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EXHIBIT 10.04
STOCK PURCHASE AND OPTION AGREEMENT
BY AND BETWEEN
SECURITY FIRST TECHNOLOGIES CORPORATION
AND
INTUIT INC.
DATED AS OF MAY 16, 1999
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TABLE OF CONTENTS
Page
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SECTION 1. PURCHASE AND SALE OF THE SHARES...........................................1
1.1 Sale and Issuance of the Shares...........................................1
1.2 Closing...................................................................1
SECTION 2. STOCK OPTION..............................................................2
2.1 Grant of Option...........................................................2
2.2 The Per Share Option Exercise Price.......................................2
2.3 Exercise of the Option....................................................3
2.4 Transferability...........................................................4
2.5 Requirements of Law.......................................................4
2.6 Changes in Capitalization.................................................4
2.7 Mergers, Consolidations and Asset Sales...................................4
2.8 Certificate as to Adjustments.............................................5
2.9 Reservation of Common Stock...............................................5
2.10 Notices of Record Date....................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.........................5
3.1 Organization and Standing.................................................6
3.2 Authorization; Binding Obligation.........................................6
3.3 Capitalization............................................................6
3.4 Validity of Shares; Issuance..............................................7
3.5 No Consents...............................................................7
3.6 Non-Contravention.........................................................7
3.7 Additional Information....................................................7
3.8 Financial Statements......................................................8
3.9 Absence of Change of Events...............................................8
3.10 Bank Regulation...........................................................8
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER...............................8
4.1 Organization and Standing.................................................8
4.2 Authorization.............................................................9
4.3 Non-Contravention.........................................................9
4.4 No Consents...............................................................9
4.5 Adequate Resources........................................................9
4.6 Investment Experience.....................................................10
4.7 Investment Intent.........................................................10
4.8 Registration or Exemption Requirements....................................10
4.9 No Legal, Tax or Investment Advice........................................10
4.10 Passive Investor..........................................................11
SECTION 5. ADDITIONAL AGREEMENTS.....................................................11
5.1 Nonsolicitation...........................................................11
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5.2 Lock-up Covenant..........................................................11
5.3 Commercially Reasonable Efforts...........................................11
5.4 SEC Filings...............................................................12
SECTION 6. CONDITIONS TO CLOSING.....................................................12
6.1 Conditions to Obligations of All Parties..................................12
6.2 Conditions to the Obligations of Purchaser................................13
6.3 Conditions to Obligations of the Corporation..............................13
SECTION 7. CLOSING...................................................................14
7.1 Deliveries by the Corporation.............................................14
7.2 Deliveries by Purchaser...................................................14
SECTION 8. LEGEND....................................................................15
8.1 Endorsement...............................................................15
8.2 Removal of Legend.........................................................15
SECTION 9. REGISTRATION RIGHTS.......................................................16
9.1 Demand Registration Rights................................................16
9.2 Registration Procedures...................................................16
9.3 Registration Expenses.....................................................18
9.4 Indemnity and Contribution................................................18
SECTION 10. TERMINATION..............................................................20
10.1 Mutual Consent............................................................20
10.2 Other Termination.........................................................20
10.3 Effect of Termination.....................................................20
SECTION 11. MISCELLANEOUS............................................................21
11.1 Additional Actions and Documents..........................................21
11.2 Expenses..................................................................21
11.3 Notices...................................................................21
11.4 Waiver....................................................................22
11.5 Binding Effect............................................................22
11.6 Entire Agreement; Amendment...............................................22
11.7 Severability..............................................................22
11.8 Headings..................................................................23
11.9 Governing Law.............................................................23
11.10 Signature in Counterparts.................................................23
11.11 No Third Party Beneficiaries..............................................23
11.12 Assignability.............................................................23
11.13 Parties Not Partners......................................................24
11.14 Non-Survival of Representations and Warranties............................24
SCHEDULE 3.3.........................................................................1
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STOCK PURCHASE AND OPTION AGREEMENT
This Stock Purchase and Option Agreement (this "Agreement"),
dated as of the 16th day of May, 1999, is entered into by and between Security
First Technologies Corporation, a Delaware corporation (the "Corporation") and
Intuit Inc., a Delaware corporation ("Purchaser").
WHEREAS, Purchaser desires to subscribe for, and acquire from the
Corporation, such number of shares (the "Shares") of the Corporation's common
stock, par value $.01 per share ("Common Stock"), as determined by dividing
$50,000,000 by the applicable per share price of the Shares (as described below
in Section 1.1), on the terms and under the conditions specified herein, and to
acquire the Option (as defined below in Section 2.1); and
WHEREAS, the Corporation desires to sell and issue to Purchaser
the Shares and issue to Purchaser the Option on the terms and under the
conditions specified herein.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the sufficiency of which is hereby acknowledged, the parties mutually
agree as follows:
SECTION 1. PURCHASE AND SALE OF THE SHARES.
1.1 SALE AND ISSUANCE OF THE SHARES.
At the Closing (as defined below in Section 1.2) and subject to
the terms and conditions of this Agreement, Purchaser hereby subscribes for, and
agrees to purchase, the Shares at a price per share equal to $51.5032, which
equals the average closing asking price per share of the Common Stock, as quoted
on the Nasdaq Stock Market National Market System, for each of the 10 trading
days preceding the date hereof (the "Per Share Purchase Price"). The number of
Shares shall be 970,813, as determined by dividing $50,000,000 by the Per Share
Purchase Price and rounding down to the nearest whole share. The Corporation
agrees to sell and issue to Purchaser at the Closing for $50,000,000, the
Shares.
1.2 CLOSING.
The closing (the "Closing") of the transaction shall take place
within ten calendar days after the satisfaction or waiver of the conditions set
forth in Section 6, or on such other date as the parties shall mutually agree.
The Closing shall take place at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or at such other time and place as the
parties shall mutually agree.
