EXHIBIT 10.45
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LETTER AGREEMENT
The Xxxxx X. Xxxxxxx Revocable Trust
Dated June 15, 1993 January 24, 2001
Attn: Xxxxx X. Xxxxxxx, Trustee
11331 South Erie
Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
In order to induce you to loan to Heartsoft, Inc. $250,000 (the "Loan")
as evidenced by that certain Convertible Promissory Note of even date in
principal amount of $250,000 ("Convertible Note") secured by a security interest
in certain collateral pursuant to that certain Security Agreement of even date
("Security Agreement"), Heartsoft, Inc. agrees to issue to The Xxxxx X. Xxxxxxx
Revocable Trust Dated June 15, 1993 ("Xxxxxxx") the Convertible Note and 125,000
shares of common stock (the "Shares"), par value $0.0005 per share, of
Heartsoft, Inc., a Delaware corporation ("Heartsoft"), on the following terms
and conditions.
1. Heartsoft agrees to issue to Xxxxxxx the Convertible Note and the
Shares and Xxxxxxx agrees to purchase the Convertible Note and the Shares.
Xxxxxxx shall deliver to Heartsoft his checks of $75,000 and $62.50 on January
24, 2001 and $175,000 on February 5, 2001. On receipt in full of the foregoing,
Heartsoft shall issue and deliver the Convertible Note and the Shares to
Xxxxxxx.
2. Xxxxxxx acknowledges that the Convertible Note and the Shares are
not registered under the Act or any state securities laws. Xxxxxxx agrees that
the Convertible Note and the Shares will not be sold, offered for sale, pledged,
hypothecated or otherwise transferred (collectively, "Transfer"), except in
compliance with the Securities Act of 1933 (the "Act") and applicable state
securities laws. Xxxxxxx hereby consents to the placing of appropriate
restrictive legends upon the Convertible Note and the certificates representing
the Shares, and the placing of stop transfer orders with any transfer agent with
respect to the Shares.
3. To induce Heartsoft to issue the Convertible Note and the Shares,
Xxxxxxx hereby represents and warrants to Heartsoft that:
(a) this Agreement, when executed and delivered by Xxxxxxx,
xxxx constitute a legal, valid and binding obligation enforceable against
Xxxxxxx in accordance with its terms;
(b) the Convertible Note and the Shares are being acquired by
Xxxxxxx for investment purposes only, for the account of Xxxxxxx and not with
the view to any distribution thereof;
(c) Xxxxxxx is an "accredited investor" as that term is
defined in the Act.
Xxxxx Xxxxxxx
January 24, 2001
Page 2
(d) Xxxxxxx is aware that the Convertible Note and the Shares
have not been registered under the Act and his ability to sell or dispose of the
Convertible Note and the Shares will be restricted. Xxxxxxx is subscribing for
the Convertible Note and the Shares with full knowledge of such limitation.
Xxxxxxx acknowledges that he is aware that the Convertible Note and the Shares
may not be resold or offered by him for sale in the absence of: (i) an effective
registration statement under the Act covering the Convertible Note and the
Shares; or (ii) an opinion of counsel satisfactory to Heartsoft that
registration under the Act is not necessary. Xxxxxxx consents to the placing of
a restrictive legend on the Convertible Note and the Shares indicating that the
Convertible Note and the Shares have not been registered under the Act, and
Xxxxxxx understands that Heartsoft will notify its transfer agent that the
Shares are so restricted.
4. Xxxxxxx acknowledges that:
(a) Xxxxxxx has been provided and has read the following
documents:
(i) Annual Reports on Form 10-KSB dated July 14, 2000
and September 28, 2000, containing audited financial statements for the fiscal
years ending March 31, 2000 and June 30, 2000 ("Audited Financial Statements");
and
(ii) Quarterly Report on Form 10-QSB dated November
14, 2000, containing unaudited interim financial statements for the period
ending September 30, 2000 ("Unaudited Interim Financial Statements");
(b) Xxxxxxx has been provided opportunities to ask questions
of representatives of Heartsoft regarding the risks and merits of his purchase
hereunder and to obtain any additional information necessary to verify the
accuracy of the information contained in the above-mentioned documents and to
obtain non-confidential public information about Heartsoft, its operations and
prospects from the time of such documents through the date hereof. Upon the
basis of Xxxxxxx reading the above mentioned documents and Xxxxxxx'x discussion
with representatives of Heartsoft, Xxxxxxx possesses sufficient information to
understand the risk and merits associated with his purchase hereunder and to
verify the accuracy of information received; provided, however, that the
foregoing shall not in any way waive, prejudice or otherwise adversely affect
Xxxxxxx'x right to rely on Heartsoft's representations and warranties contained
herein or otherwise given in connection with the purchase of the Convertible
Note and the Shares.
