SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT THIS SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of the 15th day of June, 2017 by and between Finjan Holdings, Inc., a Delaware corporation (the “Corporation”), and Soryn...
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Exhibit 10.1
EXECUTION COPY
4350823.8
__________________________
FINJAN HOLDINGS, INC.
___________________________
SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT
___________________________
June 15, 2017
___________________________
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TABLE OF CONTENTS
(continued)
Exhibit A - FORM OF WARRANT
Exhibit B - FORM OF CERTIFICATE OF DESIGNATION
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SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”)
is made as of the 15th day of June, 2017 by and between Finjan Holdings, Inc., a Delaware
corporation (the “Corporation”), and Soryn HLDR Vehicle II LLC, a Delaware limited liability
company (the “Purchaser”).
RECITALS
WHEREAS, pursuant to this Agreement, the Corporation proposes to issue to the Purchaser
a common stock warrant, in substantially the form attached hereto as Exhibit A (the “Warrant”), to
purchase 2,000,000 shares of common stock, $0.0001 par value per share, of the Corporation (the
“Common Stock”) at the exercise price and upon the terms and conditions set forth therein;
WHEREAS, pursuant to this Agreement, the Corporation proposes to issue to the Purchaser
153,000 shares of its Series A-1 Preferred Stock (the “Shares”) in exchange for a purchase price of
$100 per Share (the “Purchase Price”); and
WHEREAS, the Corporation desires to issue and sell, and the Purchaser desires to purchase,
the Warrant and the Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises,
representations, warranties, and covenants hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. Purchase and Sale of the Warrant and Preferred Stock.
1.1 Sale and Issuance of Series A-1 Preferred Stock.
(a) The Corporation has authorized the issuance and sale to the Purchaser
of the Shares, having the rights and preferences set forth in the Certificate of Designation of Series
A-1 Preferred Stock in the form of Exhibit B attached to this Agreement (the “Certificate of
Designation”). Immediately prior to the Closing, the Corporation shall adopt and file the Certificate
of Designation with the Secretary of State of the State of Delaware.
(b) At the Closing, subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of the Corporation set forth herein or in any
certificate or other document delivered pursuant hereto, the Purchaser agrees to purchase, and the
Corporation agrees to sell and issue to the Purchaser, free and clear of all Liens, in exchange for the
payment of the aggregate Purchase Price, 153,000 Shares.
1.2 Closing; Delivery.
(a) The purchase and sale of the Shares (the “Closing”) shall take place
remotely via the exchange of documents and signatures, within ten (10) Business Days of the
satisfaction (or waiver by the applicable party) of each of the conditions set forth in Section 6 and 7,
or at such other place or time or on such other date as shall be agreed to by the Corporation and the
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“Amended and Restated Certificate” means the Amended and Restated Certificate
of Incorporation of the Corporation dated July 10, 2014.
“Business Day” means a day banks in New York City are open for regular business.
“Bylaws” means the Amended and Restated Bylaws of the Corporation effective as of
July 10, 2014.
“Claims” means any and all claims, causes of action, rights, choses in action, and
entitlements, known or unknown, existing or later arising, in connection with the Litigation, the
Proceedings or the Patents, in favor of the Corporation, any Corporation Subsidiary and/or their
respective Affiliates, against any Adverse Party, including the Litigation and any claims, causes of
action, rights, choses in action, and entitlements, known or unknown, existing or later arising, in
connection therewith.
“Code” means the Internal Revenue Code of 1986.
“Confidential Information” means any information relating to the Corporation or
any Corporation Subsidiary provided to Purchaser or any Affiliate of Purchaser (or any advisor
thereof), under or in connection with any Transaction Documents, including any information
provided orally and any document, file or any other way of representing or recording information
which contains or is derived from such information other than: (a) information that is or becomes
public knowledge other than as a result of a breach of Section 8.12 (Confidentiality) by Purchaser or
any Affiliate of Purchaser (or any advisor thereof); (b) information previously known by or in the
possession of Purchaser or any Affiliate of Purchaser (or any advisor thereof); or (c) information
lawfully obtained by Purchaser or any Affiliate of Purchaser (or any advisor thereof) from a third
party not reasonably known to Purchaser to be bound by a duty of confidentiality to the Corporation.
“Contract” means all contracts, agreements, commitments, understandings and
arrangements, whether written or oral.
