STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of December 1,
1999, by and between OSICOM TECHNOLOGIES, INC., a New Jersey corporation (the
"Company"), and FIBR HOLDINGS, LLC, a New York limited liability company (the
"Purchaser").
WHEREAS, the Company wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Company, on the terms and subject to the conditions
set forth in this Agreement, shares of the Company's Common Stock, par value
$.30 per share (the "Shares"); and
WHEREAS, the Company has agreed to effect the registration of the
Shares to be issued pursuant to this Agreement under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to a Registration Rights Agreement
of even date herewith by and between the Company and the Purchaser attached
hereto as Exhibit A (the "Registration Rights Agreement"); and
WHEREAS, the sale of the Shares by the Company to the Purchaser will be
effected in reliance upon an exemption from securities registration in
accordance with Section 4(2) of the Securities Act and the rules and regulations
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the Company and the Purchaser hereby
agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.1 Agreement to Purchase and Sell. Upon the terms and subject to the
satisfaction of the conditions set forth herein, the Company agrees to sell at
the Closing (as defined in paragraph 1.2 below), and the Purchaser agrees to
purchase, Six Hundred Seventy-Nine Thousand Four Hundred Eighty-Three (679,483)
Shares at a purchase price equal to Eleven and 0378/10000 Dollars ($11.0378) per
Share or Seven Million Five Hundred Thousand Dollars ($7,500,000) in the
aggregate (the "Purchase Price").
1.2 Closing. Subject to the satisfaction or waiver of the conditions
set forth herein, the closing of the purchase and sale of the Shares hereunder
(the "Closing") will be held simultaneously with the execution and delivery of
this Agreement and will be deemed completed when this Agreement and the other
Transaction Documents (as defined below) have been executed and delivered by the
Company and Purchaser (which delivery may be effected by facsimile
transmission), and full payment of the Purchase Price has been made by the
Purchaser by wire transfer of immediately available funds against physical
delivery by the Company of duly executed certificates representing the Shares
purchased by the Purchaser at the Closing. The date on which the Closing occurs
is referred to herein as the "Closing Date".
1.3 Certain Definitions. When used herein, (A) "business day" shall
mean any day on which the New York Stock Exchange and commercial banks in the
city of New York are open for
business, (B) an "affiliate" of a party shall mean any person or entity
controlling, controlled by or under common control with that party and (C)
"control" shall mean, with respect to an entity, the ability to direct the
business, operations or management of such entity, whether through an equity
interest therein or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby makes the following representations and warranties
to the Company and agrees with the Company that, as of the date of this
Agreement and as of the Closing Date:
2.1 Authorization; Enforceability. The Purchaser is duly and validly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with full power and authority
to purchase the Shares and to execute and deliver this Agreement. This Agreement
constitutes the Purchaser's valid and legally binding obligation, enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) general principles of equity.
2.2 Accredited Investor; Investment Intent. The Purchaser is an
accredited investor as that term is defined in Rule 501 of Regulation D, and is
acquiring the Shares solely for its own account for investment purposes as a
principal and not with a present view to the public resale or distribution of
all or any part thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act or sales registered under the
Securities Act; provided, however that in making such representation, the
Purchaser does not agree to hold the Shares for any minimum or specific term and
reserves the right to sell, transfer or otherwise dispose of the Shares at any
time in accordance with the provisions of this Agreement and with Federal and
state securities laws applicable to such sale, transfer or disposition.
2.3 Information. The Company has provided the Purchaser with
information regarding the business, operations and financial condition of the
Company, and has granted to the Purchaser the opportunity to ask questions of
and receive answers from representatives of the Company, its officers,
directors, employees and agents concerning the Company and materials relating to
the terms and conditions of the purchase and sale of the Shares hereunder.
2.4 Limitations on Disposition. The Purchaser acknowledges that, except
as provided in the Registration Rights Agreement, the Shares have not been and
are not being registered under the Securities Act and may not be transferred or
resold without registration under the Securities Act or unless pursuant to an
exemption therefrom.
