SERIES A PREFERRED STOCK REPURCHASE AGREEMENT
EXHIBIT
10.01
This
Settlement Agreement (this “Agreement”)
is
made and entered into as of May 31, 2007 (the “Effective
Date”)
by and
between Insignia Solutions plc, a public limited company incorporated under
the
laws of England and Wales (the “Company”),
Insignia Solutions Inc., a company incorporated under the laws of Delaware
(the
“Issuer”)
and
those persons and entities listed on Exhibit A hereto (the “Investors”).
The
Company, the Issuer and the Investors are collectively referred to as
“Parties”.
WHEREAS,
each Investor purchased shares of the Issuer’s Series A Preferred Stock, stated
value of $100 per share (the “Series
A Stock”)
pursuant
to that certain Securities Subscription Agreement between the Company, the
Issuer, the Investors and certain other investors dated on or about June 30,
2005, (the “Subscription
Agreement”),
and a
certain Warrant to purchase American depositary shares of the Company issued
by
the Company to each Investor on or about June 30, 2005 (each such warrant,
a
“Warrant”);
WHEREAS,
the Issuer wishes to repurchase certain shares of Series A Stock held by the
Investors, and the Investors concurrently desire to have the Issuer repurchase
such shares of Series A Stock;
NOW,
THEREFORE, in consideration of the above premises and for good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged,
the
Parties hereto agree as follows:
1. Repurchase
of Series A Stock.
Each
Investor hereby severally agrees to sell to the Company, and the Issuer hereby
agrees to repurchase, the number of shares of Series A Stock set forth besides
each respective Investor’s name in the column entitled “Shares of Series A
Preferred Stock Repurchased” on Exhibit
A
hereto
(the “Repurchased
Shares”)
at a
price of US$100.00 per share (the “Repurchase
Price”,
payable by wire transfer of funds. Such repurchase shall be effective, with
respect to each Investor, immediately upon receipt of such funds in their
designated account set forth on the signature page hereto (the “Effective
Time”), and from and after such time, the Repurchased Shares shall no longer be
outstanding. Each Investor agrees that payment of the Repurchase Price shall
be
deemed to satisfy in full any and all rights that the Investor may have to
accrued dividends with respect to the Repurchased Shares and to any other rights
thereunder. Each Investor agrees that promptly after the Effective Time, it
will
return the certificates evidencing the Repurchased Shares to the Issuer by
federal express or other overnight courier to:
Insignia
Solutions, Inc.
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Attention:
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2. Cancellation
of Warrants.
The
Company and each undersigned Investor acknowledge and agree that, from and
after
the Effective Time, each Warrant issued to such Investor shall be null and
void
and of no further force and effect whatsoever. Each Investor agrees that
promptly after the Effective Time, it will return the Warrants to the Issuer
by
federal express or other overnight courier to the address set forth in Section
1.
3. No
Rights to Series A Stock or Warrants.
Each
Investor hereby acknowledges and agrees that from and after the Effective Time,
such Investor will have no further rights with respect to his/her/its respective
Repurchased Shares and Warrant
4. General
Release of Claims.
For and
in consideration of the repurchase by the Issuer
of the
Repurchased Shares, each
Investor hereby waives, releases, and forever discharges the Company and the
Issuer and each of their respective past and present employees, officers,
shareholders, directors, owners, agents, attorneys, predecessors and successors
(in each case in their capacity as such), and the Company and the Issuer hereby
waive, release and forever discharge each of the Investors and each of their
respective past and present employees, officers, shareholders, directors,
owners, agents, attorneys, predecessors and successors (in each case in their
capacity as such, from any and all claims, charges, complaints, rights, demands,
actions, or causes of action, whether based in contract or tort, which such
Investor, the Company or the Issuer has, may have or claims to have had against
any of them, whether known or unknown, including, without limitation, any rights
to any damages, accrued dividends or other amounts pursuant to the Subscription
Agreement, the Rights Agreement or the Warrants, from the beginning of time
to
the present. Each Investor, the Company and the Issuer further agree not to
initiate any action, including any legal, administrative, or other proceeding
to
assert any such claims; provided,
however,
that
nothing in this Section shall waive or release any rights any Party hereto
may
have to seek enforcement of, or make a claim for breach of, the covenants,
representations, promises and provisions of this Agreement.
5. California
Civil Code Section 1542 Waiver.
Each
Investor, the Issuer and the Company hereby acknowledge that it is familiar
with
the provisions of Section 1542 of the Civil Code of the State of California,
which provides that:
A
GENERAL
RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Each
Investor, the Company and the Issuer hereby expressly, knowingly, and
intentionally waives and relinquishes any and all rights that it has against
the
other party under Section 1542, and hereby assumes full responsibility for
any
injuries, damages or losses that it may incur as a result of the execution
of
this Agreement, the Subscription Agreement and the transactions provided for
therein.
