Exhibit 10.3
STOCK AGREEMENT
dated as of
July 30, 2002
between
SoftNet Systems, Inc.,
Independence Holding Company
and
Madison Investors Corporation
relating to the purchase and sale
of
5,000,000 Shares of Common Stock
of
SoftNet Systems, Inc.
by
Madison Investors Corporation
from
Cyber Net Technologies Limited
STOCK AGREEMENT
This AGREEMENT dated as of July 30, 2002 is between SoftNet Systems, Inc.,
a Delaware corporation (the "Corporation"), Independence Holding Company, a
Delaware corporation ("IHC"), and Madison Investors Corporation, a Delaware
corporation ("Buyer"). This agreement shall become effective upon the closing of
the transactions contemplated by the third WHEREAS clause set forth below.
WHEREAS, the Corporation, IHC and SSH Corp., a Delaware corporation
("SSH Corp."), are entering into an agreement pursuant to which the
Corporation will purchase all outstanding securities of First Standard
Holdings Corp., a Delaware corporation and an Affiliate of Buyer, from SSH
Corp., on the terms set forth in Exhibit A (the "FSSIC Agreement");
WHEREAS, IHC is an Affiliate of Buyer that benefits from the rights
provided to Buyer hereunder;
WHEREAS, contemporaneously with the execution of the FSSIC Agreement,
Buyer is purchasing 5,000,000 shares of the Corporation's Common Stock from
Cyber Net Technologies Limited ("Cyber Net") pursuant to an agreement dated as
of July 30, 2002 between Buyer and Cyber Net;
WHEREAS, pursuant to a Stock Purchase Agreement (the "Old Stock Purchase
Agreement") dated as of October 12, 1999 between the Corporation and Cyber Net,
as successor to Pacific Century Cyberworks Limited, the consent of the
Corporation is required to effect such purchase of shares of Common Stock by
Buyer; and
WHEREAS, the parties intend to restate the rights and obligations under
the Old Stock Purchase Agreement that will apply to the Corporation and Buyer in
connection with Buyer's ownership of Shares and to terminate and supersede the
Old Stock Purchase Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and undertakings contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
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"Affiliate" means, with respect to any specified Person, any other Person
which, directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "affiliated," "controlling," and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the Board of Directors of the Corporation.
"Closing Date" means the date of the closing of the transactions
contemplated by the FSSIC Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the shares of common stock, par value $0.01 per
share, of the Corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" means 5,000,000 shares of Common Stock purchased by Buyer from
Cyber Net together with any other shares of capital stock of the Corporation
purchased by Buyer or any Affiliate of Buyer.
ARTICLE 2
LEGENDS ON SHARES
SECTION 2.01 Certificates for Shares. (a) Each certificate for
Shares shall bear the following legend for so long as such securities constitute
restricted securities (as such term is defined in the regulations under the
Securities Act):
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold, transferred or
otherwise disposed of except in compliance with such laws."
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(a) The Corporation agrees that, at the request of Buyer or any
Permitted Transferee, it will remove the legend contemplated by this Section
from the certificates representing any Shares in the event that outside counsel
for Buyer or such Permitted Transferee determines that the transfer of such
Shares is no longer restricted by the Securities Act and outside counsel for the
Corporation reasonably concurs in such determination.
(b) The Shares shall also bear a legend stating that their transfer
or sale is restricted by the terms of this Agreement (which shall be removed
when such restrictions no longer apply).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Corporation as of the date hereof
that:
Section 3.01 Purchase for Investment. Buyer is purchasing the Shares
for investment for its own account and not with a view to, or for sale in
connection with, any distribution thereof. Buyer (either alone or together with
its advisors) has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the Shares and is capable of bearing the economic risks of such investment.
Buyer is an "accredited investor," as such term is defined in Rule 501 under the
Securities Act. Buyer has been afforded access to all information deemed by it
to by necessary, and has been given an opportunity to ask all necessary
questions of the Corporation's management, in connection with its decision to
acquire the Shares.
ARTICLE 4
COVENANTS OF THE CORPORATION
The Corporation agrees that:
Section 4.01 Buyer Directors. Subject to Section 5.05, for so long
as Buyer (together with its Affiliates) owns a number of Shares equal to or
greater than the number of Shares purchased from Cyber Net, Buyer shall be
entitled to designate for election to the Board of Directors the following
number of the Corporation's directors (the "Buyer Directors"):
Total Number of Number of Buyer
Directors Directors
--------------- ---------------
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5 2
6 2
7 2
8 3
9 3
10 4
Subject to Section 5.05, if the Board of Directors consists of greater
than 10 directors, then Buyer shall be entitled to a number of directors that is
equal to a number of directors pro rata to the ownership of the outstanding
shares of Common Stock on a fully-converted basis of Buyer and its Affiliates
(rounded down to the nearest whole number of directors). Notwithstanding
anything to the contrary in the other provisions of this Section 4.01, once the
Corporation has issued an aggregate of 1,250,000 or more shares of Common Stock
after the date of this Agreement, the number of Buyer Directors shall at no time
thereafter exceed by more than one the percentage of the total number of
directors equal to the ownership interest percentage in the outstanding Common
Stock on a fully-converted basis of Buyer and its Affiliates.
