EXHIBIT 10.3
EQUITY INVESTMENT AGREEMENT
This Equity Investment Agreement (the "AGREEMENT") is made as of September
30th, 2003 (the "EFFECTIVE DATE"), by and between FIRST VIRTUAL COMMUNICATIONS,
INC., a Delaware corporation with its principal place of business at 0000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 (the "COMPANY"), and NET ONE SYSTEMS
CO., LTD, a Japanese corporation with its principal place of business at Sphere
Tower Tennoz, 2-8, Higashi Xxxxxxxxx 0-Xxxxx, Xxxxxxxxx-Xx, Xxxxx 000-0000,
Xxxxx (the "PURCHASER").
WHEREAS, the Company and the Purchaser are parties to that certain First
Virtual Communications Partner Agreement dated April 1, 2002, as amended on the
date hereof (the "DISTRIBUTION AGREEMENT");
WHEREAS, in connection with the Distribution Agreement, the Purchaser
acquired products from the Company for distribution, including the products
listed in EXHIBIT A hereto (the products listed on Exhibit A are referred to
herein as the "PRODUCTS"); and
WHEREAS, as consideration for the return of the Products to the Company,
the Company wishes to sell to the Purchaser, and the Purchaser wishes to
purchase from the Company, shares of the Company's Common Stock, par value
$0.001 per share (the "COMMON STOCK"), on the terms and subject to the
conditions set forth in this Agreement.
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Purchaser hereby agree as follows:
1. AGREEMENT TO SELL AND PURCHASE THE SHARES.
1.1 At the Closing (as defined below), the Company will sell to
the Purchaser, and the Purchaser will purchase from the Company, a number of
shares of Common Stock (the "SHARES") equal to the aggregate amount paid by the
Purchaser to the Company for the Products, which includes the processing fee,
divided by the average closing price of the Company's Common Stock as reported
on Nasdaq for the thirty (30) trading days prior to the date of this Agreement
(the "PURCHASE PRICE"), in consideration for the return in full to the Company
of the Products.
2. CLOSING AND DELIVERY.
2.1 CLOSING. The closing of the purchase and sale of the Shares
(the "CLOSING") shall be held at the offices of Xxxxxx Godward LLP, 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 on October 3, 2003, or such
other date as the parties may agree (the "CLOSING DATE"). At or prior to the
Closing, the Purchaser and the Company shall execute any related agreements or
other documents required to be executed hereunder, dated as of the date hereof.
1
2.2 DELIVERY.
(A) At the Closing, the Company shall deliver to the Purchaser
the stock certificates registered in the name of the Purchaser, and/or in such
nominee name(s) as designated in writing by the Purchaser, representing the
Shares against payment of the Purchase Price, as set forth in Section 1.1.
(B) On or before October 3, 2003, the Purchaser shall deliver the
Products to the Purchaser's Tokyo, Japan facility (the "Facility"). At the
Closing, the Purchaser shall sell, assign, transfer, convey and deliver to the
Company, good and valid title to the Products at the Facility, and risk of loss
with respect to the Products shall pass to the Company. The then current
representative of FVC Japan (Xx. Xxxxxxxx Xxxxx is designated by the Company on
the Effective Date) shall accept the Products on behalf of the Company and issue
a written notice of such acceptance to the Purchaser at which time payment for
the Shares by the Purchaser is deemed to be completed. The Purchaser agrees to
provide warehousing space for the Products in the Facility for up to ninety (90)
days from the Effective Date at no charge to the Company. Thereafter the
Purchaser may dispose the remaining Products at its own expense. The Company
shall have reasonable access to the Products while they are stored in such
warehouse. While the Products are stored in the Facility, the Purchaser shall be
in possession of the Products in a fiduciary capacity until a carrier appointed
by the Company accepts the Products for delivery to a location specified by the
Company. In the event the Company determines some or all of the Products should
be transferred to the Company's California location, the Purchaser will, in the
Company's sole discretion, either pay directly for or reimburse the Company for
all freight, insurance and other expenses associated with such transfer.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents and warrants as of the date hereof to, and
covenants to, the Purchaser as follows:
3.1 ORGANIZATION AND GOOD STANDING. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware, has full corporate power and authority to own or
lease its properties and conduct its business as presently conducted, and is
duly qualified as a foreign corporation and in good standing in all
jurisdictions in which the character of the property owned or leased or the
nature of the business transacted by it makes qualification necessary, except
where the failure to be so qualified would not have a material adverse effect on
the business, properties, financial condition or results of operations of the
Company.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power, and has taken all requisite corporate action, to execute and
deliver this Agreement, sell and issue the Shares and carry out and perform all
of its obligations under this Agreement. This Agreement constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally, including any
2
specific performance and (iii) to the extent that the enforceability of the
indemnification provisions of Section 5.3 may be limited by applicable laws.