2.5 Legend. The Purchaser understands that the certificates
representing the Shares will bear at issuance a restrictive legend in
substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of
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any state, and may not be offered or sold unless a registration
statement under the Securities Act and applicable state securities laws
shall have become effective with regard thereto, or an exemption from
registration under the Securities Act and applicable state securities
laws is available in connection with such offer or sale. The securities
are subject to the provisions of a Stock Purchase Agreement dated
December 1, 1999 between the Company and FIBR Holdings, LLC with
respect to voting."
Notwithstanding the foregoing, it is agreed that, as long as
(A) the resale or transfer (including without limitation a pledge) of any of the
Shares is registered pursuant to an effective registration statement, (B) the
Shares can be sold to the public pursuant to Rule 144 under the Securities Act
("Rule 144") and a registered broker dealer provides to the Company a customary
broker's Rule 144 letter, or (C) the Shares are eligible for sale to the public,
without limitation as to the amount of or manner in which the Shares may be
sold, under Rule 144(k) or any successor provision, the Shares shall be issued
without any legend or other restrictive language and, with respect to Shares
upon which such legend is stamped, the Company shall issue new certificates
without the first sentence of such legend to the holder upon request. In
addition to the foregoing in the event that the Shares are transferred to any
transferee other than a member of the Purchaser, the Company will issue new
certificates without the last sentence of such legend.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to the Purchaser and agrees with the Purchaser that, as of the date of this
Agreement and as of the Closing Date:
3.1 Organization, Good Standing and Qualification. Each of the Company
and its subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and has
all requisite corporate power and authority to carry on its business as now
conducted. The term "subsidiaries" shall mean entities in which the Company has
a voting equity interest of 50% or greater.
3.2 Authorization; Consents. The Company has the requisite corporate
power and authority to enter into and perform its obligations under (i) this
Agreement, (ii) the Registration Rights Agreement and (iii) all other
agreements, documents, certificates or other instruments executed and delivered
by or on behalf of the Company at any Closing (the instruments described in (i),
(ii) and (iii) being collectively referred to herein as the "Transaction
Documents") and to issue and sell the Shares to the Purchaser in accordance with
the terms hereof. All corporate action on the part of the Company by its
officers, directors and stockholders necessary for the authorization, execution
and delivery of, and the performance by the Company of its obligations under the
Transaction Documents has been taken, and no further consent or authorization of
the Company, its Board of Directors, its stockholders, any governmental agency
or organization (other than as may be required under the Securities Act and
applicable state securities laws in respect of the Registration Rights
Agreement), or any other person or entity is required (pursuant to any rule of
the National Association of Securities Dealers, Inc. (the "NASD") or otherwise).
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3.3 Enforcement. The Transaction Documents constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, except as such enforcement may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally and (ii)
general principles of equity.
3.4 Disclosure Documents; Agreements; Financial Statements; Other
Information. The Company has filed with the Commission: (i) the Company's Annual
Report on Form 10-K for the year ended January 31, 1999, (ii) the Company's
Quarterly Reports on Form 10-Q for the three month periods ended April 30, 1999
and July 31,1999, and the Company's Balance Sheet as of October 31, 1999 and
Profit and Loss Statement for the three month period ended October 31, 1999,
(such Balance Sheet and Profit and Loss Statement being referred to herein as
the "October Financial Statements") and (iii) all Current Reports on Form 8-K
required to be filed by the Company with the Commission since January 31, 1999
(collectively, the "Disclosure Documents"). The Company is not aware of any
event occurring on or prior to the Closing (other than the transactions effected
hereby) that would require the filing of, or with respect to which the Company
intends to file, a Form 8-K after the Closing. Each Disclosure Document, as of
the date of the filing thereof with the Commission (and with respect to the
October Financial Statements, as of October 31, 1999), conformed, and as of the
Closing Date will conform, in all material respects to the requirements of the
Exchange Act, and the rules and regulations thereunder and such Disclosure
Document did not, as of the date of such filing (and with respect to the October
Financial Statements, as of October 31, 1999), and will not, as of the Closing
Date, contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that any information set forth in any Disclosure Document
which is a forward-looking statement as defined in Rule 175(c) promulgated by
the Commission under the Securities Act shall not be deemed to contain an untrue
statement of material fact as long as such forward-looking statement was made
with a reasonable basis and in good faith.
