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EXHIBIT 99.1
SHARE PURCHASE AGREEMENT
DATED AS OF MARCH 20, 1996
BY AND AMONG
ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD.
AND
OSICOM TECHNOLOGIES, INC.
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is entered into as of,
March 20, 1997 (the "Closing Date"), by and between Asia Broadcasting and
Communications Network Ltd., a Bermuda corporation ("ABCN"), and Osicom
Technologies, Inc., a New Jersey corporation ("Osicom").
WHEREAS, ABCN is constructing a satellite communications system for the purpose
of providing Direct-to-Home television and high-speed Internet access
satellite services to Asia and seeks strategic partners with access to
technologies and manufacturing capabilities that can assist ABCN to
provide these services in a competitive and cost effective manner; and
WHEREAS, Osicom has demonstrated the capability to develop and manufacture
devices and associated software that would assist ABCN to provide
high-speed Internet access satellite services and desires to become a
strategic partner of ABCN;
WHEREAS, ABCN desires to issue, and OSICOM desires to purchase, 5,000,000
shares par value $0.35 per share, of ABCN for the consideration and
upon the terms and conditions hereinafter set forth; and
WHEREAS, ABCN and Osicom entered in to a Memorandum of Agreement dated March 7,
1997, pursuant to which they agreed to enter into this Agreement, and
pursuant to which Osicom further agreed to advance to ABCN the sum of
$2,000,000 in contemplation of the execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Sale and Purchase of Shares.
1.1 Purchase of ABCN Shares. Subject to the terms and conditions
hereof, ABCN hereby agrees to issue, and OSICOM hereby agrees to
purchase, on the Closing Date 5 million common shares of ABCN of U.S.
$0.35 par value ("ABCN Shares") at a purchase price of $1.45 per share
for an aggregate purchase price of $7,250,000 U.S.Dollars (Seven
Million Two Hundred Fifty Thousand U.S. Dollars) (the "Purchase
Price"). On the Closing Date, OSICOM will deliver to ABCN the Purchase
Price in the form of that number of shares of Osicom's common stock
(the "Osicom Shares"), as adjusted pursuant to Section 1.4 of this
Agreement, whose aggregate value, as of the Closing Date, equals
$7,250,000 and ABCN will issue and deliver to OSICOM a certificate
representing such number of ABCN Shares, as adjusted pursuant to this
Agreement, registered in the name of OSICOM.
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1.2 Option to Purchase Shares. Subject to the terms and conditions
hereof, ABCN grants to OSICOM an option (the "Option") to purchase
5,000,000 common shares of ABCN of U.S. $0.35 par value. The exercise
price of the Option shall be $1.45 per share, for an aggregate purchase
price of $7,250,000 U.S.Dollars (Seven Million Two Hundred Fifty
Thousand U.S. Dollars) (the "Option Purchase Price"), which shall be
payable in U.S. Dollars. The Option shall be exercisable from and
after completion of the First Phase of the Asia Access network (as
defined in the Cooperation and License Agreement, dated as of this
date, between ABCN and Osicom), and until the ABCN Shares are publicly
traded shall be exercisable by OSICOM, to the extent not exercised, in
whole or in part with respect to not less than 20% of the Shares
subject thereto (or such lesser amount as is equal to the remaining
number of Shares subject to the Option), at any time and from time to
time, after becoming exercisable and prior to the termination of the
Option. After the ABCN Shares become publicly traded, the Option shall
be exercisable by OSICOM, to the extent not exercised, in whole or in
part with respect to any number of Shares subject thereto at any time
and from time to time prior to the termination of the Option. The
Option shall terminate twelve (12) months after the date on which
ABCN's shares initially become publicly traded.
1.3 Adjustment in Number of ABCN Shares. For the benefit of OSICOM,
the number of ABCN Shares to be issued to OSICOM shall be equitably
adjusted from time to time after the date hereof to take account of any
of the following events: (i) if ABCN shall pay a dividend or make any
other distribution with respect to any Shares of ABCN which is payable
in the form of Shares of ABCN, (ii) if ABCN shall subdivide its
outstanding shares, (iii) if ABCN shall combine its outstanding shares
into any shares of its capital stock in a reclassification of the
shares (including any such reclassification in connection with a
merger, consolidation or other business combination involving ABCN), or
(iv) if ABCN shall engage in any other similar transaction affecting
Shares of ABCN.
