1
EXHIBIT 10.15
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT ("Agreement") is made as of March
23, 2000, by and between Software Technologies Corporation, a California
corporation (the "Company"), and Computer Sciences Corporation, a Nevada
corporation ("CSC").
WHEREAS, the Company intends to grant a warrant to CSC, which
warrant will be exercisable for shares of the Company's common stock upon the
achievement of certain defined events; and
WHEREAS, the parties hereto wish to provide for the sale and
issuance of such warrant in consideration for services rendered and to be
rendered to the Company by CSC as contemplated by Section 3 of the Warrant;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Issuance of the Warrant. The Company hereby sells and issues to CSC a
warrant (the "Warrant") to purchase shares of the Company's common stock
(collectively, the "Common Stock") as set forth therein in consideration for
services rendered and to be rendered to the Company by CSC as contemplated by
Section 3 of the Warrant. The Warrant shall be in the form attached hereto as
Exhibit A.
2. Representations and Warranties of the Company. In connection with the
transactions provided for herein, the Company hereby represents and warrants to
CSC that:
(a) Organization, Good Standing, and Qualification. The Company
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of California and has all requisite corporate power and
authority to carry on its business as now conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse effect on its
business or properties.
(b) Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder, and the authorization, issuance (or
reservation for issuance), and delivery of the Warrant and the Common Stock
issuable upon exercise of the Warrant has been taken or will be taken prior to
the Closing.
(c) Valid Issuance of Common Stock. The Common Stock, when
issued, sold, and delivered in accordance with the terms of the Warrant for the
consideration expressed therein, will be duly authorized and validly issued,
fully paid, and nonassessable and, based upon the representations of CSC in this
Agreement, will be issued in compliance with all applicable federal and state
securities laws.
3. Representations and Warranties of CSC. In connection with the
transactions provided for herein, CSC hereby represents and warrants to the
Company that:
2
3.1 Authorization. This Agreement constitutes CSC's valid and
legally binding obligation, enforceable in accordance with its terms.
3.2 Purchase Entirely for Own Account. CSC acknowledges that this
Agreement is made with CSC in reliance upon CSC's representation to the Company
that the Warrant and the Common Stock issuable upon exercise of the Warrant
(collectively, the "Securities") will be acquired for investment for CSC's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that CSC has no present intention of
selling, granting any participation in, or otherwise distributing the same. By
executing this Agreement, CSC further represents that CSC does not have any
contract, undertaking, agreement, or arrangement with any person to sell,
transfer, or grant participations to such person or to any third person, with
respect to the Securities. CSC represents that it has full power and authority
to enter into this Agreement.
3.3 Disclosure of Information. CSC acknowledges that it has
received all the information it considers necessary or appropriate for deciding
whether to acquire the Securities. CSC further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Securities.
3.4 Investment Experience. CSC is an investor in securities of
companies in the development stage and acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Securities. CSC also represents it has not been
organized solely for the purpose of acquiring the Securities.
3.5 Accredited Investor. CSC is an "accredited investor" within
the meaning of Rule 501 of Regulation D of the Securities and Exchange
Commission (the "SEC"), as presently in effect.
3.6 Restricted Securities. CSC understands that the Securities
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Act"), only in certain limited circumstances. In this
connection, CSC represents that it is familiar with SEC Rule 144, as presently
in effect, and understands the resale limitations imposed thereby and by the
Act.
3.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, and except with respect to a
transfer to a CSC affiliate or successor in interest, CSC further agrees not to
make any disposition of all or any portion of the Securities until either:
(a) There is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) CSC shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, CSC shall have furnished the
2
3
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144(k) or pursuant to Rule 144 if the transfer is to an
affiliate or successor of the transferor.
3.8 Legend. It is understood that the Securities shall bear the
following legend:
"These securities have not been registered under the Securities Act of 1933.