3.5 Capitalization. The capitalization of the Company as of November
30, 1999, including its authorized capital stock, the number of shares issued
and outstanding, the number of shares issuable and reserved for issuance
pursuant to the Company's stock option plans, the number of shares issuable and
reserved for issuance pursuant to securities exercisable for, or convertible
into or exchangeable for any shares of Common Stock is set forth on Schedule 3.5
to this Agreement. All of such outstanding shares of capital stock have been, or
upon issuance will be, validly issued, fully paid and non-assessable. No shares
of the capital stock of the Company are subject to preemptive rights or any
other similar rights of the stockholders of the Company or any liens or
encumbrances created by or through the Company. Except as disclosed in the
Disclosure Documents, or as contemplated herein, there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exercisable or exchangeable for, any shares of capital stock of the Company or
any of its subsidiaries, or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares of capital stock
of the Company or any of its subsidiaries.
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3.6 Valid Issuance. The Shares are duly authorized and, when issued,
sold and delivered in accordance with the terms hereof, (i) will be duly and
validly issued, fully paid and nonassessable, free and clear of any taxes,
liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company, (ii) based in part upon the representations of the
Purchaser in this Agreement, will be issued, sold and delivered in compliance
with all applicable Federal and state securities laws and (iii) will be entitled
to all of the rights, preferences and privileges of the holders of the Common
Stock of the Company.
3.7 No Conflict with Other Instruments. The execution, delivery and
performance of this Agreement and the other Transaction Documents, and
consummation of the transactions contemplated hereby and thereby will not result
in (a) a violation of any provision of the Certificate of Incorporation or
by-laws of the Company or its subsidiaries, (b) a violation of any Law (as
defined below) or any judgment, decree, order, regulation or rule of any court
or other Governmental Entity (as defined in Section 5.1.8 hereof) applicable to
the Company or its subsidiaries, or (c) any violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any provision, instrument or contract to which the Company or any
of its subsidiaries are a party or by which any of their assets are subject, or
an event which results in the creation of any lien, charge or encumbrance upon
any assets of the Company or of any of its subsidiaries or the triggering of any
preemptive or anti-dilution rights or rights of first refusal or first offer on
the part of holders of the Company's securities. "Law" shall mean any statute,
ordinance, code, rule, regulation or order enacted, adopted, promulgated,
applied or followed by any Governmental Entity.
3.8 Breach of Contract; Litigation.
3.8.1 The Company is not aware of any breaches in any
agreement to which it is a party which breach could have a material adverse
effect on the Company and its subsidiaries taken as a whole.
3.8.2 Except as described in the Disclosure Documents, there
is no material claim or litigation pending, or, to the Company's knowledge,
threatened or contemplated, against the Company or any of its subsidiaries, or
against any officer, director or employee of the Company or any such subsidiary
in connection with such person's employment therewith. Neither the Company nor
any of its subsidiaries is a party to or subject to the provisions of, any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality which could reasonably be expected to have a material adverse
effect on the consolidated business or financial condition of the Company and
its subsidiaries taken as a whole.
3.9 Trading on NASDAQ. The Common Stock is designated for quotation on
the NASDAQ National Market and trading in the Common Stock on such market has
not been suspended. The Company is in full compliance with the continued
designation criteria of the NASDAQ National Market and does not reasonably
anticipate that the Common Stock will be delisted from the NASDAQ National
Market, whether by reason of the transactions contemplated
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by this Agreement or the other Transaction Documents and is not aware of any
inquiry by or received any notice from the NASD regarding any failure or alleged
failure by the Company to comply with such requirements which has not been
favorably resolved prior to the date hereof.
3.10 Solicitation. Neither the Company nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, (i) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Shares or (ii) has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under any circumstances that would require
registration of the Shares under the Securities Act.
3.11 Registration Rights. No holders of the Company's Common Stock nor
of any securities convertible or exchangeable into Common Stock nor of other
rights to acquire Common Stock (except employee stock options) have any rights
to require such Common Stock to be registered under the Securities Act, whether
pursuant to a demand, piggyback or other type of registration right.
4. COVENANTS OF THE COMPANY.
4.1 Corporate Existence. The Company shall, so long as any Purchaser or
any affiliate of the Purchaser beneficially owns any of the Shares, maintain its
corporate existence in good standing and shall pay all taxes owed by it when due
except for taxes which the Company reasonably disputes.
