Exhibit 4.13
UNIT INVESTMENT AGREEMENT
THIS UNIT INVESTMENT AGREEMENT (the "Agreement") dated as of
_________________, 1996, is by and between Delphi Information Systems, Inc., a
Delaware corporation (the "Company"), and
___________________________________________ (the "Investor"), a resident of the
State of ______________.
RECITALS:
(a) Whereas, the Company needs financing for its operations; and
(b) Whereas, the Investor desires to purchase the Company's common stock
and warrants on the terms and conditions set forth in this Agreement; and
(c) Whereas, other investors may purchase the Company's common stock and
warrants from the Company on terms and conditions equivalent to those set forth
in this Agreement ("Other Investors").
Accordingly, in consideration of the foregoing, the mutual promises set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE OF UNITS. The Investor agrees to purchase _________ Units
(the "Units"), each Unit consisting of one share of the Company's common stock,
$.10 par value (the "Common Stock") and a Warrant to purchase one share of
Common Stock (the "Warrants"), for a purchase price of $1.00 per Unit and the
Company agrees to issue a stock certificate and Warrant to Investor representing
such shares of Common Stock and Warrants. The Warrant shall be exercisable to
purchase Common Stock commencing upon its issuance and terminating three (3)
years from the date of issuance. The shares of Common Stock issuable upon
exercise of the Warrants are referred to hereinafter as the "Warrant Shares."
The delivery of such certificate and Warrant shall be made concurrently with
delivery of funds to the Company from escrow in the amount set forth above.
Checks should be made payable to "Resource Trust Company -- Delphi Information
Systems Impoundment Account" and should be sent along with a completed and
executed copy of this Agreement to R. J. Steichen & Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Investor that this Agreement has been duly authorized by all
necessary corporate action on behalf of the Company, has been duly executed and
delivered by an authorized officer of the Company, and is a valid and binding
agreement on the part of the Company. All corporate action necessary for the
authorization, issuance, and delivery of the Common Stock, the Warrant, and the
Warrant Stock has been taken on or prior to the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. The Investor
represents and warrants to the Company as follows:
(a) The Investor has had the opportunity to ask questions of, and
receive answers from the Company, or an agent of the Company,
concerning the terms and conditions of the investment and the
business and affairs of the Company, and to obtain any additional
information necessary to verify such information, as the Investor
considers necessary or advisable in order to form a decision
concerning an investment in the Company.
(b) The Common Stock, the Warrant, and the Warrant Shares are being
acquired for investment for the Investor's own account and not
with the view to, or for resale in connection with, any
distribution or public offering thereof. The Investor understands
that neither the Common Stock, nor the Warrant nor the Warrant
Shares has been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state securities laws by
reason of the contemplated issuance in transactions exempt from
the registration requirements of the Securities Act and
applicable state securities laws, and that the reliance of the
Company and others upon these exemptions is predicated in part
upon this representation by the Investor. The Investor further
understands that the Common Stock, the Warrant, and the Warrant
Shares may not be transferred or resold without registration
under the Securities Act and any applicable state securities laws
unless in the opinion of counsel to the Company such registration
is not required.
(c) The Investor's principal residence is as described on Page 1
hereof.
(d) The Investor has carefully reviewed the Company's Confidential
Private Placement Memorandum dated March 29, 1996 (the
"Memorandum").
(e) The Investor is able to bear the loss of the entire investment in
the Common Stock, the Warrant, and the Warrant Shares without any
material adverse effect on the Investor's financial position or
prospects, and the Investor (either individually or together with
his or purchaser representative) has such knowledge and
experience of financial and business matters to be capable of
evaluating the merits and risks of the investment to be made
pursuant to this Agreement. Without limiting the foregoing, the
Investor understands that the securities offered hereby are
highly speculative, involve a high degree of risk and immediate
substantial dilution, and should be purchased only by persons who
can afford the loss of their entire investment. The Investor has
carefully considered the risks and speculative factors described
under "Risk Factors" in the Memorandum.
(f) The Investor is (check all that apply):
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----- (i) A natural person whose individual net worth (assets
less liabilities), or joint net worth with his or her
spouse, exceeds $1,000,000.
----- (ii) A natural person whose individual income was in excess
of $200,000, or whose joint income with his or her spouse
was in excess of $300,000, in each of the two most recent
years, and who has a reasonable expectation of reaching the
same income level for the current year.
----- (iii) A bank, insurance company, registered investment
company, business development company, small business
investment company, or employee benefit plan.
----- (iv) A savings and loan association, credit union, or
similar financial institution, or a registered broker or
dealer.
