Exhibit 10.29
SHARE
PURCHASE AGREEMENT
This
SHARE PURCHASE AGREEMENT
(this Agreement)
is
made and entered into as of April 2,
2008, by and among Ebix, Inc., a Delaware corporation (the Company), and
Rennes Foundation, Principality of Liechtenstein (the Purchaser).
The Company desires to issue
and sell to the Purchaser, and the Purchaser desires to purchase from the
Company, an aggregate of 40,000 shares of Common Stock (the Shares) for an
aggregate price of US $ 3,028,000 (US Dollars three million twenty-eight
thousand/00) upon the terms and conditions set forth herein.
IN CONSIDERATION of the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
1.
AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions
of this Agreement, the Company has authorized the sale of the Shares.
2.
AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1
Purchase and
Sale
Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase, and the Company
agrees to sell and issue to Purchaser, at the Closing (as defined below) 40,000
Shares.
2.2
Purchase Price
The purchase price of each
Share shall be US $75.70 (the Per Share Price).
3.
DELIVERY OF THE SHARES AT THE CLOSING
(a)
The completion of the purchase
and sale of the Shares (the Closing) is occurring substantially
contemporaneously with the execution of this Agreement (the Closing Date).
(b)
The Company shall authorize
its transfer agent (the Transfer Agent) to issue to the Purchaser as of the
Closing one or more stock certificates (in such denominations as such Purchaser
shall request, the Certificates) registered in the name of the Purchaser or
its custodial designee, against payment by the Purchaser of the purchase price
for such Shares by wire transfer of immediately available funds.
(c)
The Companys obligation to
complete the issuance and sale of the Shares to the Purchaser at the Closing
shall be subject to the satisfaction of the following conditions, any one or
more of which may be waived by the Company:
(i)
receipt by the Company of the full amount of the
purchase price for the Shares being purchased under this Agreement by wire
transfer of immediately available funds; and
(ii)
the representations and warranties made by the Purchaser
in this Agreement shall be true and correct and the undertakings of the
Purchaser herein shall have been fulfilled in all material respects in or
before the Closing.
(d)
The Purchasers obligations
to purchase the Shares from the Company shall be subject to the satisfaction of
the following condition, which may be waived by the Purchaser:
(i)
the representations and warranties made by the
Company in this Agreement shall be true and correct as of the date of this
Agreement and the undertakings of the Company herein shall have been fulfilled
in all material respects on or before the Closing.
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE COMPANY
The Company hereby
represents and warrants to the Purchaser as follows:
4.1
Issuance, Sale
and Delivery of the Shares
(a)
The Shares have been duly
authorized for issuance and sale to the Purchaser pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in this Agreement, will be
validly issued and fully paid and nonassessable and free and clear of all
pledges, liens and encumbrances. The Certificates evidencing the Shares when
delivered, will be
in
due and proper
form under Delaware law.
(b)
The issuance of the Shares
is
not subject to preemptive or other similar rights.
(c)
Subject to the accuracy of
the Purchasers representations and warranties in Section 5 of this
Agreement, the offer, sale and issuance of the Shares in conformity with the
terms of this Agreement constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act of 1933, as amended (the Securities
Act), and from the registration or qualification requirements of the laws of
any applicable state or United States jurisdiction.
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4.2
Due Execution,
Delivery and Performance
(a)
This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by (i) applicable
bankruptcy or other similar laws relating to, or affecting generally the
enforcement of, creditors rights or remedies, (ii) general principles of
equity or (iii) applicable laws and consideration of public policy
relating to indemnification and contribution provisions.
(b)
The execution, delivery and
performance of this Agreement, and the Companys sale, issuance and delivery of
the Shares, have been duly authorized by all necessary corporate action on the
part of the Company.
(c)
Organization
. Each of the Company and its Subsidiaries (as
defined in Rule 405 under the Securities Act) is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries has full power and
authority to own, operate and occupy its properties and to conduct its business
as presently conducted and is registered or qualified to do business and in
good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries, taken as a whole (a Material
Adverse Effect).
(d)
Due Authorization
. The Company has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement,
and has taken all necessary corporate action to enter into and perform this
Agreement, to issue the Shares in accordance with the terms of this Agreement.
(e)
Non-Contravention
. Except as would not reasonably be expected to
have a Material Adverse Effect, the execution and delivery of this Agreement,
the issuance and sale of the Shares under this Agreement, the fulfillment of
the terms of this Agreement and the consummation of the transactions
contemplated hereby will not (A) conflict with or constitute a violation
of, or default (with or without the giving of notice or the passage of time or
both) under, (i) any material bond, debenture, note or other evidence of
indebtedness, or under any material lease, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to which the
Company or any Subsidiary is a party or by which it or any of its Subsidiaries
or their respective properties arc bound, (ii) the charter, by-laws or
other organizational documents of the Company or any Subsidiary, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary or their respective properties, or (B) result in the creation
or imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or any
Subsidiary or an acceleration of indebtedness pursuant to any obligation,
agreement or condition contained in any material bond, debenture, note or any
other evidence of indebtedness or any
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material indenture, mortgage, deed of trust
or any other agreement or instrument to which the Company or any Subsidiary is a
party or by which any of them is bound or to which any of the property or
assets of the Company or any Subsidiary is subject. No consent, approval,
authorization or other order of, or registration, qualification or filing with,
any regulatory body, administrative agency, self-regulatory organization, stock
exchange or market, or other governmental body in the United States is required
for the execution and delivery of this Agreement and the valid issuance and
sale Shares, other than such as have been made or obtained, and except for any
securities filings required to be made under federal or state securities laws.
(f)
SEC Filings
. Since January 1,
2007, the Company and its Subsidiaries have filed all reports, schedules,
forms, statements and other documents required to be filed by it with the
Securities and Exchange Commission (the SEC or Commission) pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the 1934
Act) (collectively, the SEC Documents). As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time
they were filed with the SEC, contained any untrue statement of a material fact
or omitted to state a 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.
(g)
Absence of Certain Change
. Except as
disclosed in the SEC Documents filed at least thirty (30) days prior to the
date hereof, since January 1, 2007 there has been no adverse change or
adverse development in the business, properties, assets, operations, financial
condition, prospects, liabilities or results of operations of the Company or
its Subsidiaries which to the knowledge of the Company would reasonably be
expected to have a Material Adverse Effect.
(h)
Capitalization
. As of the
date hereof, the authorized capital stock of the Company consists of (i) 10,000,000
shares of Common Stock, of which as of the date hereof,
shares are issued,
are
outstanding,
shares are issuable and reserved for issuance pursuant to the Companys
stock option plans or securities exercisable or exchangeable for, or
convertible into, shares of Common Stock, and (ii)
shares of preferred stock, of which as of the date hereof no shares are
issued. All of such outstanding shares have been, or upon issuance will be,
validly issued, fully paid and nonassessable. Except as disclosed in the SEC
Documents, as of the date hereof, (i) no shares of the Companys capital
stock are subject to preemptive rights or any other similar rights or any liens
or encumbrances suffered or permitted by the Company, (ii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or
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securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional shares of
capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, (iii) there are no
outstanding securities of the Company or any of its Subsidiaries which contain
any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to redeem a security of the Company or any of its
Subsidiaries, (iv) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance
Shares and (v) the Company does not have any stock appreciation rights or phantom
stock plans or agreements or any similar plan or agreement. The Company
disclosed in its SEC Documents or has furnished to Purchaser true and correct
copies of the Companys Certificate of Incorporation, as amended and as in
effect on the date hereof (the Certificate of Incorporation), and the Companys
By-laws, as in effect on the date hereof (the By-laws).
5.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE PURCHASER
The Purchaser represents,
warrants and covenants to the Company as follows:
5.1
Securities Law
Representations, Warranties and Covenants
(a)
The Purchaser is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an
investment decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company, and has requested, received,
reviewed and considered all information it deems relevant in making an informed
decision to purchase the Shares. The Purchaser is not relying, in making its
decision to purchase the Shares, on any oral representations or statements made
by the Companys personnel, and is relying solely on the information contained
in the Companys filings with the Securities and Exchange Commission (SEC
Documents). Purchaser has carefully considered the potential risks relating to
the Company and a purchase of the Shares, including the risks identified under Risk
Factors in the SEC Documents, and fully understands that the Shares are
speculative and include a high degree of risk of loss. The Purchaser
acknowledges that no assurances are given by the Company that any pending plans
will be completed.
(b)
The Purchaser is acquiring
the Shares in the ordinary course of its business and for its own account, and
has no present intention of distributing any of the Shares nor any arrangement
or understanding with any other persons regarding the distribution of such
Shares, or
as
would otherwise not be in
violation of the Securities Act or any applicable state securities taws.
(c)
The Purchaser has completed
or caused to be completed and delivered to the Company the Stock Certificate
Questionnaire and the Registration Statement Questionnaire attached to this
Agreement as Appendices I and II, for use in preparation of the Certificates,
any necessary filings required
by
applicable state securities laws, and the Registration Statement (as
defined in Section 7.4 below), and the
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answers to the Questionnaires are true and
correct and will be true and correct as of the effective date of the
Registration Statement.
(d)
The Purchaser understands
that no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of
the Shares or the fairness or suitability of the investment in the Shares nor
have such authorities passed upon or endorsed the merits of the offering of the
Shares,
(e)
The Purchaser is an accredited
investor within the meaning of Rule 501 of Regulation D promulgated under
the Securities Act. The Purchaser is able to bear the economic risk of an
investment in the Shares.
(f)
The Purchaser understands
that the offer and sale of the Shares to the Purchaser have not been and are
not being registered under the Securities Act or any state securities laws, and
the Shares may not be offered for sale, sold, assigned, pledged, transferred or
otherwise disposed of unless and until (i) subsequently registered under a
shelf registration being filed by the company, (ii) the Purchaser shall
have delivered to the Company an opinion of counsel, reasonably acceptable to
the Company in a generally acceptable form, to the effect that such Shares to
be offered for sale, sold, assigned, pledged, transferred or otherwise disposed
of may be so offered for sale, sold, assigned, pledged, transferred or
otherwise disposed of pursuant to an exemption from such registration, or (iii) the
Purchaser provides the Company with written reasonable assurance that such
Shares can be or are being offered for sale, sold, assigned, pledged,
transferred or otherwise disposed of pursuant to, and in compliance with, Rule 144
under the Securities Act; provided, further, that in no event may the Shares be
offered for sale, sold, assigned, pledged, transferred or otherwise disposed of
prior to 60 days after the Closing.
(g)
The Purchaser understands
that the Certificates representing the Shares purchased by it hereunder, until
the occurrence of an event described in Section 5.1(f), shall bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such Certificates):
THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED, ASSIGNED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, (B) AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE
COMPANY, IN A GENERALLY ACCEPTED FORM, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR APPLICABLE
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STATE SECURITIES LAWS OR (C) WRITTEN
REASONABLE ASSURANCE THAT IT WILL BE DONE PURSUANT TO, AND IN COMPLIANCE WITH,
RULE 144 UNDER SAID ACT.
The Company agrees to cause
such legend and stop transfer order to be removed from the Certificates
representing the Shares upon the occurrence of an event described in Section 5.1(1).
(h)
The Purchaser will comply,
at its own expense, with all applicable laws and regulations in any foreign
jurisdiction in which it purchases, offers, sells or delivers any of the
Shares.
5.2
Resales of
Shares
(a)
The Company shall notify the
Purchaser if it determines, in good faith following consultation with its Board
of Directors or a committee thereof, that art event has happened as a result of
which the Registration Statement or the Prospectus (as defined in Section 7.3.1
below) includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Upon
receipt of such notice, the Purchaser will suspend its use of the Prospectus until
such time as an amendment or supplement to the Registration Statement or the
Prospectus has been filed by the Company and any such amendment to the
Registration Statement is declared effective by the Commission, or until such
time as the Company has filed an appropriate report with the Commission
pursuant to the Exchange Act, in each case to correct such misstatement or
omission. The Company shall use its best efforts to prepare and file with the
Commission any such amendment, supplement or report, as the case may be, as
soon as practicable after delivering such notice to the Purchaser.
(b)
In addition to the foregoing
provisions of Section 5.2(b), the Company may, upon written notice to the
Purchaser, suspend the use of the Prospectus for up to sixty (60) days, no more
than thirty (30) days of which may be consecutive, in any 365-day period (less
the number of days in such 365-day period that the Purchaser must suspend its
use of the Prospectus pursuant to Section 5.2(a)) based on the reasonable
determination of the Companys Board of Directors or a committee thereof that
there is a significant business purpose for such determination, such as pending
corporate developments, public filings with the SEC or similar events.
Notwithstanding anything else to the contrary in Section 5,2(a), the
Company shall in no event be required to disclose the business purpose for
which it has suspended the use of the Prospectus pursuant to this Section 5.2(b) if
the Company determines in its good faith judgment that the business purpose
should remain confidential.
(c)
The Company shall notify the
Purchaser (i) of any request by the Commission for an amendment or any
supplement to such Registration Statement or any related Prospectus, or any
other information request by any other governmental agency directly relating to
the offering of the Shares, and (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of such Registration Statement or
of any
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order preventing or suspending the use of any
related Prospectus or the initiation or threat of any proceeding for that
purpose.
(d)
The Purchaser further
covenants to notify the Company promptly of the sale of any of its Shares.
5.3
Due Execution,
Delivery and Performance
(a)
This Agreement has been duly
executed and delivered by the Purchaser and constitutes a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy or other similar laws relating to, or affecting generally the
enforcement of, creditors rights or remedies, (ii) general principles of
equity or (iii) applicable laws and consideration of public policy
relating to indemnification and contribution provisions.
(b)
The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated in this Agreement and the fulfillment of the terms of this
Agreement have been duly authorized by all necessary corporate, agency or other
action and will not conflict with or violate the provisions of the
organizational documents of the Purchaser, including, without limitation, its
charter, bylaws, partnership agreement or operating agreement, as applicable,
or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order, except as would not, individually or in the aggregate, have
a material adverse effect on the ability of the Purchaser to consummate the
transaction contemplated hereunder.
6.
SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Purchasers in this
Agreement shall survive the execution of this Agreement, the delivery to the
Purchasers of the Shares being purchased and the payment therefor.
7.
FORM D FILING; REGISTRATION;
COMPLIANCE WITH THE SECURITIES ACT; COVENANTS
7.1
Registration of
Shares
The Company shall:
(a)
file in a timely manner a Form D
relating to the sale of the Shares under this Agreement, pursuant to Regulation
D under the Securities Act;
(b)
as soon as practicable after
the Closing Date, but in no event later than the 45th day following the Closing
Date, prepare and file with the Commission a Registration Statement on Form S-3
(or, if the Company is ineligible to use Form S-3, then on such other form
as is available for such registration) registering under the
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Securities Act the sale of the Shares by the
Purchasers from time to time on the facilities of any national securities
exchange on which the Common Stock is traded or in privately negotiated
transactions (the Registration Statement);
(c)
use its reasonable best
efforts to cause the Commission to notify the Company of the Commissions
willingness to declare the Registration Statement effective on or before 90
days after the Closing Date;
(d)
cause the Shares to be duly
listed for trading on the Nasdaq Global Market concurrently with the
effectiveness of the Registration Statement;
(e)
in the event that the
Commission requires the Company to identify the Purchaser as an underwriter in the
Registration Statement , cooperate with the Purchaser in allowing the Purchaser
to conduct customary underwriters due diligence with respect to the Company
and satisfy its obligations in
respect thereof. In addition, at the Purchasers request, the Company will
furnish to the Purchaser, on the date of the effectiveness of the Registration
Statement and thereafter no more often than on a quarterly basis, (i) a
letter, dated such date, from the Companys independent certified public
accountants to underwriters in an underwritten public offering, addressed to
such Purchaser, and (ii) an opinion, dated as of such date, of counsel
representing the Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in an underwritten public offering,
including a standard 10b-5 opinion for such offering, addressed to such
Purchaser;
(f)
notify Purchaser promptly
upon the Registration Statement, and any post-effective amendment thereto,
being declared effective by the Commission;
(g)
prepare and file with the Commission such amendments
and supplements to the Registration Statement and the Prospectus (as defined in
Section 7.3.1 below) and take such other action, if any, as may be
necessary to keep the Registration Statement effective until the earlier of (I) the
date on which the Shares may be resold by the Purchasers without registration
and without regard to any volume limitations by reason of Rule 144(k) under
the Securities Act or any other rule of similar effect, (ii) all of
the Shares have been sold pursuant to the Registration Statement or Rule 144
under the Securities Act or any other rule of similar effect, or (iii) the
second anniversary of the Closing Date;
(h)
promptly furnish to the
Purchaser with respect to the Shares registered under the Registration
Statement such reasonable number of copies of the Prospectus, including any
supplements to or amendments of the Prospectus, in order to facilitate the
public sale or other disposition of all or any of the Shares by the Purchasers;
(i)
during the period when
copies of the Prospectus are required to be delivered under the Securities Act
or the Exchange Act, file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the rules and regulations
promulgated there under;
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(j)
file documents required of
the Company for customary Blue Sky clearance in all states requiring Blue Sky
clearance;
provided, however,
that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(k)
pass all expenses in
connection with the procedures in paragraphs (a) through (i) of this Section 7.1
and the registration of the Shares pursuant to the Registration Statement to
the Purchaser, by providing detailed receipts for the expenses incurred.
7.2
Transfer of
Shares After Registration
The Purchaser agrees that it
will not effect any disposition of the Shares or its right to purchase the
Shares that would constitute a sale within the meaning of the Securities Act,
except as contemplated in the Registration Statement referred to in Section 7.1
or as otherwise permitted by law, and that it will promptly notify the Company
of any changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution.
7.3
Indemnification
For the purpose of this Section 7.3,
the term Registration Statement shall include any preliminary or final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1.