In the event Buyer or its Affiliates sell or otherwise dispose of such
Shares, then Buyer shall be entitled to a number of directors that is equal to
the lesser of (i) two directors and (ii) a number of directors pro rata to its
ownership of the outstanding shares of Common Stock (rounded down to the nearest
whole number of directors). In the event Buyer elects to have the Board of
Directors appoint a Buyer Director, it shall so notify the Corporation in
writing and the Corporation shall (a) increase the size of the Board of
Directors by one and fill the vacancy created thereby by electing the Buyer
Director and (b) in connection with the meeting of shareholders of the
Corporation next following such election, nominate such Buyer Director for
election as director by the shareholders and use its best efforts to cause the
Buyer Director to be so elected. If a vacancy shall exist in the office of a
Buyer Director, Buyer shall be entitled to designate a successor and the Board
of Directors shall elect such successor and, in connection with the meeting of
shareholders of the Corporation next following such election, nominate such
successor for election as director by the shareholders and recommend to
shareholders that the successor be elected. The Buyer Director shall be subject
to the prior approval of the Board of Directors, such approval not to be
unreasonably withheld.
Section 4.02 Other Transfers of Restricted Securities. The
Corporation shall take all actions reasonably necessary to enable holders of the
restricted securities to sell such securities without registration under the
Securities Act pursuant to Rule 144 under the Securities Act or any successor
rule or regulation,
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subject in each case to the provisions of this Agreement and, specifically, the
filing on a timely basis of all reports required to be filed under the Exchange
Act.
Section 4.03 Preemptive Rights. In connection with any issuance by
the Corporation of shares of Common Stock, the Corporation shall offer Buyer an
opportunity to acquire (on the terms and subject to the conditions generally
applicable to such issuance and simultaneously with such issuance) a sufficient
number of shares to maintain Buyer's then-existing percentage of ownership of
the Corporation's issued and outstanding shares of Common Stock; provided that
in connection with any public offering for cash, Buyer shall be entitled to
acquire shares at a price equal to the public offering price less the
underwriter's commission or discount and provided further that in connection
with any issuance by the Corporation of shares of Common Stock (a) in exchange
for non-cash consideration or (b) upon exercise of stock options with an
exercise price of less than $3.00 per share, Buyer shall be required to pay a
per share purchase price equal to the greater of (j) $3.00 and (k) the Fair
Market Value of a share of Common Stock. For purposes of this Section "Fair
Market Value" as of any date shall mean (x) the average of the daily closing
prices of a share of Common Stock for the twenty trading days before such date
or (y) if no shares of Common Stock are then listed or admitted to trading on
any national exchange or traded on any national market system, the fair market
value as determined by an investment bank selected by the Corporation and
approved by Buyer.
ARTICLE 5
COVENANTS OF BUYER AND IHC
Buyer and IHC agree that:
Section 5.01 Confidentiality. Buyer and IHC will, and will cause
their respective Affiliates, employees, agents and representatives to, hold in
confidence all documents and other material and information (verbal or
otherwise) containing information which is disclosed by the Corporation to Buyer
or IHC or their respective employees, agents or representatives in connection
with the transactions contemplated by this Agreement ("Confidential
Information"), and not disclose or publish the same; provided, however, that the
foregoing restriction shall not apply to any portion of the foregoing which (a)
becomes generally available to the public in any manner or form through no fault
of the party receiving the Confidential Information, or its respective
employees, agents or representatives, (b) is released for disclosure by Buyer or
IHC with the Corporation's written consent, (c) is received by Buyer or IHC from
a third party that Buyer or IHC, as applicable, does not know to have an
obligation of
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confidentiality, or (d) when such disclosure is required by a court or a
governmental agency or is otherwise required by law or is necessary in order to
establish rights under this Agreement. In the event of a proposed disclosure
under item (d), the Person making such disclosure shall deliver as much advance
notice thereof as practical to the Corporation. In the event of the termination
of this Agreement, Buyer and IHC will return or destroy all documents and other
tangible media containing Confidential Information within thirty (30) days after
the date of such termination.
