EXHIBIT 10.10
BEA ENTERPRISES, INC.
STOCK PURCHASE AGREEMENT
This Agreement is made as of September 28, 1995 among BEA
Enterprises, Inc., a Delaware corporation (the "Company") located at 0000 X.
Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX 00000, and Warburg, Xxxxxx Ventures,
L.P., a Delaware limited partnership (the "Purchaser").
RECITALS
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A. Purchaser has also entered into that certain Option Agreement dated
July 27, 1995 for the purchase of all of the outstanding stock of Information
Management Company, a Delaware corporation ("IMC"). Purchaser desires to
assign its right to acquire the outstanding stock of IMC to the Company, and
the Company desires to accept such assignment and to consummate the purchase
of all of the outstanding stock of IMC (the "IMC Transaction") in accordance
with a stock purchase agreement to be entered into among the Company and the
stockholders of IMC concurrently with the execution and delivery of this
Agreement by Purchaser and the Company.
B. Purchaser also has entered into that certain Option Agreement dated
August 14, 1995 for the purchase of TWL Holding's ("TWL") stock in
Independent Technologies, Inc. a Delaware corporation ("ITI"). Purchaser
desires to assign its right to acquire the outstanding stock of ITI from TWL
to the Company, and the Company desires to accept such assignment and to
consummate the purchase of the outstanding stock of ITI (the "ITI
Transaction") in accordance with a stock purchase agreement or merger
agreement to be entered into among the Company, TWL and ITI.
C. The Company has entered an agreement to purchase certain assets of VI
Systems, Inc. (the "VI Transaction").
D. Purchaser desires to purchase certain shares of the Company's Series
A Preferred Stock, the Company's Series B Preferred Stock and the Company's
Common Stock and the Company desires to issue and sell such shares to
Purchaser to enable the Company to consummate the IMC Transaction, the ITI
Transaction, the VI Transaction and future acquisitions by the Company as
mutually agreed to by Purchaser and the Company.
NOW, THEREFORE, the parties hereto agree as follows:
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AGREEMENT
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SECTION I
AUTHORIZATION AND SALE OF PREFERRED STOCK
1.1 AUTHORIZATION. The Company will authorize the sale and
issuance of (i) up to 20,000,000 shares of its Series A Preferred Stock (the
"Series A Preferred"), having the rights, preferences, privileges and
restrictions as set forth in the Certificate of Amendment of the Certificate
of Incorporation (the "Certificate") in the form attached to this Agreement
as EXHIBIT A, and (ii) up to 20,000,000 shares of Series B Preferred Stock
(the "Series B Preferred") having the rights, preferences, privileges and
restrictions as set forth in the Certificate.
1.2 SALE OF PREFERRED AND COMMON.
(a) Subject to the terms and conditions hereof, the Company will
issue and sell to Purchaser at the first Closing (as defined below), and
Purchaser will buy from the Company at the first Closing, (i) 7,900,000
shares of Series A Preferred for a purchase price of $1.70 per share for an
aggregate purchase price of $13,430,000; (ii) 1,000,000 shares of the
Company's Common Stock ("Common Stock") for a purchase price of $.57 per
share for an aggregate purchase price of $570,000. Purchaser also intends to
purchase shares of Series B Preferred in the future as described in paragraph
(b) of this Section 1.2. For purposes of this Agreement, shares of Series A
Preferred and/or Series B Preferred shall be referred to as the "Preferred
Shares," shares of Series A Preferred, Series B Preferred and Common Stock
shall be referred to as the "Shares." The aggregate purchase price to be
paid for the Series A Preferred and Common Stock at the First Closing shall
be referred to as the "Purchase Price."
(b) Subject to the terms and conditions hereof, the Company
will issue and sell to Purchaser, and the Purchaser will buy from the
Company, such additional shares of Preferred Shares and Common Stock at such
time and at the purchase price as mutually agreed to by the Company and
Purchaser which additional investments will be reflected on the Schedule of
Investments attached hereto as EXHIBIT B, which exhibit will be modified to
reflect additional capital investments upon the mutual consent of the Company
and Purchaser. The Company's agreement with respect to closing each purchase
are separate agreements, and each sale of the Stock to the Purchaser are
separate sales.
SECTION II
CLOSING DATES; DELIVERY
2.2 CLOSING DATES. The first closing of the purchase and sale of
the hereunder shall be held at the offices of Xxxxxxxx & Xxxxxxxx, 1290
Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, concurrently with the
closing of the IMC Transaction (the "first
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Closing") or at such other time and place upon which the Company and
Purchaser shall agree (the date of the first Closing is hereinafter referred
to as the "Closing Date").
2.3 SUBSEQUENT CLOSINGS. The Company may, at its option, schedule
additional closings (the "Additional Closings") after the first Closing has
been completed on such date or dates as the Company may determine, but not
later than September 30, 1998. The date of each Additional Closing is
hereinafter referred to as an "Additional Closing Date." The first Closing
and each Additional Closing are sometimes referred to herein individually as
a "Closing" and the first Closing Date and each Additional Closing Date are
sometimes referred to herein individually as a "Closing Date."