7.3.1
Indemnification
by the Company
Subject to Section 7.3.5,
the Company agrees to indemnify and hold harmless the Purchaser, the
Purchasers officers, directors, trustees, partners, members, employees and
agents, and each person, if any, who controls or is under common control with
the Purchaser within the meaning of the Securities Act (each, a Purchaser
Indemnitee), against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Purchaser Indemnitees may become subject, under
the Securities Act, the Exchange Act, or any other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of the
Company), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, including financial statements and
schedules, and all other documents filed as a part thereof, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434,
under the Securities Act, or in the prospectus related thereto, in the form
first filed with the Commission pursuant to Rule 424(b) under the
Securities Act or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required (the
Prospectus), or any amendment or supplement to the Registration Statement or
Prospectus, or arise out of or are based upon the omission or alleged omission
to state in any of them a material fact required to be stated therein or
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necessary to make the
statements in any of them, in light of the circumstances under which they were
made, not misleading, and will reimburse the Purchaser Indemnitee for
reasonable legal and other expenses as such expenses are incurred by such
Purchaser Indemnitee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action;
provided,
however,
that the
Company will not be liable in any such case to a Purchaser Indemnitee to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon (1) an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the Prospectus
or any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of a Purchaser
expressly for use in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or (ii) the failure of the applicable
Purchaser to comply with the covenants and agreements contained in Section 5.2
or 7.2 of this Agreement regarding the resale of the Shares, or (iii) the
inaccuracy of any representations and warranties made by the Purchaser in this
Agreement or (iv) any untrue statement or omission of a material fact
required to make such statement not misleading in any Prospectus that is
corrected in any subsequent Prospectus or supplement thereto that was delivered
to the applicable Purchaser a reasonable amount of time before the pertinent
sale or sales by such Purchaser or (v) a direct claim against the Company
by such Purchaser Indemnitee if such Purchaser Indemnitee is a person that is
under common control with any Purchaser (as opposed to a third-party claim
against such Purchaser Indemnitee).
7.3.2
Indemnification by the Purchaser
Subject to Section 7.3.5,
the Purchaser will severally and not jointly indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act, against any losses, claims, damages,
liabilities or expenses to which the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling person may
become subject, under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Purchaser), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon (i) any failure on the part of such
Purchaser to comply with the covenants and agreements contained in Section 5.2
or 7.2 of this Agreement regarding the resale of the Shares or (ii) the
inaccuracy of any representations and warranties made by such Purchaser in this
Agreement or (iii) any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Purchaser expressly for use therein and
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such Purchaser will
reimburse the Company, each of its directors, each of its officers who signed
the Registration Statement and each controlling person for reasonable legal and
other expenses as such expenses are incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement and each
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action;
provided, however,
that
the Purchaser shall not be liable for any such untrue or alleged untrue
statement or omission or alleged omission of which the Purchaser has delivered
to the Company in writing a correction of such untrue statement or omission of
a material fact a reasonable amount of time before the occurrence of the
transaction from or upon which such loss, claim, damage, liability or expense
arose or was based.
7.3.3
Indemnification Procedure
(a)
Promptly after
receipt by an indemnified party under this Section 7.3 of notice of the
threat or commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this Section 7.3,
promptly notify the indemnifying party in writing of the claim; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise under the indemnity agreement contained in this Section 7.3 to
the extent it is not prejudiced as a result
of such failure.
(b)
In case any
such action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however,
if the
defendants in any such
action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party
and the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it or other indemnified parties that
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assume such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, which approval shall not be unreasonably withheld, the indemnifying
party will not be liable to such indemnified party under this Section 7.3
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless:
(i)
the indemnified
party shall have employed such counsel in connection with the assumption of
legal defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by such
12
indemnifying party representing all of the indemnified parties who are
parties to such action), or
(ii)
the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of action, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
7.3.4
Contribution
If the indemnification
provided for in this Section 7.3 is required by clause (i) of Section 7.3.1
or clause (iii) of Section 7.3.2 but is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
under this Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to in this Agreement, then each applicable
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of any losses, claims, damages, liabilities or
expenses referred to in this Agreement in such proportion as is appropriate to
reflect the relative fault of the Company and the Purchaser in connection with
the statements or omissions, the inaccuracies in the representations and
warranties in this Agreement or the breach of covenants and agreements in this
Agreement that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations.
The relative fault of the
Company and the Purchaser shall be determined by reference to, among other
things, whether the untrue or alleged statement of a material fact or the
omission or alleged omission to state a material fact or the inaccurate or the
alleged inaccurate representation or warranty relates to information supplied
by the Company or by such Purchaser and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7.3.3,
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in Section 7.3.3 with respect to the notice of the threat or commencement
of any threat or action shall apply if a claim for contribution is to be made
under this Section 7.3.4;
provided,
however,
that no additional notice shall be required with
respect to any threat or action for which notice has been given under Section 7.3
for purposes of indemnification. The Company and the Purchaser agree that it
would not be just and equitable if contribution pursuant to this Section 7.3
were determined solely by pro rata allocation (even if the Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
paragraph. Notwithstanding the provisions of this Section 7.3, no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total proceeds received by it
from the sale of the Shares exceeds the amount of any damages that such
Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, No person guilty of
fraudulent
13
misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers obligations to contribute pursuant to this Section 7.3
are several and not joint.
7.3.5
Limits on Liability
In no event shall the
aggregate liability hereunder of the Purchaser exceed (x) the purchase
price paid by the Purchaser for the Shares it bought hereunder with respect to
the matters described in clauses (i) and (ii) of Section 7.3.2
and (y) the gross proceeds to such Purchaser as a result of the sale of
Shares pursuant to a Registration Statement, Prospectus or any amendment or
supplement thereto with respect to the matters described in clause (iii) of
Section 7.3.2.
7.4
Rule 144
Information
Until the earlier of (1) the
date on which the Shares may be resold by the Purchaser without registration
and without regard to any volume limitations by reason of Rule 144(k) under
the Securities Act or any other rule of similar effect or (ii) all of
the Shares have been sold pursuant to the Registration Statement or Rule 144
under the Securities Act or any other rule of similar effect, the Company
shall file all reports required to be filed by it under the Securities Act, the
rules and regulations promulgated thereunder and the Exchange Act so long
as it is subject to such requirements and shall take such further reasonable
action to the extent required to enable the Purchaser to sell the Shares
pursuant to Rule 144 under the Securities Act (as such rule may be
amended from time to time),
8.
NOTICES
All notices, requests,
consents and other communications under this Agreement shall be in writing,
shall be mailed by first-class registered or certified airmail, confirmed
facsimile or nationally recognized overnight express courier postage prepaid,
and shall be delivered as addressed as follows:
(a)
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if to the Company, to:
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Ebix, Inc.
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Five Concourse Parkway,
Suite 3200
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Atlanta, GA 30328
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Attention: Robin Raina
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Telephone: 678-281-2031
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Facsimile: 678-281-2019
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or to such other person at
such other place as the Company shall designate to the Purchaser in writing;
and
(b)
if to the
Purchaser, at its address or facsimile number as set forth on the signature page to
this Agreement, or at such other address or addresses or facsimile number or
numbers as may have been furnished to the Company in writing.
14
Such notice shall be deemed
effectively given upon confirmation of receipt by facsimile, one business day
after deposit with such overnight courier or three days after deposit of such
registered or certified airmail with the U.S. Postal Service, as applicable.
9.
MODIFICATION; AMENDMENT; TERMINATION
This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by the
Company and the Purchaser.
10.
ENTIRE AGREEMENT
This Agreement supersedes
all other prior oral or written agreements between the parties with respect to
the matters discussed herein and contains the entire understanding with respect
to the matters covered herein.
11.
HEADINGS
The headings of the various
sections of this Agreement have been inserted for convenience of reference only
and shall not be deemed to be part of this Agreement.
12.
SEVERABILITY
If any provision contained
in this Agreement should be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained in this Agreement shall not in any way be affected or impaired
thereby.
13.
GOVERNING LAW; JURISDICTION
This Agreement shall be
governed by and construed in accordance with the laws of the state of Delaware
and the federal law of the United States of America, without giving effect to
any choice of law or conflict of law provision or rule that would cause
the application of the laws of any other jurisdiction.
14.
COUNTERPARTS
This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been
signed by each party to this Agreement and delivered to the other parties.
15.
SUCCESSORS AND ASSIGNS
This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns; provided that the Purchaser may not assign its rights
or obligations hereunder without the consent of the Company.
15
16.
NO 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.
17.
PUBLICITY
Except as required by law,
the Purchaser shall not, without the prior written consent of the Company make
any public announcement or issue any press release that includes the name of
the Company with respect to the transactions contemplated by this Agreement.
[Signature pages follow]
16
IN WITNESS
WHEREOF,
the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
EBIX,
INC.
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By:
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/S/
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Robin
Raina
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President &
Chief Executive Officer
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For
Rennes Foundation
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By:
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/S/
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Name:
Rolf Herter
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Title:
Director
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Address:
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Aeulestrasse
38
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9490
Vaduz
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Principality
of Liechtenstein
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Facsimile:
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17
APPENDIX I
EBIX, INC.
STOCK CERTIFICATE
QUESTIONNAIRE
Pursuant to Section 3
of the Agreement, please provide us with the following information:
1.
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The
exact name that your Shares are to be registered in (this is the name that
will appear on your stock certificate(s)).
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Rennes
Fondation
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2.
