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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
September 17, 1999
Date of Report (Date of earliest event reported):
INTERSCIENCE COMPUTER CORPORATION
(Exact name of registrant as specified in its charter)
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California 1-12312 95-3880130
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification Number)
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5171 Clareton Drive, Agoura Hills
California 91301
(Address of principal executive offices)
Registrant's telephone number, including area code: (818) 707-2000
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ITEM 2 ACQUISITION OR DISPOSITION OF ASSETS:
On September 17, 1999, the Company acquired the assets (the "Camino Assets") of
Camino Systems Inc. ("Camino") for 468,000 shares of the Company's Common Stock
and assumption of certain liabilities of Camino. The Camino Assets consisted of
certain business contracts and intangible personal property. The consideration
for the Camino Assets was determined through negotiations between the management
of Camino and the Company.
Designed for the LAN, WAN, Internet and Intranet marketplace, Camino's Highway
Server HSM software provides unlimited storage on multiple platforms by
utilizing cost-effective optical jukeboxes as repositories for the vast amount
of data accumulated on a network.
Camino Highway Server provides transparent, multi-stage migration to optical
storage from a variety of network platforms, including Novell NetWare, NT, Mac
and Unix. It can accommodate virtually unlimited volumes of information,
including database, image, audio/video, video conferencing and medical images.
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ITEM 7. FINANCIAL STATEMENTS:
(a) and (b) Financial Statements:
In view of the size of and amount of
investment involved in the
acquisition of the Camino Assets, no
financial statements are required to be filed.
(c) Exhibits:
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Exhibit
Number Description
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10.1 Asset Purchase Agreement dated as August 11, 1999 between
the Company and Camino with Addendum.
10.2 Security Agreement - Stock Pledge dated as September 17,
1999 between the Company and Camino.
10.3 Registration Rights Agreement dated as of September 17,
1999 between the Company and Camino.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERSCIENCE COMPUTER CORPORATION
Date: September 30, 1999 By: /s/ Walter Kornbluh
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Walter Kornbluh, President
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INDEX TO EXHIBITS
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Exhibit
Number Description
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10.1 Asset Purchase Agreement dated as August 11, 1999 between
the Company and Camino with Addendum.
10.2 Security Agreement - Stock Pledge dated as September 17,
1999 between the Company and Camino.
10.3 Registration Rights Agreement dated as of September 17,
1999 between the Company and Camino.
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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
dated as of August 11, 1999,
by and between
INTERSCIENCE COMPUTER CORPORATION,
a California corporation, as Purchaser
and
CAMINO SOFTWARE SYSTEMS, INC.,
a California corporation, as Seller
With Respect to the Assets of Seller
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TABLE OF CONTENTS
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ARTICLE I. SALE OF ASSETS AND CLOSING.................................. 1
1.01 Assets........................................................... 1
1.02 Liabilities...................................................... 2
1.03 Purchase Price; Allocation....................................... 3
1.04 Closing.......................................................... 3
1.05 Further Assurances; Post-Closing Cooperation..................... 4
1.06 Third-Party Consents............................................. 5
1.07 Insurance Proceeds............................................... 5
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF SELLER.................... 5
2.01 Organization of Seller........................................... 5
2.02 Authority........................................................ 5
2.03 No Conflicts..................................................... 6
2.04 Governmental Approvals and Filings............................... 6
2.05 Books and Records................................................ 6
2.06 Absence of Changes............................................... 6
2.07 Legal Proceedings................................................ 6
2.08 Employees........................................................ 7
2.09 Intellectual Property Rights..................................... 7
2.10 Contracts........................................................ 7
2.11 Licenses......................................................... 8
2.12 Taxes............................................................ 8
2.13 Substantial Customers and Suppliers.............................. 8
2.14 Inventory........................................................ 8
2.15 No Guarantees.................................................... 9
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2.16 Entire Business.................................................. 9
2.17 Disclosure....................................................... 9
2.18 Prepaid Expenses................................................. 9
2.19 Liabilities...................................................... 9
2.20 Restrictions on Purchaser Stock.................................. 9
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF PURCHASER................. 9
3.01 Organization..................................................... 9
3.02 Authority........................................................ 10
3.03 No Conflicts..................................................... 10
3.04 Governmental Approvals and Filings............................... 10
3.05 Legal Proceedings................................................ 10
ARTICLE IV. COVENANTS OF SELLER......................................... 10
4.01 Regulatory and Other Approvals................................... 11
4.02 Due Diligence Investigation by Purchaser......................... 11
4.03 Solicitation of Competing Offers................................. 11
4.04 Conduct of Business.............................................. 11
4.05 Certain Restrictions............................................. 12
4.06 Delivery of Books and Records, etc.; Removal of Property......... 12
4.07 Noncompetition................................................... 13
4.08 Notice and Cure.................................................. 13
4.09 Fulfillment of Conditions........................................ 14
4.10 Taxes............................................................ 14
4.11 Corporate Name Change. ......................................... 14
ARTICLE V. CONDITIONS TO OBLIGATIONS OF PURCHASER...................... 14
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5.01 Representations and Warranties.................................... 15
5.02 Performance....................................................... 15
5.03 Orders and Laws................................................... 15
5.04 Regulatory Consents and Approvals................................. 15
5.05 Third Party Consents.............................................. 15
5.06 Deliveries........................................................ 16
5.07 Proceedings....................................................... 16
5.08 Approval of Board of Directors of Purchaser....................... 16
5.09 Completion of Due Diligence....................................... 16
ARTICLE VI. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS.................................................. 16
6.01 Survival of Representations, Warranties, Covenants and Agreements. 16
ARTICLE VII. INDEMNIFICATION............................................. 16
7.01 Indemnification................................................... 16
ARTICLE VIII. TERMINATION................................................. 17
8.01 Termination....................................................... 17
8.02 Effect of Termination............................................. 17
ARTICLE IX. DEFINITIONS................................................. 18
9.01 Definitions....................................................... 18
ARTICLE X. MISCELLANEOUS............................................... 21
10.01 Notices........................................................... 21
10.02 Entire Agreement.................................................. 23
10.03 Expenses.......................................................... 23
10.04 Public Announcements.............................................. 23
10.05 Confidentiality................................................... 23
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10.06 Waiver............................................................ 24
10.07 Amendment......................................................... 24
10.08 No Third Party Beneficiary........................................ 24
10.09 No Assignment; Binding Effect..................................... 24
10.10 Headings.......................................................... 24
10.11 Consent to Jurisdiction and Service of Process.................... 24
10.12 Invalid Provisions................................................ 25
10.13 Governing Law..................................................... 25
10.14 Counterparts...................................................... 25
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This Asset Purchase Agreement (the "Agreement") dated as of August 11,
1999, is made and entered into by and between Interscience Computer Corporation,
a California corporation ("Purchaser"), on the one hand, and Camino Software
Systems, Inc., a California corporation ("Seller"), on the other hand.
Capitalized terms not otherwise defined herein have the meanings set forth in
Section 9.01.
WHEREAS, Seller is engaged in the business of developing and selling
hierarchical storage management software (the "Seller's Business"); and
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Seller, all of the assets of
Seller relating to the operation of the Seller's Business and in connection
therewith, Purchaser has agreed to assume certain of the liabilities of Seller
relating to Seller's Business, all on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
SALE OF ASSETS AND CLOSING
1.01 Assets.
(a) Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, Seller will sell, transfer, convey,
assign and deliver to Purchaser, and Purchaser will purchase and pay for, at the
Closing, all of Seller's right, title and interest in, to and under the
following Assets of Seller used or held for use in connection with Seller's
Business, as the same shall exist on the Closing Date (collectively, the
"Assets"):
(i) Business Contracts. All purchase orders,
technical support agreements, licenses and other contracts, and personal
property leases which are used in connection with Seller's Business (the
"Business Contracts");
(ii) Accounts Receivable. All accounts receivable and
the proceeds thereof relating to Seller's Business and all notes, bonds and
other evidences of Indebtedness of and rights to receive payments arising out of
sales and services occurring in the conduct of the Seller's Business and the
security agreements related thereto, including any rights of Seller with respect
to any third party collection procedures or any other Actions or Proceedings
which have been commenced in connection therewith (the "Accounts Receivable");
(iii) Deposits and Advances. All deposits or advances
by or on behalf of Seller in connection with Seller's Business;
(iv) Inventory. (a) any inventory, including without
limitation, supplies used in connection with Seller's Business, all packaging
material, computer disks, CD-Rom disks, office supplies of any kind, and product
manuals and (b) any of the foregoing
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purchased subject to any conditional sales or title retention agreement in favor
of any other Person; and (c) all rights of Seller against suppliers of such
inventories in (a) and (b), or otherwise (the "Inventory");
(v) Intangible Personal Property. All Intellectual
Property used or held for use in the conduct of the Seller's Business (including
Seller's goodwill therein) and all rights, privileges, claims, causes of action
and options relating or pertaining to the Assets described in this Section 1.01,
including without limitation all rights of Seller to conduct Seller's Business
acquired as successor to the rights of IDAS Corporation, a Nevada Corporation
(the "Intangible Personal Property");
(vi) Books and Records. Copies of all Books and
Records used or held for use relating to the Assets and requested by Purchaser,
including copies of all technical manuals used in Seller's Business (the
"Business Books and Records");
(vii) Cash. All Cash (including checks received prior
to the close of business on the Closing Date, whether or not deposited or
cleared prior to the close of business on the Closing Date), commercial paper,
certificates of deposit and other bank deposits, treasury bills and other cash
equivalents; and
(viii) Other Assets and Properties. All other Assets
and Properties of Seller used or held for use in connection with the Seller's
Business, except the Excluded Assets (as defined in Section 1.01(b)) (the "Other
Assets").
(b) Excluded Assets. Notwithstanding anything in this
Agreement to the contrary, the following Assets and Properties of Seller,
including even as they may relate to the Seller's Business (the "Excluded
Assets") shall be excluded from and shall not constitute Assets:
(i) Insurance. Life insurance policies of officers
and other employees of Seller and all other insurance policies relating to the
operation of the Business;
(ii) Employee Benefit Plans. All assets owned or held
by any Benefit Plans;
(iii) Excluded Books and Records. The minute books,
stock transfer books and corporate seal of Seller and any other Books and
Records relating to the Excluded Assets, the Retained Liabilities (the "Excluded
Books and Records"); and
(iv) Seller's rights under this Agreement and the
related Operative Agreements.
1.02 Liabilities.
(a) Assumed Liabilities. In connection with the sale,
transfer, conveyance, assignment and delivery of the Assets pursuant to this
Agreement, on the terms and subject to the conditions set forth in this
Agreement, at the Closing, Purchaser will assume and agree to pay, perform and
discharge when due the following obligations of Seller arising in connection
with
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the operation of Seller's Business, as the same shall exist on the Closing Date
(the "Assumed Liabilities"), and no others:
(i) Obligations under Contracts and Licenses. With
respect to the Seller's Business, all obligations of Seller under the Business
Contracts, as set forth in Schedule 1.02(a)(i) hereto, to be performed on or
after the Closing Date, and excluding any such obligations arising or to be
performed prior to the Closing Date;
(ii) Obligations of Seller To California Factors And
Finance Company. Certain obligations of Seller to California Factors And Finance
Company in an amount not to exceed $110,000.00 as set forth in Schedule
1.02(a)(ii) to this Agreement; and
(iii) Certain Other Obligations Of Seller. Certain
unsecured obligations of Seller not to exceed the aggregate sum of $100,000 as
specifically identified in Schedule 1.02(a)(iii) to this Agreement.
(b) Retained Liabilities. Except for the Assumed Liabilities,
Purchaser shall not assume by virtue of this Agreement or the transactions
contemplated hereby, and shall have no liability for, any Liabilities of Seller
(including, without limitation, those related to Seller's Business) of any kind,
character or description whatsoever (the "Retained Liabilities"). Seller shall
discharge in a timely manner or shall make adequate provision for all of the
Retained Liabilities, provided that Seller shall have the ability to contest, in
good faith, any such claim of liability asserted in respect thereof by any
Person other than Purchaser and its Affiliates.
1.03 Purchase Price; Allocation.
(a) Purchase Price. The purchase price for the Assets is
payment of Assumed Liabilities in an aggregate amount not to exceed $250,000.00
(including on going operating expenses such as rent, utilities and the like),
which Assumed Liabilities shall be paid in the manner set forth in Schedules
1.02(a)(i) and 1.02(a)(ii) and (iii) and the delivery of 420,000 shares of
Purchaser Stock at the Closing in the manner provided in Section 1.04.
(b) Allocation of Purchase Price. If requested in writing by
any party hereto, Purchaser and Seller shall negotiate in good faith prior to
the Closing Date and determine the allocation of the consideration paid by
Purchaser for the Assets. Each party hereto agrees (i) that any such allocation
shall be consistent with the requirements of Section 1060 of the Internal
Revenue Code and the regulations thereunder, (ii) to complete jointly and to
file separately Form 8594 with its Federal income Tax Return consistent with
such allocation for the tax year in which the Closing Date occurs and (iii) that
no party will take a position on any income, transfer or gains Tax Return,
before any Governmental or Regulatory Authority charged with the collection of
any such Tax or in any judicial proceeding, that is in any manner inconsistent
with the terms of any such allocation without the consent of the other party.
