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EXHIBIT 10.53
EXECUTION COPY
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WARRANT AGREEMENT
DATED AS OF NOVEMBER 24, 2000
BY AND BETWEEN
INSIGNIA SOLUTIONS PLC
AND
JEFFERIES & COMPANY, INC.
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Morgan, Lewis & Bockius LLP
New York, New York
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TABLE OF CONTENTS
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1. ISSUANCE OF WARRANTS....................................................................................1
(a) Issuance of Warrants...........................................................................1
(b) Closing Date...................................................................................1
2. JEFFERIES' REPRESENTATIONS AND WARRANTIES...............................................................1
(a) Investment Purpose.............................................................................1
(b) Reliance on Exemptions.........................................................................1
(c) Legends........................................................................................2
(d) Authorization, Enforcement.....................................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................2
(a) Authorization; Enforcement.....................................................................3
(b) Capitalization.................................................................................3
(c) Issuance of Shares.............................................................................3
(d) No Conflicts...................................................................................4
(e) No Integrated Offering.........................................................................4
4. COVENANTS...............................................................................................5
(a) Commercially Reasonable Efforts................................................................5
(b) Blue Sky Laws..................................................................................5
(c) Reporting Status...............................................................................5
(d) Expenses.......................................................................................5
(e) Listing........................................................................................5
(f) Corporate Existence............................................................................6
(h) Registration Rights............................................................................6
5. TRANSFER AGENT INSTRUCTIONS.............................................................................6
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE.........................................................6
(a) Delivery of Agreements.........................................................................7
(b) Representations and Warranties of Jefferies....................................................7
(c) No Litigation..................................................................................7
(d) Proceeds.......................................................................................7
7. CONDITIONS TO JEFFERIES' PROCEEDING WITH THE CLOSING....................................................7
(a) Delivery of Agreements.........................................................................7
(b) Delivery of Warrants...........................................................................7
(c) Company Representations and Warranties; Certificates...........................................7
(d) No Litigation..................................................................................7
(e) Warrant Shares Listing.........................................................................8
(f) Opinion of Counsel.............................................................................8
(g) Other Documents and Opinions...................................................................8
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TABLE OF CONTENTS
(CONTINUED)
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8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS...................................................8
9. INDEMNIFICATION.........................................................................................8
10. GOVERNING LAW; MISCELLANEOUS............................................................................8
(a) Governing Law..................................................................................8
(b) Counterparts; Signatures by Facsimile..........................................................8
(c) Headings.......................................................................................9
(d) Severability...................................................................................9
(e) Specific Performance...........................................................................9
(f) Entire Agreement; Amendments...................................................................9
(g) Notices........................................................................................9
(h) Successors and Assigns........................................................................10
(j) Publicity.....................................................................................11
(k) Further Assurances............................................................................11
(l) Limited Recourse..............................................................................11
(m) Waiver........................................................................................11
(n) No Strict Construction........................................................................11
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WARRANT AGREEMENT
WARRANT AGREEMENT (this "AGREEMENT"), dated as of November 24, 2000, by
and between Insignia Solutions plc, a company incorporated under the laws of
England and Wales whose registered office is at Insignia House, The Mercury
Center, Wycombe Lane, Wooburn Green, High Wycombe, Bucks, HP10 OHH but operating
from premises, located at 41300 Christy Street, Fremont, California 94538 (the
"COMPANY"), and Jefferies & Company, Inc., a Delaware corporation ("JEFFERIES").
WHEREAS, Jefferies is acquiring warrants (the "WARRANTS") to subscribe
for an additional 225,000 American depositary shares (the "ADSs"), each ADS
representing one ordinary share of the Company, nominal value 20 pence per share
(the "ORDINARY SHARES"), in the aggregate (such additional ADSs in the aggregate
issuable from time to time upon exercise of the Warrants, collectively the
"WARRANT SHARES") from the Company in the form attached hereto as EXHIBIT A, as
partial compensation for acting as placement agent in connection with the issue
of those ADSs pursuant to certain Subscription Agreements, dated November 22,
2000 (the "SUBSCRIPTION AGREEMENTS"), among the Company and the signatories
thereto.