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Your
mailing address:
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Aeulestrasse
38
FL
9490 Vaduz
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3.
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If
you are an entity, the state that is your principal place of business (if you
have multiple principal places of business, please list the state where the
decision to invest in the Shares was made). If you are an individual, the
state that is your legal place of residence:
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Principality
of Liechtenstein
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4.
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Your
Tax Identification Number:
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18
APPENDIX II
EBIX, INC.
REGISTRATION STATEMENT QUESIONNAIRE
In
connection with the preparation of the Registration Statement, please
provide us with the following information:
1.
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Pursuant
to the Selling Stockholder section of the Registration Statement, please
state your or your organizations name exactly as it should appear in the
Registration Statement
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Rennes
Fondation
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2.
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Please
provide the number of shares of Common Stock that you or your organization
will beneficially own immediately after Closing, including those Shares purchased
by you or your organization pursuant to this Purchase Agreement and those
shares purchased by you or your organization through other transactions:
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352,677
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3.
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Have
you, your organization or any affiliate had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
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o
Yes No
o
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If
yes, please indicate the nature of any such relationships below:
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Director
of Rennes Fondation is a board member of Ebix Inc.
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19
Exhibit 10.30
SHARE
PURCHASE AGREEMENT
This
SHARE
PURCHASE AGREEMENT
(this Agreement) is made and entered into as of
7th April 2008, by and among Ebix, Inc., a Delaware corporation (the Company),
and one or more purchasers comprised of client accounts and funds managed by
Ashford Capital Management, Inc. (ACM; with each ACM client or fund
referred to as a Purchaser).
The Company desires to issue
and sell to the ACM Purchasers (collectively, the Purchasers) an aggregate of
one-hundred ten thousand (110,000) shares of the Companys Common Stock (the Shares)
at a purchase price of Seventy-Two and 87/100 United States Dollars (US$72.87)
per share, for an aggregate price of eight million fifteen thousand seven
hundred United States Dollars (US $8,015,700,00), all upon the terms and
conditions set forth herein (the Offering).
The Shares to be issued to and purchased by each ACM Purchaser are
called the Purchaser Shares and references to the Shares includes the
Purchaser Shares except as stated otherwise).
IN CONSIDERATION of the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
1.
AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the
Shares. The Company and each of the
Purchasers are entering into their respective Agreements in mutual reliance
upon the exemption from securities registration afforded by the provisions of
Regulation D (Regulation D) promulgated by the United States Securities
Exchange Commission (the SEC) under the Securities Act of 1933, as amended
and in effect (the Securities Act).
2.
AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1
Purchase and
Sale
. Subject to the terms and conditions of this
Agreement, the Purchaser agrees to purchase, and the Company agrees to sell and
issue to Purchaser, at the Closing (as defined below) 110,000 Purchaser
Shares. The number of Shares and the
purchase price for such Shares being issued to and purchased by each ACM Purchaser
will be as set out opposite each such ACM Purchasers name as indicated on the
signature page for each such ACM Purchaser. The Company will issue Shares in the Offering
to each ACM Purchaser under the same terms and conditions, and at the same
purchase price, all as evidenced by the provisions of this Agreement.
2.2
Purchase Price
. The
purchase price of each Share shall be Seventy-Two and 87/100 US Dollars
(US$72.87) (the Per Share Price).
2.3
Obligations
Several Not Joint
. The obligations of each Purchaser under this
Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser under this Agreement. Nothing contained herein, and no action taken
by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Purchasers are in any way acting in concert or
as a group with respect to such obligations or the transactions contemplated by
this Agreement. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
2.4
Other
Transactions.
(a)
As disclosed by
the Company to the Purchasers: (i) the
Company previously has offered, issued and sold shares of its Common Stock (the
Other Shares) to one or more other qualified persons and entities as
purchasers (the Other Prior Purchasers), at various times and upon differing
terms, conditions and pricing, in separate private placement transactions in
accordance with Regulation D and exempt from the registration requirements
under the Securities Act, separately and apart from this Offering
(collectively, the Other Placement Offerings); and (ii) after the date
hereof the Company may offer, issue, and sell additional shares of its Common
Stock (the Additional Shares) to one or more qualified persons and entities
as purchasers (the Additional Other Purchasers), at various times and upon
differing terms, conditions and pricing, in one or more separate private
placement transactions in accordance with Regulation D and exempt from the
registration requirements under the Securities Act, separately and apart from
this Offering (collectively, the Additional Other Placement Offerings).
(b) The Company does not intend to, and will not, issue or
sell any other shares of its Common Stock in any transaction that would be
considered part of this Offering or otherwise required to be integrated with
this Offering under the Securities Act to any person or entity other than the
ACM Purchasers hereunder; provided, however that the Company may issue
additional shares of its Common Stock in one or more transactions (i) to
the extent such transactions are consistent with and maintain the exemption
from registration under the Securities Act afforded under Regulation D for this
Offering and (ii) if such additional shares of Common Stock are issued and
sold pursuant to a form of agreement with provisions that are identical to the
provisions of this Agreement with the Purchasers, except (x) as to number
of Shares and other information specifically identifying the other
Purchasers, (y) as to purchase price per share. which will not be less than the purchase
price per share in this Agreement, and (z) as otherwise disclosed in
writing by the Company to the ACM Purchasers hereunder prior to the closing of
any such other transaction constituting part of this Offering or otherwise
integrated with this Offering.
2
3.
DELIVERY OF THE SHARES AT THE CLOSING
3.1
The completion of the purchase and sale of
the Shares, including the Purchaser Shares (the Closing) is occurring
substantially contemporaneously with the execution of this Agreement (the Closing
Date).
3.2
The Company shall authorize its transfer
agent (the Transfer Agent) to issue to the Purchaser as of the Closing one or
more stock certificates (in such denominations as such Purchaser shall request,
the Certificates) registered in the name of the Purchaser or its custodial
designee against payment by the Purchaser of the purchase price for such
Purchaser Shares by wire transfer of immediately available funds.
3.3
The Companys obligation to complete the
issuance and sale of the Shares to the Purchaser at the Closing shall be
subject to the satisfaction of the following conditions, any one or more of
which may be waived by the Company:
(a)
receipt by the
Company of the full amount of the purchase price for the Shares being purchased
under this Agreement by wire transfer of immediately available funds; and
(b)
the
representations and warranties made by the Purchaser in this Agreement shall be
true and correct and the undertakings of the Purchaser herein shall have been
fulfilled in all material respects on or before the Closing.
3.4
The Purchasers obligations to purchase the
Shares from the Company shall be subject to the satisfaction of the following
conditions, which may be waived by the Purchaser:
(a)
the
representations and warranties made by the Company in this Agreement shall be
true and correct as of the date of this Agreement and the undertakings of the
Company herein shall have been fulfilled in all material respects on or before
the Closing; and
(b)
the Company
will be simultaneously issuing and selling to the Purchasers an aggregate
amount of at least 110,000 Shares for an aggregate purchase price of at least
US$8,015,700 (including the Purchasers Purchaser Shares hereunder) in
accordance with the Offering.
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE COMPANY
The Company hereby
represents and warrants to the Purchaser as follows:
4.1
Issuance, Sale
and Delivery of the Shares
(a)
The Shares have
been duly authorized for issuance and sale to the Purchaser pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in this
3
Agreement.
will be validly issued and fully paid and nonassessable and free and
clear of all pledges, liens and encumbrances.
The Certificates evidencing the Shares when delivered, will be in due
and proper form under Delaware law.
(b)
The issuance of
the Shares is not subject to preemptive or other similar rights.
(c)
Subject to the
accuracy of the Purchasers representations and warranties in Section 5 of
this Agreement, the offer, sale and issuance of the Shares in conformity with
the terms of this Agreement constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act, and from the
registration or qualification requirements of the laws of any applicable state
or United States jurisdiction.
4.2
Due Execution
and Performance; Representations of the Company
(a)
Execution
Enforceability
. This
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy or other similar laws relating to, or affecting generally the
enforcement of, creditors rights or remedies, (ii) general principles of
equity or (iii) applicable laws and consideration of public policy
relating to indemnification and contribution provisions.
(b)
Authority
. The execution, delivery and performance of
this Agreement, and the Companys sale, issuance and delivery of the Shares,
have been duly authorized by all necessary corporate action on the part of the
Company.
(c)
Organization
. Each of the Company and its Subsidiaries (as
defined in Rule 405 under the Securities Act) is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization. Each of the Company and
its Subsidiaries has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is registered
or qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be so
qualified would have a material adverse effect upon the financial condition or
business, operations, assets or prospects of the Company and its Subsidiaries,
taken as a whole (a Material Adverse Effect).
(d)
Due Authorization
. The Company has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement,
and has taken all necessary corporate action to enter into and perform this
Agreement, to issue the Shares in accordance with the terms of this Agreement.