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SECTION 2. STOCK OPTION
2.1 GRANT OF OPTION.
The Corporation does hereby grant to Purchaser an option (the
"Option") to subscribe for and purchase 4,000,000 shares of Common Stock, less
the number of Shares purchased hereby; provided, however, that (1) if the
Corporation closes on the "Merger," as contemplated by and defined in that
certain Agreement and Plan of Merger dated as of May 16, 1999 by and among the
Corporation, Sahara Strategy Corporation and Edify Corporation (the "Edify
Business Combination Transaction") on or before March 31, 2000, the number of
shares constituting the Option Shares shall be increased by 600,000; and (2) if
the Corporation closes on the "Transaction," as contemplated by and defined in
that certain Share Purchase Agreement dated as of May 16, 1999, by and among S1
Europe Holdings N.V. (a Belgian corporation in the process of incorporation,
represented by Security First Technologies Corporation), the Stockholders of
FICS Group N.V. and, for the limited purposes stated herein, the Corporation and
FICS Group N.V. ("FICS"), and the "S1 Issuance" as contemplated by and defined
in that certain Stock Purchase Agreement dated as of May 16, 1999 by and among
the Corporation, the individuals identified therein and, for the limited
purposes set forth therein, FICS, on or before March 31, 2000, the number of
shares constituting the Option Shares shall be increased by 1,800,000; and (3)
the maximum number of shares constituting the Option Shares shall never exceed
the difference between (A) 6,400,000 and (B) the total number of shares of
Common Stock "beneficially owned" as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), by Purchaser or any
"affiliate" as defined in Rule 405 under the Securities Act of 1933, as amended
(the "Securities Act"), of Purchaser, excluding the Option Shares. The Option
shall vest and therefore become exercisable, if at all, only upon the closing of
the Edify Business Combination Transaction (the "Edify Closing"). If the Edify
Closing does not occur on or before March 31, 2000, the Option will be void in
all respects. If vested, the Option shall be exercisable, in whole or in part,
at any time from the date of the Edify Closing until 5:00 p.m.
Eastern time on the fifth anniversary of the Closing hereunder.
2.2 THE PER SHARE OPTION EXERCISE PRICE.
The maximum number of Option Shares issuable without stockholder
approval pursuant to Rule 4310 of the Rules of the Nasdaq Stock Market shall be
called the "4310 Limit." Under the Option, the exercise price per share of
Common Stock for which the Option may be exercised (the "Per Share Option
Exercise Price") shall equal the Per Share Purchase Price specified in Section
1.1 above; provided, however, that if the grant and exercise of the Option, in
light of the vesting and anti-dilution provisions set forth in Section 2.1
above, exceeds the 4310 Limit, then (a) for that number of Option Shares in
excess of the 4310 Limit, but only for such number of Option Shares, the Per
Share Option Exercise Price shall equal $53.625 and (b) the Purchaser may elect
to exercise any Option Shares for which the Per Share Option Exercise Price is
$53.625 after all other Option Shares have been exercised. The determination of
whether the grant and exercise of the Option exceeds the 4310 Limit shall be
made after consultation by both
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parties with the Nasdaq Stock Market prior to the Closing and shall be set forth
in a written instrument signed by both parties.
2.3 EXERCISE OF THE OPTION.
2.3(a). General. The Option may be exercised in whole or in part
by delivery to the Corporation on any business day, at its principal office,
addressed to the attention of the Corporate Secretary of the Corporation, of a
written notice of exercise, which notice shall specify the number of shares with
respect to which the Option is being exercised. The minimum number of shares of
Common Stock with respect to which an Option may be exercised, in whole or in
part, at any time shall be the lesser of 100 shares or the maximum number of
shares available for purchase under the Option at the time of exercise.
2.3(b). Cash Payment. Unless the Corporation elects to require
Purchaser to effect a net exercise in accordance with Section 2.3(c), payment of
the aggregate Per Share Option Exercise Price for the shares of Common Stock
purchased pursuant to the exercise of an Option shall be made in cash (whether
by check, wire transfer or other reasonably acceptable means).
2.3(c). Net Exercise. At the Corporation's election, in lieu of
paying cash upon the exercise of the Option, Purchaser shall receive a number of
shares of Common Stock calculated according to the following formula without the
payment of any cash in consideration for the cancellation of the Option:
X = [(V - E) x N] divided by V
where "X" equals the number of shares of Common Stock to be received upon
cancellation of the Option pursuant to this Section 2.3(c); "N" equals the
number of shares of Common Stock issuable upon Option exercise if exercised for
cash; "E" equals the Per Share Option Exercise Price; and "V" equals the closing
sales price for such stock or the closing bid if no sales were reported, as
quoted on the Nasdaq National Market System or any other established stock
exchange or national market system (or the largest such exchange or system) for
the trading day immediately preceding the exercise date (or if there are no
sales for such date, then for the last preceding trading day on which there were
sales), as reported in the Wall Street Journal or similar publication. Within
one business day of receiving a notice of exercise described in Section 2.3(a),
the Corporation shall inform Purchaser in writing of its intention to require
Purchaser to effect a net exercise under this Section 2.3(c).
2.3(d). Issuance of Shares. Promptly after the exercise of the
Option (or any portion thereof) and, if Purchaser is not effecting a net
exercise under Section 2.3(c), the payment in full of the aggregate Per Share
Option Exercise Price of the shares of Common Stock covered thereby, Purchaser
shall be entitled to the issuance of a stock certificate or certificates
evidencing ownership of the Option Shares so acquired.
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2.4 TRANSFERABILITY.
Except to the extent provided in Section 11.12, the Option shall
not be assignable or transferable.
2.5 REQUIREMENTS OF LAW.
The Corporation shall not be required to sell or issue any shares
of Common Stock under the Option if the sale or issuance of such shares would
constitute a violation by the Purchaser or the Corporation of any provisions of
any law or regulation of any governmental authority, including without
limitation any federal or state securities laws or regulations.
2.6 CHANGES IN CAPITALIZATION.
If the outstanding shares of Common Stock are increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Corporation by reason of any recapitalization,
reclassification, stock split, reverse split, or stock dividend, or other
increase or decrease in such shares effected without receipt of consideration by
the Corporation, occurring after the date hereof, the number and kind of shares
for which Options are outstanding (including all share numbers in Section 2.1)
shall be adjusted proportionately and accordingly so that the proportionate
interest of the holder of the Option immediately following such event shall, to
the extent practicable, be the same as immediately prior to such event. Any such
adjustment in outstanding Option shall not change the aggregate Per Share Option
Price payable with respect to shares subject to the unexercised portion of the
Option outstanding but shall include a corresponding proportionate adjustment in
the Per Share Option Price.