NOW, THEREFORE, the Company and Jefferies severally, and not jointly,
hereby agree as follows:
1. ISSUANCE OF WARRANTS.
(a) ISSUANCE OF WARRANTS. On the Closing Date (as
hereinafter defined), the Company shall issue and deliver to Jefferies the
Warrants exercisable to subscribe for an aggregate of 225,000 Warrant Shares. On
the Closing Date, the Company shall deliver to Jefferies one or more
certificates evidencing such Warrants.
(b) CLOSING DATE. The completion of the issuance of the
Warrants (the "CLOSING") shall occur at a place and time (the "CLOSING DATE") to
be specified by the Company and Jefferies following the satisfaction or waiver
of all conditions or obligations of Jefferies and the Company as set forth in
Sections 6 and 7.
2. JEFFERIES' REPRESENTATIONS AND WARRANTIES. Jefferies
represents and warrants to the Company:
(a) INVESTMENT PURPOSE. As of the date hereof, Jefferies
is acquiring the Warrants and, upon exercise of the Warrants in whole or in
part, the Warrant Shares for its own account for investment only and not with a
present view towards the public sale or distribution thereof, except pursuant to
sales registered or exempted from registration under the Securities Act of 1933,
as amended (the "SECURITIES ACT").
(b) RELIANCE ON EXEMPTIONS. Jefferies understands that
the Warrants are being offered to it in reliance upon specific exemptions from
the registration requirements of United States of America, federal and state
securities laws and that the Company is relying upon
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the truth and accuracy of, and Jefferies' compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Jefferies set
forth herein in order to determine the availability of such exemptions and the
eligibility of Jefferies to acquire the Warrants.
(c) LEGENDS. Jefferies understands that the Warrants, and
until such time as the Warrant Shares have been registered under the Securities
Act as contemplated herein, the certificates issued by the Company in respect of
the Warrant Shares shall bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of the
certificates for such Warrant Shares):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States of
America. The securities have been acquired for investment and
may not be sold, hypothecated, transferred or assigned in the
absence of an effective registration statement for the
securities under said Act or applicable state securities laws,
or an opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, that registration is not
required under said Act or applicable state securities laws,
or unless sold pursuant to Rule 144 under said Act.
Notwithstanding the foregoing, this security may be pledged in
connection with a bona fide margin account."
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Warrant Shares upon which
it is stamped, if, unless otherwise required by applicable state securities
laws, (a) such Warrant Shares are registered for sale under an effective
registration statement filed under the Securities Act and disposed of in a BONA
FIDE sale, (b) such holder provides the Company with an opinion of counsel, in
form, substance and scope reasonably acceptable to the Company, to the effect
that a public sale or transfer of such Warrant Shares may be made without
registration under the Securities Act and such sale or transfer is effected or
(c) such holder provides the Company with reasonable assurances that such
Warrant Shares can be sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) without any restriction as to the number of Warrant
Shares acquired as of a particular date that can then be immediately sold.
Jefferies agrees to sell all Warrant Shares, including those represented by a
certificate(s) from which the legend has been removed, in compliance with
applicable prospectus delivery requirements, if any (including any amendment to
any of the foregoing).
(d) AUTHORIZATION, ENFORCEMENT. This Agreement has been
duly and validly authorized, executed and delivered on behalf of Jefferies and
is valid and binding agreement of Jefferies enforceable in accordance with their
terms.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except (1) as
otherwise set forth below; (2) as set forth in the form of the Subscription
Agreement attached hereto as EXHIBIT B and incorporating herein Section 4
thereof; (3) as set forth in the Private Placement Memorandum, dated November
16, 2000 (the "MEMORANDUM"), attached hereto as EXHIBIT C; and (4) as disclosed
in the disclosure schedule to this Agreement and the
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disclosure schedules to Section 4 of the Subscription Agreement (the "DISCLOSURE
SCHEDULE"), all of which, together with the Memorandum, qualifies the following
representations and warranties in their entirety, the Company hereby represents
and warrants to, and covenants with, Jefferies, as follows:
(a) AUTHORIZATION; ENFORCEMENT. (1) The Company has all
requisite corporate power to enter into and perform this Agreement and the
Warrants and to consummate the transactions contemplated hereby and thereby and
to issue the Warrants, in accordance with the terms hereof; (2) the execution
and delivery of this Agreement and the Warrants by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its shareholders is
required; (3) this Agreement has been duly executed and delivered; and (4) this
Agreement constitutes and the Warrants will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with their terms.