(e)
Non-Contravention
. Except as would not reasonably be expected to
have a Material Adverse Effect, the execution and delivery of this Agreement,
the issuance and sale of the Shares under this Agreement, the fulfillment of the
terms of this Agreement and the consummation of the transactions contemplated
hereby will not
4
(A) conflict with or constitute a
violation of, or default (with or without the giving of notice or the passage
of time or both) under, (i) any material bond, debenture, note or other
evidence of indebtedness, or under any material lease, indenture, mortgage,
deed of trust, loan agreement, joint venture or other agreement or instrument
to which the Company or any Subsidiary is a party or by which it or any of its
Subsidiaries or their respective properties are bound, (ii) the charter,
by-laws or other organizational documents of the Company or any Subsidiary, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary or their respective properties, or (B) result in the creation
or imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or any
Subsidiary or an acceleration of indebtedness pursuant to any obligation,
agreement or condition contained in any material bond, debenture, note or any
other evidence of indebtedness or any material indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them is bound or to which any of the
property or assets of the Company or any Subsidiary is subject. No consent, approval, authorization or other
order of, or registration, qualification or filing with, any regulatory body,
administrative agency, self-regulatory organization, stock exchange or market,
or other governmental body in the United States is required for the execution
and delivery of this Agreement and the valid issuance and sale Shares, other
than such as have been made or obtained, and except for any securities filings
required to be made under federal or state securities laws.
(f)
SEC Documents
Filings
.
(i)
Since January 1,
2007, the Company and its Subsidiaries have filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the 1934 Act) (collectively, the SEC Documents). As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time
they were filed with the SEC, contained any untrue statement of a material fact
or omitted to state a 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.
(ii)
All material
agreements to which the Company or any Subsidiary is a party or to which the
property or assets of the Company or any Subsidiary are subject are included as
part of or identified in the SEC Documents, to the extent such agreements are
required to be included or identified pursuant to the rules and
regulations of the SEC.
(iii)
The financial
statements of the Company included in the SEC Documents comply in all material
respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto as in effect at the time of filing
(or, if amended or superseded by a filing prior to the Closing Date, then on
the
5
date of such filing). Such financial statements have been prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (GAAP), except as
may be otherwise specified in such financial statements, the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP or may be condensed or summary statements, and fairly present
in all material respects the consolidated financial position of the Company and
its consolidated subsidiaries as of and for the dates thereof and the results
of operations and cash flows for the periods then ended, subject, in the case
of unaudited statements, to normal, year-end audit adjustments.
(g)
Absence of
Certain Changes
. Except as
disclosed in the SEC Documents filed at least thirty (30) days prior to the
date hereof, since 31 December 2007 there has been no adverse change or
adverse development in the business, properties, assets, operations, financial
condition, prospects, liabilities or results of operations of the Company or
its Subsidiaries which to the knowledge of the Company would reasonably be
expected to have a Material Adverse Effect.
(h)
Capitalization
. As of the date hereof, the authorized capital
stock of the Company consists of (i) 10,000,000 shares of Common Stock, of
which as of the date hereof, 3,472,969 shares are issued, 3,464,069 are
outstanding, 843,431 shares are issuable and reserved for issuance pursuant to
the Companys stock option plans or securities exercisable or exchangeable for,
or convertible into, shares of Common Stock, and (ii) 500,000 shares of
preferred stock, of which as of the date hereof no shares are issued. All of such outstanding shares have been, or
upon issuance will be, validly issued, fully paid and nonassessable. Except as disclosed in the SEC Documents, as
of the date hereof, (i) no shares of the Companys capital stock are
subject to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company, (ii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
Subsidiaries, or contracts, commitments, understandings or arrangements by
which the Company or any of its Subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its Subsidiaries or
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries, (iii) there
are no outstanding securities of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries, (iv) there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance Shares and (v) the Company does not have any stock appreciation
rights or phantom stock plans or agreements or any similar plan or
agreement. The Company disclosed in its
SEC Documents or has furnished to Purchaser true and correct copies of the
Companys Certificate of Incorporation, as amended and as in effect on the date
hereof (the Certificate of Incorporation), and the Companys By-laws, as in
effect on the date hereof (the By-laws).
6
(i)
Listing and
Maintenance Requirements
. The
Company has not, in the twelve months preceding the date hereof, received
notice (written or oral) from any exchange or trading market on which the
Common Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such exchange
or trading market. The Company is, and
has no reason to believe that it will not in the foreseeable future continue to
be, in compliance with all such listing and maintenance requirements.
(j)
Registration
Rights
. Except as previously disclosed
by the Company to the Purchasers with respect to the Other Shares issued to
Other Prior Purchasers in Other Placement Offerings, and the inclusion of such
Other Shares together with the Shares being issued under the Offering in a
Registration Statement (as defined in Section 7.2(a) below): (i) the Company has not entered into any
other agreement and is not currently subject to any agreement that obligates
the Company to file any other registration statement on behalf of any other
person or entity any rights to have any Common Stock or any other securities of
the Company registered with the SEC or registered or qualified for public sale
or trading with any other governmental authority or exchange and (ii) the
execution and performance by the Company of this Agreement, including the
issuance of the Shares and the registration of the Shares for sale to the
public as contemplated by this Agreement, do not give rise to any rights (including
piggy-back registration rights) by any other person or entity to have any
Common Stock or other securities of the Company registered with the SEC or any
other governmental authority. The
Company may enter into one or more other agreements after the date hereof in
connection with the issuance and sale of Additional Shares to Additional Other
Purchasers in Additional Other Placement Offerings that may obligate the
Company to include the Additional Shares together with the Shares in a
Registration Statement; provided, however, that the Company (i) will not
grant any registration rights that are superior or in preference to the Shares
held by the Purchasers, and (ii) will give prior written notice to the
Purchasers hereunder as to the terms and conditions of the Companys obligation
to include any such Additional Shares under the Registration Statement covering
the Shares within a reasonable period of time prior to the closing of the sale
of the Additional Shares.
(k)
Absence of
Litigation
. Except as
disclosed in the SEC Documents, there is no action, suit, claim, or proceeding,
or, to the Companys knowledge, any other inquiry or investigation, before or
by any court, public board, government agency, self-regulatory organization or
body pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary that would, individually or in the
aggregate, have or be reasonably likely to result in a Material Adverse Effect.
(l)
Compliance
.
Except as would not, individually or in the aggregate, have or be
reasonably likely to result in a Material Adverse Effect, (i) neither the
Company nor any Subsidiary is in default under or in violation of (and no event
has occurred that has not been waived that, with notice or lapse of time or
both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received written notice of a claim that it is
in default under or that it is in violation of any indenture, loan or credit
agreement or any other agreement or instrument
7
to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been
waived), (ii) neither the Company nor any Subsidiary is in violation of
any order of any court. arbitrator or
governmental body, or (iii) neither the Company nor any Subsidiary is or
has been in violation of any statute, rule or regulation of any
governmental authority.
(m)
Title to Assets
. The Company and each Subsidiary has good and
marketable title in all personal property owned by them that is material to the
business of the Company and each Subsidiary, in each case free and clear of all
Liens, except for Liens that do not, individually or in the aggregate, have or
be reasonably likely to result in a Material Adverse Effect. Any real property and facilities held under
lease by the Company or any Subsidiary is held by it under valid, subsisting
and enforceable leases of which the Company and each Subsidiary is in material
compliance.
(n)
No General
Solicitation; Placement Agents Fees
. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Shares. The Company shall be responsible for the
payment of any placement agents fees, financial advisory fees, or brokers
commission (other than for persons engaged by any Investor or its investment
advisor) relating to or arising out of the issuance of the Securities pursuant
to this Agreement. The Company has not
engaged any placement agent or other agent in connection with the sale of the
Shares in the Offering.
(o)
Private
Placement
. Neither the
Company or its Affiliates, nor any other person or entity authorized by the
Company to act on its behalf, has engaged in a general solicitation or general
advertising (within the meaning of Regulation D of the Securities Act) of
investors with respect to offers or sales of the Shares in the Offering. The Company has offered the Shares for sale
only to the Purchasers and certain other accredited investors within the
meaning of Rule 501 of Regulation D under the Securities Act. Neither the Company, any of its Affiliates
nor any Person acting on the Companys behalf has, directly or indirectly, at
any time within the past six months, made any offer or sale of any security or
solicitation of any offer to buy any security under circumstances that would (i) eliminate
the availability of the exemption from registration under Regulation D under
the Securities Act in connection with the offer and sale by the Company of the
Shares in the Offering as contemplated hereby or (ii) cause the Offering
of the Shares to be integrated with prior offerings of securities by the
Company for purposes of any applicable law, regulation or stockholder approval
provisions, including, without limitation, under the rules and regulations
of any exchange or trading market, in a manner that would disqualify this
Offering from the exemption from registration under the Securities Act afforded
by Regulation D. Assuming the accuracy
of the representations and warranties of the Purchasers, no registration under
the Securities Act is required for the offer and sale of the Shares under the
Offering by the Company to the Purchasers as contemplated hereby.
(p)
No Investment Company Status
. The Company and each of its Subsidiaries is
not now, and after the sale of the Shares in the Offering and the
8
application of the net proceeds from the sale
of the Shares, will not be, an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(q)
Exchange & Listing Compliance
. The sale and issuance of the Shares does not
contravene the rules and regulations of any exchange or trading market on
which the Common Stock is listed or quoted.
