UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
NAM Corporation
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
628 72L-108
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(CUSIP Number)
Roy Israel
NAM Corporation
1010 Northern Boulevard, Suite 336
Great Neck, New York 11021
Tel. No.: (516) 829-4395
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
May 10, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Exchange Act") or otherwise subject to the liabilities of that
section of the Exchange Act but shall be subject to all other provisions of the
Exchange Act (however, see the Notes).
Page 1 of 9 Pages
<PAGE>
SCHEDULE 13D
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CUSIP No. 628 72L-108 Page 2 of 9 Pages
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- --------- ----------------------------------------------------------------------
1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Insurance Services Office, Inc.
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2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3
SEC USE ONLY
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4
SOURCE OF FUNDS*
WC
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5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------- ------- ----------------------------------------------------
7
NUMBER OF SOLE VOTING POWER
SHARES 822,570
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8
BENEFICIALLY SHARED VOTING POWER
OWNED BY 0
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EACH 9
SOLE DISPOSITIVE POWER
REPORTING
822,570
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PERSON 10
SHARED DISPOSITIVE POWER
WITH
0
- ------------------- ------- ----------------------------------------------------
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
822,570
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12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
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13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.2%
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14
TYPE OF REPORTING PERSON*
CO, HC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 628 72L-108 Page 3 of 9 Pages
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- --------- ----------------------------------------------------------------------
1
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ISO Investment Holdings, Inc.
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2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
- --------- ----------------------------------------------------------------------
3
SEC USE ONLY
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4
SOURCE OF FUNDS*
WC
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5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
- --------- ----------------------------------------------------------------------
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------- ------- ----------------------------------------------------
7
NUMBER OF SOLE VOTING POWER
SHARES 822,570
------- ----------------------------------------------------
8
BENEFICIALLY SHARED VOTING POWER
OWNED BY 0
------- ----------------------------------------------------
EACH 9
SOLE DISPOSITIVE POWER
REPORTING 822,570
------- ----------------------------------------------------
PERSON 10
SHARED DISPOSITIVE POWER
WITH
0
- ------------------- ------- ----------------------------------------------------
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
822,570
- --------- ----------------------------------------------------------------------
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------- ----------------------------------------------------------------------
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.2%
- --------- ----------------------------------------------------------------------
14
TYPE OF REPORTING PERSON*
CO
- --------- ----------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 4 of 9 Pages
Item 1. Security and Issuer.
-------------------
This statement relates to the shares of Common Stock, par value $0.001
per share ("Common Stock"), of NAM Corporation, a Delaware corporation (the
"Company"). The principal executive offices of the Company are located at 1010
Northern Boulevard, Great Neck, New York 11021.
Item 2. Identity and Background.
-----------------------
(a) - (c), (f). This Statement is being filed by Insurance Services
Office, Inc. a Delaware corporation ("ISO"), and ISO Investment Holdings, Inc.,
a Delaware corporation and wholly owned subsidiary of ISO ("Purchaser" and
together with ISO, the "Filing Persons"). The address for ISO is 7 World Trade
Center, New York, New York 100148. The address for Purchaser is 300 Delaware
Avenue, Suite 537, Wilmington, Delaware 19801. ISO is engaged in providing
statistical, actuarial, underwriting and claims information and analysis;
consulting and technical services; policy language; and information about
specific locations for a broad spectrum of commercial and personal lines of
insurance. Purchaser is a wholly owned subsidiary of ISO. Attached as Exhibit 1
is a chart setting forth, with respect to each executive officer and director of
the Filing Persons, his or her name, business address, principal occupation or
employment, the name and principal business of the organization in which such
employment is conducted, and citizenship.
(d) During the five years prior to the date hereof, none of the Filing
Persons, nor, to the best knowledge of the Filing Persons, any executive officer
or director of the Filing Persons has been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors).
(e) During the five years prior to the date hereof, none of the Filing
Persons nor, to the best knowledge of the Filing Persons, any executive officer
or director of the Filing Persons was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
such person was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, Federal
or State securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
This statement is being filed as a result of the recent purchase of
642,570 shares of Common Stock of the Company (the "Common Stock") and a warrant
to acquire 180,000 shares of Common Stock ("Warrant Shares") for consideration
in the amount of four million dollars ($4,000,000). The Purchaser made the
purchases using funds from working capital.
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 5 of 9 Pages
Item 4. Purpose of Transaction.
----------------------
On May 10, 2000 (the "Closing"), Purchaser acquired from the Company
642,570 shares of Common Stock and a warrant to purchase up to 180,000 shares of
Common Stock at an exercise price of $8.09 per share exercisable at any time on
or after May 10, 2000 and on or prior to the close of business on August 15,
2005. Effective as of the Closing, and for so long as the Purchaser holds shares
of Common Stock constituting at least 25% of the shares of Common Stock
purchased by it, the Purchaser shall have the right to designate one individual
to be included as part of the slate of nominees recommended by the directors of
the Company for election at each annual meeting of stockholders of the Company
at which directors of the Company are elected, and at any time at which
stockholders of the Company shall have the right to, or shall, vote for
directors of the Company. Three shareholders of the Company, two of whom jointly
beneficially own approximately 32.5% of the outstanding shares of Common Stock
of the Company and one of whom beneficially owns approximately 4.2% of the
outstanding shares of Common Stock of the Company, have agreed to vote their
shares of Common Stock in favor of Purchaser's nominee for as long as the
Purchaser has the right to designate such nominee. A copy of the Voting
Agreement is attached hereto as Exhibit 2 and is incorporated herein by
reference.
The Company's Board of Directors elected Mr. Frank J. Coyne, President
and Chief Operating Officer of the Purchaser, to the Company's Board of
Directors, effective as of the Closing. The Purchaser does not have any other
present plans which relate to or would result in any of the following:
(a) the acquisition by any person of additional securities of the
issuer, or the disposition of securities of the issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the issuer or
of any of its subsidiaries;
(d) any change in the present board of directors or management of the
issuer, including plans or proposals to change the number or term
of directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the issuer;
(f) any other material change in the issuer's business or corporate
structure;
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 6 of 9 Pages
(g) changes in the issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the issuer by any person;
(h) causing a class of securities of the issuer to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered
national securities association;
(i) a class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Exchange Act; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
------------------------------------
a) In accordance with Rule 13d-3 of the Securities Exchange Act of 1934
(the "Exchange Act"), Purchaser may be deemed to be the beneficial owner of
822,570 shares of Common Stock, which constitutes approximately 19.2% of the
shares of Common Stock that may be deemed outstanding pursuant to Rule
13d-3(d)(i)(D) under the Exchange Act. Such calculation was based upon 4,273,179
shares of Common Stock outstanding, after issuance to the Purchaser of 642,570
shares of Common Stock, and before giving effect to the issuance of the 180,000
Warrant Shares. By virtue of its ownership of all of the capital stock of
Purchaser, ISO may be deemed to be the indirect beneficial owner of the 822,570
shares of Common Stock that are beneficially owned by Purchaser.
b) Purchaser has sole voting and dispositive power with respect to the
642,570 shares of Common Stock and the 180,000 Warrant Shares. By virtue of its
ownership of 100% of the capital stock of Purchaser, ISO is deemed to have sole
voting and dispositive power with respect to such shares of Common Stock and
Warrant Shares.
c) During the past sixty days prior to the date hereof, none of the
Filing Persons nor, to the knowledge of the Filing Persons, any executive
officer or director of any of the Filing Persons has engaged in any transaction
in the shares of Common Stock, except as described in Item 6.
d) No person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, any
shares of Common Stock owned by Purchaser and ISO or any person named in Exhibit
1.
e) Not applicable.
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 7 of 9 Pages
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
------------------------------------------------------
Pursuant to a Stock Purchase Agreement dated as of May 10, 2000, among
ISO, the Purchaser and the Company, a copy of which is annexed hereto as Exhibit
3 and incorporated herein by reference, the Purchaser acquired 642,570 shares of
Common Stock. The Purchaser is authorized and empowered to vote 642,570 shares
of Common Stock. Therefore, Purchaser may be deemed to be the beneficial owner
of such 642,570 shares of Common Stock. Effective as of the Closing date, and
for so long as the Purchaser holds shares of Common Stock constituting at least
25% of the shares of Common Stock purchased by it, the Purchaser shall have the
right to designate one individual to be included as part of the nominees
recommended by the directors of the Company for election at each annual meeting
of stockholders of the Company at which directors of the Company are elected.
Pursuant to the Stock Purchase Agreement, if the Company proposes to
issue, sell or exchange, or agrees to issue, sell or exchange (i) any equity
security of the Company, (ii) any debt security of the Company which by its
terms is convertible into or exchangeable for any equity security of the Company
or (iii) any option, warrant or other right to subscribe for, purchase or
otherwise acquire any equity security or any debt security to any person or
entity, the Company shall deliver to the Purchaser an offer (the "Preemptive
Offer") to issue such number of securities to it to enable it to retain its
fully diluted ownership position in the Company that it held immediately prior
to the proposed issuance, sale, or exchange upon the same terms set forth as
such offer.