2.4 DELIVERY.
(a) At the first Closing, the Company shall deliver to Purchaser
certificates, registered in such Purchaser's name, representing the Series A
Preferred and Common Stock against payment of the Purchase Price therefor,
which shall be paid (i) as to $10,880,000 wire transfer per the Company's
instructions; (ii) as to $860,000 in the form of a credit for amounts paid by
Purchaser to the Company pursuant to that certain Agreement, dated as of
September 18, 1995, between the Company and Purchaser regarding the VI
Transaction; (iii) as to $1,000,000 in the form of a credit for amounts
previously paid to the stockholders of IMC as an option payment in connection
with the IMC Transaction; (iv) as to $500,000 in the form of a credit for
amounts previously paid to TWL Holdings as an option payment in connection
with the ITI Transaction; (v) as to $200,000 in the form of a credit for
amounts paid by Purchaser to the Company pursuant to that certain Agreement,
dated as of September 27, 1995, between the Company and the Purchaser; and
(vi) as to $560,000 in the form of previous advances to the Company.
(b) At each Additional Closing, the Company shall deliver to
each Purchaser a certificate or certificates, registered in such Purchaser's
name set forth on the Schedule of Purchasers, representing the number of
Shares designated on the Schedule of Purchasers to be purchased by such
Purchaser, against payment of the purchase price therefor, by check payable
to the Company or wire transfer per the Company's instructions.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on EXHIBIT C attached hereto ("Schedule of
Exceptions"), the Company represents and warrants to Purchaser as follows:
3.1 ORGANIZATION AND STANDING; CERTIFICATE AND BY-LAWS. The
Company is a corporation duly organized and existing under, and by virtue of,
the laws of the State of Delaware and is in good standing under such laws.
The Company has requisite corporate power and authority to own and operate
its properties and assets, and to carry on its business as
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currently conducted and as proposed to be conducted. The Company is not
currently qualified to do business as a foreign corporation in any
jurisdiction, except for California, and the failure to be so qualified will
not have a material adverse affect on the Company's business as now
conducted. The Company has furnished Purchaser with copies of its
Certificate of Incorporation and By-Laws, as amended. Said copies are true,
correct and complete and contain all amendments through the Closing Date.
3.2 CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement, the
Investor Rights Agreement in the form attached hereto as EXHIBIT D (the
"Rights Agreement"), and the Shareholders Agreement in the form attached
hereto as EXHIBIT E (the "Shareholders Agreement") to sell and issue the
Shares hereunder, to issue the Common Stock issuable upon conversion of the
Series A Preferred, and to carry out and perform all of its obligations under
the terms of this Agreement and such other agreements and instruments.
3.3 SUBSIDIARIES. The Company has no subsidiaries or affiliated
companies and does not otherwise control, directly or indirectly, or have any
ownership interest in any corporation, partnership, business trust,
association or business entity.
3.4 CAPITALIZATION. The authorized capital stock of the Company
consists, or will, upon the filing of the Certificate and immediately prior
to the First Closing, consist, of 40,000,000 shares of Common Stock, $0.001
par value, of which 1,525,000 shares will be issued and outstanding
immediately prior to the First Closing, and 36,784,000 shares of Preferred
Stock, $0.001 par value, of which (i) 18,066,000 shares have been designated
"Series A Preferred," of which no shares will be issued and outstanding
immediately prior to the First Closing; and (ii) 18,718,000 shares have been
designated "Series B Preferred," of which no shares will be issued and
outstanding immediately prior to the First Closing. All outstanding shares
have been duly authorized and validly issued, are fully paid and
nonassessable, were issued in compliance with all federal and state
securities laws, and were not issued in violation of any preemptive rights.
The Company has reserved 18,066,000 shares of Series A Preferred for issuance
hereunder and 18,718,000 shares of Series B Preferred for issuance hereunder
1,000,000 shares of Common for issuance hereunder, 36,784,000 shares of
Common Stock for issuance upon conversion of the authorized Series A and
Series B Preferred Stock and 3,300,000 shares of its Common Stock for
issuance to employees, consultants, or directors under stock plans or
arrangements approved by the Board of Directors. The Series A Preferred and
Series B Preferred shall have the rights, preferences, privileges and
restrictions set forth in the Certificate. Except as set forth above, there
are no other authorized or outstanding subscription, warrant, option or other
rights or commitments (including, without limitation, preemptive rights or
rights of first refusal) to purchase or acquire from the Company any shares
of any class of capital stock of the Company or securities convertible into
or exchangeable for such capital stock. The Company is under no duty to
redeem or to repurchase any shares of any class or series of stock.
