EXHIBIT 10.47
PRIVATE EQUITY LINE FINANCING AGREEMENT
PRIVATE EQUITY LINE FINANCING AGREEMENT (this "Agreement"), dated as of
April 14, 2003, between First Virtual Communications, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxxxx, an individual (the
"Investor").
W I T N E S S E T H:
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, (i) the Investor will extend a line of credit to
the Company, pursuant to which the Company may issue and sell to the Investor
from time to time as provided herein, and the Investor shall purchase from the
Company, up to 3,225,806 shares of Common Stock of the Company at a purchase
price per share equal to the $0.31 per share, the sum of $.01 and $0.30
(representing a fair market price of the stock based on the average closing bid
prices over the five (5) trading days prior to the Effective Date (as defined
below) of this Agreement, as reported on the Nasdaq SmallCap Market), for an
aggregate purchase price of up to $1,000,000, on a private placement basis
pursuant to an exemption from registration under Section 4(2) of the Securities
Act of 1933 and (ii) to induce the Investor to extend such line of credit to the
Company, the Company shall issue to the Investor a warrant in the form attached
hereto as Exhibit A (the "Warrant") to purchase up to an aggregate of 300,000
shares of Common Stock of the Company at an exercise price per share equal to
$0.38, 125% of the average closing bid prices of a share of the Company's Common
Stock, as reported on The Nasdaq SmallCap Market, during a period of five (5)
days prior to the date of this Agreement.
WHEREAS, the parties acknowledge that any obligation of the Company to
issue shares of Common Stock and the Warrant to the Investor hereunder is
subject to the Company obtaining approval from its Board of Directors and having
obtained the requisite waivers, consents and/or other documentation and/or
delivered the requisite notices that may be required by the transaction
contemplated hereby and the issuance of the Warrant.
NOW THEREFORE, in consideration of the premises,
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINITIONS. For purposes of this Agreement,
capitalized terms used herein and not otherwise defined shall have the following
respective meanings:
"BOARD OF DIRECTORS" means the board of directors of the Company.
"CHANGE IN CONTROL" means (i) the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
properties or assets of the Company and its subsidiaries taken as a whole to any
"person" (as that term is used in Section 13(d)(3) of the Exchange Act), (ii)
the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) the consummation of any transaction (including, without
limitation, any merger or
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consolidation) the result of which is that any "person" (as defined above)
becomes the beneficial owner, directly or indirectly, of more than 50% of the
outstanding voting stock of the Company, measured by voting power rather than
number of shares, or (iv) the first day on which a majority of the members of
the Board of Directors of the Company are not Continuing Directors.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMITMENT PERIOD" shall mean the period commencing on April 13, 2003
(the "Effective Date"), and expiring on the earliest to occur of (i) the date on
which the Investor shall have purchased Draw Down Shares pursuant to this
Agreement for an aggregate Purchase Price of $1,000,000, (ii) the date this
Agreement is terminated pursuant to Article VII hereof, or (iii) the first
anniversary of the Effective Date.
"COMMON STOCK" shall mean the Company's Common Stock, $0.001 par value
per share.
"COMMON SHARES" shall mean shares of the Company's Common Stock issued
or issuable pursuant to this Agreement.
"CONTINUING DIRECTORS" shall mean as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Agreement; or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the members of the Board of Directors of the Company who either were members
of the Board of Directors of the Company on the date of this Agreement or whose
nomination for election or election was previously so approved by a majority of
the Board of Directors of the Company on the date of this Agreement or other
directors so nominated or elected.
"DRAW DOWN" shall mean each occasion the Company elects to exercise its
right to deliver a Draw Down Notice requiring the Investor to purchase the
Common Shares as specified in such Draw Down Notice, subject to the terms and
conditions of this Agreement.
"DRAW DOWN AMOUNT" shall mean the aggregate dollar amount of any Draw
Down Shares to be purchased by the Investor with respect to any Draw Down
affected by the Company in accordance with Section 2.02 hereof.
"DRAW DOWN DATE" shall mean any Trading Day during the Commitment
Period that a Draw Down Notice to sell Common Stock to the Investor is deemed
delivered pursuant to Section 2.02(b) hereof.
"DRAW DOWN NOTICE" shall mean a written notice to the Investor
delivered in accordance with this Agreement in the form attached hereto as
EXHIBIT A setting forth the Draw Down Amount that the Company intends to sell to
the Investor pursuant to such Draw Down.
"DRAW DOWN SHARES" shall mean all shares of Common Stock issued or
issuable pursuant to a Draw Down that has occurred or may occur in accordance
with the terms and conditions of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"GOVERNMENTAL AUTHORITY" means any federal or state government or
political subdivision thereof and any agency or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"MATERIAL ADVERSE EFFECT" has the meaning of a material adverse effect
on the business, assets, operations, properties, prospects or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole,
or any adverse effect on the Company's ability to consummate the transactions
contemplated by, or to execute, deliver and perform its obligations under this
Agreement.
"MAXIMUM DRAW DOWN AMOUNT" with respect to any Draw Down affected by
the Company in accordance with Section 2.02 hereof shall mean a cumulative
amount, not to exceed $1,000,000.
"MINIMUM DRAW DOWN AMOUNT" shall mean $250,000.
"PERSON" means an individual or a corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Authority or other entity of any
kind.
"PRINCIPAL MARKET" shall mean The Nasdaq National Market or The Nasdaq
SmallCap Market, whichever is at the time the principal trading exchange or
market for the Common Stock.
"PURCHASE PRICE" shall mean $0.31 (subject to adjustment for stock
dividends, splits, combinations, recapitalizations and the like).
"SEC REPORTS" means the Company's Annual Report on Form 10-K for the
year-ended December 31, 2002, the Company's definitive proxy statement, filed
April 12, 2002, and when used in reference to dates after the date of this
Agreement, reports and documents filed by the Company hereafter under Sections
13(a), 13(c), 14 or 15(d) under the Exchange Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SETTLEMENT DATE" shall mean the 20th business day following delivery
of a Draw Down Notice in accordance with Section 2.02(b) hereof, and shall be
the date on which date the Company shall issue Draw Down Shares to the Investor
as set forth in Section 2.03.
"TRADING DAY" shall mean any day during which the Principal Market
shall be open for trading.
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ARTICLE II
SALE AND PURCHASE OF COMMON STOCK
SECTION 2.01. INVESTMENTS.
(a) PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and
conditions of this Agreement, the Company, at its sole and exclusive option, may
issue and sell to the Investor, and the Investor shall purchase from the
Company, up to an aggregate of 3,225,806 shares of the Company's Common Stock
(subject to adjustment for stock dividends, splits, combinations,
recapitalizations and the like) based on such number of Draw Downs (subject to
the Maximum Draw Down Amount)) as the Company, in its sole discretion, shall
choose to deliver during the Commitment Period until the aggregate Draw Down
Amount with respect to Common Shares purchased under this Agreement equals
$1,000,000 or this Agreement is otherwise terminated.
(b) DRAW DOWNS. Upon the terms and subject to the conditions set forth
herein, on any Trading Day as provided in Section 2.02(b) hereof during the
Commitment Period on which the conditions set forth in Section 6.02 hereof have
been satisfied, the Company may exercise a Draw Down by the delivery of a Draw
Down Notice to the Investor, authorized by the Company's Board of Directors
after a determination by the Board of Directors that such draw down is necessary
for the ongoing operations of the Company and executed by the Company's Chief
Executive Officer.
SECTION 2.02. MECHANICS OF DRAW DOWNS.
(a) DRAW DOWN NOTICE. On any Trading Day during the Commitment Period,
the Company may deliver a Draw Down Notice to the Investor, subject to the
satisfaction of the conditions set forth in Section 6.02.
