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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
International CompuTex, Inc.
(Name of Issuer)
Common Stock, Par Value $.001 Per Share
(Title of Class of Securities)
4 59337 10 1
(CUSIP Number)
Thybo New Ventures Limited With a copy to
Par La Ville Place Robert Rosenman
14 Par La Ville Road Cravath, Swaine & Moore
Hamilton HM JK Bermuda 825 Eighth Avenue
New York, New York 10019
(212) 474-1300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 29, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3)
or (4), check the following box |_|.
NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
Continued on following pages
Page 1 of 41 pages
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<PAGE>
SCHEDULE 13D
CUSIP No. 4 59337 10 1 Page 2 of 41 Pages
1 Name of Reporting Persons. I.R.S. Identification Nos. of Above
Persons (entities only).
Thybo New Ventures Limited
2 Check the Appropriate Box If a Member of a Group (See Instructions) (a)|_|
(b)|_|
3 SEC Use Only
4 Source of Funds (See Instructions)
OO
5 Check If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) |_|
6 Citizenship or Place of Organization
Bermuda
7 Sole Voting Power
0 Shares
8 Shared Voting Power
0 Shares
9 Sole Dispositive Power
300,000 shares
10 Shared Dispositive Power
0 Shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person 300,000 Shares
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares |_|
(See Instructions)
13 Percent of Class Represented by Amount in Row (11) 8.44%
14 Type of Reporting Person (See Instructions)
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 4 59337 10 1 Page 3 of 41 Pages
1 Name of Reporting Persons. I.R.S. Identification Nos. of Above
Persons (entities only).
Thyssen - Bornemisza Continuity Trust
2 Check the Appropriate Box If a Member of a Group (See Instructions)(a)|_|
(b)|_|
3 SEC Use Only
4 Source of Funds (See Instructions) Not Applicable
5 Check If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) |_|
6 Citizenship or Place of Organization
Bermuda
7 Sole Voting Power
0 Shares
8 Shared Voting Power
0 Shares
9 Sole Dispositive Power
0 Shares
10 Shared Dispositive Power
0 Shares
11 Aggregate Amount Beneficially Owned by Each Reporting Person 300,000 Shares
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares |_|
(See Instructions)
13 Percent of Class Represented by Amount in Row (11) 8.44%
14 Type of Reporting Person (See Instructions)
OO
<PAGE>
Page 4 of 41 Pages
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the Common Stock,
par value $.001 per share ("Common Stock"), of International CompuTex,
Inc. (the "Issuer"), a Georgia corporation. The address of the
principal executive offices of the Issuer is 5500 Interstate North
Parkway, Suite 507, Atlanta, Georgia 30328.
Item 2. Identity and Background.
(a), (b), (d) and (f). This statement on Schedule 13D is
filed on behalf of Thybo New Ventures Limited, a Bermuda corporation
("Thybo"), and Thyssen-Bornemisza Continuity Trust, a Bermuda trust
(the "Trust"), which ultimately controls Thybo. The address at which
Thybo conducts its business and where its principal executive offices
are located is Par La Ville Place, 14 Par La Ville Road, Hamilton HM
JK Bermuda. Thybo's principal business is investing in other
companies. The address of the Trust's principal business and principal
office is at Clarendon House, Church Street, Hamilton, Bermuda. The
Trust's principal business is holding the assets of the Trust, which
consist of operating companies, management companies and investment
companies worldwide. The trustee of the Trust is Thybo Trustees
Limited (the "Trustee"), whose registered office is also at Clarendon
House, Church Street, Hamilton, Bermuda. The directors of Tornabuoni
Limited, a Guernsey corporation, have the power to appoint and remove
directors of the Trustee, but have no other control with respect to
the Trust.
The name, address, citizenship, present principal occupation
or employment and business address of each executive officer and
director of Thybo and the Trustee is set forth on Schedule I hereto
and is incorporated by reference herein.
(d) and (e). Neither Thybo nor the Trust, nor, to the best
knowledge of Thybo and the Trust, any of the persons listed on
Schedule I hereto, during the last five years, has been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment,
<PAGE>
Page 5 of 41 Pages
decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The funds for the acquisition of the Common Stock were
provided through the cash assets of Thybo.
Item 4. Purpose of Transaction.
Thybo has acquired the Common Stock for the purpose of
investment.
Thybo acquired the Common Stock pursuant to a Common Stock
Purchase Agreement dated January 29, 1998 between Thybo and the Issuer
(the "Purchase Agreement"). Pursuant to the Purchase Agreement, Thybo
appointed Haim E. Dahan, the Chief Executive Officer of the Issuer
("Dahan"), as its proxy and attorney-in-fact to vote or otherwise act
with respect to the Common Stock on behalf of Thybo in all respects in
connection with any matter on which shareholders are entitled to vote
or consent. Dahan's voting rights under the Purchase Agreement expire
on the earlier of (i) February 2, 2000, (ii) the date on which Thybo
and its "Affiliates", as such term is defined in the Securities Act,
on a collective basis beneficially own less than 150,000 shares of the
Common Stock or (iii) the death or incapacity of Dahan. Dahan can
exercise such voting rights in his exclusive discretion.
The Purchase Agreement is filed as Exhibit 1 hereto and is
incorporated by reference herein.
Except as set forth herein, neither Thybo nor the Trust has
any plans or proposals that would relate to or result in any action
which would be required to be disclosed pursuant to this Item 4.
Item 5. Interest in Securities of the Issuer.
(a) and (b). Thybo beneficially owns 300,000 shares of
Common Stock, which constitute approximately 8.44% of the Common Stock
of the Issuer outstanding. Pursuant to the terms of the voting rights
granted to Dahan under the Purchase Agreement described in Item 4 of
this statement
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Page 6 of 41 Pages
on Schedule 13D, Thybo has no voting power with respect to the Common
Stock. Thybo has sole dispositive power with respect to 300,000 shares
of Common Stock. The Trust, as the entity ultimately in control of
Thybo, may be deemed to be the indirect beneficial owner of, but has
no voting power or dispositive power with respect to, the 300,000
shares of Common Stock owned by Thybo.
(c). On February 2, 1998, Thybo acquired 300,000 shares of
Common Stock at a price of $9.50 per share in a private placement
transaction. Except for the February 2, 1998 acquisition, neither
Thybo nor the Trust, nor, to the best knowledge of Thybo and the
Trust, any of the persons listed on Schedule I hereto, has effected
any transaction in the Common Stock in the past 60 days.
(d). None.
(e). Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
the Issuer.
Reference is made to the description of the agreements and
understandings in Item 4 of this statement on Schedule 13D. Except as
indicated herein, there are no contracts, arrangements, understandings
or relationships (legal or otherwise) among the Trust, Thybo and the
persons listed on Schedule I hereto or between the Trust or Thybo or,
to the best knowledge of the Trust and Thybo, any of the persons
listed on Schedule I hereto, on the one hand, and any other persons,
on the other hand, with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Common Stock Purchase Agreement dated
January 29, 1998 between
International CompuTex, Inc. and
Thybo New Ventures Limited.
