EXHIBIT 10.55
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WARRANT AGREEMENT
DATED AS OF FEBRUARY 12, 2001
BY AND BETWEEN
INSIGNIA SOLUTIONS PLC
AND
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
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▇▇▇▇▇▇, ▇▇▇▇▇ & BOCKIUS LLP
NEW YORK, NEW YORK
TABLE OF CONTENTS
PAGE
1. ISSUANCE OF WARRANTS....................................................................................1
(a) Issuance of Warrants...........................................................................1
(b) Closing Date...................................................................................1
2. JEFFERIES' REPRESENTATIONS AND WARRANTIES...............................................................1
(a) Investment Purpose.............................................................................1
(b) Reliance on Exemptions.........................................................................1
(c) Legends........................................................................................2
(d) Authorization, Enforcement.....................................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................2
(a) Authorization; Enforcement.....................................................................3
(b) Capitalization.................................................................................3
(c) Issuance of Shares.............................................................................3
(d) No Conflicts...................................................................................4
(e) No Integrated Offering.........................................................................4
4. COVENANTS...............................................................................................5
(a) Commercially Reasonable Efforts................................................................5
(b) Blue Sky Laws..................................................................................5
(c) Reporting Status...............................................................................5
(d) Expenses.......................................................................................5
(e) Listing........................................................................................5
(f) Corporate Existence............................................................................5
(h) Registration Rights............................................................................6
5. TRANSFER AGENT INSTRUCTIONS.............................................................................6
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE.........................................................6
(a) Delivery of Agreements.........................................................................7
(b) Representations and Warranties of Jefferies....................................................7
(c) No Litigation..................................................................................7
(d) Proceeds.......................................................................................7
7. CONDITIONS TO JEFFERIES' PROCEEDING WITH THE CLOSING....................................................7
(a) Delivery of Agreements.........................................................................7
(b) Delivery of Warrants...........................................................................7
(c) Company Representations and Warranties; Certificates...........................................7
(d) No Litigation..................................................................................7
(e) Warrant Shares Listing.........................................................................8
(f) Opinion of Counsel.............................................................................8
(g) Other Documents and Opinions...................................................................8
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TABLE OF CONTENTS
(CONTINUED)
PAGE
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS...................................................8
9. INDEMNIFICATION.........................................................................................8
10. GOVERNING LAW; MISCELLANEOUS............................................................................8
(a) Governing Law..................................................................................8
(b) Counterparts; Signatures by Facsimile..........................................................8
(c) Headings.......................................................................................9
(d) Severability...................................................................................9
(e) Specific Performance...........................................................................9
(f) Entire Agreement; Amendments...................................................................9
(g) Notices........................................................................................9
(h) Successors and Assigns........................................................................10
(j) Publicity.....................................................................................11
(k) Further Assurances............................................................................11
(l) Limited Recourse..............................................................................11
(m) Waiver........................................................................................11
(n) No Strict Construction........................................................................11
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WARRANT AGREEMENT
WARRANT AGREEMENT (this "AGREEMENT"), dated as of February 12, 2001, by
and between Insignia Solutions plc, a company incorporated under the laws of
England and Wales whose registered office is at Insignia House, The Mercury
Center, Wycombe Lane, Wooburn Green, High Wycombe, Bucks, HP10 OHH but operating
from premises, located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"COMPANY"), and Jefferies & Company, Inc., a Delaware corporation ("JEFFERIES").
WHEREAS, Jefferies is acquiring warrants (the "WARRANTS") to subscribe
for an additional 25,000 American depositary shares (the "ADSs"), each ADS
representing one ordinary share of the Company, nominal value 20 ▇▇▇▇▇ per share
(the "ORDINARY SHARES"), in the aggregate (such additional ADSs in the aggregate
issuable from time to time upon exercise of the Warrants, collectively the
"WARRANT SHARES") from the Company in the form attached hereto as EXHIBIT A, as
partial compensation for acting as placement agent in connection with the issue
of those ADSs pursuant to a certain Subscription Agreement, dated February 12,
2001 (the "SUBSCRIPTION AGREEMENT"), between the Company and the signatories
thereto.
