tax audits or administrative or judicial
proceedings pending or being conducted with respect to the Company or any
subsidiary; no information related to Tax matters has been requested by any
foreign, federal, state or local taxing authority; and, except as disclosed
above, no written notice indicating an intent to open an audit or other review
has been received by the Company or any subsidiary from any foreign, federal,
state or local taxing authority. There are no material unresolved questions or
claims concerning the Company's Tax liability. The Company (i) has not executed
or entered into a closing agreement pursuant to ss. 7121 of the Internal Revenue
Code or any predecessor provision thereof or any similar provision of state,
local or foreign law; or (ii) has not agreed to or is required to make any
adjustments pursuant to ss. 481(a) of the Internal Revenue Code or any similar
provision of state, local or foreign law by reason of a change in accounting
method initiated by the Company or any of its subsidiaries or has any knowledge
that the IRS has proposed any such adjustment or change in accounting method, or
has any application pending with any taxing authority requesting permission for
any changes in accounting methods that relate to the business or operations of
the Company. The Company has not been a United States real property holding
corporation within the meaning of ss. 897(c)(2) of the Internal Revenue Code
during the applicable period specified in ss. 897(c)(1)(A)(ii) of the Internal
Revenue Code.
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(iii) The Company has not made an election underss. 341(f) of the
Internal Revenue Code. The Company is not liable for the Taxes of another person
that is not a subsidiary of the Company under (A) Treas. Reg. ss. 1.1502-6 (or
comparable provisions of state, local or foreign law), (B) as a transferee or
successor, (C) by contract or indemnity or (D) otherwise. The Company is not a
party to any tax sharing agreement. The Company has not made any payments, is
obligated to make payments or is a party to an agreement that could obligate it
to make any payments that would not be deductible under ss. 280G of the Internal
Revenue Code.
(iv) For purposes of this Section 6(j):
1. "IRS" means the United States Internal Revenue Service.
2. "Tax" or "Taxes" means federal, state, county, local,
foreign, or other income, gross receipts, ad valorem, franchise,
profits, sales or use, transfer, registration, excise, utility,
environmental, communications, real or personal property, capital
stock, license, payroll, wage or other withholding, employment,
social security, severance, stamp, occupation, alternative or
add-on minimum, estimated and other taxes of any kind whatsoever
(including, without limitation, deficiencies, penalties, additions
to tax, and interest attributable thereto) whether disputed or
not.
3. "Tax Return" means any return, information report or
filing with respect to Taxes, including any schedules attached
thereto and including any amendment thereof.
(j) Property. Neither the Company nor any of its subsidiaries owns any
real property except as set forth in the SEC Documents. Each of the Company and
its subsidiaries has good and marketable title to all personal property owned by
it, free and clear of all liens, encumbrances and defects, except such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company; and
to the Company's knowledge any real property and buildings held under lease by
the Company as tenant are held by it under valid and enforceable leases with
such exceptions as are not material and do not interfere with the use made and
intended to be made of such property and buildings by the Company.
(k) Intellectual Property. Each of the Company and its subsidiaries
owns or possesses adequate and enforceable rights to use all patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how (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 including the list of patents, patent
applications, trademarks and trademark applications provided to Purchaser on or
before the date of the Closing, which is a complete and
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accurate listing of all registered patents, patent applications, trademarks and
trademark applications owned by the Company. To the Company's knowledge, except
as disclosed in the SEC Documents, neither the Company nor any of its
subsidiaries is infringing upon or in conflict with any right of any other
person with respect to any Intangibles. Except as disclosed in the SEC
Documents, no adverse claims have been asserted by any person to the ownership
or use of any Intangibles. The Company has taken commercially reasonable steps
to protect its Intellectual Property and the Company's rights therein, and to
the knowledge of the Company, no such rights in and to its Intellectual Property
have been lost or are in jeopardy of being lost through failure to act by the
Company.
(l) Internal Controls and Procedures. The Company maintains books and
records and internal accounting controls which provide reasonable assurance
that: (i) all material transactions to which the Company or any subsidiary is a
party or by which its properties are bound are executed with management's
authorization; (ii) the recorded accounting of the Company's consolidated assets
is compared with existing assets at regular intervals; (iii) access to the
Company's consolidated assets is permitted only in accordance with management's
authorization; and (iv) all transactions to which the Company or any subsidiary
is a party or by which its properties are bound are recorded as necessary to
permit preparation of the financial statements of the Company in accordance with
United States generally accepted accounting principles.