(b) CAPITALIZATION. As of November 22, 2000, the
authorized share capital of the Company consists of 30,000,000 (thirty million)
Ordinary Shares, of 20 pence each and 3,000,000 (three million) Preferred Shares
of 20 pence each, of which 14,283,050 Ordinary Shares are issued and
outstanding, duly authorized, validly issued, fully paid and nonassessable. The
issued and outstanding Ordinary Shares, ADSs issued and outstanding options,
warrants and other securities entitling the holders to subscribe for or
otherwise acquire Ordinary Shares as set forth in Schedule 4.4 to the
Subscription Agreement have been duly authorized and validly issued. None of the
issued and outstanding Ordinary Shares, ADSs or options, warrants and other such
securities has been issued in violation of the preemptive rights of any
shareholder of the Company. The issued and outstanding Ordinary Shares, ADSs and
options, warrants and other rights to acquire Ordinary Shares or ADSs were at
all relevant times either registered under the Securities Act and applicable
state securities laws of the United States of America or exempt from such
requirements.
(c) ISSUANCE OF SHARES. On the Closing Date, the Warrants
will be duly authorized, validly issued, free and clear of all liens and
encumbrances, and will not subject the holder thereof to personal liability by
reason of being such holder. Upon exercise of the Warrants, in whole or, from
time to time, in part, and upon payment of the exercise price therefor, in
accordance with the terms of the Warrants, Jefferies will acquire good and
marketable title to the Warrant Shares, free and clear of all liens and
encumbrances, and such Warrant Shares shall be validly issued, fully paid and
non-assessable, and will not subject thereof to personal liability by reason of
being such holder. There are no preemptive or similar rights of any shareholder
of the Company or any other person to acquire any of the Warrants or Warrant
Shares. The issued ADSs are listed for trading on the NASDAQ National Market
(the "NASDAQ") and, except as set forth on the Disclosure Schedule and the
Memorandum, (1) the Company and the issued ADSs meet the criteria for continued
listing and trading on the NASDAQ; (2) the Company has not been notified since
January 1, 1996 by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASDAQ of any failure or potential failure to meet the criteria
for continued listing and trading on the NASDAQ; (3) no suspension of trading in
the issued ADSs is in
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effect; and (4) the Company does not reasonably anticipate that the issued ADSs
will be delisted by the NASDAQ in the foreseeable future. The Company knows of
no reason that the issued ADSs will not be eligible for listing on the NASDAQ.
(d) NO CONFLICTS. Except as set forth on the Disclosure
Schedule and the Memorandum, the execution, delivery and performance of this
Agreement and the Warrants by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby will not (i) conflict with or
result in a violation of any provision of the Memorandum of Association of the
Company or (ii) violate or conflict with, or result in a breach of any provision
of, or constitute a default (or an event which with notice or lapse of time or
both could become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any Subsidiary (as defined below) is a party,
or result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or any Subsidiary or by which any property or asset of the Company or
any Subsidiary is bound or affected, except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect (as
defined below). Neither the Company nor any Subsidiary is in violation of its
Memorandum of Association or Certificate of Incorporation, Certification of
Incorporation, By-laws or other organizational documents and neither the Company
nor any Subsidiary is in default, and no event has occurred which with notice or
lapse of time or both could put the Company or any Subsidiary in default, under,
and neither the Company nor any Subsidiary has taken any action or failed to
take an action that would give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture instrument to which
the Company or any Subsidiary is a party or by which any property or assets of
the Company or any Subsidiary is bound or affected, except for possible defaults
as would not, individually or in the aggregate, have a Material Adverse Effect.
Except as specifically contemplated by this Agreement and as required under the
Securities Act and any applicable state securities laws, the Company is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or
regulatory agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or the Warrants in accordance with the terms
hereof or thereof. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof. The
Company and its Subsidiaries are unaware of any facts or circumstances which
might give rise to any of the foregoing. "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, operations, assets, financial condition
or prospects of the Company or any of its Subsidiaries, if any, taken as a
whole, or on the transactions contemplated hereby or by the agreements or
instruments to be entered into in connection herewith. "SUBSIDIARY" means any
corporation or other organization, whether incorporated or unincorporated, in
which the Company owns, directly or indirectly, any equity or other ownership
interest.