4.2 Provision of Information. The Company shall provide the Purchaser,
as long as the Purchaser holds any Shares, with copies of its annual reports on
Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and proxy
statements and other materials sent to stockholders, in each such case promptly
after the filing thereof with the Commission.
4.3 Reporting Status. As long as the Purchaser or any affiliate of the
Purchaser beneficially owns any Shares and until the date on which any of the
foregoing may be sold to the public pursuant to Rule 144(k) (or any successor
rule or regulation), (i) the Company shall timely file with the Commission all
reports required to be so filed pursuant to the Exchange Act and (ii) the
Company shall not terminate its status as an issuer required by the Exchange Act
to file reports thereunder even if the Exchange Act or the rules or regulations
thereunder would permit such termination. The Company agrees to file with the
Commission a Form 8-K describing the terms of the transactions contemplated by
this Agreement and the Registration Rights Agreement, with this Agreement
attached to such Form 8-K as an exhibit thereto, on or before the tenth (10th)
day following the Closing Date in the form required by the Exchange Act.
4.4 Quotation on NASDAQ. The Company shall (i) promptly following the
Closing, take such action as may be necessary to include the Shares for
quotation on the NASDAQ National Market and (ii) use its best efforts to
maintain the listing of the Shares on such market.
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4.5 Blue Sky Filings. In connection with the sale of the Shares to the
Purchaser, the Company will comply with, and make all filings required under,
any State securities law to which the sale of the Shares hereunder is subject.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Purchaser's Obligations at Closing. The Purchaser's
obligations at the Closing, including without limitation its obligation to
purchase the Shares, are conditioned upon the fulfillment (or waiver by the
Purchaser) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set
forth in this Agreement shall be true and correct in
all material respects as of such date as if made on
such date;
5.1.2 the Company shall have complied with or performed in
all material respects all of the agreements,
obligations and conditions set forth in this
Agreement that are required to be complied with or
performed by the Company on or before the Closing;
5.1.3 the Company shall have delivered to the Purchaser a
certificate, signed by an officer of the Company,
certifying that the conditions specified in
paragraphs 5.1.1, 5.1.2 and 5.1.7 have been fulfilled
as of the Closing;
5.1.4 the Company shall have delivered to the Purchaser a
certificate, signed by the Secretary of the Company,
attaching a copy of the resolutions of the Board of
Directors authorizing the transactions contemplated
hereby, and certifying that such resolutions have not
been modified or rescinded since the date of their
adoption by the Company's Board of Directors;
5.1.5 the Company shall have delivered duly executed
certificates representing the Shares being purchased;
5.1.6 the Company shall have executed and delivered the
Registration Rights Agreement;
5.1.7 there shall have been no material adverse changes in
the Company's consolidated business or financial
condition since the date of the Company's most recent
audited financial statements contained in the
Disclosure Documents;
5.1.8 there shall be no action or proceeding by or before
any federal, state, local or foreign government or
any court of competent jurisdiction, administrative
agency or commission or other governmental authority
or instrumentality, domestic or foreign (a
"Governmental Entity") or NASD
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pending or threatened challenging or seeking to
restrain or prohibit the purchase and sale of any of
the Shares or any of the other transactions
contemplated by this Agreement or seeking to obtain
damages from either party hereto in connection with
the purchase and sale of the Shares or any of the
other transactions contemplated by this Agreement.
5.1.9 there shall be no statute, rule, regulation,
executive order, decree, temporary restraining order,
preliminary injunction, permanent injunction or other
order, enacted, entered, promulgated, enforced or
issued by any Governmental Entity or other legal
restraint or prohibition preventing the purchase and
sale of the Shares in effect.
5.1.10 the Purchaser shall have received an opinion of the
Company's counsel in form and substance as set forth
on Exhibit B.
5.2 Conditions to Company's Obligations at Closing. The Company's
obligations at the Closing are conditioned upon the fulfillment (or waiver by
the Company) of each of the following events as of the Closing Date:
5.2.1 the representations and warranties of the Purchaser
shall be true and correct in all material respects as
of such date as if made on such date; and
5.2.2 the Purchaser shall have complied with or performed
all of the agreements, obligations and conditions set
forth in this Agreement that are required to be
complied with or performed by the Purchaser on or
before the Closing.