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3.5 AUTHORIZATION. All corporate action on the part of the
Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the Rights
Agreement by the Company, the authorization, sale, issuance and delivery of
the Shares and the Common Stock issuable upon conversion of the Series A
Preferred and the performance of all of the Company's obligations hereunder
and thereunder has been taken or will be taken prior to the Closing. Each of
this Agreement, the Shareholders Agreement and the Rights Agreement, when
each is executed and delivered by the Company, shall constitute a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as the indemnification provisions of Section 5.7 of the Rights
Agreement may be limited by principles of public policy, and subject to laws
of general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and will have the rights, preferences, privileges and
restrictions described in the Certificate. The Common Stock issuable upon
conversion of the Series A Preferred has been duly and validly reserved and,
when issued in compliance with the provisions of this Agreement and the
Certificate will be validly issued, fully paid and nonassessable. The
issuance and delivery of the Shares, in accordance with this Agreement, and
the Common Stock issuable upon conversion of the Series A Preferred Shares,
as applicable, is not subject to any preemptive or other similar rights or
any liens or encumbrances; provided, however, that the Shares and the Common
Stock issuable upon conversion of the Series A Preferred, as applicable, may
be subject to restrictions on transfer under state and/or federal securities
laws as set forth herein or in the Rights Agreement.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME, ETC. The
Company is not in breach or violation of any term of its Certificate of
Incorporation or By-Laws, of any term or provision of any mortgage, deed of
trust, indebtedness, indenture, contract, agreement, instrument, judgment or
decree, or any order, statute, rule or regulation, in each case where such
breach or violation would have a material adverse effect on the Company. No
event or failure of performance has occurred that, with the passage of time
or the giving of notice, would constitute such a breach or violation by the
Company. The execution, delivery and performance of and compliance with this
Agreement, the Shareholders Agreement and the Rights Agreement and the
issuance, sale and delivery of the Shares, in accordance with this Agreement,
and the Common Stock issuable upon conversion of the Series A Preferred do
not conflict with, and will not result in a breach or violation of the terms,
conditions or provisions of, or constitute a default (or an event that, with
the giving of notice or passage of time, or both, could result in a default)
under, or result in the creation or imposition of any lien pursuant to the
terms of the Company's Certificate of Incorporation or Bylaws, or any
statute, law, rule or regulation, any state or federal order, judgment or
decree, or any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company, or any of its properties, is subject, in
each case where such conflict, breach, violation, default or lien would have
a material adverse effect on the Company.
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3.7 LITIGATION, ETC. There is no action, proceeding or
investigation pending or threatened (nor to the Company's knowledge is there
a reasonable basis therefor) against the Company or any of its properties or
assets or that questions the validity of this Agreement, the Shareholders
Agreement or the Rights Agreement, or any action taken or to be taken in
connection herewith. The foregoing includes, without limitation, actions
pending or threatened involving the prior employment of any of the Company's
employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers.
The Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. No action, suit or proceeding has been instituted or is
threatened by the Company.
3.8 REGISTRATION RIGHTS. Except as set forth in the Rights
Agreement, the Company is not under any contractual obligation to register
(as defined in Section 1 of the Rights Agreement) any of its currently
outstanding securities or any of its securities which hereafter may be issued.
3.9 CERTAIN TRANSACTIONS. Neither the Company nor, to the Company's
knowledge, any of its officers has any interest (other than as holders of
less than 1% of the voting securities of a publicly-traded company), either
directly or indirectly, in any entity that currently (i) provides any
services or designs, produces or sells any products or product lines that are
the same, similar to or competitive with any activity or business in which
the Company is engaged or proposes to engage; (ii) is a supplier, customer,
or creditor of the Company; or (iii) has any direct or indirect interest in
any asset or property, real or personal, tangible or intangible, of the
Company or any property, real or personal, tangible or intangible, that is
necessary for the Company's business as currently conducted or proposed to be
conducted. No employee, stockholder, officer or director of the Company, or
their spouses or children, is indebted to the Company, nor is the Company
indebted to any of them.
3.10 SECURITIES LAWS; GOVERNMENTAL CONSENT. Based in part on the
accuracy of the Purchaser's representations and warranties set forth in
Section 4, the offer, sale and issuance of the Shares and the Common Stock
issuable upon conversion of the Series A Preferred as provided in this
Agreement are exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933 (the "Securities Act"), and have
been qualified (or are exempt from qualification) under all applicable state
securities qualification requirements. Except for the filing of (a) the
Certificate with the Secretary of State of the State of Delaware, and (b)
notices required or permitted to be filed after the Closing Date with certain
United States federal and state securities commissions, which notices the
Company will file on a timely basis, no consent, approval or authorization
of, or designation, declaration or filing with, any governmental authority on
the part of the Company is required in connection with the valid execution,
delivery and performance of this Agreement or the Rights Agreement, the
offer, sale or issuance of the Shares (and the issuance of the Common Stock
issuable upon conversion of the
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Series A Preferred) or the consummation of any other transaction contemplated
hereby or by the Shareholders Agreement or the Rights Agreement.
3.11 DISCLOSURE. The Company has fully provided Purchaser with all
the information that the Purchasers have requested for the purpose of
deciding whether to purchase the Shares pursuant to the terms of this
Agreement. This Agreement with the Exhibits hereto, when taken as a whole,
do not contain any untrue statement of a material fact on the part of the
Company or omit to state a material fact necessary in order to make the
statements contained herein on the part of the Company not misleading.