Stock Purchase Warrant
In connection with the execution and delivery of the Stock Purchase
Agreement, the Company executed and delivered to the Company a Stock Purchase
Warrant to purchase 180,000 shares of Common Stock, a copy of which is annexed
hereto as Exhibit 4 and incorporated herein by reference.
Co-Sale Agreement
At the Closing, pursuant to a Co-Sale Agreement by and between Roy
Israel ("Israel") and the Purchaser, a copy of which is annexed hereto as
Exhibit 5 and incorporated herein by reference, Israel agreed as follows: (i) If
during the three year period from Closing Israel proposes to accept a bona fide
offer from any person to purchase from him shares of Common Stock, he shall
deliver a notice to ISO stating the terms of the of such proposed sale,
including the number of offered shares to be sold, the nature of such sale, the
consideration to be paid, and the name and address of each prospective
purchaser; (ii) ISO shall have the right (the "Co-Sale Right"), but not the
obligation, exercisable during the ten (10) day period following its receipt of
the notice to participate in the sale of the offered shares by offering up to
the number of
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 8 of 9 Pages
shares of Common Stock which is equal to the offered shares multiplied by a
fraction, the numerator of which shall be the total number of shares of Common
Stock owned by the Purchaser as of the Closing date and the denominator which
shall be the total number of shares of Common Stock owned by Israel and ISO as
of the date of the Closing. The foregoing provisions of the Co-Sale Agreement do
not pertain or apply to any transfer of Common Stock owned by Israel: (i) to the
personal trust of Israel; (ii) to members of Israel's immediate family; (iii) to
trusts for the benefit of any such person; (iv) to the estate of any of the
foregoing by gift, will or intestate succession; provided, in the circumstances
set forth in (i) through (iv) above, any such transferee becomes subject to
ISO's Co-Sale Rights hereunder; or (v) by will or the laws of descent and
distribution; (vi) to non-profit institutions, by gift of will; or (viii) any
transfer of up to fifty (50%) (in the aggregate or individually) of Israel's
holdings of Common Stock as of the date hereof.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 1 Executive Officers and Directors of Filing Persons.
---------
Exhibit 2 Voting Agreement.
---------
Exhibit 3 Stock Purchase Agreement, dated as of May 2000, by
--------- and between the Company and the Filing Persons,
incorporated by reference.
Exhibit 4 Stock Purchase Warrant to purchase 180,000 shares of
--------- Common Stock, issued to Purchaser.
Exhibit 5 Co-Sale Agreement, dated as of May 2000, by and
--------- between the Purchaser and Roy Israel, incorporated
by reference.
<PAGE>
CUSIP No. 628 72L-108 SCHEDULE 13D Page 9 of 9 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 18, 2000 ISO INVESTMENT HOLDINGS, INC.
By: /s/Joseph P. Giasi, Jr.
----------------------------------
Joseph P. Giasi, Jr.
Senior Vice President and General
Counsel
Dated: May 18, 2000 INSURANCE SERVICES OFFICE, INC.
By: /s/ Joseph P. Giasi, Jr.
----------------------------------
Joseph P. Giasi, Jr.
Senior Vice President and General
Counsel
Exhibit 1
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EXECUTIVE OFFICERS AND DIRECTORS OF ISO
Executive Officers
- ------------------
The executive officers of ISO are set forth below. The business address of
each such executive officer is 7 World Trade Center, New York, New York 10048.
Each such executive officer is a U.S. citizen.
Fred R. Marcon
Chairman and Chief Executive Officer
Frank J. Coyne
President and Chief Operating Officer
Carole J. Banfield
Executive Vice President,
Government Relations and Data Management
Michael Fusco
Executive Vice President,
Insurance Services
Kenneth G. Geraghty
Executive Vice President and Chief Financial Officer
Richard P. Boehning
Senior Vice President
American Insurance Services Group
LeRoy A. Boison, Jr.
Senior Vice President,
International
Michael Camilleri
Senior Vice President
Joseph P. Giasi, Jr.
Senior Vice President and General Counsel
<PAGE>
Joseph C. Kaminski
Senior Vice President
James D. Langell
Senior Vice President and Corporate Secretary
John H. McCue
Senior Vice President
Sales and Marketing
Patrick McLaughlin
Senior Vice President,
Risk Decision Services
Roy S. Nicolosi
Senior Vice President and Chief Information Officer
Directors
- ---------
The directors of ISO, their principal occupations and place of business are
set forth below. Each such director is a U.S. citizen, unless otherwise
indicated.
Fred R. Marcon
Chairman and Chief Executive Officer
Insurance Services Office, Inc.
7 World Trade Center
New York, NY 10048
Dennis H. Chookaszian
Chairman of the Executive Committee
CNA Financial Corporation
CNA Plaza
Chicago, IL 60685
Glen A. Dell
7 North Crossway
Old Greenwich, CT 06870
2
<PAGE>
Henry J. Feinberg
1343 Estate Lane East
Lake Forest, IL 60045
Ronald E. Ferguson
Chairman and Chief Executive Officer
General Re Corporation
695 East Main Street
Stamford, CT 06904
Christopher M. Foskett
Managing Director
Citibank, N.A.
399 Park Avenue
12th Floor, Zone 6
New York, NY 10043
H. Peter Hudson
50 Bennington Drive
Zionsville, IN 46077
John F. Lehman, Jr.
Chairman
J.F. Lehman & Company
450 Park Avenue
6th Floor
New York, NY 10022
Arthur J. Rothkopf
President
Lafayette College
316 Markle Hall
Easton, PA 18042
Barbara D. Stewart
President
Stewart Economics, Inc.
2660 Peachtree Road - #21A
Atlanta, GA 30305
3
<PAGE>
David B. Wright
President and Chief Executive Officer
Amdahl Corporation
1250 East Arques Avenue (M/S 209)
PO Box 3470
Sunnyvale, CA 94088-3470
4
<PAGE>
EXECUTIVE OFFICERS AND DIRECTORS OF ISO INVESTMENT HOLDINGS, INC.
Executive Officers
- ------------------
The executive officers of ISO Investment Holdings, Inc. are set forth
below. The business address of each such executive officer is 300 Delaware
Avenue, Suite 537, Wilmington, Delaware 19801. Each such executive officer is a
U.S. citizen.
Kenneth G. Geraghty
President
Joseph C. Kaminski
Senior Vice President
Joseph P. Giasi, Jr.
Senior Vice President and General Counsel
James D. Langell
Secretary
Directors
- ---------
The directors of ISO Investment Holdings, Inc. are set forth below. The
business address of each such director is 300 Delaware Avenue, Suite 537,
Wilmington, Delaware 19801. Each such director is a U.S. citizen.
Kenneth G. Geraghty
Chairman
James D. Langell
Patricia F. Genzel
5
Exhibit 2
---------
May 10, 2000
ISO Investment Holdings, Inc.
300 Delaware Avenue, Suite 537
Wilmington, Delaware 19801
Attention: Patricia Ganzel
Re: Voting
Gentlemen:
We refer to the Stock Purchase Agreement by and between NAM
Corporation, a Delaware corporation (the "Company"), ISO Investment Holdings,
Inc., a Delaware corporation (the "Purchaser"), and Insurance Services Office,
Inc. dated as of the date hereof (the "Stock Purchase Agreement").
The parties hereto acknowledge and agree to vote their shares of
common stock of the Company in favor of Purchaser's designee to be included as
part of the slate of nominees recommended by the directors of the Company for
election at each annual meeting of stockholders of the Company at which
directors of the Company are elected, and at any other time at which
stockholders of the Company shall have the right to, or shall, vote for
directors of the Company, for as long as the Purchaser has the right to
designate such nominee pursuant to Section 3 of the Stock Purchase Agreement.
------------------------------------
Roy Israel, Shareholder
------------------------------------
Carla Israel, Shareholder
------------------------------------
Cynthia Sanders, Shareholder
Exhibit 3
---------
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of this 10th
day of May, 2000, by and between NAM Corporation, a Delaware corporation (the
"Company"), with offices located at 1010 Northern Boulevard, Great Neck, New
York 11021; ISO Investment Holdings, Inc., a Delaware corporation (the
"Purchaser"), with offices at 300 Delaware Avenue, Suite 537, Wilmington,
Delaware 19801 and Insurance Services Office, Inc., a Delaware corporation and
parent of Purchaser ("ISO"), with offices at 7 World Trade Center, New York, New
York 10048.
WHEREAS, the Company wishes to issue and sell to the Purchaser the
Purchased Securities (as defined below); and
WHEREAS, the Purchaser wishes to purchase the Purchased Securities on
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Purchase.
(a) The Purchaser hereby purchases (i) shares (the "Shares") of common
stock, par value $.001 per share (the "Common Stock") of the Company as set
forth below, and (ii) a warrant (the "Warrant"), in the form attached hereto as
Exhibit A, to purchase a certain number of shares of Common Stock of the Company
(the "Warrant Shares") and at an exercise price per Warrant Share (the Shares,
Warrant and Warrant Shares collectively referred to as the "Purchased
Securities") as determined below. The total number of Shares issuable hereunder
shall be determined by dividing the aggregate purchase price of the Shares by
the price per share.