“Corporation” has the meaning set forth in the introductory paragraph.
“Defendants” means, collectively, (i) FireEye, Inc., (ii) Blue Coat Systems, Inc.,
(iii) Symantec Corporation, (iv) Palo Alto Networks, Inc., (v) ESET, LLC et al, (vii) Cisco Systems,
Inc. and (vi) any other party with whom the Corporation, any Corporation Subsidiary or any of their
respective successor(s) in interest or assigns or Affiliates institutes or has instituted legal action
against with respect to patent, trademark or copyright infringement or trade secret matters, whether
on before or after the date hereof.
“Exchange Act” means the Securities Exchange Act of 1934.
“Fiscal Year” means for financial accounting purposes, January 1 to December 31.
“GAAP” means generally accepted accounting principles as applied in the United
States.
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“Governmental Entity” means any court or tribunal or administrative, governmental
or regulatory body or agency (whether foreign, federal, state, local or other).
“Indebtedness” means, with respect to any Person, all indebtedness of such Person
for borrowed money, including (i) all indebtedness evidenced by notes, debentures, bonds or similar
instruments; (ii) all capital lease obligations; (iii) all obligations issued or assumed as the deferred
purchase price of property or services (other than trade payables incurred in the ordinary course of
business); (iv) all obligations (whether fixed or contingent) to reimburse any bank or other Person in
respect of amounts paid or payable under a standby letter of credit; (v) all guarantees of obligations
of the type described in clauses (i) through (iv) of this definition of another Person; and (vi) all
obligations under any acquisition agreements pursuant to which such Person is responsible for any
earn out, note payable or other contingent payments.
“Intellectual Property Rights” means all (i) inventions (whether or not patentable),
patent disclosures, patents, patent applications, and all divisions, continuations and continuations–
in–part, and any renewals, extensions, reexaminations and reissues thereof, (ii) trademarks, service
marks, trade dress, trade names, URL’s, logos and corporate names and registrations and applications
for registration thereof, together with all of the goodwill associated therewith, (iii) copyrights
(registered or unregistered) and copyrightable works and registrations and applications for
registration thereof, (iv) mask works and registrations and applications for registration thereof, (v)
computer software, data, data bases and documentation thereof, (vi) trade secrets and other
confidential information (including ideas, formulas, compositions, inventions (whether patentable or
unpatentable and whether or not reduced to practice), know-how, manufacturing and production
processes and techniques, research and development information, drawings, specifications, designs,
plans, proposals, technical data, copyrightable works, financial and marketing plans and customer
and supplier lists and information), (vii) other intellectual property rights and (viii) copies and
tangible embodiments thereof (in whatever form or medium).
“Knowledge” including the phrase “to the Corporation’s knowledge,” shall mean
the knowledge after reasonable inquiry of each of the officers of the Corporation or any Corporation
Subsidiary.
“Liens” means any mortgage, pledge, security interest, encumbrance, lien, claim or
charge of any kind (including any conditional sale or other title retention agreement or lease in the
nature thereof), any sale of receivables with recourse against the Corporation, any Corporation
Subsidiary or any of their respective Affiliates, any filing or agreement to file a financing statement
as debtor under the Uniform Commercial Code or any similar statute other than to reflect ownership
by a third party of property leased to the Corporation under a lease that is not in the nature of a
conditional sale or title retention agreement, or any subordination arrangement in favor of another
Person (other than any subordination arising in the ordinary course of business).
“Litigation” means, collectively, those Claims set forth on Annex A.
“Material Adverse Effect” means any material and adverse effect on the assets,
liabilities, condition, business, results of operations, prospects, management or affairs of the
Corporation and the Corporation Subsidiaries, taken as a whole.
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“Minimum Treasury Amount” means $6,000,000.
“NASDAQ” means The NASDAQ Capital Market.
“Negative Litigation Event” means the occurrence of any of the following: (a) any
subsequent decision (after the Date of Issuance) by the United States Court of Appeals for the
Federal Circuit or the District Court for the Northern District of California that has the effect of
setting the damages amount owed to the Corporation or the Corporation Subsidiaries by Blue Coat
Systems Inc. in Case No. 5:13-cv-03999-BLF (N.D. Cal) at fifty percent (50%) or less of the
damages awarded on August 4, 2015 (the “Awarded Damages”), or (b) the decision of any
Governmental Entity materially affecting the ability of the Corporation or the Corporation
Subsidiaries to collect more than fifty percent (50%) of the Awarded Damages from Blue Coat
Systems, Inc., as reasonably determined in good faith by holders of more than fifty percent (50%) of
the Shares or (c) Symantec Corporation (or any successor thereto) experiences a bankruptcy,
liquidation, receivership or assignment for benefit of creditors.
“Negative Treasury Event” means any consecutive 60 day period of time during
which the balance of cash and cash equivalents in the Treasury Account (excluding amounts
applicable to the Aggregate Exercise Price (as defined in the Warrant)) is less than the Minimum
Treasury Amount.
“New Securities” means any equity securities of the Corporation or any Corporation
Subsidiary issued after the date hereof, whether or not now authorized, and rights, options or
warrants to purchase such equity securities of any type whatsoever that are, or may by their terms
become, convertible into or exchangeable for such equity securities; provided that, notwithstanding
the foregoing, “New Securities” shall not include the following: (i) equity securities of the
Corporation or any Corporation Subsidiary or other securities issued on a pro rata basis as a dividend
or distribution on, or in connection with a split of or recapitalization of, any of equity securities of
the Corporation or any Corporation Subsidiary; (ii) shares of Common Stock issued pursuant to
awards issued under the Corporation’s equity incentive plans to employees, directors or consultants
of the Corporation or any Corporation Subsidiary; (iii) shares of any Corporation Subsidiary in which
following such issuance, such Corporation Subsidiary is directly or indirectly a wholly-owned
subsidiary of the Corporation; (iv) equity securities of the Corporation issued in an offering for cash
for the account of the Company which offering is registered with the Securities and Exchange
Commission under the Securities Act; (v) shares of Common Stock issued or issuable pursuant to the
acquisition of another unrelated entity by the Corporation by merger, purchase of substantially all of
the assets or other reorganization or to Persons in connection with a joint venture agreement or
strategic alliance with such Person, provided, that such issuances are approved by the Corporation’s
Board of Directors; (vi) shares of Common Stock issued or issuable in connection with any
settlement of any action, suit, proceeding or litigation approved by the Corporation’s Board of
Directors; (vii) shares of Common Stock issued or issuable in or under a transaction for which the
holders of at least a majority of the then outstanding Shares consent or approve as not being
considered New Securities; and (viii) the Warrant and the Warrant Shares.
“Patents” means, collectively, the patents set forth on Annex B as revised from time
to time.
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“Person” means any individual, corporation, partnership, trust, limited liability
company, association or other entity.
“Proceedings” means (i) the Claims (and other proceedings relating thereto,
including dispute resolution proceedings), (ii) any and all related pre- and post-trial proceedings or
processes in or in connection with the Claims; (iii) all appellate proceedings and proceedings on
remand, as well as enforcement, ancillary, parallel or alternate dispute resolution proceedings and
processes arising out of or related to the acts or occurrences alleged in the Claims; (iv) re-filings or
parallel filings relating to the Claims and any other legal, diplomatic or administrative proceedings or
processes founded on the underlying facts giving rise to or forming a basis for the Claims, in which
the Corporation, any Corporation Subsidiary or any of their respective successor(s) in interest or
assigns or Affiliates is a party; (v) ancillary or enforcement proceedings related to the facts or Claims
alleged from time to time; and (vi) all arrangements, settlements, negotiations, or compromises made
between the Corporation or any Corporation Subsidiary or any of their respective Affiliates or
representatives and any Adverse Party having the effect of resolving any of the Claims against any
Adverse Party.