NOW, THEREFORE, the Company and Jefferies severally, and not jointly,
hereby agree as follows:
1. ISSUANCE OF WARRANTS.
(a) ISSUANCE OF WARRANTS. On the Closing Date (as hereinafter
defined), the Company shall issue and deliver to Jefferies the Warrants
exercisable to subscribe for an aggregate of 25,000 Warrant Shares. On the
Closing Date, the Company shall deliver to Jefferies one or more certificates
evidencing such Warrants.
(b) CLOSING DATE. The completion of the issuance of the
Warrants (the "CLOSING") shall occur at a place and time (the "CLOSING DATE")
to be specified by the Company and Jefferies following the satisfaction or
waiver of all conditions or obligations of Jefferies and the Company as set
forth in Sections 6 and 7.
2. JEFFERIES' REPRESENTATIONS AND WARRANTIES. Jefferies represents
and warrants to the Company:
(a) INVESTMENT PURPOSE. As of the date hereof, Jefferies is
acquiring the Warrants and, upon exercise of the Warrants in whole or in
part, the Warrant Shares for its own account for investment only and not with
a present view towards the public sale or distribution thereof, except
pursuant to sales registered or exempted from registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) RELIANCE ON EXEMPTIONS. Jefferies understands that the
Warrants are being offered to it in reliance upon specific exemptions from
the registration requirements of United States of America, federal and state
securities laws and that the Company is relying upon
the truth and accuracy of, and Jefferies' compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of Jefferies set forth herein in order to determine the availability of such
exemptions and the eligibility of Jefferies to acquire the Warrants.
(c) LEGENDS. Jefferies understands that the Warrants, and until
such time as the Warrant Shares have been registered under the Securities Act
as contemplated herein, the certificates issued by the Company in respect of
the Warrant Shares shall bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of
the certificates for such Warrant Shares):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States of
America. The securities have been acquired for investment and
may not be sold, hypothecated, transferred or assigned in the
absence of an effective registration statement for the
securities under said Act or applicable state securities laws,
or an opinion of counsel, in form, substance and scope
reasonably acceptable to the Company, that registration is not
required under said Act or applicable state securities laws,
or unless sold pursuant to Rule 144 under said Act."
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Warrant Shares upon which
it is stamped, if, unless otherwise required by applicable state securities
laws, (a) such Warrant Shares are registered for sale under an effective
registration statement filed under the Securities Act and disposed of in a BONA
FIDE sale, (b) such holder provides the Company with an opinion of counsel, in
form, substance and scope reasonably acceptable to the Company, to the effect
that a public sale or transfer of such Warrant Shares may be made without
registration under the Securities Act and such sale or transfer is effected or
(c) such holder provides the Company with reasonable assurances that such
Warrant Shares can be sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) without any restriction as to the number of Warrant
Shares acquired as of a particular date that can then be immediately sold.
Jefferies agrees to sell all Warrant Shares, including those represented by a
certificate(s) from which the legend has been removed, in compliance with
applicable prospectus delivery requirements, if any (including any amendment to
any of the foregoing).
(d) AUTHORIZATION, ENFORCEMENT. This Agreement has been duly
and validly authorized, executed and delivered on behalf of Jefferies and is
valid and binding agreement of Jefferies enforceable in accordance with their
terms.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except (1) as
otherwise set forth below; (2) as set forth in the form of the Subscription
Agreement attached hereto as EXHIBIT B and incorporating herein Section 4
thereof; (3) as set forth in the Private Placement Memorandum, dated November
16, 2000 (the "MEMORANDUM"), attached hereto as EXHIBIT C; and (4) as
disclosed in the disclosure schedule to this Agreement and the disclosure
schedules to Section 4 of the Subscription Agreement (the "DISCLOSURE
SCHEDULE"), all
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of which, together with the Memorandum, qualifies the following
representations and warranties in their entirety, the Company hereby
represents and warrants to, and covenants with, Jefferies, as follows:
(a) AUTHORIZATION; ENFORCEMENT. (1) The Company has all
requisite corporate power to enter into and perform this Agreement and the
Warrants and to consummate the transactions contemplated hereby and thereby
and to issue the Warrants, in accordance with the terms hereof; (2) the
execution and delivery of this Agreement and the Warrants by the Company and
the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by the Company's Board of Directors and no further
consent or authorization of the Company, its Board of Directors, or its
shareholders is required; (3) this Agreement has been duly executed and
delivered; and (4) this Agreement constitutes and the Warrants will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with their terms.