5. To induce Xxxxxxx to enter into this Agreement and to acquire the
Convertible Note and the Shares, Heartsoft hereby represents and warrants to
Xxxxxxx as follows:
(a) Heartsoft is a corporation validly existing and in good standing
under the laws of the State of Delaware and has the requisite power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. Heartsoft has the requisite power and authority to issue
the Convertible Note and the Shares and to perform its obligations under this
Agreement.
Xxxxx Xxxxxxx
January 24, 2001
Page 3
(b) The Shares, when issued and delivered pursuant to terms of this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable.
(c) This Agreement, the Security Agreement of even date, the
Convertible Note and the issuance of the Shares contemplated hereby have been
duly authorized by all necessary action on behalf of Heartsoft. This Agreement,
the Security Agreement of even date and the Convertible Note evidencing the Loan
have been duly executed and delivered by authorized officers of Heartsoft, are
valid and binding agreements on the part of Heartsoft and are enforceable
against Heartsoft in accordance with their respective terms. All actions
necessary to the authorization, issuance and delivery of the Shares as
contemplated by this Agreement have been taken by Heartsoft.
6. Heartsoft agrees to take all necessary action to cause the issuance
of the Shares to Xxxxxxx, including the issuance of appropriate instructions to
its transfer agent.
7. Heartsoft hereby grants certain registration rights to Xxxxxxx with
respect to the Shares, and with respect to the shares of common stock of
Heartsoft into which the indebtedness evidenced by the Convertible Note is
convertible on the terms set forth in Exhibit A attached hereto.
8. Xxxxxxx and Heartsoft agree that each will execute such other
documents as may be necessary or desirable in connection with the transactions
contemplated hereby, the Convertible Note and the Security Agreement.
9. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma, without regard to the
conflicts of laws principles thereunder.
(b) Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
actually received or when sent by cable, telegraph, or telex (and confirmed by
first class mail, postage prepaid) to the addresses set forth below or to such
other address or addresses the parties may designate by similar notice.
If to Heartsoft: Heartsoft, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
If to Xxxxxxx: The Xxxxx X. Xxxxxxx Revocable Trust
dated June 15, 1993
Attn: Xxxxx X. Xxxxxxx, Trustee
11331 South Erie
Xxxxx, XX 00000
Xxxxx Xxxxxxx
January 24, 2001
Page 4
With a Copy to: Del X. Xxxxxxxxx
Hall, Estill, Hardwick, Gable, Golden & Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
(c) Each party bears the cost of expenses and
attorney fees in connection.
(d) This Agreement may be executed in any number of
counterparts, each signed by different persons and all of said counterparts
together shall constitute one and the same instrument, and such instrument shall
be deemed to have been made, executed and delivered on the date first
hereinabove written, irrespective of the time or times when the same or any
counterparts thereof actually may have been executed and delivered a counterpart
thereof to the Company and the Purchaser.
(e) This Agreement, the Convertible Note, the
Security Agreement and the exhibits thereto contain the entire agreement of the
parties hereto and may not be modified, altered or changed in any manner
whatsoever, except by a written agreement signed by the parties hereto.
HEARTSOFT, INC.
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Xxxxxxxx Xxxxx, Chairman and CEO
ACCEPTED AND AGREED TO:
THE XXXXX X. XXXXXXX REVOCABLE
TRUST DATED JUNE 15, 1993
By: /s/ Xxxxx X. Xxxxxxx, Trustee
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Xxxxx X. Xxxxxxx, Trustee
Date: January 24, 2001
EXHIBIT A
REGISTRATION RIGHTS
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings in addition to the Defined Terms contained in
the Letter Agreement dated as of January 24, 2001, between Heartsoft, Inc. and
The Xxxxx X. Xxxxxxx Revocable Trust dated June 15, 1993 to which this Exhibit A
is attached:
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean (i) the Company's Common Stock, par value
$.0005 per share, as authorized on the date of the Letter Agreement, and (ii)
any other securities into which or for which any of the securities described in
(i) above may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Person" shall mean an individual, a corporation, a partnership, a
joint venture, a trust, an unincorporated organization, a government and any
agency or political subdivision thereof.
"Registrable Securities" shall mean (i) the shares of Common Stock
issued to Xxxxxxx pursuant to the Letter Agreement, and (ii) any shares of
Common Stock of the Company issuable upon the conversion of the Convertible
Note.