“Proceeds” means (A) any and all pre-Tax monetary award, damages, fees,
recoveries, judgments or other property or value recovered by or on behalf of the Corporation or any
Corporation Subsidiary or their respective Affiliates on account or as a result or by virtue (directly or
indirectly) of the Claims or the Proceedings, whether by negotiation, litigation, arbitration,
mediation, diplomatic efforts, lawsuit, settlement, decree, judgment or otherwise and whether against
the Defendants or any other Adverse Party (including any Person unrelated to the Defendants who
may infringe on the Patents), and includes all of the Corporation’s and each Corporation Subsidiary’s
legal and/or equitable rights, title and interest in and/or to any of the foregoing, whether in the nature
of ownership, lien, security interest or otherwise, plus (B) any actually and successfully recovered
interest, penalties, lawyer’s fees and costs in connection with any of the foregoing, plus (C) any
consequential, actual, moral, punitive, exemplary, special, incidental, lost profits or treble damages
awarded and actually and successfully recovered on account thereof, plus (D) any interest actually
and successfully awarded or later accruing on any of the foregoing, plus (E) any recoveries from
actions commenced by the Corporation or any Corporation Subsidiary against lawyers, accountants,
experts or officers in connection with any of the foregoing or the pursuit of the Proceedings. For the
avoidance of doubt, “Proceeds” includes cash, real estate, negotiable instruments, choses in action,
contract rights, membership rights, subrogation rights, annuities, future revenue streams (including
milestone and royalty payments), claims, refunds, and any other rights to payment of cash and/or
transfer(s) of things of value or other property (including property substituted therefor), whether
delivered or to be delivered in a lump sum or in installments, in relation to any claim or negotiation
with any Person in relation to the Proceedings, and shall include any award of rescissionary, punitive,
consequential, treble or exemplary damages or penalties assessed against any Adverse Party from
time to time.
“Requirements of Laws” means any applicable United States federal, state and local,
and any non-U.S., laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued or
promulgated by any Governmental Entity, including, if and to the extent the Corporation is subject
thereto, any applicable listing requirements and rules and regulations of NASDAQ and any other
stock exchange or interdealer quotation system.
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deliver the Securities, and to carry out and perform its obligations under the terms of this Agreement
and each of the other Transaction Documents.
2.3 Capitalization; Governance Matters.
(a) The authorized capital stock of the Corporation consists, immediately
prior to the Closing, of:
(i) 80,000,000 shares of common stock, $0.0001 par value per
share (the “Common Stock”), the number of shares of which (A) are issued and outstanding
or (B) reserved for issuance to employees, consultants and directors pursuant to the Finjan
Holdings, Inc. 2013 Global Share Option Plan, the Finjan Holdings, Inc. 2014 Incentive
Compensation Plan, and the Finjan Holdings, Inc. Israeli Appendix to the 2014 Incentive
Compensation Plan upon the exercise of outstanding stock options or other awards held by
Corporation employees thereunder, are as set forth on Schedule 2.3;
(ii) 10,000,000 shares of Preferred Stock, $0.0001 par value per
share (the “Preferred Stock”), of which (A) 102,000 have been designated Series A
Preferred Stock, and none of which are issued and outstanding, and (B) 153,000 have been
designated Series A-1 Preferred Stock, and none of which are issued and outstanding.
(b) All issued and outstanding shares of Common Stock (i) have been duly
authorized, (ii) were validly issued in compliance with Requirements of Law, including all federal
and state securities laws, (iii) are fully paid and nonassessable, and (iv) were not issued in violation
of any preemptive or similar rights.
(c) The Amended and Restated Certificate (which, as of the Closing, shall
be as supplemented by the Certificate of Designation) is in full force and effect. The designations,
powers, preferences, rights, qualifications, limitations and restrictions in respect of each class and
series of authorized capital stock of the Corporation, including the Shares, are as set forth in the
Amended and Restated Certificate (which, as of the Closing, shall be as supplemented by the
Certificate of Designation) and all such designations, powers, preferences, rights, qualifications,
limitations and restrictions are valid, binding and enforceable (except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles) and in accordance with all Requirements of
Law. The Shares and the Warrant Shares, when issued and delivered and paid for in compliance
with the provisions of this Agreement and the Amended and Restated Certificate (which, as of the
Closing, shall be as supplemented by the Certificate of Designation), will be validly issued, fully
paid and non-assessable. When issued, sold and delivered in accordance with the terms of this
Agreement, the Shares and the Warrant Shares will be (i) free of any Liens, other than any Liens
created by or through the Purchaser and restrictions on transfer under U.S. state and/or federal
securities laws and as set forth herein, and (ii) issued in compliance with all Requirements of Law
including state and federal securities laws.