(b) CAPITALIZATION. As of January 1, 2001, the authorized share
capital of the Company consists of 30,000,000 (thirty million) Ordinary
Shares, of 20 ▇▇▇▇▇ each and 3,000,000 (three million) Preferred Shares of 20
▇▇▇▇▇ each, of which 18,170,308 Ordinary Shares are issued and outstanding,
duly authorized, validly issued, fully paid and nonassessable. The issued and
outstanding Ordinary Shares, ADSs issued and outstanding options, warrants
and other securities entitling the holders to subscribe for or otherwise
acquire Ordinary Shares as set forth in Schedule 4.4 to the Subscription
Agreement have been duly authorized and validly issued. None of the issued
and outstanding Ordinary Shares, ADSs or options, warrants and other such
securities has been issued in violation of the preemptive rights of any
shareholder of the Company. The issued and outstanding Ordinary Shares, ADSs
and options, warrants and other rights to acquire Ordinary Shares or ADSs
were at all relevant times either registered under the Securities Act and
applicable state securities laws of the United States of America or exempt
from such requirements.
(c) ISSUANCE OF SHARES. On the Closing Date, the Warrants will
be duly authorized, validly issued, free and clear of all liens and
encumbrances, and will not subject the holder thereof to personal liability
by reason of being such holder. Upon exercise of the Warrants, in whole or,
from time to time, in part, and upon payment of the exercise price therefor,
in accordance with the terms of the Warrants, Jefferies will acquire good and
marketable title to the Warrant Shares, free and clear of all liens and
encumbrances, and such Warrant Shares shall be validly issued, fully paid and
non-assessable, and will not subject thereof to personal liability by reason
of being such holder. There are no preemptive or similar rights of any
shareholder of the Company or any other person to acquire any of the Warrants
or Warrant Shares. The issued ADSs are listed for trading on the NASDAQ
National Market (the "NASDAQ") and, except as set forth on the Disclosure
Schedule and the Memorandum, (1) the Company and the issued ADSs meet the
criteria for continued listing and trading on the NASDAQ; (2) the Company has
not been notified since January 1, 1996 by the National Association of
Securities Dealers, Inc. (the "NASD") or the NASDAQ of any failure or
potential failure to meet the criteria for continued listing and trading on
the NASDAQ; (3) no suspension of trading in the issued ADSs is in effect; and
(4) the Company does not reasonably anticipate that the issued ADSs will be
delisted
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by the NASDAQ in the foreseeable future. The Company knows of no reason that
the issued ADSs will not be eligible for listing on the NASDAQ.
(d) NO CONFLICTS. Except as set forth on the Disclosure
Schedule and the Memorandum, the execution, delivery and performance of this
Agreement and the Warrants by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby will not (i) conflict
with or result in a violation of any provision of the Memorandum of
Association of the Company or (ii) violate or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Company or any Subsidiary
(as defined below) is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any Subsidiary or by which
any property or asset of the Company or any Subsidiary is bound or affected,
except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect (as defined below). Neither the Company nor
any Subsidiary is in violation of its Memorandum of Association or
Certificate of Incorporation, Certification of Incorporation, By-laws or
other organizational documents and neither the Company nor any Subsidiary is
in default, and no event has occurred which with notice or lapse of time or
both could put the Company or any Subsidiary in default, under, and neither
the Company nor any Subsidiary has taken any action or failed to take an
action that would give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture instrument to which
the Company or any Subsidiary is a party or by which any property or assets
of the Company or any Subsidiary is bound or affected, except for possible
defaults as would not, individually or in the aggregate, have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws,
the Company is not required to obtain any consent, authorization or order of,
or make any filing or registration with, any court or governmental agency or
any regulatory or regulatory agency in order for it to execute, deliver or
perform any of its obligations under this Agreement or the Warrants in
accordance with the terms hereof or thereof. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence have been obtained or effected on or prior
to the date hereof. The Company and its Subsidiaries are unaware of any facts
or circumstances which might give rise to any of the foregoing. "MATERIAL
ADVERSE EFFECT" means any material adverse effect on the business,
operations, assets, financial condition or prospects of the Company or any of
its Subsidiaries, if any, taken as a whole, or on the transactions
contemplated hereby or by the agreements or instruments to be entered into in
connection herewith. "SUBSIDIARY" means any corporation or other
organization, whether incorporated or unincorporated, in which the Company
owns, directly or indirectly, any equity or other ownership interest.
