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EXHIBIT 4.13
FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") dated as of 11th January 1999, by and
between International Microcomputer Software, Inc. ("IMSI"), and ▇▇▇▇▇▇
Minnevich, ("MINNEVICH").
WHEREAS, IMSI currently owes MINNEVICH an amount to date equal to $45,000
(the "Current Royalty Fees") pursuant to a Licensing Agreement between IMSI and
MINNEVICH (the "License Agreement"), and
WHEREAS, IMSI and MINNEVICH now desire to set forth certain terms and
provisions with respect to the payment by IMSI of the Current Royalty Fees:
NOW, THEREFORE in consideration of the foregoing and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
1. Payment of the Fees. Notwithstanding anything to the contrary in the
License Agreement with respect to the form and timing of payment of the Current
Royalty Fees, the obligation to pay the Current Royalty Fees shall be satisfied
in full by compliance by IMSI with the terms and provisions of this Agreement.
2. Issuance of the Shares. As soon as reasonably practicable after
execution of this Agreement, IMSI will issue to MINNEVICH, five thousand (5,000
shares of IMSI's Common Stock (the "Common Stock"), no par value (collectively,
the "Shares") based on a trading sale price of nine dollars ($9.00) per share.
3. Sale.
a. Sale. The Shares may be sold by one or more of the following means of
distribution (subject to the provisions of this Agreement): (a) a block trade in
which the broker-dealer so engaged will attempt to sell Shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account; (c) an over-the-counter distribution in
accordance with the rules of Nasdaq; (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (e) in privately
negotiated transactions.
4. Representations, Warranties and Covenants of IMSI. IMSI represents
and warrants to and covenants with MINNEVICH as follows:
a. Registration. IMSI shall use its reasonable best efforts to cause
the shares of IMSI Common Stock that are issuable pursuant to this Fee Agreement
to be registered on a registration statement (or to be issued pursuant to a
then-effective registration statement) on Form S-3 (or successor form)
promulgated by the Securities
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and License Commission ("SEC") under the 1993 Act, as soon as reasonably
practicable after the Closing. IMSI expects to file a Registration Statement on
or about March 15, 1999. Nothing herein shall require IMSI to separately
register the Shares.
b. At the date the Registration becomes effective under the Securities
Act (the "Effective Date") or the time of effectiveness of any posteffective
amendment to the Registration Statement, at the time the Prospectus is first
filed with the Commission pursuant to Rule 424(b) of the Regulations (if a Rule
424(b) filing is required), at the time any supplement to or amendment of the
Prospectus is filed with the Commission and at the time any document filed
under the License Act is filed, the Registration Statement and the Prospectus
and any amendments thereof and supplements thereto complied or will comply in
all material respects with the applicable provisions of the Securities Act and
the Regulations or the License Act and the respective rules and regulations
thereunder and do not or will not contain an untrue statement of a material
fact and do not or will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading.
c. The Shares, when issued and delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
non-assessable and will not have been issued in violation of any preemptive
rights.
d. If at any time when a prospectus relating to the Shares is required
to be delivered under the Securities Act any event shall occur as a result of
which the Prospectus as then amended or supplemented, in the judgment of IMSI
or MINNEVICH, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Regulations, or to file under the License Act so as to
comply therewith any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
(i) IMSI will notify MINNEVICH promptly and prepare and file with the
Commission an appropriate amendment or supplement (in form and substance
satisfactory to MINNEVICH) which will correct such statement or omission or
which will effect such compliance and will use its best efforts to have any
amendment to the Registration Statement docked declared effective by the
Commission as soon as possible and (ii) MINNEVICH shall suspend trading in the
Shares until (A) such amendment or supplement to the Prospectus has been filed
or (B) any amendment to the Registration Statement has been declared effective
by the Commission.
e. IMSI will pay all fees and expenses with respect to the preparation
and filing of the Registration Statement and the registration of the Shares. If
however, MINNEVICH requests that the Shares be registered independently from
another IMSI
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registration ("Accelerated Registration"), then MINNEVICH shall pay all fees and
expenses with respect to the preparation and filing of the Registration
Statement and the registration of the Shares that are a result of such
Accelerated Registration.
f. Upon execution of this Agreement, MINNEVICH releases and forever
discharges payment of the Current Royalty Fees pursuant to the terms and
conditions of the Retainer.
5. Indemnification.
a. IMSI agrees to indemnify and hold harmless MINNEVICH, against any and
all losses, liabilities, claims, damages and expenses incurred (including but
not limited to attorneys' fees), to which it may become subject under the
Securities Act, the License Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
solely out of any untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or the
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that IMSI shall not be liable to MINNEVICH
for any such losses, liabilities, claims, damages or expenses which arise out of
or are based upon an untrue statement or alleged untrue statement or omission or
alleged omission contained or made in the Registration Statement or the
Prospectus or any amendment thereof or Supplement thereto in reliance upon and
in conformity with information furnished to IMSI by MINNEVICH.
b. Promptly after receipt by any indemnified party under subsection
a. above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the party against whom indemnification is to
be sought in writing of the commencement thereof. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action, (ii) the indemnifying party shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such
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fees and expenses shall be borne by the indemnifying party. Anything in this
subsection to the contrary notwithstanding, the indemnifying party shall not be
liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
6. Entire Agreement. This Agreement and the retainer (to the extent not
inconsistent herewith) constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior written
agreements and negotiations and oral understandings, if any, with respect
thereto. This Agreement may not be amended or supplemented except by an
instrument in writing signed by each of the parties hereto.
7. Notices. All notices, requests and other communications hereunder
shall be in writing and delivered in person or by registered or certified mail
(postage prepaid, return receipt requested), overnight courier or facsimile,
addressed as follows:
if to MINNEVICH, to:
Minnevich
if to IMSI, to:
International Microcomputer Software, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The address of a party, for the purposes of this Section 8, may be changed by
giving written notice to the other party of such change in the manner provided
herein for giving notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days mailing, if sent
by registered or certified mail; the next business day after timely delivery to
the courier, if sent by overnight courier; and when receipt is acknowledged, if
sent by facsimile transmission (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
8. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of California, without regard to the conflicts of law
principles thereof.
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9. Investment Representations. MINNEVICH represents and warrants that it
is an "accredited investor" as defined by Regulation D: that it is acquiring the
Shares for its own account, for the purpose of investment and not with a view
to, or resale in connection with, any distribution thereof; that MINNEVICH has
had access to all information regarding IMSI and its present business, assets,
liabilities and financial condition, that MINNEVICH reasonably considers
important in making the decision to acquire the Shares under this Agreement; and
that MINNEVICH understands that the Shares are restricted securities and may not
be sold except pursuant to the Form S-3, some other registration statement, or
pursuant to an applicable exemption from federal and state registration
requirements.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first set forth above.
▇▇▇▇▇▇ Minnevich INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: By:
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Name: ▇▇▇▇▇▇ Minnevich Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer
