SECURITIES PURCHASE AGREEMENT
Exhibit 99.1
This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of March 22, 2007,
by and among BOOKHAM, INC., a Delaware corporation (the “Company”), and the investors listed on the
Schedule of Investors attached hereto who become parties hereto by executing and delivering an
Investor Signature Page in the form attached hereto as Exhibit A (the “Investors”).
WHEREAS, the Company desires to issue and sell to the Investors pursuant to this Agreement
shares (the “Shares”) of common stock, $0.01 par value per share, of the Company (the
“Common Stock”) and warrants in the form attached hereto as Exhibit B (the
“Warrants”) to purchase shares (the “Warrant Shares”) of Common Stock in such
amounts as is set forth on the Schedule of Investors (the Shares, Warrant and Warrant Shares are
collectively referred to as the “Securities”); and
WHEREAS, each Investor wishes to purchase such number of Shares as is set forth opposite such
Investor’s name in column (3) on the Schedule of Investors and Warrants to purchase such number of
Warrant Shares as is set forth opposite such Investor’s name in column (4) on the Schedule of
Investors, in each case on the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and
covenants herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
(a) “Affiliate” shall mean, as to any Person (the “Subject Person”), any other
Person (a) that directly or indirectly through one or more intermediaries controls or is controlled
by, or is under direct or indirect common control with, the Subject Person, (b) that directly or
indirectly beneficially owns or holds ten percent (10%) or more of any class of voting equity of
the Subject Person, or (c) ten percent (10%) or more of the voting equity of which is directly or
indirectly beneficially owned or held by the Subject Person. For the purposes of this definition,
“control” when used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting
securities, through representation on such Person’s board of directors or other management
committee or group, by contract or otherwise.
(b) “Company Commission Reports” shall mean all reports under Section 13 of the
Securities Exchange Act of 1934, as amended, filed by the Company with the Commission during the
two years prior to the date hereof.
(c) “Commission” shall mean the Securities and Exchange Commission.
(d) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and all
of the rules and regulations promulgated thereunder.
(e) “Governmental Authority” means any nation or government, any state, provincial or
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including without limitation
any stock exchange, securities market or self-regulatory organization.
(f) “Person” shall mean any individual, corporation, trust, association, company,
partnership, joint venture, limited liability company, joint stock company, governmental authority
or other entity.
(g) “Registration Rights Agreement” shall mean that certain Registration Rights
Agreement, dated as of the date hereof, by and among the Company and the Investors.
(h) “Securities Act” shall mean the Securities Act of 1933, as amended, and all of the
rules and regulations promulgated thereunder.
(i) “Subsidiary” shall mean any corporation or other entity of which at least a
majority of the outstanding shares of stock or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors (or persons performing
similar functions) of such corporation or entity (regardless of whether or not at the time, in the
case of a corporation, stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Company or one or more of its Subsidiaries or by the Company
and one or more of its Subsidiaries.
(j) “Transaction Documents” shall mean this Agreement, the Registration Rights
Agreement and the Warrants.
2. Purchase and Sale of Shares and Warrant.
(a) Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions
set forth in Section 5 below, the Company shall issue and sell to each Investor, and each Investor
severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined
below), the number of Shares as is set forth opposite such Investor’s name in column (3) on the
Schedule of Investors, along with the Warrants to acquire that number of Warrant Shares as is set
forth opposite such Investor’s name in column (4) on the Schedule of Investors.
(b) Closing. The closing (the “Closing”) of the purchase of up to 13,640,224
Shares and Warrants to purchase up to 4,092,066 Warrant Shares by the Investors shall occur at the
offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., New York City
time, on the date hereof, subject to the notification of satisfaction (or waiver) of the conditions
to the Closing set forth in Section 5 below (or such later date as is mutually agreed to by the
Company and each Investor). As used herein “Business Day” means any day other than a
Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or
required by law to remain closed.
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2.2 Purchase Price. The aggregate purchase price for the Shares and the Warrants to be
purchased by each Investor (the “Purchase Price”) shall be the amount set forth opposite
such Investor’s name in column (5) on the Schedule of Investors. Each Investor shall pay $2.10 for
each Share and the related Warrants to be purchased by such Investor at the Closing.
2.3 Form of Payment. On the Closing Date, each Investor shall pay its respective
Purchase Price to the Company for the Shares and the Warrants to be issued and sold to such
Investor at such Closing, by wire transfer of immediately available funds in accordance with the
Company’s written wire instructions. Within five (5) Business Days following the Closing Date,
Company shall deliver to each Investor a stock certificate evidencing the Shares (in such amount as
is set forth opposite such Investor’s name in column (3) on the Schedule of Investors), along with
the Warrants (exercisable for the number of shares of Common Stock as is set forth opposite such
Investor’s name in column (4) on the Schedule of Investors) purchased by the Investor at such
Closing, duly executed on behalf of the Company, in each case registered in the name of such
Investor or its designee, in accordance with the completed Securities Delivery Instructions
delivered by such Investor in the form attached hereto as Exhibit C (the “Securities
Delivery Instructions”).