(b) The total consideration for the Shares is a price of $4,000,000,
with a price per share ("Price per Share") equal to the greater of (i) $5 and
7/8, and (ii) the average closing price of a share of Common Stock as reported
by the Nasdaq SmallCap Market for the five (5) trading days preceding the
Closing Date (the "Market Price"), payable upon execution of this Agreement by
wire transfer of immediately available funds (collectively, the "Purchase
Price"). If the Market Price is equal to or greater than $5 and 7/8, then the
Warrant Shares shall be 180,000 at an exercise price equal to one hundred and
thirty percent (130%) of the Price per Share. If the Market Price is less than
$5 and 7/8, then the Warrant Shares shall be 200,000 and the exercise price per
share shall equal the Market Price.
2. Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of Camhy
Karlinsky & Stein LLP, 1740 Broadway, New York, New York, 10019 or such other
place as determined by the
<PAGE>
Company, on such date as is mutually agreed upon by the Company and the
Purchaser, no later than May 11, 2000 (the "Closing Date"). At the Closing, the
Company shall (i) issue irrevocable instructions to its transfer agent to
prepare for delivery to the Purchaser a certificate for Shares being purchased
hereunder, and (ii) shall deliver the Warrant to the Purchaser, each duly
registered in the Purchaser's name against payment in full by the Purchaser of
the Purchase Price. As part of the Closing, Mr. Israel shall enter into a
Co-Sale Agreement with the Purchaser.
3. Designation of Board Nominee. (a) Effective as of the Closing, and
for so long as the Purchaser holds at least 25% of its Shares purchased
hereunder (subject to adjustment for stock splits, stock dividends, and the
like), the Purchaser shall have the right to designate one individual to be
included as part of the slate of nominees recommended by the directors of the
Company for election at each annual meeting of stockholders of the Company at
which directors of the Company are elected, and at any other time at which
stockholders of the Company shall have the right to, or shall, vote for
directors of the Company. At the time of the Closing, Roy Israel, Carla Israel
and Cynthia Sanders shall agree to vote all of their shares of Common Stock in
favor of such designee for as long as the Purchaser has the right to designate a
board member. Purchaser's designee shall be Frank Coyne.
(b) In the event of any vacancy on the board of directors created by
the resignation, removal, incapacity, or death of any person designated by
Purchaser or under this Section 3, or upon request of the Purchaser, Purchaser
shall have the right to designate a nominee to fill such vacancy, as long as
such new designee is acceptable to the Company.
4. Preemptive Rights.
(a) If the Company proposes to issue, sell or exchange, or agree to
issue, sell or exchange (i) any equity security of the Company, (ii) any debt
security of the Company which by its terms is convertible into or exchangeable
for any equity security of the Company or (iii) any option, warrant or other
right to subscribe for, purchase or otherwise acquire any equity security or any
debt security referred to in clause (i) or (ii) above (collectively,
"Securities") to any person or entity, the Company shall deliver to the
Purchaser an offer (the "Preemptive Offer") to issue such number of Securities
to it to enable it to retain its fully-diluted ownership position in the Company
that it held immediately prior to the proposed issuance, sale, or exchange (the
"Offered Securities") upon the same terms set forth as such offer. The
Preemptive Offer shall state that the Company proposes to issue such Securities
and specify their number and terms (including purchase price). The Preemptive
Offer shall remain open for a period of 20 days (the "Preemptive Period") from
the date of its delivery unless earlier withdrawn by the Company as a result of
termination by the Company of the proposed issuance, sale or exchange giving
rise to the Preemptive Offer. For purposes of this Section 4, the Purchaser's
"fully diluted ownership position" shall mean the proportion that the number of
shares of Common Stock issued and held, or issuable upon exercise or conversion
of any debt or equity securities of the Company convertible into or exchangeable
for shares of Common Stock of the Company then held by such Purchaser bears to
the total number of shares of Common Stock then outstanding (assuming full
conversion and exercise of all convertible or exercisable securities then
outstanding).
2
<PAGE>
(b) Purchaser may accept the Preemptive Offer by delivering to the
Company a written notice (the "Purchase Notice") within the Preemptive Period
and the appropriate amount of funds to purchase such Offered Securities. The
Purchase Notice shall state the number (the "Preemptive Number") of Offered
Securities Purchaser desires to purchase. If Purchaser fails to deliver the
Purchase Notice within the Preemptive Period, Purchaser shall forfeit the right
to participate in the purchase of the Offered Securities.
(c) Notwithstanding anything to the contrary in this Section 4, the
Company shall not be required to extend a Preemptive Offer to the Purchaser with
respect to (i) the issuance or sale of options to purchase shares of Common
Stock to employees, consultants, advisors, and directors, pursuant to any stock
option plan approved by the Company's Board of Directors or otherwise approved
by the Board of Directors, (ii) the issuance of shares of Common Stock upon
exercise or conversion of any debt or equity securities of the Company
convertible into shares of Common Stock of the Company outstanding as of the
Closing or subsequent thereto, including, without limitation, the Equity Line of
Credit in existence as of the date hereof; (iii) the issuance of shares of
Common Stock upon exercise of the Warrant, (iv) shares of the Company's Common
Stock or preferred stock issued in connection with any stock split or stock
dividend; (v) securities issued as consideration to the acquisition of another
corporation or entity, or any portion thereof, by the Company by consolidation,
merger, purchase of securities or purchase of all or substantially all of the
assets thereof, provided that such transaction or series of transactions has
been approved by the Board of Directors; (vi) securities issued as part of
strategic alliances which have been approved by the Board of Directors; or (vii)
securities issued as equity "kickers" issued in connection with a
non-convertible debt financing, leasing transaction or other similar type of
transaction approved by the Board of Directors.
(d) The preemptive rights set forth in this Section 4 shall terminate
(i) immediately upon the Purchaser owning less than 25% of its Shares purchased
hereunder or (ii) upon (A) the acquisition of all or substantially all the
assets of the Company or (B) an acquisition of the Company by another
corporation or entity by consolidation, merger or other reorganization in which
the holders of the Company's outstanding voting stock immediately prior to such
transaction own, immediately after such transaction, securities representing
less than fifty percent (50%) or more of the voting power of the corporation or
other entity surviving such transaction.
5. Expenses. Each party shall bear all of their its expenses incurred
in connection with the transactions contemplated under this Agreement.
6. Representations of the Company. The Company represents and warrants
to the Purchaser that:
(a) Organization of the Company. The Company is a corporation duly
organized and in good standing under the laws of the State of Delaware and has
all requisite corporate authority to own its properties and to carry on its
business as now being conducted. The Company does not have any subsidiaries and
does not own more that fifty percent (50%) of
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or control any other business entity, except as set forth in the Company's
reports, proxy statement or registration statements with the Securities and
Exchange Commission ("SEC") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or the Securities Act of 1933, as amended (the
"Securities Act") (collectively, the "SEC Documents"). The Company is duly
qualified and is in good standing as a foreign corporation to do business in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the
failure so to qualify would not have any effect on the business, operations,
properties, or financial condition of the Company that is material and adverse
to the Company and its subsidiaries and affiliates, taken as a whole, and/or any
condition, circumstance, or situation that would prohibit or otherwise interfere
with the ability of the Company to enter into and perform any of its obligations
under this Agreement in any material respect (collectively, a "Material Adverse
Effect").
(b) Authority. The Company has the requisite corporate power and
corporate authority to enter into and perform its obligations under this
Agreement. The execution, issuance and delivery of this Agreement, the Common
Stock certificates, and the Warrant by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action and no further consent or authorization of the Company or its
board of directors or stockholders is required. This Agreement, the Common Stock
certificates and the Warrant shall be, as of the Closing, duly executed and
delivered by the Company, and as of the Closing, shall constitute valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application;
(c) Capitalization. The authorized capital stock of the Company
consists of 15,000,000 shares of Common Stock, $.001 par value per share and
5,000,000 shares of preferred stock, par value $.001 per share, 2,100 of which
have been designated as Series A Exchangeable Preferred Stock. As of May 1,
2000, there were 3,450,609 shares of Common Stock and 1,850 shares of Series A
Exchangeable Preferred outstanding. Except for (i) outstanding options and
warrants as set forth in the SEC Documents and (ii) options and warrants set
forth in Schedule 6(c) hereto, there are no outstanding securities nor any
agreements or understandings pursuant to which any securities of the Company may
become outstanding. The Company is not a party to any agreement granting
registration or anti-dilution rights to any person with respect to any of its
equity or debt securities, except as set forth in the SEC Documents. All of the
outstanding shares of Common Stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable. The Company has
duly and validly authorized and reserved for issuance shares of Common Stock
sufficient in number for issuance upon the proper exercise of the Warrant.
(d) Common Stock. The Company has registered its Common Stock pursuant
to Section 12(b) of the Exchange Act and is in full compliance with all
reporting requirements of the Exchange Act, and the Company is in compliance
with all requirements for the continued
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listing or quotation of its Common Stock, and such Common Stock is currently
quoted on the NASDAQ SmallCap Market.
(e) Exemption from Registration; Valid Issuances. Subject to the
accuracy of the Purchaser's representations in Section 7, the sale of the
Purchased Securities will not require registration under the Securities Act
and/or any applicable state securities law. When issued and paid for in
accordance with this Agreement, the Purchased Securities will be duly and
validly issued, fully paid, and non-assessable. Neither the sale of the
Purchased Securities, nor the Company's performance of its obligations under
this Agreement will (i) result in the creation or imposition by the Company of
any liens, charges, claims or other encumbrances upon the Purchased Securities
or, except as contemplated herein, any of the assets of the Company.