(b) DELIVERY OF DRAW DOWN NOTICE. A Draw Down Notice shall be deemed
delivered to Investor on (i) the Trading Day that it is first received by
facsimile or as otherwise set forth in Section 8.01 (and the Company confirms
such delivery by email notice or by telephone or in person (including voicemail
message)) by the Investor if received prior to 12:00 noon, Pacific Standard time
on such Trading Day, or (ii) in the event it is received by facsimile or
otherwise set forth in Section 8.01 (and the Company confirms such delivery)
subsequent to 12:00 noon, Pacific Standard time, on a Trading Day, the
immediately succeeding Trading Day. No Draw Down Notice may be delivered other
than on a Trading Day during the Commitment Period.
(c) DETERMINATION OF DRAW DOWN SHARES ISSUABLE. The number of Draw Down
Shares to be purchased by the Investor with respect to a Draw Down shall equal
the number obtained by dividing the Draw Down Amount for such Draw Down by the
Purchase Price.
SECTION 2.03. SETTLEMENTS. On each Settlement Date, the Company
shall deliver to Investor a certificate representing the number of Draw Down
Shares to be purchased by Investor against delivery by the Investor the Draw
Down Amount representing the Draw Down Shares to be purchased on such Settlement
Date by check or wire transfer of immediately available funds to an account
designated in writing by the Company at least one Trading Day prior to the
Settlement Date. In addition, on or prior to each such Settlement Date, each of
the Company and the Investor
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shall deliver all documents, instruments and writings required to be delivered
by either of them pursuant to this Agreement in order to implement and effect
the transactions contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As a material inducement to the Investor to enter into this Agreement,
the Company hereby represents and warrants to the Investor that on and as of the
date of this Agreement:
SECTION 3.01. ORGANIZATION AND STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority necessary for it to own its properties and assets and to carry on
its business as it is now being conducted, and, to the extent described therein,
as described in the SEC Reports. The Company is duly qualified to transact
business and is in good standing in each foreign jurisdiction in which the
character of the properties owned or leased by it or the nature of its
businesses makes such qualification necessary, except where the failure to so
qualify or be in good standing would not have a Material Adverse Effect.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Company has the
corporate power and authority to execute, deliver and perform the terms and
provisions of this Agreement and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of, and the consummation
of the transactions to be performed by it contemplated by, this Agreement.
Assuming the due execution of this Agreement by the Investor, this Agreement
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and by limitations imposed by law and public
policy on indemnification or exculpation).
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
The Investor hereby acknowledges, represents, warrants and covenants,
to the Company as follows:
SECTION 4.01. AUTHORIZATION; ENFORCEABILITY; NO VIOLATIONS;
CONSENTS.
(a) The Investor has all requisite power and authority to execute,
deliver and perform the terms and provisions of this Agreement and has taken all
necessary action to authorize the execution, delivery and performance by him of
this Agreement and to consummate the transactions contemplated hereby to be
performed by him.
(b) The execution, delivery and performance by the Investor of this
Agreement and the consummation by the Investor of the transactions contemplated
hereby to be performed by him do not and will not to the Investor's knowledge,
violate any provision of (i) any law, statute, rule, regulation, order, writ,
injunction, judgment or decree to which the Investor is subject. The Investor
has duly executed and delivered this Agreement. Assuming the due execution
hereof by
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the Company, this Agreement constitutes the valid and binding obligation of the
Investor, enforceable against the Investor in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and by
limitations imposed by law and public policy on indemnification or exculpation).
(c) No consent, approval, authorization or order of, or filing or
registration with, any court or Governmental Authority or other Person, is
required to be obtained or made by the Investor for the execution, delivery and
performance by the Investor of this Agreement or the consummation by the
Investor of any of the transactions contemplated hereby, except for those
consents or authorizations previously obtained and those filings previously
made, and except as set forth in Section 4.03 hereof.
SECTION 4.02. SECURITIES ACT REPRESENTATIONS; LEGENDS.
(a) The Investor understands that: (i) the offering and sale of the
Common Shares to be issued and sold hereunder is intended to be exempt from the
registration requirements of the Securities Act; (ii) the offer and sale of the
Common Shares issuable hereunder has not been registered under the Securities
Act or any other applicable securities laws and such securities may be resold
only if registered under the Securities Act and any other applicable securities
laws or if an exemption from such registration requirements is available; and
(iii) the Company is not required to register any resale of the Common Shares
under the Securities Act or any other applicable securities laws.