----- (v) A private business development company.
----- (vi) An organization described in Section 501(c)(3) of the
Internal Revenue Code with assets in excess of $5,000,000.
----- (vii) A corporation, Massachusetts or similar business
trust, or partnership with assets in excess of $5,000,000.
----- (viii) A trust with assets in excess of $5,000,000.
----- (ix) A director or an executive officer of the Company.
----- (x) An entity in which all of the equity owners are
accredited investors. (Not available for an Irrevocable
Trust).
----- (xi) A self-directed IRA, Keogh, or similar plan of which
the individual directing the investments qualifies as an
"accredited investor" under one or more items (i) to (x),
above. Also check the item(s) (i) to (x) which applies.
(g) This Agreement has been duly authorized by all necessary action on the
part of the Investor, has been duly executed and delivered by the
Investor, and is a valid and binding agreement of the Investor.
(h) If the Investor is an entity, the Investor was not organized for the
specific purpose of acquiring the Common Stock, the Warrant, or the
Warrant Shares.
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(i) Investor is NOT subject to backup withholding provisions of Section
3406(a)(i)(C) of the Internal Revenue Code of 1986, as amended.
(Note: you are subject to backup withholding if (i) you fail to
furnish your Social Security number or taxpayer identification number
herein; (ii) the Internal Revenue Service notifies the Company that
you furnished an incorrect Social Security number or taxpayer
identification number; (iii) you are notified that you are subject to
backup withholding; or (iv) you fail to certify that you are not
subject to backup withholding or fail to certify your Social Security
number or taxpayer identification number).
(j) RELATIONSHIP TO BROKERAGE FIRMS. (Please answer the following
questions by checking the appropriate response:)
(1) ____ YES ____ NO: Are you a director, officer, partner, branch
manager, registered representative, employee, shareholder of, or
similarly related to or employed by, a brokerage firm? (IF YES, please
contact the Company to provide additional information before your
subscription can be considered.)
(2) ____ YES ____ NO: Is your spouse, father, mother, father-in-law,
mother-in-law, or any of your brothers, sisters, brothers-in-law,
sisters-in-law or children, or any relative which you support, a
director, officer, partner, branch manager, registered representative,
employee, shareholder of, or similarly related to or engaged by, a
brokerage firm? (IF YES, please contact the Company to provide
additional information before your subscription can be considered.)
(3) ____ YES ____ NO: Do you own voting securities of any brokerage
firm? (IF YES, please contact the Company to provide additional
information before your subscription can be considered.)
(4) ____ YES ____ NO: If the undersigned is an entity, is any
director, officer, partner or five percent (5%) owner of the
undersigned also a director, officer, partner, branch manager,
registered representative, employee, shareholder of, or similarly
related to or employed by, a brokerage firm? (IF YES, please contact
the Company to provide additional information before your subscription
can be considered.)
4. PROVISIONS FOR REGISTRATION. The holders of Common Stock and Warrant
Shares shall have the following rights regarding registration of the Common
Stock and Warrant Shares.
(a) REQUIRED REGISTRATION. The Company shall prepare and file a
registration statement under the Securities Act covering the Common Stock
and Warrant Shares and shall use all reasonable efforts to cause such
registration statement to become effective within 180 days after the first
issuance of Units and remain effective until such time as the Company
reasonably believes each holder of Common Stock and Warrant Shares may
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sell such securities under Rule 144 of the Securities Act until such time
as the Company reasonably believes each holder of Common Stock and Warrant
Shares may sell such securities under Rule 144 of the Securities Act
assuming no tolling of the holding period thereunder. The Company shall
promptly give written notice to the Investor and the Other Investors that
such registration is to be effected. The Company shall include in such
registration statement such Common Stock and Warrant Shares for which it
has received written requests to register within fifteen (15) days after
the Company's written notice. The Company shall be obligated to prepare,
file and cause to become effective only one registration statement pursuant
to this Section 4(a).
