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EXHIBIT 10.3
STOCKHOLDERS AGREEMENT
AMONG
INTELECT TECHNOLOGIES INC.,
TERAFORCE TECHNOLOGY CORPORATION,
SINGAPORE TECHNOLOGIES ELECTRONICS LIMITED,
AND
THE ADDITIONAL STOCKHOLDERS NAMED HEREIN
DATED EFFECTIVE AS OF AUGUST 30, 2001
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered into
effective as of August 30, 2001, among Intelect Technologies Inc., a Delaware
corporation (the "Company"), TeraForce Technology Corporation, a Delaware
corporation ("TeraForce"), Singapore Technologies Electronics Limited, a
Singapore corporation ("STE"), and the other stockholders named from time to
time on the signature pages hereto.
WHEREAS, the Company was duly formed under the laws of the State of
Delaware on August 17, 2001; and
WHEREAS, the Company issued 3,000 shares of Company Common Stock to
TeraForce and 6,000 shares of Company Common Stock to STE;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed that:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referenced to in this Article 1:
"Additional Proportionate Share" means (i) with respect to Remaining
Stockholders, the fraction, the numerator of which is the number of Shares held
by the Remaining Stockholder (excluding Shares issuable upon conversion,
exercise, or exchange of any other securities that have not been converted,
exercised, or exchanged) and the denominator of which is the number of Shares
held by all of the Remaining Stockholders (excluding Shares issuable upon
conversion, exercise, or exchange of any other securities that have not been
converted, exercised, or exchanged) electing to purchase Remaining Offered
Shares.
"Agreed Value" means the fair market value per share of the Shares as
of the Company's most recently completed fiscal quarter preceding the date of
the proposed Disposition of Shares pursuant to this Agreement. The Agreed Value
of Shares shall be determined by agreement between the Person(s) who has an
option or is obligated under this Agreement to purchase the Shares in question,
on the one hand (referred to in this paragraph as "purchaser"), and the
Stockholder and/or other Person from whom the purchaser has an option or is
obligated to purchase the Shares, on the other hand (referred to in this
paragraph as "seller"), or, if such agreement has not been reached by the 30th
day after the date of the notice or other event that requires the determination
of Agreed Value, then the seller and purchaser shall each select an independent
investment banking firm within 10 days to determine the fair market value of the
Shares. In the event that the independent investment banking firms selected by
the seller and purchaser cannot agree on the fair market value of the Shares,
then the two independent investment banking firms shall mutually select a third
independent investment banking firm to determine the fair market value of the
Shares, and the value selected by such independent investment banking firm shall
be binding upon all of the parties hereto. Each such independent investment
banking firm may use any customary method of determining fair market value. The
cost of the independent investment banking firm selected by the seller shall be
paid by the seller, the cost of the independent investment banking firm selected
by the purchaser shall be paid by the purchaser, and the cost of the independent
investment banking firm selected by the two independent investment banking firms
appointed by each of the seller and the purchaser shall be paid one-half by the
seller and one-half by the purchaser. Each party shall have the opportunity to
present information to the investment banking firm regarding the fair market
value of the Shares. In determining
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the Agreed Value, the independent investment banking firms shall not discount
the Agreed Value, or take any deductions with respect thereto, due to (i) any
restrictions on the transferability of the Shares as a result of this Agreement,
the securities laws or otherwise, or (ii) the Shares representing a minority
interest in the Company.
"Agreement" is defined in the introductory paragraph to this Agreement.
"Bankruptcy Law" is defined in Section 3.1(a)(iii).
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, par value $0.01 per share, of
the Company.
"Community Property Event" means any event (including, without
limitation, events relating to death or divorce or an event listed in clauses
(i) through (viii) of Section 3.1(a)) that involves only the Community Property
Interest of any spouse of a Stockholder and results in the Community Property
Stockholder no longer having full and exclusive voting and investment power with
respect to such Community Property Stockholder's Shares.
"Community Property Interest" means any community property interest in
any Shares.