They may not be sold, offered for sale, pledged, hypothecated, or otherwise
transferred except pursuant to an effective registration statement under the
Securities Act of 1933 or an opinion of counsel satisfactory to the Company that
registration is not required under such Act or unless sold pursuant to Rule 144
under such Act."
4. California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
5. Right of First Refusal.
5.1 Right of First Refusal. Subject to Section 5.4, in the event
that CSC proposes to sell, pledge or otherwise transfer to a third party (other
than an affiliate of CSC) any shares of Common Stock, or any interest in such
Common Stock, the Company shall have the Right of First Refusal to purchase all
(or less than all) of such shares of Common Stock. If CSC desires to transfer
the Common Stock, CSC shall give a written Transfer Notice to the Company
describing fully the proposed transfer, including the number of shares of Common
Stock proposed to be transferred, the proposed transfer price, the name and
address of the proposed transferee and proof satisfactory to the Company that
the proposed sale or transfer will not violate any applicable federal or state
securities laws. The Transfer Notice shall be signed both by CSC and by the
proposed transferee and must constitute a binding commitment of both parties to
the transfer of the Common Stock. The Company shall have the right to purchase
all, or less than all, of the Common Stock on the terms of the proposal
described in the Transfer Notice (subject, however, to any change in such terms
permitted under Subsection 5.2 below) by delivery to CSC of a notice of exercise
of the Right of First Refusal within 7 days after the date when the Transfer
Notice was received by the Company. The Company's rights under this Subsection
5.1 shall be assignable, in whole or in part.
5.2 Transfer of Shares. If the Company fails to exercise its
Right of First Refusal within 7 days after the date when it received the
Transfer Notice, CSC may, not later than 90 days following receipt of the
Transfer Notice by the Company, conclude a transfer of the Common
3
4
Stock subject to the Transfer Notice on the terms and conditions described in
the Transfer Notice, provided that any such sale is made in compliance with
applicable federal and state securities laws and not in violation of any other
contractual restrictions to which CSC is bound. Any proposed transfer on terms
and conditions different from those described in the Transfer Notice, as well as
any subsequent proposed transfer by CSC, shall again be subject to the Right of
First Refusal and shall require compliance with the procedure described in
Subsection 5.1 above. If the Company exercises its Right of First Refusal, the
parties shall consummate the sale of the Common Stock on the terms set forth in
the Transfer Notice within 60 days after the date when the Company received the
Transfer Notice (or within such longer period as may have been specified in the
Transfer Notice); provided, however, that in the event the Transfer Notice
provided that payment for the Common Stock was to be made in a form other than
cash or cash equivalents paid at the time of transfer, the Company shall have
the option of paying for the Common Stock with cash or cash equivalents equal to
the present value of the consideration described in the Transfer Notice or as
may otherwise be agreed to by CSC and the Company.
5.3 Additional Shares or Substituted Securities. In the event of
the declaration of a stock dividend, the declaration of an extraordinary
dividend payable in a form other than stock, a spin-off, a stock split, a
recapitalization or a similar transaction affecting the Company's outstanding
securities without receipt of consideration, any new, substituted or additional
securities or other property (including money paid other than as an ordinary
cash dividend) which are by reason of such transaction distributed with respect
to any Common Stock subject to this Section 5 or into which such Common Stock
thereby become convertible shall immediately be subject to this Section 5.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number and/or class of Common Stock subject to
this Section 5.
5.4 Termination of Right of First Refusal. The Right of First
Refusal shall lapse upon the earliest to occur of (i) one year after the date of
this Agreement, (ii) such time as the Company becomes obligated to file reports
pursuant to the Securities Exchange Act of 1934, as amended, or (iii) the
closing of a firm commitment underwritten public offering, pursuant to an
effective registration statement on Form S-1 or Form SB-2 under the Act,
covering the offer and sale of the Company's common stock. However, the market
stand-off provision contained in the warrant attached hereto as Exhibit A shall
continue to remain in full force and effect following the lapse of the right of
first refusal set forth in this Section 5.