"Registration Expenses" shall mean the expenses so described in
Section 4.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. Piggyback Registration. From and after January 24, 2001 to January
24, 2003, if the Company at any time proposes to register any of its shares of
Common Stock under the Securities Act (including pursuant to a demand of any
stockholder of the Company exercising registration rights) for sale to the
public (except with respect to registration statements on Forms X-0, X-0 or
another form not available for registering the Registrable Securities for sale
to the public), each such time it will give written notice to the holder of the
outstanding Registrable Securities of its intention to do so. Upon the written
request of the holder of the Registrable Securities given within thirty (30)
days after transmittal by the Company to the holder of such notice, the Company
will, subject to the limits contained in this Section 3, use its best efforts to
cause such Registrable Securities of the holder to be registered under the
Securities Act and
qualified for sale under any state blue sky law, all to the extent requisite to
permit such sale or other disposition by the holder of the Registrable
Securities so registered; provided, however, that if the Company is advised in
writing in good faith by any managing underwriter of the Company's securities
being offered in a public offering pursuant to such registration statement that
the amount to be sold by Persons other than the Company (collectively, "Selling
Stockholders") is greater than the amount which can be offered without adversely
affecting the offering, the Company may reduce the amount offered for the
accounts of Selling Stockholders (including the holder of shares of Registrable
Securities) pursuant to a contractual, "piggyback" right to include such
securities in a registration statement to a number deemed satisfactory by such
managing underwriter provided that no reduction shall be made in the amount of
Registrable Securities offered for the account of the holder of Registrable
Securities unless such reduction is imposed pro rata with respect to all
securities whose holders have a contractual, "piggyback" right to include such
securities in the registration statement as to which inclusion has been
requested pursuant to such right; provided, however, that there is first
excluded from such registration statement all shares of Common Stock sought to
be included therein by (i) any Management Holder or any officer or employee of
the Company or any subsidiary of the Company, (ii) any holder thereof not having
any such contractual, registration rights, and (iii) any holder thereof having
contractual, registration rights subordinated and junior to the rights of the
holder of Registrable Securities.
3. Registration Procedures. If and whenever the Company is required by
the provisions contained herein to use its best efforts to effect the
registration of any of its securities under the Securities Act, the Company
will, as expeditiously as possible:
(i) prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective; provided, however, that
notwithstanding any other provision herein, the Company shall not in any event
be required to use its best efforts to maintain the effectiveness of any such
registration statement for a period in excess of nine (9) months;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
whenever the seller or sellers of such securities shall desire to sell or
otherwise dispose of the same, but only to the extent provided herein;
(iii) furnish to each seller such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably request
in order to facilitate the public sale or other disposition of the securities
owned by such seller;
(iv) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or state blue
sky laws of such jurisdictions as each seller shall reasonably request, and do
any and all other acts and things which may be necessary under such securities
or blue sky laws to enable such seller to consummate the public
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sale or other disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose to be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified; and
(v) use its best efforts to list the Registrable Securities covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed.
4. Expenses. All expenses incurred in effecting the registrations
provided for in Section 2, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, underwriting expenses (other than fees, commission or discounts),
expenses of any audits incident to or required by any such registration and
expenses of complying with the securities or blue sky laws of any jurisdictions
pursuant to Section 3(iv) hereof (all such expenses referred to as 'Registration
Expenses"), shall be paid by the Company.
5. Indemnification. (a) The Company shall indemnify and hold harmless
the seller of such securities, each underwriter (as defined in the Securities
Act), and each other Person who participates in the offering of such securities
and each other Person, if any, who controls (within the meaning of the
Securities Act) such seller, underwriter or participating Person (individually
and collectively the "Indemnified Person") against any losses, claims, damages
or liabilities (collectively the "liability"), joint or several, to which such
Indemnified Person may be come subject under the Securities Act or any other
statute or at common law, insofar as such liability (or action in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company shall not
be liable to any Indemnified Person in any such case to the extent that any such
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary or final prospectus, or amendment or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Company by
such Person specifically for use therein; and provided further, that the Company
shall not be required to indemnify any Person against any liability arising from
any untrue or misleading statement or omission contained in any preliminary
prospectus if such deficiency is corrected in the final prospectus or for any
liability which arises out of the failure of any Person to deliver a prospectus
as required by the Securities Act regardless of any investigation made by or on
behalf of such Indemnified Person and shall survive transfer of such securities
by such seller.