2.7 MERGERS, CONSOLIDATIONS AND ASSET SALES.
If at any time there shall be a merger or consolidation of the
Corporation with or into another corporation, or the sale of the Corporation's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such merger, consolidation or sale, lawful provision shall be
made so that Purchaser shall thereafter be entitled to receive upon exercise of
the Option, during the period specified in the Option and upon payment of the
purchase price or by effecting a net exercise, the number of shares of stock or
other securities or property of the Corporation or the successor corporation
resulting from such merger, consolidation or sale, to which a holder of the
Common Stock deliverable upon exercise of the Option would have been entitled
under the provisions of the agreement in such merger, consolidation or sale if
the Option had been exercised immediately before that merger, consolidation or
sale. In any such case, appropriate adjustment (as determined in good faith by
the Corporation's Board of Directors) shall be made in the application of the
provisions of the Option with respect to the rights and interests of Purchaser
after the merger, consolidation or sale to the end that the provisions of the
Option (including adjustment of the Per Share Option Exercise Price then in
effect and the
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number of Option Shares) shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of the Option.
2.8 CERTIFICATE AS TO ADJUSTMENTS.
In the case of each adjustment or readjustment of the number of
Option Shares subject to this Agreement and the Per Share Option Exercise Price
pursuant to this Section 2, the Corporation will promptly compute such
adjustment or readjustment in accordance with the terms hereof and cause a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based to be delivered to
the Purchaser. The Corporation will, upon the written request at any time of
Purchaser, furnish or cause to be furnished to Purchaser a certificate setting
forth: (a) such adjustments and readjustments; (b) the Per Share Option Exercise
Price at the time in effect; and (c) the number of Option Shares and the amount,
if any, of other property at the time receivable upon the exercise of the
Option.
2.9 RESERVATION OF COMMON STOCK.
The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of the Option, such number of shares of Common Stock as
shall from time to time be sufficient to effect the exercise of the Option in
full.
2.10 NOTICES OF RECORD DATE.
In the event of any taking by the Corporation of a record of the
holders of any class of securities of the Corporation for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation will mail to Purchaser at least five
business days prior to the record date, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right;
provided, however, that the Corporation shall have no obligation under this
Section 2.10 with respect to the taking of any such record which is publicly
disclosed by the Corporation at least five business days prior to the record
date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation represents, warrants and covenants to Purchaser
as follows:
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3.1 ORGANIZATION AND STANDING.
The Corporation is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
the full corporate power and authority to own and operate its properties and
assets and to carry on its business as currently conducted. The Corporation
holds all licenses and permits required for the conduct of its business as now
conducted which, if not in the Corporation's possession, could have a material
adverse effect on the Corporation's financial condition or results of
operations, taken as a whole. The Corporation is duly qualified as a foreign
corporation and is in good standing in all jurisdictions where the conduct of
its business or its ownership or leasing of property requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the Corporation's financial condition or results of
operations, taken as a whole.
3.2 AUTHORIZATION; BINDING OBLIGATION.
The Corporation has all requisite corporate power and authority
to enter into and to deliver this Agreement and perform its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Corporation and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Corporation. This Agreement, when executed and delivered by the Corporation,
shall constitute a valid and binding obligation of the Corporation enforceable
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws effecting the
enforcement of creditor's rights.
3.3 CAPITALIZATION.
The authorized capital stock of the Corporation consists of
60,000,000 shares of Common Stock, of which 25,428,778 were issued and
outstanding as of May 10, 1999, and 5,000,000 shares of preferred stock, of
which 466,450 of the 1,637,832 shares designated Series A Convertible Preferred
Stock were issued and outstanding as of May 10, 1999, of which 749,064 of the
749,064 shares designated Series B Redeemable Convertible Preferred Stock were
issued and outstanding as of May 10, 1999, and of which 215,000 of the 215,000
shares designated at Series C Redeemable Convertible Preferred Stock were issued
and outstanding as of May 10, 1999. At such date, there were 12,353,798 shares
of Common Stock reserved for issuance pursuant to employee stock options, of
which options for 9,607,750 shares are currently outstanding. All of the
Corporation's outstanding shares of capital stock were validly issued and are
fully paid and nonassessable. Except as described on Schedule 3.3, there are no
shares of the Corporation's capital stock reserved for issuance or any options,
warrants, rights (including conversion or preemptive rights) or agreements for
the purchase from the Corporation of any shares of its capital stock or
securities exercisable for or convertible into its capital stock.
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3.4 VALIDITY OF SHARES; ISSUANCE.
The Shares and the Option Shares, when issued upon payment of the
consideration therefor in compliance with the provisions of this Agreement will
be validly issued, fully paid and nonassessable, and free of any liens or
encumbrances, and will be issued in compliance with all applicable laws.
3.5 NO CONSENTS.
No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained by the Corporation and no filings are
required to be made by the Corporation in connection with the execution and
delivery of this Agreement and the issuance of the Shares and the Option Shares
hereunder, except as have been so obtained or made prior to the Closing or, with
respect to any that need to be obtained or made subsequent to the Closing, as
will be obtained or made in a timely manner after the Closing, except where the
failure to obtain such orders, permissions, consents, approvals or
authorizations or to make such filings would not affect the Corporation's
ability to issue the Shares or the Option Shares or have a material adverse
effect on the Corporation's financial condition or results of operations or
business prospects, taken as a whole.
3.6 NON-CONTRAVENTION.
The execution, delivery and performance of, and compliance with,
this Agreement will not (a) violate any provision of the certificate of
incorporation or bylaws of the Corporation; (b) conflict with or result in a
breach of, or default under, or result in the creation of any lien, claim,
charge or other encumbrance upon any of the assets or properties of the
Corporation pursuant to the provisions of any material agreement, mortgage,
indenture or other document or instrument to which the Corporation is a party or
by which the Corporation or any of its properties or assets is bound, or (c)
violate any existing statutes, laws, ordinances, regulations, orders and other
rules of law applicable to the Corporation or any of its properties or assets,
or applicable to the Corporation's power or authority to perform its obligations
under this Agreement.
3.7 ADDITIONAL INFORMATION.
The information contained in the Corporation's Annual Report on
Form 10-K for the year ended December 31, 1998, and all other reports filed
subsequent thereto through the date of the Closing (collectively, the "SEC
Reports") pursuant to Section 13(a) or 15(d) of the Exchange Act, did not and
will not, as the case may be, at the respective dates of filing with the
Securities and Exchange Commission (the "SEC"), contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
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3.8 FINANCIAL STATEMENTS.