7. Representations of the Purchasers. Purchaser represents and warrants
to the Company as follows:
(a) Purchaser is an "accredited investor" within the meaning of Rule
501 under the Securities Act and was not organized for the specific purpose of
acquiring the Purchased Securities.
(b) Purchaser has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company and it is able financially to bear the risks thereof.
(c) Purchaser has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's management.
(d) This Agreement is made with the Purchaser in reliance upon the
Purchaser's representation to the Company, which by the Purchaser's execution of
this Agreement, the Purchaser hereby confirms, that the Purchased Securities
being purchased by the Purchaser are being acquired for its own account, not as
a nominee or agent, for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof.
(e) Purchaser understands that (i) the Purchased Securities have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof or Rule
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506 promulgated under the Securities Act, (ii) the Purchased Securities must be
held indefinitely unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration, and will bear the legend
set forth below to this effect, and (iii) the Company will make a notation on
its transfer books to the effect that the Purchased Securities shall bear the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(f) Purchaser has full power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance by Purchaser of the Agreement has been duly and validly approved
by the requisite governing body of the Purchaser.
(g) Neither Purchaser nor any of its Affiliates (as such term is
defined in Rule 144 of the Securities Act) has had a short position in the
Common Stock of the Company during the five business days immediately preceding
the Closing, and does not have a short position as of the date of the Closing.
8. Covenants of the Purchaser.
(a) The Purchaser covenants to the Company that Purchaser and its
Affiliates shall not engage in short sales of the Common Stock of the Company
for so long as Purchaser holds any of the Shares, Warrant, or Warrant Shares.
(b) The Purchaser agrees that from the date of the Closing and until
the date which is 365 days after the Closing, Purchaser shall not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities of the Company (including the Warrant and the Warrant Shares), or
enter into a transaction which would have the same effect, or publicly disclose
the intention to make any such offer, sale, pledge or disposal without the prior
written consent of the Company.
9. Registration Rights.
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(a) Demand Registration. The Company hereby agrees that at any time
after one year from the Closing Date the Purchaser may request that the Company
effect the registration under the Securities Act of 1933, as amended (the
"Securities Act") of all or part of the Purchased Securities, and thereupon
will, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of the Purchased Securities which the
Company has been so requested to register by the Purchaser, all to the extent
requisite to permit the disposition of the Purchased Securities so to be
registered; provided, however, that the Company shall not be required to file
any such registration statement under this Section 9(a) unless the anticipated
aggregate gross offering price is at least $2,000,000.
(i) The Company shall pay all of the expenses in connection with
the registration statement filed pursuant to this Section 3(a), except for
underwriting discounts and commissions and transfer taxes, including, but not
limited to the reasonable attorneys fees of one counsel selected by the
Purchaser, which shall not exceed $1,000 per effective registration statement.
(ii) A registration requested pursuant to this Section 9(a) will
not be deemed to have been effected unless a registration statement with respect
thereto has become effective; provided, that if, within 180 days after it has
become effective, the offering of the Purchased Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the Securities and Exchange Commission (the "SEC") or other
governmental agency or court, such registration will be deemed not to have been
effected.
(iii) If a requested registration pursuant to this Section 9(a)
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities requested to
be included in such registration exceeds the number which can be reasonably sold
in such offering, the Company will include in such registration first,
securities offered by the Company, second, the Purchased Securities which have
been requested to be registered pursuant to this Section 9(a), third, an amount
of securities of the Company which the Company is including in such registration
statement pursuant to any incidental ("piggyback") registration rights, and
fourth, the amount of other securities ("Other Securities") of the Company held
by all other security holders which, in the good faith opinion of such managing
underwriter, can be sold without causing a material adverse effect on the
offering.
(iv) The Company shall be obligated to register Purchased
Securities pursuant to this Section 9(a) only once provided that if the number
of Purchased Securities requested by the Purchaser to be included in a
Registration Statement requested by the Purchaser pursuant to Section 9 (a) is
cut back, the Purchaser shall have the right, no earlier than one year following
effectiveness of the first demand registration, to request a second Registration
Statement to register the Purchased Securities not so registered.
(b) Incidental Registration Rights.
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(i) In addition to the registration rights provided for by Section
9(a) above, if the Company, at any time after the Closing Date, proposes to
register its Common Stock under the Securities Act (other than a registration on
Form S-8 or S-4 or any successor or other forms promulgated for similar
purposes), whether or not for sale for its own account, pursuant to a
registration statement on which it is permissible to register Purchased
Securities for sale to the public under the Securities Act, it will each such
time give prompt written notice to the Purchaser of its intention to do so and
of the Purchaser's rights under this Section 9(b). In such event, upon the
written request of the Purchaser made within fifteen (15) days after the receipt
of any such notice (which request shall specify the Purchased Securities
intended to be disposed of by the Purchaser), the Company will use its best
efforts to effect the registration under the Securities Act of all Purchased
Securities which the Company has been so requested to register by the Purchaser;
provided, 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, the Company shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give written
notice of such determination to the Purchaser and, thereupon, shall be relieved
of its obligation to register any Purchased Securities in connection with such
registration (but not from its obligation to pay all of the expenses of such
registration in connection therewith), and (ii) if such registration involves an
underwritten offering, all holders of Purchased Securities requesting to be
included in the Company's registration must sell their Purchased Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company, 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 9(b) involves an underwritten public offering, any holder of
Purchased Securities 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.
(ii) If a registration pursuant to this Section 9(b) involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its good faith opinion, the amount of securities requested to
be included in such registration exceeds the amount which can be reasonably sold
in such offering, so as to be likely to have a material adverse effect on such
offering as contemplated by the Company (including the price at which the
Company proposes to sell such securities), then the Company will include in such
registration first, all securities proposed by the Company to be sold for the
Company's own account, second, all securities proposed by holders who made a
demand on the Company to register such securities which, in the good faith
opinion of such managing underwriter, can be sold without causing a material
adverse effect on the offering, with such amount of Securities to be allocated
pro rata among all requesting holders of such shares on the basis of the
relative aggregate number of securities then owned by the requesting holders,
and third, the amount of Other Securities held by all other security holders
which, in the good faith opinion of such managing underwriter, can be sold
without causing a material adverse effect on the offering, with such amount of
Other Securities to be allocated pro rata among such other holders on the basis
of the relative number of shares of Other Securities owned by such other
holders, including the Purchaser.
11
(c) Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Purchased
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 90 days after a request for
registration is given to the Company, file with the SEC a registration statement
with respect to such Purchased Securities and use its best efforts to cause such
registration statement to become effective as promptly as possible; provided,
however, that the Company may discontinue any registration of its securities
which is being effected pursuant to an incidental registration at anytime prior
to the effective date of the registration statement relating thereto;
(ii) 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 so long as
the requesting holders of the Purchased Securities shall request, but in no
event longer than six (6) months, and to comply with the provisions of the Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of such Purchased Securities such
number of copies of such 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 Act, and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Purchased Securities by
such seller;
(iv) use its best efforts to register or qualify such Purchased
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Purchased Securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (iv), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Purchased Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Purchased
Securities;
(vi) notify each seller of any such Purchased Securities covered
by such registration statement, at any time when a prospectus relating thereto
12
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (ii) of this Section, of the Company's becoming aware
that the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and at the
request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended of supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Purchased Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(vii) 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 (but not more than fifteen months) after the
effective date of the registration statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(viii) use its best efforts to list such Purchased Securities on
any securities exchange or listing agency on which the Common Stock is then
listed or quoted, if such Purchased Securities are not already so listed or
quoted and if such listing or quotation is then permitted under the rules of
such exchange or agency, and to provide a transfer agent and registrar for such
Purchased Securities 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 sellers of a majority of such Purchased Securities or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Purchased Securities;
(ix) make available for inspection by any seller of such Purchased
Securities 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 any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
(x) the Company may defer the demand for registration under
Section 9(a) hereof, suspend the use of a registration statement filed under
Section 9(a) and (b) hereof and already effective, or not cause a registration
statement filed under Section 9(a) or (b) hereof to become effective, for a
period of up to ninety (90) days in the event the majority of the Board of
Directors determines that such deferral is in the best interests of the Company.
Such a deferral may only be used once in any one year period.
(d) Obligations of Purchaser.