1.04 Closing. The Closing will take place at the offices of Biegenzahn
Weinberg in Woodland Hills, California, or at such other place as Purchaser and
Seller mutually agree, at 10:00 A.M. local time, on the Closing Date. At the
Closing, Purchaser will pay the Purchase Price by delivering the Purchaser Stock
and, to the extent that payment is required for any of the Assumed Liabilities,
by wire transfer of immediately available funds to such account or Person
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or Persons as Seller may reasonably direct by written notice delivered to
Purchaser by Seller at least two (2) Business Days before the Closing Date. With
respect to the Purchase Price, Purchaser shall also be credited with all amounts
advanced by Purchaser to or on behalf of Seller prior to Closing, including
without limitation, all rent, utilities, office expenses and the like advanced
by Purchaser to Seller. Simultaneously at Closing, (a) Seller will assign and
transfer to Purchaser all of its right, title and interest in and to the Assets,
free and clear of any and all liens, claims and encumbrances, by delivery of (i)
a General Assignment and Bill of Sale substantially in the form of Exhibit A
hereto (the "General Assignment"), duly executed by Seller, (ii) an assignment
of the Intellectual Property in form and substance reasonably satisfactory to
Purchaser, and (iii) such other good and sufficient instruments of conveyance,
assignment and transfer, in form and substance reasonably acceptable to
Purchaser's counsel, as shall be effective to vest in Purchaser good title to
the Assets (the General Assignment and the other instruments referred to in
clauses (ii) and (iii) being collectively referred to herein as the "Assignment
Instruments"). At the Closing, there shall also be delivered to Seller and
Purchaser the contracts, documents and instruments required to be delivered to
consummate this Agreement.
1.05 Further Assurances; Post-Closing Cooperation.
(a) At any time or from time to time after the Closing, at
Purchaser's request and without further consideration, Seller shall execute and
deliver to Purchaser such other instruments of sale, transfer, conveyance,
assignment and confirmation, provide such materials and information and take
such other actions as Purchaser may reasonably deem necessary or desirable in
order more effectively to transfer, convey and assign to Purchaser, and to
confirm Purchaser's title to, all of the Assets, and, to the full extent
permitted by Law, to put Purchaser in actual possession and operating control of
Seller's Business and the Assets and to assist Purchaser in exercising all
rights with respect thereto, and otherwise to cause Seller to fulfill its
obligations under this Agreement and the Operative Agreements.
(b) Effective on the Closing Date, Seller hereby constitutes
and appoints Purchaser the true and lawful attorney of Seller, with full power
of substitution, in the name of Seller or Purchaser, but on behalf of and for
the benefit of Purchaser: (i) to demand and receive from time to time any and
all the Assets and to make endorsements and give receipts and releases for and
in respect of the same and any part thereof; (ii) to institute, prosecute,
compromise and settle any and all Actions or Proceedings that Purchaser may deem
proper in order to collect, assert or enforce any claim, right or title of any
kind in or to the Assets; (iii) to defend or compromise any or all Actions or
Proceedings in respect of any of the Assets; and (iv) to do all such acts and
things in relation to the matters set forth in the preceding clauses (i) through
(iii) as Purchaser shall deem desirable. Seller hereby acknowledges that the
appointment hereby made and the powers hereby granted are coupled with an
interest and are not and shall not be revocable by it in any manner or for any
reason. Seller shall deliver to Purchaser at Closing an acknowledged power of
attorney to the foregoing effect executed by Seller. Purchaser shall indemnify
and hold harmless Seller from any and all Losses caused by or arising out of any
breach of Law by Purchaser in its exercise of such power of attorney.
(c) Both before and following the Closing, Seller will afford
Purchaser, its counsel and its accountants, during normal business hours,
reasonable access to the books,
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records and other data relating to Seller's Business in its possession with
respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required by
Purchaser in connection with (i) the preparation of Tax Returns, (ii) the
determination or enforcement of rights and obligations under this Agreement,
(iii) compliance with the requirements of any Governmental or Regulatory
Authority, (iv) the determination or enforcement of the rights and obligations
of any party to this Agreement or any of the Operative Agreements or (v) in
connection with any actual or threatened Action or Proceeding.
1.06 Third-Party Consents. To the extent that any Business Contract is
not assignable without the consent of another party, this Agreement shall not
constitute an assignment or an attempted assignment thereof if such assignment
or attempted assignment would constitute a breach thereof or a default
thereunder. Seller and Purchaser shall use their best efforts to obtain the
consent of such other party to the assignment of any such Business Contract to
Purchaser in all cases in which such consent is or may be required for such
assignment. If any such consent shall not be obtained, Seller shall cooperate
with Purchaser in any reasonable arrangement designed to provide for Purchaser
the benefits intended to be assigned to Purchaser under the relevant Business
Contract including enforcement at the cost and for the account of Purchaser of
any and all rights of Seller against the other party thereto arising out of the
breach or cancellation thereof by such other party or otherwise. If and to the
extent that such arrangement cannot be made, Purchaser shall have no obligation
pursuant to Section 1.02 or otherwise with respect to any such Business
Contract. The provisions of this Section 1.06 shall not affect the right of
Purchaser not to consummate the transactions contemplated by this Agreement if
the condition to its obligations hereunder contained in Section 5.06 has not
been fulfilled.
1.07 Insurance Proceeds. If any of the Assets are destroyed or damaged
or taken in condemnation, the insurance proceeds or condemnation award with
respect thereto shall be an Asset.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.01 Organization of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of the State of California,
and has full corporate power and authority to conduct the Business as and to the
extent now conducted and to own, use and lease the Assets.
2.02 Authority. Seller has full corporate power and authority to
execute and deliver this Agreement and the Operative Agreements to which it is a
party, to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, including without limitation to
sell and transfer (pursuant to this Agreement) the Assets. The execution and
delivery by Seller of this Agreement and the Operative Agreements to which it is
a party, and the performance by Seller of its obligations hereunder and
thereunder, have been duly and validly authorized by the Board of Directors of
Seller, no other corporate action on the part
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of Seller or its stockholders being necessary. This Agreement and the Operative
Agreements have been duly and validly executed and delivered by Seller and
constitute legal, valid and binding obligations of Seller enforceable against
Seller in accordance with their terms.
2.03 No Conflicts. The execution and delivery and performance by Seller
of this Agreement and the Operative Agreements will not: (A) conflict with or
result in a violation or breach of any of the terms, conditions or provisions of
any (i) certificate or articles of incorporation, by-laws or other comparable
corporate charter documents of Seller, (ii) any Business Contract, or (ii) any
court order, consent decree or similar agreement approved by a court of which
Seller has knowledge and to which Seller or any of its affiliates is a party and
that is material to any of the Assets being transferred by Seller to Purchaser;
or (B) with respect to any Business Contract (i) constitute (with or without
notice or lapse of time or both) a default, (ii) require Seller to obtain any
consent, approval or action of, make any filing with or give any notice to any
Person or (iii) result in the creation or imposition of any Lien upon any of the
Assets, provided, except, however, that this Section 2.03 shall not apply to the
contractual right of any party to a Business Contract to terminate such Business
Contract without cause upon the giving of notice, with or without a waiting
period.
2.04 Governmental Approvals and Filings. Seller is not aware of any
consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority on the part of Seller that is required in connection with
the execution, delivery and performance of this Agreement or any of the
Operative Agreements to which it is a party or the consummation of the
transactions contemplated hereby or thereby.
2.05 Books and Records. None of the Business Books and Records is
recorded, stored, maintained, operated or otherwise wholly or partly dependent
upon or held by any means (including any electronic, mechanical or photographic
process, whether computerized or not) which (including all means of access
thereto and therefrom) are not under the exclusive ownership and direct control
of Seller.
2.06 Absence of Changes. Except for the execution and delivery of this
Agreement and the transactions to take place pursuant hereto on or prior to the
Closing Date, since January 2, 1999 there has not occurred, to the date hereof,
(i) any entering into, amendment, modification, termination (partial or
complete) or granting of a waiver under or giving any consent with respect to
any Business Contract which is an Asset, or (ii) any other transaction of Seller
involving or affecting Seller's Business or the Assets outside the ordinary
course of business consistent with past practice.
2.07 Legal Proceedings. (a) Except as disclosed in writing by Seller to
Purchaser and attached hereto as Schedule 2.07 (i) there are no Actions or
Proceedings pending or, to the Knowledge of Seller, threatened against, relating
to or affecting Seller with respect to Seller's Business or any of the Assets
which (A) could reasonably be expected to result in the issuance of an Order
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements or otherwise result in a material diminution of the
benefits contemplated by this Agreement or any of the Operative Agreements to
Purchaser, or (B) if determined adversely to Seller, could reasonably be
expected to result in (x) any injunction or other equitable relief that would
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interfere in any material respect with the Business or (y) Losses by Seller,
individually or in the aggregate with Losses in respect of other such Actions or
Proceedings, exceeding $10,000; and (b) there are no facts or circumstances
known to Seller that could reasonably be expected to give rise to any Action or
Proceeding that would be required to be disclosed pursuant to clause (i) of this
Section 2.07(a).
2.08 Employees.
(a) Purchaser is not acquiring a division of the Seller nor
any obligations to or with respect to (i) any of Seller's employees with respect
to continuing employment of and compensation of any sort to any such employees,
or (ii) any Benefit Plans, including but not limited to life, medical, pension
or health plans.
(b) Seller consents without qualification to Purchaser's
employment of any Employee of Seller currently or previously employed in
Seller's Business and, as to current employees, named in the attached Schedule
2.08(b).
2.09 Intellectual Property Rights. There are no restrictions on the
direct or indirect transfer of any Business Contract, or any interest therein,
held by Seller in respect of any Intellectual Property. Seller is the owner or
licensee of all Intellectual Property used Seller in connection with Seller's
Business. Seller has not received notice that Seller is infringing any
Intellectual Property of any other Person in connection with the conduct of
Seller's Business, no claim is pending or, to the Knowledge of Seller, has been
made to such effect that has not been resolved and, to the Knowledge of Seller,
Seller is not infringing any Intellectual Property of any other Person in
connection with the conduct of Seller's Business.
2.10 Contracts.
(a) Except as set forth in Schedule 2.010 hereto, there are no
other Contracts.
(b) Seller has provided Purchaser with a true and complete
copy of each of the Contracts to which Seller is a party in connection with
Seller's Business or by which any of the Assets is bound.
(c) Each Contract is in full force and effect and constitutes
a legal, valid and binding agreement, enforceable in accordance with its terms,
of each party thereto; and neither Seller nor, to the Knowledge of Seller, any
other party to such Contract is, or has received notice that it is, in violation
or breach of or default under any such Contract (or with notice or lapse of time
or both, would be in violation or breach of or default under any such Contract)
in any material respect.
(d) Except with respect to the contractual right of any party
to a Contract to terminate such Contract without cause upon the giving of
notice, with or without a waiting period, the execution, delivery and
performance by Seller of this Agreement and the Operative Agreements to which it
is a party, and the consummation of the transactions contemplated hereby and
thereby, will not (A) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, (B) result in
or give to any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments
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under, or (C) result in the creation or imposition of any Lien upon Seller or
any of its Assets and Properties under any Contract in connection with the
Seller's Business.
2.11 Licenses. Seller has provided Purchaser with a true and complete
list of all material Licenses used or held for use in the Seller's Business (and
all pending applications for any such Licenses), setting forth the grantor, the
grantee, the function and the expiration and renewal date of each. Prior to the
execution of this Agreement, Seller has delivered to Purchaser true and complete
copies of all such Licenses. With respect to the Seller's Business:
(i) Seller owns or validly holds all Licenses that
are material thereto;
(ii) each such License is valid, binding and in full
force and effect;
(iii) Seller is not, nor has it received any notice
that it is, in default (or with
the giving of notice or lapse of time or both, would be in default) under any
License; and
(iv) except with respect to the contractual right of
any party to a Business Contract to terminate such Business Contract without
cause upon the giving of notice, with or without a waiting period, the
execution, delivery and performance by Seller of this Agreement and the
Operative Agreements to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, will not (A) result in or give to
any Person any right of termination, cancellation, acceleration or modification
in or with respect to, (B) result in or give to any Person any additional rights
or entitlement to increased, additional, accelerated or guaranteed payments
under, or (C) result in the creation or imposition of any Lien upon Seller or
any of its Assets and Properties under, any License.
2.12 Taxes. Seller has timely filed (or will timely file) all Tax
Returns required to be filed by applicable law prior to the Closing related to
the Seller's Business or the Assets. Other than as disclosed on attached
Schedule 2.012, Seller has timely paid (or will timely pay) all Taxes that are
due, or claimed or asserted by any taxing authority to be due, for the periods
covered by the Tax Returns that relate to Seller's Business or the Assets. Tax
liens on the Assets do not exceed the Purchase Price and Seller will use the
first proceeds of the Purchase Price to pay any Tax liens upon the Assets.
Seller has complied (and until the Closing will comply) with all applicable
laws, rules and regulations relating to the payment of withholding Taxes
(including withholding and reporting requirements under Code sections 1441
through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any
other laws) and have, within the time and in the manner prescribed by law,
withheld from employee wages and paid over to the proper governmental
authorities all required amounts.
2.13 Substantial Customers and Suppliers. Seller has provided Purchaser
with a list of the customers and suppliers of Seller's Business and the revenues
generated by such customer in the 12 months prior to the date of this Agreement.
2.14 Inventory.
(a) All the Inventory consists of a quality and quantity
usable and salable in the ordinary course of business consistent with past
practice. Seller has good title to the Inventory, and all items included in the
Inventory are the property of Seller, are not held by
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Seller on consignment from others and conform in all material respects to all
standards applicable to such inventory or its use or sale imposed by
Governmental or Regulatory Authorities.