Each of the consolidated financial statements (including, in each
case any related notes thereto) contained in the SEC Reports (the "Financial
Statements"), (x) was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited interim financial statements, as may be
permitted by the SEC on Form 10-Q under the Exchange Act) and (y) fairly
presented the consolidated financial position of the Corporation and its
subsidiaries as at the respective dates thereof and the consolidated results of
its operations and cash flows for the periods indicated consistent with the
books and records of the Corporation, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments which were not, or are not expected to be, material in amount. The
balance sheet of the Corporation contained in the Corporation's Form 10-K for
the year ended December 31, 1998 is referred to in this Agreement as the
"Balance Sheet."
3.9 ABSENCE OF CHANGE OF EVENTS.
Except as described in the SEC Reports, between December 31, 1998
and the date of this Agreement no change or event has occurred which would be
reasonably likely to have a material adverse effect on the Corporation's
financial condition or results of operations, taken as a whole.
3.10 BANK REGULATION
The Corporation is not a "bank holding company" as defined under
the Bank Holding Company Act of 1956 or a "savings and loan holding company" as
defined under the Home Owners' Loan Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents, warrants and covenants to the Corporation
as follows:
4.1 ORGANIZATION AND STANDING.
Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. Purchaser has the full
corporate power and authority to own and operate its properties and assets and
to carry on its business as currently conducted. Purchaser holds all licenses
and permits required for the conduct of its business as now conducted which, if
not in Purchaser's possession, could have a material adverse effect on
Purchaser's financial condition or results of operations, taken as a whole.
Purchaser is duly qualified as a foreign corporation and is in good standing in
all jurisdictions where the conduct of
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its business or its ownership or leasing of property requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on Purchaser's financial condition or results of operations,
taken as a whole.
4.2 AUTHORIZATION.
Purchaser has all requisite corporate power and authority to
enter into and to deliver this Agreement. The execution, delivery and
performance of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser. This Agreement, when executed and
delivered by Purchaser, shall constitute a valid and binding obligation of
Purchaser enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws effecting the enforcement of creditor's rights.
4.3 NON-CONTRAVENTION.
The execution, delivery and performance of, and compliance with,
this Agreement will not (a) violate any provision of the certificate of
incorporation or bylaws of Purchaser; (b) conflict with or result in a breach
of, or default under, or result in the creation of any lien, claim, charge or
other encumbrance upon any of the assets or properties of Purchaser pursuant to
the provisions of any material agreement, mortgage, indenture or other document
or instrument to which Purchaser is a party or by which Purchaser or any of its
properties or assets is bound, or (c) violate any existing statutes, laws,
ordinances, regulations, orders and other rules of law applicable to Purchaser
or any of its properties or assets, or applicable to Purchaser's power or
authority to perform its obligations under this Agreement.
4.4 NO CONSENTS.
No governmental orders, permissions, consents, approvals or
authorizations are required to be obtained by Purchaser and no filings are
required to be made by Purchaser in connection with the execution and delivery
of this Agreement and the purchase of the Shares and the Option Shares, if any,
hereunder, except as have been so obtained or made prior to the Closing or, with
respect to any that need to be obtained or made subsequent to the Closing, as
will be obtained or made in a timely manner after the Closing, except where the
failure to obtain such orders, permissions, consents, approvals or
authorizations or to make such filings would not have a material adverse effect
on Purchaser's financial condition or results of operations or business
prospects, taken as a whole.
4.5 ADEQUATE RESOURCES.
Purchaser has sufficient cash and other resources to perform its
obligations hereunder.
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4.6 INVESTMENT EXPERIENCE.
Purchaser is an "accredited investor" as defined in Rule 501(a)
under the Securities Act. Purchaser is aware of the Corporation's business
affairs and financial condition and has had access to and has acquired
sufficient information about the Corporation to reach an informed and
knowledgeable decision to acquire the Shares, and the Option Shares, if any.
Purchaser has such business and financial experience as is required to give it
the capacity to protect its own interests in connection with the purchase of the
Shares, and the Option Shares, if any. Purchaser is able to bear the economic
risk of holding the Shares, and the Option Shares, if any, for an indefinite
period, including the loss of Purchaser's entire investment. The Shares were
not, and, in the case of the Option Shares, if any, will not be, offered or sold
to Purchaser by any form of general solicitation or advertising.
4.7 INVESTMENT INTENT.
Purchaser is purchasing the Shares, and the Option Shares, if
any, for its own account as principal, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalization thereof, in
whole or in part, within the meaning of the Securities Act. Purchaser
understands that its acquisition of the Shares has not been, and, in the case of
the Option Shares, if any, will not be, registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of Purchaser's investment intent as expressed herein.
4.8 REGISTRATION OR EXEMPTION REQUIREMENTS.
Purchaser further acknowledges and understands that the Shares,
and the Option Shares, if any, may be required to be held indefinitely, and they
may not be resold or otherwise transferred except in a transaction registered
under the Securities Act or where an exemption from such registration is
available. Purchaser understands that the certificate(s) evidencing the Shares,
and the Option Shares, if any, will be imprinted with a legend that prohibits
the transfer of the Shares, and the Option Shares, if any, unless (a) they are
registered or such registration is not required, and (b) if the transfer is
pursuant to an exemption from registration other than Rule 144 promulgated under
the Securities Act and, if the Corporation shall so request in writing, an
opinion of counsel satisfactory to the Corporation is obtained to the effect
that the transaction is so exempt and in compliance with applicable state law.
4.9 NO LEGAL, TAX OR INVESTMENT ADVICE.
Purchaser understands that nothing in this Agreement or any other
materials presented to Purchaser in connection with the purchase and sale of the
Shares and the Option Shares, if any, constitutes legal, tax or investment
advice. Purchaser has consulted such legal,
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tax and investment advisors as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of the Shares, and the Option
Shares, if any.
4.10 PASSIVE INVESTOR.
Purchaser represents that Purchaser is acquiring the Shares and
the Option without intention of participating in the formulation, determination
or direction of the basic business decisions of the Corporation.
SECTION 5. ADDITIONAL AGREEMENTS.
5.1 NONSOLICITATION.
From the date hereof through and including until five years after
the date of the Closing, each party hereto agrees that it will not, without the
other party's prior written consent, solicit for employment any person who is
now employed by the other party (it being understood that this Section 5.1 shall
not prohibit the placing of general employment advertisements or solicitations
not specifically targeted to any employee or employees of the other party).