(f) No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the
Company's Certificate of Incorporation or By-Laws or (ii) conflict with, or
constitute a material default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or
instrument, or any "lock-up" or similar provision of any underwriting or similar
agreement to which the Company is a party, or (iii) result in a violation of any
federal, state or local law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or by which any material property or asset of the Company is bound or
affected, nor is the Company otherwise in violation of, conflict with or default
under any of the foregoing (except in each case for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not have, individually or in the aggregate, a Material Adverse Effect). The
business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental entity, except for possible
violations that either singly or in the aggregate would not have a Material
Adverse Effect. The Company is not required under any Federal, state or local
law, rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Common Stock or the Warrant in accordance with
the terms hereof (other than any SEC, Nasdaq, Boston Stock Exchange or state
securities filings that may be required to be made by the Company subsequent to
Closing and any shareholder approval required by the rules applicable to
companies whose common stock trades on the Nasdaq SmallCap Market); provided
that, for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Purchaser herein.
(g) Litigation and Other Proceedings. Except as disclosed in the SEC
Documents, there are no lawsuits or proceedings pending or, to the knowledge of
the Company, threatened, against the Company or any subsidiary, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which could reasonably be expected to have a Material Adverse
Effect. Except as set forth in the SEC Documents, no
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judgment, order, writ, injunction or decree or award has been issued by or, to
the knowledge of the Company, requested of any court, arbitrator or governmental
agency which could result in a Material Adverse Effect.
(h) Insurance. The Company and each subsidiary maintains property and
casualty, general liability, workers' compensation, personal injury and other
similar types of insurance with financially sound insurers that is adequate,
consistent with industry standards and the Company's historical claims
experience. The Company has not received notice from, and has no knowledge of
any threat by, any insurer (that has issued any insurance policy to the Company)
that such insurer intends to deny coverage under or cancel, discontinue or not
renew any insurance policy presently in force.
(i) Tax Matters.
(i) The Company and each subsidiary has filed all Tax Returns
which it is required to file under applicable laws; all such Tax Returns are
true and accurate and has been prepared in compliance with all applicable laws;
the Company has paid all Taxes due and owing by it or any subsidiary (whether or
not such Taxes are required to be shown on a Tax Return) and have withheld and
paid over to the appropriate taxing authorities all Taxes which it is required
to withhold from amounts paid or owing to any employee, stockholder, creditor or
other third parties; and since June 30, 1999, the charges, accruals and reserves
for Taxes with respect to the Company (including any provisions for deferred
income taxes) reflected on the books of the Company are adequate to cover any
Tax liabilities of the Company if its current tax year were treated as ending on
the date hereof.
(ii) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file tax returns that the Company or any
subsidiary is or may be subject to taxation by that jurisdiction. There are no
foreign, federal, state or local tax audits or administrative or judicial
proceedings pending or being conducted with respect to the Company or any
subsidiary; no information related to Tax matters has been requested by any
foreign, federal, state or local taxing authority; and, except as disclosed
above, no written notice indicating an intent to open an audit or other review
has been received by the Company or any subsidiary from any foreign, federal,
state or local taxing authority. There are no material unresolved questions or
claims concerning the Company's Tax liability. The Company (i) has not executed
or entered into a closing agreement pursuant to ss. 7121 of the Internal Revenue
Code or any predecessor provision thereof or any similar provision of state,
local or foreign law; or (ii) has not agreed to or is required to make any
adjustments pursuant to ss. 481(a) of the Internal Revenue Code or any similar
provision of state, local or foreign law by reason of a change in accounting
method initiated by the Company or any of its subsidiaries or has any knowledge
that the IRS has proposed any such adjustment or change in accounting method, or
has any application pending with any taxing authority requesting permission for
any changes in accounting methods that relate to the business or operations of
the Company. The Company has not been a United States real property holding
corporation within the meaning of ss. 897(c)(2) of the Internal Revenue Code
during the applicable period specified in ss. 897(c)(1)(A)(ii) of the Internal
Revenue Code.
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(iii) The Company has not made an election underss. 341(f) of the
Internal Revenue Code. The Company is not liable for the Taxes of another person
that is not a subsidiary of the Company under (A) Treas. Reg. ss. 1.1502-6 (or
comparable provisions of state, local or foreign law), (B) as a transferee or
successor, (C) by contract or indemnity or (D) otherwise. The Company is not a
party to any tax sharing agreement. The Company has not made any payments, is
obligated to make payments or is a party to an agreement that could obligate it
to make any payments that would not be deductible under ss. 280G of the Internal
Revenue Code.
(iv) For purposes of this Section 6(j):
1. "IRS" means the United States Internal Revenue Service.
2. "Tax" or "Taxes" means federal, state, county, local,
foreign, or other income, gross receipts, ad valorem, franchise,
profits, sales or use, transfer, registration, excise, utility,
environmental, communications, real or personal property, capital
stock, license, payroll, wage or other withholding, employment,
social security, severance, stamp, occupation, alternative or
add-on minimum, estimated and other taxes of any kind whatsoever
(including, without limitation, deficiencies, penalties, additions
to tax, and interest attributable thereto) whether disputed or
not.
3. "Tax Return" means any return, information report or
filing with respect to Taxes, including any schedules attached
thereto and including any amendment thereof.
(j) Property. Neither the Company nor any of its subsidiaries owns any
real property except as set forth in the SEC Documents. Each of the Company and
its subsidiaries has good and marketable title to all personal property owned by
it, free and clear of all liens, encumbrances and defects, except such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company; and
to the Company's knowledge any real property and buildings held under lease by
the Company as tenant are held by it under valid and enforceable leases with
such exceptions as are not material and do not interfere with the use made and
intended to be made of such property and buildings by the Company.
(k) Intellectual Property. Each of the Company and its subsidiaries
owns or possesses adequate and enforceable rights to use all patents, patent
applications, trademarks, trademark applications, trade names, service marks,
copyrights, copyright applications, licenses, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as now being conducted including the list of patents, patent
applications, trademarks and trademark applications provided to Purchaser on or
before the date of the Closing, which is a complete and
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accurate listing of all registered patents, patent applications, trademarks and
trademark applications owned by the Company. To the Company's knowledge, except
as disclosed in the SEC Documents, neither the Company nor any of its
subsidiaries is infringing upon or in conflict with any right of any other
person with respect to any Intangibles. Except as disclosed in the SEC
Documents, no adverse claims have been asserted by any person to the ownership
or use of any Intangibles. The Company has taken commercially reasonable steps
to protect its Intellectual Property and the Company's rights therein, and to
the knowledge of the Company, no such rights in and to its Intellectual Property
have been lost or are in jeopardy of being lost through failure to act by the
Company.
(l) Internal Controls and Procedures. The Company maintains books and
records and internal accounting controls which provide reasonable assurance
that: (i) all material transactions to which the Company or any subsidiary is a
party or by which its properties are bound are executed with management's
authorization; (ii) the recorded accounting of the Company's consolidated assets
is compared with existing assets at regular intervals; (iii) access to the
Company's consolidated assets is permitted only in accordance with management's
authorization; and (iv) all transactions to which the Company or any subsidiary
is a party or by which its properties are bound are recorded as necessary to
permit preparation of the financial statements of the Company in accordance with
United States generally accepted accounting principles.
7. Representations of the Purchasers. Purchaser represents and warrants
to the Company as follows:
(a) Purchaser is an "accredited investor" within the meaning of Rule
501 under the Securities Act and was not organized for the specific purpose of
acquiring the Purchased Securities.
(b) Purchaser has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company and it is able financially to bear the risks thereof.
(c) Purchaser has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's management.
(d) This Agreement is made with the Purchaser in reliance upon the
Purchaser's representation to the Company, which by the Purchaser's execution of
this Agreement, the Purchaser hereby confirms, that the Purchased Securities
being purchased by the Purchaser are being acquired for its own account, not as
a nominee or agent, for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof.
(e) Purchaser understands that (i) the Purchased Securities have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof or Rule
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506 promulgated under the Securities Act, (ii) the Purchased Securities must be
held indefinitely unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration, and will bear the legend
set forth below to this effect, and (iii) the Company will make a notation on
its transfer books to the effect that the Purchased Securities shall bear the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(f) Purchaser has full power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance by Purchaser of the Agreement has been duly and validly approved
by the requisite governing body of the Purchaser.
(g) Neither Purchaser nor any of its Affiliates (as such term is
defined in Rule 144 of the Securities Act) has had a short position in the
Common Stock of the Company during the five business days immediately preceding
the Closing, and does not have a short position as of the date of the Closing.
8. Covenants of the Purchaser.
(a) The Purchaser covenants to the Company that Purchaser and its
Affiliates shall not engage in short sales of the Common Stock of the Company
for so long as Purchaser holds any of the Shares, Warrant, or Warrant Shares.
(b) The Purchaser agrees that from the date of the Closing and until
the date which is 365 days after the Closing, Purchaser shall not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities of the Company (including the Warrant and the Warrant Shares), or
enter into a transaction which would have the same effect, or publicly disclose
the intention to make any such offer, sale, pledge or disposal without the prior
written consent of the Company.