2.15 No Guarantees. None of the Liabilities of the Seller's Business or
of Seller incurred in connection with the conduct of Seller's Business is
guaranteed by or subject to a similar contingent obligation of any other Person,
nor has Seller guaranteed or become subject to a similar contingent obligation
in respect of the Liabilities of any customer, supplier or other Person to whom
Seller sells goods or provides services or with whom Seller otherwise has
significant business relationships in the conduct of Seller's Business.
2.16 Entire Business. Except for the Excluded Assets, the sale of the
Assets by Seller to Purchaser pursuant to this Agreement will effectively convey
to Purchaser the entirety of Seller's Business and all of the tangible and
intangible property used by Seller (whether owned, leased or held under license
by Seller, by any of Seller's Affiliates or by others) in connection with the
conduct of Seller's Business heretofore conducted by Seller.
2.17 Disclosure. All material facts relating to the condition of
Seller's Business have been disclosed to Purchaser in or in connection with this
Agreement. No representation or warranty contained in this Agreement, and no
statement contained in any certificate, list or other writing furnished to
Purchaser pursuant to any provision of this Agreement, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading.
2.18 Prepaid Expenses. As of the Closing Date, there were no prepaid
expenses relating to Seller's Business of Seller, as the term "prepaid expenses"
is used in the ordinary course of Seller's business.
2.19 Liabilities. All of Seller's Liabilities are disclosed on Schedule
2.019 attached hereto.
2.20 Restrictions on Purchaser Stock. Seller is acquiring the Purchaser
Stock for investment purposes only and not with a view to the distribution
thereof. Seller acknowledges that the Purchaser Stock is restricted stock as
defined Rule 144 under the Securities Act of 1933, as amended (the "Act") and
will bear a legend to that effect and Purchaser Stock may not be resold absent a
effective registration statement or an applicable exception to the Act.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
3.01 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the Laws of the State of California.
Purchaser has full corporate power and authority to enter into this Agreement
and the Operative Agreements to which it is a party, to
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perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby.
3.02 Authority. The execution and delivery by Purchaser of this
Agreement and the Operative Agreements to which it is a party, and the
performance by Purchaser of its obligations hereunder and thereunder, have been
duly and validly authorized by the Board of Directors of Purchaser, no other
corporate action on the part of Purchaser or its stockholders being necessary.
This Agreement has been duly and validly executed and delivered by Purchaser and
constitutes, and upon the execution and delivery by Purchaser of the Operative
Agreements to which it is a party, such Operative Agreements will constitute,
legal, valid and binding obligations of Purchaser enforceable against Purchaser
in accordance with their terms.
3.03 No Conflicts. The execution and delivery by Purchaser of this
Agreement does not, and the execution and delivery by Purchaser of the Operative
Agreements to which it is a party, the performance by Purchaser of its
obligations under this Agreement and such Operative Agreements and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a violation or breach of any of the terms, conditions
or provisions of the certificate or articles of incorporation or by-laws or
other comparable corporate charter document of Purchaser or constitute (with or
without notice or lapse of time or both) a default under, require Purchaser to
obtain any consent, approval or action of, make any filing with or give any
notice to any Person as a result or under the terms of, any Contract or License
to which Purchaser is a party.
3.04 Governmental Approvals and Filings. No consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority on the
part of Purchaser is required in connection with the execution, delivery and
performance of this Agreement or the Operative Agreements to which it is a party
or the consummation of the transactions contemplated hereby or thereby.
3.05 Legal Proceedings. There are no Actions or Proceedings pending or,
to the knowledge of Purchaser, threatened against, relating to or affecting
Purchaser or any of its Assets and Properties which could reasonably be expected
to result in the issuance of an Order restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement or any of the Operative Agreements.
3.06 Purchaser Stock. The Purchaser Stock will, upon delivery thereof,
be duly authorized, validly issued, fully paid and non-assessable.
3.07 Securities Compliance. Purchaser is required to file reports under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and is current in its filings thereunder. Purchaser has complied in all
material respects with the requirements of the Exchange Act.
ARTICLE IV.
COVENANTS OF SELLER
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Seller covenants and agrees with Purchaser that, at all times from and
after the date hereof until the Closing and, with respect to any covenant or
agreement by its terms to be performed in whole or in part after the Closing,
for the period specified therein or, if no period is specified therein,
indefinitely, Seller will comply with all covenants and provisions of this
Article IV, except to the extent Purchaser may otherwise consent in writing.
4.01 Regulatory and Other Approvals. Seller will, as promptly as
practicable, (a) take all commercially reasonable steps necessary or desirable
to obtain all consents, approvals or actions of, make all filings with and give
all notices to Governmental or Regulatory Authorities or any other Person
required of Seller to consummate the transactions contemplated hereby and by the
Operative Agreements, and (b) provide such other information and communications
to such Governmental or Regulatory Authorities or other Persons as Purchaser or
such Governmental or Regulatory Authorities or other Persons may reasonably
request in connection therewith. Seller will provide prompt notification to
Purchaser when any such consent, approval, action, filing or notice referred to
in clause (a) above is obtained, taken, made or given, as applicable, and will
advise Purchaser of any communications (and, unless precluded by Law, provide
copies of any such communications that are in writing) with any Governmental or
Regulatory Authority or other Person regarding any of the transactions
contemplated by this Agreement or any of the Operative Agreements.
4.02 Due Diligence Investigation by Purchaser. To the extent not
already provided by Seller, until the Closing Date, Seller will (a) provide
Purchaser and its officers, directors, employees, agents, counsel, accountants,
financial advisors, consultants and other representatives (collectively,
"Representatives") with reasonable access, upon reasonable prior notice and
during normal business hours, to the employees and such other officers, and
agents of Seller who have any responsibility for the conduct of Seller's
Business, to Seller's accountants and to the Assets, and (b) furnish Purchaser
and such other Persons with all such information and data (including without
limitation copies of Business Contracts, and other Business Books and Records)
concerning Seller's Business, the Assets and the Assumed Liabilities as
Purchaser or any of such other Persons reasonably may request in connection with
such investigation.
4.03 Solicitation of Competing Offers. From the date of execution of
this Agreement through Closing, Seller shall not solicit, encourage or accept
any competing offers or enter into any discussions, negotiations or agreements
with any Person other than Purchaser or its designees with respect to any
investment in or sale of the stock of Seller or the Assets.
4.04 Conduct of Business. Until the Closing Date, Seller will operate
Seller's Business only in the ordinary course consistent with past practice.
Without limiting the generality of the foregoing, Seller will:
(a) use commercially reasonable efforts to (i) preserve intact
the present business organization and reputation of the Seller's Business, (ii)
keep available (subject to dismissals and retirements in the ordinary course of
business consistent with past practice) the services of the Employees, (iii)
maintain the Assets in good working order and condition, ordinary wear and tear
excepted, (iv) maintain the good will of customers, suppliers, lenders and other
Persons to whom Seller sells goods or provides services or with whom Seller
otherwise has
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significant business relationships in connection with the Seller's Business and
(v) continue all current sales, marketing and promotional activities relating to
Seller's Business;
(b) except to the extent required by applicable Law, (i) cause
the Business Books and Records to be maintained in the usual, regular and
ordinary manner, and (ii) not permit any material change in any pricing,
investment, accounting, financial reporting, inventory, credit, allowance or Tax
practice or policy of Seller that would adversely affect Seller's Business or
the Assets; and
(c) comply, in all material respects, with all Laws and Orders
applicable to Seller's Business and promptly following receipt thereof to give
Purchaser copies of any notice received from any Governmental or Regulatory
Authority or other Person alleging any violation of any such Law or Order.
4.05 Certain Restrictions. Until the Closing Date, Seller will refrain
from:
(a) acquiring or disposing of any Assets and Properties used
or held for use in the conduct of the Seller's Business, other than Inventory in
the ordinary course of business consistent with past practice, or creating or
incurring any Lien any Assets used or held for use in the conduct of Seller's
Business;
(b) entering into, amending, modifying, terminating (partially
or completely), granting any waiver under or giving any consent with respect to
any Business Contract;
(c) violating, breaching or defaulting under in any material
respect, or taking or failing to take any action that (with or without notice or
lapse of time or both) would constitute a material violation or breach of, or
default under, any term or provision of any Business Contract;
(d) engaging with any Person in any Business Combination,
unless such Person agrees in a written instrument in form and substance
reasonably satisfactory to Purchaser to adopt and comply with the terms and
conditions of this Agreement as though such Person was an original signatory
hereto;
(e) engaging in any transaction with respect to Seller's
Business with any officer, director or Affiliate of Seller, either outside the
ordinary course of business consistent with past practice or other than on an
arm's-length basis; or
(f) entering into any Contract to do or engage in any of the
foregoing.
4.06 Delivery of Books and Records, etc.; Removal of Property.
(a) On the Closing Date, Seller will deliver or make available
to Purchaser at the locations at which the Business is conducted all of the
Business Books and Records and such other Assets as are in Seller's possession
at other locations, and if at any time after the Closing Seller discovers in its
possession or under its control any other Business Books and Records or other
Assets, it will forthwith deliver such Business Books and Records or other
Assets to Purchaser.
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4.07 Noncompetition.
(a) Seller and its shareholders will, for a period of five
years from the Closing Date, refrain from, either alone or in conjunction with
any other Person, or directly or indirectly through its present or future
Affiliates:
(i) employing, engaging or seeking to employ or
engage any Person who within the prior twelve months had been an employee of
Purchaser or any of its Affiliates engaged in the Seller's Business, unless such
employee (A) resigns voluntarily (without any solicitation from Seller or any of
its Affiliates) or (B) is terminated by Purchaser or any of its Affiliates after
the Closing Date;
(ii) causing or attempting to cause (A) any client,
customer or supplier of Seller's Business to terminate or materially reduce its
business with Purchaser or any of its Affiliates or (B) any officer, employee or
consultant of Purchaser or any of its Affiliates engaged in the Seller's
Business to resign or sever a relationship with Purchaser or any of its
Affiliates;
(iii) disclosing (unless compelled by judicial or
administrative process) or using any confidential or secret information relating
to Seller's Business or any client, customer or supplier of Seller's Business;
or
(iv) participating or engaging in (other than through
the ownership of five percent (5%) or less of any class of securities registered
under the Securities Exchange Act of 1934, as amended), or otherwise lending
assistance (financial or otherwise) to any Person participating or engaged in,
Seller's Business on the Closing Date in any jurisdiction in which Seller
participates or engages in Seller's Business on the Closing Date.
(b) The parties hereto recognize that the Laws and public
policies of the various states of the United States may differ as to the
validity and enforceability of covenants similar to those set forth in this
Section. It is the intention of the parties that the provisions of this Section
be enforced to the fullest extent permissible under the Laws and policies of
each jurisdiction in which enforcement may be sought, and that the
unenforceability (or the modification to conform to such Laws or policies) of
any provisions of this Section shall not render unenforceable, or impair, the
remainder of the provisions of this Section. Accordingly, if any provision of
this Section shall be determined to be invalid or unenforceable, such invalidity
or unenforceability shall be deemed to apply only with respect to the operation
of such provision in the particular jurisdiction in which such determination is
made and not with respect to any other provision or jurisdiction.
(c) The parties hereto acknowledge and agree that any remedy
at Law for any breach of the provisions of this Section would be inadequate, and
Seller hereby consents to the granting by any court of an injunction or other
equitable relief, without the necessity of actual monetary loss being proved, in
order that the breach or threatened breach of such provisions may be effectively
restrained.
4.08 Notice and Cure. Seller will notify Purchaser in writing of, and
contemporaneously will provide Purchaser with true and complete copies of any
and all information or documents relating to, and will use all commercially
reasonable efforts to cure
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before the Closing, any event, transaction or circumstance, as soon as
practicable after it becomes Known to Seller, occurring after the date of this
Agreement that causes or will cause any covenant or agreement of Seller under
this Agreement to be breached or that renders or will render untrue any
representation or warranty of Seller contained in this Agreement as if the same
were made on or as of the date of such event, transaction or circumstance. No
notice given pursuant to this Section shall have any effect on the
representations, warranties, covenants or agreements contained in this Agreement
for purposes of determining satisfaction of any condition contained herein or
shall in any way limit Purchaser's right to seek indemnity under Article IX.
4.09 Fulfillment of Conditions. Seller will execute and deliver at the
Closing each Operative Agreement that Seller is required hereby to execute and
deliver as a condition to the Closing, will take all commercially reasonable
steps necessary or desirable and proceed diligently and in good faith to satisfy
each other condition to the obligations of Purchaser contained in this Agreement
and will not take or fail to take any action that could reasonably be expected
to result in the nonfulfillment of any such condition.
4.10 Taxes.
(a) With respect to any Taxes payable by Purchaser with
respect to the Assets or the Business for a Tax period beginning before the
Closing and ending after the Closing, Seller will pay to Purchaser at least
three Business Days prior to the due date for the payment of such Tax in an
amount equal to the amount that would have resulted had the last day of the
period been the Closing Date and had the books of Seller been closed on that
date. Taxes not measured by income or transactions for which the last day of a
taxable period is not the Closing will be allocated pro rata per day between the
period ending on the Closing and the period commencing after the Closing.
(b) Seller shall pay all sales, use, transfer, real property
transfer, recording, stock transfer and other similar taxes and fees ("Transfer
Taxes") arising out of or in connection with the transactions effected pursuant
to this Agreement and shall indemnity Purchaser on an after-Tax basis with
respect to such Transfer Taxes. Seller shall file all necessary documentation
and Returns with respect to such Transfer Taxes.