SECTION IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby severally represents and warrants to the Company
with respect to the purchase of the Shares pursuant to the terms of this
Agreement and the Common Stock issuable upon conversion of the Series A
Preferred (collectively, the "Securities") as follows:
4.1 INVESTMENT EXPERIENCE. Purchaser is aware of the Company's
business affairs and financial condition and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
to acquire the Securities.
4.2 INVESTMENT INTENT. Purchaser is acquiring the Securities for
investment only for its own account, and not with the view to, or for resale
in connection with, any distribution thereof. Purchaser understands that the
Securities have not been, and will not be, registered under the Securities
Act by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends upon, among other things,
the bona fide nature of the investment intent of such Purchaser as expressed
herein.
4.3 RULE 144. Purchaser acknowledges that the Securities must be
held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from such registration is available. Purchaser is aware
of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to
the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain
current public information about the Company, the resale occurring not less
than two years after the security was last held by the Company or an
affiliate of the Company, the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" and the number
of shares being sold during any three-month period not exceeding specified
limitations.
4.4 NO PUBLIC MARKET. Purchaser understands that no public market
now exists for any of the securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Company's securities.
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4.5 ACCESS TO DATA. Purchaser has had an opportunity to discuss
the Company's business, management and financial affairs with the Company's
management and the opportunity to review the Company's facilities and
business plan. Purchaser has also had an opportunity to ask questions of
officers of the Company, which questions were answered to its satisfaction.
Purchaser understands that such discussions, as well as any written
information issued by the Company, were intended to describe certain aspects
of the Company's business and prospects which the Company believes to be
material, but were not a thorough or exhaustive description, except as set
forth in Section 3 hereof.
4.6 AUTHORIZATION. Each of this Agreement and the Rights Agreement
when executed and delivered by such Purchaser will constitute a valid and
legally binding obligation of the Purchaser, enforceable in accordance with
its terms, except as the indemnification provisions of Section 5.7 of the
Rights Agreement may be limited by principles of public policy, and subject
to laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
SECTION V
CONDITIONS TO CLOSING
5.1 CONDITIONS TO BOTH THE PURCHASER'S AND THE COMPANY'S
OBLIGATIONS. The obligations of the Purchaser to purchase and of the Company
to issue and sell the Shares are subject to the fulfillment, on or prior to
each Closing Date, of all of the following conditions, any of which may be
waived in whole or in part by mutual agreement of the Purchasers and the
Company:
(a) The Company shall have obtained all consents, permits and
waivers necessary or appropriate on the part of the Company for consummation
of the transactions contemplated by this Agreement and the Rights Agreement.
Except for the notices required to be filed after each Closing Date with
certain federal and state securities commissions, which notices the Company
will file on a timely basis, the Company shall have obtained all approvals of
any federal or state governmental authority or regulatory body that are
required on the part of the Company in connection with the lawful sale and
issuance of the Shares and the Common Stock issuable upon conversion of the
Series A Preferred.
(b) At each Closing, the purchase of the Shares by Purchaser
hereunder shall be legally permitted by all laws and regulations to which
Purchaser or the Company is subject.
(c) Prior to the first Closing, the Certificate shall have been
filed with the Secretary of State of the State of Delaware.
(d) Prior to the first Closing, the Company and Purchaser shall
have entered into the Rights Agreement.
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(e) The Company, Purchaser and each of the stockholders of the
Company signatories thereto shall have entered into the Shareholders
Agreement at the first Closing, which will be amended at Additional Closings
if additional stockholders have purchased stock;
(f) The IMC Transaction shall be closing concurrently with the
occurrence of the first Closing pursuant to this Agreement, and the terms and
conditions of the IMC Transaction and the closing thereof shall have approved
in writing by each of the Company and Purchaser; and
(g) Each subsequent Transaction's closing shall occur
concurrently with each Closing pursuant to this Agreement, and the terms of
each Transaction and the closing thereof shall have been approved in writing
by each of the Company and the Purchaser.
5.2 ADDITIONAL CONDITIONS TO THE PURCHASER'S OBLIGATIONS. In
addition to the conditions set forth in Section 5.1 hereof, Purchaser's
obligation to purchase the Shares is subject to the fulfillment, on or prior
to each Closing Date, of all of the following conditions (except as otherwise
provided below), any of which may be waived in whole or in part by such
Purchaser:
(a) The representations and warranties made by the Company in
Section 3 hereof shall be true and correct when made, and shall be true and
correct on each Closing Date with the same force and effect as if they had
been made on and as of the same date, provided that the Company shall be
entitled to update EXHIBIT C in connection with any Additional Closing.
(b) The Company shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to
each Closing Date.
(c) With respect to the first Closing only, the Purchaser shall
have received from Xxxxxxxx & Xxxxxxxx, an opinion letter addressed to them,
dated the first Closing Date and in substantially the form attached hereto as
EXHIBIT F.
(d) The Company shall have delivered to Purchaser a
certificate, executed by the chief executive officer of the Company and dated
the Closing Date, and each Additional Closing Date certifying to the
fulfillment of the conditions specified in Sections 5.1(a), 5.2(a) and 5.2(b).
5.3 ADDITIONAL CONDITION TO OBLIGATIONS OF THE COMPANY. In
addition to the conditions set forth in Section 5.1 hereof, the Company's
obligation to issue and sell the Shares to the Purchaser is subject to the
fulfillment to the Company's satisfaction, on or prior to each Closing Date,
of the following conditions, any of which may be waived in whole or in part
by the Company:
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(a) The representations and warranties made by Purchaser in
Section 4 hereof shall be true and correct when made, and shall be true and
correct on each Closing Date with the same force and effect as if they had
been made on and as of the same date.
(b) Purchaser shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to
each Closing Date, including payment of the Purchase Price.
SECTION VI
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
6.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Purchaser
and the closing of the transactions contemplated hereby. All statements as
to factual matters contained in any certificate or other instrument delivered
by or on behalf of the Company pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder as of the date of such certificate or
instrument.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof. Neither this Agreement nor any provision hereof may be amended,
changed, waived, discharged or terminated other than by a written instrument
signed by the party against who enforcement of any such amendment, change,
waiver, discharge or termination is sought.
6.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing
and may be delivered in person, by telecopy, electronic mail, express
delivery service or U.S. mail, in which event it may be mailed by
first-class, certified or registered, postage prepaid, addressed:
(a) if to Company: BEA Enterprises, Inc.
0000 X. Xxxxxxxx Xxxx, Xxx. 000
Xxxx Xxxx, XX 00000
Attn: President and Chief Executive Officer
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(b) if to Purchaser: Warburg, Xxxxxx Ventures, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X.X. Xxxxx
with a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
or at such other address as the party shall so indicate in accordance with
this Section 6.5.
6.6 SEVERABILITY. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
6.7 FINDER'S FEES.
(a) The Company (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated
by this Agreement and (ii) hereby agrees to indemnify and to hold the
Purchasers harmless of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or
asserted liability) for which the Company, or any of its employees or
representatives, is responsible.
(b) The Purchaser (i) represents and warrants that, except for
Xxxxx Xxxxxxxxx, it has retained no finder or broker in connection with the
transactions contemplated by this Agreement and (ii) hereby agrees to
indemnify and to hold the Company harmless of and from any liability for any
commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which Purchaser, or any of its employees
or representatives, is responsible, including, without limitation, Xxxxx
Xxxxxxxxx.
6.8 TITLES AND SUBTITLES. The titles of the Articles and Sections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.10 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party upon any breach or
default of any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to
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be a waiver of any such breach or default, or any acquiescence therein, or of
any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character of any breach or
default under this Agreement, or any waiver of any provisions or conditions
of this Agreement must be in writing and shall be effective only to the
extent specifically set forth in writing, and that all remedies, either under
this Agreement, by law or otherwise, shall be cumulative and not alternative.
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6.11 PAYMENT OF FEES AND EXPENSES. Each party shall be responsible
for paying its own fees, costs and expenses in connection with this Agreement
and the transactions herein contemplated.
6.12 EXHIBITS. Each of the exhibits and schedules to this Agreement
are incorporated in the Agreement by this reference.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
COMPANY:
BEA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
--------------------------------
Title: President
-----------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
--------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
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EXHIBITS
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EXHIBIT NAME
------- ----
A Certificate of Amendment to Certificate of Incorporation
B Schedule of Investments
C Schedule of Exceptions
D Investor Rights Agreement
E Shareholder Agreement
F Opinion of Xxxxxxxx & Xxxxxxxx
i
EXHIBIT B
SCHEDULE OF INVESTMENTS
Date Purchase Price Shares
September 28, 1995 $570,000 1,000,000 common stock
September 28, 1995 $13,430,000 7,900,000 Series A Preferred Stock
ii
FIRST AMENDMENT
TO STOCK PURCHASE AGREEMENT
This First Amendment is made and dated as of October 31, 1995
by and between BEA Systems, a Delaware corporation (formerly known as, BEA
Enterprises, Inc.) (the "Company") and Warburg, Xxxxxx Ventures, L.P., a
Delaware limited partnership (the "Purchaser") with respect to that certain
Stock Purchase Agreement dated September 28, 1995 between the Company and
Purchaser (the "Agreement") regarding the following facts:
RECITALS
A. WHEREAS, pursuant to the terms of the Agreement, Purchase invested
Fourteen Million Dollars ($14,000,000) in the Company in exchange for
7,900,000 of the Company's Series A Preferred Stock and 1,000,000 shares of
the Company's Common Stock.
B. WHEREAS, the Agreement contemplates additional investments by
Purchaser in the Company and the Purchaser desires to purchase additional shares
of the Company's Series A Preferred Stock and the Company's Series B Preferred
Stock and the Company desires to issue and sell such shares to Purchaser to
enable the Company to consummate the ITI transaction (as that term is defined in
the Agreement).