(d) No Person is entitled to any pre-emptive right or right of first refusal
with respect to the issuance of any capital stock of the Corporation, including the Shares and the
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transactions contemplated hereby and thereby, the filing of the Certificate of Designation and the
authorization, sale, issuance and delivery of the Shares and the Warrant, has been taken. When the
Warrant Shares are issued and paid for in accordance with the terms of this Agreement and as set
forth in the Warrant, such Warrant Shares will be duly authorized by all corporate action necessary
for the authorization, sale, issuance and delivery of the Warrant Shares. This Agreement and the
other Transaction Documents, when executed and delivered by the Corporation, shall constitute valid
and binding obligations of the Corporation, enforceable against the Corporation in accordance with
their terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
The Corporation (a) is not required to obtain the approval of the owners or holders of its Common
Stock in order to authorize and consummate the transactions contemplated by this Agreement or any
of the other Transaction Documents and (b) has obtained the approvals of all Persons necessary to
authorize and consummate the transactions contemplated by this Agreement and the other
Transaction Documents.
(b) Neither the execution and delivery of this Agreement or any of the
other Transaction Documents or the consummation of any of the transactions contemplated hereby or
thereby nor compliance with or fulfillment of the terms, conditions and provisions hereof or thereof
will:
(i) conflict with, result in a breach or violation of the terms,
conditions or provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights under, or result in the
creation or imposition of any Lien upon any of the assets or properties of the Corporation or
any Corporation Subsidiary, under (A) the Amended and Restated Certificate or the Bylaws,
(B) any note, instrument, contract, agreement, mortgage, lease, license, franchise, permit or
other authorization, right, restriction or obligation to which the Corporation or any
Corporation Subsidiary is a party or any of its assets or properties is subject or by which the
Corporation or any Corporation Subsidiary is bound, (C) any order, injunction, temporary
restraining order, judgment, award, decree or ruling of any Governmental Entity to which the
Corporation or any Corporation Subsidiary is a party or any of its assets or properties is
subject or by which the Corporation or any Corporation Subsidiary is bound, (D) any rule or
regulation of NASDAQ or other Requirements of Law; or
(ii) require the approval, consent, authorization or act of, or the
making by the Corporation or any Corporation Subsidiary of any declaration, filing or
registration with, any Person (except for, with respect to the offer and sale of the Securities,
(a) any required filings under state securities laws and (b) routine post-Closing notice filings
with the SEC and under state corporation and securities laws, each of which have been or
will be filed timely within the applicable period therefor).
2.5 SEC Documents. The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and the Corporation has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting requirements of the
Exchange Act, including all such annual, quarterly and current reports, proxy information,
solicitation statement and registration statements, and amendments thereto required to have been
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filed (all of the foregoing and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein being referred to herein as the “SEC
Documents”). As of the date of filing of such SEC Documents, the SEC Documents complied in all
material respects with the applicable requirements of the regulations of the Exchange Act and the
rules and regulations promulgated thereunder and other Federal, state and local laws, rules and
regulations applicable to such SEC Documents. None of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. The SEC Documents contain all material information concerning the
Corporation, and no event or circumstance has occurred prior to the date hereof that would require
the Corporation to disclose such event or circumstance in order to make the statements in the SEC
Documents not misleading but which has not been so disclosed. The Corporation is not required to
file and will not be required to file any Contract entered into prior to the date hereof and to which the
Corporation is a party or by which the Corporation is bound that has not been previously filed as an
exhibit to its reports filed with the SEC under the Exchange Act.
2.6 Related Parties.
(a) Except as disclosed in Schedule 2.6(a), none of the officers, directors,
or to the Corporation’s Knowledge, any key employee of the Corporation or any Corporation
Subsidiary or any members of their immediate families or other Affiliates, has any direct or indirect
ownership interest in any firm or corporation with which the Corporation or any Corporation
Subsidiary is affiliated or with which the Corporation or any Corporation Subsidiary has a business
relationship, or any firm or corporation which competes with the Corporation, other than passive
investments in publicly traded companies (representing less than 1% of such company). No
employee, officer, director or other Affiliate of the Corporation or member of his or her immediate
family is indebted to the Corporation, nor is the Corporation indebted (or committed to make loans
or extend or guarantee credit) to any of them.
(b) To the Knowledge of the Corporation, except for (i) this Agreement
and the other Transaction Documents and (ii) the agreements set forth on Schedule 2.6(b), there are
no other agreements, understandings or proposed transactions between the Corporation and any of its
officers, directors, or holders of the Corporation’s outstanding capital stock or any Affiliate thereof,
including spouses, or family members of any such officer, director or holders of such stock, or that
would otherwise be required to be disclosed pursuant to Item 404 of Regulation S-K of the SEC.
