EXECUTION COPY
--------------
ACCOM, INC.
Stock Purchase Agreement
December 10, 1998
EXECUTION COPY
--------------
TABLE OF CONTENTS
Page
----
1. Purchase and Sale of Stock..........................................1
1.1 Sale and Issuance of Common Stock..........................1
1.2 Closing....................................................1
2. Representations and Warranties of the Company.......................1
2.1 Organization; Good Standing; Qualification.................2
2.2 Due Authorization..........................................2
2.3 Valid Issuance of Common Stock.............................2
2.4 Governmental Consents......................................2
2.5 Capitalization and Voting Rights...........................3
2.6 Registration Rights........................................3
2.7 Compliance With Other Instruments..........................3
2.8 Disclosure.................................................4
2.9 SEC Documents; Company Financial Statements................4
3. Representations and Warranties of the Investors.....................5
3.1 Purchase Entirely for Own Account..........................5
3.2 Reliance Upon Investors' Representations...................5
3.3 Receipt of Information.....................................5
3.4 Investment Experience......................................5
3.5 Accredited Investor........................................5
3.6 Restricted Securities......................................5
3.7 Legends....................................................6
4. Conditions of the Investor's Obligations at Closing.................6
4.1 Representations and Warranties.............................6
4.2 Performance................................................6
4.3 Compliance Certificate.....................................7
4.4 Qualifications.............................................7
4.5 Proceedings and Documents..................................7
4.6 Opinion of Company Counsel.................................7
4.7 Investor's Rights Agreement................................7
5. Conditions of the Company's Obligations at Closing..................7
5.1 Representations and Warranties.............................7
5.2 Qualifications.............................................7
6. Covenants of the Company............................................7
6.1 Grant of Stock Options.....................................7
6.2 Right to Nominate Director.................................8
6.3 Consulting Services........................................8
-i-
EXECUTION COPY
--------------
7. Miscellaneous.......................................................8
7.1 Entire Agreement...........................................8
7.2 Survival of Representations, Warranties and Covenants......8
7.3 Successors and Assigns.....................................8
7.4 Governing Law..............................................8
7.5 Counterparts...............................................8
7.6 Titles and Subtitles.......................................8
7.7 Attorneys' Fees............................................9
7.8 Amendments and Waivers.....................................9
7.9 Severability...............................................9
7.10 California Corporate Securities Law........................9
Exhibit A - Asset Purchase Agreement
Exhibit B - Investor's Rights Agreement
Exhibit C - Schedule of Exceptions
Exhibit D - Opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
-ii-
EXECUTION COPY
--------------
ACCOM, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 10th
day of December, 1998, by and between ACCOM, INC., a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Investor").
WITNESSETH
WHEREAS, the Company intends to enter into that certain Asset Purchase
Agreement, the form of which is attached hereto as Exhibit A (the "Asset
Purchase Agreement") of even date herewith by and among the Company, Scitex
Digital Video, Inc., a Massachusetts corporation ("SDV"), Scitex Digital Video
(Europe) Limited, a private limited company incorporated in England and Wales,
Scitex Digital Video (Asia Pacific), Inc., a California corporation, Scitex
Development Corp., a Massachusetts corporation, and Scitex Corporation Ltd., an
Israel corporation (collectively, the "Sellers"); and
WHEREAS, the Company intends to finance a portion of its obligations
under the Asset Purchase Agreement with pursuant to this Agreement and
$3,500,000 (the "Borrowed Funds"), from LaSalle Business Credit, Inc. (the
"Lender") pursuant to a revolving credit line; and
WHEREAS, the execution of this Agreement and delivery of the Purchase
Price hereunder by the Investor is contingent upon the contemporaneous delivery
of the Borrowed Funds by the Lender;
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. Subject to the terms and
conditions of this Agreement, the Investor agrees to purchase at the Closing (as
such term is defined below) and the Company agrees to sell and issue to the
Investor at the Closing 2,500,000 shares of the Company's Common Stock at a
price of $0.60 per share, for an aggregate of $1,500,000 (the "Purchase Price").