(e) NO INTEGRATED OFFERING. Neither the Company, nor any
of its Subsidiaries, nor any person acting on its or their behalf, has directly
or indirectly made any offers or sales in any security or solicited any offers
to buy any security under circumstances that would require registration under
the Securities Act of the issuance of the Warrants and the Warrant Shares to
Jefferies. The issuance of the Warrants and the Warrant Shares to
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Jefferies will not be integrated with any other issuance of the Company's
securities (past, current or future) which requires shareholder approval under
the rules of the NASDAQ.
4. COVENANTS.
(a) COMMERCIALLY REASONABLE EFFORTS. The parties shall
use their commercially reasonable efforts to satisfy timely each of the
conditions described in Sections 6 and 7 of this Agreement.
(b) BLUE SKY LAWS. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably determine is
necessary to qualify the Warrant Shares for issuance to Jefferies at the Closing
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States of America (or to obtain an exemption from such
qualification), and shall provide evidence of any such action so taken to
Jefferies on or prior to the Closing Date.
(c) REPORTING STATUS. The Company's issued and
outstanding ADSs are registered under Section 12(b) of the Exchange Act of 1934,
as amended (the "EXCHANGE ACT"). Until such time as Jefferies may sell the
Warrant Shares under Rule 144 of the Securities Act, so long as Jefferies
beneficially owns any of the Warrant Shares, the Company shall timely file all
reports required to be filed with the Securities and Exchange Commission (the
"SEC") pursuant to the Exchange Act, and the Company shall not terminate its
status as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would permit such
termination.
(d) EXPENSES. In accordance with that certain Letter
Agreement dated August 18, 2000, by and between the Company and Jefferies, the
Company shall reimburse Jefferies for all reasonable expenses incurred by them
in connection with the negotiation, preparation, execution, delivery and
performance of this Agreement and the other agreements to be executed in
connection therewith (without duplication under related agreements) including,
without limitation, reasonable attorneys' and consultants' fees and expenses.
(e) LISTING. The Company shall promptly secure the
listing of the Warrant Shares upon each national securities exchange or
automated quotation system, if any, upon which shares of ADSs are then listed
(subject to official notice of issuance) and shall maintain, so long as any
other shares of ADSs shall be so listed, such listing of all Warrant Shares. The
Company will maintain the listing and trading of its ADSs on the NASDAQ and will
comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the NASD and such exchanges, as
applicable. The Company shall promptly provide to Jefferies copies of any
notices it receives from the NASDAQ or NASD and any other exchanges or quotation
systems on which the ADSs are then listed or quoted regarding the continued
eligibility of the ADSs for listing or quotation on such exchanges and quotation
systems.
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(f) CORPORATE EXISTENCE. So long as Jefferies
beneficially owns any Warrant Shares, the Company shall maintain its corporate
existence and shall not sell all or substantially all of the Company's assets,
except in the event of a merger or consolidation or sale of all or substantially
all of the Company's assets, where the surviving or successor entity in such
transaction (i) assumes the Company's obligations hereunder and under the
agreements and instruments entered into in connection herewith and (ii) is a
publicly traded corporation whose Common Stock is listed for trading on Nasdaq
National Market, Nasdaq SmallCap, the New York Stock Exchange or the AMEX.
(g) RESERVATION OF ORDINARY SHARES. The Company will at
all times have authorized, and reserve and keep available, free from preemptive
rights, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon the exercise of the Warrants, the maximum number of shares
of ADSs then deliverable upon immediate exercise of all outstanding Warrants.
(h) REGISTRATION RIGHTS. The Company shall register the
resale of the Warrant Shares on the registration statement the Company agrees to
file pursuant to the Subscription Agreements. The terms and conditions of the
registration contained in those Subscription Agreements are incorporated herein
by reference and shall be deemed to be made herein.