3. Representations and Warranties of the Company. The Company hereby represents and
warrants to each Investor as follows.
3.1 Incorporation. Each of the Company and the Subsidiaries is duly organized,
validly existing and, where applicable as a legal concept, in good standing under the laws of the
jurisdiction of its incorporation or organization and has all requisite corporate power and
authority to carry on its business as now conducted. Each of the Company and the Subsidiaries is
qualified to do business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification, except where the failure to so qualify would
not have a material adverse effect on the business, properties, assets, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole, or a material adverse
effect on the Company’s ability to consummate the transactions contemplated hereby (a “Material
Adverse Effect”).
3.2 Capitalization. The authorized capital stock of the Company consists of
175,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.01 per
share, of the Company (the “Preferred Stock”). As of February 28, 2007, (i) 69,632,670
shares of Common Stock were issued and outstanding, all of which were validly issued, fully paid
and nonassessable, (ii) no shares of Common Stock were held by the Company in its treasury and
(iii) no shares of Preferred Stock were issued and outstanding. The Company or a Subsidiary owns
all of the capital stock of each Subsidiary, which capital stock is validly issued, fully paid and,
where applicable as a legal concept, nonassessable. Except as disclosed on Schedule 3.2,
no shares of the capital stock of the Company or any of the Subsidiaries are subject to preemptive
rights or any other similar rights of the stockholders of the Company or any such Subsidiary.
Except as disclosed on Schedule 3.2 or as contemplated herein, there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments relating to, or securities
or rights convertible into or exercisable or exchangeable for, any shares of capital stock of the
Company or any of the Subsidiaries, or arrangements by which the
Company or any of the
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Subsidiaries is or may become bound to issue additional shares of capital stock of the Company
or any of the Subsidiaries.
3.3 Authorization. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the authorization, execution, delivery and performance of
the Transaction Documents and the consummation of the transactions contemplated herein and therein
has been taken. When executed and delivered by the Company and the Investors, each of the
Transaction Documents shall constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights to indemnity and
contribution may be limited by state or federal securities laws or the public policy underlying
such laws, and except as may be limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors’ rights generally and by general equitable principles. The Company has all
requisite corporate power to enter into the Transaction Documents and to carry out and perform its
obligations under the terms of the Transaction Documents.
3.4 Valid Issuance of the Shares and Warrant Shares. The Shares being purchased
by the Investors hereunder will, upon issuance pursuant to the terms hereof, and the Warrant Shares
will, upon exercise of the Warrants in accordance with their terms, be duly authorized, validly
issued, fully paid and nonassessable and, assuming the accuracy of each Investor’s representations
in this Agreement, will be issued, sold and delivered in compliance with all applicable federal and
state securities laws.
3.5 Listing. The Company has taken all action necessary, including by filing a
notification of additional listing with The Nasdaq Stock Market, to list the Shares and the Warrant
Shares on The Nasdaq Global Market.
3.6 No General Solicitation. Neither the Company nor any person acting on behalf of
the Company has offered or sold any of the Securities by any form of general solicitation or
general advertising within the meaning of Regulation D promulgated under the Securities Act.
3.7 Exemption from Registration. Assuming the accuracy of the representations and
warranties of the Investors in this Agreement, the offer, issuance and sale of the Securities by
the Company pursuant to this Agreement are exempt from the registration requirements of the
Securities Act.
3.8 Consents. All consents, approvals, orders and authorizations required on the part
of the Company in connection with the execution, delivery or performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions contemplated herein and
therein have been obtained and will be effective as of the Closing Date, other than such filings
required to be made after the Closing under applicable federal and state securities laws and the
registration statement contemplated by the Registration Rights Agreement.
3.9 No Conflict. The execution and delivery of this Agreement and the Registration
Rights Agreement by the Company and the consummation of the transactions
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contemplated hereby and thereby will not conflict with or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to a loss of a benefit under (a) any
provision of the Certificate of Incorporation or Bylaws of the Company or (b) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law, ordinance, rule or
regulation applicable to the Company or its properties or assets (including federal and state
securities laws and regulations and the rules and regulations of The Nasdaq Global Market) other
than, in the case of (b) above, any violation, default, right of termination, cancellation,
acceleration or loss of benefits the occurrence of which would not reasonably be expected to have a
Material Adverse Effect.