5.2 LOCK-UP COVENANT.
During the period beginning on the date hereof and ending on the
date 12 months after the date of the Closing (or such earlier date described
below), Purchaser covenants that it will not, without the prior written consent
of the Corporation, offer, sell or otherwise dispose of, directly or indirectly,
any capital stock of the Corporation which Purchaser may own directly,
indirectly or beneficially; provided, however, that Purchaser may transfer some
or all of the Shares or the Option Shares either (A) to a corporation,
partnership or other legal entity that is controlled by Purchaser, if such
transferee agrees in writing to hold any Shares or Option Shares received
subject to the provisions of this Agreement and to transfer such Shares or
Option Shares back to Purchaser if such transferee ceases to be controlled by
Purchaser or (B) pursuant to Section 11.12.
5.3 COMMERCIALLY REASONABLE EFFORTS.
Purchaser and the Corporation shall use commercially reasonable
efforts to take, or cause to be taken, all actions and do, or cause to be done,
all things necessary, proper or appropriate under applicable laws and
regulations to consummate and make effective the purchase and sale of the Shares
contemplated hereby and any exercise by Purchaser of all or any part of the
Option, including, without limitation, (i) promptly filing Notification and
Report Forms, if any are required, under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended ("HSR Act") with the Federal Trade
Commission ("FTC") and the Antitrust Division
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of the Department of Justice (the "Antitrust Division"), and responding as
promptly as practicable to any inquiries received from the FTC or the Antitrust
Division for additional information or documentation, and (ii) making all other
necessary filings and obtaining all other necessary governmental and private
party consents, approvals or waivers, required to consummate the transactions
hereunder. Notwithstanding anything to the contrary in this Agreement, neither
Purchaser, nor the Corporation, nor any of their subsidiaries shall be required
to (i) divest, hold separate or license any material business(es), product
line(s) or asset(s), (ii) take any action or accept any limitation that could
reasonably be expected to have a material adverse effect on the financial
condition or results of operations, of Purchaser or the Corporation and their
respective subsidiaries, taken as a whole, as applicable or (iii) agree to any
of the foregoing.
5.4 SEC FILINGS.
Until the Option has been exercised in full or expired in
accordance with its terms, the Corporation agrees to timely file all forms,
reports and documents which the Corporation is required to file with the SEC,
which forms, reports and documents shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
SECTION 6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES.
The obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, on or before the
date of the Closing, of each of the following conditions precedent:
6.1(a). Termination. This Agreement shall not have been
terminated in accordance with its terms.
6.1(b). No Governmental Action. No action or proceeding by or
before any governmental authority shall have been instituted or threatened (and
not subsequently dismissed, settled or otherwise terminated) which is reasonably
expected to restrain, prohibit or invalidate the transactions contemplated by
this Agreement.
6.1(c). Technology Agreements. Each of (i) the certain
Cross-License Agreement dated as of May 16, 1999 by and between Venture Finance
Software Corporation and the Corporation (ii) and the certain Distribution
Agreement dated as of May 16, 1999 by and between the Corporation and Purchaser
has been executed and delivered and all of the conditions precedent to its
effectiveness shall have been satisfied or waived.
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6.1(d) Governmental Clearances. The HSR Act waiting period, if
any, related to this Agreement shall have expired or been terminated, and any
other required authorizations, consents, orders or approvals of, or declarations
or filings with, or expirations of waiting periods imposed by, any government
entity shall have been obtained or filed.
6.2 CONDITIONS TO THE OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to purchase the Shares as
contemplated by this Agreement are subject to the satisfaction, on or before the
date of the Closing, of each of the following conditions precedent, any one or
more of which may be waived by Purchaser, in its sole and absolute discretion:
6.2(a). Representations and Warranties. The representations and
warranties of the Corporation contained in this Agreement shall be true, correct
and complete in all material respects when made and shall be true and correct as
of the date of the Closing, with the same force and effect as if made on the
date of the Closing.
6.2(b). Compliance with Covenants. The Corporation shall have in
all material respects performed all obligations and agreements and complied with
all covenants contained in this Agreement to be performed and complied with by
the Corporation on or prior to the date of the Closing.
6.2(c). Material Adverse Event. No change, event or effect that
could reasonably be expected to have a material adverse effect on the
Corporation's financial condition or results of operations, taken as a whole,
shall have occurred.
6.2(d). Legal Opinion. Purchaser shall have received from ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., legal counsel for the Corporation, an opinion dated the date of
the Closing regarding due authorization and valid issuance of the Shares and the
Option Shares by the Corporation.
6.3 CONDITIONS TO OBLIGATIONS OF THE CORPORATION.
The obligations of the Corporation to sell the Shares as
contemplated by this Agreement are subject to the satisfaction, on or before the
date of the Closing, of each of the following conditions precedent, any one or
more of which may be waived by the Corporation, in its sole and absolute
discretion:
6.3(a). Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement shall be true, correct and
complete in all material respects when made and shall be true and correct as of
the date of the Closing, with the same force and effect as if made on the date
of the Closing.
6.3(b). Compliance with Covenants. Purchaser shall have in all
material respects performed all obligations and agreements and complied with all
covenants contained in this
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Agreement to be performed and complied with by Purchaser on or prior to the date
of the Closing.
SECTION 7. CLOSING.
7.1 DELIVERIES BY THE CORPORATION.
At the Closing, the Corporation shall deliver to Purchaser the
following:
(1) A certificate or certificates registered in
Purchaser's name, representing all of the Shares.
(2) A copy of the resolutions of the Board of Directors of
the Corporation, as certified as of the date of the Closing by the Secretary of
the Corporation, as being true, correct and complete and in full force and
effect, authorizing the execution, delivery and performance of this Agreement by
the Corporation, the authorization, sale, issuance and delivery of the Shares,
and the performance of the Corporation's obligations hereunder.
(3) A certificate of the Corporation signed by an
authorized officer of the Corporation certifying that the representations and
warranties of the Corporation made herein are true, complete and correct in all
material respects as of the date of this Agreement and are true and correct as
of the date of the Closing, and the Corporation has in all material respects
performed all obligations and agreements and complied with all covenants
required to be performed or complied with by the Corporation on or prior to the
Closing.
(4) The legal opinion required by Section 6.2(d) and such
other certificates, instruments or documents as Purchaser may reasonably request
in order to effect and document the transactions contemplated hereby.