4.11 Corporate Name Change. Concurrent with the Closing Seller shall
change its corporate name and the new corporate name shall not contain or refer
to "Camino Software Systems" or any permutation of that name.
ARTICLE V.
A. CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the Assets and to
assume and to pay, perform and discharge the Assumed Liabilities are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Purchaser in its sole
discretion):
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5.01 Representations and Warranties. Each of the representations and
warranties made by Seller in this Agreement (other than those made as of a
specified date earlier than the Closing Date) shall be true and correct in all
material respects on and as of the Closing Date as though such representation or
warranty was made on and as of the Closing Date, and any representation
or warranty made as of a specified date earlier than the Closing Date shall have
been true and correct in all material respects on and as of such earlier date.
5.02 Performance. Seller shall have performed and complied with, in all
material respects, each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by Seller at or before the
Closing.
5.03 Orders and Laws. There shall not be in effect on the Closing Date
any Order or Law restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
Agreement or any of the Operative Agreements or which could reasonably be
expected to otherwise result in a material diminution of the benefits of the
transactions contemplated by this Agreement or any of the Operative Agreements
to Purchaser, and there shall not be pending or threatened on the Closing Date
any Action or Proceeding in, before or by any Governmental or Regulatory
Authority which could reasonably be expected to result in the issuance of any
such Order or the enactment, promulgation or deemed applicability to Purchaser
or the transactions contemplated by this Agreement or any of the Operative
Agreements of any such Law.
5.04 Regulatory Consents and Approvals. All consents, approvals and
actions of, filings with and notices to any Governmental or Regulatory Authority
necessary to permit Purchaser and Seller to perform their obligations under this
Agreement and the Operative Agreements and to consummate the transactions
contemplated hereby and thereby (a) shall have been duly obtained, made or
given, (b) shall be in form and substance reasonably satisfactory to Purchaser,
(c) shall not be subject to the satisfaction of any condition that has not been
satisfied or waived and (d) shall be in full force and effect, and all
terminations or expirations of waiting periods imposed by any Governmental or
Regulatory Authority necessary for the consummation of the transactions
contemplated by this Agreement and the Operative Agreements shall have occurred.
5.05 Third Party Consents. All consents (or in lieu thereof waivers) to
the performance by Purchaser and Seller of their obligations under this
Agreement and the Operative Agreements or to the consummation of the
transactions contemplated hereby and thereby as are required under any Contract
to which Purchaser or Seller is a party or by which any of their respective
Assets and Properties are bound (a) shall have been obtained, (b) shall be in
form and substance reasonably satisfactory to Purchaser, (c) shall not be
subject to the satisfaction of any condition that has not been satisfied or
waived and (d) shall be in full force and effect, except where the failure to
obtain any such consent (or in lieu thereof waiver) could not reasonably be
expected, individually or in the aggregate with other such failures, to
materially adversely affect Purchaser, the Assets, the Assumed Liabilities or
Seller's Business or otherwise result in a material diminution of the benefits
of the transactions contemplated by this Agreement and the Operative Agreements
to Purchaser.
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5.06 Deliveries. Seller shall have delivered to Purchaser the General
Assignment and the other Assignment Instruments.
5.07 Proceedings.
(a) All proceedings to be taken on the part of Seller in
connection with the transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Purchaser, and Purchaser shall have received copies of all such
documents and other evidences as Purchaser may reasonably request in order to
establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
5.08 Approval of Board of Directors of Purchaser. The Board of
Directors shall have approved this Agreement.
5.09 Completion of Due Diligence. Purchaser's Due diligence
investigation of Seller and the Assets shall have been completed to Purchaser's
sole and complete satisfaction.
B. CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller hereunder to sell the Assets are subject to
the following conditions which may be waived by Seller in its sole discretion.
5.10 Registration Rights Agreement. Purchaser shall have executed and
delivered to Seller a Registration Rights Agreement substantively in the form of
Exhibit 5.10 attached hereto.
ARTICLE VI.
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
6.01 Survival of Representations, Warranties, Covenants and Agreements.
Notwithstanding any right of Purchaser (whether or not exercised) to investigate
the Seller's Business or any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Agreement, Purchaser and Seller have the right to rely
fully upon the representations, warranties, covenants and agreements of the
other contained in this Agreement. The representations, warranties, covenants
and agreements of Purchaser and Seller contained in this Agreement will survive
the Closing.
ARTICLE VII.
INDEMNIFICATION
7.01 Indemnification.
(a) Seller shall indemnify the Purchaser in respect of, and
hold Purchaser harmless from and against, any and all Losses suffered, incurred
or sustained by Purchaser or to which Purchaser becomes subject, resulting from,
arising out of or relating to (i) any breach of
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representation or warranty or nonfulfillment of or failure to perform any
covenant or agreement on the part of Seller contained in this Agreement
(determined in all cases as if the terms "material" or "materially" were not
included therein) or (ii) the Retained Liabilities. Seller's indemnification
obligation shall be secured by a pledge to Purchaser of Purchaser Stock for a
period of one (1) year. That pledge shall be evidenced by a pledge agreement
substantially in the form attached hereto as Exhibit "7.01(a)."
(b) Purchaser shall indemnify Seller in respect of, and hold Seller
harmless from and against, any and all Losses suffered, incurred or sustained by
Seller or to which Seller becomes subject, resulting from, arising out of or
relating to (i) any breach of representation or warranty or nonfulfillment of or
failure to perform any covenant or agreement on the part of Purchaser contained
in this Agreement (determined in all cases as if the terms "material" or
"materially" were not included therein) or (ii) the Assumed Liabilities.
ARTICLE VIII.
TERMINATION
8.01 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement of
Seller and Purchaser;
(b) at any time before the Closing, by Purchaser, in the event (i) of
a material breach hereof by the non-terminating party if such non-terminating
party fails to cure such breach within five (5) Business Days following
notification thereof by the terminating party or (ii) upon notification of the
non-terminating party by the terminating party that the satisfaction of any
condition to the terminating party's obligations under this Agreement becomes
impossible or impracticable (including the Purchaser's determination that due
diligence cannot be completed to its sole satisfaction) with the use of
commercially reasonable efforts if the failure of such condition to be satisfied
is not caused by a breach hereof by the terminating party; or
(c) at any time after October 31, 1999 by Seller or Purchaser upon
notification of the non-terminating party by the terminating party if the
Closing shall not have occurred on or before such date and such failure to
consummate is not caused by a breach of this Agreement by the terminating party.
8.02 Effect of Termination. If this Agreement is validly terminated
pursuant to Section 8.01, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of Seller or Purchaser
(or any of their respective officers, directors, employees, agents or other
representatives or Affiliates), except as provided in the next succeeding
sentence and except that the provisions with respect to expenses in Section
10.04 and confidentiality in Section 10.06 will continue to apply following any
such termination. Notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to Section 8.01 (b) or
(c), Seller will remain liable to Purchaser for any willful breach of this
Agreement by Seller existing at the time of such termination, and Purchaser
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will remain liable to Seller for any willful breach of this Agreement by
Purchaser existing at the time of such termination, and Seller or Purchaser may
seek such remedies, including damages and fees of attorneys, against the other
with respect to any such breach as are provided in this Agreement or as are
otherwise available at Law or in equity.
ARTICLE IX.
DEFINITIONS
9.01 Definitions.
(a) Defined Terms. As used in this Agreement, the following defined
terms have the meanings indicated below:
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Affiliate" means any Person that directly, or indirectly through one
of more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise and, in
any event and without limitation of the previous sentence, any Person owning ten
percent (10%) or more of the voting securities of another Person shall be deemed
to control that Person.
"Agreement" means this Asset Purchase Agreement and the Exhibits, and
Schedules hereto and the certificates delivered in accordance herewith, as the
same shall be amended from time to time.
"Assets and Properties" of any Person means all assets and properties
of every kind, nature, character and description (whether real, personal or
mixed, whether tangible or intangible, whether absolute, accrued, contingent,
fixed or otherwise and wherever situated), including the goodwill related
thereto, operated, owned or leased by such Person, including without limitation
cash, cash equivalents, accounts and notes receivable, Investment Assets,
chattel paper, documents, instruments, general intangibles, real estate,
equipment, inventory, goods and Intellectual Property.
"Benefit Plan" means any Plan established by Seller, or any
predecessor or Affiliate of Seller, existing at the Closing Date or prior
thereto, to which Seller contributes or has contributed on behalf of any
Employee, former Employee or director, or under which any Employee, former
Employee or director of Seller or any beneficiary thereof is covered, is
eligible for coverage or has benefit rights.
"Books and Records" of any Person means all files, documents,
instruments, papers, books and records relating to the business, operations,
condition of (financial or other), results of operations and Assets and
Properties of such Person, including without limitation financial statements,
Tax Returns and related work papers and letters from accountants, budgets,
pricing guidelines, ledgers, journals, deeds, title policies, minute books,
stock certificates and
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books, stock transfer ledgers, Contracts, Licenses, customer lists, computer
files and programs, retrieval programs, operating data and plans and
environmental studies and plans.
"Business" has the meaning ascribed to it in the recitals to this
Agreement.
"Business Combination" means with respect to any Person, any merger,
consolidation or combination to which such Person is a party, any sale,
dividend, split or other disposition of capital stock or other equity interests
of such Person or any sale, dividend or other disposition of all or
substantially all of the Assets and Properties of such Person.
"Business Day" means a day other than Saturday, Sunday or any day on
which banks located in the State[s] of [location of Seller's principal executive
offices] and [location of Purchaser's principal executive offices] are
authorized or obligated to close.
"Closing" means the closing of the transactions contemplated by
Section 1.04.
"Closing Date" means (a) September 1, 1999 or (b) such other date as
Purchaser and Seller mutually agree upon in writing.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
"Employee" means, as of the Closing Date, each current and former
employee, officer or consultant of Seller.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Indebtedness" of any Person means all obligations of such Person (i)
for borrowed money, (ii) evidenced by notes, bonds, debentures or similar
instruments, (iii) for the deferred purchase price of goods or services (other
than trade payables or accruals incurred in the ordinary course of business),
(iv) under capital leases and (v) in the nature of guarantees of the obligations
described in clauses (i) through (iv) above of any other Person.
"Indemnity Notice" means written notification of a claim for indemnity
under Article IX, specifying the nature of and basis for such claim, together
with the amount or, if not then reasonably determinable, the estimated amount,
determined in good faith, of the Loss arising from such claim.
"Intellectual Property" means all patents and patent rights,
trademarks and trademark rights, trade names (including Camino Software Systems
and all permutations of that name), and trade name rights, web page, service
marks and service mark rights, service names and service name rights, brand
names, inventions, processes, formulae, copyrights and copyright rights, trade
dress, business and product names, logos, slogans, advertising (and related
documentation), trade secrets, industrial models, processes, designs,
methodologies, computer programs (including all source codes) and related
documentation, technical information,
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manufacturing, engineering and technical drawings, know-how and all pending
applications for and registrations of patents, trademarks, service marks and
copyrights.
"Investment Assets" means all debentures, notes and other evidences of
Indebtedness, stocks, securities (including rights to purchase and securities
convertible into or exchangeable for other securities), interests in joint
ventures and general and limited partnerships, mortgage loans and other
investment or portfolio assets owned of record or beneficially by Seller (other
than trade receivables generated in the ordinary course of business of the
Seller).
"IRS" means the United States Internal Revenue Service.
"Knowledge of Seller" or "Known to Seller" means the knowledge of any
officer, director or employee of Seller.
"Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"Loss" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment).
"Operative Agreements" means, collectively, the General Assignment and
the other Assignment Instruments, and any support or other agreements to be
entered into in connection with the transaction.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
"Person" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union, association or Governmental or Regulatory
Authority.
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"Plan" means any bonus, incentive compensation, deferred compensation,
pension, profit sharing, retirement, stock purchase, stock option, stock
ownership, stock appreciation rights, phantom stock, leave of absence, layoff,
vacation, day or dependent care, legal services, cafeteria, life, health,
accident, disability, workmen's compensation or other insurance, severance,
separation or other employee benefit plan, practice, policy or arrangement of
any kind, whether written or oral, including, but not limited to, any "employee
benefit plan" within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended.
"Purchaser Stock" means shares of common stock of Interscience
Computer Corporation.
"Taxes" means any federal, state, county, local or foreign taxes,
charges, fees, levies, other assessments, or withholding taxes or charges
(including, without limitation) income, gross receipts, ad valorem, real or
personal property, license, payroll, wage withholding, employment, social
security, or occupation tax) imposed by any governmental entity, and includes
any interest and penalties (civil or criminal) on or additions to any taxes and
any expenses incurred in connection with the determination, settlement or
litigation of any Tax liability.
"Tax Return" means a report, return or other information (including
any amendments) required to be supplied to a governmental entity by the Company
with respect to Taxes including, where permitted or required, combined or
consolidated returns for any group of entities that includes Seller.
(b) Construction of Certain Terms and Phrases. Unless the context of
this Agreement otherwise requires, (i) words of any gender include each other
gender; (ii) words using the singular or plural number also include the plural
or singular number, respectively; (iii) the terms "hereof," "herein," "hereby"
and derivative or similar words refer to this entire Agreement; (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; and (v) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of Seller in connection with the Business. Whenever this Agreement
refers to a number of days, such number shall refer to calendar days unless
Business Days are specified. All accounting terms used herein and not expressly
defined herein shall have the meanings given to them under GAAP. All other terms
used herein and not expressly defined herein shall have the meanings given to
them under title 11 of the United States Code, the Bankruptcy Code.
ARTICLE X.