1.4 Adjustment in the Number of OSICOM Shares. For the benefit of
ABCN, the number of OSICOM Shares issued to ABCN shall be equitably
adjusted as of the date such OSICOM Shares become freely tradable, such
that the aggregate value of such OSICOM Shares as of such date shall
not be less than $5,000,000.
2. Further Agreements.
2.1 Right to Receive Additional Shares. If, after OSICOM has
purchased the ABCN Shares but prior to April 15, 1998, (the "Adjustment
Period"), ABCN issues or ABCN sells common stock or any security
convertible into or exchangeable for common stock of ABCN (a "ABCN
Share Offering or
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Sale") for a price (the "Lower Offering Price") less than the purchase
price per share for the ABCN Shares purchased by OSICOM under Sections
1.1, 1.2, or 1.3 of this Agreement, such purchase price under Sections
1.1, 1.2, or 1.3 of this Agreement will be reduced retroactively to the
Lower Offering Price and ABCN will issue to OSICOM (an "Adjustment")
the number of additional shares of common stock that OSICOM would have
received if its investment had been at a per share purchase price equal
to the Lower Offering Price. If, subsequent to an Adjustment, one or
more ABCN Share Offerings or Sales occur during the Adjustment Period,
for a price less than the Lower Offering Price (or such lower purchase
price to which OSICOM's purchase price for the OSICOM Shares has been
adjusted), a further Adjustment to the purchase price of such ABCN
Shares will be made in the same manner as the initial Adjustment and
ABCN will issue to OSICOM the appropriate number of additional common
shares.
2.2 Registration Rights. If at any time or times ABCN proposes to
make a registered public offering of any of its securities, whether to
be sold by it or by one or more third parties, ABCN shall have given
written notice to OSICOM of the proposed registered public offering not
less than 30 days prior to the proposed filing date of the registration
form. With respect to any such registration, ABCN will provide OSICOM
with registration rights including, but not limited to, "piggyback"
registration rights no less favorable than those granted, if any, to
any other shareholder of ABCN. If the "piggyback registration" is an
underwritten primary registration on behalf of ABCN or an underwritten
secondary offering on behalf of selling shareholders, the right to
include shares in a registration is subject to the managing
underwriters advising ABCN that such Shares can be included in such
registration without adversely affecting the marketability of the
offering after taking into account other Shares to be included in such
registration and the priority rights of the shareholders requesting
inclusion. In addition, ABCN hereby agrees that if at any time or times
it grants registration rights, including, but not limited to, "demand"
and/or "piggyback" registration rights, with respect to Shares of ABCN
to any party it will grant OSICOM registration rights no less favorable
than those granted to such other party.
2.3 Registration and Disposition of OSICOM Shares. Upon demand by
ABCN at any time after the Closing Date, Osicom shall file a Form S-3
registration to register the Osicom Shares with the Securities and
Exchange Commission. ABCN shall have the right to sell or otherwise
dispose of the OSICOM Shares, in its sole discretion, at any time after
such registration becomes effective.
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2.4 Indemnification.
2.4.1 Indemnification of OSICOM. ABCN agrees to indemnify and
hold harmless OSICOM and its affiliates, directors,
officers and duly authorized agents against any loss,
claim, liability, cost, expense or damage (including,
without limitation, reasonable legal fees and disbursements
and court or arbitration fees and costs including the fees,
disbursements and costs arising from any action for
indemnification pursuant to this Section 2.4.1 if the
indemnified party prevails) accruing from or resulting by
reason of the breach or incorrectness of any of the
representations or warranties made by ABCN in this
Agreement or by reason of the breach by ABCN of any of its
agreements or covenants hereunder.
2.4.2 Indemnification of ABCN. OSICOM agrees to indemnify and
hold harmless ABCN and its affiliates, directors, officers
and duly authorized agents against any loss, claim,
liability, cost, expense or damage (including, without
limitation, reasonable legal fees and disbursements and
court or arbitration fees and costs including the fees,
disbursements and costs arising from any action for
indemnification pursuant to this Section 2.4.2 if the
indemnified party prevails) accruing from or resulting by
reason of the breach or incorrectness of any of the
representations or warranties made by OSICOM in this
Agreement or by reason of the breach by OSICOM any of its
agreements or covenants hereunder.