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof and of the Agreement, the Company will issue and the Purchaser will
buy from the Company (a) Three Million Two Hundred Thousand (3,200,000)
shares of Series A Preferred for a purchase price of $1.70 per share for an
aggregate purchase price of Five Million Four Hundred Forty Thousand Dollars
($5,440,000), and (b) Two Million Sixty Thousand (2,060,000) shares of Series
B Preferred for a purchase price of $1.00 per share for an aggregate purchase
price of Two Million Sixty Thousand Dollars ($2,060,000).
2. AMENDED EXHIBIT B. EXHIBIT B to the Agreement is hereby amended
to reflect the purchase of the shares referenced in paragraph 1 above, which
amended EXHIBIT B is attached hereto and incorporated herein.
3. CLOSING. The closing of the purchase and sale of shares hereunder
shall be held on October 31, 1995 and shall constitute an "Additional
Closing" pursuant to the terms of the Agreement.
4. AGREEMENT CONTINUES. Except as specifically modified herein, the
terms and conditions of the Agreement shall remain in full force and effect
and the Company and Purchaser
1
each reaffrim their respective representations and warranties as set forth in
the Agreement to the extent they apply to each Additional Closing.
5. DEFINITIONS. Capitalized terms used herein shall have the meanings
set forth in the Agreement, unless otherwise specifically defined
herein.
2
6. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Stock Purchase Agreement to be duly executed and delivered
by their proper and duly authorized officers as of the day and year first
written above.
COMPANY:
BEA SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
----------------------------------
Title: President & CEO
-------------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
----------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
3
EXHIBIT B
SCHEDULE OF INVESTMENTS
DATE PURCHASE PRICE SHARES
September 28, 1995 $570,000 1,000,000 Common Stock
September 28, 1995 $13,430,000 7,900,000 Series A Preferred Stock
October 31, 1995 $5,440,000 3,200,000 Series A Preferred Stock
October 31, 1995 $2,060,000 2,060,000 Series B Preferred Stock
SECOND AMENDMENT
TO STOCK PURCHASE AGREEMENT
This Second Amendment is made and dated as of January 10, 1996 by and
between BEA Systems, a Delaware corporation (formerly known as, BEA
Enterprises, Inc.) (the "Company") and Warburg, Xxxxxx Ventures, L.P., a
Delaware limited partnership (the "Purchaser") with respect to that certain
Stock Purchase Agreement dated September 28, 1995, as amended, between the
Company and Purchaser (the "Agreement") regarding the following facts:
RECITALS
WHEREAS, the Agreement contemplates additional investments by Purchaser in
the Company and the Purchaser desires to invest an additional $4,000,000 in the
Company and to purchase 4,000,000 additional shares of the Company's Series B
Preferred Stock and the Company desires to issue and sell such shares to
Purchaser.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof and of the Agreement, the Company will issue and the Purchaser will
buy from the Company Four (4,000,000) shares of Series B Preferred for a
purchase price of $1.00 per share for an aggregate purchase price of Four
Million Dollars ($4,000,000).
2. AMENDED EXHIBIT B. EXHIBIT B to the Agreement is hereby amended
to reflect the purchase of the shares referenced in paragraph 1 above, which
amended EXHIBIT B is attached hereto and incorporated herein.
3. CLOSING. The closing of the purchase and sale of shares hereunder
shall be held on January 8, 1996 and shall constitute an "Additional Closing"
pursuant to the terms of the Agreement.
4. AGREEMENT CONTINUES. Except as specifically modified herein, the
terms and conditions of the Agreement shall remain in full force and effect
and the Company and Purchaser each reaffirm their respective representations
and warranties as set forth in the Agreement to the extent they apply to each
Additional Closing.
5. DEFINITIONS. Capitalized terms used herein shall have the
meanings set forth in the Agreement, unless otherwise specifically defined
herein.
1
6. COUNTERPARTS. This Second Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to the Stock Purchase Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first written above.