7.2 DELIVERIES BY PURCHASER.
At the Closing, Purchaser shall deliver to the Corporation the
following:
(1) $50,000,000, in cash or by wire transfer or certified
or bank cashier's check, payable to the order of the Corporation.
(2) A certificate of Purchaser signed by an authorized
officer of Purchaser certifying that the representations and warranties of
Purchaser made herein are true, complete and correct in all material respects as
of the date of this Agreement and are true and correct as of the date of the
Closing (if different), and Purchaser has in all material respects performed all
obligations and agreements and complied with all covenants required to be
performed or complied with by Purchaser on or prior to the Closing.
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(3) Such other certificates, instruments or documents as
the Corporation may reasonably request in order to effect and document the
transaction contemplated hereby.
SECTION 8. LEGEND.
8.1 ENDORSEMENT.
Each certificate representing the Shares and the Option Shares,
if any, shall bear the following legend (in addition to any legend required by
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR
ANY OTHER FEDERAL OR STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND ANY OTHER APPLICABLE FEDERAL
SECURITIES LAWS COVERING SUCH SECURITIES OR THE CORPORATION RECEIVES AN
OPINION OF COUNSEL IN FORM SATISFACTORY TO THE CORPORATION THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Each certificate representing the Shares and any Option Shares issued on
or before May 16, 2000 shall bear the following additional legend:
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER THAT EXPIRE
ON MAY 16, 2000 SPECIFIED IN THE STOCK PURCHASE AND OPTION AGREEMENT
DATED MAY 16, 1999 (THE "AGREEMENT") BETWEEN THE CORPORATION AND THE
ORIGINAL PURCHASER, AND NO TRANSFER OF SHARES SHALL BE VALID OR
EFFECTIVE ABSENT COMPLIANCE WITH SUCH RESTRICTIONS. ALL SUBSEQUENT
HOLDERS OF THIS CERTIFICATE PRIOR TO MAY 16, 2000 WILL HAVE AGREED TO
BE BOUND BY CERTAIN OF THE TERMS OF THE AGREEMENT, INCLUDING SECTION
5.2 OF THE AGREEMENT. COPIES OF THE AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE REGISTERED HOLDER OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION.
8.2 REMOVAL OF LEGEND.
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The legend endorsed on a stock certificate pursuant to Section
8.1 of this Agreement, insofar as it relates to registration under the
Securities Act, shall be removed and the Corporation shall issue a certificate
without such legend to the holder of such Shares, if such Shares are registered
under applicable federal securities laws and a prospectus meeting the
requirements of the rules and regulations of the SEC is available or if such
holder provides to the Corporation an opinion of counsel to such holder
reasonably satisfactory to the Corporation, to the effect that a public sale,
transfer or assignment of such Shares may be made without registration and
without compliance with any restrictions. The legend endorsed on a stock
certificate pursuant to Section 8.1 of this Agreement, insofar as it relates to
additional restrictions specified in this Agreement, shall be removed upon the
expiration of the applicable provisions referenced therein.
SECTION 9. REGISTRATION RIGHTS
9.1 DEMAND REGISTRATION RIGHTS.
9.1(a). At any time after the first anniversary of the Closing,
Purchaser may request registration for sale under the Securities Act of any
Common Stock owned by Purchaser (a "Demand Registration"), provided, however,
that the Corporation shall only be obligated to effect one Demand Registration
for Purchaser. A Demand Registration shall specify the approximate number of
shares of Common Stock that Purchaser requests be registered.
9.1(b). A Demand Registration shall be deemed to occur when such
registration becomes effective under the Securities Act, except that if, after
it becomes effective, such Demand Registration is interfered with by any stop
order, injunction or other order or requirement of the SEC (or any successor
regulator thereto as to federal securities laws) or any other governmental
authority, such registration shall not be deemed to have been effected unless
such stop order, injunction or other order shall have been subsequently vacated
or removed.
9.2 REGISTRATION PROCEDURES.
9.2(a). The Corporation shall have no obligation to include
Common Stock owned by Purchaser in a registration statement unless and until
Purchaser has furnished the Corporation with all information and statements
about or pertaining to Purchaser in such reasonable detail and on such timely
basis as is reasonably deemed by the Corporation to be necessary or appropriate
for the preparation of the registration statement.
9.2(b). Whenever Purchaser has requested that its Common Stock be
registered pursuant to Section 9.1 hereof, the Corporation shall, subject to the
provisions of Section 9.1 and Section 9.2:
(1) prepare and file with the SEC a registration statement
with respect to such Common Stock covered by the Demand Registration and use its
reasonable efforts to
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cause such registration statement to become effective as soon as practicable
after the filing thereof (provided that before filing a registration statement
or prospectus or any amendments or supplements thereto, the Corporation shall
furnish counsel for Purchaser with copies of all such documents proposed to be
filed);
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus contained therein as
may be necessary to keep such registration statement effective for a period of
not less than three months or until Purchaser has completed the distribution
described in such registration statement, whichever occurs first;
(3) furnish to Purchaser the number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
contained in such registration statement (including each preliminary
prospectus), and such other documents as Purchaser may reasonably request;
(4) if required by applicable law, use reasonable efforts
to register or qualify such shares under the state blue sky or securities laws
("Blue Sky Laws") of such jurisdictions as Purchaser reasonably requests (and to
keep such registrations and qualifications effective for a period of three
months, or until Purchaser has completed the distribution of such shares,
whichever occurs first), and to do any and all other acts and things that may be
reasonably necessary or advisable to enable Purchaser to consummate the
disposition of such shares in such jurisdictions; provided, however, that the
Corporation will not be required to do any of the following: (i) qualify
generally to do business in any jurisdiction where it would not be required but
for this Section 9.2(b), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of process in any
such jurisdiction;
(5) promptly notify Purchaser at any time when a
prospectus relating thereto is required to be delivered under applicable federal
securities laws during the period that the Corporation is required to keep the
registration statement effective, of the occurrence of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and prepare a supplement or amendment to the prospectus so that, as
thereafter delivered to the purchasers of such shares, the prospectus will not
contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
9.2(c). The Corporation will use reasonable efforts to cause all
Shares and Option Shares to be listed on the Nasdaq Stock Market National Market
System (or such other securities exchange on which the Common Stock is then
listed).
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9.3 REGISTRATION EXPENSES.