1.2 Closing. The purchase and sale of the Common Stock shall take place
at the offices of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, at 10:00 a.m. on December 10, 1998, or at such other time and place
as the Company and the Investor shall mutually agree, either orally or in
writing (which time and place are designated as the "Closing"). At the Closing,
the Company shall deliver to the Investor a certificate representing the
2,500,000 shares of Common Stock that the Investor is purchasing against payment
of the Purchase Price by check, wire transfer or such other form of payment as
shall be mutually agreed upon by the Investor and the Company.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investor that, except as set forth on a Schedule
of Exceptions furnished to the
1
EXECUTION COPY
--------------
Investor and counsel for the Investor and attached hereto as Exhibit C (the
"Schedule of Exceptions"), specifically identifying the relevant subparagraph(s)
hereof, which exceptions shall be deemed to be representations and warranties as
if made hereunder:
2.1 Organization; Good Standing; Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, has all requisite corporate power and authority to own
and operate its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted, to execute and deliver this
Agreement, the Investor's Rights Agreement, and any other agreement to which the
Company is a party, the execution and delivery of which is contemplated hereby
(the "Ancillary Agreements"), to issue and sell the Common Stock, and to carry
out the provisions of this Agreement, the Investor's Rights Agreement, and any
Ancillary Agreement. The Company is duly qualified and is authorized to transact
business and is in good standing as a foreign corporation in each jurisdiction
in which the failure so to qualify would have a material adverse effect on its
business, properties or financial condition.
2.2 Due Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the Investor's Rights Agreement and
any Ancillary Agreement, the performance of all obligations of the Company
hereunder and thereunder at the Closing and the authorization, issuance, sale
and delivery of the Common Stock being sold hereunder has been taken or will be
taken prior to the Closing, and this Agreement, the Investor's Rights Agreement
and any Ancillary Agreement, when executed and delivered, will constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (b) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies, and (c) to the extent the indemnification provisions
contained in the Investor's Rights Agreement may be limited by applicable laws.
2.3 Valid Issuance of Common Stock. The Common Stock that is being
purchased by the Investor hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement and the Investor's Rights Agreement and under applicable state
and federal securities laws.
2.4 Governmental Consents. No consent, approval, qualification, order
or authorization of, or filing with, any local, state or federal governmental
authority is required on the part of the Company in connection with the
Company's valid execution, delivery or performance of this Agreement, the offer,
sale or issuance of the Common Stock by the Company, except such filings as have
been made prior to the Closing, except that any notices of sale required to be
filed with the Securities and Exchange Commission under Regulation D of the
Securities Act of 1933, as amended (the "Securities Act"), or such post-closing
filings as may be required under applicable state securities laws, which will be
timely filed within the applicable periods therefor. Notwithstanding any
provisions of this Agreement, the Company is not making and does not make any
representations or warranties with respect to the applicability of the laws or
regulations
2
EXECUTION COPY
--------------
of any foreign country to, or the effect of any such laws or regulations upon,
the sale of the Common Stock to Investor.
2.5 Capitalization and Voting Rights.
(a) The authorized capital of the Company consists, or will consist
prior to the Closing, of shares of Preferred Stock, par value $.001 (the
"Preferred Stock") and shares of Common Stock, par value $.001(the "Common
Stock"), in the amounts set forth on Section 2.5 of the Schedule of Exceptions
attached hereto. The number of issued and outstanding shares of Preferred Stock
and Common Stock as of the date hereof is as set forth on Section 2.5 of the
Schedule of Exceptions attached hereto.
(b) The outstanding shares of Common Stock have been issued in
accordance with the registration or qualification provisions of the Securities
Act and any relevant state securities laws or pursuant to valid exemptions
therefrom. Except for (i) currently outstanding options to purchase shares of
Common Stock granted to employees pursuant to the Company's stock option plans
(the "Plans") in the amounts set forth on Section 2.5 of the Schedule of
Exceptions attached hereto, (ii) 750,000 shares to be sold to ▇▇▇▇ ▇▇▇▇▇▇▇
concurrently with the Closing hereunder, (iii) 1,000,000 warrants to be issued
to Scitex Digital Video, Inc., a Massachusetts corporation ("Scitex"),
concurrently with the Closing hereunder pursuant to the terms of the Asset
Purchase Agreement, (iv) that number of options to purchase shares of Common
Stock to be granted to employees of Scitex in connection with the Asset Purchase
Agreement set forth on Section 2.5 of the Schedule of Exceptions attached
hereto, there are not outstanding any options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), or agreements for
the purchase or acquisition from the Company of any shares of its capital stock.
The aggregate number of options currently outstanding pursuant to clause (i)
above or to be granted pursuant to clause (iv), the exercise prices of such
options and the vesting schedule for such options are as set forth on Section
2.5 of the Schedule of Exceptions. Except for pursuant to the Investors' Rights
Agreement of even date herewith between the Company and Scitex (the "Scitex
Investors' Rights Agreement"), the Company is not a party or subject to any
agreement or understanding, and, to the best of the Company's knowledge, there
is no agreement or understanding between any persons that affects or relates to
the voting or giving of written consents with respect to any security or the
voting by a director of the Company.
2.6 Registration Rights. Except as provided in the Investor's Rights
Agreement and the Scitex Investors' Rights Agreement, the Company is not
obligated to register under the Securities Act any of its presently outstanding
securities or any of its securities that may subsequently be issued.
2.7 Compliance With Other Instruments. The Company is not in violation
or default in any material respect of any provision of its Certificate of
Incorporation or Bylaws or in any material respect of any provision of any
mortgage, agreement, instrument or contract to which it is a party or by which
it is bound or, to the best of its knowledge, of any federal or state judgment,
order, writ, decree, statute, rule or regulation applicable to the Company. The
execution, delivery and performance by the Company of this Agreement, the
Investor's Rights Agreement and any Ancillary Agreement, and the consummation of
the transactions
3
EXECUTION COPY
--------------
contemplated hereby and thereby will not result in any such violation or be in
material conflict with or constitute, with or without the passage of time or
giving of notice, either a material default under any such provision or an event
that results in the creation of any material lien, charge or encumbrance upon
any assets of the Company or the suspension, revocation, impairment, forfeiture
or nonrenewal of any material permit, license, authorization or approval
applicable to the Company, its business or operations, or any of its assets or
properties.
2.8 Disclosure. The Company has provided the Investor with all the
information reasonably available to the Company without undue expense that the
Investor has requested for deciding whether to purchase the Common Stock and all
information that the Company believes is reasonably necessary to enable the
Investor to make such decision. To the best of the Company's knowledge after
reasonable investigation, neither this Agreement nor any other written
statements or certificates made or delivered at the Closing contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein, in the light of the circumstances under which
they were made, not misleading.
2.9 SEC Documents; Company Financial Statements. The Company has
furnished or made available to the Investor true and complete copies of all
reports, schedules, forms, statements or other documents filed or required to be
filed with the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or the
Securities Act since January 1, 1997, all in the form (including exhibits) so
filed (collectively, the "SEC Documents"). As of their respective filing dates,
such SEC Documents filed by the Company complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC thereunder, as the case may be, and none of the SEC
Documents contained as of the date filed any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent such SEC Documents have been
corrected, updated or superseded by a document subsequently filed with the SEC.