(b) REGISTRATION PROCEDURES. When the Company effects the
registration of any Common Stock and Warrant Shares under the Securities
Act, the Company will:
(i) prepare and file with the Commission a registration
statement with respect to such Common Stock and Warrant Shares, and
use all reasonable efforts to cause such registration statement to
become effective within 180 days after the first issuance of Units and
remain effective until such time the Company reasonably believes as
each holder of Common Stock and Warrant Shares may sell such
securities under Rule 144 of the Securities Act until such time as the
Company reasonably believes each holder of Common Stock and Warrant
Shares may sell such securities under Rule 144 of the Securities Act
assuming no tolling of the holding period thereunder;
(ii) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained
therein as may be necessary to keep such registration statement
effective until such time as the Company reasonably believes each
holder of Common Stock and Warrant Shares may sell such securities
under Rule 144 of the Securities Act until such time as the Company
reasonably believes each holder of Common Stock and Warrant Shares may
sell such securities under Rule 144 of the Securities Act assuming no
tolling of the holding period thereunder;
(iii) furnish to the security holders participating in such
registration and to the underwriters of the Common Stock and Warrant
Shares being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and
such other documents as such security holders and underwriters may
reasonably request in order to facilitate the public offering of such
Common Stock and Warrant Shares;
(iv) use all reasonable efforts to register or qualify the Common
Stock and Warrant Shares covered by such registration statement under
such state securities or blue sky laws of such jurisdictions as such
participating holders may reasonably request within ten (10) days
following the original filing of such registration statement, except
that the Company shall not for any purpose be
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required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified;
(v) notify the security holders participating in such
registration, promptly after it shall receive notice thereof, of the
time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration
statement has been filed;
(vi) notify such holders promptly of any request by the
Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(vii) prepare and file with the Commission, promptly upon the
request of any such holders, any amendments or supplements to such
registration statement or prospectus which, in the opinion of counsel
for such holders (and concurred in by counsel for the Company), is
required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Common Stock and
Warrant Shares by such holder;
(viii) prepare and promptly file with the Commission and promptly
notify such holders of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading;
(ix) advise such holders, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for that purpose
and promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
and
(x) not file any amendment or supplement to such registration
statement or prospectus to which a majority in interest of such
holders shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with
the requirements of the Securities Act or the rules and regulations
thereunder, after having been furnished with a copy thereof at least
five (5) business days prior to the filing thereof, unless in the
opinion of counsel for the Company the filing of such amendment or
supplement is reasonably
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necessary to protect the Company from any liabilities under any
applicable federal or state law and such filing will not violate
applicable law.
(c) EXPENSES. With respect to any registration pursuant to Section
4(a), the Company shall bear the following fees, costs and expenses: all
registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, the premiums and
other costs of policies of insurance against liability arising out of the
public offering, and all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in
which the securities to be offered are to be registered or qualified. Fees
and disbursements of counsel and accountants for the selling security
holders, underwriting discounts and commissions and transfer taxes for
selling security holders and any other expenses incurred by the selling
security holders not expressly included above shall be borne by the selling
security holders.
(d) COPIES OF PROSPECTUS; AMENDMENTS OF PROSPECTUS. The Company will
furnish the selling security holders with a reasonable number of copies of
any prospectus or offering circular and one copy of the registration
statement included in such filings and will amend or supplement the same as
required during the period in which the Company is obligated to maintain
the effectiveness of the registration statement.
(e) CONDITIONS OF THE COMPANY'S OBLIGATIONS. It shall be a condition
of the Company's obligation to register the Common Stock and Warrant Shares
hereunder that the holder of Common Stock and Warrant Shares agrees to
cooperate with the Company in the preparation and filing of any such
registration statement, or in its efforts to establish that the proposed
sale is exempt under the Securities Act, as to any proposed distribution.
It shall also be a condition of the Company's obligations under this
Agreement that, in the case of the filing of any registration statement,
and to the extent permissible under the Securities Act, and controlling
precedent thereunder, the Company and the holder of Common Stock and
Warrant Shares provide cross-indemnification agreements to each other in
customary scope covering the accuracy and completeness of the information
furnished by each.
5. OTHER.
(a) Except for the obligations of the Company under Section 4 hereof,
this Agreement and the rights and obligations of the parties
hereunder shall not be assignable, in whole or in part, by any
party without the prior written consent of the other party.
(b) This Agreement, including the appendices attached hereto,
constitutes the entire agreement of the parties relative to the
subject matter hereof and supersedes any and all other agreements
and understandings, whether written or oral, relative to the
matters discussed herein.
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(c) This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware, without regard to conflicts of
laws principles.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date set forth above.
INVESTOR: DELPHI INFORMATION SYSTEMS, INC.
By:
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Signature Its:
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Print Name
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Address
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Telephone Number
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Taxpayer ID Number
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Social Security Number
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CERTIFICATE OF SIGNATORY
(To be completed if Investor is an entity)
I, ______________________________, am the _________________ of
______________________________ (the "Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Unit Investment Agreement and to purchase and
hold the Common Stock, and the Warrant and certify further that the Unit
Investment Agreement has been duly and validly executed on behalf of the Entity
and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ____ day of _________________,
1996.
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Signature
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Print Name
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