2.5 Preemptive Rights. Prior to the initial public offering by
ABCN, ABCN shall not issue any additional common shares to two or more
of the existing shareholders (as listed on Schedule A) without also
offering to Osicom the right to purchase, at a price equal to the price
that would be paid by such existing shareholders, that number of common
shares needed to maintain Osicom's percentage ownership of ABCN Shares
at 1.8% as shown on Schedule A, provided that percentage ownership
shall be calculated without regard to any issues of common shares as to
which these preemptive rights do not apply. Notwithstanding the
foregoing, such preemptive right shall not apply in the event that ABCN
sells more than twenty-five percent (25%) of the fully-diluted equity
of the Company to any existing investor or group of existing investors
of ABCN and has received the approval of a majority of the
disinterested directors of ABCN for such sale provided, however, that
in any case in which (i) ABCN sells Shares for less than the purchase
price per share for the ABCN Shares purchased by OSICOM under Sections
1.1, 1.2, or 1.3 of this Agreement (the "Lower Offering Price" as
defined in Section 2.1), and (ii) after giving effect to any Adjustment
pursuant to Section 2.1 of this Agreement OSICOM's percentage ownership
of ABCN Shares is less than 1.8%, OSICOM shall have the right to
purchase at the Lower Offering Price that
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number of additional shares required to maintain its ownership of ABCN
shares at 1.8%.
3. Representations and Warranties of ABCN. ABCN hereby represents, warrants
and agrees, as of the date hereof, as follows:
3.1 Organization and Standing. ABCN is a corporation duly
organized, validly existing and in good standing under the laws of
Bermuda, and has the full corporate power and corporate authority to
carry on its business as it is now being conducted, to execute and
deliver this Agreement and any related documents called for herein and
to consummate the transaction contemplated hereby.
3.2 Authorization; Enforceability; Consents. ABCN's Board of
Directors has approved this Agreement and the transaction contemplated
hereby in the manner prescribed by law and has authorized the
execution, delivery and performance of this Agreement. This Agreement,
when executed, will constitute a valid and binding obligation of ABCN,
enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated herein, will violate any law, rule, regulation, judgment,
injunction, decree, determination, award or order of any court or
governmental agency or instrumentality, domestic or foreign, or
conflict with or result in any breach of any of the terms of or
constitute a default under or result in the termination of or the
creation or imposition of any mortgage, lien, security interest or
other charge or encumbrance of any nature under ABCN's Memorandum of
Association or Bye-Laws or the terms of any contract or agreement to
which ABCN is a party or by which ABCN or any of the assets and
properties of ABCN is bound. Neither the execution and delivery by
ABCN of this Agreement, nor the consummation by ABCN of any of the
transactions contemplated herein, requires any consent, approval, order
or authorization of, or registration with, or the giving of notice to,
any governmental or public body or authority or any other person,
except for (i) registering OSICOM as a shareholder of ABCN, which ABCN
agrees to do as of the date of receipt of the Purchase Price, and (ii)
any necessary filings with governmental agencies in Bermuda, which ABCN
agrees to do immediately thereafter.
3.3 Share Issuance. Upon closing, the ABCN Shares will be duly and
validly issued, fully paid and nonassessable and no personal liability
will attach to the ownership thereof, and OSICOM will acquire the
legal, valid and marketable title to the ABCN Shares, free and clear of
all mortgages, liens, pledges, charges, claims, security interests,
encumbrances and equities whatsoever.
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3.4 Compliance With Laws. ABCN has complied fully and is in full
compliance in all material respects with all laws, ordinances,
regulations, rules and orders applicable to its businesses and assets.
3.5 Existing Shareholders. The shareholders of ABCN as of the date
of this Agreement and their respective shareholdings and option rights
are listed in Schedule A.
3.6 No Registration under the Securities Act. ABCN understands that
the Osicom Shares have not been registered under the Securities Act, in
reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold, or
otherwise transferred unless such Osicom Shares are so registered or
qualify for exemption from registration under the Securities Act.