9. Registration Rights.
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(a) Demand Registration. The Company hereby agrees that at any time
after one year from the Closing Date the Purchaser may request that the Company
effect the registration under the Securities Act of 1933, as amended (the
"Securities Act") of all or part of the Purchased Securities, and thereupon
will, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of the Purchased Securities which the
Company has been so requested to register by the Purchaser, all to the extent
requisite to permit the disposition of the Purchased Securities so to be
registered; provided, however, that the Company shall not be required to file
any such registration statement under this Section 9(a) unless the anticipated
aggregate gross offering price is at least $2,000,000.
(i) The Company shall pay all of the expenses in connection with
the registration statement filed pursuant to this Section 3(a), except for
underwriting discounts and commissions and transfer taxes, including, but not
limited to the reasonable attorneys fees of one counsel selected by the
Purchaser, which shall not exceed $1,000 per effective registration statement.
(ii) A registration requested pursuant to this Section 9(a) will
not be deemed to have been effected unless a registration statement with respect
thereto has become effective; provided, that if, within 180 days after it has
become effective, the offering of the Purchased Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the Securities and Exchange Commission (the "SEC") or other
governmental agency or court, such registration will be deemed not to have been
effected.
(iii) If a requested registration pursuant to this Section 9(a)
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities requested to
be included in such registration exceeds the number which can be reasonably sold
in such offering, the Company will include in such registration first,
securities offered by the Company, second, the Purchased Securities which have
been requested to be registered pursuant to this Section 9(a), third, an amount
of securities of the Company which the Company is including in such registration
statement pursuant to any incidental ("piggyback") registration rights, and
fourth, the amount of other securities ("Other Securities") of the Company held
by all other security holders which, in the good faith opinion of such managing
underwriter, can be sold without causing a material adverse effect on the
offering.
(iv) The Company shall be obligated to register Purchased
Securities pursuant to this Section 9(a) only once provided that if the number
of Purchased Securities requested by the Purchaser to be included in a
Registration Statement requested by the Purchaser pursuant to Section 9 (a) is
cut back, the Purchaser shall have the right, no earlier than one year following
effectiveness of the first demand registration, to request a second Registration
Statement to register the Purchased Securities not so registered.
(b) Incidental Registration Rights.
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(i) In addition to the registration rights provided for by Section
9(a) above, if the Company, at any time after the Closing Date, proposes to
register its Common Stock under the Securities Act (other than a registration on
Form S-8 or S-4 or any successor or other forms promulgated for similar
purposes), whether or not for sale for its own account, pursuant to a
registration statement on which it is permissible to register Purchased
Securities for sale to the public under the Securities Act, it will each such
time give prompt written notice to the Purchaser of its intention to do so and
of the Purchaser's rights under this Section 9(b). In such event, upon the
written request of the Purchaser made within fifteen (15) days after the receipt
of any such notice (which request shall specify the Purchased Securities
intended to be disposed of by the Purchaser), the Company will use its best
efforts to effect the registration under the Securities Act of all Purchased
Securities which the Company has been so requested to register by the Purchaser;
provided, that (i) if, at any time after giving written notice of its intention
to register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give written
notice of such determination to the Purchaser and, thereupon, shall be relieved
of its obligation to register any Purchased Securities in connection with such
registration (but not from its obligation to pay all of the expenses of such
registration in connection therewith), and (ii) if such registration involves an
underwritten offering, all holders of Purchased Securities requesting to be
included in the Company's registration must sell their Purchased Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 9(b) involves an underwritten public offering, any holder of
Purchased Securities requesting to be included in such registration may elect,
in writing prior to the effective date of the registration statement filed in
connection with such registration, not to register such securities in connection
with such registration.
(ii) If a registration pursuant to this Section 9(b) involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its good faith opinion, the amount of securities requested to
be included in such registration exceeds the amount which can be reasonably sold
in such offering, so as to be likely to have a material adverse effect on such
offering as contemplated by the Company (including the price at which the
Company proposes to sell such securities), then the Company will include in such
registration first, all securities proposed by the Company to be sold for the
Company's own account, second, all securities proposed by holders who made a
demand on the Company to register such securities which, in the good faith
opinion of such managing underwriter, can be sold without causing a material
adverse effect on the offering, with such amount of Securities to be allocated
pro rata among all requesting holders of such shares on the basis of the
relative aggregate number of securities then owned by the requesting holders,
and third, the amount of Other Securities held by all other security holders
which, in the good faith opinion of such managing underwriter, can be sold
without causing a material adverse effect on the offering, with such amount of
Other Securities to be allocated pro rata among such other holders on the basis
of the relative number of shares of Other Securities owned by such other
holders, including the Purchaser.
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(c) Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Purchased
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 90 days after a request for
registration is given to the Company, file with the SEC a registration statement
with respect to such Purchased Securities and use its best efforts to cause such
registration statement to become effective as promptly as possible; provided,
however, that the Company may discontinue any registration of its securities
which is being effected pursuant to an incidental registration at anytime prior
to the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for so long as
the requesting holders of the Purchased Securities shall request, but in no
event longer than six (6) months, and to comply with the provisions of the Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of such Purchased Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Act, and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Purchased Securities by
such seller;
(iv) use its best efforts to register or qualify such Purchased
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Purchased Securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (iv), it would not be obligated to be so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Purchased Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Purchased
Securities;
(vi) notify each seller of any such Purchased Securities covered
by such registration statement, at any time when a prospectus relating thereto
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is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (ii) of this Section, of the Company's becoming aware
that the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and at the
request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended of supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Purchased Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable (but not more than fifteen months) after the
effective date of the registration statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(viii) use its best efforts to list such Purchased Securities on
any securities exchange or listing agency on which the Common Stock is then
listed or quoted, if such Purchased Securities are not already so listed or
quoted and if such listing or quotation is then permitted under the rules of
such exchange or agency, and to provide a transfer agent and registrar for such
Purchased Securities covered by such registration statement not later than the
effective date of such registration statement; enter into such customary
agreements (including an underwriting agreement in customary form) and take such
other actions as sellers of a majority of such Purchased Securities or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Purchased Securities;
(ix) make available for inspection by any seller of such Purchased
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
(x) the Company may defer the demand for registration under
Section 9(a) hereof, suspend the use of a registration statement filed under
Section 9(a) and (b) hereof and already effective, or not cause a registration
statement filed under Section 9(a) or (b) hereof to become effective, for a
period of up to ninety (90) days in the event the majority of the Board of
Directors determines that such deferral is in the best interests of the Company.
Such a deferral may only be used once in any one year period.
(d) Obligations of Purchaser.
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(i) The Company may require the Purchaser as to which any
registration of the Purchased Securities is being effected to furnish the
Company with such information regarding the Purchaser and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(ii) The Purchaser agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in clause
(c)(vi) of this Section, such holder will forthwith discontinue disposition of
Purchased Securities pursuant to the registration statement covering such
Purchased Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (c)(vi) of this
Section, and, if so directed by the Company, such holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Purchased
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (c)(ii) of
this Section shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (c)(vi) of
this Section and including the date when each seller of Purchased Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (c)(vi) of this
Section.
(e) Indemnification.
(i) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to this Section 9, the Company will, and it hereby does, indemnify and hold
harmless the seller of any Purchased Securities covered by such registration
statement, each affiliate of such seller and their respective directors and
officers or general and limited partners, members (and the partners, members,
directors, officers, affiliates and controlling persons of each of the
foregoing), each other person who participates as an underwriter in the offering
or sale of such securities and each other person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including reasonable
attorney's fees) to which any such Indemnified Party may become subject under
the Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Party is a party thereto) arise out of or are based upon
(a) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and the Company will reimburse, as
incurred, such Indemnified
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Party for any legal or any other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that (i) the Company shall
not be liable to any Indemnified Party in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or alleged untrue
statement of material fact or omission or alleged omission of material fact made
in such registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information with respect to such seller furnished to the Company by such
seller specifically stating that it is for use in the preparation thereof, (ii)
with respect to any untrue statement or omission of a material fact made in any
preliminary prospectus, the indemnity provided in this Section 9(e) shall not
inure to the benefit of any Indemnified Party from whom the person asserting any
such loss, claim, damage, or liability purchased the Purchased Securities
concerned, to the extent that any such loss, claim, damage, or liability of such
Indemnified Party occurs under circumstances where the Company had previously
furnished copies of the final prospectus to such Indemnified Party and the
untrue statement or omission of a material fact contained in the preliminary
prospectus was corrected in the final prospectus and such Indemnified Party
failed to deliver the final prospectus, and (iii) the Company shall not be
liable for any amounts paid in settlement of any such loss, claims, damage,
liability, or action if such settlement is effected without the consent of the
Company, which consent has not been unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any other Indemnified Party and shall survive the
transfer of such securities by such seller.