MISCELLANEOUS
10.01 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
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<PAGE> 27
If to Purchaser, to:
Interscience Computer Corporation
5236 Colodny Drive, suite 100
Agoura Hills, CA 91301
Telephone No. (818) 707-2000
Facsimile No. (818) 707-1627
Attn: Mr. Walter Kornbluh
President
with a required copy to:
Biegenzahn Weinberg
21031 Ventura Blvd., Suite 601
Woodland Hills, CA 91354-2203
Telephone No. (818) 595-8822
Facsimile No. (818) 594-8828
Attn: Joel B. Weinberg, Esq.
with a required copy to:
Loeb & Loeb
1000 Wilshire Blvd., Suite 1800
Los Angeles, CA 90017-2475
Telephone No.: (213) 688-3400
Facsimile No.: (213) 688-3460
Attn: David Ficksman, Esq.
If to Seller, to:
Camino Software Systems, Inc.
------------------------------
------------------------------
with a required copy to:
------------------------------
------------------------------
------------------------------
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time
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<PAGE> 28
may change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other party
hereto.
10.02 Entire Agreement. This Agreement and the Operative Agreements
supersede all prior discussions and agreements between the parties with respect
to the subject matter hereof and thereof and contains the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof.
10.03 Expenses. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated hereby are consummated, each party
will pay its own costs and expenses incurred in connection with the negotiation,
execution and closing of this Agreement and the Operative Agreements and the
transactions contemplated hereby and thereby.
10.04 Public Announcements. Except with respect to those disclosures Seller
or Purchaser is required to make as a publicly reporting company, at all times
at or before the Closing, Seller and Purchaser will not issue or make any
reports, statements or releases to the public or generally to the employees,
customers, suppliers or other Persons to whom Seller sells goods or provides
services in connection with the Seller's Business or with whom Seller otherwise
has significant business relationships in connection with the Seller's Business
with respect to this Agreement or the transactions contemplated hereby without
the consent of the other, which consent shall not be unreasonably withheld. If
either party is unable to obtain the approval of its public report, statement or
release from the other party and such report, statement or release is, in the
opinion of legal counsel to such party, required by Law in order to discharge
such party's disclosure obligations, then such party may make or issue the
legally required report, statement or release and promptly furnish the other
party with a copy thereof. Seller and Purchaser will also obtain the other
party's prior approval of any press release to be issued immediately following
the Closing announcing the consummation of the transactions contemplated by this
Agreement.
10.05 Confidentiality. Except with respect to those disclosures Seller or
Purchaser is required to make as a publicly reporting company, each party hereto
will hold, and will use its best efforts to cause its Affiliates, and their
respective Representatives to hold, in strict confidence from any Person unless
(i) compelled to disclose by judicial or administrative process (including
without limitation in connection with obtaining the necessary approvals of this
Agreement and the transactions contemplated hereby of Governmental or Regulatory
Authorities) or by other requirements of Law or (ii) disclosed in an Action or
Proceeding brought by a party hereto in pursuit of its rights or in the exercise
of its remedies hereunder, all documents and information concerning the other
party or any of its Affiliates furnished to it by the other party or such other
party's Representatives in connection with this Agreement or the transactions
contemplated hereby, except to the extent that such documents or information can
be shown to have been (a) previously known by the party receiving such documents
or information, (b) in the public domain (either prior to or after the
furnishing of such documents or information hereunder) through no fault of such
receiving party or (c) later acquired by the receiving party from another source
if the receiving party is not aware that such source is under an obligation to
another party hereto to keep such documents and information confidential.
Following the Closing, the foregoing restrictions will not apply to Purchaser's
use of documents and information concerning the Seller's Business, the Assets or
the Assumed Liabilities furnished by
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<PAGE> 29
Seller hereunder. In the event the transactions contemplated hereby are not
consummated, upon the request of the other party, each party hereto will, and
will cause its Affiliates and their respective Representatives to, promptly (and
in no event later than five (5) Business Days after such request) redeliver or
cause to be redelivered all copies of documents and information furnished by the
other party in connection with this Agreement or the transactions contemplated
hereby and destroy or cause to be destroyed all notes, memoranda, summaries,
analyses, compilations and other writings related thereto or based thereon
prepared by the party furnished such documents and information or its
Representatives.
10.06 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.
10.07 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
10.08 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnity under Article IX.
10.09 No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other party hereto and any attempt to do so will be
void, except (a) for assignments and transfers by operation of Law and (b) that
Purchaser may assign any or all of its rights, interests and obligations
hereunder (including without limitation its rights under Article IX) to (i) an
Affiliate or wholly-owned subsidiary, provided that any such Affiliate or
subsidiary agrees in writing to be bound by all of the terms, conditions and
provisions contained herein, (ii) any post-Closing purchaser of the Seller's
Business or a substantial part of the Assets or (iii) any financial institution
providing purchase money or other financing to Purchaser from time to time as
collateral security for such financing, but no such assignment referred to in
clause (i) or (ii) shall relieve Purchaser of its obligations hereunder. Subject
to the preceding sentence, this Agreement is binding upon, inures to the benefit
of and is enforceable by the parties hereto and their respective successors and
assigns.
10.10 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
10.11 Consent to Jurisdiction and Service of Process. Seller and Purchaser
hereby appoint the persons or entities named on the attached Schedule 10.011 to
serve as their lawful agent and attorney to accept and acknowledge service of
any and all process against it in any action, suit or proceeding arising out of
or relating to this Agreement or any of the Operative Agreements or any of the
transactions contemplated hereby or thereby and upon whom such
24
<PAGE> 30
process may be served, with the same effect as if such party were a resident of
the State of California and had been lawfully served with such process in such
jurisdiction, and waives all claims of error by reason of such service, provided
that in the case of any service upon such agent and attorney, the party
effecting such service shall also deliver a copy thereof to the other party at
the address and in the manner specified in Section 10.01. Seller and Purchaser
will enter into such agreements with such agents as may be necessary to
constitute and continue the appointment of such agents hereunder. In the event
that such agent and attorney resigns or otherwise becomes incapable of acting as
such, such party will appoint a successor agent and attorney within fifteen days
reasonably satisfactory to the other party, with like powers. Each party hereby
irrevocably submits to the jurisdiction of (a) the courts of the State of
California however, that such consent to jurisdiction is solely for the purpose
referred to in this Section and shall not be deemed to be a general submission
to the jurisdiction of said courts or in the State of California other than for
such purpose. Each party hereby irrevocably waives, to the fullest extent
permitted by Law, any objection that it may now or hereafter have to the laying
of the venue of any such action, suit or proceeding brought in such a court and
any claim that any such action, suit or proceeding brought in such a court has
been brought in an inconvenient forum.
10.12 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom.
10.13 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of California applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
10.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party as of the date first above written.
CAMINO SOFTWARE SYSTEMS, INC.,
a California corporation, Seller
By:________________________________
Name:
Title:
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<PAGE> 31
INTERSCIENCE COMPUTER CORP.,
a California corporation, Purchaser
By:________________________________
Name:
Title:
26
<PAGE> 32
ADDENDUM TO ASSET PURCHASE AGREEMENT
1. Notwithstanding anything in Section 7.01(a) of the Asset
Purchase Agreement, if Purchaser receives notice of any Claim
from a person not a party to this Agreement, for which Claim
Purchaser intends to claim indemnity under the Purchase
Agreement, then Purchaser may not recover attorneys' fees it
expends in defense of that Claim unless Purchaser shall have
first tendered defense of the claim to Seller and Seller
failed or refused to defend the claim. If Seller receives
notice of a third party claim from Purchaser, Seller shall
have the right to defend Purchaser against the claim by
counsel of its choice, subject to Purchaser's right to
approval of such counsel, not to be unreasonably withheld.
Jeffrey Davidson shall be deemed approved as counsel.
Purchaser shall have the right to participate in the defense
of any said claim at its own expense.
2. Seller shall change its Corporate name to a name which does
not include the word "Camino" or similar name within 10
business days from September 17, 1999.
Camino Software Systems, Inc. Interscience Computer Corporation
By By
------------------------------- --------------------------------
Its Its
------------------------------ -------------------------------
<PAGE> 1
EXHIBIT 10.2
SECURITY AGREEMENT - STOCK PLEDGE
THIS SECURITY AGREEMENT - STOCK PLEDGE ("this Agreement") is made and
entered into this 17th day of September, 1999 between CAMINO SOFTWARE SYSTEMS,
INC., a California corporation ("Pledgor"), and INTERSCIENCE COMPUTER
CORPORATION, a California banking corporation ("ICC"), on the other hand, in
light of the following:
WHEREAS, Pledgor and ICC have entered into that certain Asset Purchase
Agreement ("Purchase Agreement"), dated as of August 11, 1999;
WHEREAS, Pledgor has indemnified and agreed to hold ICC harmless from
and against, any and all Losses, as defined in the Purchase Agreement and as set
forth in paragraph 7.01 of the Purchase Agreement;
WHEREAS, Pledgor is to receive Purchaser Stock, as defined in the
Purchase Agreement, at the closing of the transaction contemplated in the
Purchase Agreement; and
WHEREAS, Pledgor has agreed to secure its indemnification obligations
under Section 7.01 of the Purchase Agreement by, among other things, pledging
and granting to ICC a security interest in 408,000 shares of the Purchaser Stock
(the "Pledged Stock").
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions, representations, and warranties hereinafter set forth and for other
good and valuable consideration, the parties hereto mutually agree as follows:
1. Pledge: As security for all of Pledgor's presently existing or
hereafter arising obligations and liabilities owing to ICC by reason of the
indemnification provisions of Section 7.01 of the Purchase Agreement or pursuant
to that letter agreement (the "Letter Agreement") dated September 17, 1999
between ICC, Pledgor and Glenn Adams (collectively the "Obligations"), Pledgor
hereby delivers, pledges, and grants to ICC a continuing security interest in
all of Pledgor's right, title, and interest in and to the following:
1.1 the Pledged Stock, presently Three Hundred Ninety
Thousand (390,000) shares of ICC common stock;
1.2 the proceeds of each of the foregoing including,
without limitation, any and all dividends, cash, instruments, another property
from time to time received, receivable, or otherwise distributed in respect of
or in exchange for any of the Pledged Stock or Options (the "Proceeds") (the
Pledged Stock, and the Proceeds shall be collectively referred to as the
"Collateral").
2. ICC's Duties: ICC shall not have any duties with respect to
the Collateral other than the duty to use reasonable care if the Collateral is
in its possession. Without limiting the generality of the foregoing, ICC shall
be under no obligation to take any steps necessary to preserve rights in the
Collateral against any other parties, to sell the same if it threatens to
decline
<PAGE> 2
in value, or to exercise any rights represented thereby; provided, however, that
ICC may, at its option, do so, and any and all expenses incurred in connection
therewith shall be for the account of Pledgor.
3. Voting Rights; Dividends; etc.: During the term of this
Agreement, and as long as Pledgor has not failed to pay to ICC any Obligation
when due, and in addition to all rights and remedies to which ICC may be
entitled under the Note, under any other agreement, or under law:
3.1 Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Stock or any part
thereof for any purpose not inconsistent with the terms of this Agreement, or
the Purchase Agreement;
3.2 Pledgor shall be entitled to receive and retain any
and all dividends and distributions paid in respect of the Pledged Stock;
provided, however, that any and all
(a) dividends and distributions paid or payable
other than in cash in respect of, and instruments and other property received,
receivable, or otherwise distributed in respect of, or in exchange for, any
Pledged Stock,
(b) dividends and distributions paid or payable
in cash in respect of any Pledged Stock in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital or
retained earnings of Company, and
(c) cash paid with respect to, payable or
otherwise distributed on redemption of, or in exchange for, any Pledged Stock,
shall be forthwith delivered to ICC to hold as Collateral and shall, if received
by Pledgor, be received in trust for the benefit of ICC, be segregated from the
other property or funds of Pledgor, and be forthwith delivered to ICC as
Collateral in the same form as so received (with any necessary endorsement).
3.3 ICC shall execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies and other instruments as
Pledgor may reasonably request for the purpose of enabling Pledgor to exercise
those voting and other rights which Pledgor is entitled to exercise pursuant to
paragraph 3.1 above and to receive those dividends or distributions which
Pledgor is authorized to receive and retain pursuant to paragraph 3.2 above.
3.4 If Pledgor fails to satisfy any Obligation, all
rights of Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to this Section 3 and to
receive the dividends and distributions which it would otherwise be authorized
to receive and retain pursuant to this Section 3 shall, at ICC's option, cease,
and all such rights shall, at ICC's option, thereupon become vested in ICC, and
ICC shall, at its option, thereupon have the sole right to exercise such voting
and other consensual rights and to receive and hold as Collateral such dividends
and interest payments.
4. Representations, Warranties, and Covenants: Pledgor warrants,
represents, and covenants that:
2
<PAGE> 3
4.1 Pledgor has the right to pledge and grant a security
interest in or otherwise transfer such Collateral free of any encumbrances or
rights of third parties.
4.2 All of the Collateral is and shall remain free from
all liens, claims, encumbrances, and purchase money or other security interests.
Pledgor shall not, without ICC's prior written consent, sell or otherwise
dispose of any or all of the Collateral.
4.3 The execution and delivery of this Agreement, and the
delivery to ICC of the Pledged Stock, creates a valid, perfected, and first
priority security interest in the Collateral in favor of ICC, and all actions
necessary or desirable to such perfection have been duly taken.