3.7 Acquisition for Investment. The Osicom Shares are being
acquired by ABCN under this Agreement in good faith solely for its own
account, for investment, and not with a view toward resale or other
distribution within the meaning of the Securities Act. The Osicom
Shares will not be offered for sale, sold, or otherwise transferred by
ABCN without either registration or exemption from registration under
the Securities Act.
3.8 Evaluation of Merits and Risks of Investment. ABCN has such
knowledge and experience in financial and business matters that ABCN is
capable of evaluating the merits and risks of ABCN's investment in the
Osicom Shares. ABCN understands and is able to bear any economic risks
associated with such investment (including, without limitation, the
necessity of holding such Osicom Shares for an indefinite period of
time, inasmuch as such Osicom Shares have not been registered under the
Securities Act.
4. Representations and Warranties of the OSICOM. OSICOM hereby represents,
warrants and agrees, as of the date hereof, as follows:
4.1 Organization and Standing. OSICOM is a corporation duly
organized, validly existing and in good standing under the laws of New
Jersey, and has the full corporate power and corporate authority to
carry on its business as it is now being conducted, to execute and
deliver this Agreement and any related documents called for herein and
to consummate the transaction contemplated hereby.
4.2 Enforceability; Consents. This Agreement , when executed, will
constitute a valid and binding obligation of OSICOM, enforceable in
accordance with its terms. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
herein, will violate any law, rule, regulation, judgment, injunction,
decree, determination, award
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or order of any court or governmental agency or instrumentality,
domestic or foreign, or conflict with or result in any breach of any of
the terms of or constitute a default under or result in the termination
of or the creation or imposition of any mortgage, lien, security
interest or other charge or encumbrance of any nature under OSICOM's
Certificate of Incorporation or By-laws or the terms of any contract
or agreement to which OSICOM is a party or by which OSICOM or any of
the assets and properties of OSICOM is bound. Neither the execution and
delivery by OSICOM of this Agreement, nor the consummation by OSICOM of
any of the transactions contemplated herein, requires any consent,
approval, order or authorization of, or registration with, or the
giving of notice to, any governmental or public body or authority or
any other person, except for such notices, consents or approvals which
will be obtained before the Closing Date.
4.3 Share Issuance. Upon closing, the OSICOM Shares will be duly
and validly issued, fully paid and nonassessable and no personal
liability will attach to the ownership thereof, and ABCN will acquire
the legal, valid and marketable title to the OSICOM Shares, free and
clear of all mortgages, liens, pledges, charges, claims, security
interests, encumbrances and equities whatsoever.
4.4 Compliance With Laws. Osicom has complied fully and is in full
compliance in all material respects with all laws, ordinances,
regulations, rules and orders applicable to its businesses and assets.
4.5 Existing Shareholders. The shareholders of Osicom holding at
least 10% of the Shares of Osicom as of the date of this Agreement and
their respective shareholdings are listed in Schedule B.
4.6 No Registration under the Securities Act. Osicom understands
that the ABCN Shares have not been registered under the Securities Act,
in reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold, or
otherwise transferred unless such ABCN Shares are so registered or
qualify for exemption from registration under the Securities Act.
4.7 Acquisition for Investment. The ABCN Shares are being acquired
by Osicom under this Agreement in good faith solely for its own
account, for investment, and not with a view toward resale or other
distribution within the meaning of the Securities Act. The ABCN Shares
will not be offered for sale, sold, or otherwise transferred by Osicom
without either registration or exemption from registration under the
Securities Act.
4.8 Evaluation of Merits and Risks of Investment. Osicom has such knowledge
and experience in financial and business matters that Osicom
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is capable of evaluating the merits and risks of Osicom's investment in
the ABCN Shares. Osicom understands and is able to bear any economic
risks associated with such investment (including, without limitation,
the necessity of holding such ABCN Shares for an indefinite period of
time, inasmuch as such ABCN Shares have not been registered under the
Securities Act.
5. Conditions of Closing. The Parties shall not be obliged to complete the
purchase herein provided for unless, on the Closing Date, each of the
following conditions shall have been satisfied, it being understood that
the conditions may be waived in writing in whole or in part by either party
at any time:
(1) Representations and Warranties. The representations and
warranties set forth in sections 3 and 4 shall be true and
correct in all material respects on the Closing Date.