(b) The Investor represents that the Common Shares to be acquired by
the Investor pursuant to this Agreement are being acquired for his own account
and not with a view to, or for sale in connection with, any distribution thereof
in violation of the Securities Act or any other securities laws that may be
applicable.
(c) The Investor represents that the Investor (i) is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D under the
Securities Act, (ii) has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of his
investment in the Common Stock and is capable of bearing the economic risks of
such investment, including a complete loss of his investment in the Common
Shares; (iii) believes that his investment in the Common Shares is suitable for
him based upon his objectives and financial needs, and the Investor has adequate
means for providing for his current financial needs and business contingencies
and has no present need for liquidity of investment with respect to the Common
Shares; and (iv) has not purchased, sold or entered into any put option, short
position or similar arrangement with respect to the Common Shares, and will not,
for the term of this Agreement purchase, sell or enter into any such put option,
short position or similar arrangement.
(d) The Investor acknowledges that no oral or written statements or
representations have been made to the Investor by or on behalf of the Company in
connection with the offering and sale of the Common Shares hereunder other than
those set forth in the SEC Reports, or as set forth herein.
(e) The Investor acknowledges that the Securities Act and state
securities laws restrict the transferability of securities, such as the Common
Shares, issued in reliance upon the exemption from the registration requirements
of the Securities Act provided by Section 4(2) thereunder and
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applicable state securities laws, and that, unless registered under the
Securities Act or an exemption from registration is available, the Common Shares
must be held indefinitely.
(f) The Investor has been furnished with all materials relating to the
business, finances and operations of the Company and materials relating to the
offer and sale of the Common Shares which have been requested by the Investor.
The Investor has been afforded the opportunity to ask questions of the Company.
The Investor understands that its investment in the Common Shares involves a
significant degree of risk.
SECTION 4.03. FILINGS BY INVESTOR. The Investor shall make all
filings with the Commission required under the Exchange Act, including reports
required under Regulation 13D-G and Section 16 thereunder, within the time
periods required under the Exchange Act, in connection with any purchase of
Common Shares under this Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. RESERVATION OF COMMON SHARES. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, sufficient to provide for the issuance of
the Common Shares to be issued hereunder.
SECTION 5.02. STOCK LISTING. The Company shall have the shares of
Common Stock approved for quotation or listing, as required, prior to issuance,
upon the Principal Market upon which the Common Stock is listed or traded at the
time of issuance of such Common Shares and shall use commercially reasonable
efforts to maintain such listing.
SECTION 5.03. ISSUANCE OF DRAW DOWN SHARES. The sale and issuance
of the Draw Down Shares shall be made in accordance with the provisions and
requirements of Section 4(2) of the Securities Act and an applicable exception
from registration under California securities law.
SECTION 5.04. REGISTRATION OF SHARES. The Company will promptly,
after the execution of this Agreement, use commercially reasonable efforts to
amend the Registration Rights Agreement between the Company and certain
investors, dated April 12, 2002, to include the Common Shares and the shares of
common stock issuable upon exercise of the Warrant in the definition of
Registerable Securities under that agreement.
ARTICLE VI
CONDITIONS TO DELIVERY OF DRAW DOWN
NOTICES AND CONDITIONS TO SETTLEMENT
SECTION 6.01. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY
TO ISSUE AND SELL COMMON STOCK. The obligation hereunder of the Company to issue
and sell the Draw Down Shares to the Investor incident to each Settlement Date
is subject to the satisfaction, at or before each such Settlement Date, of each
of the conditions set forth below.
(a) ACCURACY OF THE INVESTOR'S REPRESENTATION AND WARRANTIES. The
representations and warranties of the Investor in Article IV hereof shall be
true and correct in all material respects
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as of the date when made and as of the date of each such Settlement Date as
though made at each such time (except for representations and warranties
specifically made as of a particular date which shall be true and correct in all
material respects as of the date when made).
(b) PERFORMANCE BY THE INVESTOR. The Investor shall have performed,
satisfied and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Investor at or prior to such Settlement Date.
SECTION 6.02. CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO
DELIVER A DRAW DOWN NOTICE. The right of the Company to deliver a Draw Down
Notice hereunder is subject to the satisfaction, on the date of delivery of such
Draw Down Notice, of each of the following conditions:
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company in Article III hereof shall be
true and correct in all material respects as of the date when made and as of the
applicable Draw Down Date as though made at such time (except for
representations and warranties specifically made as of a particular date which
shall be true and correct in all material respects as of the date when made).
(b) PERFORMANCE BY THE COMPANY. The Company shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to such date, nor shall there have occurred an
Event of Default under this Agreement.
(c) NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby that prohibits or directly and materially adversely affects any of the
transactions contemplated by this Agreement, and no proceeding shall have been
commenced that may have the effect of prohibiting or materially adversely
affecting any of the transactions contemplated by this Agreement.
(d) NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The
trading of the Common Stock shall not have been suspended by the Commission, the
Principal Market or the National Association of Securities Dealers.
ARTICLE VII
TERMINATION
SECTION 7.01. TERM. Subject to the provisions of Section 7.02 and
7.03, the term of this Agreement shall run until the end of the Commitment
Period.
SECTION 7.02. TERMINATION BY THE INVESTOR. The Investor may
terminate the right of the Company to effect any Draw Downs under this Agreement
upon one (1) Trading Day's notice if any of the following events (each, an
"Event of Default") shall occur:
(a) The Company shall make an assignment for the benefit of creditors,
or apply for or consent to the appointment of a receiver or trustee for it or
for all or substantially all of its property or business or such a receiver or
trustee shall otherwise be appointed;
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(b) Bankruptcy, insolvency, reorganization or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any law for the
relief of debtors shall be instituted by or against the Company;
(c) The Company shall fail to maintain the listing of the Common Stock
on a Principal Market; or
(d) a Change of Control shall have occurred.
(e) a material breach by the Company of this Agreement or the
Employment and Retention Agreement between the Investor and the Company, dated
October 3, 2002, which remains uncured for thirty (30) days following written
notice by Investor to the Company of such breach.
SECTION 7.03. TERMINATION BY THE COMPANY. The Company may terminate
this Agreement upon one (1) Trading Day's notice if any of the following events
(each, an "Event of Default") shall occur:
(a) The Investor shall make an assignment for the benefit of creditors,
or apply for or consent to the appointment of a receiver or trustee for it or
for all or substantially all of its property or business or such a receiver or
trustee shall otherwise be appointed; or
(b) Bankruptcy, insolvency, reorganization or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any law for the
relief of debtors shall be instituted by or against the Investor.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES. All notices, demands, requests,consents,
approvals or other communications required or permitted to be given hereunder or
that are given with respect to this Agreement shall be in writing and shall be
personally served or deposited in the mail, registered or certified, return
receipt requested, postage prepaid or delivered by reputable air courier service
with charges prepaid, or transmitted by hand delivery, telegram, telex or
facsimile, addressed as set forth below, or to such other address as such party
shall have specified most recently by written notice: (i) if to the Company to:
First Virtual Communications, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000,
Attention: General Counsel; Facsimile No.: (000) 000-0000, with copies (which
shall not constitute notice) to: Xxxxxx Godward LLP, 0000 Xxxxxxxx Xxxx, Xxx
Xxxxx, XX 00000-0000, Attention: Xxxxx Xxxxxxxx; Facsimile No.: (000) 000-0000,
and (ii) if to the Investor, Xxxxx Xxxxxxxxx, 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 Facsimile No.: (000) 000-0000. Notice shall be
deemed given on the date of service or transmission if personally served or
transmitted by telegram, telex or confirmed facsimile. Notice otherwise sent as
provided herein shall be deemed given on the third business day following the
date mailed as specified above or on the next business day following delivery of
such notice to a reputable air courier service.
SECTION 8.02. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous
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agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written, with respect to the subject matter
hereof and with respect to any prior extensions of credit by the Investor to the
Company.