13
(i) The Company may require the Purchaser as to which any
registration of the Purchased Securities is being effected to furnish the
Company with such information regarding the Purchaser and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(ii) The Purchaser agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in clause
(c)(vi) of this Section, such holder will forthwith discontinue disposition of
Purchased Securities pursuant to the registration statement covering such
Purchased Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (c)(vi) of this
Section, and, if so directed by the Company, such holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Purchased
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (c)(ii) of
this Section shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (c)(vi) of
this Section and including the date when each seller of Purchased Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (c)(vi) of this
Section.
(e) Indemnification.
(i) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to this Section 9, the Company will, and it hereby does, indemnify and hold
harmless the seller of any Purchased Securities covered by such registration
statement, each affiliate of such seller and their respective directors and
officers or general and limited partners, members (and the partners, members,
directors, officers, affiliates and controlling persons of each of the
foregoing), 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
seller 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 reasonable
attorney's fees) to which any such Indemnified Party may become subject under
the Securities Act, 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) arise out of or are based upon
(a) 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 thereto, or (b) 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 in the
light of the circumstances then existing, and the Company will reimburse, as
incurred, such Indemnified
14
Party for any legal or any other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that (i) the Company 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 of material fact or omission or alleged omission of material fact made
in such registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information with respect to such seller furnished to the Company by such
seller specifically stating that it is for use in the preparation thereof, (ii)
with respect to any untrue statement or omission of a material fact made in any
preliminary prospectus, the indemnity provided in this Section 9(e) shall not
inure to the benefit of any Indemnified Party from whom the person asserting any
such loss, claim, damage, or liability purchased the Purchased Securities
concerned, to the extent that any such loss, claim, damage, or liability of such
Indemnified Party occurs under circumstances where the Company had previously
furnished copies of the final prospectus to such Indemnified Party and the
untrue statement or omission of a material fact contained in the preliminary
prospectus was corrected in the final prospectus and such Indemnified Party
failed to deliver the final prospectus, and (iii) the Company shall not be
liable for any amounts paid in settlement of any such loss, claims, damage,
liability, or action if such settlement is effected without the consent of the
Company, which consent has not been unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any other Indemnified Party and shall survive the
transfer of such securities by such seller.
(ii) Indemnification by the Purchaser, In the event of any
registration of any securities of the Company under the Securities Act in
accordance with this Section, the prospective seller of such Purchased
Securities shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (i) of this Section 9(e)) the Company and all
other prospective sellers or any underwriter, as the case may be, with respect
to any untrue statement or alleged untrue statement of material fact in or
omission or alleged omission of material fact 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 such seller furnished to the Company or underwriter by such
seller specifically stating that it is 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 the liability of such indemnifying party under this
Section 9(e) shall be limited to the amount of net proceeds received by such
indemnifying party from the offering giving rise to such liability. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any of the prospective underwriters, or
any of their respective affiliates, directors, officers or controlling persons
and shall survive the transfer of such securities by such seller.
(iii) Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or
15
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 9, 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, that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 3, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably 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. No indemnifying party will consent to entry of any judgment or
enter into any settlement which 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.
(iv) Contribution. If the indemnification provided for in this
Section 9(e) shall for any reason be held by a court to be unavailable to an
indemnified party under paragraphs (i) or (ii) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under paragraph (i) or (ii) hereof, the indemnified
party and the indemnifying party under paragraph (i) or (ii) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (a) in such proportion as is appropriate to reflect the relative fault of
the Company and the prospective sellers of Purchased Securities covered by such
registration statement that resulted in such loss, claim, damage or liability,
or action in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage, liability, or action in respect thereof,
as well as any other relevant equitable consideration or (b) if the allocation
provided by such clause (a) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and such prospective sellers from the offering of such securities
covered by such registration statement. 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; provided, however, that the contribution of any
seller under this Section 3(e) shall be limited to the amount of net proceeds
received by such seller from the offering giving rise to such contribution. Such
prospective sellers' obligations to contribute as provided in this paragraph
(iv) are several in proportion to the relative value of their respective
Purchased Securities covered by such registration statement or the other factors
described herein and not joint. In addition, no person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such person's consent.