"Community Property Stockholder" means the Stockholder sharing an
interest in Shares related to a Community Property Interest.
"Company" is defined in the introductory paragraph to this Agreement
and includes all Subsidiaries of the Company, from time to time, unless the
context otherwise requires.
"Disposition" is defined in Article 2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"Issuance Date" is defined in Article 10.
"Issuance Notice" is defined in Article 10.
"Legal Action" is defined in Section 11.3.
"Offered Shares" is defined in Section 3.1(a).
"Permitted Transfer" means (1) a Disposition by a Stockholder to which
TeraForce and STE have consented in writing; provided, however, that the
restrictions regarding transfer contained in this Agreement shall continue to be
applicable to such Shares after any such transfer; and provided, further, that
the transferees of such Shares shall execute an Addendum Agreement, or (2) a
pledge or other encumbrance of Shares securing a loan so long as the pledgee
agrees in writing prior to the execution of the pledge that upon any transfer to
the pledgee of any Shares upon foreclosure or otherwise, such Shares and the
pledgee thereof shall remain and become subject to the restrictions contained in
this Agreement. A transfer to an affiliate of STE will be a Permitted Transfer.
"Permitted Transferee" means a Person who acquires Shares pursuant to a
Permitted Transfer.
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"Person" means any natural person, corporation, limited partnership,
limited liability company, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity.
"Price" is defined in Article 10.
"Proportionate Share" means (i) with respect to the Remaining
Stockholders, the product of a fraction, the numerator of which is the number of
Shares held by the Remaining Stockholder (excluding Shares issuable upon
conversion, exercise, or exchange of any securities that have not been
converted, exercised, or exchanged), and the denominator of which is the number
of Shares held by all Remaining Stockholders (excluding Shares issuable upon
conversion, exercise, or exchange of any securities that have not been
converted, exercised or exchanged).
"Remaining Offered Shares" means the Offered Shares that the Company
and the Remaining Stockholders have not elected to purchase.
"Remaining Stockholder" means all Stockholders other than the Selling
Stockholder.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Selling Stockholder" is defined in Section 3.1(a).
"Stockholders" means, collectively, each of the original signatory
parties to this Agreement who are holders of Shares; any transferee, successor
or assigns of any such signatory party in interest or power with respect to any
Shares owned beneficially now or in the future by any such signatory party; and
any Person who may subsequently acquire any Shares; provided, that no successor
or assignment shall be deemed to be permitted under this Agreement by virtue of
this definition.
"Shares" means any and all issued and outstanding shares of Common
Stock, whether now owned or hereafter acquired.
"Transfer Event" is defined in Section 3.1(a).
"Transfer Event Notice" means a written notice setting forth in detail
the circumstances of a Transfer Event under Section 3.1(a), including, without
limitation, the name and address of the proposed purchaser, and the proposed
purchase price, the form of consideration to be paid, the terms, the conditions
of the sale, and a copy of the contract or court order, if any, with respect to
the Transfer Event.
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ARTICLE 2.
RESTRICTION ON DISPOSITION
No Shares or interest therein, may be sold, assigned, transferred
(whether or not for consideration), registered for transfer, given, donated,
subjected to an option to purchase, or in any manner disposed of, or subjected
to an agreement to do any of the foregoing (any of the foregoing hereby being
referred to as a "Disposition") by any Stockholder, a Stockholder's spouse, if
any, or any successor in interest thereof, other than pursuant to a Permitted
Transfer or except in accordance with this Agreement. Subject to Section 11.5,
any attempted Disposition, other than a Permitted Transfer or except in
accordance with this Agreement, shall be void and ineffectual.
ARTICLE 3.
RIGHT OF FIRST REFUSAL; FORCED SALE
SECTION 3.1 RIGHT OF FIRST REFUSAL.