(ii) Indemnification by the Purchaser, In the event of any
registration of any securities of the Company under the Securities Act in
accordance with this Section, the prospective seller of such Purchased
Securities shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (i) of this Section 9(e)) the Company and all
other prospective sellers or any underwriter, as the case may be, with respect
to any untrue statement or alleged untrue statement of material fact in or
omission or alleged omission of material fact from such registration statement,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
with respect to such seller furnished to the Company or underwriter by such
seller specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing;
provided, however, that the liability of such indemnifying party under this
Section 9(e) shall be limited to the amount of net proceeds received by such
indemnifying party from the offering giving rise to such liability. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any of the prospective underwriters, or
any of their respective affiliates, directors, officers or controlling persons
and shall survive the transfer of such securities by such seller.
(iii) Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or
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proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 9, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 3, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof, the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
(iv) Contribution. If the indemnification provided for in this
Section 9(e) shall for any reason be held by a court to be unavailable to an
indemnified party under paragraphs (i) or (ii) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under paragraph (i) or (ii) hereof, the indemnified
party and the indemnifying party under paragraph (i) or (ii) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (a) in such proportion as is appropriate to reflect the relative fault of
the Company and the prospective sellers of Purchased Securities covered by such
registration statement that resulted in such loss, claim, damage or liability,
or action in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage, liability, or action in respect thereof,
as well as any other relevant equitable consideration or (b) if the allocation
provided by such clause (a) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and such prospective sellers from the offering of such securities
covered by such registration statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation; provided, however, that the contribution of any
seller under this Section 3(e) shall be limited to the amount of net proceeds
received by such seller from the offering giving rise to such contribution. Such
prospective sellers' obligations to contribute as provided in this paragraph
(iv) are several in proportion to the relative value of their respective
Purchased Securities covered by such registration statement or the other factors
described herein and not joint. In addition, no person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such person's consent.
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(v) Indemnification Payments. The indemnification required by this
Section 9 shall be effected by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Termination of Registration Rights. Unless otherwise specified
above, the registration rights granted under this Section 9 shall terminate upon
the earlier of (i) four years subsequent to the Closing Date and (ii) such time,
as the Purchaser shall be permitted to sell all of its Purchased Securities in
any three month period under Rule 144 promulgated under the Securities Act.
10. Choice of Law. This Agreement and the performance hereunder shall
be governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to such state's rules governing the conflicts of
laws.
11. Notices. All notices, requests, demands and other communications
which a party is required to or may desire to give any other party in connection
with this Agreement shall be in writing, and shall be personally delivered,
delivered by facsimile transmission, delivered by United States registered or
certified mail, postage prepaid with return receipt requested, or delivered by a
nationally recognized overnight courier, addressed as follows:
If to the Company: NAM Corporation
1010 Northern Boulevard, Suite 336
Great Neck, New York 11021
Fax No.: (516) 829-4395
Attention: Roy Israel
With a copy (which shall Camhy Karlinsky & Stein LLP
not constitute notice) to: 1740 Broadway, 16th Floor
New York, New York 10019
Fax No.: (212) 977-8389
Attention: Robert S. Matlin, Esq.
If to Purchaser: ISO Investment Holdings, Inc.
300 Delaware Avenue, Suite 537
Wilmington, Delaware 19801
Attention: Patricia F. Genzel
Fax No.: (302) 658-0468
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With a copy (which shall Insurance Services Office, Inc.
not constitute notice) or 7 World Trade Center
if to ISO to: New York, New York 10048
Fax No.: (212) 898-6790
Attention: Joseph P. Giasi, Senior Vice
President and General Counsel
If notice is given by personal delivery in accordance with the
provisions of this Section 11, said notice shall conclusively be deemed given at
the time of delivery. If notice is given by confirmed facsimile transmission in
accordance with the provisions of this Section 11, said notice shall
conclusively be deemed given at the time of the transmission. If notice is given
by mail in accordance with the provisions of this Section 11, said notice shall
conclusively be deemed given 48 hours after deposit thereof in the United States
mail. If notice is given by overnight courier then notice shall conclusively be
deemed given 24 hours after delivery to the courier. The addressees or addresses
set forth above may be changed from time to time by a notice sent to the other
parties.
12. Amendments. The provisions of this Agreement may be altered,
amended, or repealed, in whole or in part, only on the written consent of the
Company and the Purchaser.
13. Survival of Agreements. All covenants and agreements made in this
Agreement shall survive the execution and delivery hereof, and all
representations and warranties made in this Agreement shall survive the
execution and delivery hereof for a period of one (1) year from the Closing
Date.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter contained herein and
supersedes any and all other prior or contemporaneous agreements, arrangements,
and understandings, either oral or in writing, between the parties hereto with
respect to the subject matter hereof. Each party to this Agreement acknowledges
and represents that no representations, warranties, covenants, conditions,
inducements, promises or agreements, oral or otherwise, other than as set forth
herein, have been made by any party hereto, or anyone acting on behalf of any
party.
15. Severability. It is intended that each section of this Agreement
should be viewed as separate and divisible, and in the event that any section,
provision, covenant, or condition of this Agreement shall be held to be invalid,
void, or unenforceable, the remainder of the provisions shall remain in full
force and effect and shall in no way be affected, impaired, or invalidated.
16. Successors and Assignment. This Agreement may not be assigned by
the Purchaser without the prior written consent of the Company. Upon such
consent, this Agreement, and the rights and obligations of the Purchaser
hereunder, may be assigned by such Purchaser to any permitted transferee, and
such permitted transferee shall be deemed a
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"Purchaser" under this Agreement; provided, that such assignment shall not be
effective unless and until such permitted transferee shall agree to bound by the
terms and conditions set forth herein and shall become a party to, and executes
a signature page to, this Agreement (the "Permitted Transferee").
17. Waiver. No provision of this Agreement as it applies to the
Company, on the one hand, or the Purchaser, on the other hand, may be waived
except in writing by the party entitled to the benefit of such provision.
18. Counterparts and Facsimile. This Agreement may be executed in
counterparts (and by facsimile), each of which shall be deemed an original and
all of which shall constitute one agreement.
19. Preferred Provider Relationship. ISO and the Company agree that ISO
shall be a preferred provider to the Company of information and consulting
services, at arm's length pricing, and the Company shall be a preferred provider
to ISO of arbitration and mediation services at arm's length pricing.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
NAM CORPORATION
By:
-----------------------------------
Name: Roy Israel
Title: President and
Chief Executive Officer
ISO INVESTMENT HOLDINGS, INC.
By:
-----------------------------------
Name: Joseph C. Kaminski
Title: Senior Vice President
As to Paragraph 19 hereof:
INSURANCE SERVICES OFFICE, INC.
By:
-----------------------------------
Name: Joseph C. Kaminski
Title: Senior Vice President
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EXHIBIT A
21
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SCHEDULE 6(c)
22
Exhibit 4
---------
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT.
Great Neck, New York No.1
STOCK PURCHASE WARRANT
To Purchase 180,000 Shares of Common Stock of
NAM Corporation
THIS CERTIFIES that, for value received, ISO Investment Holdings, Inc.
(the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after May 10, 2000 (the "Initial
Exercise Date") and on or prior to the close of business on August 15, 2005 (the
"Termination Date") but not thereafter, to subscribe for and purchase from NAM
Corporation, a corporation incorporated in Delaware (the "Company"), up to one
hundred eighty thousand (180,000) shares (the "Warrant Shares") of Common Stock,
$.001 par value, of the Company (the "Common Stock"). The purchase price of one
share of Common Stock (the "Exercise Price") under this Warrant shall be $8.09.
The Exercise Price and the number of shares for which the Warrant is exercisable
shall be subject to adjustment as provided herein. In the event of any conflict
between the terms of this Warrant and the Stock Purchase Agreement, dated as of
May 10, 2000 (the "Purchase Agreement"), the Purchase Agreement shall control.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth for such terms in the Purchase Agreement.
1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and the terms of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder hereof in person or by duly authorized
attorney, upon surrender of this Warrant together with the Assignment Form
annexed hereto properly endorsed.
2. Authorization of Shares. The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
<PAGE>
3. Exercise of Warrant. Except as provided in Section 4 herein,
exercise of the purchase rights represented by this Warrant may be made at any
time or times on or after the Initial Exercise Date, and before the close of
business on the Termination Date by the surrender of this Warrant and the Notice
of Exercise Form annexed hereto duly executed, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the registered Holder hereof at the address of such holder appearing
on the books of the Company) and upon payment of the Exercise Price of the
shares thereby purchased by wire transfer or cashier's check drawn on a United
States bank, the holder of this Warrant shall be entitled to receive a
certificate for the number of shares of Common Stock so purchased. Certificates
for shares purchased hereunder shall be delivered to the Holder hereof within
five (5) Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been exercised and
such certificate or certificates shall be deemed to have been issued, and Holder
or any other person so designated to be named therein shall be deemed to have
become a holder of record of such shares for all purposes, as of the date the
Holder faxes a Notice of Exercise to the Company, provided that such fax notice
is followed by delivery of the original notice and payment to the Company of the
Exercise Price and all taxes required to be paid by Holder, if any, pursuant to
Section 5 prior to the issuance of such shares, have been paid within three (3)
Trading Days of such fax notice. If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new Warrant
evidencing the rights of Holder to purchase the unpurchased shares of Common
Stock called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the Holder hereof for any issue or federal or state transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued in the name of the holder of this Warrant or in such name or names as may
be directed by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name other than
the name of the holder of this Warrant, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder hereof; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
6. Closing of Books. The Company will not close its shareholder books
or records in any manner which prevents the timely exercise of this Warrant.