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Page 7 of 41 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
Dated: February 6, 1998
THYBO NEW VENTURES LIMITED,
By /s/ Johannes A.M. Vijverberg
---------------------------------
Name: Johannes A.M. Vijverberg
Title: President
THYBO TRUSTEES LIMITED (as
Trustee of the THYSSEN-
BORNEMISZA CONTINUITY TRUST),
By /s/ Frank Mutch
----------------------
Name: Frank Mutch
Title: Director
<PAGE>
Page 8 of 41 Pages
INDEX TO EXHIBITS
Exhibit No. Description Page
----------- ----------- ----
1 Common Stock 11
Purchase Agreement
dated January 29,
1998 between
International
CompuTex, Inc. and
Thybo New Ventures
Limited.
<PAGE>
page 9 of 41 pages
SCHEDULE I
The following is a list of the directors and executive
officers of Thybo and the Trustee, setting forth the residence or
business address, citizenship, principal occupation or employment and
the name, principal business and address of any corporation or other
organization in which such employment is conducted for each such
person.
A. Directors and Executive Officers of Thybo
Present Principal Occupation
Name, Title and Address Citizenship and Business Address
- ----------------------- ----------- ----------------------------
Johannes A. M. Vijverberg Dutch President
Director and President Thybo Investments
c/o TBG Management SAM c/o TBG Management SAM
29 BD Princess Charlotte 29 Bd Princess Charlotte
MC 98007 Monaco MC 98007 Monaco
Carl Hughes British Executive Director
Director, Assistant Treasurer and Thybo Investments
Assistant Secretary c/o TBG Management SAM
c/o TBG Management SAM 29 BD Princess Charlotte
29 Bd Princess Charlotte MC 98007 Monaco
MC 98007 Monaco
Frank Mutch British Attorney
Director and Assistant Secretary Conyers, Dill & Pearman
c/o Conyers, Dill & Pearman P.O. Box HM 666
P.O. Box HM 666 Clarendon House
Clarendon House Church Street
Church Street Hamilton HM CX
Hamilton HM CX Bermuda
Bermuda
Arthur E. M. Jones British Chief Financial Officer
Director and Vice President Consolidated Group of
Par La Ville Place Companies
14 Par La Ville Road Par la Ville Place
Hamilton, Bermuda 14 Par La Ville Road
Hamilton, Bermuda
<PAGE>
page 10 of 41 pages
B. Directors and Executive Officers of the Trustee
Present Principal Occupation
Name, Title and Address Citizenship and Business Address
- ----------------------- ----------- -----------------------------
Arne Hovdesven U.S.A. Retired
Director and President
1425 Regatta Drive
Wilmington, North Carolina
Frank Mutch British Attorney
Director Conyers, Dill & Pearman
c/o Conyers, Dill & Pearman P.O. Box HM 666
P.O. Box HM 666 Clarendon House
Clarendon House Church Street
Church Street Hamilton HM CX
Hamilton HM CX Bermuda
Bermuda
Eric P. Pfaff British Attorney
Director, Vice President and Maitland & Co.
Assistant Secretary 44-48 Dover Street (5th Floor)
Maitland & Co. London W1X 3RF
44-48 Dover Street (5th Floor) England
London W1X 3RF
England
Cummings V. Zuill British Vice President of the Bank of
Director and Vice President Bermuda.
The Bank of Bermuda Limited The Bank of Bermuda Limited
6, Front Street 6, Front Street
Hamilton 5-31 Hamilton 5-31
Bermuda Bermuda
<PAGE>
EXHIBIT 1
Page 11 of 41 Pages
COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is
made as of January 29, 1998 by and between
International CompuTex, Inc., a Georgia corporation
("Seller"), and Thybo New Ventures Limited, a Bermuda
corporation ("Purchaser").
The parties hereby agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
SECTION 1.01. Sale and Issuance of Common Stock. Subject to
the terms and conditions of this Agreement, Purchaser agrees to
purchase at the Closing and Seller agrees to issue and sell to
Purchaser at the Closing 300,000 shares (the "Shares") of Seller's
Common Stock, par value $0.001 per share (the "Common Stock") at a
purchase price of $2,850,000 ($9.50 per share).
SECTION 1.02. Closing. (a) The purchase and sale of the
Shares shall take place via telecopy on February 2, 1998 at 10:00 a.m.
New York City time, or at such other time as Seller and the Purchaser
mutually agree upon, orally or in writing (which time and place are
designated as the "Closing"). At the Closing, Seller shall deliver to
the Purchaser certificates representing the Shares being purchased
hereby against delivery by the Purchaser to Seller of the purchase
price therefor by wire transfer payable in same-day funds to an
account specified by Seller. Delivery shall be made through the
facilities of the Depository Trust Company unless Purchaser shall
otherwise instruct.
ARTICLE II
Representations and Warranties of Seller
Seller hereby represents and warrants to the Purchaser that:
SECTION 2.01. Organization, Good Standing and Qualification.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia and has all requisite
corporate power and authority to carry on its business as now
conducted and as proposed to be conducted. Seller is duly qualified to
transact business and is in good standing in each
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page 12 of 41 pages
jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties. Seller does not
have any subsidiaries.
SECTION 2.02. Capitalization. The authorized capital of
Seller consists, or will consist, immediately prior to the Closing,
of:
(a) Common Stock. 20,000,000 shares of Common Stock, of
which 3,250,690 shares are issued and outstanding.
(b) Options and Warrants. Except for (i) options issued or
issuable for an aggregate of 499,310 shares of Common Stock
under the 1995 Restricted Non-qualified Incentive Stock
Option Plan, dated August 1, 1995, and the 1996 Stock Option
Plan, dated December 20, 1996, as proposed to be amended,
and (ii) the Warrant dated May 5, 1997 to purchase 112,500
shares of Common Stock issued pursuant to the Underwriting
Agreement dated April 29, 1997, there are no outstanding
options, warrants, rights (including conversion or
preemptive rights) or agreements, orally or in writing, for
the purchase or acquisition from Seller of any shares of its
capital stock (the rights and options in clauses (i) and
(ii) above being collectively called the "Existing Equity
Rights"). There exist no rights of first refusal or similar
rights in respect of shares of Seller's capital stock issued
or sold by Seller.
SECTION 2.03. Authorization. All corporate action on the
part of Seller, its officers, directors and shareholders necessary for
the authorization, execution and delivery of this Agreement, the
performance of all obligations of Seller hereunder and the
authorization, issuance and delivery of the Shares has been taken or
will be taken prior to the Closing, and the Agreement, when executed
and delivered by Seller, shall constitute a valid and legally binding
obligation of Seller, enforceable against Seller in accordance with
its terms.
SECTION 2.04. Valid Issuance of Shares. The Shares being
issued to Purchaser hereunder, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable
and free of restrictions on transfer other than restrictions on
transfer under this Agreement and applicable state and federal
securities laws and not subject to any preemptive rights of others.
The issued and outstanding shares of Seller's Common Stock are duly
and validly issued, fully paid and nonassessable and
<PAGE>
page 13 of 41 pages
have been issued in compliance with applicable state and
federal securities laws and are approved for quotation on the Nasdaq
National Market ("NNM") under the symbol "ICIQ". Based in part upon
the representations of Purchaser in this Agreement, the Shares will be
issued in compliance with all applicable federal and state securities
laws and will be listed on the NNM.
SECTION 2.05. Governmental Consents. No consent, approval,
order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of Seller is required in connection
with the consummation of the transactions contemplated by this
Agreement.