9.3(a). If, pursuant to Section 9.1 hereof, Common Stock owned by
Purchaser is included in a registration statement, then Purchaser shall pay all
transfer taxes, if any, relating to the sale of its Common Stock, the fees and
expenses of its own counsel, and its pro rata portion of any underwriting
discounts or commissions or the equivalent thereof.
9.3(b). Except for the fees and expenses specified in Section
9.3(a) hereof and except as provided below in this Section 9.3(b), the
Corporation shall pay all expenses incident to the registration and to the
Corporation's performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with Blue Sky Laws, printing expenses, messenger and delivery
expenses, and fees and expenses of counsel for the Corporation and all
independent certified public accountants and other persons retained by the
Corporation. With respect to any registration pursuant to Section 9.3 hereof,
the Corporation shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties) and the expenses and fees for listing the securities to be
registered on the Nasdaq Stock Market National Market System, if applicable.
9.4 INDEMNITY AND CONTRIBUTION.
9.4(a). In the event that any Common Stock owned by Purchaser is
sold by means of a registration statement pursuant to Section 9.1 hereof,
Purchaser (for the purposes of this paragraph 9.4(a), the "Indemnifying Person")
agrees to indemnify and hold harmless the Corporation, each of the Corporation's
officers and directors, and each person, if any, who controls or may control the
Corporation within the meaning of the Securities Act (for the purposes of this
paragraph 9.4(a), the Corporation, its officers and directors, and any such
other persons being hereinafter referred to individually as an "Indemnified
Person" and collectively as "Indemnified Persons") from and against all demands,
claims, actions or causes of action, assessments, losses, damages, liabilities,
costs, and expenses, including, without limitation, interest, penalties, and
reasonable attorneys' fees and disbursements, asserted against, resulting to,
imposed upon, or incurred by such Indemnified Person, directly or indirectly
(collectively, hereinafter referred to in the singular as a "Claim" and in the
plural as "Claims"), based upon, arising out of, or resulting from (i) any
untrue statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary in order to make the
statements made therein not misleading, or (ii) any untrue statement of a
material fact contained in the prospectus, or any supplement or amendment
thereto, or any omission to state therein a material fact necessary in order to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading, in each case, only to the extent that such Claim
is based upon, arises out of or results from information furnished to the
Corporation by Purchaser for use in connection with the registration statement.
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9.4(b). The Corporation (for the purposes of this paragraph
9.4(b), the "Indemnifying Person") agrees to indemnify and hold harmless
Purchaser, its officers and directors, each person, if any, who controls or may
control Purchaser within the meaning of the Securities Act (for the purposes of
this paragraph 9.4(b), Purchaser, its officers and directors, and any such other
persons also being hereinafter referred to individually as an "Indemnified
Person" and collectively as "Indemnified Persons") from and against all Claims
based upon, arising out of, or resulting from (i) any untrue statement of a
material fact contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statement made therein
not misleading, or (ii) any untrue statement of a material fact contained in the
prospectus, or any supplement or amendment thereto, or any omission to state
therein a material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading,
except to the extent that such Claim is based upon, arises out of or results
from information furnished to the Corporation by Purchaser for use in the
registration statement.
9.4(c). The indemnification set forth herein shall be in addition
to any liability the Corporation or Purchaser may otherwise have in connection
with any registration of such Common Stock. Within a reasonable time after
receiving definitive notice of any Claim in respect of which an Indemnified
Person may seek indemnification under this Section 9.4, such Indemnified Person
shall submit written notice thereof to Indemnifying Person. The failure of the
Indemnified Person so to notify the Indemnifying Person of any such Claim shall
not relieve the Indemnifying Person from any liability it may have hereunder
except to the extent that (a) such liability was caused or increased by such
failure, or (b) the ability of the Indemnifying Person to reduce such liability
was materially adversely affected by such failure. In addition, the failure of
the Indemnified Person to so notify the Indemnifying Person of any such Claim
shall not relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the right to
undertake, by counsel or representatives of its own choosing, the defense,
compromise, or settlement (without admitting liability of the Indemnifying
Person or the Indemnified Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk of the
Indemnifying Person, and the Indemnified Person shall have the right to engage
separate counsel, at its own expense, which counsel for the Indemnifying Person
shall keep informed and consult with in a reasonable manner. In the event the
Indemnifying Person shall fail to undertake such defense by its own
representatives, the Indemnifying Person shall give prompt written notice of
such election to the Indemnified Person, and the Indemnified Person shall
undertake the defense, compromise, or settlement (without admitting liability of
the Indemnified Person or the Indemnifying Person) thereof on behalf of and for
the account and risk of the Indemnifying Person by counsel or other
representatives designated by the Indemnified Person. In the event that any
Claim shall arise out of a transaction or cover any period or periods wherein
the Corporation and Purchaser shall each be liable hereunder for part of the
liability or obligation arising therefrom, then the parties shall, each choosing
its own counsel and bearing its own expenses, defend such Claim, and no
settlement or compromise of such Claim may be made without the joint consent or
approval of the Corporation and Purchaser. Notwithstanding the foregoing, no
Indemnifying Person shall be
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obligated hereunder with respect to amounts paid in settlement of any Claim if
such settlement is effected without the consent of such Indemnifying Person
(which consent shall not be unreasonably withheld).
SECTION 10. TERMINATION.
10.1 MUTUAL CONSENT.
The parties may terminate this Agreement at any time by mutual
written agreement.
10.2 OTHER TERMINATION.
The Corporation or the Purchaser may terminate this Agreement
prior to the Closing by giving notice (a "Termination Notice") to the other
party at the time designated in this Section or, in the absence of such
designation, at any time up to and including the date of the Closing, if any one
or more of the following shall have occurred and be continuing:
10.2(a). Termination By Any Party. Any party may terminate this
Agreement if a court or other governmental authority of competent jurisdiction
shall have issued an order, writ, injunction or decree or shall have taken any
other action permanently restraining or otherwise prohibiting the purchase of
the Shares or the exercise of the Option contemplated hereby and such order,
writ, injunction, decree or other action shall have become final and
nonappealable.
10.2(b). Termination By Purchaser. Purchaser may terminate this
Agreement prior to the Closing, if any condition precedent set forth in Sections
6.1 or 6.2 shall not have been satisfied by October 31, 1999.
10.2(c). Termination By the Corporation. The Corporation may
terminate this Agreement prior to the Closing, if any condition precedent set
forth in Sections 6.1 or 6.3 shall not have been satisfied by October 31,1999.