The financial statements of the Company, including the notes thereto, included
in the SEC Documents (the "Company Financial Statements") comply as to form in
all material respects with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP applied in a manner
consistent with past practice of the Company (except as may be indicated in the
notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q
under the Exchange Act) and present fairly the financial position, assets and
liabilities of the Company at the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited financial statements, to normal year-end adjustments). There has been
no change in the Company's accounting policies except as described in the notes
to the Company Financial Statements. Except as reflected or reserved against in
the Company Financial Statements, the Company has no material Liabilities (as
defined below) or other obligations, except (i) since the date of the most
recent audited balance sheet included in the Company Financial Statements,
Liabilities and obligations incurred in the ordinary course of business
consistent with the past practices of the Company or (ii) that would not be
required to be reflected or reserved against in the balance sheet of the Company
prepared in accordance with GAAP applied in a manner consistent with past
practice of the Company. "Liabilities" means all Indebtedness (as defined
below), obligations and other liabilities (or contingencies that have not yet
become liabilities) of a person, whether absolute, accrued, contingent (or based
upon any
4
EXECUTION COPY
--------------
contingency), known or unknown, fixed or otherwise, or whether due or to become
due as determined in accordance with GAAP. "Indebtedness" of any person means
all obligations of such person (a) for borrowed money, (b) evidenced by notes,
bonds, debentures or similar instruments, (c) for the deferred purchase price of
goods or services (other than trade payables or accruals incurred in the
ordinary course of business), (d) under capital leases and (e) in the nature of
guarantees of the obligations described in clauses (a) through (d) above of any
other person.
3. Representations and Warranties of the Investors. The Investor hereby
represents and warrants that:
3.1 Purchase Entirely for Own Account. This Agreement is made with the
Investor in reliance upon the Investor's representation to the Company, which by
the Investor's execution of this Agreement the Investor hereby confirms, that
the Common Stock to be purchased by the Investor will be acquired for investment
for the Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Investor further
represents that the Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Common Stock.
3.2 Reliance Upon Investors' Representations. The Investor understands
that the Common Stock is not registered under the Securities Act on the ground
that the sale provided for in this Agreement and the issuance of securities
hereunder is exempt from registration under the Securities Act pursuant to
section 4(2) thereof, and that the Company's reliance on such exemption is based
on the Investor's representations set forth herein. The Investor realizes that
the basis for the exemption may not be present if, notwithstanding such
representations, the Investor has in mind merely acquiring the Common Stock for
a fixed or determinable period in the future, or for a market rise, or for sale
if the market does not rise. The Investor has no such intention.
3.3 Receipt of Information. The Investor believes he has received all
the information he considers necessary or appropriate for deciding whether to
purchase the Common Stock. The Investor further represents that he has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Common Stock and the business,
properties, prospects and financial condition of the Company and to obtain
additional information (to the extent the Company possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to such Investor or to which such Investor
had access. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 2 of this Agreement or the right of the
Investors to rely thereon.
3.4 Investment Experience. The Investor represents that he is
experienced in evaluating and investing in securities of companies in the
development stage and acknowledges that he is able to fend for himself, can bear
the economic risk of his investment, and has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of the investment in the Common Stock.
5
EXECUTION COPY
--------------
3.5 Accredited Investor. The Investor is an "Accredited Investor" as
such term is defined in Regulation D of the Securities Act.
3.6 Restricted Securities. The Investor understands that the Common
Stock may not be sold, transferred or otherwise disposed of without registration
under the Securities Act or an exemption therefrom, and that in the absence of
an effective registration statement covering the Common Stock or an available
exemption from registration under the Securities Act, the Common Stock must be
held indefinitely. In particular, the Investor is aware that the Common Stock
may not be sold pursuant to Rule 144 promulgated under the Securities Act unless
all of the conditions of that Rule are met.
3.7 Legends. To the extent applicable, each certificate or other
document evidencing any of the Common Stock issued pursuant to this Agreement
shall be endorsed with the legends set forth below, and the Investor covenants
that, except to the extent such restrictions are waived by the Company, the
Investor shall not transfer the shares represented by any such certificate
without complying with the restrictions on transfer described in the legends
endorsed on such certificate:
(a) The following legend under the Act:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL
AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION
UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED."
(b) Any legend imposed or required by applicable state securities laws.
4. Conditions of the Investor's Obligations at Closing. The obligations
of the Investor under subparagraph 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 2 shall be true on and as of the Closing.
4.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with on or before the Closing, including,
but not limited to, the items set forth below:
(a) Concurrently with the Closing hereunder, the Company shall close
the transactions contemplated under the Asset Purchase Agreement.