(b) The holder of the Registrable Securities shall, by acceptance
thereof, indemnify and hold harmless the Company, its directors and officers,
each underwriter and each other Person, if any, who controls the Company or such
underwriter (individually and collectively also the "Indemnified Person"),
against any liability, joint or several, to which any such Indemnified Person
may become subject under the Securities Act or any other statute or at common
law, insofar as such liability (or actions in respect thereof) arises out of or
is based upon
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(i) any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which securities were registered under the Securities Act at the request of such
holder, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or (ii) any 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 the case of (i) and (ii) to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, amendment or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by the holder specifically for use therein, and then only to the extent
that such untrue statement or alleged untrue statement or mission or alleged
omission by the holder was not based on the authority of an expert as to which
the holder had no reasonable ground to believe, and did not believe, that the
statement made on the authority of such expert was untrue or that there was an
omission to state a material fact. The holder's obligations hereunder shall be
limited to an amount equal to the proceeds to the holder of the Registrable
Securities sold in any such registration; and provided further, however, that
the holder of Registrable Securities shall not be required to indemnify any
Person against any liability arising from any untrue or misleading statement or
omission contained in any preliminary prospectus if such deficiency is corrected
in the final prospectus or for any liability which arises out of the failure of
any Person to deliver a prospectus as required by the Securities Act.
(c) In the event the Company, any holder or other Person receives a
complaint, claim or other notice of any liability or action, giving rise to a
claim for indemnification under Sections 5(a) or (b) the Person claiming
indemnification under such paragraphs shall promptly notify the Person against
whom indemnification is sought of such complaint, notice, claim or action, and
such indemnifying Person shall have the right to investigate and defend any such
loss, claim, damage, liability or action. The Person claiming indemnification
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall not be at the expense of the Person against whom indemnification is sought
(unless the indemnifying party fails to promptly defend, in which case the fees
and expenses of such separate counsel shall be borne by the Person against whom
indemnification is sought). In no event shall a Person against whom
indemnification is sought be obligated to indemnify any Person for any
settlement of any claim or action effected without the indemnifying Person's
prior written consent.
6. Consent to be Bound. Any subsequent holder of the Registrable
Securities must consent in writing to be bound by the terms and conditions
hereof in order to acquire the rights granted pursuant hereto.
7. Suspension of Sales. A seller of Registrable Securities shall effect
no sales or transfers of Registrable Securities under a registration statement
upon receiving from the Company a written notice stating that, either (i) in the
good faith judgment of the Company, the sale or transfer of the Registrable
Securities pursuant to the registration statement would, at such time, require
the disclosure of material information that the Company has a bona fide business
purpose for preserving as confidential or (ii) the Company is unable to comply
with applicable requirements of the Commission or the Securities Act at such
time. In such event, the
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Company's obligation to prepare or supplement a prospectus to be used in
connection with the sale or transfer or to amend the registration statement
shall be suspended for a reasonable period (but not in excess of 150 days) until
the Company determines that such confidential information may be disclosed or
that it is able to comply with applicable requirements of the Commission or the
Securities Act. The holder of Registrable Securities agrees to keep confidential
any notification by the Company to the holder pursuant to this Section 7. The
holder of Registrable Securities agrees that, in connection with any sale or
transfer of any of the Registrable Securities, such seller will comply with any
legal requirement such seller may have to deliver a prospectus. The holder of
Registrable Securities also agrees not to offer or sell any of the Registrable
Securities in any offering or sale that would require the Company to amend or
supplement the registration statement solely due to a change in the description
of the plan of distribution of the Registrable Securities contained in such
prospectus.
8. Miscellaneous.
(a) All notices, requests, demands and other communications provided
for hereunder shall be in writing and mailed (by first class registered or
certified mail, postage prepaid), telegraphed, sent by express overnight courier
service or electronic facsimile transmission (with a copy by mail) or delivered
to the applicable party at the addresses indicated below:
If to Heartsoft: Heartsoft, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
If to Xxxxxxx: The Xxxxx X. Xxxxxxx Revocable Trust
dated June 15, 1993
Attn: Xxxxx X. Xxxxxxx, Trustee
11331 South Erie
Xxxxx, XX 00000
With a Copy to: Del X. Xxxxxxxxx
Hall, Estill, Hardwick, Gable,
Golden & Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
or, as to each of the foregoing, at such other address as shall be designated by
such Person in a written notice to the other parties complying as to delivery
with the terms of this subsection (a). All such notices, requests, demands and
other communications shall, when mailed, telegraphed or sent, respectively, be
effective (i) two days after being deposited in the mails or (ii) one day
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after being delivered to the telegraph company, deposited with the express
overnight courier service or sent by electronic facsimile transmission,
respectively, addressed as aforesaid.
(b) The provisions contained herein shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
(c) If any provision contained herein shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provisions contained herein, and
said remaining provisions shall be carried out as if any such illegal, invalid
or unenforceable provision were not contained herein.
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