3.3 CAPITALIZATION. The Company has authorized and outstanding
(as of the dates indicated) shares of capital stock as set forth in its
Securities and Exchange Act Reports (the "Exchange Act Reports") filed with the
United States Securities and Exchange Commission. The outstanding shares of
capital stock of the Company (i) have been duly authorized and validly issued
and are fully paid and non-assessable and (ii) are free of preemptive rights,
co-sale rights, rights of first refusal and similar rights under Delaware
General Corporation Law (the "DGCL") or the charter or bylaws or other
organizational documents of the Company or any contract, commitment or
instrument filed as an exhibit to the Exchange Act Reports.
3.4 VALID ISSUANCE. The Shares, when issued and paid for in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable free and clear of all encumbrances and restrictions,
except for restrictions on transfer as set forth herein or imposed by applicable
securities laws.
3.5 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed in
a timely manner all documents that the Company was required to file with the
United States Securities and Exchange Commission (the "SEC") under Sections 13,
14(a) and 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), during the twelve (12) months preceding the Effective Date. As
of their respective filing dates (or, if amended, when amended), all documents
filed by the Company with the SEC (the "SEC DOCUMENTS") complied in all material
respects with the requirements of the Exchange Act. None of the SEC Documents as
of their respective dates contained any untrue statement of material fact or
omitted to state a material fact required (under the federal securities laws) to
be stated therein or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "FINANCIAL
STATEMENTS") comply as to form and substance in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto. The Financial Statements were prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the financial position of the Company at the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
3.6 LITIGATION. There is no pending or, to the Company's
knowledge, threatened, action, suit or other proceeding to which the Company is
a party or to which its property or assets are subject that is not disclosed in
the SEC Documents that is required to be so disclosed.
3.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement except for compliance with the securities and
blue sky laws in the states and other jurisdictions in which Shares are offered
and/or sold, which compliance will be effected in accordance with such laws
3
3.8 OFFERING VALID. Assuming the accuracy of the representations
and warranties of the Purchaser contained in Section 4.1 hereof, the offer and
issuance of the Shares will be exempted from the registration requirements of
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and will have
been registered or qualified (or are exempted from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws. Neither the Company nor any agent on its
behalf has solicited or will solicit any offers to sell or has offered to sell
or will offer to sell all or any part of the Shares to any person or persons so
as to bring the sale of such Shares by the Company within the registration
provisions of the Securities Act or any state securities laws.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
4.1 The Purchaser hereby represents and warrants as of the date
hereof to, and covenants to, the Company that:
(A) The Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in securities presenting an investment decision like that involved
in the purchase of the Shares, including investments in securities issued by the
Company, and has requested, received, reviewed and considered, either alone or
with the Purchaser's representative, all information the Purchaser deems
relevant (including the SEC Documents) in making an informed decision to
purchase the Shares.
(B) The Purchaser is acquiring the Shares being acquired by
the Purchaser pursuant to this Agreement for its own account for investment only
and with no present intention of distributing any of such Shares or any
arrangement or understanding with any other persons regarding the distribution
of such Shares, except in compliance with Section 4.1(c).
(C) The Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares purchased
hereunder except in compliance with the Securities Act, applicable blue sky
laws, and the rules and regulations promulgated thereunder.
(D) It is understood by the Purchaser that, except as provided
herein, certificates evidencing the Shares may bear the following or any similar
legend: "The securities represented hereby may not be transferred unless (i)
such securities have been registered for sale pursuant to the Securities Act of
1933, as amended, (ii) such securities may be sold pursuant to Rule 144(k), or
(iii) the Company has received an opinion of counsel satisfactory to it that
such transfer may lawfully be made without registration under the Securities Act
of 1933 or qualification under applicable state securities laws." If required by
the authorities of any state in connection with the issuance of sale of the
Shares, any legend required by an applicable state authority shall be included.
(E) The Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the Securities Act or a
Qualified Institutional Buyer within the meaning of Rule 144A promulgated under
the Securities Act.
4
(F) The Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. Upon the execution and
delivery of this Agreement by the Purchaser, this Agreement shall constitute a
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally, including any specific performance, and (iii) to the
extent that the enforceability of the indemnification provisions of Section 5.4
may be limited by applicable laws.
4.2 The Purchaser understands that nothing in the SEC Documents,
this Agreement or any other materials presented to the Purchaser in connection
with the purchase and sale of the Shares constitutes legal, tax or investment
advice and that independent legal counsel has reviewed these documents and
materials on the Purchaser's behalf. The Purchaser has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Shares.
4.3 The Purchaser represents and warrants that the Products are
in the same condition as they existed upon receipt from the Company under the
Distribution Agreement, that the Purchaser possesses good and valid title to the
Products (other than to software included therein, which was licensed and not
sold to the Purchaser), and that the Products are free and clear of all liens
and encumbrances.
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS, DISCLAIMER,
INDEMNIFICATION.
5.1 SURVIVAL. Notwithstanding any investigation made by any party
to this Agreement, all covenants, agreements, representations and warranties
made by the Company and the Purchaser herein and in the certificates for the
Shares delivered pursuant hereto shall survive the execution of this Agreement,
the delivery to the Purchaser of the Shares being purchased and the payment
therefore.
5.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY OF ANY
NATURE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.3 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, defend and hold harmless the Purchaser and its officers, directors,
agents, employees, stockholders, legal representatives, successors and assigns
(the "PURCHASER INDEMNITEES"), and each of them, from and against any and all
liabilities, judgments, losses, damages, costs, charges, reasonable attorneys'
fees, and other expenses of every nature and character (collectively,
"LIABILITIES"), incurred by any Purchaser Indemnitee to the extent such
Liabilities arise out of or result from any material breach of the Company's
representations, warranties or covenants contained in this Agreement.
5
5.4 INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees to
indemnify, defend and hold harmless the Company and its officers, directors,
agents, employees, stockholders, legal representatives, successors and assigns
(the "COMPANY INDEMNITEES"), and each of them, from any and all Liabilities
incurred by any Company Indemnitee to the extent such Liabilities arise out of
or result from any material breach of the Purchaser's representations,
warranties or covenants in this Agreement.
5.5 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE ENTITLED TO
RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES OR ATTORNEYS' FEES IN CONNECTION WITH THIS AGREEMENT.
6. CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING.
6.1 CLOSING. The Company's obligation to sell, issue and deliver
the Shares to the Purchaser at the Closing shall be subject to the following
conditions to the extent not waived by the Company:
(A) RECEIPT OF PAYMENT. The Company shall have received notice
from Xx. Xxxxxxxx Xxxxx or the then-current representative of FVC Japan that the
Products are in the Facility as required pursuant to Section 2.2(b).
(B) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by the Purchaser in Section 4 hereof shall
be true and correct in all material respects on the Closing Date. The Purchaser
shall have performed and complied with all obligations and conditions required
to be performed and complied with by the Purchaser under this Agreement on or
prior to the Closing Date.
7. CONDITIONS TO THE PURCHASERS' OBLIGATIONS AT CLOSING.
7.1 CLOSING. The Purchaser's obligation to accept delivery of and
pay for the Shares at the Closing shall be subject to the following conditions
to the extent not waived by such Purchaser:
(A) ISSUANCE OF STOCK. The Purchaser shall have received
evidence of the issuance of a certificate representing the Shares in the name of
the Purchaser.
(B) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct in all material respects on the Closing Date. The Company shall
have performed and complied with all obligations and conditions to be performed
and complied with by the Company under this Agreement on or prior to the Closing
Date.
8. ADDITIONAL COVENANTS.
8.1 MARKET STAND-OFF AGREEMENT. If requested by the
representative of the underwriters of Common Stock (or other securities) of the
Company, the Purchaser shall not sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held
6
by the Purchaser for a period specified by the representative of the
underwriters, in any case not to exceed ninety (90) days following any
registered offering of the Common Stock of the Company. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said period.