SECTION 8.03. AMENDMENT AND WAIVER. This Agreement may not be
amended, modified, supplemented, restated or waived except by a writing executed
by the party against which such amendment, modification or waiver is sought to
be enforced. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
SECTION 8.04. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by the Company. Any purported assignment or delegation of rights,
duties or obligations hereunder by the Company shall be void and of no effect.
Subject to the prior written approval of the Company, not to be unreasonably
withheld, the Investor may assign all or a portion of his obligations under this
Agreement to purchase Draw Down Shares, at the time of Investor's receipt of a
Draw Down Notice, to a Person who is an accredited investor (as defined in
Section 4.02(c) hereof, and subject to such Person executing an investment
representation letter in form and substance satisfactory to the Company
containing the representations and warranties set forth in Section 4.02 hereof;
and further subject to available federal and state securities law exemptions for
such Person in connection with a purchase of Draw Down Shares. This Agreement
and the provisions hereof shall be binding upon and shall inure to the benefit
of each of the parties and their respective successors. This Agreement is not
intended to confer any rights or benefits on any Persons other than as set forth
above.
SECTION 8.05. SEVERABILITY. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
SECTION 8.06. FURTHER ASSURANCES. Each party hereto, upon the
request of any other party hereto, shall do all such further acts and execute,
acknowledge and deliver all such further instruments and documents as may be
necessary or desirable to carry out the transactions contemplated by this
Agreement.
SECTION 8.07. TITLES AND HEADINGS. Titles, captions and headings of
the sections of this Agreement are for convenience of reference only and shall
not affect the construction of any provision of this Agreement.
SECTION 8.08. GOVERNING LAW AND DISPUTE RESOLUTION. Should any
dispute between the parties arise under this Agreement, the Investor and the
Company, through appropriately senior persons, shall first meet and attempt to
resolve the dispute in face-to-face negotiations. This meeting shall occur
within thirty (30) days of the time the dispute arises at a mutually agreed time
and place.
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If no resolution is reached, the Investor and the Company shall, within
forty-five (45) days of the first meeting, attempt to settle the dispute by
formal mediation. If the Parties cannot agree upon a mediator and the place of
the mediation, the mediation shall be administered by the American Arbitration
Association in Northern California.
If no resolution is reached in mediation, the dispute shall be resolved
by binding arbitration in Northern California before a three-arbitrator panel,
administered by the American Arbitration Association, with limited discovery.
Notwithstanding the foregoing dispute resolution and governing law
provisions, the Investor and the Company shall each retain the right to seek
judicial injunctive and other equitable relief where appropriate. In no event
shall punitive damages or attorneys' fees be awardable. THIS AGREEMENT SHALL BE
GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
SECTION 8.09. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, all of which taken
together shall constitute one and the same instrument.
SECTION 8.10. 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
THEREFOR PRIOR TO SUCH QUALIFICATION OR IN THE ABSENCE OF AN EXEMPTION FROM SUCH
QUALIFICATION IS UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH CONSIDERATION BY THE
COMPANY, THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION FROM SUCH QUALIFICATION
BEING AVAILABLE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
FIRST VIRTUAL COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxx
-------------------------------
Print Name: Xxxxxx Xxxx
------------------------
Title: Chief Financial Officer
----------------------------
XXXXX XXXXXXXXX
Signature:/s/ Xxxxx Xxxxxxxx
-------------------------
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EXHIBIT A
DRAW DOWN NOTICE
[Date]
Xx. Xxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Reference is made to the Private Equity Line Financing Agreement
between First Virtual Communications, Inc. (the "Company") and Xxxxx Xxxxxxxxx
dated as of April 14, 2003. The Company confirms that all conditions to the
delivery of this Draw Down Notice are satisfied as of the date hereof.
Effective Date of Delivery of Draw Down Notice (determined pursuant to Section
2.02(b)):________________________________.
Draw Down Amount (not to exceed Maximum Draw Down Amount):______________________
Aggregate Purchase Price: $____________________
FIRST VIRTUAL COMMUNICATIONS, INC.
By:________________________________
Print Name:________________________
Title:_____________________________
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