(e) NO INTEGRATED OFFERING. Neither the Company, nor any of its
Subsidiaries, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers
to buy any security under circumstances that would require registration under
the Securities Act of the issuance of the Warrants and the Warrant Shares to
Jefferies. The issuance of the Warrants and the Warrant Shares to Jefferies
will not be integrated
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with any other issuance of the Company's securities (past, current or future)
which requires shareholder approval under the rules of the NASDAQ.
4. COVENANTS.
(a) COMMERCIALLY REASONABLE EFFORTS. The parties shall use
their commercially reasonable efforts to satisfy timely each of the
conditions described in Sections 6 and 7 of this Agreement.
(b) BLUE SKY LAWS. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is necessary
to qualify the Warrant Shares for issuance to Jefferies at the Closing
pursuant to this Agreement under applicable securities or "blue sky" laws of
the states of the United States of America (or to obtain an exemption from
such qualification), and shall provide evidence of any such action so taken
to Jefferies on or prior to the Closing Date.
(c) REPORTING STATUS. The Company's issued and outstanding ADSs
are registered under Section 12(b) of the Exchange Act of 1934, as amended
(the "EXCHANGE ACT"). Until such time as Jefferies may sell the Warrant
Shares under Rule 144 of the Securities Act, so long as Jefferies
beneficially owns any of the Warrant Shares, the Company shall timely file
all reports required to be filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Exchange Act, and the Company shall not terminate
its status as an issuer required to file reports under the Exchange Act even
if the Exchange Act or the rules and regulations thereunder would permit such
termination.
(d) EXPENSES. In accordance with that certain Letter Agreement
dated August 18, 2000, by and between the Company and Jefferies, the Company
shall reimburse Jefferies for all reasonable expenses incurred by them in
connection with the negotiation, preparation, execution, delivery and
performance of this Agreement and the other agreements to be executed in
connection therewith (without duplication under related agreements)
including, without limitation, reasonable attorneys' and consultants' fees
and expenses.
(e) LISTING. The Company shall promptly secure the listing of
the Warrant Shares upon each national securities exchange or automated
quotation system, if any, upon which shares of ADSs are then listed (subject
to official notice of issuance) and shall maintain, so long as any other
shares of ADSs shall be so listed, such listing of all Warrant Shares. The
Company will maintain the listing and trading of its ADSs on the NASDAQ and
will comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the NASD and such exchanges, as
applicable. The Company shall promptly provide to Jefferies copies of any
notices it receives from the NASDAQ or NASD and any other exchanges or
quotation systems on which the ADSs are then listed or quoted regarding the
continued eligibility of the ADSs for listing or quotation on such exchanges
and quotation systems.
(f) CORPORATE EXISTENCE. So long as Jefferies beneficially owns
any Warrant Shares, the Company shall maintain its corporate existence and
shall not sell all or substantially
5
all of the Company's assets, except in the event of a merger or consolidation
or sale of all or substantially all of the Company's assets, where the
surviving or successor entity in such transaction (i) assumes the Company's
obligations hereunder and under the agreements and instruments entered into
in connection herewith and (ii) is a publicly traded corporation whose Common
Stock is listed for trading on Nasdaq National Market, Nasdaq SmallCap, the
New York Stock Exchange or the AMEX.
(g) RESERVATION OF ORDINARY SHARES. The Company will at all
times have authorized, and reserve and keep available, free from preemptive
rights, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon the exercise of the Warrants, the maximum number of
shares of ADSs then deliverable upon immediate exercise of all outstanding
Warrants.