2.7 Compliance with Law; Permits. The Corporation and each of the Corporation
Subsidiaries is in compliance with all material Requirements of Law. The Corporation and the
Corporation Subsidiaries have all material franchises, permits, licenses and any similar authority
necessary for the conduct of their respective businesses as now being conducted by them and believe
they can obtain, without undue burden or expense, any similar authority for the conduct of their
respective business as planned to be conducted. Neither the Corporation nor any Corporation
Subsidiary is in default in any material respect under any such franchises, permits, licenses or similar
authority.
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evidencing the New Securities, which New Securities shall be issued free and clear of any Liens
(other than those arising hereunder and those attributable to the actions of the purchasers thereof),
and the Corporation shall so represent and warrant to the purchaser thereof, and further represent and
warrant to such purchaser that such New Securities shall be, upon issuance thereof to the Purchaser
and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. The
Purchaser shall deliver to the Corporation the purchase price for the New Securities purchased by
wire transfer of immediately available funds. Each party to the purchase and sale of New Securities
shall take all such other actions as may be reasonably necessary to consummate the purchase and sale
including entering into such additional agreements as may be necessary or appropriate.
4.5 Reporting Status. The Corporation shall comply with all Requirements of
Law, including the rules and regulations under the Securities Act and the Exchange Act, and the
rules of any securities exchange upon which any shares of its capital stock are listed. The
Corporation shall use commercially reasonable efforts to maintain its status as a company with
securities registered under Section 12 of the Exchange Act and the quotation of the Common Stock
on NASDAQ, and shall timely file all reports and other filings required to be filed by it under the
Securities Act and the Exchange Act, the rules and regulations adopted by the SEC thereunder or the
rules and regulations of NASDAQ. If required, the Company shall promptly file the “Listing
Application” for, or in connection with, the issuance and delivery of the Warrant Shares. The
Corporation shall take such further action as the Purchaser may reasonably request to enable such
holders to sell Restricted Securities pursuant to Rule 144 adopted by the SEC under the Securities
Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter
adopted by the SEC. Upon reasonable request, the Corporation shall deliver to any holder of
Restricted Securities a written statement as to whether it has complied with such requirements.
4.6 Public Disclosure of Transaction. On or before 5:30 p.m., New York City
time, on or before the Fourth Business Day immediately following the date hereof, the Corporation
shall issue a press release announcing the entry into this Agreement and describing the terms of the
transactions contemplated hereby and by the other Transaction Documents.
4.7 Pursuit of the Claims. The Corporation shall use its commercially reasonable
best efforts and exercise good faith and reasonable commercial judgment, but at all times within the
bounds of any applicable law and rules of professional responsibility: (i) in pursuing all of the
Corporation’s and the Corporation Subsidiaries’ or any of their respective Affiliates’ legal and
equitable rights in the Claims and/or Proceedings and with respect to the Proceeds; (ii) to bring the
Claims and/or Proceedings to settlement or final judgment; and (iii) to enforce collection of all
money and other Proceeds due on account of the Claims and/or Proceedings or other enforcement
actions relating to the Proceeds, including any settlement(s) with Adverse Parties. The Corporation
shall maintain and prosecute the Patents.
4.8 Preserve Accuracy of Representations and Warranties; Notification of Certain
Matters.
(a) During the period prior to the Closing Date, each party hereto shall
refrain from taking any action which would render any representation or warranty contained in
Sections 2 or 3, as applicable, inaccurate as of the Closing Date. Each party shall promptly notify the
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9.2 Survival of Warranties. The warranties, representations and covenants of the
Corporation and Purchaser contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing and shall in no way be affected by any
investigation or knowledge of the subject matter thereof made by or on behalf of the Purchaser or the
Corporation.
9.3 Successors and Assigns. 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.
9.4 Governing Law and Jurisdiction. This Agreement and any controversy arising
out of or relating to this Agreement shall be governed by and construed in accordance with the
internal laws of the State of State of New York, without regard to conflict of law principles that
would result in the application of any law other than the law of the State of New York, with the
Corporation and the Purchaser hereby agreeing to personal jurisdiction and venue in such court of
competent jurisdiction in the federal and state courts of the City of New York, New York.
9.5 Counterparts; Facsimile or PDF. This Agreement may be executed and
delivered by facsimile, PDF signature or electronic signature and in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
9.6 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.