4.4 No authorization or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either: (i) for the grant by Pledgor of the security interest granted hereby or
for the execution, delivery or performance of this Agreement by Pledgor; (ii)
for the perfection of or exercise by ICC of its rights and remedies hereunder
(except as may have been taken by or at the direction of Pledgor or as may be
required in connection with a disposition of the Pledged Stock by laws affecting
the offering and sale of securities generally); or (iii) for the exercise by ICC
of the voting or other rights provided for in the Agreement or the remedies in
respect of the Pledged Stock pursuant to this Agreement (except as may be
required in connection with a disposition of the Pledged Stock by laws affecting
the offering and sale of securities generally).
4.5 Pledgor has made its own arrangements for keeping
informed of changes or potential changes affecting the Collateral (including,
but not limited to, rights to convert, rights to subscribe, payment of
dividends, reorganization or other exchanges, tender offers, and voting rights)
and Pledgor agrees that ICC shall not have any responsibility or liability for
informing Pledgor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto.
4.6 Pledgor will not, without ICC's prior written
consent, sell, assign, transfer, pledge, or grant any interest whatsoever in the
balance of the Pledged Stock not pledged to ICC hereby to any person or entity
other than ICC.
5. Pledged Stock Adjustments: In the event that during the term
of this Agreement, any reclassification, readjustment or other change is
declared or made in the capital structure of Company, or any Option is
exercised, all new substituted and additional shares, options, or other
securities, issued, or issuable, to Pledgor by reason of any such change or
exercise shall be delivered to and held by ICC under the terms of this Agreement
in the same manner as the Collateral originally pledged hereunder.
6. Warrants: In the event that during the term of this Agreement,
subscription warrants or any other rights or options shall be issued or
exercised in connection with the Collateral, such warrants, rights, and options
acquired by Pledgor shall be immediately assigned by Pledgor to ICC and all new
stock or other securities so acquired by Pledgor shall also be immediately
assigned to ICC to be held under the terms of this Agreement in the same manner
as the Collateral originally pledged hereunder.
3
<PAGE> 4
7. Consent: Pledgor hereby consents that, from time to time,
before or after the occurrence or existence of any Event of Default with or
without notice to or assent from Pledgor, any other security at any time held by
or available to ICC for any of the Obligations or any other security at any time
held by or available to ICC of any other person, firm or corporation secondarily
or otherwise liable for any of the Obligations, may be exchanged, surrendered,
or released and any of the Obligations may be changed, altered, renewed,
extended, continued, surrendered, compromised, waived, or released, in whole or
in part, as ICC may see fit, and Pledgor shall remain bound under this Agreement
notwithstanding any such exchange, surrender, release, alteration, renewal,
extension, continuance, compromise, waiver or inaction, or extension of further
credit.
8. Remedies Upon Default: Upon Pledgor's failure to pay to ICC
any Obligation when due, ICC shall have, in addition to any other rights given
by law or the rights hereunder, in the Credit Agreement or the Note, or to all
of the rights and remedies with respect to the Collateral of a secured party
under the California Uniform Commercial Code.
8.1 In addition, with respect to the Collateral, or any
part thereof, ICC may sell or cause the same to be sold at any public or private
sale, in one or more sales or lots, at such price as ICC may deem best, and for
cash or on credit or for future delivery, without assumption of any credit risk,
and the purchaser of any or all of the Collateral so sold shall thereafter hold
the same absolutely, free from any claim, encumbrance, or right of any kind
whatsoever.
8.2 Any sale of the Collateral conducted in conformity
with reasonable commercial practices of banks, insurance companies or other
financial institutions disposing of property similar to the Collateral shall be
deemed to be commercially reasonable. Any requirements of reasonable notice
shall be met if such notice is mailed to Pledgor, at Pledgor's address set forth
below, at least five (5) calendar days before the time of the sale or
disposition. Any other requirement of notice, demand or advertisement for sale,
is, to the extent permitted by law, waived.
8.3 ICC may, in its own name, or in the name of a
designee or nominee, buy at any public sale of the Collateral. ICC shall have
the right to execute any document or form, in its name or in the name of the
Pledgor, which may be necessary or desirable in connection with such sale of
Collateral.
8.4 In view of the fact that federal and state securities
laws may impose certain restrictions on the method by which a sale of the
Collateral may be effected after an event of default, Pledgor agrees that upon
the occurrence of a default on the Obligations, ICC may from time to time
attempt to sell all or any part of the Collateral by a private placement,
restricting the bidders and prospective purchasers to those who will represent
and agree that they are purchasing for investment only and not for distribution.
In so doing, ICC may solicit offers to buy the Collateral, or any part of it for
cash, from a limited number of investors deemed by ICC, in its reasonable
judgment, to be responsible parties who might be interested in purchasing the
Collateral. If ICC shall solicit such offers from not less than four (4) such
investors, then the acceptance by ICC of the highest offer obtained therefrom
shall be deemed to be a commercially reasonable method of disposition of such
Collateral.
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Notwithstanding the above, should ICC determine that, prior to any
public offering of any securities contained in the Collateral, such securities
should be registered under the Securities Act of 1933 and/or registered or
qualified under any other federal or state law, and that such registration
and/or qualification is not practical, then Pledgor agrees that it will be
commercially reasonable if a private sale is arranged so as to avoid a public
offering even if offers are solicited from fewer than four (4) investors, and
even though the sales price established and/or obtained may be substantially
less than the price which would be obtained pursuant to a public offering.
9. ICC as Pledgor's Attorney-in-Fact: Pledgor hereby irrevocably
appoints ICC as its attorney-in-fact to arrange for the transfer, at any time
after the occurrence of a default on the Obligations, of the Collateral on the
books of Pledgor to the name of ICC or to the name of ICC's nominee.
10. Further Assurances: Pledgor agrees that he will cooperate with
ICC and will execute and deliver, or cause to be executed and delivered, all
such other stock powers, proxies, instruments, and documents and will take all
such other action, as ICC may reasonably request from time to time in order to
carry out the provisions and purposes hereof.
11. Attorneys' Fees and Costs: Pledgor hereby agrees to pay all
reasonable attorneys' fees and all other costs and expenses which may be
incurred by ICC in the enforcement of this Agreement, whether or not suit is
brought.
12. Notices: All notices or demands by any party hereto to the
other party and relating to this Agreement shall be made in the manner and to
the addresses set forth below.
13. Choice of Law and Venue: The validity of this Agreement, its
construction, interpretation, and enforcement and the rights of the parties
hereto shall be determined under, governed by, and construed in accordance with
the internal laws of the State of California, without regard to principles of
conflicts of law. The parties agree that all actions or proceedings arising in
connection with this Agreement shall be tried and litigated only in the state
and federal courts located in the County of Los Angeles, State of California or,
at the sole option of ICC, in any other court in which ICC, shall initiate legal
or equitable proceedings and which has subject matter jurisdiction over the
matter in controversy. PLEDGOR AND ICC EACH WAIVES THE RIGHT TO A TRIAL BY JURY
AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO
OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION 13.
14. Term: This Agreement and the security interest created
thereunder shall be for a term of one year from the date of this Agreement,
provided, that no indemnification claim, within the meaning of section 7.01 of
the Purchase Agreement, has been made prior to the one year anniversary of this
Agreement. If no indemnification claim is made within the one year period
immediately following the date of this Agreement then ICC shall release the
Pledged Stock to Pledgor and the pledge hereunder shall terminate. In the event
that an indemnification claim, as provided in section 7.01 of the Purchase
Agreement, is made within the one year period immediately following the date of
this Agreement, then this pledge shall remain in full force and effect and ICC
shall hold in accordance with this Agreement until such claim is resolved.
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Notwithstanding anything herein to the contrary, in the event that the
Obligations under the Letter Agreement have not been satisfied prior to the
expiration of the one year period immediately following the date of this
Agreement then the Pledged Stock shall continue to be held pursuant to the terms
of this Agreement until such Obligations have been satisfied, and may be used,
upon the instructions of Pledgor, to satisfy such Obligations out of the net
proceeds from the sale of the Collateral.
15. General Provisions:
15.1 This Agreement shall be binding and deemed effective
when executed by Pledgor and accepted and executed by ICC.
15.2 This Agreement shall bind and inure to the benefit of
the respective heirs, representatives, successors, and assigns of Pledgor and
ICC; provided, however, that Pledgor may not assign this Agreement or any rights
hereunder without ICC's prior written consent and any prohibited assignment
shall be absolutely void. No consent to an assignment by ICC shall release
Pledgor from its obligations to ICC hereunder. ICC may assign its rights and
duties hereunder. ICC reserves the right to sell, assign, transfer, negotiate,
or grant participations in all or any part of, or any interest in rights and
benefits hereunder. In connection therewith, ICC may disclose all documents and
information which ICC now or hereafter may have relating to Pledgor or Pledgor's
business.
15.3 Section headings and numbers have been set forth
herein for convenience only. Unless the contrary is compelled by the context,
everything contained in each Section hereof applies equally to this entire
Agreement.
15.4 Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against ICC or Pledgor, whether
under any rule of construction or otherwise. On the contrary, this Agreement has
been reviewed by each of the parties and their counsel and shall be construed
and interpreted according to the ordinary meaning of the words used so as to
fairly accomplish the purposes and intentions of all parties hereto.
15.5 Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the
legal enforceability of any specific provision.
15.6 This Agreement cannot be changed or terminated
orally. All prior agreements, understandings, representations, warranties, and
negotiations, if any, are merged into this Agreement, the Note, and the other
documents and agreements entered into in connection herewith and therewith.
15.7 After cancellation of the Note and when ICC has
received payment and performance, in full, of all Obligations, ICC shall execute
and deliver to Pledgor a termination of all of the security interests granted by
Pledgor hereunder and, to the extent they have been delivered to ICC and not
disposed of in accordance with this Agreement, certificates evidencing the
Pledged Stock.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
CAMINO SOFTWARE SYSTEMS, INC.,
a California corporation
By:
--------------------------------------
Title:
--------------------------------
Address for notices:
------------------------------------------
------------------------------------------
------------------------------------------
INTERSCIENCE COMPUTER CORPORATION,
a California corporation
By:
---------------------------------------
Title:
---------------------------------
Address for notices:
5236 Colodny Drive, Suite 100
Agoura Hills, California 91301
Attn: Walter Kornbluh, President
Telephone: (818) 707-2000
Telefacsimile: (818) 707-1627
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<PAGE> 1
EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
________________, 1999 is made and entered into by and among Interscience
Computer Corporation, a California corporation (the "Company"), and Camino
Software Systems, Inc., a California corporation ("Camino").
The parties to this Agreement, intending to be legally bound
hereby, agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" has the meaning ascribed to that term in Rule
12b-2 of the General Rules and Regulations promulgated under the Exchange Act.
"Asset Purchase Agreement" means an Asset Purchase Agreement
dated as of August ___, 1999, entered into between the Company and Camino.
"Common Stock" means the common stock of the Company.
"Demand Request" has the meaning ascribed to that term in
Section 3.1.
"Demand Registration" has the meaning ascribed to that term
in Section 3.1.
"Demand Stockholders" shall mean Camino.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Piggyback Registration" has the meaning ascribed to that
term in Section 3.2.
"Prospectus" means the Prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement and by all
other amendments, and supplements to such Prospectus, including post-effective
amendments, and all information incorporated by reference in such Prospectus.
"Registrable Securities" means any shares of Common Stock
held or acquired by a party to this Agreement by virtue of the Asset Purchase
Agreement, or any stock split or combination, stock dividend or similar event in
respect of any of the shares referred to in this definition; provided, however,
that shares of Common Stock that are Registrable Securities shall cease to be
Registrable Securities upon the sale thereof pursuant to an effective
Registration Statement or pursuant to Rule 144 (or successor rule) under the
Securities Act or upon, in the case of any holder thereof, shares of Common
Stock becoming saleable pursuant to Rule 144 without volume restrictions; and
provided, further that shares of Common Stock that are
EXHIBIT 10.3
<PAGE> 2
Registrable Securities shall continue to be Registrable Securities upon their
transfer as provided in Section 11 hereof in a private transaction exempt from
the registration requirements of the Securities Act to a person who becomes a
party to this Agreement by agreeing in writing to be bound by the terms of this
Agreement, such agreement to be in form and substance reasonably satisfactory to
the Company.
"Registration Expenses" means all registration and filing
fees, fees with respect to filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"), fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of one counsel for the underwriters or sellers of Registrable
Securities in connection with blue sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the managing underwriters or
holders of a majority of the Registrable Securities being sold may reasonably
designate), printing expenses and distribution expenses associated with the
preparation and distribution of any Registration Statement, any Prospectus, and
amendments or supplements thereto, all fees and expenses associated with the
listing of any Registrable Securities on any securities exchange or exchanges,
and fees and disbursements of counsel for the Company and its independent
certified public accountants, out-of-pocket expenses of underwriters customarily
paid by the issuer to the extent provided for in any underwriting agreement (but
specifically excluding any Selling Expenses).
"Registration Statement" means any Registration Statement of
the Company filed under the Securities Act, including the Prospectus forming a
part thereof, amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits to and all information
incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations thereunder, all as
the same shall be in effect at the time.
"Selling Expenses" means, with respect to any holder of
Registrable Securities, all underwriting discounts, selling commissions and
stock transfer or documentary stamp taxes, if any, applicable to any Registrable
Securities registered and sold by such holder, and all fees and disbursements of
any counsel for such holder (other than any counsel fees expressly constituting
a Registration Expense as defined in this Agreement).
"Underwritten Offering" means an offering registered under the
Securities Act in which securities are sold to an underwriter, whether on a
"firm commitment", "best efforts" or other basis, for reoffering to the public.