7. No
Assignment of Released Claims. Each
Investor represents and warrants that it has not assigned or conveyed any
claims, which it has or purports to have against the Releases to any other
person.
8. Confidentiality.
The
Investors each agree not to reveal the terms of the Agreement, nor the
consideration for settlement set forth in the Agreement, to any person, other
than counsel, except for tax purposes or to fulfill corporate financial
reporting obligations, without the prior written consent of the Issuer or the
Company. Any breach of this confidentiality provision shall be deemed a material
breach of this Agreement.
9. Binding
Agreement.
The
Parties agree that this Agreement shall be binding on the Parties and their
predecessors, successors, parent companies, subsidiaries, affiliates, employees,
officers, shareholders, directors, benefit plans (and fiduciaries thereof),
and
agents.
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10. Final
Agreement and Modification.
This
Agreement and all exhibits hereto contain all of the terms, provisions, and
understandings between and the Parties in connection with the subject matter
hereof, and are meant to be a full and final agreement between them as to said
subject matter. No modification of this Agreement shall be effective except
if
in writing and signed by all Parties.
11. Governing
Law.
This
Agreement shall be governed by and interpreted under the laws of the State
of
California, without regard to conflict of laws.
12. Litigation
Expense.
If any
Party to this Agreement shall bring an action against the other Party hereto
by
reason of the breach of any covenant, warranty, representation, obligation
or
condition imposed by this Agreement, or otherwise relating to or arising out
of
this Agreement, whether for declaratory or other relief, the prevailing party
in
said action shall be entitled to said party’s costs of suit and reasonable
attorneys’ fees.
13. Execution
in Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all such counterparts collectively shall constitute but one and
the same Agreement. This Agreement may be executed by facsimile, and a facsimile
signature shall have the same force and effect as an original signature on
this
document.
14. Severability.
In the
event that any provision of this Agreement, or the application of any such
provision, is held by a tribunal of competent jurisdiction to be contrary to
law, the remaining provisions of this Agreement will remain in full force and
effect, and this Agreement will be interpreted as if said invalid provision
was
omitted.
15. Authority
of Signatory.
The
Parties each represent and warrant that each Party’s signatory has full
authority to enter into this Agreement and to bind his respective
entity
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
COMPANY:
By:
/s/
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Name:
▇.
▇▇▇▇
Title:
CFO
ISSUER:
INSIGNIA
SOLUTIONS, INC.
By:
/s/
▇▇▇▇▇▇
▇▇▇▇
Name:
▇.
▇▇▇▇
Title:
CFO
IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
INVESTOR:
▇.
▇▇▇▇.
By:/s/
▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇
▇▇▇▇
Title:_________________________________
Designated
Account [insert wire instructions below]
IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
INVESTOR:
▇.
▇▇▇▇
By:
/s/
▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇▇▇▇
Title:
_________________________________
Designated
Account [insert wire instructions below]
IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
INVESTOR:
▇.
▇▇▇▇▇▇.
By:/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
Private
Investor
Designated
Account [insert wire instructions below]
IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
INVESTOR:
Unity
Capital.
By:
/s/
▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇
▇▇▇▇▇▇
Title:
Partner
Designated
Account [insert wire instructions below]
IN
WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
as
of the Effective Date.
INVESTOR:
SRG
Capital
By:
/s/
▇▇▇▇
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Name:▇▇▇▇
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Title:
Portfolio
Manager
Designated
Account [insert wire instructions below]
EXHIBIT
A
Investors
|
Investor
|
Shares
of
Series
A
Preferred
Stock
Outstanding
|
Shares
of Series A
Preferred
Stock
Repurchased
|
Price
|
Proceeds
|
Warrant
Shares
to
be
Cancelled
|
|||||||||||
|
T
▇▇▇▇
|
$
|
625
|
$
|
625
|
$
|
100
|
$
|
62,500
|
156250
|
|||||||
|
M
▇▇▇▇
|
$
|
625
|
$
|
625
|
$
|
100
|
$
|
62,500
|
156250
|
|||||||
|
Unity
Capital
|
$
|
750
|
$
|
750
|
$
|
100
|
$
|
75,000
|
||||||||
|
R
▇▇▇▇▇▇
|
$
|
1,500
|
$
|
1,500
|
$
|
100
|
$
|
150,000
|
375000
|
|||||||
|
SRG
Capital
|
$
|
600
|
$
|
600
|
$
|
100
|
$
|
60,000
|
163,250
|
|||||||
|
$
|
410,000
|
850,750
|
||||||||||||||