(h) REGISTRATION RIGHTS. The Company shall register the resale
of the Warrant Shares on the registration statement the Company agrees to
file pursuant to the Subscription Agreement. The terms and conditions of the
registration contained in the Subscription Agreement are incorporated herein
by reference and shall be deemed to be made herein.
5. TRANSFER AGENT INSTRUCTIONS. The Company shall issue irrevocable
instructions to its transfer agent to issue certificates, registered in the
name of Jefferies or its nominee, upon payment of the exercise price
specified in the Warrant for the Warrant Shares, in such amounts as specified
from time to time by Jefferies to the Company (the "IRREVOCABLE TRANSFER
AGENT INSTRUCTIONS"). The Company warrants that no instruction other than the
Irrevocable Transfer Agent Instructions (referred to in this Section 5) will
be given by the Company to its transfer agent and that the Warrant Shares
shall otherwise be freely transferable on the books and records of the
Company as and to the extent provided in this Agreement; and in compliance
with all applicable laws. If Jefferies provides the company with an opinion
of counsel, reasonably satisfactory to the Company in form, substance and
scope, that registration of a resale by Jefferies of any of the Warrant
Shares is not required under the Securities Act, the Company shall permit the
transfer. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to Jefferies, by vitiating the intent
and purpose of the transaction contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under
this Section 5 will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Section, that
Jefferies shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate transfer,
without the necessity of showing economic loss and without any bond or other
security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE. The obligation
of the Company hereunder to issue the Warrants to Jefferies at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions thereto, provided that these conditions are for the
Company's sole benefit and may be waived by the Company in writing at any
time in its sole discretion:
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(a) DELIVERY OF AGREEMENTS. Jefferies shall have executed this
Agreement and delivered the same to the Company.
(b) REPRESENTATIONS AND WARRANTIES OF JEFFERIES. The
representations and warranties of Jefferies shall be true and correct in all
material respects as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that
speak as of a specific date), and Jefferies shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by Jefferies at or prior to the Closing Date.
(c) NO LITIGATION. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by or in any court or governmental authority
of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this Agreement.
(d) PROCEEDS. The Company shall have received the aggregate
proceeds from the sale of ADSs pursuant to the Subscription Agreement.
7. CONDITIONS TO JEFFERIES' PROCEEDING WITH THE CLOSING. Jefferies'
proceeding with the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for Jefferies' sole benefit and may be waived in writing by
Jefferies at any time in its sole discretion:
(a) DELIVERY OF AGREEMENTS. The Company shall have executed
this Agreement and delivered the same to Jefferies.
(b) DELIVERY OF WARRANTS. The Company shall have delivered to
Jefferies duly executed certificates (in such denominations as Jefferies
shall request) representing the Warrants in accordance with Section 1(a)
above.
(c) COMPANY REPRESENTATIONS AND WARRANTIES; CERTIFICATES. The
representations and warranties of the Company and its Subsidiaries shall be
true and correct in all material respects as of the date when made and as of
the Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing Date.
(d) NO LITIGATION. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by or in any court or governmental authority
of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this Agreement.
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(e) WARRANT SHARES LISTING. Evidence of the application for
listing the Warrant Shares on NASDAQ shall have been delivered to Jefferies,
if applicable, and trading in the ADSs on NASDAQ shall not have been
suspended by the SEC or NASDAQ.
(f) OPINION OF COUNSEL. Jefferies shall have received an
opinion of the Company's counsel, dated as of the Closing Date, in form,
scope and substance reasonably satisfactory to Jefferies.
(g) OTHER DOCUMENTS AND OPINIONS. Jefferies shall have received
such other documents, certificates and opinions, in form and substance
reasonably satisfactory to Jefferies and its counsel, relating to matters
incident to the transactions contemplated hereby as Jefferies may reasonably
request.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION.