2. Securities Subject to this Agreement. The only securities
entitled to the benefits of this Agreement are the Registrable Securities.
3. Registration of Registrable Securities.
3.1 Demand Registration.
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(a) Demand. Subject to the other provisions of this Agreement,
and provided that the Company is then eligible to use Form S-3 (or similar short
form) for the resale of Registrable Securities, any Demand Stockholder shall
have the right, exercisable by making a written request (a "Demand Request") to
the Company (which request shall specify the aggregate number of shares of
Registrable Securities requested to be registered), to require that the Company
effect the registration in accordance with the provisions of the Securities Act
with respect to the resale of any of the Registrable Securities held by such
Demand Stockholder. Upon receipt of the Demand Request, the Company shall use
its best efforts to effect, at the earliest practicable date, the registration
(a "Demand Registration") under the Securities Act of (i) the Registrable
Securities that the Company has been so required to register by such Demand
Stockholder, and (ii) all other Registrable Securities that the Company has been
requested to register by the Holders thereof by written request given to the
Company within 15 days after the receipt of such written notice by the Company,
in each case, to provide for public resale thereof.
(b) Effective Registration Statement. A registration requested
pursuant to this Section 3.1 shall not be deemed to have been effected unless a
Registration Statement with respect thereto has become effective; provided,
however, that if, after a Demand Registration has become effective, the offering
of Registrable Securities pursuant thereto is suspended, blocked by any stop
order, injunction or other order of the SEC or any governmental agency or court,
or withdrawn (except a Demand Registration withdrawn under Section 6(a)), such
Demand Registration will be deemed not to have been.
(c) Selection of Underwriters. The Company shall have the sole
right to select, after consultation with the Demand Stockholders, the
underwriter or underwriters, if any, of the Registrable Securities so to be
registered.
(d) Priority in Requested Registration. If the managing
underwriter, if any, of the Demand Registration advises the Company in writing
that, in its opinion, the number of shares of Registrable Securities and other
securities of the Company requested to be included in such offering exceeds the
number that can be sold in such offering at the offering price without
materially affecting the offering price of any such securities, the Company
shall include in such registration (1) first, the Registrable Securities
requested by the Demand Stockholders to be included in the Demand Registration
pursuant to Section 3.1(a) pro rata among such Demand Stockholders on the basis
of the total number of shares of Registrable Securities requested to be included
in such Demand Registration; and (2) second, to the extent that such securities
of the Company may be included without materially affecting the offering price
of the Registrable Securities referred to in clause (1), in the opinion of such
managing underwriter, any other securities of the Company held by persons having
rights to participate in such Demand Registration that are non-preferential to
the Demand Stockholders in accordance with their agreements with respect
thereto.
(e) Limitations on Demand Registration. Notwithstanding the
foregoing, the Company shall not be required to file a Registration Statement
for a Demand Registration under any of the following circumstances:
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<PAGE> 4
(i) within 60 days prior to the estimated date of filing and
180 days after the effectiveness (within the meaning of Section 3.1(b)) of a
Registration Statement filed in connection with an underwritten public offering
of securities of the Company;
(ii) if the Company has effected two Demand Registrations
pursuant to this Section 3.1;
(iii) the Company promptly delivers written notice ("Prior
Registration Notice") to the Demand Stockholder(s) making the Demand Request
that it has filed and is using reasonable efforts to have declared effective, or
at the time of receipt of the Demand Request is required to file, or has
delivered a Piggyback Notice (as defined in Section 3.2) with respect to, a
Registration Statement pursuant to Section 3.2 ("Prior Registration Rights");
provided, however, that the Company may postpone the filing of a Registration
Statement pursuant to a Demand Request for a period of no longer than (1) 180
days after the effective date of the Registration Statement filed pursuant to
the Prior Registration Rights, if such Registration Statement was filed before
the date of delivery of the Prior Registration Notice or within 60 days
thereafter and, in either case, becomes effective within 120 days after the date
of delivery of the Prior Registration Notice; (2) 120 days after the date of
delivery of the Prior Registration Notice, if such Registration Statement was
filed before the date of delivery of the Prior Registration Notice or within 60
days thereafter but, in either case, does not become effective within such
120-day period; or (3) 60 days after the date of delivery of the Prior
Registration Notice, if such Registration Statement was not filed before the
date of delivery of the Prior Registration Notice and is not filed within 60
days thereafter; or
(iv) if there exists at the time, material non-public
information involving the Company, which, in the reasonable opinion of the Board
of Directors, should not be disclosed, any other provisions of this Agreement to
the contrary notwithstanding, the Company's obligation to file a Registration
Statement, or cause such Registration Statement to become and remain effective
(whether under this Section 3.1 or under any other provision of this Agreement),
shall be suspended for a period not to exceed 90 days (and for a period not
exceeding, in the aggregate, 180 days in any 24-month period);
(v) the Company has effected a Demand Registration pursuant
to this Section 3.1 within the previous nine (9) months;
(vi) if the Company shall not then qualify for registration on
Form S-3 (or any successor "short form" registration statement); or
(vii) if the Company shall be unable, after consultation with
the Demand Stockholders, to select an underwriter or underwriters to underwrite
the Demand Registration which is reasonably acceptable to the Company who
otherwise have preferential registration rights.
3.2 Piggyback Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register the offering and sale of shares of Common Stock
under the Securities Act by registration on any form other than Forms S-4 or S-8
(or any successor forms thereto) whether or
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<PAGE> 5
not for sale for its own account, it shall each such time give prompt written
notice ("Piggyback Notice") to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 3.2. Upon the
written request of any such holder (a "Requesting Holder") received by the
Company within 30 days after the giving of any Piggyback Notice (which request
shall specify the Registrable Securities intended to be disposed of by such
Requesting Holder and the intended method of such disposition), the Company
shall use all reasonable efforts to include in such registration ("Piggyback
Registration") all Registrable Securities that the Requesting Holders have so
requested be included in such Piggyback Registration to permit the disposition
by such Requesting Holders of such Registrable Securities; provided that (i) if
such registration involves an underwritten public offering, all holders of
Registrable Securities requesting to be included in the Company's registration
must sell their Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to the Company; and (ii) if,
at any time after giving notice of its intention to register any securities
pursuant to this Section 3.2(a) and prior to the effective date of the
Registration Statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to all holders of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration No registration effected under
this Section 3.2 shall relieve the Company of its obligations to effect
registrations upon request under Section 3.1.
(b) Priority in Piggyback Registrations. If a Piggyback
Registration is an Underwritten Offering and the managing underwriter thereof
advises the Company in writing that, in its opinion, the number of shares of
Registrable Securities requested or proposed to be included in such offering
exceeds the number that can be sold in such offering without materially
affecting the offering price of any such securities, the Company shall include
in such registration (1) first, to the extent that such securities of the
Company may be included in such registration without materially affecting the
offering price thereof, in the opinion of such managing underwriter, (A) if such
registration is initiated by the Company proposing to register any of its Common
Stock, such Common Stock proposed to be sold by the Company and (B) the
securities of the Company held by persons (other than the holders of Registrable
Securities with respect to Registrable Securities) which have been duly
requested to be included in such Piggyback Registration in accordance with the
agreements with respect to such registration rights; and (2) second, to the
extent that such Registrable Securities may be included in such registration
without materially affecting the offering price of the securities referred to in
clause (1), in the opinion of such managing underwriter, the Registrable
Securities requested by the holders to be included in such Piggyback
Registration pursuant to Section 3.2 (a) and any other securities of the Company
held by persons other than holders having rights to participate in said
Piggyback Registration that are non-preferential to the holders of the
Registrable Securities pro rata among all such holders on the basis of the total
number of securities of the Company, including Registrable Securities, requested
by each such holder to be included therein.
4. Hold-Back Agreements. During the term of this Agreement,
each holder of Registrable Securities shall if requested by the managing
underwriter or underwriters in an Underwritten Offering and provided the Company
is then in compliance with the terms of this Agreement, agree not to effect any
public sale or distribution of securities of the Company of the same class as
the securities included in such Registration Statement, including a sale
pursuant to
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<PAGE> 6
Rule 144 under the Securities Act, except as part of such underwritten
registration, during the 30-day period prior to, and during a period of up to
120 days beginning on, the closing date of each Underwritten Offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriter or underwriters.
5. Registration Procedures.
In connection with the Company's obligations under Section 3,
the Company shall use its best efforts to effect such registration to permit the
sale of such Registrable Securities in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company shall as
expeditiously as practicable:
(a) prepare and file with the SEC under the Securities Act a
Registration Statement with respect to such Registrable Securities which shall
state that the Registrable Securities are covered thereby, and use its best
efforts to cause such Registration Statement to become effective and to remain
effective; provided, however, that the Company may discontinue any registration
of Registrable Securities being effected pursuant to Section 3.2 at any time
before the effective date of the Registration Statement relating thereto;
(b) prepare and file with the SEC such amendments and
supplements, if any, to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to (1) keep such Registration Statement
effective until the earlier of (a) 90 days after the effectiveness thereof or
(b) the completion of the distribution under such Registration Statement, and
(2) comply with the provisions of the Securities Act applicable to it 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 sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of such Registrable Securities and
each underwriter (if any) such number of copies of such Registration Statement
(including exhibits), each amendment and supplement thereto, the Prospectus
included in such Registration Statement or filed with the SEC (including each
preliminary Prospectus), and each amendment and supplement thereto as such
seller and underwriter may reasonably request to facilitate the disposition of
the Registrable Securities owned by such seller and covered by such Registration
Statement;
(d) use its reasonable efforts to (1) register or qualify such
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions as any seller of such Registrable Securities or the managing
underwriter (if any) may reasonably request; (2) keep such registrations or
qualifications in effect for so long as such Registration Statement is in
effect; and (3) take any and all other reasonable actions that may be necessary
or appropriate to enable each seller of Registrable Securities or other
securities of the Company covered by such Registration Statement and each
underwriter (if any) to consummate the disposition in such jurisdictions of the
relevant Registrable Securities and other securities of the Company; provided.
however, that the Company shall not be required to (a) qualify generally to
transact business as a foreign corporation in any jurisdiction where it would
not otherwise be required to qualify but for the requirements of this Section 5,
(b) subject itself to taxation in any such jurisdiction; or (c) consent to
general service of process in any jurisdiction;
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(e) (1) at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act, notify each seller of
Registrable Securities covered by a Registration Statement when it becomes aware
of the occurrence of any event as a result of which the Prospectus (as then
amended or supplemented) contains any untrue statement of a material fact or
omits any fact necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading; and (2) at the request
of any such seller, as promptly as practicable thereafter, prepare in sufficient
quantities and furnish to such seller and each underwriter (if any) a reasonable
number of copies of a Prospectus supplemented or amended so that, as thereafter
delivered to the offerees or purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state any fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading;
(f) use its reasonable efforts to cause all such Registrable
Securities covered by such Registration Statement to be listed or approved for
trading on any securities exchange or inter-dealer quotation system, if any, on
which similar securities of the Company are then listed or approved for trading,
if the listing of such Registrable Securities is then permitted under the rules
of such exchange or inter-dealer quotation system;
(g) enter into and perform its obligations under customary
agreements relating to the registration, including an underwriting agreement in
customary form;
(h) subject to the execution of confidentiality agreements
customary for transactions of this type, in form and substance satisfactory to
the Company, (1) make reasonably available for inspection by any seller of such
Registrable Securities, any underwriter (if any) and any legal counsel,
accountant or other agent retained by any such seller or underwriter, all
financial and other records, relevant corporate documents, and properties of the
Company, (2) cause the Company's directors, officers, employees, counsel and
independent public accountants to supply all information reasonably requested
by, and to respond to inquiries from, any such seller, underwriter, legal
counsel, attorney, accountant or agent in connection with such Registration
Statement, in each instance to the extent that such information is reasonably
necessary to satisfy any of its obligations under applicable law.;
(i) with respect to Underwritten Offerings, use its reasonable
efforts to obtain an appropriate opinion from counsel for the Company and a
"cold comfort" letter from then Company's independent public accountants, each
in customary form and covering such matters of the type customarily covered by
opinions of counsel and cold comfort letters in similar registrations;
(j) promptly notify each selling holder of Registrable
Securities and each managing underwriter (if any) and, upon request by any such
person, confirm such advice in writing, (1) when such Registration Statement,
the Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to such Registration Statement or any post-effective
amendment thereto, when the same has become effective, (2) of the issuance by
the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceeding for such purpose, or (3) of the
receipt by the Company of any
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<PAGE> 8
notification with respect to the suspension of the registration or qualification
of such Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(k) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement or any
post-effective amendment thereto.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing; provided, however, that such
information shall be used by the Company only to the extent necessary for, and
in connection with, such registration.
Each holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(e)(1) hereof, such holder shall forthwith discontinue
disposition of such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
5(e)(2), or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods regarding the maintenance
of the Registration Statement in Section 3 shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 5(e)(1) to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 5(e)(2) or the Advice.
6. Withdrawal.
(a) If any holder participating in a registration hereunder
disapproves of the terms of any offering, the sole remedy of such holder shall
be, in its discretion, to withdraw such holder's Registrable Securities and
other securities of the Company therefrom by giving written notice to the
Company and any managing underwriter (if any). The holder's Registrable
Securities and other securities of the Company so withdrawn from the offering
also shall be withdrawn from registration. If the holders participating in such
registration withdraw all Registrable Securities from the offering, the Company
may withdraw the registration, and if such registration was commenced pursuant
to a Demand Request, such registration shall nevertheless be counted as a Demand
Registration effected hereunder; provided, however, that such registration shall
not be so counted if the withdrawal was based on the Company's failure to comply
in any material respect with its obligations hereunder.
(b) If as a result of the priority provisions of Sections
3.1(d) and 3.2(b), any holder of Registrable Securities is not entitled to
include all of such holder's Registrable Securities in a registration that such
holder has requested to be included, then after the delivery to such holder of
notice thereof from the Company, such holder may elect to withdraw his request
to include such holder's Registrable Securities in such registration
("Withdrawal
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<PAGE> 9
Election"); provided, however, that a Withdrawal Election shall be irrevocable
and, after making a Withdrawal Election, a holder shall no longer have any right
to include such holder's Registrable Securities in the registration as to which
such Withdrawal Election was made.
7. Expenses of Registration. All Registration Expenses
incurred in connection with any registration in accordance with Section 3 shall
be borne by the Company. All Selling Expenses relating to Registrable Shares
registered on behalf of any person shall be borne by such person.
8. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, with respect to any Registration Statement filed by
it, to the fullest extent permitted by law, each holder who is a seller of
Registrable Securities covered by such Registration Statement, its officers,
directors, employees, agents and general or limited partners, and each other
person, if any, who controls such holder within the meaning of the Securities
Act (collectively, "Holder Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several, (including reasonable fees
of counsel and any amounts paid in settlement effected with the Company's
consent, which consent shall not be unreasonably withheld) to which any such
Holder Indemnified Party may become subject under the Securities Act, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) are caused by (1) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement in which such Registrable Securities were included as
contemplated hereby or 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, (2) any untrue statement or alleged untrue statement of
a material fact contained in any, preliminary, final or summary Prospectus,
together with the documents incorporated by reference therein (as amended or
supplemented if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (3) any violation by the Company of any federal or
state law, rule or regulation applicable to the Company relating to action of or
inaction by the Company in connection with any such registration; and in each
such case, the Company shall reimburse each such Holder Indemnified Party for
any reasonable legal or any other expenses incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability,
expense, action or proceeding; provided, however, that the Company shall not be
liable to any such Holder Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability or expense (or action or proceeding,
whether commenced or threatened, in respect thereof) arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or amendment thereof or supplement
thereto or in any such preliminary, final or summary Prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder Indemnified Party relating to such Holder Indemnified
Party expressly for use in the preparation thereof, and provided, further, that
the Company shall not be liable to any such Holder Indemnified Party with
respect to any preliminary Prospectus to the extent that any such loss, claim,
damage, liability or expense of such Holder Indemnified Party results from the
fact
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that such Holder Indemnified Party sold Registrable Securities to a person to
whom there was not sent or given, at or before the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
or of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference) if the Company has, prior to the confirmation or
completion of such sale, furnished copies thereof to such Holder Indemnified
Party in compliance with Section 5 and the loss, claim, damage, liability or
expense of such Holder Indemnified Party results from an untrue statement or
omission of a material fact contained in such preliminary Prospectus which was
corrected in the Prospectus (or the Prospectus as amended or supplemented). Such
indemnity and reimbursement of expenses obligations shall remain in full force
and effect regardless of any investigation made by or on behalf of the Holder
Indemnified Parties and shall survive the transfer of such securities by such
holder.
(b) Indemnification by Holders. Each holder of Registrable
Securities participating in any registration hereunder shall severally and not
jointly indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors, officers, employees and agents, and each person who
controls the Company (within the meaning of the Securities Act) (collectively,
"Company Indemnified Parties") against all losses, claims, damages, liabilities
and expenses, joint or several (including reasonable fees of counsel and any
amounts paid in settlement effected with such holder's consent, which consent
shall not be unreasonably withheld) to which any Company Indemnified Party may
become subject under the Securities Act, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions or proceedings
in respect thereof) are caused by (1) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement in which
such holder's Registrable Securities were included or 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, (2) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary Prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading to the extent, but only to the extent, in the cases described in
clauses (1) and (2), that such untrue statement or omission is contained in any
information furnished in writing by such holder to the Company expressly for use
in the preparation thereof, provided, however, that the aggregate amount which
any such holder shall be required to pay pursuant to this Section 8(b) shall be
limited to the dollar amount of proceeds received less expenses associated with
the sale of Registrable Securities and other securities of the Company by such
holder upon the sale of the Registrable Securities and other securities of the
Company pursuant to the Registration Statement giving rise to such claim. Such
indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company Indemnified Parties (except as
provided above) and shall survive the transfer of such securities by such
holder.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under Section 8(a) or 8(b) of written notice of
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing with respect to which a claim for indemnification may be made
pursuant to this Section 8, such indemnified party shall, if a claim
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in respect thereto is to be made against an indemnifying party, give written
notice to the indemnifying party of the threat or commencement thereof;
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. If any such claim or action referred to under Section
8(a) or 8(b) is brought against any indemnified party and it then notifies the
indemnifying party of the threat or commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such claim or action, the indemnifying
party shall not be liable to such indemnified party under this Section 8 for any
legal expenses of counsel or any other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation unless (i) the indemnifying party has failed to assume
the defense of such claim or action or to employ counsel reasonably satisfactory
to such indemnified party or (ii) in the reasonable judgment of any indemnified
party a conflict of interest is likely to exist, based on the written opinion of
counsel, between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay reasonable fees and expenses of such additional counsel. The
indemnifying party shall not be required to indemnify the indemnified party with
respect to any amounts paid in settlement of any action, proceeding or
investigation entered into without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld. No indemnifying party
shall consent to the entry of any judgment or enter into any settlement without
the consent of the indemnified party unless (1) such judgment or settlement does
not impose any obligation or liability upon the indemnified party other than the
execution, delivery or approval thereof, and (2) such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a full release and discharge from all
liability in respect of such claim for all persons that may be entitled to or
obligated to provide indemnification or contribution under this Section 8.
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) referred to in Section 8(a) or 8(b) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other in connection with the statements,
omissions, actions or inactions which resulted in such losses, claims, damages,
liabilities or expenses. The relative fault of the indemnifying party and the
indemnified party 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 the indemnifying party or the indemnified party, any action or
inaction by any such party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement, omission,
action or inaction. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) pursuant to this Section 8(d) shall be deemed to
include any reasonable legal or other expenses incurred by such indemnified
party in connection with investigating or defending any such action or claim
(which shall be
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limited as provided in Section 8(c) if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof) which is
the subject of this Section 8(d). 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. Promptly after receipt by an indemnified party
under this Section 8(d) of written notice of the commencement of any action,
suit, proceeding, investigation or threat thereof made in writing with respect
to which a claim for contribution may be made against an indemnifying party
under this Section 8(d), such indemnified party shall, if a claim for
contribution in respect thereto is to be made against an indemnifying party,
give written notice to the indemnifying party in writing of the commencement
thereof (if the notice specified in Section 8(c) has not been given with respect
to such action); provided, however, that the failure to so notify the
indemnifying party shall not relieve it from any obligation to provide
contribution which it may have to any indemnified party under this Section 8(d)
except to the extent that the indemnifying party is actually prejudiced by the
failure to give notice. Notwithstanding anything in this Section 8(d) to the
contrary, no holder of Registrable Securities participating in any registration
hereunder shall be required pursuant to this Section 8(d) to contribute any
amount which exceeds the dollar amount of the proceeds received less expenses
associated with the sale of Registrable Securities and other securities of the
Company by such holder from the sale of Registrable Securities and other
securities of the Company in the offering to which the losses, claims, damages,
liabilities or expenses of the indemnified parties relate.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(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 in the immediately preceding
paragraph.
If indemnification is available under this Section 8, the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in Sections 8(a) and 8(b), without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 8(d). The provisions of this Section
8(d) shall be in addition to any other rights to indemnification or contribution
which any indemnified partner may have pursuant to law or contract, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any indemnified party, and shall survive the transfer of securities by any such
party.
(e) Indemnification and Contribution of Underwriters. In
connection with any Underwritten Offering contemplated by this Agreement which
includes Registrable Securities, the Company and all sellers of Registrable
Securities included in any Registration Statement shall agree to customary
provisions for indemnification and contribution (consistent with the other
provisions of this Section 8) in respect of losses, claims, damages, liabilities
and expenses of the underwriters of such offering.
9. Current Public Information. With a view to making available
the benefits of certain rules and regulations of the SEC which may permit the
sale of Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
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(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act after the Company
becomes subject to the reporting requirements of such act; and
(b) furnish to any holder of Registrable Securities, during
the term of this Agreement, forthwith upon request (i) if true, a written
statement by the Company that it has complied with the current public
information and reporting requirements of Rule 144 under the Securities Act and
the Exchange Act to which it is subject and (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company.
10. Participation in Underwritten Registrations. In the case
of any underwritten registration under Section 3.1, or in the case of a
registration under Section 3.2. if the Company determines to enter into an
underwriting agreement in connection therewith, (1) all shares of Registrable
Securities or other Securities of the Company to be included in such
registration shall be subject to such underwriting agreement, which shall be in
customary form, and (2) no person may participate in any such registration
unless such person (a) agrees to sell such person's securities on the basis
provided in such underwriting arrangement and (b) completes and executes all
questionnaires, powers-of-attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
11. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities and keep information available
hereunder may be assigned by Camino to any shareholder of Camino, or by such
shareholder to such shareholder's transferees or assignees; provided, that the
Company is given written notice by such shareholder at any time of or within a
reasonable time after said transfer, stating the name and address of said
shareholder, transferee or assignee and identifying the securities with respect
to which such registration rights are being assigned and the transferee or
assignee agrees in writing to be bound by the terms of this Agreement, such
agreement to be in form and substance reasonably satisfactory to the Company.
12. Representations and Warranties. The Company represents and
warrants to Camino as follows:
(a) The execution, delivery and performance of the
Agreement have been duly authorized by the Company.
(b) This Agreement constitutes a valid and binding obligation
of the Company enforceable in accordance with the terms, except as
enforceability thereof may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditor's rights and by general principles of equity.
(c) The execution, delivery and performance by the Company of
this Agreement do not and will not require the authorization, consent, permit or
approval of, or declaration to or filing with, any court, regulatory or public
body or governmental authority not already obtained or made, or result in the
creation of any lien, security interest, change or encumbrance upon the capital
stock of the Company.
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13. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided
herein, no alteration, modification, amendment, change or waiver of any
provision of this Agreement shall be effective or binding on any party hereto
unless the same is in writing and is executed by the Company, and the holders of
at least a majority of the Registrable Securities then outstanding; provided,
however, that with respect to a particular Registration Statement filed pursuant
to Section 3, a waiver or consent to departure from the provisions of this
Agreement regarding only such Registration Statement and the offering covered
thereby may be given by the holders of not less than a majority of the
Registrable Securities covered by such Registration Statement, except that no
such waiver or consent shall operate to affect adversely the rights hereunder of
any other holder of Registrable Securities.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities as set forth on
the signature page hereto or, at the most current address given by such holder
to the Company; and
(ii) if to the Company:
Interscience Computer Corporation
3236 Colodny Drive, Suite 100
Agoura Hills, CA 90301
Attn: President
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day if timely delivered to
a courier guaranteeing overnight delivery.
(c) Term. This Agreement shall terminate and cease to be of
any further force or effect on the fifth anniversary of the date of this
Agreement; provided, however, that the indemnification and contribution rights
and obligations shall not terminate and shall continue forever; and provided,
further, that with respect to any particular party to this Agreement, this
Agreement shall terminate and cease to be of any further force or effect on the
first date which that party ceases to hold any Registrable Securities.
(d) Successors and Assigns. The provisions hereof shall inure
to the benefit of, and be binding upon, the successors, permitted assigns,
heirs, executors and administrators of the parties hereto, provided that any
such successors, permitted assign, heirs, executors and administrators shall
have agreed in writing to be bound by the terms and conditions of this
Agreement.
(e) Remedies. Each party hereto acknowledges that in the
event of any breach of this Agreement by such party, the other parties hereto
(1) would be irreparably and immediately harmed by such breach, (2) could not be
made whole by monetary damages, and (3) shall be
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entitled to temporary and permanent injunctions (or their functional
equivalents) to prevent any such breach and/or to compel specific performance
with this Agreement, in addition to all other remedies to which such parties may
be entitled at law or in equity.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed in Delaware without regard to principles of
conflicts of laws.
(h) Severability. Each provision of this Agreement shall be
considered severable, and if for any reason any provision that is not essential
to the effectuation of the basic purposes of the Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable under existing or
future applicable law, such invalidity shall not impair the operation of or
affect those provisions of this Agreement that are valid. In that case, this
Agreement shall be construed so as to limit any term or provision so as to make
it enforceable or valid within the requirements of any applicable law, and in
the event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no representations,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company hereby.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter and cannot be changed or terminated
orally.
(j) Construction. As used in this Agreement, unless the
context otherwise requires (i) references to "Sections" are to sections of this
Agreement, (ii) "hereof', "herein", "hereunder" and comparable terms refer to
this Agreement in its entirety and not to any particular part of this Agreement,
(iii) the singular includes the plural and the masculine, feminine and neutral
gender includes the other, (iv) "including" or "Includes" shall be deemed to be
followed by the phrase "without limitation", and (v) headings of the various
Sections and subsections are for convenience of reference only and shall not be
given any effect for purposes of interpreting this Agreement.
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This Agreement is executed and delivered by the parties hereto to be
effective as of the date first above written.
INTERSCIENCE COMPUTER CORPORATION
By:
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Name:
Title:
CAMINO SOFTWARE SYSTEMS, INC.
By:
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Name:
Title:
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