(2) Compliance. All of the terms, covenants and agreements set
forth in this Agreement to be complied with or performed by
either party on or before the Closing Date shall have been
complied with or performed.
(3) Cooperation and License Agreement. The parties shall have
entered into the Cooperation and License Agreement dated as
of the date hereof.
(4) Any necessary approval to consummate the sale of shares
hereunder pursuant to the laws of Bermuda shall have been
obtained.
If any of the foregoing conditions shall not have been fulfilled
on or before the Closing Date, either party may terminate this
Agreement by notice in writing to the other party in which event
the parties shall be released from all obligations under this
Agreement; but the parties shall be entitled to waive
compliance with any such condition in whole or in part if it
shall see fit to do so, without prejudice to its right of
termination in the event of non-fulfillment of any other
condition in whole or in part.
6. Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any
other party pursuant to this Agreement shall be in writing in English. Such
notices and communication shall be deemed to have been duly delivered as of
the date so delivered if delivered in person, as of the date confirmed by
telephone discussion with a representative of the recipient if dispatched
via facsimile transmission, or within 15 days of dispatch if dispatched by
registered or certified mail, postage prepaid, to the parties at the
addresses specified below or at such other addresses of the parties as
shall be specified by like notice:
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(i) If to ABCN:
Asia Broadcasting and Communications
Network Ltd.
000/00-00 Xxxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000 Thailand
Attention: Vorathep Chotinuchit
Facsimile No.: (000) 000-0000
(ii) If to OSICOM:
Osicom Technologies, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Par Xxxxxx
Facsimile No.: 000-000-0000
7. Confidentiality.
7.1 Except as specified in Clause 7.2 hereof, this Agreement shall be
kept confidential and no party to this Agreement shall disclose
to any person the terms or existence of this Agreement. In
particular, no party to this Agreement shall make any public
statement in relation to this Agreement or permit to be done any
act or omission which might cause or allow any such statement to
be released.
7.2 The parties to this Agreement shall be entitled to disclose the
terms and the existence of this Agreement and the Shareholders
Agreement if said disclosure:
(a) is required by any governmental authority including the
stock exchange or by law or regulations or at court
proceedings;
(b) is made to the auditors and lawyers of the parties to this
Agreement;
(c) is made to the directors, officers or employees of ABCN or
OSICOM if they should require such information for the
purpose of performing their necessary duties; or
(d) is made with the consent of all parties hereto.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
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9. Miscellaneous Provisions.
9.1 This Agreement may not be assigned by either party without the
written approval of the other party, provided however, that
either party may assign this Agreement without prior approval to
an affiliate or controlled subsidiary if such affiliate or
subsidiary shall have become a party to this Agreement and
consented to be bound by the terms and conditions hereof.
Notwithstanding the foregoing, neither party may assign the
obligation to issue shares pursuant to this Agreement.
9.2 Neither this Agreement nor any term or provision hereof may be
changed, modified, waived, discharged or terminated except by a
written instrument, signed by the party or parties against whom
enforcement or such change, modification, waiver, discharge or
termination is sought to be enforced. No waiver of a breach of
any provision of this Agreement shall be deemed a waiver of that
provision or of any subsequent breach or default of any kind.
9.3 All of the representations, warranties and agreements of ABCN and
OSICOM contained herein shall survive the closing of the share
issuance contemplated hereby. Each of ABCN and OSICOM agrees to
take such further actions and to execute and deliver such further
instruments as OSICOM or ABCN, respectively, may reasonably
request from time to time in order to fully effectuate the
purposes, terms and conditions of this Agreement.
9.4 The headings that appear in this Agreement have been used for
references purposes only and shall not affect the interpretation
of this Agreement.
9.5 This Agreement may be executed simultaneously in one or more
counterparts, each of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed and delivered as of the date first written above.
ASIA BROADCASTING AND COMMUNICATIONS NETWORK LTD.
By: /s/ Xxxxxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Deputy Chairman
OSICOM TECHNOLOGIES, INC.
By: /s/ Par Xxxxxx
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Name: Par Xxxxxx
Title: Chief Executive Officer
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