(b) Immediately prior to the Closing hereunder, the Company shall amend
Section 1(a) of its Preferred Shares Rights Agreement, dated as of September 13,
1996, as amended effective
6
EXECUTION COPY
--------------
July 14, 1998 (the "Rights Agreement"), to provide that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall
not be deemed to be an Acquiring Person so long as such Person, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
not more than 3,425,000 Common Shares (as adjusted for any stock splits, stock
dividends, recapitalizations or the like) (including all Common Shares
beneficially owned by such Person as of the date of this Agreement (any
capitalized terms used in this subsection shall have the meaning given to such
terms in the Rights Agreement).
(c) Immediately prior to or concurrently with the Closing hereunder,
▇▇▇▇ ▇▇▇▇▇▇▇ shall be named the Vice President of Engineering of the Company. In
connection therewith, ▇▇. ▇▇▇▇▇▇▇ shall purchase an aggregate of 750,000 shares
of Common Stock from the Company.
4.3 Compliance Certificate. The President of the Company shall deliver
to the Investor at the Closing a certificate certifying that the conditions
specified in Sections 4.1, 4.2, 4.4, 4.5 and 4.7 have been fulfilled.
4.4 Qualifications. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Common Stock pursuant to this Agreement shall be duly obtained and effective as
of the Closing.
4.5 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor's counsel, which shall have received all such counterpart original and
certified or other copies of such documents as it may reasonably request.
4.6 Opinion of Company Counsel. The Investor shall have received from
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, an opinion, dated the date
of the Closing, in form and substance satisfactory to counsel to the Investor,
in substantially the form attached hereto as Exhibit D.
4.7 Investor's Rights Agreement. The Company and the Investor shall
have entered into the Investor's Rights Agreement in the form attached hereto as
Exhibit B.
5. Conditions of the Company's Obligations at Closing. The obligations
of the Company to the Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor:
5.1 Representations and Warranties. The representations and warranties
of the Investor contained in Section 3 shall be true on and as of the Closing
with the same effect as though such representations and warranties had been made
on and as of the Closing.
5.2 Qualifications. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Common Stock pursuant to this Agreement shall be duly obtained and effective as
of the Closing.
7
EXECUTION COPY
--------------
6. Covenants of the Company.
6.1 Grant of Stock Options. Except as set forth on Section 2.5 of the
Schedule of Exceptions, the Company will not grant any stock options under the
Plans or otherwise for a period of 12 months from the date hereof, except with
the prior written consent of the Investor.
6.2 Right to Nominate Director. For so long as the Investor holds more
than 15% of the outstanding shares of Common Stock, the Investor shall have the
right, but not the obligation, to designate himself to be nominated to be a
member of the Company's Board of Directors. The Company and the Company's Board
of Directors shall use its best efforts to take all required steps to effect the
nomination of the Investor to the Company's Board of Directors, including, but
not limited to, amendment of the Company's Certificate of Incorporation and
Bylaws (if such amendments would be required by the terms thereof to effect such
nomination).
6.3 Consulting Services. In the event that the Investor performs
consulting services for the Company, the Investor and the Company shall enter
into the Company's standard form of Consulting Agreement, which Consulting
Agreement shall set forth the terms and conditions of the Investor's service as
a consultant to the Company, including, but not limited to, the Investor's
salary and the number of required hours of service per month.
6.4 Expenses.
The Company shall reimburse the Investor for the reasonable fees and
disbursements of the Investor's counsel, Pillsbury Madison & Sutro LLP, incurred
by such counsel after November 30, 1998 in connection with the transactions
contemplated hereby, within five (5) business days of receipt from the Investor
of a written request for such reimbursement.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
7.2 Survival of Representations, Warranties and Covenants. The
warranties, representations and covenants of the Company and the Investor
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
7.3 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
permitted transferees, if any, of any shares of Common Stock sold hereunder).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
7.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware.
8
EXECUTION COPY
--------------
7.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.7 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which such party may be entitled.
7.8 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Investor.
7.9 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
9
EXECUTION COPY
--------------
7.10 California Corporate Securities Law. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ACCOM, INC., a Delaware corporation
By /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Its Chief Executive Officer
-------------------------------
INVESTOR
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
10