(a) SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties, covenants and agreements of the Company and
Jefferies contained in this Agreement, or in any document or certificate
delivered pursuant hereto or thereto or in connection herewith shall survive
the Closing Date. All statements contained in any certificate or other
document delivered by or on behalf of the Company pursuant hereto shall
constitute representations and warranties by the Company hereunder
(b) INDEMNIFICATION. The Company agrees, so far as it is
lawfully able to do so, to indemnify and hold Jefferies harmless from and
against, and will pay to Jefferies (including their affiliates and their
respective officers, directors, agents, attorneys, employees and
representatives) the full amount of any loss, damage, liability, penalties or
expense (including amounts paid in settlement and reasonable attorneys' fees
and expenses) to Jefferies resulting either directly or indirectly from any
breach of the representations, warranties, covenants or agreements of the
Company contained in this Agreement, the Subscription Agreement or any other
document or certificate delivered pursuant hereto or thereto or in connection
herewith or therewith.
9. GOVERNING LAW; MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without
regard to the principles of conflict of laws. The parties hereto hereby
submit to the exclusive jurisdiction of the United States of America federal
courts located in New York, New York with respect to any dispute arising
under this Agreement, the agreements entered into in connection herewith or
the transactions contemplated hereby or thereby.
(b) COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement may
be executed in two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the
8
other party. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
(c) HEADINGS. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction.
(e) SPECIFIC PERFORMANCE. The parties agree that irreparable
damage will result in the event that this Agreement is not specifically
enforced, and the parties agree that any damages available at law for a
breach of this Agreement would not be an adequate remedy. Therefore, the
provisions hereof and the obligations of the parties hereunder shall be
enforceable in a court of equity, or other tribunal with jurisdiction, by a
decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies and all other
remedies provided for in this Agreement shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which a party may
have under this Agreement or otherwise.
(f) ENTIRE AGREEMENT; AMENDMENTS. Except for the Letter
Agreement, dated August 18, 2000, between the Company and Jefferies, this
Agreement and the agreements, instruments, exhibits and schedules referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor Jefferies makes any
representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than
by an instrument in writing signed by the party to be charged with
enforcement.
(g) NOTICES. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered
mail (return receipt requested) or delivered personally or by courier
(including a recognized overnight delivery service) or by facsimile and shall
be effective five (5) days after being placed in the mail, if mailed by
regular United States mail, or upon receipt, if delivered personally or by
courier (including a recognized overnight delivery service) or by facsimile,
in each case addressed to a party. The addresses for such communications
shall be:
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If to the Company:
Insignia Solutions, plc
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
Post Office ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Jefferies:
Jefferies & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each party shall provide notice to the other party of any
change in address.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and
assigns. Neither the Company nor Jefferies shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the
other. Notwithstanding the foregoing, Jefferies may assign its rights
hereunder to any person that purchases the Warrants, and, upon exercise in
whole or in part of the Warrant, the Warrant Shares in a private transaction
from Jefferies or to any of its "affiliates," as that term is defined under
the Exchange Act, without the consent of the Company.
10
(i) THIRD PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
(j) PUBLICITY. The Company and Jefferies shall have the right
to review a reasonable period of time before issuance of any press releases,
SEC, NASDAQ, or NASD filings, or any other public statements with respect to
the transactions contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of Jefferies, to make any press
release or SEC, NASDAQ, or NASD filings with respect to such transactions as
is required by applicable law and regulations (although Jefferies shall be
consulted by the Company in connection with any such press release prior to
its release and shall be provided with a copy thereof and be given an
opportunity to comment thereon).
(k) FURTHER ASSURANCES. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
(l) LIMITED RECOURSE. Notwithstanding anything in this
Agreement or any other document, agreement or instrument contemplated hereby
or thereby to the contrary, the obligations of Jefferies hereunder shall be
without recourse to any partner, affiliate of Jefferies or their respective
partners, or any other respective officers, directors, employees or agents
and shall be limited to the assets of Jefferies.
(m) WAIVER. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument
duly executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise afforded, will
be cumulative and not alternative.
(n) NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against
any party.
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IN WITNESS WHEREOF, the undersigned Jefferies and the Company
have caused this Agreement to be duly executed as of the date first above
written.
INSIGNIA SOLUTIONS plc
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Secretary
JEFFERIES & COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
[Signature Page to Warrant Agreement]
