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EXHIBIT 4.11
FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") dated as of 26 March 1999, by and
between International Microcomputer Software, Inc. ("IMSI"), and Spatial
Technology Inc., ("SPATIAL TECHNOLOGY").
WHEREAS, IMSI currently owes SPATIAL TECHNOLOGY an amount to date equal to
$45,000.00 (the "Fees") pursuant to a Licensing Agreement between IMSI and
SPATIAL TECHNOLOGY (the "License Agreement"), and
WHEREAS, IMSI and SPATIAL TECHNOLOGY now desire to set forth certain terms
and provisions with respect to the payment by IMSI of the Fees:
NOW, THEREFORE in consideration of the foregoing and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
1. Payment of the Fees. Notwithstanding anything to the contrary in the
License Agreement with respect to the form and timing of payment of the Fees,
the obligation to pay the Fees shall be satisfied in full by compliance by IMSI
with the terms and provisions of this Agreement.
2. Issuance of the Shares. As soon as reasonably practicable after
execution of this Agreement, IMSI will issue to SPATIAL TECHNOLOGY, five
thousand (5,000) shares of IMSI's Common Stock (the "Common Stock"), no par
value (collectively, the "Shares") based on a trading price of nine dollars
($9.00) per share.
3. Sale.
a. Sale. The Shares may be sold by one or more of the following means
of distribution (subject to the provisions of this Agreement): (a) a block
trade in which the brokerdealer so engaged will attempt to sell Shares as
agent, but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a brokerdealer as principal and
resale by such broker-dealer for its own account; (c) an over-the-counter
distribution in accordance with the rules of NASDAQ; (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; and (e)
in privately negotiated transactions.
4. Representations, Warranties and Covenants of IMSI. IMSI represents and
warrants to and covenants with SPATIAL TECHNOLOGY as follows:
a. Registration. IMSI shall use its reasonable best efforts to cause
the Shares that are issuable pursuant to this Fee Agreement to be registered on
a registration statement (or to be issued pursuant to a then-effective
registration statement) on Form S-3 (or successor form) promulgated by the
Securities and Exchange Commission ("SEC").
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under the 1993 Act ("Securities Act"), as soon as reasonably practicable after
the Closing. IMSI currently expects to file a Form S-3 on or around 5/5/99.
Nothing herein shall require IMSI to separately register the Shares.
b. At the date the Registration Statement becomes effective under
the Securities Act or the time of effectiveness of any posteffective amendment
to the Registration Statement (the "Effective Date"), at the time the Prospectus
is first filed with the SEC pursuant to Rule 424(b) of the regulations
promulgated thereunder (if a Rule 424(b) filing is required), at the time any
supplement to or amendment of the Prospectus is filed with the SEC and at the
time any document filed under the Securities Act is filed, the Registration
Statement and the Prospectus and any amendments thereof and supplements thereto
complied or will comply in all material respects with the applicable provisions
of the Securities Act and the regulations promulgated thereunder or the
Securities Act and the respective rules and regulations thereunder and do not or
will not contain an untrue statement of a material fact and do not or will not
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus, in the light
of the circumstances under which they were made, not misleading.
c. The Shares, when issued and delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
non-assessable and will not have been issued in violation of any preemptive
rights and will not be subject to any restrictions, except as may be imposed by
applicable law, except that the share certificate(s) will bear restrictive
legend that the shares are not registered until such time as the shares are
registered.
d. IMSI is a corporation duly organized, validly existing and in
good standing under the laws of the State of California and has all necessary
power and authority to conduct its business in the manner in which its business
is currently being conducted and to own and use its assets in the manner in
which its assets are currently owned and used.
e. IMSI has the full legal right, power and authority to enter into
this Agreement. All proceedings required to be taken by IMSI to authorize the
execution, delivery and performance of this Agreement have been properly taken.
This Agreement constitutes the valid and binding obligation of IMSI,
enforceable against it in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies. The execution, delivery or performance of this
Agreement by IMSI will not, with or without the giving of notice or the passage
of time, or both, conflict with, result in a material breach of, or a default,
right to accelerate or loss of rights under, any provision of IMSI's corporate
documents or any agreement to which IMSI is a party.
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e. If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event shall occur as a
result of which the Prospectus as then amended or supplemented, in the judgment
of IMSI or SPATIAL TECHNOLOGY, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to amend
or supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Regulations, or to file under the Securities Act so as to
comply therewith any document incorporated by reference in the Registration
Statement or the prospectus or in any amendment thereof or supplement thereto,
(i) IMSI will notify SPATIAL TECHNOLOGY promptly and prepare and file with the
SEC an appropriate amendment or supplement (in form and substance satisfactory
to SPATIAL TECHNOLOGY) which will correct such statement or omission or which
will effect such compliance and will use its best efforts to have any amendment
to the Registration Statement docked declared effective by the SEC as soon as
possible and (ii) SPATIAL TECHNOLOGY shall suspend trading in the Shares until
(A) such amendment or supplement to the Prospectus has been filed or (B) any
amendment to the Registration Statement has been declared effective by the SEC.
f. IMSI will pay all fees and expenses with respect to the
preparation and filing of the Registration Statement and the registration of the
Shares. If however, SPATIAL TECHNOLOGY requests that the Shares be registered
independently from another IMSI registration ("Accelerated Registration), then
SPATIAL TECHNOLOGY shall pay all fees and expenses with respect to the
preparation and filing of the Registration Statement and the registration of the
Shares that are a result of such Accelerated Registration.