SECTION 2.06. Litigation. Except as described in the SEC
Documents (as defined in Section 2.12) or Schedule 2.06 hereto, there
is no action, suit, proceeding or investigation pending or, to
Seller's knowledge, currently threatened against Seller that questions
the validity of this Agreement or the right of Seller to enter into
it, or to consummate the transactions contemplated hereby, or that
would reasonably be expected to result, either individually or in the
aggregate, in any material adverse change in the business, assets,
condition, affairs or prospects of Seller, financially or otherwise,
or any change in the current equity ownership of Seller, nor is Seller
aware that there is any basis for the foregoing. Seller does not
warrant, however, that the litigation described in Schedule 2.06 will
not become material, either favorably or unfavorably to Seller, as
such litigation progresses, it having been filed recently and no
discovery having been performed. The foregoing includes, without
limitation, any actions pending or threatened (or any basis therefor
known to Seller) involving the prior employment of any of Seller's
employees, their use in connection with Seller's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior
employers. Except as described in Schedule 2.06, Seller is not a party
or subject to the provisions of any order, writ, injunction, judgment
or decree of any court or government agency or instrumentality.
SECTION 2.07. Patents and Trademarks. The SEC Documents
disclose all material information pertaining to all patents,
registered trademarks and trade names, and pending applications
therefor, owned by Seller. Seller has title and ownership of all
patents, trademarks, service marks, trade names, copyrights, trade
secrets, information, proprietary rights and process material to its
business as now conducted without, to the best of Seller's knowledge,
any conflict with
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page 14 of 41 pages
or infringement of the rights of others. Except as included
in the SEC Documents, and except for software licensed from Neuron
Data, Inc. and NobleNet, Inc., distributor for IONA Technologies,
Inc., Seller is not party to and has not granted any options,
licenses, or agreements of any kind relating to the foregoing, nor is
Seller bound by or a party to any options, licenses or agreements of
any kind with respect to the patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information, proprietary
rights or processes of any other person or entity. Seller has not
received any communications alleging that Seller has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity. To Seller's
knowledge, none of its employees is obligated under any contract
(including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere in any material respect
with the use of his or her best efforts to promote the interests of
Seller or that would conflict with Seller's business as proposed to be
conducted. Neither the execution nor delivery of this Agreement, nor
the carrying on of Seller's business by the employees of Seller, will
conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any contract, covenant
or instrument under which any of such employees is now obligated.
SECTION 2.08. Compliance with Other Instruments. Seller is
not, nor will it be on the date of Closing, in violation or default in
any respect of any provisions of its Restated Articles of
Incorporation or By-laws or, in any material respect, of any
instrument, judgment, order, writ, decree or contract to which it is a
party or by which it is bound or of any provision of federal or state
statute, rule or regulation applicable to Seller. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such violation
or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event
which results in the creation of any material lien, charge or
encumbrance upon any assets of Seller.
SECTION 2.09. Agreements; Action. (a) Except as described in
the SEC Documents and as listed in Schedule 2.09, there have been no
material agreements, understandings or proposed transactions between
Seller and
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page 15 of 41 pages
any of its officers, directors, affiliates, or any affiliate
thereof.
(b) Except as included in the SEC Documents, there are no
agreements, understandings, instruments, contracts or proposed
transactions to which Seller is a party or by which it is bound that
involve (i) obligations (contingent or otherwise) of, or payments to
or by, Seller in excess of, $50,000, other than in the ordinary course
of Seller's business, or (ii) the license of any patent, copyright,
trade secret or other proprietary right to or from Seller other than
in the ordinary course of Seller's business.
(c) Since April 29, 1997, Seller has not (i) except for
dividends in the amount of $2,418,765 distributed in accordance with
the S Corporation Termination, Tax Allocation and Indemnification
Agreement dated March 24, 1997, paid any dividends, or authorized or
made any distribution upon or with respect to any class or series of
its capital stock, (ii) except as disclosed in the SEC Documents,
incurred any indebtedness for money borrowed or incurred any other
liabilities individually in excess of $50,000 or in excess of $200,000
in the aggregate, (iii) made any loans or advances to any person,
other than ordinary advances for travel expenses, or (iv) other than
in the ordinary course of business and consistent with past practice,
sold, exchanged or otherwise disposed of any of its assets or rights.
(d) Seller is not a party to, and is not bound by, any
contract, agreement or instrument, or subject to any restriction under
its Restated Articles of Incorporation or By-laws, that materially and
adversely affects its business as now conducted, its properties or its
financial condition.
SECTION 2.10. Registration Rights. Except as contemplated
herein, in the Warrants for 112,500 shares of Common Stock issued to
the Underwriters in the April 1997 public offering, and with respect
to the 117,368 shares that may be acquired by holders of the Debenture
Holder Warrants (as such term was defined in Seller's April 29, 1997
Prospectus), Seller has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or
entity.
SECTION 2.11. Title to Property and Assets. Seller owns its
property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens which arise in the
ordinary course of business and do not materially impair Seller's
ownership or
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page 16 of 41 pages
use of such property or assets. With respect to the property
and assets it leases, Seller is in compliance with such leases in all
material respects and holds a valid leasehold interest free of any
liens, claims or encumbrances.
SECTION 2.12. SEC Documents, Financial Statements. Since
becoming registered under the Securities Exchange Act of 1934 (the
"Exchange Act") on April 29, 1997, Seller has filed all reports,
schedules, forms, statements, exhibits and other documents required to
be filed by it with the Securities and Exchange Commission (the
"Commission") pursuant to the reporting requirements of the Exchange
Act (all of the foregoing, together with Registration Statement No.
333-21647, as amended, being referred to herein as the "SEC
Documents"). As of their respective dates, the SEC Documents complied
in all material respects with the applicable requirements of the
Securities Act of 1933 (the "Securities Act") and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder
applicable to such SEC Documents, and, as of their respective dates,
none of the SEC Documents taken as a whole (when read together with
all exhibits included therein and financial statement schedules
thereto and documents (other than exhibits) incorporated by reference
therein) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. As of their respective
dates, the financial statements of Seller included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (i)
as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the
financial position of Seller as of the dates thereof and the results
of its operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit
adjustment).
SECTION 2.13. Employee Benefit Plans. Seller is in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with
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page 17 of 41 pages
respect to any "pension plan" (as defined in ERISA) for
which Seller would have any liability; Seller has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
(ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which Seller
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
SECTION 2.14. Tax Returns and Payments. Seller has filed all
tax returns and reports as required by law. These returns and reports
are true and correct in all material respects. Seller has paid all
taxes and other assessments due.
SECTION 2.15. Insurance. Seller has in full force and effect
fire and casualty insurance policies, with extended coverage,
sufficient in amount (subject to reasonable deductibles) to allow it
to replace any of its properties that might be damaged or destroyed.
SECTION 2.16. Labor Agreements and Actions. Seller is not
bound by or subject to (and none of its assets or properties is bound
by or subject to) any written or oral, express or implied, contract,
commitment or arrangement with any labor union, and no labor union has
requested or, to the knowledge of Seller, has sought to represent any
of the employees, representatives or agents of Seller. There is no
strike or other labor dispute involving Seller pending, or to the
knowledge of Seller threatened, which could have a material adverse
effect on the assets, properties, financial condition, operating
results or business of Seller (as such business is presently conducted
and as it is proposed to be conducted), nor is Seller aware of any
labor organization activity involving its employees. Seller is not
aware that any officer or key employee intends to terminate their
employment with Seller, nor does Seller have a present intention to
terminate the employment of any of the foregoing. Seller has complied
in all material respects with all applicable state and federal equal
employment opportunity laws and with other laws related to employment.
