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EXHIBIT 10.75
PURCHASE AGREEMENT
dated as of December 16, 1997
among
INTELECT COMMUNICATIONS, INC.
and
NAVESINK EQUITY DERIVATIVE FUND LDC
___________________________
$4,000,000 Preferred Stock
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PURCHASE AGREEMENT
This Purchase Agreement dated as of December 16, 1997 (the "Agreement"),
among Intelect Communications, Inc., a Delaware corporation (the "Company"),
and Navesink Equity Derivative Fund LDC, a Cayman Island limited duration
company (the "Purchaser");
WITNESSETH:
WHEREAS, the Purchaser has agreed to purchase, and the Company has
agreed to issue, 914,286 shares of the Company's $4.375 10% Cumulative
Convertible Preferred Stock, Series B, $.01 par value (the "Preferred Shares"),
for the consideration and under the terms and conditions set forth herein;
WHEREAS, the parties desire to set forth in this Agreement certain other
and related agreements between them;
NOW, THEREFORE, the parties agree that:
I.
DEFINITIONS
1.1 Definitions. For purposes hereof, the following terms shall have
the following definitions or shall be subject to the following rules of
construction:
(a) "Affiliate" of any person shall mean (i) any member of the
immediate family of such person, including parents, siblings, spouse and
lineal descendants (including those by adoption); the parents, siblings,
spouse, or lineal descendants (including those by adoption) of such
immediate family member; and in any such case any trust whose primary
beneficiary is such person or one or more members of such immediate
family and/or such person's lineal descendants; (ii) the legal
representative or guardian of such person or of any such immediate
family members in the event such person or any such immediate family
members becomes mentally incompetent; and (iii) any person, corporation
or other entity controlling, controlled by or under common control with
such person. As used in this definition, the term "control", including
the correlative terms "controlling", "controlled by" and "under common
control with" shall mean possession, directly or indirectly, of the
power to direct or cause the direction of management or policies
(whether through ownership of securities or any partnership or other
ownership interest, by contract or otherwise) of a person, corporation
or other entity.
(b) "Board of Directors" means the Board of Directors of the
Company.
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(c) "Business Day" shall mean a day (other than a Saturday,
Sunday or legal holiday).
(d) "Certificate of Designations" shall mean the Certificate
of the Designations, Preference and Relative, Participating, Optional or
Other Special Rights of the Preferred Shares, attached hereto as Exhibit
A.
(e) "Common Stock" means shares of the Company's Common Stock,
$.01 par value per share.
(f) "Company" shall mean Intelect Communications, Inc.,
including all successors thereto, and whether merged, consolidated,
reincorporated or as its name, domicile or jurisdiction may change from
time to time.
(g) "Face Amount" shall mean $4.375 per share of the Preferred
Shares.
(h) "Purchaser" means Navesink Equity Derivative Fund LDC
including all successors thereto, and whether merged, consolidated,
reincorporated or as its name, domicile or jurisdiction may change from
time to time.
(i) "Market Price" means the average Trading Price of a share
of Common Stock for the five (5) consecutive trading days of the Common
Stock preceding the date in question.
(j) "Material Adverse Effect" shall mean a material and
adverse effect on the operations or financial condition of the Company
or its Subsidiaries.
(k) "Preferred Shares" means the Company's $4.375 10%
Cumulative Convertible Preferred Stock, Series B, $.01 par value per
share.
(l) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement by and between the Company and the
Purchaser attached hereto as Exhibit B.
(m) "Securities" means the Preferred Shares and all shares of
Common Stock into which the Preferred Shares are convertible, and all
other shares of capital stock received on account of such Preferred
Shares or Common Stock in respect of any stock split, stock dividend,
recapitalization, reorganization or other similar corporate events.
(n) "Securities Act" means the Securities Act of 1933, as
amended.
(o) "Trading Price" means, on any trading day for the Common
Stock, (i) if the Common Stock is traded on a national securities
exchange on such trading day, then the closing price on such trading day
as reflected in the consolidated trading tables of the
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Wall Street Journal or any other appropriate publication, (ii) if the
Common Stock is traded over-the-counter and reported on the NASDAQ
National Market System, then the closing market bid price on such
trading day as reported in such publication or, if not so published,
then as reported by the NASDAQ National Market System, or (iii) if the
Common Stock is not traded on a national securities exchange or in the
NASDAQ National Market System on such trading day, then the closing
market bid price at the end of such trading day in such market as
reported by NASDAQ.
(p) "Underlying Stock" means all shares of Common Stock into
which the Preferred Shares are convertible, and all other shares of
capital stock received on account of such Preferred Shares or Common
Stock in respect of any stock split, stock dividend, recapitalization,
reorganization or other similar corporate events.
(q) All accounting terms used herein and not expressly defined
herein shall have the meanings given to them in accordance with
generally accepted accounting principles consistently applied and in
effect as of the date of the relevant calculation.
II.
SALE OF SHARES; INITIAL CLOSING; AND RELATED TRANSACTIONS
2.1 Sale and Purchase of Preferred Shares. On the terms and subject
to the conditions of this Agreement, the Company agrees to issue and sell to
the Purchaser, and the Purchaser agrees to purchase, 914,286 Preferred Shares,
for a purchase price of $4.375 per share, for an aggregate purchase price of
$4,000,000, payable in cash at the Closing.
2.2 The Closing. The sale and purchase of the Preferred Shares (the
"Closing") shall take place on or before the date hereof (the "Closing Date")
at the offices of Ryan & Sudan, L.L.P., 909 Fannin, Suite 3900, Houston, Texas.
At the Closing the Company shall deliver to the Purchaser certificate(s)
evidencing the Preferred Shares, registered in its name, against payment for
the Preferred Shares.
Payment for the Preferred Shares shall be made in cash by wire transfer
to an account designated by the Company of funds immediately payable in
Houston, Texas.
2.3 Related Transactions. In addition to the sale and purchase of
the Preferred Shares, the Company and the Purchaser shall execute and deliver
the Registration Rights Agreement at the Closing and shall execute and promptly
file the Certificate of Designations with the Secretary of State of Delaware.
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III.
TERMS OF PREFERRED SHARES
2.1 General. The Preferred Shares shall have the designations,
preferences, rights and limitations as set forth herein and in the Certificate
of Designations attached hereto as Exhibit A.
2.2 Costs. The Company shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of shares of
Common Stock of the Company or other securities or property upon conversion of
the Preferred Shares; provided, however, that the Company shall not be required
to pay any taxes which may be payable in respect of any transfer involved in
the issuance or delivery of any certificate for such shares or securities in
the name other than that of the holder of the Preferred Shares in respect of
which such shares are being issued.
2.3 Reservation of Shares. The Company shall reserve at all times so
long as any Preferred Shares remain outstanding, free from preemptive rights,
out of its treasury stock or its authorized but unissued shares of Common
Stock, or both, solely for the purpose of effecting the conversion of Preferred
Shares, sufficient shares of Common Stock to provide for the conversion of all
outstanding Preferred Shares and set aside and keep available any other
property deliverable upon conversion of all outstanding Preferred Shares.
2.4 Valid Issuance. All shares of Common Stock or other securities
which may be issued upon conversion of the Preferred Shares will upon issuance
by the Company be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issuance thereof and
the Company shall take no action which will cause a contrary result.
IV.
REPRESENTATIONS OF THE COMPANY
4.1 Company Representations and Covenants. The Company represents,
warrants and covenants to the Purchaser as follows:
(a) The Company has been duly incorporated and is validly
existing and in good standing under the laws of Delaware, with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as currently conducted, and is duly
registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify
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does not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company. The Company has registered its Common Stock pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), is in full compliance with all reporting requirements
of the Exchange Act, and the Company's common shares are quoted on the
Nasdaq National Market (trading symbol ICOM);
(b) The Securities, when issued upon full payment therefor or
upon conversion therein, and delivered pursuant to this Agreement, will
be duly and validly authorized and issued, fully paid and nonassessable,
free from all encumbrances and restrictions other than restrictions on
transfer imposed by applicable securities laws and/or this Agreement,
and will not subject the Purchaser to personal liability by reason of
being such Purchaser; and
(c) This Agreement has been duly authorized, validly executed
and delivered on behalf of the Company and is a valid and binding
agreement of the Company in accordance with its terms, subject to
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally and general principles of equity, and the
Company has full power and authority to execute and deliver this
Agreement and the other agreements and documents contemplated hereby and
to perform its obligations hereunder and thereunder.
V.
REPRESENTATIONS OF THE PURCHASER
The Purchaser hereby acknowledges, represents, warrants, and covenants
to, and agrees with, the Company, as follows:
5.1 General.
(a) This Agreement has been duly authorized, validly executed
and delivered on behalf of the Purchaser and is a valid and binding
agreement of the Purchaser in accordance with its terms, subject to
general principles of equity and of bankruptcy or other laws affecting
the enforcement of creditors' rights;
(b) The Purchaser is acquiring the Securities for his own
account as principal, for investment purposes only, and not with a view
to, or for, resale, distribution or fractionalization thereof, in whole
or in part and no other person has a direct or indirect beneficial
interest in such Securities;
(c) The Purchaser acknowledges his understanding that the
offering and sale of the Securities is intended to be exempt from
registration under the Securities Act and,
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in furtherance thereof, the Purchaser represents and warrants to and
agrees with the Company as follows:
(i) The Purchaser has the financial ability to bear the
economic risk of his investment, has adequate means for providing
for his current needs and personal contingencies and has no need
for liquidity with respect to his investment in the Company; and
(ii) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of the prospective investment.
5.2 Information Concerning the Company.
The Purchaser:
(a) Acknowledges that it has access to copies of (and
acknowledges that the Company has offered to provide, upon its request,
copies of) the most recent Annual Report on Form 10-K filed with the
Securities and Exchange Commission ("SEC") of Intelect Communications
Systems Limited, a company organized under the laws of Bermuda ("ICSL"),
all Forms 10-Q of ICSL and the 8-K's of ICSL and the Company filed
thereafter, the Proxy Statement for ICSL's 1997 Annual General Meeting
and for its Special Meeting of Shareholders on December 4, 1997, the
description of the Company's Common Shares set forth in the Company's
Registration Statement on Form 8-A together with and amendments thereto,
the Registration Statement of the Company on Form S- 4 as filed with the
SEC on October 30, 1997, any other registration statements, reports or
forms filed of the Company filed pursuant to the Securities Act of 1933
since December 4, 1997, and any other subsequently filed documents of
the Company or ICSL filed pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, each as filed with the SEC (the
"Public Documents"), and the Purchaser has carefully read the Public
Documents and understands and has evaluated the risks of a purchase of
the Securities and the considerations described in the Public Documents;
and has relied solely (except as indicated in subsections (b) and (c)
below) on the information contained in the Public Documents;
(b) Is familiar with the business and financial condition,
properties, operations, and prospects of the Company and ICSL, all as
generally described in the Public Documents; has been given the
opportunity to ask questions of, and receive answers from, the
appropriate officers of the Company concerning the terms and conditions
of the Offering and other matters pertaining to this investment and has
asked such questions as it desires to ask and all such questions have
been answered to the full satisfaction of the Purchaser; has been given
the opportunity to obtain such additional information (to the extent the
Company possesses such information or can acquire it without
unreasonable
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effort or expense) necessary to verify the accuracy of the information
contained in the Public Documents in order for it to evaluate the merits
and risks of purchase of the Securities;
(c) Has not been furnished with any oral representation or
warranty in connection with the offering of the Securities by the
Company or any officer, employee, agent, affiliate or subsidiary, which
is not contained in this Agreement, and is relying solely on the
information contained in this Agreement and in the Public Documents;
(d) Understands that the purchase of the Securities involves
various risks including, but not limited to, those outlined in the
Public Documents and in this Agreement, and has determined that the
Securities are a suitable investment and that at this time it could bear
a complete loss of its investment;
(e) Is not relying on the Company with respect to the economic
considerations of the Purchaser related to this investment. The
Purchaser has relied on the advice of, or has consulted with, in regard
to the economic considerations related to this investment, only its own
advisors;
(f) The Purchaser, a limited liability company, is authorized
and qualified to become a stockholder in, and authorized to make its
capital contributions to, the Company, and the person signing this
Agreement on behalf of such entity has been duly authorized by such
entity to do so;
(g) Any information which the Purchaser has heretofore
represented or furnished to the Company with respect to its financial
position and business experience is correct and complete as of the date
of this Agreement and if there should be any material change in such
information it will immediately furnish such revised or corrected
information to the Company; and
(h) The Purchaser understands that, unless the Purchaser
notifies the Company in writing to the contrary before the Closing, all
the representations and warranties contained in this Agreement will be
deemed to have been reaffirmed and confirmed as of the Closing, taking
into account all information received by the Purchaser.
5.3 Restrictions on Transfer or Sale of the Securities:
(a) The Purchaser is acquiring the Securities solely for the
Purchaser's own beneficial account, for investment purposes, and not
with a view to, or for resale in connection with, any distribution of
the Securities. The Purchaser understands that the offer and sale of the
Securities has not been registered under the Securities Act or any state
securities laws by reason of specific exemptions under the provisions
thereof which depend in part upon the investment intent of the Purchaser
and of the other representations made
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by the Purchaser in this Agreement. The Purchaser understands that the
Company is relying upon the representations, covenants and agreements
contained in this Agreement (and any supplemental information) for the
purpose of determining whether this transaction meets the requirements
for such exemptions.
(b) Without limiting the restrictions governing the transfer
of the Preferred Shares as set forth in the Article and in Article IX
hereof, the Purchaser understands that the Securities are restricted
securities under applicable federal securities laws and that the
Securities Act and the rules of the SEC provide in substance that the
Purchaser may dispose of the Securities only pursuant to an effective
registration statement under the Securities Act or an exemption
therefrom.
(c) The Purchaser agrees (i) that the Purchaser will not sell,
assign, pledge, give, transfer or otherwise dispose of the Preferred
Shares or any interest therein, or make any offer or attempt to do any
of the foregoing, either pursuant to Rule 144 of the Securities Act or
otherwise; (ii) that the Company and any transfer agent for the
Preferred Shares shall not be required to give effect to any purported
transfer of any of the Preferred Stock; and (iii) that a legend in
substantially the following form will be placed on the certificates
representing the Preferred Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF A PURCHASE AGREEMENT BETWEEN THE HOLDER AND THE COMPANY
WHICH RESTRICT THE TRANSFER OF SUCH SHARES. FURTHER, THESE SHARES
HAVE BEEN TAKEN WITHOUT A VIEW TO THE DISTRIBUTION THEREOF WITHIN
THE MEANING OF THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF.
(d) The Purchaser agrees further: (i) that the Purchaser will
not sell, assign, pledge, give, transfer or otherwise dispose of the
Common Stock issued either upon conversion of the Preferred Shares or as
dividends on the Preferred Shares, or any interest therein, or make any
offer or attempt to do any of the foregoing; except pursuant to a
registration of the Common Stock under the Securities Act and all
applicable state securities laws or based on a written opinion of
counsel reasonably satisfactory to the Company to the effect that the
transaction is exempt from the registration provisions of the Securities
Act and all applicable state securities laws; (ii) that the Company and
any transfer agent for the Common Stock shall not be required to give
effect to any purported transfer of any of the Common Stock except upon
compliance with the foregoing restrictions; and (iii) that a legend in
substantially the following form will be placed on the certificates
representing the Common Stock:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN TAKEN
WITHOUT A VIEW TO THE DISTRIBUTION THEREOF WITHIN THE
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MEANING OF THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THE
COMPANY WILL NOT TRANSFER SUCH SHARES EXCEPT UPON RECEIPT OF A
FAVORABLE OPINION OF ITS COUNSEL AND/OR EVIDENCE SATISFACTORY TO
THE COMPANY THAT THE REGISTRATION PROVISIONS OF SUCH ACT HAVE
BEEN COMPLIED WITH OR THAT SUCH REGISTRATION IS NOT REQUIRED AND
THAT SUCH TRANSFER WILL NOT VIOLATE ANY APPLICABLE STATE
SECURITIES LAWS.
(e) The Purchaser has not offered or sold any portion of the
Securities and has no present intention of dividing such Securities with
others or of reselling or otherwise disposing of any portion of such
Securities either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or nonoccurrence of
any predetermined event or circumstance.
IX.
RELATED AGREEMENTS
9.1 Right of First Refusal. Subject to the existing right of first
refusal in favor of the holders of the 10% Cumulative Convertible Preferred
Stock of the Company, Series A (the "Series A Preferred"), the Company hereby
grants to Purchaser the right of first refusal to participate in any offering
of an equity interest, including common stock, preferred stock, warrants or
convertible debentures, to be offered by the Company or brought to the Company,
but excluding (i) underwritten public offerings of Common Stock, (ii) project
financings, (iii) bank financings, (iv) any capital stock of the Company issued
pursuant to warrants, conversion of the Series A Preferred, or other rights
issued prior to the date hereof, (v) the issuance, sale, exercise or conversion
or grant of options to purchase Common Stock pursuant to any of the Company's
employee stock option, compensation, bonus or incentive plans or otherwise, and
(vi) the issuance or sale of any equity or debt securities used for
acquisitions by the Company of operating assets or stock of entities to be
owned and operated by the Company or a subsidiary of the Company. In the event
that the Company offers, seeks to offer, or receives a proposal to offer, an
equity interest, including preferred stock, warrants, or convertible
debentures, the Company shall first offer the right to participate in such
offering to the Purchaser, subject to the rights of the holder of the Series A
Preferred. The Company shall deliver a true copy of such proposal, term sheet,
information memorandum or other offering description (the "Proposal") to the
Purchaser. The Purchaser shall have thirty (30) days thereafter to indicate
its intent to participate at the price and otherwise on the terms and
conditions contained in such Proposal by giving written notice to the Company
to such effect within said period and stating therein the quantity of
securities to be purchased. All other terms and conditions of Purchaser's
participation in such offering shall be
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on a commercially reasonable basis, and in compliance with all applicable laws
and regulations. Purchaser may conduct such due diligence as is reasonably
necessary and appropriate under the circumstances. If Purchaser fails to
exercise in full the right of first refusal within such thirty (30) day period,
then the Company shall have one hundred twenty (120) days thereafter to sell
the securities with respect to which Purchaser's rights were not exercised, at
a price and upon general terms no more favorable to the purchasers thereof than
specified in the Company's notice. In the event that the Company has not sold
the securities within such one hundred twenty (120) day period, the Company
shall not thereafter issue or sell any such securities without first offering
such securities to Purchaser in the manner provided above. The right of first
refusal granted under this Section shall terminate the date upon which
Purchaser ceases to own at least one-half (1/2) of the Preferred Shares and is
subject in all cases to the rights of the holders of the Series A Preferred
Shares.
9.2 Registration Rights. The Company hereby grants to Purchaser
registration rights for the Underlying Stock as set forth in the Registration
Rights Agreement, dated the date hereof among the Company and the Purchaser,
attached hereto as Exhibit B.
9.3 Certain Additional Restrictions on the Securities.
(a) The Purchaser agrees that the Purchaser will not sell,
assign, pledge, give, transfer, or otherwise dispose of the Preferred
Shares or any interest therein, or make any offer or attempt to do any
of the foregoing.
(b) The Purchaser further agrees that it will not, nor will it
permit any of its affiliates, directly or indirectly, without the prior
written consent of the Company duly authorized by a majority of its
Board of Directors, to:
(i) except for investment purposes only, acquire,
directly or indirectly, by purchase or otherwise, any securities
of the Company entitled to vote generally for the election of
directors or securities convertible into such securities (any
such securities, including the Common Stock, are hereinafter
sometimes referred to as the "Voting Securities");
(ii) "solicit" proxies with respect to Voting Securities
under any circumstances or become a "participant" in any
"election contest" relating to the election of directors of the
Company, as such terms are defined in Regulation 14A under the
1934 Act, as amended;
(iii) initiate, propose or otherwise solicit shareholders
for the approval of one or more shareholder proposals at any
time, or induce or attempt to induce any other person to initiate
any shareholder proposal; or
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(iv) except as contemplated by this Agreement,
take any action to acquire or affect control of the Company or
to encourage or assist any other person to do so.
X.
MISCELLANEOUS
10.1 Interpretation. Nothing in this Agreement may be read or
construed to violate the rules of the SEC or any market in which the Common
Stock or any other securities of the Company are traded, nor violate the
maintenance criteria of the NASDAQ Rule 4460(i)(1)(D)(iii), as applied to all
shares of the Company's Common Stock, preferred stock, and the Preferred Shares
deemed to be aggregated under said Rule, and the parties hereto agree that in
the event such violation would otherwise occur, this Agreement shall not be
enforceable against either party to the extent of such occurrence, and further,
the parties agree that in the event such violation would otherwise occur, they
shall amend this Agreement and the Certificate of Designations to reflect such
adjustment to price or quantity as may be necessary to avoid the occurrence of
such violation.
10.2 Placement Fee. For its services in connection with the Offering,
the Company is paying a placement fee to Lifeline Industries, Inc. ("Lifeline")
in the amount of 2.5% of the aggregate dollar amount of the Preferred Shares
sold under this Offering all of which is payable to Lifeline in the form of
cash from the Offering.
10.3 Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed to such party
at its address set forth below or at such other address as either of the
parties hereby may hereafter notify the other in writing.
To Company: INTELECT COMMUNICATIONS, INC.
1100 Executive Drive
Richardson, Texas 75081
Telephone: 972-367-2100
Telecopy: 972-367-2271
Attention: Herman Frietsch, Chairman and CEO
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with a copy to: Philip P. Sudan, Jr.
Ryan & Sudan, L.L.P.
909 Fannin, 39th Floor
Houston, Texas 77010
Telephone: 713-652-0501
Telecopy: 713-652-0503
To Purchaser: NAVESINK EQUITY DERIVATIVE FUND LDC
c/o RUMSON CAPITAL, L.L.C.
The Galleria Building One, 3rd Floor
2 Bridge Avenue Red
Bank, New Jersey 07001
Attn: Mr. John Burke
Telephone: 732-747-7716
Telecopy: 732-747-3687
10.4 Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, the Company may not assign or
transfer any of its interest hereunder without the prior written consent of the
Purchaser and provided further that the Purchaser may not assign this Agreement
or its interest hereunder without the prior written consent of the Company,
which consent of either party shall not be withheld unreasonably.
10.5 Survival of Agreements. All representations and warranties of
the Company and Purchaser herein shall survive the effective date of this
Agreement.
10.6 Invalidity. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement.
10.7 Amendment or Waiver. This Agreement may not be amended, changed,
waived, discharged or terminated without the written consent of the Company and
the Purchaser.
10.8 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Company or the Purchaser in exercising any right, power or privilege
hereunder and no course of dealing between the Company and the Purchaser shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Company or the Purchaser would otherwise
have.
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10.9 Headings. The descriptive headings of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
10.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the different Parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Company and the Purchaser.
10.11 Governing Law. THIS AGREEMENT, AND THE APPLICATION OR
INTERPRETATION THEREOF, SHALL BE GOVERNED EXCLUSIVELY BY ITS TERMS AND BY THE
LOCAL, INTERNAL LAW OF THE STATE OF TEXAS, U.S.A., EXCEPT TO THE EXTENT THE
CONFLICTS OF LAWS RULES OF THE STATE OF TEXAS WOULD REQUIRE THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION IN WHICH CASE THE LAWS OF THE STATE OF TEXAS
SHALL NONETHELESS APPLY. THE PARTIES CONSENT TO JURISDICTION IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF HARRIS, STATE OF TEXAS, U.S.A.
10.12 Entire Agreement. This Agreement, including the Exhibits
attached hereto and the documents delivered pursuant hereto, constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes all previous communications, representations,
understandings, and agreements, either oral or written, between the parties
with respect to the subject matter.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
duly executed as of the date first above written.
INTELECT COMMUNICATIONS, INC. NAVESINK EQUITY DERIVATIVE
FUND LDC
By: RUMSON CAPITAL, L.L.C.
By: /s/ HERMAN M. FREITSCH By: /s/ JOHN BURKE
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Herman M. Frietsch, Chairman John Burke, Managing Member
and Chief Executive Officer
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