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EXHIBIT 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.
▇▇▇/▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Thailand
Attention: Vorathep Chotinuchit
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to OSICOM:
Osicom Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Par ▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Deputy Chairman
OSICOM TECHNOLOGIES, INC.
By: /s/ Par ▇▇▇▇▇▇
------------------------------------
Name: Par ▇▇▇▇▇▇
Title: Chief Executive Officer
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