COMPANY:
BEA SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
----------------------------------
Title: President
-------------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
----------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
2
EXHIBIT B
SCHEDULE OF INVESTMENTS
DATE PURCHASE PRICE SHARES
September 28, 1995 $570,000 1,000,000 Common Stock
September 28, 1995 $13,430,000 7,900,000 Series A Preferred Stock
October 31, 1995 $5,440,000 3,200,000 Series A Preferred Stock
October 31, 1995 $2,060,000 2,060,000 Series B Preferred Stock
November 30, 1995 NC -split shares 1,000,000 Common Stock
January 10, 1996 $4,000,000 4,000,000 Series B Preferred Stock
THIRD AMENDMENT
TO STOCK PURCHASE AGREEMENT
This Third Amendment is made and dated as of April 16, 1996 by and
between BEA Systems, Inc. a Delaware corporation (formerly known as, BEA
Enterprises, Inc.) (the "Company") and Warburg, Xxxxxx Ventures, L.P., a
Delaware limited partnership (the "Purchaser") with respect to that certain
Stock Purchase Agreement dated September 28, 1995, as amended, between the
Company and Purchaser (the "Agreement") regarding the following facts:
RECITALS
WHEREAS, the Agreement contemplates additional investments by Purchaser
in the Company and the Purchaser desires to invest an additional $5,000,000
in the Company and to purchase an additional 174,150 additional shares of the
Company's Series A Preferred Stock and an additional 4,703,945 shares of the
Company's Series B Preferred Stock and the Company desires to issue and sell
such shares to Purchaser.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof and of the Agreement, the Company will issue and the Purchaser will
buy from the Company (i) One Hundred Seventy Four Thousand One Hundred and
Fifty (174,150) shares of Series A Preferred for a purchase price of $1.70
per share for an aggregate purchase price of Two Hundred Ninety Six Thousand
Fifty Five Dollars ($296,055), and (ii) Four Million Seven Hundred and Three
Thousand Nine Hundred and Forty Five (4,703,945) shares of Series B Preferred
for a purchase price of $1.00 per share for an aggregate purchase price of
Four Million Seven Hundred and Three Thousand Nine Hundred and Forty Five
dollars ($4,703,945).
2. AMENDED EXHIBIT B. EXHIBIT B to the Agreement is hereby amended
to reflect the purchase of the shares referenced in paragraph 1 above, which
amended EXHIBIT B is attached hereto and incorporated herein.
3. CLOSING. The closing of the purchase and sale of shares hereunder
shall be held on April 16, 1996 and shall constitute an "Additional Closing"
pursuant to the terms of the Agreement.
4. AGREEMENT CONTINUES. Except as specifically modified herein, the
terms and conditions of the Agreement shall remain in full force and effect
and the Company and Purchaser each reaffirm their respective representations
and warranties as set forth in the Agreement to the extent they apply to each
Additional Closing.
1
5. DEFINITIONS. Capitalized terms used herein shall have the
meanings set forth in the Agreement, unless otherwise specifically defined
herein.
6. COUNTERPARTS. This Third Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
the Stock Purchase Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first written above.
COMPANY:
BEA SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
----------------------------------
Title: President & CEO
-------------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
----------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
2
EXHIBIT B
SCHEDULE OF INVESTMENTS
DATE PURCHASE PRICE COMMON SERIES A SERIES B
SHARES SHARES SHARES
September 28, 1995 $570,000 1,000,000
September 28, 1995 $13,430,000 7,900,000
October 31, 1995 $5,440,000 3,200,000
October 31, 1995 $2,060,000 2,060,000
November 30, 1995 NC -split shares 1,000,000
January 10, 1996 $4,000,000 4,000,000
April 16, 1996 $5,000,000 174,150 4,703,945
------------------ ---------- ---------- ----------
Total to Date $30,500,000 2,000,000 11,274,150 10,763,945
FOURTH AMENDMENT
TO STOCK PURCHASE AGREEMENT
This Fourth Amendment is made and dated as of July 1, 1996 by and
between BEA Systems, Inc. a Delaware corporation (formerly known as, BEA
Enterprises, Inc.) (the "Company") and Warburg, Xxxxxx Ventures, L.P., a
Delaware limited partnership (the "Purchaser") with respect to that certain
Stock Purchase Agreement dated September 28, 1995, as amended, between the
Company and Purchaser (the "Agreement") regarding the following facts:
RECITALS
WHEREAS, the Agreement contemplates additional investments by Purchaser
in the Company and the Purchaser desires to invest an additional $4,000,000
in the Company and to purchase an additional 2,000,000 shares of the
Company's Common Stock, 1,664,000 additional shares of the Company's Series A
Preferred Stock and an additional 601,200 shares of the Company's Series B
Preferred Stock and the Company desires to issue and sell such shares to
Purchaser.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof and of the Agreement, the Company will issue and the Purchaser will
buy from the Company (i) Two Million (2,000,000) shares of Common Stock for a
purchase price of $.285 per share for an aggregate purchase of Five Hundred
Seventy Thousand Dollars ($570,000), (ii) One Million Six Hundred Sixty Four
Thousand (1,664,000) shares of Series A Preferred for a purchase price of
$1.70 per share for an aggregate purchase price of Two Million Eight Hundred
Twenty Eight Thousand Eight Hundred Dollars ($2,828,800), and (iii) Six
Hundred and One Thousand Two Hundred (601,200) shares of Series B Preferred
for a purchase price of $1.00 per share for an aggregate purchase price of
Six Hundred and One Thousand Two Hundred Dollars ($601,200).
2. AMENDED EXHIBIT B. EXHIBIT B to the Agreement is hereby amended
to reflect the purchase of the shares referenced in paragraph 1 above, which
amended EXHIBIT B is attached hereto and incorporated herein.
3. CLOSING. The closing of the purchase and sale of shares hereunder
shall be held on July 1, 1996 and shall constitute an "Additional Closing"
pursuant to the terms of the Agreement.
