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EXHIBIT 4.10
FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") dated as of 3/1/99, by and between
International Microcomputer Software, Inc. a California corporation ("IMSI"),
and GATEWAY Acceptance, ("GATEWAY").
WHEREAS, IMSI currently owes GATEWAY an amount equal to $72,000.00 (the
"Fees") pursuant to a Manufacturing Agreement (the "Manufacturing Agreement"),
and
WHEREAS, IMSI and GATEWAY 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
Manufacturing Agreement with respect to the form and timing of payment of the
Fees, the obligations to pay the Fees shall the 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 GATEWAY eight thousand (8,000)
shares of IMSI's Common Stock (the "Common Stock"), no par value (collectively,
the "Shares") based on a trading price of $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 broker-dealer 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 broker-dealer 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 GATEWAY as follows:
a. Registration. IMSI shall use its reasonable best efforts to
cause the shares of IMSI Common Stock 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
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and EGATEWAYchange Commission ("SEC") under the 1933 Act, as soon as reasonably
practicable after the Closing. IMSI expects to file a Registration Statement on
or about 28th February 1999. Nothing herein shall require IMSI to seperately
register the Shares.
b. At the date the Registration Statement becomes effective
under the Securities Act (the "Effective Date") or the time of effectiveness of
any post-effective amendment to the Registration Statement, at the time the
Prospectus is first filed with the Commission pursuant to Rule 424 (b) of the
Regulations (if a Rule 424 (b) filing is required), at the time any supplement
to or amendment of the Prospectus is filed with the Commission and at the time
any document filed under the Manufacturing 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 or the Manufacturing 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.
d. 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 GATEWAY, 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 Manufacturing 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 GATEWAY promptly and prepare and file with the Commission
an appropriate amendment or supplement (in form and substance satisfactory to
GATEWAY) 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 Commission as soon as
possible and (ii) GATEWAY 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 Commission.
e. 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,
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GATEWAY requests that the Shares be registered independently from another IMSI
registration ("Accelerated Registration), then GATEWAY 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.
f. Upon execution of this Agreement, GATEWAY releases and
forever discharges payment of the Fees pursuant to the terms and conditions of
the Manufacturing Agreement. The Hold Back Funds shall remain in tact and
subject to the terms and conditions of the Manufacturing Agreement and any
addendum's thereto.
5. Indemnification.
a. IMSI agrees to indemnify and hold harmless GATEWAY, 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 Manufacturing 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 GATEWAY 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 GATEWAY.
b. Promptly after receipt by any indemnified party under
subsection a. above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the party against whom
indemnification is to be sought in writing of the commencement thereof. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof.
Notwithstanding the foregoing, the indemnified party or parties 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 indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) the
indemnifying party 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 indemnified party shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the indemnifying
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party (in which case the indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the indemnifying
party. Anything in this subsection to the contrary notwithstanding, the
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent: provided, however, that such consent was
not unreasonably withheld.
6. Entire Agreement. This Agreement and the Manufacturing Agreement (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 GATEWAY, to:
Gateway Acceptance Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if to IMSI, to:
International Microcomputer Software, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
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 clay 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. GATEWAY 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 GATEWAY has had
access to all information regarding IMSI and its present business, assets,
liabilities and financial condition, that GATEWAY reasonably considers important
in making the decision to acquire the Shares under this Agreement; and that
GATEWAY 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.
GATEWAY, Inc. INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: _________________________ By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer