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Exhibit 10.1
EXCHANGE AGENT AGREEMENT
November 19, 1996
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the merger ("Merger") of SPC Acquisition Corporation,
a Delaware corporation ("Sub") and wholly-owned subsidiary of Allegro New Media,
Inc., a Delaware corporation ("Allegro"), with and into Software Publishing
Corporation, a Delaware corporation ("SPC"), pursuant to the Agreement and Plan
of Reorganization dated as of October 1, 1996 (the "Merger Agreement"), a copy
of which is attached hereto, at the effective time of the Merger ("Effective
Time"), each issued and outstanding share of common stock, par value $.001 per
share, of SPC ("SPC Common Stock") will be converted into the right to receive
0.26805 shares of common stock, par value $.001 per share, of Allegro ("Allegro
Common Stock"), together with cash (without interest) in lieu of fractional
shares at a rate for each share of Allegro Common Stock based on a formula
outlined in the Merger Agreement. You will be notified of the Effective Time and
the purchase price for fractional shares by no later than the first business day
following the Effective Time.
Allegro and SPC have delivered or will deliver to you (i) a copy of the
letter of transmittal ("Letter of Transmittal") to be sent to holders of record
of shares of SPC Common Stock ("SPC Stockholders"), (ii) copies of all other
documents or materials, if any, to be forwarded to SPC Stockholders, (iii) a
certified copy of resolutions adopted by the Board of Directors of SPC
authorizing the Merger, the appointment of an exchange agent and execution of an
exchange agent agreement, (iv) upon receipt by SPC from SPC's transfer agent, a
list showing the names and addresses of all SPC Stockholders as of the Effective
Time and the number of shares of SPC Common Stock held by each SPC Stockholder
immediately prior to the Effective Time, (v) upon receipt by SPC from SPC's
transfer agent, a list of certificates (including certificate numbers)
representing shares of SPC Common stock that have been or are, as such date,
lost, stolen, destroyed or replaced or restricted as to transfer (noting the
text of the restrictive legends applicable thereto) or with respect to which a
stop transfer order has been noted (such lists being herein referred to as the
"Lists") and (vi) a copy of the Merger Agreement.
As soon as practicable after (and in any event no later than the third
business day after) the Effective Time, the Exchange Agent (as defined below)
will mail to each SPC Stockholder (a) a notice advising such holder of the
effectiveness of the Merger and the applicable terms of
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the exchange effected thereby, (b) a Letter of Transmittal with instructions,
(c) a self-addressed return envelope, (d) tax certification guidelines, and (e)
any other material deemed appropriate by SPC and Allegro.
This will confirm the appointment by Allegro of American Stock Transfer
& Trust Company as the exchange agent ("Exchange Agent") and, in that capacity,
the authorization of the Exchange Agent to act as agent for the SPC Stockholders
for the purpose of receiving the Allegro Common Stock and cash in lieu of
fractional shares to be issued in exchange for shares of SPC Common Stock and
transmitting the same to the SPC Stockholders upon satisfaction of the
conditions set forth herein. Your duties, liabilities and rights as Exchange
Agent are as set forth herein and will be governed, in addition, by the
applicable terms of the Merger Agreement.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following:
1. Examination of Letters of Transmittal. You are to examine
Letters of Transmittal, certificates representing shares of SPC Common Stock and
other documents delivered or mailed to you by or for SPC Stockholders to
ascertain, to the extent reasonably determined by you, whether:
(a) the Letters of Transmittal appear to be duly executed
and properly completed in accordance with the instructions set forth therein;
(b) the certificates for shares of SPC Common Stock appear
to be properly surrendered and, if applicable, endorsed for transfer;
(c) the other documents, if any, used in the exchange
appear to be duly executed and properly completed and in the proper form; and
(d) the certificates for shares of SPC Common Stock are
free of restrictions on transfer or stop orders except as set forth on the
Lists.
In the event you ascertain that any Letter of Transmittal or
other document has been improperly completed or executed, that any of the
certificates for shares of SPC Common Stock are not in proper form or some other
irregularity exists, you shall attempt to resolve promptly the irregularity and
may use your best efforts to contact the appropriate SPC Stockholder by whatever
means of communication you deem most expedient to correct the irregularity and,
upon consultation with SPC, shall endeavor to take such other reasonable action
as may be necessary to cause such irregularity to be corrected, and the
determination of any questions referred to SPC or its counsel by you as to the
validity, form and eligibility, as well as the proper completion or execution of
the Letters of Transmittal and other documents, shall be final
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and binding, and you may rely thereon as provided in Section 12(a) hereof.
2. Exchange of Shares. (a) As soon as practicable after the Effective
Time and after surrender to you of all certificates for shares of SPC Common
Stock registered to a particular record holder or holders (and only after
surrender of all such certificates) and the return of a properly completed and
signed Letter of Transmittal relating thereto, you shall cause to be issued and
distributed to the holder(s) in whose name such certificates were registered (or
such other person as shall have been specified pursuant to the terms hereof) (i)
the whole number of shares of Allegro Common Stock issuable pursuant to the
Merger Agreement, registered in the name of such holder(s) and (ii) a check in
lieu of any fractional shares ("Cash Amount"). Allegro shall provide you the
amount of cash sufficient to make all payments for fractional shares calculated.
(b) Until so surrendered, each certificate which immediately prior
to the Effective Time represented outstanding shares of SPC Common Stock shall,
at and after the Effective Time, entitle the holder(s) thereof only to receive,
upon surrender of it and all other identically registered certificates, the
certificates representing shares of Allegro Common Stock and the Cash Amount
contemplated by the preceding paragraph.
(c) No dividends or other distributions otherwise payable after
the Effective Time to a holder of record of certificates representing shares of
SPC Common Stock shall be paid to such holder unless and until such holder shall
have surrendered all certificates representing shares of SPC Common Stock
registered to such holder. The Exchange Agent shall place and hold any other
distributions not paid to such holders pursuant to the requirements of the
foregoing sentence and shall (subject to applicable escheat laws) pay such
distributions to each holder of record entitled thereto after such holder shall
have surrendered all certificates for shares of SPC Common Stock registered to
such holder. No interest shall be payable to such holders on distributions held
by the Exchange Agent.
(d) If any certificates representing shares of Allegro Common
Stock are to be issued in, or a Cash Amount is to be paid to, a name other than
that in which the certificate for shares of SPC Common Stock surrendered in
exchange therefore is registered, it shall be a condition of the issuance or
payment thereof that the certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange shall pay to you any transfer or other taxes required, or shall
establish to your satisfaction that such tax has been paid or is not payable.
(e) Certificates to be delivered by mail shall be forwarded by
first class mail under the Exchange Agent's blanket surety bond, which SPC and
Allegro understand protects Allegro, SPC and the Exchange Agent from loss or
liability arising by virtue of the non-receipt or non-delivery of such
certificates. It is understood that the market value of the securities in any
one shipment sent by first class mail under this procedure will not be in excess
of $250,000. In the
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event the market value shall exceed $250,000, the envelope shall be mailed by
registered mail and shall be insured separately for the replacement value of its
contents at the time of mailing.
3. Lost Stolen or Destroyed Certificates. In the event that any SPC
Stockholder claims that any certificates representing shares of SPC Common Stock
is lost, stolen or destroyed, the Exchange Agent shall mail to such Stockholder
an affidavit of loss and an indemnity bond. The Exchange Agent shall make the
distribution of certificates representing shares of Allegro Common Stock only
upon receipt of a properly completed affidavit of loss and indemnity bond.
4. Reports. The Exchange Agent shall furnish, until otherwise notified,
monthly, or more frequently if requested by SPC or Allegro, reports to SPC and
Allegro showing:
(a) number of shares surrendered and number of full shares issued in
exchange therefor (previous, herewith and total);
(b) fractional shares adjusted (previous, herewith and total);
(c) cash paid in lieu of fractional shares (previous, herewith and
total).
5. IRS Filings. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing tax
identification numbers, and shall file any appropriate reports with the Internal
Revenue Service ("IRS") (e.g., 1099, 1099B, etc.) You may be required to deduct
31% from cash paid in lieu of fractional shares to holders who have not supplied
their correct taxpayer identification number or required certification. Such
funds will be turned over to the IRS by you.
6. Restricted Certificates of SPC Common Stock. As set forth above,
SPC's transfer agent will deliver to you the Lists which will set forth, among
other things, certificates representing shares of SPC Common Stock that have
been or are, as of the date of such Lists, restricted as to transfer (noting the
text of the restrictive legends applicable thereto). SPC understands that the
Lists will also set forth a legend or legends to be placed on certificates
representing Allegro Common Stock to be issued in exchange for such
certificates, if any, and you shall place such legends on such certificates as
directed in the Lists. In the event a certificate bearing a restrictive legend
that is not included in the Lists is presented, you are instructed to delay
issuance of a certificate representing shares of Allegro Common Stock with
respect thereto pending instructions from SPC and Allegro.
7. Restricted Certificates of Allegro Common Stock. Each of the persons
listed on Schedule A hereto may be deemed an "affiliate" of SPC within the
meaning of Rule 145 under the Securities Act of 1933, as amended, and applicable
rules and regulations promulgated by the Securities and Exchange Commission.
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You are hereby authorized and instructed to place on the face of each of
the certificates representing shares of Allegro Common Stock issued to each of
the aforesaid persons in exchange for the shares of SPC Common Stock held by
them a legend reading in its entirety as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 000 XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THESE SHARES MAY NOT BE SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER OF THESE SHARES TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES
LAWS."
8. Copies of Documents. You shall take such action at SPC's expense as
may from time to time be reasonably requested by SPC to furnish copies of the
Letter of Transmittal to persons designated by SPC.
9. Receipt of Disposal. Letters of Transmittal and telegrams, telexes,
facsimile transmissions and other materials submitted to you by SPC Stockholders
shall be preserved by you until delivered or otherwise disposed of in accordance
with SPC's instructions at or prior to the termination hereof.
10. Maintenance of Records. You will keep and maintain complete and
accurate ledgers showing all shares exchanged by you and payments made by you.
You are authorized to cooperate with and furnish information to any organization
or its legal representatives designated from time to time by SPC or Allegro in
any manner reasonably requested by any of them in connection with the Merger and
share exchange pursuant thereto.
11. Delivery of Surrendered Shares of SPC Common Stock. All certificates
for shares of SPC Common Stock surrendered to you shall be retained by you and
following exchange and payment thereof shall be forwarded to Allegro or
elsewhere as directed by Allegro.
12. Exchange Agent's Duties and Obligations. As Exchange Agent, you:
(a) will have no duties or obligations other than those
specifically set forth herein, or may subsequently be agreed to in writing by
you, Allegro and SPC;
(b) will be regarded as making no representations or
warranties and having no responsibilities regarding the validity, sufficiency,
value or genuineness of any certificates for
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shares of SPC Common Stock surrendered to you or the shares of SPC Common Stock
represented thereby; will not be required or requested to make any
representations as to the validity or genuineness of any certificates for shares
of Allegro Common Stock or shares of Allegro Common Stock represented thereby;
and will not be responsible in any manner whatsoever for the correctness of the
statements made herein or in the Merger Agreement or in any document furnished
to you by SPC or Allegro;
(c) will be obligated to institute or defend any action,
suit or legal proceeding in connection with the Merger, or your duties
hereunder, or take any other action which might in your judgment involve, or
result in, expense or liability to you, unless SPC or Allegro shall first
furnish you an indemnity satisfactory to you;
(d) may rely on, and shall be protected in acting upon, any
certificate, instrument, opinion, representation, notice, letter, telegram or
other document delivered to you and believed by you to be genuine and to have
been signed by the proper party or parties;
(e) may rely on, and shall be protected in acting upon,
written or oral instructions given by any officer of, or any party authorized
by, SPC or Allegro with respect to any matter relating to your actions as
Exchange Agent;
(f) may consult with counsel satisfactory to you (including
counsel for SPC or Allegro), and the written advice or opinion of such counsel
shall be full and complete authorization and protection in the respect of any
action taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice or opinion of such counsel; and
(g) may retain an agent or agents of your choice to assist
you in performing your duties and obligations hereunder, at your cost and
without relieving you of any liability hereunder.
13. Termination of Exchange Agent's Duties and Obligations. This
agreement shall terminate upon demand by SPC or Allegro, at which time all
undistributed certificates representing shares of Allegro Common Stock, cash to
be paid in lieu of fractional shares, and any dividends and distributions in
respect of Allegro Common Stock, shall be delivered by the Exchange Agent to
Allegro.
14. Indemnification of Exchange Agent. SPC and Allegro hereby
covenant and agree to reimburse, indemnify and hold you harmless from and
against any and all claims, actions, judgments, damages, losses, liabilities,
costs, transfer or other taxes, and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred or suffered by you, or to
which you may become subject and not resulting from any negligence, bad faith or
willful misconduct on your part, arising out of or incident to this Agreement or
the administration of your duties hereunder, or arising out of or incident to
your compliance with the instructions set forth herein or with any instructions
delivered to you pursuant hereto, or as a result of defending yourself against
any claim or liability resulting from your actions as
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Exchange Agent, including any claim against you by any tendering SPC
Stockholder, which covenant and agreement shall survive the termination hereof.
You hereby represent that you will notify SPC and Allegro by letter, or
facsimile confirmed by letter, of any receipt by you of a written assertion of a
claim against you, or any action commenced against you, within five (5) business
days after your receipt of written notice of such assertion or your having been
served with the summons or other first legal process giving information as to
the nature and basis of any such assertion. However, your failure to so notify
SPC and Allegro shall not operate in any manner whatsoever to relieve SPC and
Allegro from any liability which they may have on account of this Section 14 if
no prejudice occurs. At their election, SPC and Allegro may assume the conduct
of your defense in any such action or claim at their sole cost and expense. In
the event that SPC and Allegro elect to assume the defense of any such action or
claim and confirm to you in writing that the indemnity provided for in this
Section 14 applies to such action or claim, SPC and Allegro shall not be liable
for the fees and expenses of any counsel thereafter retained by you.
15. Compensation and Expenses. For services rendered as Exchange
Agent hereunder, your fees are approved as set forth in the schedule attached to
this agreement.
16. Modification. Except as otherwise provided in Section 12(a)
hereof, (i) the instructions contained herein may be modified or supplemented
only by authorized representatives of each of SPC and Allegro, and (ii) any
inconsistency between this agreement and the Merger Agreement shall be resolved
in favor of the Merger Agreement.
17. Notices. Except as otherwise provided herein, no notice,
instruction or other communication by one party shall be binding upon the other
party unless hand delivered or sent by certified mail, return receipt requested,
nationally recognized overnight courier service or by facsimile transmission
electronically confirmed. Notice to you shall be sent or delivered to your
above-noted address or such other addresses as you shall hereafter designate in
writing in accordance herewith. Notice to SPC and Allegro shall be sent or
delivered to:
If to Allegro:
Allegro New Media, Inc.
0 Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Cinnamon, Chairman of the Board
President and Chief Executive Officer
with a copy to:
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
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If to SPC:
Software Publishing Corporation
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Financial Officer
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
18. Counterparts. This agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
19. Governing Law; Binding Upon Successors and Assigns. This
agreement shall be construed and enforced in accordance with the laws of the
State of New York, without regard to the principles thereof respecting conflicts
of laws, and shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of the parties hereto.
Executed this 19th day of November, 1996
ALLEGRO NEW MEDIA, INC.
By: _________________________________
Name:
Title:
SOFTWARE PUBLISHING CORPORATION
By: _______________________________
Name:
Title:
Agreed To and Accepted:
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By: _______________________________________________
Name:
Title:
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Schedule A
Xxxx X. Xxxxxxx
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