4. AGREEMENT CONTINUES. Except as specifically modified herein, the
terms and conditions of the Agreement shall remain in full force and effect
and the Company and Purchaser
1
each reaffirm their respective representations and warranties as set forth in
the Agreement to the extent they apply to each Additional Closing.
5. DEFINITIONS. Capitalized terms used herein shall have the
meanings set forth in the Agreement, unless otherwise specifically defined
herein.
6. COUNTERPARTS. This Fourth Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to the Stock Purchase Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first written above.
COMPANY:
BEA SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
----------------------------------
Title: President & CEO
-------------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
----------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
2
EXHIBIT B
SCHEDULE OF INVESTMENTS
DATE PURCHASE PRICE COMMON SERIES A SERIES B
SHARES SHARES SHARES
September 28, 1995 $570,000 1,000,000
September 28, 1995 $13,430,000 7,900,000
October 31, 1995 $5,440,000 3,200,000
October 31, 1995 $2,060,000 2,060,000
November 30, 1995 NC -split shares 1,000,000
January 10, 1996 $4,000,000 4,000,000
April 16, 1996 $5,000,000 174,150 4,703,945
July 1, 1996 $4,000,000 2,000,000 1,664,000 601,200
------------------ ---------- ----------- ----------
Total to Date $34,500,000 4,000,000 12,938,150 11,365,145
FIFTH AMENDMENT
TO STOCK PURCHASE AGREEMENT
This Fifth Amendment is made and dated as of September 3, 1996
by and between BEA Systems, Inc. a Delaware corporation (formerly known as,
BEA Enterprises, Inc.) (the "Company") and Warburg, Xxxxxx Ventures, L.P., a
Delaware limited partnership (the "Purchaser") with respect to that certain
Stock Purchase Agreement dated September 28, 1995, as amended, between the
Company and Purchaser (the "Agreement") regarding the following facts:
RECITALS
WHEREAS, the Agreement contemplates additional investments by
Purchaser in the Company and the Purchaser desires to invest an additional
$12,000,000 in the Company and to purchase an additional 4,127,850 additional
shares of the Company's Series A Preferred Stock and an additional 4,982,655
shares of the Company's Series B Preferred Stock and the Company desires to
issue and sell such shares to Purchaser.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof and of the Agreement, the Company will issue and the Purchaser will
buy from the Company (i) Four Million One Hundred Twenty Seven Thousand Eight
Hundred and Fifty (4,127,850) shares of Series A Preferred for a purchase
price of $1.70 per share for an aggregate purchase price of Seven Million
Seventeen Thousand Three Hundred Forty Five Dollars ($7,017,345), and (ii)
Four Million Nine Hundred Eighty Two Thousand Six Hundred and Fifty Five
(4,982,655) shares of Series B Preferred for a purchase price of $1.00 per
share for an aggregate purchase price of Four Million Nine Hundred Eighty Two
Thousand Six Hundred and Fifty Five dollars ($4,982,655).
2. AMENDED EXHIBIT B. EXHIBIT B to the Agreement is hereby amended
to reflect the purchase of the shares referenced in paragraph 1 above, which
amended EXHIBIT B is attached hereto and incorporated herein.
3. CLOSING. The closing of the purchase and sale of shares
hereunder shall be held on September 3, 1996 and shall constitute an
"Additional Closing" pursuant to the terms of the Agreement.
4. AGREEMENT CONTINUES. Except as specifically modified herein, the
terms and conditions of the Agreement shall remain in full force and effect
and the Company and Purchaser
1
each reaffirm their respective representations and warranties as set forth in
the Agreement to the extent they apply to each Additional Closing.
5. DEFINITIONS. Capitalized terms used herein shall have the
meanings set forth in the Agreement, unless otherwise specifically defined
herein.
6. COUNTERPARTS. This Fifth Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to the Stock Purchase Agreement to be duly executed and delivered
by their proper and duly authorized officers as of the day and year first
written above.
COMPANY:
BEA SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
----------------------------------
Title: President & CEO
-------------------------------
PURCHASER:
WARBURG, XXXXXX VENTURES, L.P.
By: /s/ Stuart X. X. Xxxxx
----------------------------------
Title: Partner, Warburg, Xxxxxx & Co.
General Partner
-------------------------------
2
EXHIBIT B
SCHEDULE OF INVESTMENTS
DATE PURCHASE PRICE COMMON SERIES A SERIES B
SHARES SHARES SHARES
September 28, 1995 $570,000 1,000,000
September 28, 1995 $13,430,000 7,900,000
October 31, 1995 $5,440,000 3,200,000
October 31, 1995 $2,060,000 2,060,000
November 30, 1995 NC-split shares 1,000,000
January 10, 1996 $4,000,000 4,000,000
April 16, 1996 $5,000,000 174,150 4,703,945
July 1, 1996 $4,000,000 2,000,000 1,664,000 601,200
September 3, 1996 $12,000,000 0 4,127,850 4,982,655
--------------- --------- ---------- ----------
Total to Date $46,500,000 4,000,000 17,066,000 16,347,800