9.7 Disclosure Schedules. The Disclosure Schedules shall be arranged in sections
corresponding to the numbered and lettered sections and subsections contained in Section 2.
9.8 Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt
or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or
facsimile during normal business hours of the recipient, and if not sent during normal business hours,
then on the recipient’s next Business Day, (c) the next business day upon deposit with a reputable
national overnight delivery service for overnight delivery, (d) five (5) days after having been sent by
certified or registered mail, return receipt requested, postage prepaid, to be sent as follows:
If to the Purchaser:
Soryn HLDR Vehicle II LLC
Attention: Chief Compliance Officer
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Email: xxxxxxxxxx@xxxxxxxxxx.xxx
Facsimile: 000-000-0000
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If to the Corporation:
Finjan Holdings, Inc.
Attention: Chief Executive Officer
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Email: xxxx@xxxxxx.xxx
with copies to (which shall not constitute notice):
GCA Law Partners LLP
0000 X. Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
Facsimile: 000-000-0000
9.9 Expenses. The Corporation shall pay up to a total of $125,000 of the
Purchaser’s reasonable and documented fees and expenses (the “Purchaser Expenses”) in
connection with this Agreement and the transactions contemplated hereby (it being agreed and
understood that, at the Purchaser’s option, the amount of the Purchaser Expenses shall be payable by
offsetting the amount due from the Purchaser pursuant Section 1.2(c)).
9.10 Origination Fee. The Corporation shall pay the Purchaser an origination fee
equal to $300,000 (the “Origination Fee”) in connection with this Agreement and the transactions
contemplated hereby (it being agreed and understood that, at the Purchaser’s option, the amount of
the Origination Fee shall be payable by offsetting the amount due from the Purchaser pursuant
Section 1.2(c)).
9.11 Remedies; Attorneys’ Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement or any of the other
Transaction Documents, 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. The
Purchaser shall be entitled to enforce any rights it has under this Agreement or the Transaction
Documents specifically (without posting a bond or other security), to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights granted by law.
9.12 Amendments and Waivers. Except as expressly provided herein, any term of
this Agreement may be amended, terminated or waived only with the written consent of the
Corporation and (i) the holders of at least a majority of the then-outstanding Shares or (ii) for an
amendment, termination or waiver effected prior to the Closing, the Purchaser. Any amendment or
waiver effected in accordance with this Section 9.12 shall be binding upon the Purchaser and each
transferee of the Shares, each future holder of all such securities, and the Corporation.
9.13 Confidentiality. The parties will keep confidential the Confidential
Information (which obligation shall continue for a period of 1 year following the redemption of all
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31
Shares) save that such Confidential Information may be disclosed: (a) if so required by any court of
competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body with
jurisdiction over the affairs of the Purchaser or any Affiliate of the Purchaser; (b) if required in
connection with any legal proceedings; or (c) to Affiliates and representatives of Purchaser who have
a specific need to review such Confidential Information for legal or compliance reasons. The parties
agree not to use any Confidential Information for any unlawful purpose.
9.14 Severability. The invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other provision.
9.15 Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any party under this Agreement, upon any breach or default of any other party
under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-
defaulting party nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in 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. Any waiver, permit, consent or approval of any kind or character on the part
of any party of any breach or default under this Agreement, or any waiver on the part of any party of
any provisions or conditions of this Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
9.16 Rights of Purchaser. The Purchaser shall have the absolute right to exercise or
refrain from exercising any right or rights that the Purchaser may have by reason of this Agreement
or the other Transaction Documents, the Amended and Restated Certificate, the Bylaws, or at law or
in equity, including the right to consent to the waiver of any obligation of the Corporation and to
enter into an agreement with the Corporation for the purpose of modifying this Agreement or the
other Transaction Documents, and the Purchaser shall not incur any liability to any other holder of
Shares with respect to exercising or refraining from exercising any such right or rights.
9.17 Exchange of Certificates. Upon surrender by any holder to the Corporation of
any certificate or certificates evidencing any securities, the Corporation at its expense will issue in
exchange therefor, and deliver to such holder new certificates in such denomination or
denominations as may be requested by such holder. Upon receipt of evidence reasonably satisfactory
to the Corporation of the loss, theft, destruction or mutilation of any security issued by it and in case
of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory to the Corporation of any such mutilation, upon surrender and cancellation of such
security, the Corporation at its expense will issue and deliver to any such holder a new security of
like tenor, in lieu of such lost, stolen, destroyed or mutilated certificate.