(a) Transfer Events; Notice. The following constitute a
"Transfer Event":
(i) If any Stockholder shall attempt a Disposition of
any Shares or any interest therein, other than a Permitted
Transfer or a Disposition in accordance with Section 3.2;
(ii) If any Stockholder shall make an assignment for
the benefit of creditors;
(iii) If any Stockholder shall file, or consent to
the filing of, a petition under any federal or state
insolvency, bankruptcy, reorganization or similar law
(collectively, "Bankruptcy Law") or petition for, or consent
to, the taking of possession by a trustee, receiver or similar
official of any of the Stockholder's assets;
(iv) If any Stockholder shall be adjudicated as
bankrupt or insolvent under any Bankruptcy Law by a judgment
which has become final;
(v) If any Stockholder shall suffer an attachment,
sequestration, foreclosure, turnover order, writ of execution
or garnishment or any other method of seizure to be levied
against any Shares or any interest therein;
(vi) If any Stockholder shall have any Shares or any
interest therein, subjected to a Disposition in any other way
whatsoever, other than a Permitted Transfer;
(vii) If any Stockholder shall die, such
Stockholder's Shares have not been devised to a Permitted
Transferee and 60 days shall pass after the Stockholder's
death (unless a shorter period of time is necessary to prevent
a Disposition of the Stockholder's Shares to a Person other
than a Permitted Transferee); or
(viii) A Community Property Event.
In the event of a Transfer Event, the Stockholder whose Shares are
involved in any Transfer Event (the "Selling Stockholder"), the Selling
Stockholder's legal representative, the estate of said deceased
Stockholder, or the Selling Stockholder's surviving spouse, shall
within 10 business days of the date of such Transfer Event deliver to
the Company a Transfer Event Notice.
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The Company shall promptly deliver copies of the Transfer
Event Notice to the other Stockholders. Notice by the Company shall be
deemed the Selling Stockholder's offer of the entire legal and
beneficial interest in the Shares involved in the Transfer Event (the
"Offered Shares") for sale to the Remaining Stockholders at the price
and upon the terms and conditions set forth in this Section 3.1. If the
Transfer Event Notice is not delivered to the Company, the Company,
upon being advised of any such Transfer Event, shall prepare and send
the Transfer Event Notice on the Company's own initiative (the Transfer
Event Notice being deemed received by the Company on the date the
Company delivers it), whereupon the Offered Shares shall be deemed so
offered to the Remaining Stockholders, pursuant to this Section 3.1.
(b) Purchase Option of Stockholders. Each Remaining
Stockholder shall have the option to purchase, on the terms provided
herein, all or a portion of the number of Offered Shares equal to the
product of the number of the Offered Shares multiplied by the
Stockholder's Proportionate Share. A Remaining Stockholder desiring to
exercise the option under this Section 3.1(b) shall give written notice
thereof to the Selling Stockholder, such notice to be dated and sent no
later than 30 days after the Remaining Stockholder's receipt of the
Transfer Event Notice. Failure to so notify the Selling Stockholder
shall be deemed a failure to exercise the option in this Section
3.1(b). In addition, if any Remaining Stockholder fails or is deemed to
fail to exercise the option to purchase his Proportionate Share of the
Offered Shares, then each of the Remaining Stockholders who has elected
to purchase his Proportionate Share of the Offered Shares may elect to
purchase a number of the Remaining Offered Shares equal to the product
of the number of Remaining Offered Shares multiplied by the
Stockholder's Additional Proportionate Share; provided, that the
Remaining Stockholder so elects in his notice to the Selling
Stockholder under this Section 3.1(b). Subject to other provisions of
this Section 3.1, such purchases shall take place at a closing held
within 30 days after the expiration of the Remaining Stockholder's
option pursuant to this Section 3.1(b).