5.2.3 there shall be no action or proceeding by or before
any Governmental Entity or NASD pending or threatened
challenging or seeking to restrain or prohibit the
purchase and sale of any of the Shares or any of the
other transactions contemplated by this Agreement or
seeking to obtain damages from either party hereto in
connection with the purchase and sale of the Shares
or any of the other transactions contemplated by this
Agreement.
5.2.4 there shall be no statute, rule, regulation,
executive order, decree, temporary restraining order,
preliminary injunction, permanent injunction or other
order, enacted, entered, promulgated, enforced or
issued by any Governmental Entity or other legal
restraint or prohibition preventing the purchase and
sale of the Shares in effect.
6. ADDITIONAL TRANSACTIONS
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6.1 Board of Directors Seat. At or subsequent to the Closing, the
Purchaser shall have the right to designate one member of the Board of Directors
of the Company to serve until the annual meeting of the shareholders of the
Company in 2001. The nominee shall be required to complete a questionnaire in
the same form as has been executed by all other directors of the Company.
Subject to the approval of the existing directors upon review of such
questionnaire and any other relevant information, such approval not to be
unreasonably withheld, the existing directors will elect such nominee to the
Board of Directors, and such individual shall receive the same compensation as
each other non-employee director of the Company.
6.2 Election of Directors. From and after the Closing Date, the
Purchaser shall, and shall use its reasonable best efforts to cause any of its
members to which the Purchaser transfers the Shares, to vote the Shares at all
times prior to their sale at any regular or special meeting of the shareholders
of the Company called for the purpose of filling positions on the Board of
Directors of the Company, or in any written consent executed in lieu of such a
meeting of shareholders, in favor of the nominees proposed by the Company's
Board of Directors. In the event that the Purchaser or its members do not cast
its vote in accordance with the previous sentence, the Company's Board of
Directors is hereby authorized to do so. As a condition precedent to having the
Company's transfer agent effect a transfer of any Shares to a member of the
Purchaser, the Company may require such transferee(s) to execute a document
granting the Board of Directors authority consistent with this paragraph.
6.3 Right of Participation. The Company agrees that, prior to any offer
or sale by the Company's subsidiary, Meret Communications, Inc. ("Meret") of
Meret's common stock (or any securities convertible or exercisable into or
exchangeable for common stock) it will deliver, at least ten (10) business days
prior to such proposed issuance, to the Purchaser written notice describing the
proposed offering, including the aggregate amount to be offered and the terms
and conditions thereof (a "Participation Notice"), and provide the Purchaser
with an option to participate in such offering up to $7,500,000 (the "Right of
Participation") on the terms and conditions set forth in the Participation
Notice. The Purchaser may exercise its Right of Participation by delivering
written notice of such exercise (an "Exercise Notice") to the Company on or
before the eighth (8th) business day following receipt of the Participation
Notice, which notice shall specify the dollar amount of the securities that the
Purchaser wishes to purchase in such offering. In the event that a Purchaser
exercises its Right of Participation with respect to such offering, the Company
shall, within one business day thereafter (i) determine in good faith from the
lead investor or lead venture financier in the event of a private offering or
from the managing underwriter in the event of an initial public offering whether
the Purchaser will be allowed to participate in such offering, provided that the
Company shall recommend to such lead investor or lead venture financier or
managing underwriter that the Purchaser be allowed to so participate, and to
purchase the dollar amount of securities requested by the Purchaser and (ii)
notify the Purchaser of such determination. The Right of Participation shall
apply only to Meret's initial financing subsequent to the Closing Date. In the
event that the Purchaser transfers Shares to any of its members and until such
time as such members transfer the Shares, each such member shall have the rights
afforded to the Purchaser under this Section 6.3 with respect to such Shares (it
being the intent of the parties that the Right of Participation for the
Purchaser and its members not exceed $7,500,000 in the aggregate); provided
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that the Purchaser shall retain and have the sole right to receive the
Participation Notice from the Company and deliver the Exercise Notice to the
Company in accordance with the provisions of this Section 6.3.
6.4 Commission. At the Closing, the Company shall pay to Xxxxxxxx
Xxxxxxxx Capital Corp., by certified check or wire transfer, $300,000 in
connection with the transactions contemplated by this Agreement.