10.3 EFFECT OF TERMINATION.
Termination of this Agreement pursuant to this Section shall not
relieve any party of any liability for a default or other breach, default or
nonperformance under this Agreement. Notwithstanding the foregoing, no party
hereto shall be liable for consequential or punitive damages in connection with
such termination.
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SECTION 11. MISCELLANEOUS.
11.1 ADDITIONAL ACTIONS AND DOCUMENTS.
Each of the parties hereto agrees that it will, at any time,
prior to, at or after the Closing, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments (including export license
applications) as may be necessary or reasonably requested in connection with the
consummation of the purchase and sale contemplated by this Agreement or in order
to fully effectuate the purposes, terms and conditions of this Agreement.
11.2 EXPENSES.
Except as specified in Section 9, each party hereto shall pay its
own expenses incurred in connection with this Agreement and in the preparation
for and consummation of the transactions contemplated hereby.
11.3 NOTICES.
All notices, demands, requests, or other communications which may
be or are required to be given or made by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, or delivered by overnight air courier, addressed as follows:
(i)if to the Corporation:
Security First Technologies Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: President
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(ii) if to Purchaser:
Intuit Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Counsel
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇'▇▇▇▇, Esq.
or such other address as the addressee may indicate by written notice to the
other parties. Each notice, demand, request, or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, or the affidavit of messenger being
deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
11.4 WAIVER.
No waiver by any party of any failure or refusal of any other
party to comply with its obligations under this Agreement shall be deemed a
waiver of any other or subsequent failure or refusal to so comply by such other
party. No waiver shall be valid unless in writing signed by the party to be
charged and only to the extent therein set forth.
11.5 BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
11.6 ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including the other instruments and documents
referred to herein or delivered pursuant hereto, contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, commitments or understandings with respect to
such matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification or discharge is sought.
11.7 SEVERABILITY.
If any part of any provision of this Agreement shall be invalid
or unenforceable under applicable law, such part shall be ineffective to the
extent of such invalidity or
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unenforceability only, without in any way affecting the remaining parts of such
provisions or the remaining provisions of said Agreement.
11.8 HEADINGS.
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
11.9 GOVERNING LAW.
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
under and in accordance with the laws of the State of Delaware, excluding the
choice of law rules thereof.
11.10 SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
11.11 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, this Agreement is made and
entered into for the sole protection and benefit of the parties hereto, and no
other person or entity shall have any right of action hereon, right to claim any
right or benefit from the terms contained herein or be deemed a third party
beneficiary hereunder.
11.12 ASSIGNABILITY.
All terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective
transferees, successors and assigns; provided, however, that neither this
Agreement nor any rights, privileges, duties and obligations of the parties
hereto may be assigned or delegated by any party hereto without the prior
written consent of all the parties to this Agreement and any such purported or
attempted assignment shall be null and void ab initio and of no force or effect;
provided, further that Purchaser may assign this Agreement, including the Option
and other rights, privileges, duties and obligations hereunder to (i) any
affiliate of Purchaser, which is wholly or substantially owned directly or
indirectly by Purchaser so long as such assignment does not in any way
materially delay or otherwise materially adversely impact the ability of the
parties hereto to effect the transactions
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contemplated hereby, or (ii) any acquiror of all or substantially all of the
assets or stock of Purchaser whether by merger, tender offer, asset sale or
other transaction.
11.13 PARTIES NOT PARTNERS.
Nothing contained in this Agreement shall constitute any party as
a partner with, agent for or principal of any one or more of the other parties
or their successors and assigns.
11.14 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Except for the representations and warranties of the Corporation
set forth in Section 3.2 hereof, none of the representations, warranties,
covenants and agreements in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Closing, except for those covenants
and agreements contained herein and therein which by their terms apply in whole
or in part after the Closing.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the date first above written.
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Chairman and Chief Executive
Officer
INTUIT INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President & CEO
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SCHEDULE 3.3
1. Common Stock Purchase and Option Agreement by and between Security First
Network Bank and RBC Holdings (Delaware) Inc.
Outstanding Options:
Shares Exercise Price Expiration Date
------ -------------- ---------------
382,556 $6.54 June 30, 1999
347,948 $7.19 December 30, 1999
316,256 $7.91 June 30, 2000
Effect of these options on the Corporation's fully diluted
capitalization, calculated under the "treasury" method: 794,705 shares.
2. Warrant to purchase common stock of Security First Technologies
Corporation with Royal Bank of Canada. Warrants to purchase 800,000
shares of S1's common stock outstanding at an exercise price of $30.00
per share. The warrant will vest in four equal installments if, as of
four annual measurement dates, Royal Bank has a specified number of
customers using the Virtual Financial Manager software. No impact on
fully diluted number.
3. Warrant to purchase common stock of Security First Technologies
Corporation with ▇▇▇▇▇▇▇▇ Consulting LLP. Warrants to purchase 200,000
shares of S1's common stock outstanding at an exercise price of $54.94
per share. The warrant will vest, if at all, in three installments of
40,000, 80,000, and 80,000 shares only if S1 enters into agreements to
sell its services or license its products to specified customers as a
result of the relationship with ▇▇▇▇▇▇▇▇ Consulting. No impact on fully
diluted number.
4. FICS transaction: Currently contemplated that an aggregate of 20,000,000
shares of common stock, including shares of common stock which may be
issued upon exercise of options (18,874,413 shares, calculated to derive
the fully diluted number) will be issued at Closing. The exact breakdown
in terms of a number of shares which will be issued at closing of that
transaction is unavailable. For each additional option granted by FICS
pre-closing, Security First will reduce the number of shares of common
stock it delivers at closing.
5. Edify transaction: Currently contemplated that an aggregate of
approximately 7,521,017 shares of common stock, including shares of
common stock which may be issued upon exercise of options (6,869,799
shares, calculated to derive the fully diluted number) will be issued at
Closing.
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6. Shares reserved for issuance upon conversion of preferred stock:
a. The outstanding shares of Series A Preferred are
convertible into 932,900 shares of common stock;
b. The outstanding shares of Series B Preferred are
convertible into 1,070,090 shares of common stock; and
c. The outstanding shares of Series C Preferred are
convertible into 430,000 shares of common stock.
All such shares of common stock are included in the fully diluted
number on an as-converted basis.
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