16
(v) Indemnification Payments. The indemnification required by this
Section 9 shall be effected by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Termination of Registration Rights. Unless otherwise specified
above, the registration rights granted under this Section 9 shall terminate upon
the earlier of (i) four years subsequent to the Closing Date and (ii) such time,
as the Purchaser shall be permitted to sell all of its Purchased Securities in
any three month period under Rule 144 promulgated under the Securities Act.
10. Choice of Law. This Agreement and the performance hereunder shall
be governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to such state's rules governing the conflicts of
laws.
11. Notices. All notices, requests, demands and other communications
which a party is required to or may desire to give any other party in connection
with this Agreement shall be in writing, and shall be personally delivered,
delivered by facsimile transmission, delivered by United States registered or
certified mail, postage prepaid with return receipt requested, or delivered by a
nationally recognized overnight courier, addressed as follows:
If to the Company: NAM Corporation
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Roy Israel
With a copy (which shall Camhy Xxxxxxxxx & Xxxxx LLP
not constitute notice) to: 0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Purchaser: ISO Investment Holdings, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
17
With a copy (which shall Insurance Services Office, Inc.
not constitute notice) or 7 World Trade Center
if to ISO to: Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Senior Vice
President and General Counsel
If notice is given by personal delivery in accordance with the
provisions of this Section 11, said notice shall conclusively be deemed given at
the time of delivery. If notice is given by confirmed facsimile transmission in
accordance with the provisions of this Section 11, said notice shall
conclusively be deemed given at the time of the transmission. If notice is given
by mail in accordance with the provisions of this Section 11, said notice shall
conclusively be deemed given 48 hours after deposit thereof in the United States
mail. If notice is given by overnight courier then notice shall conclusively be
deemed given 24 hours after delivery to the courier. The addressees or addresses
set forth above may be changed from time to time by a notice sent to the other
parties.
12. Amendments. The provisions of this Agreement may be altered,
amended, or repealed, in whole or in part, only on the written consent of the
Company and the Purchaser.
13. Survival of Agreements. All covenants and agreements made in this
Agreement shall survive the execution and delivery hereof, and all
representations and warranties made in this Agreement shall survive the
execution and delivery hereof for a period of one (1) year from the Closing
Date.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter contained herein and
supersedes any and all other prior or contemporaneous agreements, arrangements,
and understandings, either oral or in writing, between the parties hereto with
respect to the subject matter hereof. Each party to this Agreement acknowledges
and represents that no representations, warranties, covenants, conditions,
inducements, promises or agreements, oral or otherwise, other than as set forth
herein, have been made by any party hereto, or anyone acting on behalf of any
party.
15. Severability. It is intended that each section of this Agreement
should be viewed as separate and divisible, and in the event that any section,
provision, covenant, or condition of this Agreement shall be held to be invalid,
void, or unenforceable, the remainder of the provisions shall remain in full
force and effect and shall in no way be affected, impaired, or invalidated.
16. Successors and Assignment. This Agreement may not be assigned by
the Purchaser without the prior written consent of the Company. Upon such
consent, this Agreement, and the rights and obligations of the Purchaser
hereunder, may be assigned by such Purchaser to any permitted transferee, and
such permitted transferee shall be deemed a
18
"Purchaser" under this Agreement; provided, that such assignment shall not be
effective unless and until such permitted transferee shall agree to bound by the
terms and conditions set forth herein and shall become a party to, and executes
a signature page to, this Agreement (the "Permitted Transferee").
17. Waiver. No provision of this Agreement as it applies to the
Company, on the one hand, or the Purchaser, on the other hand, may be waived
except in writing by the party entitled to the benefit of such provision.
18. Counterparts and Facsimile. This Agreement may be executed in
counterparts (and by facsimile), each of which shall be deemed an original and
all of which shall constitute one agreement.
19. Preferred Provider Relationship. ISO and the Company agree that ISO
shall be a preferred provider to the Company of information and consulting
services, at arm's length pricing, and the Company shall be a preferred provider
to ISO of arbitration and mediation services at arm's length pricing.
19
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
NAM CORPORATION
By:
-----------------------------------
Name: Roy Israel
Title: President and
Chief Executive Officer
ISO INVESTMENT HOLDINGS, INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
As to Paragraph 19 hereof:
INSURANCE SERVICES OFFICE, INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
20
EXHIBIT A
21
SCHEDULE 6(c)
22