7. MISCELLANEOUS.
7.1 Public Disclosure. The existence of this Agreement and the
transactions contemplated therein shall not be disclosed by either Party without
the other Party's prior written consent, such consent not to be unreasonably
withheld.
7.2 Survival; Severability. The representations, warranties, covenants
and indemnities made by the parties herein shall survive the Closing
notwithstanding any due diligence investigation made by or on behalf of the
party seeking to rely thereon. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that in such case the parties shall negotiate
in good faith to replace such provision with a new provision which is not
illegal, unenforceable or void, as long as such new provision does not
materially change the economic benefits of this Agreement to the parties.
7.3 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and permitted assignors any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. In addition to the assignment of rights and
obligations contemplated under Sections 6.2 and 6.3 hereof to members of the
Purchaser as expressly provided for in Sections 6.2 and 6.3 hereof, the
Purchaser may assign its rights and obligations hereunder, in connection with
any private sale or transfer of the Shares in accordance with the terms hereof,
as long as, as a condition precedent to such transfer, the transferee executes
an acknowledgment agreeing to be bound by the applicable provisions of this
Agreement in which case the term "Purchaser" shall be deemed to refer to such
transferee as though such transferee were an original signatory hereto. The
Company may not assign it rights or obligations under this Agreement.
7.4 No Reliance. Each party acknowledges that (i) it has such knowledge
in business and financial matters as to be fully capable of evaluating this
Agreement, the other Transaction Documents and the transactions contemplated
hereby and thereby, (ii) it is not relying on any advice or representation of
the other party in connection with entering into this Agreement, the other
Transaction Documents or such transactions (other than the representations made
in this Agreement or the other Transaction Documents), (iii) it has not received
from such party any assurance or guarantee as to the merits (whether legal,
regulatory, tax, financial or otherwise) of entering into this
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Agreement or the other Transaction Documents or the performance of its
obligations hereunder and thereunder, and (iv) it has consulted with its own
legal, regulatory, tax, business, investment, financial and accounting advisors
to the extent that it has deemed necessary, and has entered into this Agreement
and the other Transaction Documents based on its own independent judgment and on
the advice of its advisors as it has deemed necessary, and not on any view
(whether written or oral) expressed by such party.
7.5 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed under the laws of the State of New Jersey without regard to the
conflict of laws provisions thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the State
of New Jersey, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit action or
proceeding, any claim that it is nor personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
7.7 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
7.8 Notices. Any notice, demand or request required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
third business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed to the parties as follows:
If to the Purchaser:
FIBR Holdings, LLC
1330 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
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Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxxx, Xxxxxxxx & Co., L.P.
1330 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Berlin Shereff Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
If to the Company:
Osicom Technologies, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Greenbaum, Rowe, Xxxxx, Xxxxx, Xxxxx & Xxxxxx LLP
Metro Corporate Campus One
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: W. Xxxxxxx Xxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
7.9 Expenses. The Company and the Purchaser each shall pay all costs
and expenses that it incurs in connection with the negotiation, execution,
delivery and performance of this Agreement; provided, however, that the Company
shall reimburse the Purchaser for legitimate and itemized legal fees and
expenses incurred by it in connection with its due diligence investigation of
the Company
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and the negotiation, preparation, execution, delivery and performance of this
Agreement and the other Transaction Documents in an amount not to exceed
Twenty-Five Thousand Dollars ($25,000).
7.10 Entire Agreement; Amendments. This Agreement and the other
Transaction Documents constitute the entire agreement between the parties with
regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or among the
parties. Notwithstanding the foregoing, Sections 1 and 2 of the certain letter
between Xxxxxxxx, Xxxxxxxx & Co., L.P. and the Company, dated November 5, 1999,
remain in full force and effect. Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and the Purchaser and no provision hereof may
be waived other than by a written instrument signed by the party against whom
enforcement of any such waiver is sought.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
FIBR HOLDINGS, LLC OSICOM TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Phanslkar By: /s/ Xxxxxxxxxxx X. Xxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Phanslkar Name: Xxxxxxxxxxx X. Xxx
------------------------------- ----------------------------------
Title: Manager Title: Vice President Finance, Secretary
------------------------------ ---------------------------------
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