8.2 REGISTRATION OF SHARES. The Company's proposed current equity
financing (the "FINANCING") is contemplated to close on or no later than the
fiscal quarter ending on December 31, 2003. Pursuant to the Financing, the
Company plans to register the shares of Company Common Stock issued therein on a
registration statement on Form S-3 (or such other form as is then available to
the Company to effect a registration for resale of Company Common Stock). At the
request of the Purchaser, the Company agrees to register the Shares on the
registration statement filed in connection with the Financing, subject to the
same terms and conditions as the investors in the Financing.
9. LEGEND REMOVAL. The Company shall be obligated to reissue promptly
unlegended certificates at the request of the Purchaser if the Purchaser shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of (with no need for
compliance with Rule 144) without registration, qualification or legend.
10. BROKER'S FEE. The Company and the Purchaser hereby represent that,
there are no brokers or finders entitled to compensation in connection with the
sale of the Shares, and shall indemnify each other for any such fees for which
they are responsible.
11. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be sent by confirmed facsimile or sent by
internationally recognized overnight express courier, postage prepaid, and shall
be deemed given when so sent in the case of facsimile transmission (subject to
confirmation of delivery), or when so received in the case of courier, and
addressed as follows:
(A) if to the Company, to:
Chief Financial Officer
First Virtual Communications, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Fax No.: 0-000-000-0000
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(B) if to the Purchaser, to:
Xxxxxxxx Xxxxxxxx, General Manager of CEO Office
Net One Systems
Sphere Tower Tennoz, 2-8
7
Higashi, Xxxxxxxxx 0-Xxxxx
Xxxxxxxxx-Xx, Xxxxx 000-0000
Xxxxx
Fax No.: 00-0-0000-0000
or to such other person at such other place as the Purchaser shall designate to
the Company in writing.
12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, terminated, modified or
amended except upon the written consent of the Company and the Purchaser.
12.2 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
12.3 SEVERABILITY. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
12.5 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.
12.6 ENTIRE AGREEMENT. This Agreement and the Second Amendment to
Partner Agreement dated as of the date hereof between the Company and Purchaser
constitute the entire understanding of the parties with respect to the subject
matter hereof and thereof and supercede all related prior or contemporaneous
oral communications, agreements or discussions with respect to the subject
matter hereof or thereof. Each such agreement must be read, interpreted, and
applied with the others and together they constitute one business transaction.
12.7 PAYMENT OF FEES AND EXPENSES. Each of the Company and the
Purchaser shall bear its own expenses and legal fees incurred on its behalf with
respect to this Agreement and the transactions contemplated hereby. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
8
12.8 FRACTIONAL SHARES. No fractional shares shall be issued in
connection with the purchases of Shares hereunder, provided that the Company
shall pay in cash the amount equivalent to such fractional shares multiplied by
the Purchase Price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
FIRST VIRTUAL COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxx
------------------------------------------
Name: Xxxxxx Xxxx
------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
NET ONE SYSTEMS CO., LTD.
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
------------------------------------------
Title: President & CEO
------------------------------------------
9
EXHIBIT A
PRODUCTS
Type S/W Version Price Qty Amount
---- ----------- ----- --- ------
1 FV-92201-00/Continuous Presence Conference Server 6.0 $ 3,000 4 $ 12,000
2 FV-92256-00/MCU 10 User SW Only Conference Server 6.0 $ 5,950 20 $ 119,000
3 FV-92256-05/MCU 25 User SW Only Conference Server 6.0 $ 13,450 23 $ 309,350
4 FV-92256-10/MCU 50 User SW Only Conference Server 6.0 $ 23,950 3 $ 71,850
5 FV-92257-05/MCU 25 User HW Bundle Conference Server 6.0 $ 15,950 8 $ 127,600
6 FV-922350-05/CTM3.0 Standard plus CTMP3.0 $ 19,950 13 $ 259,350
HW Bundle
7 FV-92350-00/CTM3.0 Entry plus HW CTMP3.0 $ 14,950 12 $ 179,400
bundle
8 FV-92410-05/CTMX 25 User SW Only CTMX1.03 $ 19,700 14 $ 275,800
9 FV-92410-10/CTMX 50 User SW Only CTMX1.03 $ 36,450 4 $ 145,800
A Sub Total $ 1,500,150
B Processing Fee (A*5%) $ 75,007.5
C Total (A+B) $ 1,575,157.5
10