(c) Disposition to Third Party. If all of such Offered Shares
are not purchased pursuant to Section 3.1, then no Offered Shares may
be purchased by the Stockholders or the Remaining Stockholders pursuant
to Section 3.1, and the Selling Stockholder may retain the Offered
Shares or, subject to Section 3.2, make a Disposition of all (but not
less than all) of the Offered Shares to any transferee named in the
Transfer Event Notice within but not later than 90 days after the date
on which the option in Section 3.1(b) expires. The Offered Shares must
be disposed of at the same or higher price and upon substantially the
same terms and conditions to the transferee as those contained in the
Transfer Event Notice. If the price, terms, or conditions are to vary
substantially or the Disposition is to occur after the 90-day period,
then the Selling Stockholder's right to make a Disposition of any of
the Shares pursuant to this Section 3.1 shall terminate, and the terms
of this Section 3.1 shall again become effective.
(d) Purchase Price; Form of Payment. The purchase price per
Offered Share shall be (i) in the case of a proposed Disposition
involving a voluntary sale to a transferee, the price to be paid per
Offered Share by the transferee, payable in cash, provided, that, if
the consideration offered by the third-party transferee is not cash,
the cash price per Offered Share shall equal the fair market value (as
determined by an independent investment banker) of the consideration
described in the Transfer Event Notice or (ii) in the case of any other
proposed Disposition, the lower of (a) the price set by a court order,
if applicable, or (b) the Agreed Value, payable in either case in the
form of cash.
(e) Closing. The closing of the purchase of any Offered Shares
pursuant to this Section 3.1 shall take place on the date determined in
accordance with this Agreement or on such other date and at a place and
time as is mutually agreed upon in writing by the purchasers and the
Selling Stockholder. At the closing, the Selling Stockholder (or his or
her legal representative)
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shall deliver to the purchasers the certificates representing the
Shares to be transferred, duly endorsed with any required transfer
stamps affixed and any required transfer taxes paid, by the Selling
Stockholder, free and clear of any liens, claims or encumbrances (other
than the restrictions imposed by this Agreement), against delivery of
the purchase price.
SECTION 3.2 FORCED SALE. If STE shall receive a bona fide offer (the
"Total Offer") from a third party to purchase all (but not less than all) of the
shares of Common Stock then issued and outstanding (but not limited to the
shares of Common Stock then owned by STE only), which STE is willing to accept,
STE shall have the option, by giving each of the Stockholders (other than STE)
notice (the "Drag Along Notice"), to require that each of the Stockholders
(other than STE) shall have the obligation to sell to the third party all (but
not less than all) the shares of Common Stock then owned by each such
Stockholder for the same price per share and on the same terms and conditions as
are proposed by the third party in the Total Offer to STE.
ARTICLE 4.
SUPERMAJORITY VOTE
The following decisions shall require the affirmative vote of the
holders of 75% of the Shares then outstanding and entitled to vote:
(i) the amendment, alteration or repeal of the Company's
Certificate of Incorporation or Bylaws, other than an
amendment to the Certificate of Incorporation to increase the
authorized number of shares of common stock from 10,000 to
50,000;
(ii) the merger or consolidation of the Company with or into any
other entity or similar business combination;
(iii) the incurrence of indebtedness or the pledge of any of the
Company's assets to secure indebtedness;
(iv) the sale or lease of all or substantially all of the Company's
assets (excluding inventory sold in the ordinary course of
business) in one or a series of transactions; or
(v) the reorganization, recapitalization, restructuring or similar
transaction of the Company.
ARTICLE 5.
LEGEND
The following legend shall be placed on all certificates representing
Shares:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, GIFT, ENCUMBRANCE, OR OTHER
DISPOSITION AND THE VOTING RIGHTS OF THE SHARES EVIDENCED BY THIS
CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS, TERMS, AND CONDITIONS,
CONTAINED IN A STOCKHOLDERS AGREEMENT DATED AS OF AUGUST 28, 2001. A
COPY OF THAT AGREEMENT MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR ITS
REGISTERED OFFICE."
All Shares owned by the Stockholders or the spouses of the
Stockholders, whether outstanding at the date hereof or hereafter issued, shall
be subject to the terms of this Agreement and shall be represented by a
certificate or certificates bearing the foregoing legend.
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ARTICLE 6.
REPRESENTATIONS
SECTION 6.1 STOCKHOLDER REPRESENTATIONS AND COVENANTS. Each Stockholder
individually represents as of the date hereof that such Stockholder owns the
number of Shares set forth opposite such Stockholder's name on Exhibit A, free
from any liens, claims or encumbrances whatsoever other than the restrictions
imposed by this Agreement.
SECTION 6.2 SPOUSE REPRESENTATIONS. Each spouse of a Stockholder
individually is bound by, and such spouse's interest, if any, in any Shares is
subject to, the terms of this Agreement. Nothing in this Agreement shall create
a community property interest where none otherwise exists. Each spouse of a
Stockholder individually acknowledges that he or she is benefited by this
Agreement and that the mutual obligations contained in this Agreement constitute
adequate consideration for entering into this Agreement.
ARTICLE 7.
TERMINATION
This Agreement shall automatically terminate upon the occurrence of any
of the following events:
(a) The Disposition of all of the Shares of any Stockholder in
accordance with this Agreement, but only as to such Stockholder and not
the Shares;
(b) The complete liquidation of the Company; or
(c) The consummation of a registered public offering of the
Shares underwritten by a nationally or regionally recognized investment
banking firm that generates offering proceeds to the Company of at
least $25 million.
ARTICLE 8.
NEW STOCKHOLDERS
Other than in respect of options and shares of Common Stock issuable
under any employee stock option plan or similar plan adopted by the Company, it
shall be a condition to the issuance by the Company, or the transfer of Shares
in accordance with this Agreement, of Shares to a person or entity other than an
existing Stockholder that the recipient of such shares or securities and such
recipient's spouse, if any, shall become a signatory to this Agreement by an
Addendum Agreement with the blanks appropriately completed. The Company is
hereby granted authority and a limited power-of-attorney to execute the Addendum
Agreement for new Stockholders on behalf of the Stockholders.
ARTICLE 9.
MANAGEMENT AND CONTROL
SECTION 9.1 BOARD OF DIRECTORS. The Company's board of directors shall
be initially composed of two (2) directors. In accordance with the Bylaws, and
as soon as practicable following the formation of the Company, each Stockholder
will cause its respective designee to the board of directors to (i) increase the
size of the board of directors to five (5) persons; (ii) elect two additional
designees of STE to the board of directors; and (iii) elect one additional
designee of TeraForce to the board of directors.
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SECTION 9.2 ELECTION OF DIRECTORS BY STE.
(a) STE shall have the right to appoint three (3) members of
the Company's board of directors and shall have the right to appoint
the Chairman of the Board. TeraForce hereby agrees to vote its Shares
in favor of the persons STE nominates for membership on the board of
directors.
(b) A director elected by STE pursuant to this Article 9 shall
serve until his successor is duly elected and qualified or until his
removal. Such a director may be removed without cause at any time by
action, and only by such action, of STE. If the office of a director
elected by STE pursuant to this Article 9 becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office
or otherwise, such vacancy may be filled by the action, and only by
such action, of STE.
(c) STE shall have the right to nominate key appointment
holders in the Company, including but not limited to the Chief
Executive Officer.
SECTION 9.3 ELECTION OF DIRECTORS BY TERAFORCE.
(a) TeraForce shall have the right to appoint two (2) members
of the Company's Board of Directors. STE hereby agrees to vote its
Shares in favor of the persons STE nominates for membership on the
board of directors.
(b) A director elected by TeraForce pursuant to this Article 9
shall serve until his successor is duly elected and qualified or until
his removal. Such a director may be removed without cause at any time
by action, and only by such action, of TeraForce. If the office of a
director elected by TeraForce pursuant to this Article 9 becomes vacant
by reason of death, resignation, retirement, disqualification, removal
from office or otherwise, such vacancy may be filled by the action, and
only by such action, of TeraForce.
ARTICLE 10.