5.5 Termination of Rights as Stockholder. If the Company makes
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Common Stock to be purchased in accordance
with this Section 5, then after such time the person from whom such Common Stock
is to be purchased shall no longer have any rights as a holder of such Common
Stock (other than the right to receive payment of such consideration in
accordance with this Agreement). Such Common Stock shall be deemed to have been
purchased in accordance with the applicable provisions hereof, whether or not
the certificate(s) therefor have been delivered as required by this Agreement.
4
5
6. Miscellaneous.
6.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Except in accordance with the
Warrant, the Warrant cannot be assigned by CSC without the express written
consent of the Company, except when such assignment is to an affiliate (as such
term is defined in Rule 405 under the Securities Act of 1933) of CSC.
6.2 Arbitration.
(a) In the event of any dispute arising hereunder or
with respect to the transactions contemplated hereby, the Company and CSC shall
attempt in good faith for thirty (30) days to agree upon the rights of the
respective parties with respect to such dispute. If the Company and CSC should
so agree, a memorandum setting forth such agreement shall be prepared and signed
by such parties and shall be binding upon such parties and each other or
transferee of any of the Securities.
(b) If no such agreement can be reached after good faith
negotiation, either the Company or CSC may, by written notice to the other,
demand arbitration of the matter to be settled by arbitration conducted by three
(3) arbitrators. Within fifteen (15) days after such written notice is sent, the
Company and CSC shall each select one (1) arbitrator, and the two (2)
arbitrators so selected shall select a third arbitrator. The decision of the
arbitrators as to the validity and amount of any claim shall be binding and
conclusive upon the Company and CSC or transferee of any of the Securities.
(c) Judgment upon any award rendered by the arbitrators
may be entered in any court having jurisdiction; however, the parties hereto
agree to submit to the jurisdiction of the federal and state courts of the State
of California with respect to the rendering of any such judgment. Any such
arbitration shall be held in Los Angeles County, California under the commercial
rules then in effect of the American Arbitration Association.
6.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California.
6.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
6.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5
6
6.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, by
delivery by confirmed facsimile or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to such
party at the address set forth below, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
If to the Company:
Software Technologies Corporation
000 X. Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn.: Chief Executive Officer
Facsimile: 000-000-0000
If to CSC:
Corporate Controller
Computer Sciences Corporation
0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
With a mandatory copy to:
Assistant General Counsel
Computer Sciences Corporation
0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
6.7 Finder's Fee. Each party represents that it neither is or
will be obligated for any finder's fee or commission in connection with this
transaction. CSC agrees to indemnify and to hold harmless the Company from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which CSC or any of its officers, partners, employees, or
representatives is responsible.
The Company agrees to indemnify and hold harmless CSC
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees, or
representatives is responsible.
6.8 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6
7
6.9 Reservation of Shares. The Company shall reserve and keep
available at all times, free of preemptive rights, the full number of shares of
Common Stock issuable upon exercise of the Warrant.
6.10 Entire Agreement; Amendments and Waivers. This Agreement and
the Warrant constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof. Any term of this
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and CSC. Any waiver or
amendment effected in accordance with this Section shall be binding upon CSC,
each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities have been
converted), each future holder of all such securities, and the Company.
6.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
7
8
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
SOFTWARE TECHNOLOGIES CORPORATION
By: /S/ XXXXX XXXXXXXXXXX
---------------------------------
Xxxxx Xxxxxxxxxxx
Chief Executive Officer
Address: 000 X. Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO SOFTWARE TECHNOLOGIES CORPORATION
WARRANT PURCHASE AGREEMENT
9
COMPUTER SCIENCES CORPORATION
By: /s/ XXXX X. LEVEL
----------------------------------------------
Name: Xxxx X. Level
--------------------------------------------
Title: Vice President and Chief Financial Officer
-------------------------------------------
Address:
SIGNATURE PAGE TO SOFTWARE TECHNOLOGIES CORPORATION
WARRANT PURCHASE AGREEMENT