(r)
Internal Accounting Controls
. Based solely upon the Companys internal
review and assessment, and without separate review by independent accountants,
the Company reasonably believes that the Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with managements general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with managements general or specific
authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(s)
Sarbanes-Oxley Act
.
Based solely upon the Companys internal review and assessment, and
without separate review by independent accountants or legal counsel, the
Company reasonably believes that it is in compliance in all material respects
with applicable requirements of the Sarbanes-Oxley Act of 2002 and applicable rules and
regulations promulgated by the SEC thereunder, except where such noncompliance
would not have, individually or in the aggregate, a Material Adverse Effect.
(t)
Patents and Trademarks
. The Company and each Subsidiary owns, or
possesses adequate rights or licenses to use, all trademarks, trade names,
service marks, service mark registrations, service names, patents, patent rights,
copyrights. inventions, licenses,
approvals, governmental authorizations, trade secrets and other intellectual
property rights (Intellectual Property Rights) necessary to conduct their
respective businesses as now conducted.
None of the Companys or any Subsidiarys Intellectual Property Rights
have expired or terminated, or are expected to expire or terminate within three
years from the date of this Agreement.
The Company does not have any knowledge of any infringement by the
Company or any Subsidiary of Intellectual Property Rights of others. Except as disclosed in the SEC Reports, there
is no claim, action or proceeding being made or brought, or to the knowledge of
the Company, being threatened, against the Company or any Subsidiary regarding
its Intellectual Property Rights.
(u)
Registration Statement Matters
. The Company meets the eligibility
requirements for use of a registration statement on Form S-1 for the
resale of the Shares by the Purchasers.
The Company is not aware of any facts or circumstances that would
prohibit or delay the preparation and filing of a registration statement with
respect to the Shares.
9
5.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE PURCHASER; COVENANTS OF THE COMPANY
The Purchaser represents,
warrants and covenants to the Company as follows:
5.1
Securities Law
Representations, Warranties and Covenants
(a)
The Purchaser
is knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an
investment decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company, and has requested, received,
reviewed and considered all information it deems relevant in making an informed
decision to purchase the Shares. The
Purchaser is not relying, in making its decision to purchase the Shares, on any
oral representations or statements made by the Companys personnel, and is
relying solely on the information contained in the Companys SEC
Documents. The Purchaser has carefully
considered the potential risks relating to the Company and a purchase of the
Shares, including the risks identified under -Risk Factors in the SEC
Documents, and fully understands that the Shares are speculative and include a
high degree of risk of loss. The
Purchaser acknowledges that no assurances are given by the Company that any
pending plans will be completed.
(b)
The Purchaser
is acquiring the Shares in the ordinary course of its business and for its own
account. and has no present intention of
distributing any of the Shares nor any arrangement or understanding with any
other persons regarding the distribution of such Shares, or as would otherwise
not be in violation of the Securities Act or any applicable state securities
laws.
(c)
The Purchaser
has completed or caused to be completed and delivered to the Company the Stock
Certificate Questionnaire and the Registration Statement Questionnaire attached
to this Agreement as Appendices I and II, for use in preparation of the
Certificates, any necessary filings required by applicable state securities
laws, and the Registration Statement (as defined in Section 7.2(a) below),
and the answers to the Questionnaires are true and correct and will be true and
correct as of the effective date of the Registration Statement.
(d)
The Purchaser
understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Shares or the fairness or suitability of the investment in
the Shares nor have such authorities passed upon or endorsed the merits of the
offering of the Shares.
(e)
The Purchaser
is an accredited investor within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act.
The Purchaser is able to bear the economic risk of an investment in the
Shares.
(f)
The Purchaser
understands that the offer and sale of the Shares to the Purchaser have not
been and are not being registered under the Securities Act or any state
securities laws, and the Shares may not be offered for sale, sold, assigned,
pledged,
10
transferred or otherwise disposed of unless
and until (i) subsequently registered under a shelf registration being
filed by the company, (ii) the Purchaser shall have delivered to the
Company an opinion of counsel, reasonably acceptable to the Company in a
generally acceptable form, to the effect that such Shares to be offered for
sale, sold, assigned, pledged, transferred or otherwise disposed of may be so
offered for sale. sold, assigned,
pledged, transferred or otherwise disposed of pursuant to an exemption from
such registration, or (iii) the Purchaser provides the Company with
written reasonable assurance that such Shares can be or are being offered for
sale, sold, assigned, pledged, transferred or otherwise disposed of pursuant
to, and in compliance with, Rule 144 under the Securities Act; provided,
further, that in no event may the Shares be offered for sale, sold, assigned,
pledged, transferred or otherwise disposed of prior to 60 days after the
Closing.
(g)
The Purchaser
understands that the Certificates representing the Shares purchased by it
hereunder, until the occurrence of an event described in Section 5.1(1),
shall bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of such Certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED,
ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, (B) AN OPINION OF COUNSEL, REASONABLY
ACCEPTABLE TO THE COMPANY, IN A GENERALLY ACCEPTED FORM, THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (C) WRITTEN
REASONABLE ASSURANCE THAT IT WILL BE DONE PURSUANT TO, AND IN COMPLIANCE WITH,
RULE 144 UNDER SAID ACT.
(h)
The Company
agrees to cause such legend and stop transfer order to be removed from the
Certificates representing the Shares upon the occurrence of an event described
in Section 5.1(f). Following the
effective date of the Registration Statement which includes the Shares, or at
such earlier time as a legend is no longer required for the Shares, the
Company, promptly following the delivery by a Purchaser to the Company or the
Companys transfer agent of a legended certificate representing such
securities, will deliver or cause to be delivered to such Purchaser a
certificate representing such securities that is free from all restrictive
legends. If requested by a Purchaser,
certificates for securities subject to legend removal hereunder shall be
transmitted by the transfer agent of the Company to the Purchasers by crediting
the account of the Purchasers prime broker with the Depository Trust Company (DTC).
11
(i) The Purchaser will comply, at its own expense, with all
applicable laws and regulations in any foreign jurisdiction in which it purchases,
offers, sells or delivers any of the Shares.
5.2
Resales of
Shares
(a)
The Company
shall notify the Purchaser if it determines, in good faith following
consultation with its Board of Directors or a committee thereof. that an event has happened as a result of
which the Registration Statement or the Prospectus (as defined in Section 7.4.1
below) includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Upon receipt of such notice, the Purchaser
will suspend its use of the Prospectus until such time as an amendment or
supplement to the Registration Statement or the Prospectus has been filed by
the Company and any such amendment to the Registration Statement is declared
effective by the Commission, or until such time as the Company has filed an
appropriate report with the Commission pursuant to the Exchange Act, in each
case to correct such misstatement or omission.
The Company shall use its best efforts to prepare and file with the
Commission any such amendment, supplement or report, as the case may be, as
soon as practicable after delivering such notice to the Purchaser.
(b)
In addition to
the foregoing provisions of Section 5.2(b), the Company may, upon written
notice to the Purchaser, suspend the use of the Prospectus for up to sixty (60)
days, no more than thirty (30) days of which may be consecutive, in any 365-day
period (less the number of days in such 365-day period that the Purchaser must
suspend its use of the Prospectus pursuant to Section 5.2(a)) based on the
reasonable determination of the Companys Board of Directors or a committee
thereof that there is a significant business purpose for such determination,
such as pending corporate developments, public filings with the SEC or similar
events. Notwithstanding anything else to
the contrary in Section 5.2(a), the Company shall in no event be required
to disclose the business purpose for which it has suspended the use of the
Prospectus pursuant to this Section 5.2(b) if the Company determines
in its good faith judgment that the business purpose should remain
confidential.
(c)
The Company
shall notify the Purchaser (i) of any request by the Commission for an
amendment or any supplement to such Registration Statement or any related
Prospectus, or any other information request by any other governmental agency
directly relating to the offering of the Shares, and (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of any
related Prospectus or the initiation or threat of any proceeding for that
purpose.
(d) The Purchaser further covenants to notify the Company
promptly of the sale of any of its Shares.
12
5.3
Due Execution, Delivery and
Performance
(a)
This Agreement has been duly
executed and delivered by the Purchaser and constitutes a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy or other similar laws relating to, or affecting generally the
enforcement of, creditors rights or remedies, (ii) general principles of
equity or (iii) applicable laws and consideration of public policy
relating to indemnification and contribution provisions.
(b)
The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated in this Agreement and the fulfillment of the terms of this
Agreement have been duly authorized by all necessary corporate, agency or other
action and will not conflict with or violate the provisions of the
organizational documents of the Purchaser, including, without limitation, its
charter, bylaws, partnership agreement or operating agreement, as applicable,
or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order, except as would not, individually or in the aggregate, have
a material adverse effect on the ability of the Purchaser to consummate the
transaction contemplated hereunder.
6.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS
Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Purchasers in this
Agreement shall survive the execution of this Agreement, the delivery to the
Purchasers of the Shares being purchased and the payment therefor.
7.
FORM D FILING; REGISTRATION; COMPLIANCE
WITH THE SECURITIES ACT; COVENANTS
7.1
Regulation D
. The
Company shall: file in a timely manner a
Form D relating to the sale of the Shares under this Agreement, pursuant
to Regulation D under the Securities Act;
7.2
Registration of
Shares
The Company shall:
(a)
as soon as
practicable after the Closing Date, but in no event later than the 45th day
following the Closing Date, prepare and file with the Commission a Registration
Statement on Form S-3 (or, if the Company is ineligible to use Form S-3,
then on such other form as is available for such registration) registering
under the Securities Act the sale of the Shares by the Purchasers from time to
time on the facilities of any national securities exchange on which the Common
Stock is traded or in privately negotiated transactions (the Registration
Statement);
13
(b)
use its
reasonable best efforts to cause the Commission to notify the Company of the
Commissions willingness to declare the Registration Statement effective on or
before 90 days after the Closing Date;
(c)
cause the
Shares to be duly listed for trading on the Nasdaq Global Market concurrently
with the effectiveness of the Registration Statement;
(d)
If for any
reason, the SEC does not permit all Shares to be included in the Registration
Statement such that the Registration Statement may be used for resales in a
manner that permits the continuous resale at the market by the Purchasers as
selling stockholders participating therein without being named therein as underwriters,
then the Company shall prepare and file with the SEC one or more separate
Registration Statements that meets such criteria with respect to any such
Shares not included in the previous Registration Statement.
(i)
The Company
will then use its best efforts at the first opportunity that is permitted by
the SEC, but in no event later than the later of sixty (60) calendar days from
the date substantially all of the Securities registered under the Registration
Statement have been sold by the Purchasers or six (6) months from the date
the Registration Statement was declared effective, to register for resale the
Shares that have been excluded from being registered (provided such
Registration Statement meets the criteria set forth above as to selling
stockholders not being deemed to be underwriters). The Company shall use all reasonable best
efforts to cause any such Registration Statement to be declared effective
within seventy-five (75) days following the filing thereof.
(ii)
In the event
the SEC does not permit a Registration Statement to include all of the Shares
for the reasons set forth in the this paragraph, then the Company shall reduce
the number of Shares to be included in such Registration Statement by all
Purchasers until such time as the SEC shall so permit such Registration
Statement to become effective and be used for resales in a manner that permits
the continuous resale at the market by the Purchasers participating therein
without being named therein as underwriters.
In making such reduction, the Company shall reduce the number of Shares
to be included by all Purchasers on a pro rata basis based upon the number of
Shares otherwise required to be included for each Purchaser.
(e)
notify
Purchaser promptly upon the Registration Statement, and any post-effective
amendment thereto, being declared effective by the Commission;
(f)
prepare and
file with the Commission such amendments and supplements to the Registration
Statement and the Prospectus (as defined in Section 7.4.1 below) and take
such other action, if any, as may be necessary to keep the Registration
Statement effective until the earlier of (i) the date on which all of the
Shares may be resold by the Purchasers without registration and without regard
to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect (taking into account
the status of any Purchaser that may be deemed to be an affiliate of the
Company for purposes of Rule 144), (ii) all of the Shares have been
sold
14
pursuant to the Registration Statement or Rule 144
under the Securities Act or any other rule of similar effect, or (iii) the
second anniversary of the Closing Date.
(g)
promptly
furnish to the Purchaser with respect to the Shares registered under the
Registration Statement such reasonable number of copies of the Prospectus,
including any supplements to or amendments of the Prospectus, in order to
facilitate the public sale or other disposition of all or any of the Shares by
the Purchasers;
(h)
during the
period when copies of the Prospectus are required to be delivered under the
Securities Act or the Exchange Act, file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations promulgated there under:
(i)
file documents
required of the Company for customary Blue Sky clearance in all states
requiring Blue Sky clearance; provided, however, that the Company shall not be
required to qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so consented; and
(j)
promptly file
with the SEC a request for acceleration in accordance with Rule 461
promulgated under the Securities Act after the date that the Company is
notified (orally or in writing, whichever is earlier) by the SEC that a
Registration Statement will not be reviewed, or will not be subject to
further review, such that the Registration Statement shall be declared
effective no later than 5 trading days after such notification;
(k)
promptly notify
the Purchasers in writing of the existence of any fact or the happening of any
event, during the Registration Statement period (but not as to the substance of
any such fact or event), that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading; provided,
however, that no notice by the Company shall be required pursuant to this
subsection (k) in the event that the Company contemporaneously files a
prospectus supplement or amendment to update the Prospectus, which, in either
case, contains the requisite information with respect to such material event
that results in such Registration Statement no longer containing any such
untrue or misleading statements;
(l)
furnish to each
Purchaser upon written request, from the date of this Agreement until the end
of the Registration Period, one copy of its periodic reports filed with the SEC
pursuant to the Exchange Act and the rules and regulations promulgated
thereunder; and
(m)
pay and bear
all expenses in connection with the procedures described in of this Section 7.2
and the registration of the Shares pursuant to the Registration Statement(s) other
than fees and expenses, if any, of legal counsel or other
15
advisers to the Purchasers or underwriting
discounts, brokerage fees and commissions incurred by the Purchasers, if any;
provided, however, that the Company shall pay all reasonable fees and
disbursements of only one counsel to the Purchasers.
7.3
Transfer of
Shares After Registration
. The Purchaser agrees that it will not effect
any disposition of the Shares or its right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act, except as
contemplated in the Registration Statement referred to in Section 7.1 or
as otherwise permitted by law, and that it will promptly notify the Company of
any changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution.
7.4
Indemnification
. For
the purpose of this Section 7.4, the term Registration Statement shall
include any preliminary or final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section 7.2.
7.4.1
Indemnification by the Company
. Subject to Section 7.4.5, the Company
agrees to indemnify and hold harmless the Purchaser, the Purchasers officers,
directors, trustees, partners, members, employees and agents, and each person,
if any, who controls or is under common control with the Purchaser within the
meaning of the Securities Act (each, a Purchaser Indemnitee), against any
losses, claims, damages, liabilities or expenses, joint or several, to which
such Purchaser Indemnitees may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, including financial statements and
schedules, and all other documents filed as a part thereof, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434,
under the Securities Act, or in the prospectus related thereto, in the form
first filed with the Commission pursuant to Rule 424(b) under the
Securities Act or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required (the Prospectus),
or any amendment or supplement to the Registration Statement or Prospectus, or
arise out of or are based upon the omission or alleged omission to state in any
of them a material fact required to be stated therein or necessary to make the
statements in any of them, in light of the circumstances under which they were
made, not misleading, and will reimburse the Purchaser Indemnitee for
reasonable legal and other expenses as such expenses are incurred by such
Purchaser Indemnitee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in
any such case to a Purchaser Indemnitee to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon (i) an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or
16
on behalf of a Purchaser expressly for use in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or (ii) the failure of the applicable Purchaser to comply with the
covenants and agreements contained in Section 5.2 or 7.2 of this Agreement
regarding the resale of the Shares, or (iii) the inaccuracy of any
representations and warranties made by the Purchaser in this Agreement or (iv) any
untrue statement or omission of a material fact required to make such statement
not misleading in any Prospectus that is corrected in any subsequent Prospectus
or supplement thereto that was delivered to the applicable Purchaser a
reasonable amount of time before the pertinent sale or sales by such Purchaser
or (v) a direct claim against the Company by such Purchaser Indemnitee if
such Purchaser Indemnitee is a person that is under common control with any
Purchaser (as opposed to a third-party claim against such Purchaser
Indemnitee).
7.4.2
Indemnification by the Purchaser
. Subject to Section 7.3.5, the Purchaser
will severally and not jointly indemnify and hold harmless the Company, each of
its directors, each of its officers who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses to
which the Company, each of its directors, each of its officers who signed the
Registration Statement or controlling person may become subject, under the
Securities Act, the Exchange Act, or any other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Purchaser), insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof as contemplated below) arise out of or are based
upon (i) any failure on the part of such Purchaser to comply with the
covenants and agreements contained in Section 5.2 or 7.2 of this Agreement
regarding the resale of the Shares or (ii) the inaccuracy of any
representations and warranties made by such Purchaser in this Agreement or (iii) any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
writ-ten information furnished to the Company by or on behalf of such Purchaser
expressly for use therein and such Purchaser will reimburse the Company, each
of its directors, each of its officers who signed the Registration Statement
and each controlling person for reasonable legal and other expenses as such
expenses are incurred by the Company, each of its directors, each of its
officers who signed the Registration Statement and each controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Purchaser shall not be liable for any such untrue or alleged untrue
statement or omission or alleged omission of which the Purchaser has delivered
to the Company in writing a correction of such untrue statement or omission of
a material fact a reasonable amount of time before the occurrence of the
transaction from or upon which such loss, claim, damage, liability or expense arose
or was based.
17
7.4.3
Indemnification
Procedure
.
(a)
Ppromptly after
receipt by an indemnified party under this Section 7.4 of notice of the
threat or commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this Section 7.4,
promptly notify the indemnifying party in writing of the claim; but the
omission so to notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party for contribution or otherwise under
the indemnity agreement contained in this Section 7.4 to the extent it is
not prejudiced as a result of such failure.
(b)
In case any
such action is brought against any indemnified part) and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified party of counsel,
which approval shall not be unreasonably withheld, the indemnifying party will
not be liable to such indemnified party under this Section 7.4 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless:
(i)
the indemnified
party shall have employed such counsel in connection with the assumption of
legal defenses in accordance with the proviso to the preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of inure than one separate counsel, approved by such indemnifying
party representing all of the indemnified parties who are parties to such
action), or
(ii)
the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of action, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
7.4.4
Contribution
. If the
indemnification provided for in this Section 7.4 is required by clause (i)
of Section 7.4.1 or clause (iii) of Section 7.4.2 but is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party under this Section 7.4 in respect to any losses, claims,
damages, liabilities or
18
expenses referred to in this Agreement, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to in this Agreement in such proportion as is
appropriate to reflect the relative fault of the Company and the Purchaser in
connection with the statements or omissions, the inaccuracies in the
representations and warranties in this Agreement or the breach of covenants and
agreements in this Agreement that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company and the
each Purchaser shall be determined by reference to, among other things, whether
the untrue or alleged statement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate
representation or warranty relates to information supplied by the Company or by
such Purchaser and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7.4.3, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim. The provisions set forth in Section 7.4.3
with respect to the notice of the threat or commencement of any threat or
action shall apply if a claim for contribution is to be made under this Section 7.4.4;
provided, however, that no additional notice shall be required with respect to
any threat or action for which notice has been given under Section 7.4 for
purposes of indemnification. The Company
and the Purchaser agree that it would not be just and equitable if contribution
pursuant to this Section 7.4 were determined solely by pro rata allocation
(even if the Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.4, no Purchaser
shall be required to contribute any amount in excess of the amount by which the
total proceeds received by it from the sale of the Shares exceeds the amount of
any damages that such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Each Purchasers obligations to contribute pursuant to this Section 7.4
are several and not joint.
7.4.5
Limits on Liability
. In
no event shall the aggregate liability hereunder of the Purchaser exceed: (x) the purchase price paid by the
Purchaser for the Shares it bought hereunder with respect to the matters
described in clauses (i) and (ii) of Section 7.4.2; and (y) the
net proceeds to such Purchaser as a result of the sale of Shares pursuant to a
Registration Statement, Prospectus or any amendment or supplement thereto with
respect to the matters described in clause (iii) of Section 7.4.2.
7.5
Rule 144
Information
. Until the earlier of (i) the date on
which all the Shares may be resold by the Purchasers without registration and
without regard to any volume limitations by reason of Rule 144(k) under
the Securities Act or any other rule of similar effect (taking into
account the status of any Purchaser that may be deemed to be an affiliate of
the Company for purposes of Rule 144) or (ii) all of the Shares have
been
19
sold pursuant to the Registration
Statement or Rule 144 under the Securities Act or any other rule of
similar effect, the Company shall file all reports required to be filed by it
under the Securities Act. the rules and
regulations promulgated thereunder and the Exchange Act so long as it is
subject to such requirements and shall take such further reasonable action to
the extent required to enable the Purchaser to sell the Shares pursuant to Rule 144
under the Securities Act (as such rule may be amended from time to time).
8.
NOTICES
All notices, requests,
consents and other communications under this Agreement shall be in writing,
shall be mailed by first-class registered or certified airmail, confirmed
facsimile or nationally recognized overnight express courier postage prepaid,
and shall be delivered as addressed as follows:
(a)
if to the
Company, to:
Ebix, Inc.
Five Concourse Parkway, Suite 3200
Atlanta, GA 30328
Attention: Robin Raina
Telephone: 678-281-2031
Facsimile: 678-281-2019
or to such other person at
such other place as the Company shall designate to the Purchaser in writing;
and
(b)
if to the
Purchaser, at its address or facsimile number as set forth on the signature page to
this Agreement, or at such other address or addresses or facsimile number or
numbers as may have been furnished to the Company in writing.
Such notice shall be deemed
effectively given upon confirmation of receipt by facsimile, one business day
after deposit with such overnight courier or three days after deposit of such
registered or certified airmail with the U.S. Postal Service, as applicable.
9.
MODIFICATION; AMENDMENT; TERMINATION.
This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by the
Company and the Purchaser.
10.
ENTIRE AGREEMENT.
This Agreement supersedes
all other prior oral or written agreements between the parties with respect to
the matters discussed herein and contains the entire understanding with respect
to the matters covered herein.
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11.
HEADINGS.
The headings of the various
sections of this Agreement have been inserted for convenience of reference only
and shall not be deemed to be part of this Agreement.
12.
SEVERABILITY.
If any provision contained
in this Agreement should be held to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained in this Agreement shall not in any way be affected or impaired
thereby.
13.
GOVERNING LAW; JURISDICTION.
This Agreement shall be
governed by and construed in accordance with the laws of the state of Delaware
and the federal law of the United States of America, without giving effect to
any choice of law or conflict of law provision or rule that would cause
the application of the laws of any other jurisdiction.
14.
COUNTERPARTS.
This Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been
signed by each party to this Agreement and delivered to the other parties.
15.
SUCCESSORS AND ASSIGNS.
This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns: provided that
the Purchaser may not assign its rights or obligations hereunder without the
consent of the Company.
16.
NO 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.
17.
GENERAL MATTERS.
(a)
Material
Non-Public Information
. The
Company and each Purchaser acknowledge and confirm their mutual understandings
as follows:
(i)
The Company has not provided to any Purchaser any
material non-public information other than information related to the
transactions contemplated by this Agreement, all of which information related
to the transactions contemplated hereby shall be disclosed by the Company in a
timely manner.
21
(ii)
To the Companys knowledge, except for the
transactions contemplated by this Agreement, no event or circumstance has occurred
or information exists with respect to the Company or any Subsidiary or their
businesses, properties, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
(iii)
No Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than
those set forth expressly in this Agreement.
(iv)
The Company and each Purchaser shall be relying on
the foregoing representations in effecting transactions in securities of the
Company as contemplated under this Agreement.
(b)
Public Disclosure
. Within a timely manner and in compliance with
applicable SEC rules and exchange requirements, the Company shall file a
Current Report on Form 8-K describing the terms of the transactions
contemplated by this Agreement in the form required by the Exchange Act and
attaching this Agreement as an exhibit to such filing (the 8-K Filing), but
not including the names of the Purchasers or the individual amounts of Shares
purchased hereby without the Purchasers consent.
(c)
Confidentiality
. Except for such disclosure as the Company is
advised by counsel is required to be included in documents filed with the SEC
or otherwise required by law, the Company shall not use the name of, or make
reference to, any Purchaser or any of its Affiliates in any press release or in
any public manner (including any reports or filings made by the Company under
the Exchange Act) without such Purchasers prior written consent, which consent
shall not be unreasonably withheld.
Except as required by law, the Purchaser shall not, without the prior
written consent of the Company make any public announcement or issue any press
release that includes the name of the Company with respect to the transactions
contemplated by this Agreement.
(d)
Other Public Disclosure
. If a Purchaser has, or believes it has,
received any material, nonpublic information regarding the Company or any of
its Subsidiaries, it shall provide the Company with written notice thereof and
the Company shall within five (5) business days thereafter, make public
disclosure of such material, nonpublic information if permitted under
applicable law or without breach or violation of any agreement, contract or
other obligation of the Company unless the Board of Directors of the Company
shall determine that such disclosure would reasonably be expected to result in
a material and adverse effect on the Company or its business, prospects,
finances or properties.
(e)
Parity of Purchasers
. The Company has not and shall not enter into
any other agreement or arrangements with any of the Purchasers that is not also
disclosed to and made available to the Purchaser hereunder, on a like-kind
basis. No consideration shall be offered
or paid to any person to amend or consent to a waiver or
22
modification of any provision of any of this
Agreement or the Shares unless the same consideration is also offered to all of
the parties to such agreements. For
clarification purposes, this provision constitutes a separate right granted to
each Purchaser by the Company and negotiated separately by each Purchaser, and
is intended for the Company to treat the Purchasers as a class and shall not in
any way be construed as the Purchasers acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or otherwise.
(f)
Investor Status
. The Company acknowledges and agrees that each
of the Purchasers is acting solely in the capacity of an arms length purchaser
with respect to the Agreement and the transactions contemplated hereby and
thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to this Agreement and the
transactions contemplated hereby and any information or advice given by any
Purchaser or any of their respective representatives or agents in connection
with the Offering, the Agreement and the transactions contemplated hereby and
thereby is merely incidental to the Purchasers purchase of the Shares. The Company further represents to each
Purchaser that the Companys decision to enter into this Agreement has been
based solely on the independent evaluation of the transactions contemplated
hereby by the Company and its directors, officers and independent advisors and
representatives.
[Signature pages follow]
23
IN WITNESS
WHEREOF,
the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
EBIX,
INC.
|
|
|
By:
|
/S/
|
|
Robin
Raina
|
President &
Chief Executive Officer
|
|
|
PURCHASER
|
|
Ashford
Capital Management, Inc. w/ discretion f/b/o
|
|
|
By:
|
/S/
|
|
Name:
|
Theodore
H. Ashford
|
Title:
|
Chairman &
CEO, Ashford Capital Management, Inc.
|
Address:
|
One
Walkers Mill Road
|
|
Wilmington,
DE 19807
|
|
Facsimile:
302-655-4641
|
|
|
|
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