SECTION 2.17. Offering. Subject to the truth and accuracy of
Purchaser's representations set forth in this Agreement, the offer,
sale and issuance of the Shares as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act of
1933 (the
<PAGE>
page 18 of 41 pages
"Securities Act"), and neither Seller nor any authorized
agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
SECTION 2.18. Permits. Seller has all franchises, permits,
licenses and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which could
materially and adversely affect the business, properties, prospects or
financial condition of Seller and believes that it can obtain, without
undue burden or expense, any similar authority for the conduct of its
business as planned to be conducted. Seller is not in default in any
material respect under any of such franchises, permits, licenses or
other similar authority.
ARTICLE III
Representations and Warranties of Purchaser
The Purchaser hereby represents, warrants and covenants to
and for the benefit of Seller that:
SECTION 3.01. Authorization. All corporate action on the
part of Purchaser, its officers, directors and shareholders necessary
for the authorization, execution and delivery of this Agreement, the
performance of all obligations of Purchaser hereunder has been taken
prior to Closing, and delivered by Purchaser and shall constitute a
valid and legally binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
SECTION 3.02. Purchase Entirely for Own Account. The Shares
to be acquired by it will be acquired for investment for its own
account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof, and it has no present intention
of selling, granting any participation in, or otherwise distributing
the same. It does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to
any of the Shares. It understands that this sale of the Shares has not
been, and will not be, registered under the Securities Act by reason
of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide
nature of its investment intent and the accuracy of its
representations as expressed herein. It represents that it has not
been formed for the specific purpose of acquiring the Shares.
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SECTION 3.03. Disclosure of Information. It has received all
the information it considers necessary or appropriate for deciding
whether to acquire the Shares. It further represents that it has had
an opportunity to ask questions and receive answers from Seller
regarding the terms and conditions of the offering of the Shares. The
foregoing, however, does not limit or modify the representations and
warranties of Seller in Article II of this Agreement or the right of
the Purchaser to rely thereon.
SECTION 3.04. Investment Experience. It has substantial
experience in evaluating and investing in private placement
transactions so that the Purchaser is capable of evaluating the merits
and risks of its investment in Seller. By reason of its business or
financial experience or the business or financial experience of its
professional advisors who are unaffiliated with and who are not
compensated by Seller or any affiliate or selling agent of Seller,
directly or indirectly, it has the capacity to protect its own
interests in connection with the purchase of the Shares hereunder.
SECTION 3.05. Restricted Securities. It understands that the
Shares are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from Seller in a
transaction not involving a public offering and that under such laws
and applicable regulations such Shares may be resold without
registration under the Securities Act only in certain limited
circumstances. In this respect, it represents that it is familiar with
Rule 144 promulgated under the Securities Act, as presently in effect,
and understands the resale limitations imposed thereby and otherwise
by the Securities Act.
SECTION 3.06. Further Limitations on Disposition. Without in
any way limiting the representations set forth above, the Purchaser
further agrees not to make any disposition of all or any portion of
the Shares unless and until the conditions set forth in paragraphs (a)
and (b) are satisfied:
(a) Either (x) there is in effect a Registration
Statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with
such Registration Statement; or (y) (i) the Purchaser shall
have notified Seller of the proposed disposition and shall
have furnished Seller with a detailed statement of the
circumstances surrounding the proposed disposition, and (ii)
if reasonably requested by Seller, the Purchaser shall have
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furnished Seller with an opinion of counsel, reasonably
satisfactory to Seller, that such disposition will not
require registration under the Securities Act or any
applicable state securities laws. It is agreed that Seller
will not require opinions of counsel for transactions made
pursuant to Rule 144 except in unusual circumstances;
provided, however, the Purchaser acknowledges that the
transfer agent for the Common Stock may require opinions of
counsel for any transactions made pursuant to Rule 144.
(b) Any resale prior to February 2, 2001, pursuant to
paragraph (a) will be limited to no more than 100,000 shares
in any six month period.
Notwithstanding the foregoing provisions of this Section 3.06, a
transfer by the Purchaser to a constituent shareholder (including any
constituent of a constituent) of the Purchaser if such transferee is
an accredited investor (as defined in Rule 501(a) under the Securities
Act) shall be permitted if the transferee or transferees agree in
writing to be subject to the terms hereof to the same extent as if
they were the Purchaser hereunder.
SECTION 3.07. Legends. It is understood that the Shares may
bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT."
(b) Any legend required by the Blue Sky laws of any
state to the extent such laws are applicable to the shares
represented by the certificate so legended.
SECTION 3.08. Accredited Investor. It is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under
the Securities Act.
SECTION 3.09. Organization and Good Standing. Purchaser is a
corporation duly organized and in good standing under the laws of
Bermuda and has all requisite corporate power and authority to carry
on its business as now conducted and to execute and deliver this
Agreement.
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ARTICLE IV
Conditions of Purchaser's Obligations at Closing
The obligations of the Purchaser to Seller under this
Agreement at the Closing are subject to the fulfillment, on or before
such Closing, of each of the following conditions:
SECTION 4.01. Representations and Warranties. The
representations and warranties of Seller contained in Article II shall
be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of such date.
SECTION 4.02. Performance. Seller shall have performed and
complied with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by
it on or before such Closing.
SECTION 4.03. Certificates of Officers. Seller shall deliver
to Purchaser at such Closing certificates of the officers of Seller
certifying that the conditions specified in Sections 4.01 and 4.02
have been fulfilled and as to such other matters as the Purchaser may
reasonably request.
SECTION 4.04. Proceedings and Documents. All corporate and
other proceedings in connection with the transactions contemplated at
the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Purchaser, and the Purchaser
shall have received all such counterpart original and certified or
other copies of such documents as they may reasonably request.
SECTION 4.05. Opinion of Counsel. The Purchaser shall have
received from Gambrell & Stolz, counsel for Seller, an opinion, dated
as of the Closing, in the form attached hereto as Exhibit A.
SECTION 4.06. No Material Adverse Change. (i) Seller shall
not have sustained since September 30, 1997, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, and (ii) there shall
not have been any change in the capital stock or long-term debt of
Seller or any change, or any development involving a prospective
change, in or affecting the condition (financial or other), earnings,
general affairs, business, operations, properties,
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management, stockholders' equity, results of operations or
prospects of Seller, taken as a whole, the effect of which, in any
such case described in clause (i) or (ii), is in Purchaser's sole
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the purchase of the Shares.
ARTICLE V
Conditions of Seller's Obligations at Closing
The obligations of Seller to the Purchaser under this
Agreement are subject to the fulfillment, on or before the Closing, of
each of the following conditions:
SECTION 5.01. Representations and Warranties. The
representations and warranties of the Purchaser contained in Article
III shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of
such date.
ARTICLE VI
Covenants of Seller
SECTION 6.01. Agreement as to Voting of the Shares.