g. Upon execution of this Agreement, SPATIAL TECHNOLOGY releases
and forever discharges payment of the Fees pursuant to the terms and conditions
of the Retainer.
h. IMSI's filings with the SEC as of the date of such filing and
in the light of the circumstances under which such filings were made (i)
complied in all material respects with the applicable requirements of the
Securities Act or the Securities Exchange Act of 1934 (as the case may be); and
(ii) when read together as a whole and as updated by subsequent reports or
filings made prior to the date of this Agreement, do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
i. The [consolidated] financial statements contained in the SEC
Documents: (i) complied as to form in all material respects with the published
rules and regulations of the SEC applicable thereto; (ii) were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered, except as may be indicated in the notes to
such financial statements and (in the
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case of unaudited statements) as permitted by Form 10-Q of the SEC, and except
that unaudited financial statements may not contain footnotes and are subject
to normal and recurring year-end audit adjustments (which will not,
individually or in the aggregate, be IMSI [and its subsidiaries] as of the
respective dates thereof and the consolidated results of operations of IMSI
[and its subsidiaries] for the periods covered thereby.
5. Indemnification.
a. IMSI agrees to indemnify and hold harmless SPATIAL TECHNOLOGY, its
partners, officers, directors, employees and agents (the "Indemnities") against
any and all losses, liabilities, claims, damages and expenses incurred
(including but not limited to attorneys' fees), to which it may become subject
under the Securities Act, the Securities Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise solely out of any untrue statement of a material fact contained
in the Registration Statement, as originally filed or any amendment thereof, or
the Prospectus, or in any supplement thereto or amendment thereof, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that IMSI shall not be liable to
SPATIAL TECHNOLOGY for any such losses, liabilities, claims, damages or
expenses which arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission contained or made in the
Registration Statement or the Prospectus or any amendment thereof or Supplement
thereto in reliance upon and in conformity with information furnished to IMSI
by SPATIAL TECHNOLOGY.
b. Promptly after receipt by any Indemnities under subsection a. above
of notice of the commencement of any action, such Indemnities shall, if a claim
in respect thereof is to be made against IMSI under such subsection, notify IMSI
in writing of the commencement thereof. In case any such action is brought
against any Indemnities, and it notifies IMSI of the commencement thereof, IMSI
will be entitled to participate therein and, to the extent it may elect by
written notice delivered to the Indemnities promptly after receiving the
aforesaid notice from such Indemnities, to assume the defense thereof.
Notwithstanding the foregoing, the Indemnities shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnities unless (i) the employment of such
counsel shall have been authorized in writing by IMSI in connection with the
defense of such action, (ii) IMSI shall not have employed counsel to have charge
of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such Indemnities shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to IMSI (in which case IMSI shall not have
the right to direct the defense of such action on behalf of the Indemnities), in
any of which events such fees and expenses shall be borne by IMSI. Anything in
this paragraph to the contrary notwithstanding, the indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent:
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provided, however, that such consent was not unreasonably withheld. IMSI shall
not, without the written consent of the Indemnitee, effect the settlement or
consent to the entry of any judgment in respect of which indemnification may be
sought hereunder unless such settlement or judgment includes an unconditional
release of the Indemnitee from all liability arising out of such action and does
include a statement as to admission of fault.
6. Entire Agreement. This Agreement and the retainer (to the extent not
inconsistent herewith) constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior written
agreements and negotiations and oral understandings, if any, with respect
thereto. This Agreement may not be amended or supplemented except by an
instrument in writing signed by each of the parties hereto.
7. Notices. All notices, requests and other communications hereunder
shall be in writing and delivered in person or by registered or certified mail
(postage prepaid, return receipt requested), overnight courier or facsimile,
addressed as follows:
if to SPATIAL TECHNOLOGY, to:
Spatial Technology Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to IMSI, to:
International Microcomputer Software, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The address of a party, for the purposes of this Section 8, may be changed by
giving written notice to the other party of such change in the manner provided
herein for giving notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days mailing, if sent
by registered or certified mail; the next business day after timely delivery to
the courier, if sent by overnight courier; and when receipt is acknowledged, if
sent by facsimile transmission (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
8. Governing Law. This Agreement shall be construed in accordance with
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and governed by the laws of California, without regard to the conflicts of law
principles thereof.
9. Investment Representations. SPATIAL TECHNOLOGY represents and
warrants that it is an "accredited investor" as defined by Regulation D: that it
is acquiring the Shares for its own account, for the purpose of investment and
not with a view to, or resale in connection with, any distribution thereof;
that SPATIAL TECHNOLOGY has had access to all information regarding IMSI and its
present business, assets, liabilities and financial condition, that SPATIAL
TECHNOLOGY reasonably considers important in making the decision to acquire the
Shares under this Agreement; and this Agreement; and that SPATIAL TECHNOLOGY
understands that the Shares are restricted securities and may not be sold
except pursuant to the Form S-3, some other registration statement, or pursuant
to an applicable exemption from federal and state registration requirements.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first set forth above.
Spatial Technology Inc. INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: By:
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Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Administration Title: Chief Operating Officer
Corporate Controller