MAINTENANCE RIGHTS
SECTION 10.1 MAINTENANCE RIGHTS. The Stockholders shall have the right
(which may be exercised in whole or in part) to purchase their respective
proportionate share of any additional capital stock issued by the Company, at
the same Price and on the same terms as the capital stock to be sold by the
Company. The number of shares or other units of capital stock the Stockholders
shall have a right to acquire pursuant to this Article 10 shall be based upon
the proportion of the total outstanding shares of Common Stock which is owned by
each Stockholder. Stockholders who elect to exercise their right in full to
purchase the Offered Shares shall also have the right (which may be exercised in
whole or in part) to purchase their respective proportionate share of the stock
that was offered but not purchased by the other Stockholders. The Company shall
notify the Stockholders in writing (an "Issuance Notice") at least 10 business
days prior to the issuance of any capital stock. Each Issuance Notice shall set
forth the capital stock proposed to be issued and sold, the Price to be paid for
such capital stock and the proposed date of issuance (the "Issuance Date"). The
Stockholders shall notify the Company prior to the Issuance Date if they elect
to exercise their right to purchase capital stock and if they make such an
election, shall make payment in cash for the capital stock by certified check or
wire transfer prior to the Issuance Date. Upon receipt of such payment by the
Company, the Stockholders shall be deemed for all purposes to be the owner of
such shares of capital stock, and the Company shall cause certificates
representing such capital stock to be issued to the Stockholders as soon as
practicable. Any Offered Shares not purchased by the Stockholders may then be
offered by the Company to outside investors on the same terms offered to the
Stockholders. The Company may sell capital stock described in an Issuance
Notice, during a period not to exceed 90 days after the receipt of the
Stockholders of the Issuance Notice. Thereafter, any issuance by the Company
must again be preceded by an offer to the Stockholders.
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As used herein, the "Price" at which capital stock is to be issued by
the Company shall be (i) in the case of cash consideration paid for such capital
stock, the amount of such cash consideration and (ii) in the case of noncash
consideration, the fair market value of such consideration, as determined in
good faith by the members of the board of directors of the Company.
SECTION 10.2 EXCEPTIONS. Notwithstanding the foregoing, the rights
created by this Article 10 shall not apply to any issuance of capital stock (i)
pursuant to any thrift plan, stock purchase plan, stock bonus plan, stock option
plan, employee stock ownership plan or other incentive or profit sharing
arrangement for the benefit of employees or non-employee directors of the
Company or its subsidiaries, (ii) in connection with any stock split or a
dividend or distribution of shares of Common Stock to all of the holders
thereof, or (iii) pursuant to any transaction registered under the Securities
Act.
SECTION 10.3 TERMINATION OF MAINTENANCE RIGHTS. The provisions of this
Article 10 and the rights granted hereunder shall terminate upon the date of the
consummation of a registered public offering of the Shares underwritten by a
nationally or regionally recognized investment banking firm that generates
offering proceeds to the Company of at least $25 million.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1 SIMULTANEOUS DEATH. If a Stockholder and his or her
spouse reside in a state with community property laws and both suffer a common
accident or casualty which results in their respective deaths within 60 days of
each other, it shall be conclusively presumed, for the purpose of this
Agreement, that the Stockholder died first and his or her spouse died
thereafter.
SECTION 11.2 BINDING EFFECT. This Agreement shall be binding upon the
parties hereto, their heirs, administrators, executors, successors and assigns.
The obligations of the Stockholders under this Agreement shall be binding upon
any person or entity (other than the Company) acquiring any Shares, regardless
of how acquired from a Stockholder.
SECTION 11.3 ATTORNEYS' FEES. If any Stockholder unsuccessfully
challenges the operation of this Agreement by commencing a suit or proceeding in
any court ("Legal Action"), or the Company or any Stockholder successfully
resorts to Legal Action to enforce this Agreement against a Stockholder, then
the unsuccessful parties shall pay all reasonable legal fees of all other
parties to such Legal Action.