Purchaser hereby agrees and covenants that, through February 2, 2000
(or such earlier date as may apply as set forth in Section 6.04), on
each occasion on which shareholders of Seller are entitled to vote or
consent on any issue, whether at an annual or special meeting of
shareholders, by written consent or otherwise (hereinafter
collectively referred to as "Shareholder Votes"), Purchaser shall
designate Haim E. Dahan, who currently is Chief Executive Officer of
Seller ("Dahan"), as its proxy or attorney-in-fact to vote or
otherwise act with respect to the Shares on behalf of Purchaser in all
respects in connection with the Shareholder Votes, including without
limitation granting to him a proxy to vote in his discretion on any
action that may be taken at an annual or special meeting of
shareholders whether or not such action was described in any proxy
statement or solicitation prepared on behalf of Seller. The term
"Shares" as used in this Article VI shall include also any other
shares of Common Stock or other securities of Seller that are issued
to Purchaser with respect to the Shares pursuant to a stock dividend,
stock split or otherwise.
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SECTION 6.02. Execution of Proxies and Powers of Attorney.
Promptly upon request of Dahan or of Seller, but in any event within
not more than 10 days after written notice is given to Purchaser
requesting execution of an enclosed or previously furnished proxy,
power of attorney or other written authorization that would grant to
Dahan the right to vote or consent with respect to the Shares with
respect to any Shareholder Vote, Purchaser shall duly execute such
proxy, power of attorney or other written authorization and cause such
proxy, power of attorney or other written authorization to be
delivered to Dahan at the address for Seller as established pursuant
to Section 8.06, or to such other address as Dahan may furnish to
Purchaser by not less than 10 days prior written notice. Purchaser
shall not make any attempt to revoke or supersede any such proxy,
power of attorney or other written authorization given to Dahan
pursuant to this Article VI, nor may Purchaser make any attempt to
vote the Shares directly or through any other person, proxy or
attorney-in-fact with respect to any Shareholder Vote as to which a
proxy, power of attorney or other written authorization has been given
to or has been requested by or on behalf of Dahan. Any attempt by
Purchaser to do so in violation of this Article VI shall be void and
ineffective, and Seller is hereby authorized to so notify the transfer
agent for the common stock and any inspector(s) of election with
respect to any Shareholder Vote. Purchaser hereby designates Dahan as
its attorney-in-fact (which designation is hereby deemed to be coupled
with an interest) for the limited purpose of providing notices,
casting votes and taking any other actions, including the execution of
any ballots, instruments or other documents necessary to effectuate
the purposes of this Article VI.
SECTION 6.03. Scope of Voting Rights. In his exercise of the
voting rights established pursuant to this Article VI, Dahan shall, in
his uncontrolled discretion, in respect of any and all of the Shares,
possess and be entitled to exercise the right to vote thereon for
every purpose, in person or by proxy, to waive any share privilege in
respect thereof (excluding any right or privilege to subscribe for any
additional shares of Common Stock, which shall remain vested in
Purchaser notwithstanding any other provision of this Article VI), and
to consent to any lawful corporate act of Seller, as though absolute
owner of the Shares. Dahan is specifically authorized by way of
example, without limiting his rights hereunder, to vote the Shares
for, or to consent in respect thereof to, any increase or reduction of
the shares of Seller, any agreement of consolidation, merger, share
exchange or the sale or other disposition of all, substantially all,
or any part of the property, assets and franchises of Seller and the
granting, ratification or
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confirmation of any option or options therefor (whether or
not such option or options extend(s) beyond the term of this
Agreement), or the dissolution of Seller, and the judgment of Dahan as
to the adequacy of the consideration thereby to be received by the
Seller and Purchaser (provided each shareholder is treated uniformly,
share for share) shall be conclusive and binding upon Purchaser and
all persons claiming through or under Purchaser. Dahan may, directly
or indirectly, transact any lawful business with Seller,
notwithstanding the rights granted to him hereunder. Dahan may also
serve as director and compensated officer of Seller and may vote the
Shares for himself, as such. The granting of voting rights to Dahan
under this Article VI shall not constitute him as a fiduciary under
applicable law.
SECTION 6.04. Termination of Voting Rights. The voting
rights granted under this Article VI shall extend through the earlier
of (i) the date set forth in Section 6.01, or (ii) the date on which
Purchaser and Purchaser's "Affiliates", as such term is defined in the
Securities Act, on a collective basis beneficially own less than
150,000 shares of Common Stock, or (iii) the death or incapacity of
Dahan, at which time the voting rights granted under this Article VI
shall terminate automatically. For purposes of this Section 6.04, the
number of shares shall be adjusted appropriately to reflect any stock
dividend, stock split or similar transaction.
SECTION 6.05. Applicability to Transferees; Legend on
Certificates. The voting rights granted under this Article VI shall
apply to Purchaser and Purchaser's Affiliates during the period set
forth in this Article VI. Any Shares transferred during such period to
a transferee that is not an Affiliate of Purchaser shall be free from
any of the provisions of this Article VI, provided that such transfer
is in compliance with all of the terms of this Agreement. Each
certificate representing the Shares shall, during the period in which
this Article VI remains applicable as to such Shares, bear on its
front or reverse a prominent legend referring to the terms of this
Article VI, as follows:
THE VOTING RIGHTS WITH RESPECT TO THESE SECURITIES ARE
LIMITED BY THE TERMS OF AN AGREEMENT BETWEEN THE HOLDER
HEREOF AND THE COMPANY, TERMINATING, WITH RESPECT TO SUCH
VOTING RESTRICTIONS, NOT LATER THAN FEBRUARY 2, 2000. A COPY
OF SUCH AGREEMENT IS MAINTAINED AT THE EXECUTIVE OFFICES OF
THE COMPANY AND A COPY THEREOF IS AVAILABLE TO THE HOLDER
FROM THE COMPANY UPON REQUEST.
SECTION 6.06. Enforcement, Third Party Beneficiary. Either
the Seller or Dahan shall have the right
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to enforce the terms of this Article VI by specific
performance, in addition to any other legal or equitable remedies that
may be available to Seller or Dahan. Notwithstanding any other
provision of this Agreement to the contrary, any legal action related
to this Article VI, whether brought by Purchaser, Seller or Dahan,
shall be brought in a state or federal court in Fulton County,
Georgia, which the parties agree shall have exclusive jurisdiction
over any such action. Purchaser, on its own behalf and on behalf of
any Affiliate of Purchaser that is a transferee of the Shares, hereby
waives any argument or claim that such courts are not a convenient
forum for any such action or that jurisdiction or venue is not proper
for any reason whatsoever. The parties specifically intend that Haim
E. Dahan is and shall be deemed to be a third-party beneficiary of
this Article VI and shall have the full right to enforce the
provisions hereof in his own behalf.
ARTICLE VII
Registration Rights
SECTION 7.01. Definitions. As used herein, "Holders" means
Purchaser and any persons or entities to whom the rights granted under
this Article VII are transferred by any Purchaser, their successors or
assigns, and "Registrable Securities" shall mean, with regard to the
exercise of any right pursuant to Section 7.02, (i) the 90,000 Shares
bearing the legend specified in Section 7.08 and (ii) any other shares
of Common Stock of Seller issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, the Shares referred to in clause (i).
SECTION 7.02. Incidental Registration. If Seller at any time
proposes to file prior to February 2, 2003, on its behalf or on behalf
of any of its security holders (other than Holders of Registrable
Securities) (the "demanding security holders") a registration
statement under the Securities Act on any form (other than a
Registration Statement on Form S-4 or S-8 or any successor form for
securities to be offered in a transaction of the type referred to in
Rule 145 under the Securities Act or to employees of Seller pursuant
to any employee benefit plan, respectively) for the general
registration of securities to be sold for cash with respect to its
Common Stock or any other class of equity security (as defined in
Section 3(a)(11) of the Exchange Act) of Seller, it will give written
notice to all Holders of the Registrable Securities
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at least four weeks before the initial filing with the
Commission of such registration statement, which notice shall set
forth the intended method of disposition of the securities proposed to
be registered by Seller. The notice shall offer to include in such
filing the aggregate number of shares of Registrable Securities, as
such Holders may request.
Each Holder of any Registrable Securities desiring to have
Common Stock registered under this Section 7.02 shall advise Seller in
writing within 10 days after the date of receipt of such offer from
Seller, setting forth the amount of such Common Stock for which
registration is requested. Seller shall thereupon include in such
filing the number of shares of Common Stock for which registration is
so requested, subject to the following sentence, and shall use its
best efforts to effect registration under the Securities Act of such
shares. If a public offering is proposed for the securities being
registered by Seller or such demanding security holder and the
managing underwriter of such public offering advises Seller in writing
that, in its opinion, the distribution of the Common Stock requested
to be included in the registration concurrently with the securities
being registered by Seller or such demanding security holder would
materially and adversely affect the distribution of such securities by
Seller or such demanding security holder, then Seller, if applicable,
and all selling security holders (including, if applicable, the
Holders and the demanding security holder who initially requested such
registration) shall reduce (to the extent Seller has a contractual
right to impose such a reduction) the amount of securities each
intended to distribute through such offering on a pro rata basis;
provided, however, that Seller shall not be required to reduce the
amount of securities to be distributed on its behalf to less than 50%
of the aggregate number of securities to be registered in such
offering.
SECTION 7.03. Registration Procedures. If Seller is required
by the provisions of this Article VII to effect the registration of
any of Purchaser's securities under the Securities Act, Seller will,
as expeditiously as possible:
(a) promptly prepare and file with the Commission a
registration statement with respect to such securities and cause
such registration statement to become and remain effective for a
period of time required for the disposition of such securities by
the Holders thereof, but not to exceed three months from the
effective date thereof;
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(b) prepare and file with the Commission 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 and to comply with the
provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration
statement until the earlier of such time as all such securities
have been disposed of in a public offering or the expiration of
three months, and to comply with the provisions of the Securities
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 Holders of such
securities set forth in such registration statement;
(c) furnish to such Holders such number of copies of such
registration statement, each amendment and supplement thereto,
and the prospectus included in such registration statement
(including each preliminary prospectus), all in conformity with
the requirements of the Securities Act, and such other documents,
as such Holders may reasonably request;
(d) notify such Holders promptly after Seller shall receive
notice thereof, of the time when such registration statement
became effective or when any amendment or supplement to any
prospectus forming a part thereof has been filed;
(e) notify such Holders promptly of any request by the
Commission for the amending or supplementing of such registration
statement or prospectus forming a part thereof or for additional
information;
(f) advise such Holders after Seller shall receive notice or
otherwise obtain knowledge of the issuance of any order by the
Commission suspending the effectiveness of such registration
statement or amendment thereto or of the initiation or
threatening of any proceeding for that purpose, and promptly use
its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal promptly if such stop order should be
issued;
(g) use its best efforts to register or qualify such
securities under such other securities or blue sky laws of such
jurisdictions within the United States and Puerto Rico as each
Holder (or any underwriter on behalf of such Holder) of such
securities shall request (provided that Seller shall not be
obligated to qualify
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as a foreign corporation to do business under the laws of
any jurisdiction in which it is not then qualified or to file any
general consent to service of process), and do such other
reasonable acts and things as may be required of it to enable
such Holder to consummate the disposition in such jurisdiction of
such securities;
(h) furnish on the date that such securities are delivered
to underwriters for sale pursuant to such registration or, if
such securities are not being sold through underwriters, on the
date that such registration statement becomes effective, (i) an
opinion dated such date, of the independent counsel representing
Seller for the purposes of such registration, addressed to such
underwriters, if any, and, if such securities are not being sold
through underwriters, then to the Holder making such request, in
customary form and covering matters of the type customarily
covered in such legal opinions and (ii) a comfort letter dated
such date, from the independent certified public accountants of
Seller, addressed to such underwriters, if any, and, if such
securities are not being sold through underwriters, then to the
Holder making such request in a customary form and covering
matters of the type customarily covered by such comfort letters
as such underwriters or such Holder, as the case may be, shall
reasonably request;
(i) enter into customary agreements (including one or more
underwriting agreements in customary form) and take such other
actions as are reasonably required or reasonably requested by
such Holders or any underwriter on behalf thereof in order to
expedite or facilitate the disposition of such securities;
(j) use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not
later than 18 months after the effective date of such
registration statement, an earnings statement covering the period
of at least 12 months beginning with the first full month after
the effective date of such registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the
Securities Act (including, at the option of Seller, Rule 158);
(k) notify such Holders at any time when a prospectus
relating to such registration statement is required to be
delivered under the Securities Act, of the happening of any event
as a result of which such registration statement contains an
untrue statement of
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material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading, and, at the request of any such Holder, prepare a
supplement or amendment to such registration statement so that
such registration statement will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(l) cause all shares of Common Stock being so registered to
be listed on each securities exchange on which similar securities
issued by Seller are then listed or, if similar securities are
not then listed, take all reasonable action either to list such
shares on a securities exchange or to facilitate the trading of
the securities on the Nasdaq National Market; and
(m) provide a transfer agent and registrar for all shares of
Common Stock being so registered not later than the effective
date of such registration statement.
It shall be a condition precedent to the obligation of
Seller to take any action pursuant to this Article VII in respect of
the securities which are to be registered at the request of any Holder
of the Registrable Securities that such Holder shall furnish to Seller
such information regarding the securities held by such Holder and the
intended method of disposition thereof as Seller shall reasonably
request and as shall be required in connection with the action taken
by Seller. Seller may reasonably rely upon any such information so
furnished by a Holder.
SECTION 7.04. Expenses. All expenses incurred in complying
with this Article VII, including, without limitation, all registration
and filing fees (including all expenses incident to filing with the
NASD), printing expenses, fees and disbursements of counsel and
accountants for Seller and expenses of complying with the securities
or blue sky laws of any jurisdictions pursuant to Section 7.03(g),
shall be paid by Seller, except any discount or commissions payable to
any underwriter by such Holders and fees and expenses of counsel for
such Holders.
SECTION 7.05. Indemnification and Contribution. (a) In the
event of any registration under the Securities Act pursuant to this
Article VII of any Registrable Securities, Seller will indemnify and
hold harmless the Holder thereof against any losses, claims, damages,
liabilities or expenses, joint or several, to which such Holder may
become subject, under the Securities Act or
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otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of
any material fact contained, on the effective date thereof, in any
registration statement under which such securities were registered
under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse such Holder for any legal or any other expenses incurred by
such Holder in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
Seller shall not be liable in any such case to the extent that such
loss, claim, damage, liability or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, preliminary
prospectus, prospectus or amendment or supplement in reliance upon and
in conformity with written information furnished to Seller by such
Holder or an underwriter on behalf of such Holder expressly for use
therein; and provided further that the foregoing indemnity agreement
with respect to any prospectus shall not inure to the benefit of the
Holder if it is conclusively determined by a court of competent
jurisdiction not subject to appeal that a copy of a prospectus was not
sent or given by or on behalf of the Holder to the purchaser of the
Common Stock who has asserted a claim, if required by law to have been
so delivered, at or prior to the written confirmation of the sale of
Common Stock to such person, and if a prospectus would have cured the
defect giving rise to such loss, claim, damage or liability;
(b) Each Holder of Registrable Securities, by acceptance of
the registration provisions provided herein, agrees to indemnify and
hold harmless Seller against any losses, claims, damages, liabilities
or expenses, joint or several, to which Seller may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement
under which securities were registered under the Securities Act at the
request of such Holder, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein
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not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any such registration
statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with written information
furnished to Seller by such Holder expressly for use therein; and will
reimburse Seller for any legal or other expenses reasonably incurred
by Seller in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise
than under such subsection except to the extent it has been materially
prejudiced by such failure. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (which shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7.05
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a), (b) or (c) above in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein or if the indemnified party failed to
give the notice required under subsection (c) above, then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of Seller
on the one hand and the relevant Holder on the other in connection
with the
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statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by Seller on the one hand or the
relevant Holder on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Seller and each Holder registering
securities under this Article VII agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Holder registering
securities under this Article VII shall be required to contribute any
amount in excess of the amount by which the total price at which the
securities registered and sold by such Holder exceeds the amount of
any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. 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.
(e) The obligations of Seller under this Section 7.05 shall
be in addition to any liability which Seller may otherwise have and
shall extend, upon the same terms and conditions, to each person
(including each underwriter) who participated in the offering of the
registered securities and to each person, if any, who controls any
Holder registering securities under this Article VII or any such
person (including each such underwriter) within the meaning of Section
15 of the Securities Act; and the obligations under this Section 7.05
of any Holder registering securities under this Article VII shall be
in addition to any liability which such Holder may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of Seller and to
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each person, if any, who controls Seller within the meaning
of Section 15 of the Securities Act.
SECTION 7.06. Inspection of Records and Documents. Each
Holder and underwriter participating in any disposition pursuant to
the registrations described in this Article VII, and any attorney,
accountant or other agent retained by any such Holder or underwriter
(collectively, the "Inspectors"), shall have conducted, at dates,
times and locations reasonably specified by such Inspectors, such
investigations, inquiries and conferences with such directors,
officers, employees and agents (including, without limitation, outside
accountants and counsel) of Seller and its subsidiaries, been
furnished and reviewed such documentation of Seller and its
subsidiaries and conducted such other procedures, as the Inspectors
deem necessary, in their sole judgment, to have a satisfactory "due
diligence" defense under Section 11 of the Securities Act in
connection with such registrations.
SECTION 7.07. Assignment of Registration Rights. Each Holder
of Registrable Securities may assign all or any part of its rights
under this Article VII to any Affiliate of such Holder to whom such
Holder sells, transfers or assigns such Registrable Securities. In the
event that the Holder shall assign its rights pursuant to this Article
VII in connection with the transfer of less than all its Registrable
Securities, the Holder shall also retain its rights with respect to
its remaining Registrable Securities.
SECTION 7.08. Legend on Certificate(s). Inasmuch as less
than all the Shares shall carry with them registration rights under
this Article VII, at the Closing the Company shall give instructions
that the Shares be issued in the form of two certificates, with one
certificate representing 90,000 shares of Common Stock and bearing a
legend prominently referring to the registration rights provided under
this Article VII, and with the other certificate representing 210,000
shares and bearing a legend while held by a Holder prominently
referring to the absence of such rights. Any replacement certificates
issued therefor shall reflect, similarly, the existence or absence of
such rights in accordance with the terms of this Article VII.
ARTICLE IX
Miscellaneous
SECTION 8.01. Survival. The warranties and representations
of Seller and Purchaser contained in or made pursuant to this
Agreement shall survive for a period of 4 years after the execution
and delivery of this Agreement
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and the Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of
Purchaser or Seller. All agreements and covenants contained herein
shall survive indefinitely until, by their respective terms, they are
no longer operative.
SECTION 8.02. Transfer; Successors and Assigns. The terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and 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 assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
SECTION 8.03. Governing Law. This Agreement shall be
governed by and construed under the laws of the State of Georgia.
SECTION 8.04. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
SECTION 8.05. Title and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
SECTION 8.06. Notices. (a) All notices, requests, demands
and other communications under this Agreement or in connection
herewith shall be given to or made upon Purchaser at Thybo New
Ventures Limited, Par La Ville Place, 14 Par La Ville Road, Hamilton
HM JK Bermuda, with a copy to J.A.M. Vijverberg, TBG Management
S.A.M., 29 Bvd Princesse Charlotte, B.P. 89 MC 98007, Monaco Cedex or,
if to Seller to International CompuTex, Inc., 5500 Interstate North
Parkway, Suite 507, Atlanta, Georgia 30328; attention: Chief Executive
Officer.
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement
shall be in writing, and shall be sent by certified or registered
mail, postage prepaid, return receipt requested, and shall be deemed
to be given or made when receipt is so confirmed.
(c) Any party may, by written notice to the other, alter its
address or respondent, and such notice shall be
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considered to have been given 10 days after confirmation of
receipt thereof.
SECTION 8.07. Finder's Fee. Each party represents and
warrants that it neither is nor will be obligated for any finder's fee
or commission in connection with this transaction. The Purchaser
agrees to indemnify and to hold harmless Seller from any liability for
any commission or compensation in the nature of a finder's fee (and
the costs and expenses of defending against such liability or asserted
liability) for which Purchaser or any of its officers, employees, or
representatives is responsible in connection with this transaction.
Seller agrees to indemnify and hold harmless Purchaser from any
liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which Seller or any of its
officers, employees or representatives is responsible in connection
with this transaction.
SECTION 8.08. Expenses. Seller covenants and agrees with the
Purchaser that Seller will pay or cause to be paid upon demand the
following: (i) the fees, disbursements and expenses of Seller's
counsel and accountants in connection with the purchase and sale of
the Shares; (ii) all expenses in connection with the qualification of
the Shares, for offering and sale under state securities laws,
including the fees and disbursements of counsel for Purchaser in
connection with such qualification; (iii) the cost of preparing stock
certificates; (iv) the cost and charges of any transfer agent or
registrar; (v) all fees and expenses provided for in Article VII; (vi)
all out-of-pocket costs and expenses associated with the filing of any
Schedule 13-D, Schedule 13-G or any successor form or the filing of
any amendment thereto required to be filed under the Exchange Act as a
result of the Shares being included in a filing by a group because of
the voting rights granted under Article VI of this Agreement; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section 8.08.
SECTION 8.09. Indemnification. Seller agrees to indemnify
and hold harmless each Holder, the Purchaser and the directors,
officers, employees and agents of the Purchaser and each person who
controls the Purchaser within the meaning of either the Securities Act
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law
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or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any lawsuit, action or claim that they or any of them are part of
a "control group", a "controlling shareholder" or an "affiliate" of
Seller, or any lawsuit or other action arising out of or based upon a
claim made pursuant to Section 13(d) under the Exchange Act and the
rules promulgated thereunder or any successor provision thereto as a
result of the Shares being included in a filing by a group because of
the voting rights granted under Article VI of this Agreement, and
agrees to reimburse each such indemnified party, within 30 business
days after such expenses are incurred, for all reasonable fees and
expenses of counsel or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action.