9.18 Entire Agreement. This Agreement (including the exhibits hereto) and the
other Transaction Documents constitute the full and entire understanding and agreement between the
parties with respect to the subject matter hereof, and any other written or oral agreement relating to
the subject matter hereof existing between the parties are expressly canceled.
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SIGNATURE PAGE TO PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Series A-1 Preferred Stock
Purchase Agreement as of the date first written above.
CORPORATION:
FINJAN HOLDINGS, INC.
By:
Name:
Title:
PURCHASER:
SORYN HLDR VEHICLE II LLC
By:
Name:
Title:
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EXHIBITS
EXHIBIT A - FORM OF WARRANT
EXHIBIT B - FORM OF CERTIFICATE OF DESIGNATION
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EXHIBIT A
FORM OF WARRANT
(See attached)
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EXHIBIT B
FORM OF CERTIFICATE OF DESIGNATION
(See attached)
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ANNEX A
LITIGATION
1. Finjan, Inc. v. FireEye, Inc., 4:13-cv-03133-SBA, (N.D. Cal).
2. Finjan, Inc. v. Blue Coat Systems, Inc., Case 5:13-cv-03999-BLF, (N.D. Cal.).
3. Finjan, Inc. v. Symantec Corporation, Case 3:14-cv-02998-HSG (N.D. Cal.).
4. Finjan, Inc. v. Palo Alto Networks, Inc., Case 3:14-cv-04908-PJH (N.D. Cal.).
5. Finjan, Inc. v. Blue Coat Systems, Inc., Case 5:15-cv-03295-BLF (N.D. Cal.).
6. Finjan, Inc. v. ESET, LLC et al, Case 3:16-cv-00183-CAB (S.D. Cal)
7. Finjan, Inc. v. Cisco Systems, Inc., Case 5:17-cv-00072-BLF (N.D. Cal.)
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ANNEX B
PATENTS
The following table sets forth, as of the date hereof, a brief description of the Corporation’s issued U.S. patents,
including their respective issued patent numbers, filing dates, issue dates, expiration dates and titles (collectively, the
“Patents”)
U.S. Patent No. Title
6,092,194 System and Method for Protecting a Computer and a Network from Hostile Downloadables
6,154,844 System and Method for Attaching a Downloadable Security Profile to a Downloadable
6,804,780 System and Method for Protecting a Computer and a Network from Hostile Downloadables
6,965,968 Policy-Based Caching
7,058,822 Malicious Mobile Code Runtime Monitoring System and Methods
7,418,731 Method and System for Caching at Secure Gateways
7,613,918 System and Method for Enforcing a Security Context on a Downloadable
7,613,926 Method and System for Protecting a Computer and a Network from Hostile Downloadables
7,647,633 Malicious Mobile Code Runtime Monitoring System and Methods
7,756,996 Embedding Management Data Within HTTP Messages
7,757,289 System and Method for Inspecting Dynamically Generated Executable Code
7,769,991 Automatically Executing an Anti-Virus Application on a Mobile Communication Device
7,930,299 System and Method for Appending Security Information to Search Engine Results
7,975,305 Method and System for Adaptive Rule-Based Content Scanners for Desktop Computers
8,015,182 System and Method for Appending Security Information to Search Engine Results
8,079,086 Malicious Mobile Code Runtime Monitoring System and Methods
8,087,079 Byte-Distribution Analysis of File Security
8,141,154 System and Method for Inspecting Dynamically Generated Executable Code
8,225,408 Method and System for Adaptive Rule-Based Content Scanners
8,474,048 Website Content Regulation
8,566,580 Splitting an SSL Connection Between Gateways
8,677,494 Malicious Mobile Code Runtime Monitoring System and Methods
9,141,786 Malicious Mobile Code Runtime Monitoring System and Methods
9,189,621 Malicious Mobile Code Runtime Monitoring System and Methods
9,219,755 Malicious Mobile Code Runtime Monitoring System and Methods
9,294,493 Computer Security Method and System with Input Parameter Validation
9,444,844 Malicious Mobile Code Runtime Monitoring System and Methods
9,525,680 Splitting an SSL Connection Between Gateways