Section 5.02 Sale or Transfer of Shares. Except pursuant to a Change
of Control (as defined below), Buyer and IHC will not, and will cause their
Affiliates not to, sell, pledge, encumber or otherwise transfer, or agree to
sell, pledge, encumber or otherwise transfer, directly or indirectly, any shares
of Common Stock for a period of six months from and after the Closing Date;
provided, that prior to the expiration of such period with the prior written
consent of the Corporation, and thereafter in its sole discretion, Buyer or IHC
may sell, pledge, encumber or otherwise transfer Common Stock (a) (i) in any
transaction (other than a transaction described in (iii) below) in compliance
with Rule 144 under the Securities Act or any successor rule or regulation, (ii)
in a public offering, registered under the Securities Act or (iii) in a private
transaction exempt from the registration requirements of the Securities Act (but
only if Buyer or IHC, as applicable, reasonably believes after due inquiry that
the acquiror, following such transaction, will not be the beneficial owner of
more than 5% of the outstanding shares of Common Stock), and (b) to Permitted
Transferees. A "Permitted Transferee" means a Person that (A) has agreed in
writing to be bound by the terms (including Exhibit B) of this Agreement and (B)
is a Person that is an Affiliate of Buyer.
Section 5.03 Purchase of Additional Shares of Common Stock.
(a) Buyer and IHC agree not to, and agree to cause their Affiliates
not to, purchase any additional shares of Common Stock without the prior written
consent of the Corporation (which may be withheld in the sole discretion of the
Corporation if Buyer owns 40% or more of the outstanding shares of Common
Stock); provided, however, that no consent shall be required after the
consummation of the Offer if following such acquisition of shares of Common
Stock Buyer is the beneficial owner of no more than 40% of the outstanding
shares of Common Stock. Buyer and IHC each agree not to, and to cause their
Affiliates not to, make a formal proposal to acquire control of the Corporation
unless it is invited to do so by the Board of Directors. Buyer acknowledges and
agrees that the directors elected pursuant to Section 4.01 shall not be eligible
to deliberate or vote upon any proposal to grant such consent.
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(b) IHC shall, or shall cause one of its Affiliates at its expense
to, (A) commence (within the meaning of Rule 14d-2 under the Exchange Act) no
later than the later of (i) February 18, 2003 or (ii) the date that is 30 days
after the Closing Date, a bona fide tender offer, on commercially reasonable
terms for similar offers and including a provision for pro ration in accordance
with ownership of the Common Stock in the event that more shares of Common Stock
are tendered than solicited, for at least the Tender Shares at a cash price of
$3.00 per share net to the seller in cash (the "Offer") that will remain open
for at least 30 business days, (B) after affording the Corporation a reasonable
opportunity to review and comment thereon, file a Tender Offer Statement on
Schedule TO and all other necessary documents with the Commission, make all
deliveries, mailings and telephonic notices required by Rule 14d-3 under the
Exchange Act, and publish, send or give the disclosure required by Rule 14d-6
under the Exchange Act by complying with the dissemination requirements of Rule
14d-4 under the Exchange Act in each case in connection with the Offer
(collectively, together with any amendments or supplements thereto, the "Offer
Documents") and (C) use reasonable best efforts to consummate the Offer, subject
to the terms and conditions thereof. Each of IHC, on the one hand, and the
Corporation, on the other hand, agrees promptly to correct any information
provided by it or any of its Affiliates for use in the Offer Documents if and to
the extent that it shall have become false or misleading in any material
respect, and IHC further agrees to take all steps necessary to cause the Offer
Documents as so corrected to be filed with the Commission and to be disseminated
promptly to stockholders of the Corporation, in each case as and to the extent
required by applicable federal securities laws. The obligation of IHC or an
Affiliate of IHC, as applicable, to accept for payment or pay for any shares
tendered pursuant to the Offer will not be subject to any conditions except to
the extent required by applicable federal securities laws. For purposes of this
Section, "Tender Shares" shall mean the lesser of (i) 3,000,000 shares of Common
Stock and (ii) the maximum number of shares of Common Stock of the Corporation
which, when combined with (A) the number of shares of Common Stock of the
Corporation purchased by Buyer pursuant to that certain Stock Purchase Agreement
dated as of July 30, 2002 between Cyber Net and Buyer (and/or one of its
Affiliates) and (B) all other relevant events during the applicable testing
period, does not result in the percentage of stock of the Corporation owned by
one or more 5 percent shareholders having increased by more than 44.9 percentage
points over the lowest percentage of stock owned by such shareholders at any
time during the testing period, all as within the meaning of Section 382 of the
Internal Revenue Code of 1986, as amended, and the applicable regulations
promulgated thereunder.
(c) Notwithstanding anything to the contrary in this Section 5.03 or
elsewhere in this Agreement, Buyer and IHC agree not to take, and to
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cause their Affiliates not to take, any action, including the acquisition of
additional shares of Common Stock, that could result in the imposition of
limitations on the use, for federal, state or city income tax purposes, of the
Corporation's carryforwards of net operating losses, federal income tax credits
or similar tax benefits.