7. Transfer, Division and Combination.
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(a) The Holder (and its transferees and assigns), by acceptance of
this Warrant, covenants and agrees that it is acquiring the Warrants evidenced
hereby, and, upon exercise hereof, the Warrant Shares, for its own account as an
investment and not with a view to distribution thereof. The Warrant Shares have
not been registered under the Securities Act or any state securities laws and no
transfer of any Warrant Shares shall be permitted unless the Company has
received notice of such transfer, at the address of its principal office set
forth in the Purchase Agreement, in the form of assignment attached hereto,
accompanied by an opinion of counsel reasonably satisfactory to the Company that
an exemption from registration of such Warrants or Warrant Shares under the
Securities Act is available for such transfer. Upon any exercise of the
Warrants, certificates representing the Warrant Shares shall bear a restrictive
legend substantially identical to that set forth on the face of this Warrant
certificate.
(b) This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Warrants are
to be issued, signed by Holder or its agent or attorney. Subject to compliance
with Section 7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 7.
(d) The Company agrees to maintain, at its aforesaid office, books
for the registration and the registration of transfer of the Warrants.
8. No Rights as Shareholder until Exercise. This Warrant does not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company prior to the exercise hereof. Upon the surrender of this Warrant
and the payment of the aggregate Exercise Price, the Warrant Shares so purchased
shall be and be deemed to be issued to such holder as the record owner of such
shares as of the close of business on the later of the date of such surrender or
payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant certificate
or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which shall not exceed that customarily charged by the Company's transfer
agent) and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or legal holiday.
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<PAGE>
11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time upon the happening of any of the
following. In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares of Common Stock or (iv)
issue any shares of its capital stock in a reclassification of the Common Stock,
then the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the holder of this Warrant
shall be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or been entitled to receive
had such Warrant been exercised in advance thereof. Upon each such adjustment of
the kind and number of Warrant Shares or other securities of the Company which
are purchasable hereunder, the holder of this Warrant shall thereafter be
entitled to purchase the number of Warrant Shares or other securities resulting
from such adjustment at an Exercise Price per Warrant Share or other security
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of Warrant
Shares or other securities of the Company resulting from such adjustment. An
adjustment made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
(b) Dilutive Issuances. In the event that the Company shall sell
or issue at any time after the date of issuance of this Warrant and prior to its
termination, shares of Common Stock, or securities of the Company convertible
into or exchangeable for shares of Common Stock, at a price per share or
conversion or exercise price per share which is: (x) less than the Exercise
Price and the Exercise Price is less than the Market Price, as defined below, at
the time of issuance; or (y) less than the Market Price and the Market Price is
less than the Exercise Price at the time of issuance (each, a "Dilutive
Issuance"); then the Exercise Price shall be adjusted to a new Exercise Price
(calculated to the nearest cent) determined by dividing:
(i) an amount equal to (A) the total number of shares of Common
Stock outstanding on the date of issuance of this Warrant
(determined on a fully-diluted basis; i.e., treating as
outstanding all shares of Common Stock issuable upon
exercise, exchange or conversion of all outstanding
options, warrants, or other securities exercisable or
exchangeable for or convertible into, directly or
indirectly, shares of Common Stock) multiplied by the
Exercise Price in effect on the date of issuance of this
Warrant (subject, however, to adjustment in the manner set
forth in this Section 11), plus (B) the aggregate of the
amount of all consideration, if any, received by the
Company for the Dilutive Issuance, by
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<PAGE>
(ii) the total number of shares of Common Stock outstanding
immediately after such Dilutive Issuance (determined on a
fully-diluted basis as aforesaid).
In no event shall any such adjustment be made pursuant to this Section 11(b) if
it would increase the Exercise Price in effect immediately prior to such
adjustment.
In the case of the issuance of (x) options, warrants or other rights to purchase
or acquire Common Stock (whether or not at the time exercisable), (y) securities
by their terms convertible into or exchangeable for Common Stock (whether or not
at the time so convertible or exchangeable), or (z) options, warrants or rights
to purchase such convertible or exchangeable securities (whether or not at the
time exercisable):
(1) the shares of Common Stock deliverable upon exercise of such
options, warrants or other rights to purchase or acquire Common Stock shall be
deemed to have been issued for a consideration equal to the consideration
(determined in the manner provided in subclauses (A) and (B) above), if any,
received by the Corporation upon the issuance of such options, warrants or
rights plus the minimum purchase price provided in such options, warrants or
rights for the shares of Common Stock covered thereby;
(2) if the Exercise Price shall have been adjusted upon the
issuance of any such options, warrants, rights or convertible or exchangeable
securities, no further adjustment of the Exercise Price shall be made for the
actual issuances of Common Stock upon the exercise, conversion or exchange
thereof; and
(3) on the expiration or termination of any such options, warrants
or other rights, the Exercise Price shall forthwith be readjusted to such
Exercise Price as would have been obtained had the adjustment made upon the
issuance of such options, warrants or other rights had not been made.
"Market Price" shall mean the average of the closing price of a share of Common
Stock as reported by the Nasdaq SmallCap Market for the five (5) trading days
preceding the date of issuance of a Dilutive Issuance.
In the case of a Dilutive Issuance involving consideration other than
cash, the value of the non-cash consideration shall be that determined in good
faith by the Board of Directors.
Upon each adjustment of the Exercise Price pursuant to this Section
11(b), the holder of this Warrant shall thereafter be entitled to purchase, at
the Exercise Price resulting from such adjustment, the number of Warrant Shares
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Exercise Price resulting from such adjustment.
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<PAGE>
In no event shall the following issuances trigger the dilution
provisions of this Section 11(b): (i) the issuance or sale of options to
purchase securities, and the issuance of the securities underlying such options,
to employees, consultants and directors of the Company, pursuant to a stock
option plan approved by the Board of Directors of the Company; (ii) the issuance
of securities or options, and the issuance of the securities underlying such
options, pursuant to employment agreements approved by the Board of Directors;
(iii) securities issued pursuant to a public offering of the Company's
securities by means of a registration statement which is declared effective by
the Securities and Exchange Commission or securities issued thereafter; (iv)
securities issued in connection with a material acquisition which has been
approved by the Board of Directors of the Company; (v) securities issued in
connection with any stock split, stock dividend, or recapitalization of the
Company; (vi) Common Stock issued upon conversion of any shares of preferred
stock of the Company issued and outstanding as of the date hereof; (vii) shares
of Common Stock that may be issued pursuant to the Equity Line of Credit
available to the Company as of the date hereof; or (viii) the issuance of
securities which have, pursuant to the provisions of this Section 11(b), already
triggered or been exempted from triggering a reduction in the conversion price.
(c) Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of common stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of shares of
Common Stock for which this Warrant is exercisable which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 11.
For purposes of this Section 11, "common stock of the successor or acquiring
corporation" shall include stock of such corporation of any class which is not
preferred as to dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall also include any
evidences of indebtedness, shares of stock or other securities which are
convertible into or
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<PAGE>
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 11 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
12. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant, reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
13. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall promptly mail by registered or certified mail, return receipt requested,
to the holder of this Warrant notice of such adjustment or adjustments setting
forth the number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price of such
Warrant Shares (and other securities or property) after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and setting forth
the computation by which such adjustment was made. Such notice, in the absence
of manifest error, shall be conclusive evidence of the correctness of such
adjustment.
14. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
consolidation or merger of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 10 days' prior
written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be entitled to any
such dividend, distribution or right, and the amount and character thereof, and
(ii) the date on which any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or
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<PAGE>
winding up is to take place and the time, if any such time is to be fixed, as of
which the holders of Common Stock shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of Holder
appearing on the books of the Company and delivered in accordance with Section
16(d).
15. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the principal market
upon which the Common Stock may be listed. Upon the request of Holder, the
Company will at any time during the period this Warrant is outstanding
acknowledge in writing, in form reasonably satisfactory to Holder, the
continuing validity of this Warrant and the obligations of the Company
hereunder.
16. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of Delaware without regard to its conflict of law, principles or
rules, and be subject to arbitration pursuant to the terms set forth in the
Purchase Agreement.
(b) Restrictions. The Holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.
(c) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder hereof by the Company shall be
delivered in accordance with the notice provisions of the Purchase Agreement.
(d) Successors and Assigns. Subject to applicable securities laws,
this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the successors
and permitted assigns of Holder. The provisions of this Warrant are intended to
be for the benefit of all holders from time to time of this Warrant and shall be
enforceable by any such holder or holder of Warrant Shares.
(e) Indemnification. The Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its
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<PAGE>
covenants, agreements, undertakings or obligations set forth in this Warrant;
provided, however, that the Company will not be liable hereunder to the extent
that any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorneys' fees, expenses or disbursements are
found in a final non-appealable judgment by a court to have resulted from
Holder's negligence, bad faith or willful misconduct.
(f) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(g) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.
(h) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: May 10, 2000
NAM Corporation
By:
------------------------------------
Roy Israel, President and Chief Executive Officer
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<PAGE>
NOTICE OF EXERCISE
To: NAM Corporation
1010 Northern Boulevard, Suite 336
Great Neck, New York 11021
(1) The undersigned hereby elects to purchase ________ shares of Common
Stock (the "Common Stock"), of NAM Corporation pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
----------------------------------------
(Name)
---------------------------------------
(Address)
----------------------------------------
Dated:
------------------------------
Signature
<PAGE>
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
whose address is
- ----------------------------------------------
- ---------------------------------------------------------------.
Dated: ,
------------------ ----------
Holder's Signature:
-----------------------------------
Holder's Address:
-------------------------------------
-------------------------------------
Signature Guaranteed:
----------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
Exhibit 5
---------
CO-SALE AGREEMENT
THIS CO-SALE AGREEMENT dated as of May 10, 2000 by and between Roy
Israel ("Israel") with an office at NAM Corporation (the "Company"), 1010
Northern Boulevard, Great Neck, New York 11021 and ISO Investment Holdings,
Inc., a Delaware corporation ("ISO") with offices at 300 Delaware Avenue, Suite
537, Wilmington, Delaware 19801.
PREAMBLE
WHEREAS, Israel holds 1,143,236 shares of the common stock, par value
$.001 per share (the "Common Stock"), of the Company;
WHEREAS, the Investors are purchasing shares of Common Stock, pursuant
to that certain Stock Purchase Agreement of even date herewith among the Company
and the Investor (the "Purchase Agreement");
WHEREAS, one of the conditions to the Closing (as defined in the
Purchase Agreement) is the execution of this Agreement by ISO and Israel;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Sales of Shares by Israel. Expressly excluding any Permitted
Transfers contemplated by Section 2.4:
1.1 If during the three-year period from the Closing, Israel
proposes to accept one or more bona fide offers from any person or entity to
purchase from him shares of Common Stock (the "Offered Shares"), he shall
promptly deliver a notice (the "Purchase Offer Notice") to ISO stating the terms
and conditions of such proposed sale, including without limitation the number of
Offered Shares to be sold or transferred, the nature of such sale or transfer,
the consideration to be paid and the name and address of each prospective
purchaser or transferee.
1.2 ISO shall have the right (the "Co-Sale Right"), but not the
obligation, exercisable during the ten (10)-day period (the "Co-Sale Exercise
Period") following its receipt of a Purchase Offer Notice, to participate in the
sale of Offered Shares by offering up to that number of shares of Common Stock
which is equal to the Offered Shares multiplied by a fraction, the numerator of
which shall be the total number of shares of Common Stock owned by ISO as of the
date hereof and the denominator of which shall be the total number of shares of
Common Stock owned by Israel and ISO as of the date hereof. Such right shall be
exercised by ISO by its written notice, delivered to Israel during the Co-Sale
Exercise Period (the "Co-Sale Exercise Notice"), setting forth the number of
shares to be sold or transferred by ISO pursuant to its Co-Sale Right. ISO's
failure to deliver a Co-Sale Exercise Notice to Israel within the Co-Sale
Exercise Period shall be deemed a declination by ISO of its right to participate
in the sale of Offered Shares.
<PAGE>
1.3 Exercise of Co-Sale Right. The Co-Sale Right of ISO shall be
subject to the following terms and conditions:
(a) To effect its participation in the sale or transfer of
its Co-Sale Shares to the prospective purchaser or transferee following timely
delivery of the Co-Sale Exercise Notice, ISO shall, to the extent ISO proposes
to sell shares of Common Stock, deliver to Israel, for transfer to the
prospective purchaser or transferee, one or more certificates, properly endorsed
for transfer, which represent the number of shares of Common Stock that ISO
elects to sell pursuant to the Co-Sale Exercise Notice.
(b) The stock certificate or certificates which ISO delivers
to Israel shall be delivered by ISO to the purchaser upon consummation of the
sale pursuant to the terms and conditions specified in the Purchase Offer
Notice, and Israel shall promptly thereafter (and in any event, within fifteen
(15) days after such sale) remit to ISO that portion of the sale proceeds to
which ISO is entitled by reason of its participation in such sale.
(c) Israel shall use all reasonable efforts to cause the
prospective purchaser or transferee to agree to acquire, upon the same terms and
conditions as those set forth in the Purchase Offer, all of the Co-Sale Shares
of ISO. To the extent that any prospective purchaser prohibits the assignment of
Co-Sale Shares or otherwise refuses to purchase Co-Sale Shares from ISO, Israel
shall not sell to such prospective purchaser any Offered Shares unless and
until, simultaneously with such sale, Israel shall purchase such Co-Sale Shares
from ISO for the same consideration, and on the same terms and conditions, as
the proposed sale or transfer described in the Purchase Offer Notice (which
terms and conditions shall be no less favorable than those governing the sale to
the purchaser by Israel).
2. Miscellaneous
2.1 Termination of Rights. The Co-Sale Right under this Agreement
shall immediately terminate upon (i) the acquisition of all or substantially all
the assets of the Company, (ii) an acquisition of the Company by another
corporation or entity by consolidation, merger or other reorganization in which
the holders of the Company's outstanding voting stock immediately prior to such
transaction own, immediately after such transaction, securities representing
less than fifty percent (50%) or more of the voting power of the corporation or
other entity surviving such transaction, or (iii) one year from the date hereof.
2.2 Reversion of Rights. Any Shares of Israel not sold or
transferred by him to the prospective purchaser or transferee (pursuant to the
Purchase Offer) shall continue to be subject to this Agreement.
2.3 No Adverse Effect. The exercise or non-exercise of the rights
of ISO pursuant to this Agreement to participate in one or more sales of Shares
made by Israel shall not adversely affect ISO's right to participate in
subsequent sales of Shares by Israel.
2.4 Permitted Transfers. The provisions of this Agreement shall
not pertain or apply to any transfer of Common Stock owned by Israel: (i) to the
personal trust of Israel; (ii) to
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<PAGE>
members of Israel's immediate family; (iii) to trusts for the benefit of any
such person; (iv) to the estate of any of the foregoing by gift, will or
intestate succession; provided, in the circumstances set forth in (i) through
(iv) above, any such transferee becomes subject to ISO's Co-Sale Rights
hereunder; or (v) by will or the laws of descent and distribution; (vi) to
non-profit institutions, by gift of will; or (vii) any transfer of up to fifty
percent (50%) (in the aggregate or individually) of Israel's holdings of Common
Stock as of the date hereof (collectively, "Permitted Transfers").
2.5 Prohibited Transfers. Any attempt by Israel to sell, assign or
transfer shares of Common Stock in violation of this Agreement shall be void,
and the Company shall not effect such a transfer nor will it treat any alleged
purchaser, assignee or transferee as the holder of such shares.
2.6 Severability; Governing Law. If any provision of this
Agreement shall be determined to be illegal or unenforceable by any court of
law, then the remaining provisions shall be severable and enforceable in
accordance with their terms. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
New York, without giving effect to principles of conflicts of law.
2.7 Judicial Proceedings. EACH OF THE PARTIES HERETO AGREES THAT
ANY ACTION, SUIT OR PROCEEDING AGAINST ANY OF THE PARTIES HERETO ARISING UNDER
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY
MAY BE BROUGHT OR ENFORCED IN THE NEW YORK STATE COURTS OR FEDERAL COURTS
LOCATED IN NEW YORK COUNTY, AND EACH OF THE PARTIES HERETO CONSENTS TO THE
JURISDICTION AND VENUE OF EACH SUCH COURT IN RESPECT OF ANY SUCH ACTION, SUIT OR
PROCEEDING.
2.8 Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties hereto and shall not in any way affect the meaning or
interpretation of this Agreement. All references to the term "as of the date
hereof" shall mean the date of this Agreement.
2.9 Injunctive Relief. It is acknowledged that it will be
impossible to measure the damages that would be suffered by the non-breaching
party if any party fails to comply with the provisions of this Agreement, and
that, in the event of any such failure, the non-breaching parties will not have
an adequate remedy at law. The non-breaching parties shall, therefore, be
entitled to obtain specific performance of the breaching party's obligations
hereunder and to obtain immediate injunctive relief. The breaching party shall
not urge, as a defense to any proceeding for such specific performance or
injunctive relief, that the non-breaching parties have an adequate remedy at
law.
2.10 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assignees, legal representatives and heirs. Nothing in this
Agreement, either express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
3
<PAGE>
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. The administrator,
executor or legal representative of any deceased, juvenile or incapacitated
Stockholder shall have the right to execute and deliver all documents and
perform all acts necessary to exercise and perform the rights and obligations of
such Stockholder under the terms of this Agreement.
2.11 Counterparts. This Agreement may be executed concurrently in
two (2) or more counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same instrument.
2.12 Notices. All notices to be given or otherwise made to any
party to this Agreement shall be in writing and shall be personally delivered,
or shall be sent by delivery service or mailed (in either such case with three
(3)-day delivery guaranteed), to such party at the address set forth in the
signature pages hereto or at such other address as may hereafter be designated
in writing by the addressee to the addressor listing all parties.
All such notices shall be effective and deemed duly given when received
or when attempted delivery is refused.
2.13 Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and do not constitute a part of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this agreement in
counterparts as of the date first above specified.
------------------------------------
ROY ISRAEL
ISO INVESTMENT HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
4