5. TRANSFER AGENT INSTRUCTIONS. The Company shall issue
irrevocable instructions to its transfer agent to issue certificates, registered
in the name of Jefferies or its nominee, upon payment of the exercise price
specified in the Warrant for the Warrant Shares, in such amounts as specified
from time to time by Jefferies to the Company (the "IRREVOCABLE TRANSFER AGENT
INSTRUCTIONS"). The Company warrants that no instruction other than the
Irrevocable Transfer Agent Instructions (referred to in this Section 5) will be
given by the Company to its transfer agent and that the Warrant Shares shall
otherwise be freely transferable on the books and records of the Company as and
to the extent provided in this Agreement; and in compliance with all applicable
laws. If Jefferies provides the company with an opinion of counsel, reasonably
satisfactory to the Company in form, substance and scope, that registration of a
resale by Jefferies of any of the Warrant Shares is not required under the
Securities Act, the Company shall permit the transfer. The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to
Jefferies, by vitiating the intent and purpose of the transaction contemplated
hereby. Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Section 5 will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the provisions of
this Section, that Jefferies shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach and requiring
immediate transfer, without the necessity of showing economic loss and without
any bond or other security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE. The
obligation of the Company hereunder to issue the Warrants to Jefferies at the
Closing is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions thereto, provided that these conditions are for the
Company's sole benefit and may be waived by the Company in writing at any time
in its sole discretion:
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(a) DELIVERY OF AGREEMENTS. Jefferies shall have executed
this Agreement and delivered the same to the Company.
(b) REPRESENTATIONS AND WARRANTIES OF JEFFERIES. The
representations and warranties of Jefferies shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date), and Jefferies shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by Jefferies at or
prior to the Closing Date.
(c) NO LITIGATION. No litigation, statute, rule,
regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by or in any court or governmental
authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the consummation
of any of the transactions contemplated by this Agreement.
(d) PROCEEDS. The Company shall have received the
aggregate proceeds from the sale of ADSs pursuant to the Subscription
Agreements.
7. CONDITIONS TO JEFFERIES' PROCEEDING WITH THE CLOSING.
Jefferies' proceeding with the Closing is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for Jefferies' sole benefit and may be waived in writing by
Jefferies at any time in its sole discretion:
(a) DELIVERY OF AGREEMENTS. The Company shall have
executed this Agreement and delivered the same to Jefferies.
(b) DELIVERY OF WARRANTS. The Company shall have
delivered to Jefferies duly executed certificates (in such denominations as
Jefferies shall request) representing the Warrants in accordance with Section
1(a) above.
(c) COMPANY REPRESENTATIONS AND WARRANTIES; CERTIFICATES.
The representations and warranties of the Company and its Subsidiaries shall be
true and correct in all material respects as of the date when made and as of the
Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date.
(d) NO LITIGATION. No litigation, statute, rule,
regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by or in any court or governmental
authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the consummation
of any of the transactions contemplated by this Agreement.
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(e) WARRANT SHARES LISTING. Evidence of the application
for listing the Warrant Shares on NASDAQ shall have been delivered to Jefferies,
if applicable, and trading in the ADSs on NASDAQ shall not have been suspended
by the SEC or NASDAQ.
(f) OPINION OF COUNSEL. Jefferies shall have received an
opinion of the Company's counsel, dated as of the Closing Date, in form, scope
and substance reasonably satisfactory to Jefferies.
(g) OTHER DOCUMENTS AND OPINIONS. Jefferies shall have
received such other documents, certificates and opinions, in form and substance
reasonably satisfactory to Jefferies and its counsel, relating to matters
incident to the transactions contemplated hereby as Jefferies may reasonably
request.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION.
(a) SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. The representations, warranties, covenants and agreements of the
Company and Jefferies contained in this Agreement, or in any document or
certificate delivered pursuant hereto or thereto or in connection herewith shall
survive the Closing Date. All statements contained in any certificate or other
document delivered by or on behalf of the Company pursuant hereto shall
constitute representations and warranties by the Company hereunder
(b) INDEMNIFICATION. The Company agrees, so far as it is
lawfully able to do so, to indemnify and hold Jefferies harmless from and
against, and will pay to Jefferies (including their affiliates and their
respective officers, directors, agents, attorneys, employees and
representatives) the full amount of any loss, damage, liability, penalties or
expense (including amounts paid in settlement and reasonable attorneys' fees and
expenses) to Jefferies resulting either directly or indirectly from any breach
of the representations, warranties, covenants or agreements of the Company
contained in this Agreement, the Subscription Agreements or any other document
or certificate delivered pursuant hereto or thereto or in connection herewith or
therewith.
9. GOVERNING LAW; MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of New York without
regard to the principles of conflict of laws. The parties hereto hereby submit
to the exclusive jurisdiction of the United States of America federal courts
located in New York, New York with respect to any dispute arising under this
Agreement, the agreements entered into in connection herewith or the
transactions contemplated hereby or thereby.
(b) COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement
may be executed in two or more counterparts, all of which shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the
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other party. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement bearing
the signature of the party so delivering this Agreement.
(c) HEADINGS. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) SEVERABILITY. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
(e) SPECIFIC PERFORMANCE. The parties agree that
irreparable damage will result in the event that this Agreement is not
specifically enforced, and the parties agree that any damages available at law
for a breach of this Agreement would not be an adequate remedy. Therefore, the
provisions hereof and the obligations of the parties hereunder shall be
enforceable in a court of equity, or other tribunal with jurisdiction, by a
decree of specific performance, and appropriate injunctive relief may be applied
for and granted in connection therewith. Such remedies and all other remedies
provided for in this Agreement shall, however, be cumulative and not exclusive
and shall be in addition to any other remedies which a party may have under this
Agreement or otherwise.
(f) ENTIRE AGREEMENT; AMENDMENTS. Except for the Letter
Agreement, dated August 18, 2000, between the Company and Jefferies, this
Agreement and the agreements, instruments, exhibits and schedules referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor Jefferies makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
(g) NOTICES. Any notices required or permitted to be
given under the terms of this Agreement shall be sent by certified or registered
mail (return receipt requested) or delivered personally or by courier (including
a recognized overnight delivery service) or by facsimile and shall be effective
five (5) days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
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If to the Company:
Insignia Solutions, plc
41300 Christy Street
Fremont, California 94538-3115
Attention: Mr. Richard M. Noling
Facsimile: (510) 360-3702
With a copy to:
Baker & McKenzie
660 Hansen Way
Post Office Box 60309
Palo Alto, California 94304
Attention: Corinna Wong, Esq.
Facsimile: (650) 856-9299
If to Jefferies:
Jefferies & Company, Inc.
11100 Santa Monica Blvd., Suite 1100
Los Angeles, California 90025
Attention: Secretary
Facsimile: (310) 914-1300
With a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attention: Robert G. Robison, Esq.
Facsimile: (212) 309-6273
Each party shall provide notice to the other party of any
change in address.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
assigns. Neither the Company nor Jefferies shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, Jefferies may assign its rights hereunder to any
person that purchases the Warrants, and, upon exercise in whole or in part of
the Warrant, the Warrant Shares in a private transaction from Jefferies or to
any of its "affiliates," as that term is defined under the Exchange Act, without
the consent of the Company.
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(i) THIRD PARTY BENEFICIARIES. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
(j) PUBLICITY. The Company and Jefferies shall have the
right to review a reasonable period of time before issuance of any press
releases, SEC, NASDAQ, or NASD filings, or any other public statements with
respect to the transactions contemplated hereby; provided, however, that the
Company shall be entitled, without the prior approval of Jefferies, to make any
press release or SEC, NASDAQ, or NASD filings with respect to such transactions
as is required by applicable law and regulations (although Jefferies shall be
consulted by the Company in connection with any such press release prior to its
release and shall be provided with a copy thereof and be given an opportunity to
comment thereon).
(k) FURTHER ASSURANCES. Each party shall do and perform,
or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) LIMITED RECOURSE. Notwithstanding anything in this
Agreement or any other document, agreement or instrument contemplated hereby or
thereby to the contrary, the obligations of Jefferies hereunder shall be without
recourse to any partner, affiliate of Jefferies or their respective partners, or
any other respective officers, directors, employees or agents and shall be
limited to the assets of Jefferies.
(m) WAIVER. Any term or condition of this Agreement may
be waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
(n) NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
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IN WITNESS WHEREOF, the undersigned Jefferies and the Company have
caused this Agreement to be duly executed as of the date first above written.
INSIGNIA SOLUTIONS plc
By:_________________________________________
Name:
Title:
JEFFERIES & COMPANY, INC.
By:_________________________________________
Name:
Title:
[Signature Page to Warrant Agreement]