SECTION 11.4 SPECIFIC PERFORMANCE. The parties acknowledge that
remedies at law will be inadequate remedies for breach of this Agreement and
consequently agree that this Agreement shall be enforceable by specific
performance. The remedy of specific performance shall be cumulative of all of
the rights and remedies at law or in equity of the parties under this Agreement.
SECTION 11.5 TRANSFERS IN VIOLATION OF AGREEMENT. Any transfer or
attempted transfer of any Shares not in full compliance with the terms of this
Agreement shall be null and void, and the Company shall not record such transfer
on its books or treat any purported transferee of such Shares as the owner of
such Shares for any purpose. Notwithstanding the preceding, the Company, at any
time prior to the expiration of six months after the Company receives written
notice of such transfer, may purchase any improperly transferred Shares at a
price and in all respects as if notice of the proposed transfer had been timely
given as provided herein instead of treating the transfer as void. In enforcing
such rights, the Company may hold and refuse to transfer any Shares or any
certificate therefor presented to it for transfer, in addition to, and without
prejudice to, any and all other rights or remedies that may be available to it.
SECTION 11.6 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid with return receipt
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requested, telecopy (with hardcopy delivered by overnight courier service), or
delivered by hand, messenger or overnight courier service, and shall be deemed
given when received at the addresses of the parties set forth below, or at such
other address furnished in writing to the other parties hereto.
Company: Intelect Technologies Inc.
1225 Commerce Drive
Richardson, Texas 75081
Attn: Chief Executive Officer
Fax: (972) 367-2200
TeraForce: TeraForce Technology Corporation
1240 E. Campbell Road
Richardson, Texas 75081
Attn: Robert P. Capps
Telecopy: (469) 330-4972
with a copy to: Haynes and Boone, LLP
1600 N. Collins, Suite 2000
Richardson, Texas 75080
Attn: William L. Boeing
Telecopy: (972) 680-7551
STE: Singapore Technologies Electronics Limited
24 Ang Mo Kio Street 65
Singapore 569061
Attn: Ng Kim Hock
Fax: (65) 4848840
Fax: (214) 902-0938
SECTION 11.7 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement (including
the Exhibits hereto) constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes all prior oral and
written agreements between the parties. This Agreement may not be modified,
amended or otherwise changed in any manner except by a writing executed by the
Company and all Stockholders that are a party to this Agreement. This Agreement
may be executed in a number of identical counterparts (including counterparts or
signature pages executed and transmitted by telecopy) with the same effect as if
all signatories had signed the same document. All counterparts must be construed
together to constitute one and the same instrument.
SECTION 11.8 WAIVER. The waiver by one party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach of the same or any other provision by the
other party. Either party hereto may waive the benefit of any provision or
condition for its benefit contained in this Agreement.
SECTION 11.9 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED
STATES APPLICABLE THERETO AND THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AN
AGREEMENT EXECUTED, DELIVERED AND PERFORMED IN SUCH STATE. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Northern District of Texas and, if such court does not
have jurisdiction, of the courts of the State of Texas in Dallas County, for the
purposes of any action arising out of this Agreement, or the subject matter
hereof or thereof brought by any other party.
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SECTION 11.10 REFORMATION; SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, such provision shall be
reformed to best effectuate the intent of the parties and permit enforcement
thereof, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. If such
provision is not capable of reformation, it shall be severed from this agreement
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement. References to "Sections"
herein are references to Sections of this Agreement. The words "herein,"
"hereof," "hereto" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision.
* * * * *
13
EXECUTED as of the date first stated above.
INTELECT TECHNOLOGIES INC.
By: /s/ Darly G. Lewellyn
-----------------------
Name: Daryl G. Lewellyn
Title: President and Secretary
TERAFORCE TECHNOLOGY CORPORATION
By: /s/ Robert P.Capps
--------------------
Name: Robert P. Capps
Title: Executive Vice President and Chief
Financial Officer
SINGAPORE TECHNOLOGIES ELECTRONICS LIMITED
By: /s/ Ng Kim Hock
-----------------
Name: Ng Kim Hock
Title: Vice President (USA Operations)