SECTION 8.10. Amendments and Waivers. Any term of this
Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written
consent of Seller and the holders of a majority of the Shares
purchased hereunder. Any amendment or waiver effected in accordance
with this Section shall be binding upon each transferee of any Shares,
each future holder of all such Shares, and Seller.
SECTION 8.11. Severability. If one or more provisions of
this Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of
this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
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SECTION 8.12. Entire Agreement. This Agreement dated January
29, 1998, constitutes the entire Agreement between the parties hereto
pertaining to the subject matter hereof and thereof, and any and all
other prior written or oral agreements existing between the parties
hereto are expressly canceled.
IN WITNESS WHEREOF, the parties have executed this Purchase
Agreement as of the date first above written.
THYBO NEW VENTURES LIMITED,
by
/s/ J.A.M. Vijverberg
--------------------------
Name: J.A.M. Vijverberg
Title: President
INTERNATIONAL COMPUTEX, INC.,
by
/s/ Haim Dahan
--------------------------
Name: Haim Dahan
Title: Chief Exective
Officer
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EXHIBIT A
OPINION OF COUNSEL
GAMBRELL & STOLZ
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Georgia, with corporate power and
authority to own its properties and conduct its business,
and is duly qualified or licensed to do business as a
foreign corporation and is in good standing in each other
jurisdiction in which the nature of its business or the
character or location of its properties requires such
qualification, except where failure so to qualify will not
materially affect the business, properties or financial
condition of the Company;
(ii) (a) the authorized capitalization of the Company
as of the date hereof is 20,000,000 shares of Common Stock,
par value $.001 per share; (b) the shares of Common Stock
now outstanding have been duly authorized and validly
issued, are fully paid and non-assessable, conform to the
description thereof set forth in the SEC Documents, have not
been issued in violation of the preemptive rights of any
shareholder and, except as described in the SEC Documents,
are not subject to any restrictions upon the voting or
transfer thereof; (c) all the Shares have been duly
authorized and, when paid for as provided herein, shall be
validly issued, fully paid and non-assessable, shall not
have been issued in violation of the preemptive rights of
any shareholder, and no personal liability shall attach to
the ownership thereof; (d) the shareholders of the Company
do not have any preemptive rights or other rights to
subscribe for or purchase, and, except as provided in the
Purchase Agreement and except pursuant to restrictions on
transferability imposed under federal and state securities
laws, there are no restrictions upon the voting or transfer
of, any of the Shares; and (E) to the best of our knowledge,
except for the options and warrants described in Section
2.02(b) of the Purchase Agreement, there are no preemptive
rights or options, warrants, conversion privileges or other
rights (or agreements for any such rights) outstanding to
purchase or otherwise obtain any of the Company's
securities;
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(iii) the certificates evidencing the Shares are each
in valid and proper legal form;
(iv) the Purchase Agreement has been duly authorized,
executed and delivered by the Company and (assuming due
execution and delivery thereof by the Purchaser) is a valid
and binding agreement enforceable in accordance with its
terms, subject to the following qualifications:
(a) The enforceability of the Purchase Agreement
may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting generally the enforcement of
creditors' rights;
(b) The enforceability of the Purchase Agreement
is subject to and may be affected by general principles
of equity; and
(c) Rights of indemnity and contribution under the
Agreement may be limited by federal or state securities
laws.
(v) to the knowledge of such counsel, except as
described in Schedule 2.06, (a) there is no pending,
threatened or contemplated legal or governmental proceeding
affecting the Company which could materially and adversely
affect the business, property, operations, condition
(financial or otherwise) or earnings of the Company, or
which questions the validity of the Purchase Agreement, or
of any action to be taken by the Company pursuant thereto;
and (b) there is no legal or governmental proceeding, or
regulation required to be described or referred to in the
SEC Documents or in any similar document that will be filed
with respect to the period ending on the date hereof;
(vi) to the knowledge of such counsel (a) the Company
is not in violation of or default under the Purchase
Agreement; and (b) the execution and delivery thereof and
the incurrence of the obligations therein set forth and the
consummation of the transactions therein contemplated shall
not result in a violation of, or constitute a default under,
the Articles of Incorporation or By-laws of the Company, or
any material obligation, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of
indebtedness, or in any material contract, indenture,
mortgage, loan agreement, lease, joint venture or other
agreement or instrument to which the Company is a party
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or by which its assets are bound, or any material
order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court;
(vii) the SEC Documents (except for the financial
statements, notes thereto and other financial information
contained therein, as to which no opinion need be rendered)
comply as to form in all material respects with the
Securities Act or the Exchange Act, as applicable, and the
rules and regulations thereunder; and such counsel has no
reason to believe that the SEC Documents, on the respective
effective or filing dates contained any untrue statement of
a material fact or omitted to state any 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;
(viii) all descriptions contained in the SEC Documents
of contracts and other documents are accurate and fairly
present the information required to be described in all
material respects, and such counsel is familiar with all
contracts and other documents referred to in, or filed as
exhibits to, the SEC Documents and, to the knowledge of such
counsel, no contract or document of a character required to
be summarized or described therein or to be filed as an
exhibit thereto is not so summarized, described or filed;
(ix) the descriptions contained in the SEC Documents
which purport to summarize the provisions of statutes, rules
and regulations are accurate summaries in all material
respects, and such descriptions fairly present in all
material respects the information shown, and the
descriptions contained in the SEC Documents that concern
matters of law or legal conclusions have been reviewed by
such counsel and are correct in all material respects; and
(x) no authorization, approval, consent or license of
any governmental or regulatory authority or agency is
necessary in connection with: (a) the authorization,
issuance, sale, or delivery of the Shares by the Company or
(b) the execution, delivery and performance of the Purchase
Agreement by the Company.
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SCHEDULE 2.06
Seller and its Vice President of Sales, Steven Norwood, have
been named as defendants in a legal action brought by Aspect
Development, Inc. and its subsidiary Cadis, Inc. In this suit, brought
in the U.S. District Court, Northern District of California, Aspect
and Cadis have alleged that Mr. Norwood, formerly of Cadis,
misappropriated certain trade secrets, breached his fiduciary duty,
breached his employee confidentiality agreement and intentionally
interfered with Aspect's and Cadis' business relations. Similar
allegations were made against Seller. In a temporary ruling, effective
until a hearing scheduled for February 6, 1998, the court ordered Mr.
Norwood to comply with this employee confidentiality agreement, and
ordered Seller and Mr. Norwood to not destroy confidential Cadis
documents (which they do not possess) but specifically ruled that
neither Seller nor Mr. Norwood is restricted from contacting any
customers or prospective customers of any of the parties.
Seller and Mr. Norwood categorically deny that they are in
possession of any trade secrets or confidential information of Aspect
or Cadis, that Seller has ever been in possession of such information
or that Mr. Norwood has been in possession of any such information
since his departure from Cadis. In the event jurisdiction is
established in this case, Seller and Mr. Norwood intend to vigorously
defend against all of the allegations made by Aspect and Cadis and to
bring counterclaims against Aspect and Cadis for actions taken by them
for the improper purpose of restricting Seller's ability to compete in
the component and supplier management (CSM) market, seeking damages as
well as injunctive relief, in addition to recovery of its legal fees
and other costs of defending the action.
While Seller does not believe that this litigation will have
a material adverse affect on Seller's business, operations or
financial condition, there can be no assurance that this litigation
will not become material at a later date.