Section 5.04 Change of Control. In connection with any transaction
involving the merger of the Corporation with or into any other Person or any
acquisition of 50% or more of the outstanding Common Stock by any other Person
or any other transaction that effects a change in control of the Corporation, in
each case at a per share price higher than $10.00 (a "Change of Control"), Buyer
and IHC will cause any shares of Common Stock owned by them or their respective
Affiliates to be voted in the same proportion as shareholders (other than Buyer,
IHC or any Affiliate of Buyer, IHC or the Corporation) who individually hold
less than 5% of the outstanding Common Stock.
Section 5.05 Buyer Voting. Until the fifth anniversary of the
Closing Date, Buyer and IHC each agree that it will not solicit, encourage or
recommend to other shareholders of the Corporation that they vote their shares
of Common Stock in favor of any nominee or nominees for director other than
those duly proposed and nominated in accordance with Section 4.01 hereof.
ARTICLE 6
COVENANTS OF BUYER, IHC AND THE CORPORATION
Section 6.01 Reasonable Best Efforts; Further Assurances. Subject to
the terms and conditions of this Agreement, Buyer, IHC and the Corporation will
use their reasonable best efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary or desirable under applicable
laws and regulations to carry out the provisions of this Agreement. The
Corporation, IHC and Buyer agree to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to carry out the provisions of this
Agreement.
Section 6.02 Certain Filings. The Corporation, IHC and Buyer shall
cooperate with one another (i) in determining whether any action by or in
respect of, or filing with, any governmental body, agency, official or authority
is required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection carrying out the
provisions of this Agreement and (ii) in taking such actions or making any such
filings, furnishing information required in connection therewith and seeking
timely to obtain any such actions, consents, approvals or waivers.
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Section 6.03 Public Announcements. Prior to the Closing Date, the
parties agree to consult with each other before issuing any press release or
making any public statement with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any securities exchange or inter-dealer quotation system,
will not issue any such press release or make any such public statement prior to
such consultation. Following the Closing Date, the parties agree to consult with
each other before issuing any press release or making any public filing that
describes any terms of this Agreement.
Section 6.04 Registration Rights Agreement. The terms set forth in
Exhibit B hereto are hereby incorporated by reference.
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing and shall be deemed duly given,
effective (i) three Business Days later, if sent by registered or certified
mail, return receipt requested, postage prepaid, (ii) when sent if sent by
telecopier or fax, provided that the telecopy or fax is promptly confirmed by
telephone confirmation thereof, (iii) when served, if delivered personally to
the intended recipient, and (iv) one Business Day later, if sent by overnight
delivery via a national courier service, and in each case, addressed,
if to Buyer or IHC, to:
Independence Holding Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Corporation, to:
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SoftNet Systems Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change the address to which notices or other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
Section 7.02 Amendments and Waivers. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative.
Section 7.03 Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 7.04 Assignment. The rights and obligations of the parties
hereunder cannot be assigned or delegated except (i) that Buyer may assign any
or all of its rights and obligations under this Agreement under Sections 2.01,
4.02, 6.04 and Exhibit B of this Agreement to any one or more Permitted
Transferees.
Section 7.05 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard to
the conflicts of law rules of such state.
Section 7.06 Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
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have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder, except for rights provided to
Permitted Transferees under Section 7.04.
Section 7.07 Entire Agreement. This Agreement (including the
Exhibits hereto) constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersede all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
Section 7.08 Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 7.09 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
Section 7.10 Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competition jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
Section 7.11 No Recourse. Notwithstanding any of the terms or
provisions of this Agreement, (i) the Corporation agrees that neither it nor any
person acting on its behalf may assert any claims or cause of action against any
officer, director, partner, member or stockholder of Buyer or any of its
Affiliates (other than IHC or when a provision specifically states that it is
binding on such Affiliates) in connection with or arising out of this Agreement
or the transactions
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contemplated hereby and (ii) each of Buyer and IHC agree that neither it nor any
person acting on its behalf may assert any claims or cause of action against any
officer, director, partner, member or stockholder of the Corporation or any of
its Affiliates in connection with or arising out of this Agreement or the
transactions contemplated hereby.
Section 7.12 Corporation Approval. The Corporation represents and
warrants to Buyer that its Board of Directors has approved, and it consents to,
Buyer's purchase of the Shares from Cyber Net.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SOFTNET SYSTEMS, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
MADISON INVESTORS CORPORATION
By:
--------------------------------
Name:
Title:
INDEPENDENCE HOLDING COMPANY
By:
--------------------------------
Name:
Title:
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