Exhibit 4.1
INVESTMENT LETTER AND GRANT OF REPURCHASE RIGHT
September 19, 2002
Emergisoft Holding, Inc.
2225 Avenue J
Arlington, Texas 76006
Re: Investment in Emergisoft Holding, Inc.
Ladies and Gentlemen:
In connection with the issuance to the undersigned of 1,875,005 shares (the
"Shares") of common stock, $.001 par value per share, of Emergisoft Holding,
Inc, a Nevada corporation ("Emergisoft") for a total amount of $1,000,000.00 or
an amount of $0.533332 per share, you have requested that the undersigned
provide documentation that the issuance (the "Issuance") is exempt from
registration under the Securities Act of 1933, as amended (the "Securities
Act"). The undersigned has also agreed to provide to Emergisoft a repurchase
right as to the Shares. Accordingly, the undersigned makes the following
representations and agreements:
1. Investment Intent. The undersigned is acquiring the Shares for its own
account with no present intention of distributing the same or participating in a
distribution of the same, as the term distribution is used under the Securities
Act.
2. Restrictions on Resale of Shares. The undersigned understands that
because the Issuance of the Shares to the undersigned has not been registered
under the Securities Act, the Shares are or will be "restricted securities" as
that term is defined in Rule 144 as promulgated by the Securities and Exchange
Commission ("SEC") under the Securities Act, and the undersigned cannot dispose
of any or all of the Shares unless such Shares are subsequently registered under
the Securities Act or in a transfer that, in the opinion of counsel for
Emergisoft, is exempt from such registration. The undersigned further
understands that Emergisoft will, as a condition to the transfer of any of
portion of the Shares, require that the request for transfer be accompanied by
an opinion of counsel, in form and substance satisfactory to Emergisoft, to the
effect that the proposed transfer does not require registration under the
Securities Act, unless such transfer is covered by an effective registration
statement under the Securities Act. The undersigned understands that the Shares
may not be sold publicly in reliance on the exemption from registration under
the Securities Act afforded by Rule 144 unless and until the minimum one-year
holding period and the other requirements of Rule 144 have been satisfied.
3. Sophistication. The undersigned represents and warrants that: (i) the
undersigned is knowledgeable and experienced in business and financial matters
and capable of evaluating the merits and risks of, and making an informed
decision with regard to, the investment in the Shares; (ii) the undersigned is
able to bear the economic risk of loss of its investment in the Shares; (iii)
the undersigned has been granted the opportunity to make a thorough
investigation of the affairs of Emergisoft, and has availed itself of such
opportunity either directly or through its authorized representatives; and (iv)
the undersigned has had access to the same kind of information about Emergisoft
that would be contained in a registration statement filed by Emergisoft with the
SEC, and has received all information the undersigned believes necessary to make
an informed decision about its acquisition of the Shares.
4. Private Offering. The undersigned has been advised that the Issuance to
the undersigned has not been registered under the Securities Act and that
Emergisoft in authorizing the Issuance to the undersigned is relying upon, among
other things, the representation and warranties of the undersigned contained
herein, including that such issuance is a "private offering" and does not
require compliance with the registration provisions of the Securities Act.
5. Stock Legend. The undersigned understands and agrees that the
certificates evidencing the Shares issued to the undersigned will bear a
restrictive legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE "RESTRICTED
SECURITIES." AS SUCH THEY MAY NOT BE TRANSFERRED UNLESS (A) SUCH
TRANSFER IS MADE PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
FILED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND DECLARED
EFFECTIVE BY THE SECURITIES AND EXCHANGE COMMISSION, OR (B) IN THE
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER OF THESE SHARES, SUCH
TRANSFER MAY BE EFFECTIVE UNDER, AND IS IN COMPLIANCE WITH RULE 144
UNDER THE ACT AS IN EFFECT AT THE DATE OF SUCH TRANSFER, OR IS
OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
6. Stop Transfer Orders. The undersigned is aware that stop transfer
instructions will be given to the transfer agent of Emergisoft's capital stock
to prevent unauthorized or illegal transfers of shares of Emergisoft's capital
stock held by the undersigned.
7. Right to Repurchase. The undersigned hereby grants to Emergisoft the
non-transferable (except by operation of law) right, but not the obligation, to
repurchase from the undersigned all or any portion of the Shares at any time and
from time to time during a one year period commencing on the date of this
letter. The repurchase price shall be $2.40 per share if the shares are
repurchased prior to September 19, 2003. If Emergisoft elects to exercise its
right of repurchase pursuant to this paragraph, it shall do so by giving written
notice thereof to the undersigned, which notice shall specify the number of
shares owned by the undersigned as to which Emergisoft is exercising its
repurchase right. The repurchase by Emergisoft, and the sale by the undersigned,
of such shares shall be consummated at a closing to be held at the offices of
Emergisoft not later than thirty (30) days following the date Emergisoft gives
written notice of its exercise of such repurchase right. Payment of the
repurchase price by Emergisoft shall be made in cash against delivery of the
shares being repurchased. The undersigned agrees that it will not, for a period
of one year from the date of this letter, offer to sell, contract to sell, or
otherwise sell, dispose of, loan, pledge or grant any rights with respect to the
Shares.
8. Indemnification. The undersigned agrees to indemnify Emergisoft for any
and all losses Emergisoft may suffer as a result of a breach of the
representations and agreements contained herein.
Sincerely,
BERLWOOD FIVE, LTD.
By: BERLWOOD THREE, L.L.C.,
General Partner
By: /s/ Linda Thomas
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Name: Linda Thomas
Title: Manager