3.10 Litigation. Except as described on Schedule 3.10 hereto, there is no
material claim, litigation or administrative proceeding pending, or, to the Company’s knowledge,
threatened or contemplated, against the Company or any of the Subsidiaries, or against any officer,
director or employee of the Company or any such Subsidiary in connection with such person’s
employment therewith. Neither the Company nor any of the Subsidiaries is a party to or subject to
the provisions of, any order, writ, injunction, judgment or decree of any court or Governmental
Authority which would reasonably be expected to have a Material Adverse Effect.
3.11 Intellectual Property Rights. The Company owns or possesses adequate rights or
licenses to use all trademarks, trade names, service marks, service xxxx registrations, service
names, patents, patent rights, copyrights, inventions, trade secrets and other intellectual
property rights (“Intellectual Property Rights”) necessary to conduct its business as now
conducted (other than with respect to software which is generally commercially available and not
used or incorporated into the Company’s products and open source software which may be subject to
one or more “open source” licenses), except as would not reasonably be expected to have a Material
Adverse Effect. There is no claim, action or proceeding that has been made or brought, or to the
knowledge of the Company, is threatened, against the Company regarding its Intellectual Property
Rights, except as would not reasonably be expected to have a Material Adverse Effect. The business
of the Company and the Subsidiaries as presently conducted and the production, marketing,
licensing, use and servicing of any products or services of the Company and the Subsidiaries do
not, to the knowledge of the Company, infringe any patent, trademark, copyright or trade secret
rights of any third parties, except as would not reasonably be expected to have a Material Adverse
Effect.
3.12 Reports and Financial Statements. The Company has filed all Company Commission
Reports required to be filed by the Company with the Commission during the two years prior to the
date hereof. The Company has previously made available to the Investors complete and accurate
copies, as amended or supplemented, of the Company Commission Reports. As of their respective
dates, the Company Commission Reports did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein as necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading. The audited
financial statements and unaudited interim financial statements of the Company included in the
Company Commission Reports, as of their respective dates, (a) complied as to form in all material
respects with applicable accounting requirements and the published rules and regulations of the
Commission with respect thereto as in effect as of the time of filing, (b) were prepared in
accordance with United States generally accepted accounting
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principles (in the case of Company Commission Reports filed prior to September 10, 2004,
generally accepted accounting principles in the United Kingdom) applied on a consistent basis
throughout the periods covered thereby (except as may be indicated therein or in the notes thereto,
and in the case of quarterly financial statements, to the extent they may exclude footnotes or may
be condensed or summary statements) and (c) fairly represented in all material respects the
financial position of the Company as of the dates thereof and the results of operations and cash
flows of the Company for the periods then ended (subject, in the case of unaudited statements, to
normal year-end adjustments). The Company is not aware of any event occurring or expected to occur
on or prior to the Closing Date (other than the transactions effected hereby) that would require
the filing of, or with respect to which the Company intends to file, a Current Report on Form 8-K
after the Closing.
3.13 Absence of Certain Changes or Events. As of the date hereof, there has been no
material adverse change in the business, financial condition or results of operations of the
Company, other than changes occurring in the ordinary course of business (which changes have not,
individually or in the aggregate, had a Material Adverse Effect) since December 30, 2006, the date
of the balance sheets included in the Company’s Form 10-Q for the quarterly period ending December
30, 2006, except as disclosed by the Company on one or more Current Reports on Form 8-K.
3.14 No Undisclosed Events or Circumstances. No event or circumstance has occurred or
exists with respect to the Company or its Subsidiaries or their respective businesses, properties,
prospects, operations or financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company but which has not been so publicly
announced or disclosed.
3.15 Exchange Act Registration; Listing. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is listed on The Nasdaq Global Market. The Company currently
meets the continuing eligibility requirements for listing on The Nasdaq Global Market and has not
received any written notice from such market or the NASD that it does not currently satisfy such
requirements or that such continued listing is in any way threatened. The Company has taken no
action designed to, or which, to the knowledge of the Company, would reasonably be expected to have
the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting
the Common Stock from The Nasdaq Global Market.
3.16 Internal Accounting and Disclosure Controls. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset and liability accountability, (iii) access to
assets or incurrence of liabilities is permitted only in accordance with management’s general or
specific authorization and (iv) the recorded accountability for assets and liabilities is compared
with the existing assets and liabilities at reasonable intervals and appropriate action is taken
with respect to any difference. The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act) designed to ensure that information required
to be disclosed by the Company in the reports
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that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the rules and forms of the Commission, including,
without limitation, controls and procedures designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company’s management, including its principal executive officer
or officers and its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure.
3.17 Registration Rights; Rights of Participation. Except as described on Schedule
3.17 hereto, (a) the Company has not granted or agreed to grant to any person or entity any rights
(including “piggy-back” registration rights) to have any securities of the Company registered with
the Commission or any other Governmental Authority which has not been satisfied in full prior or
waived to the date hereof and (b) no Person, including, but not limited to, current or former
stockholders of the Company, underwriters, brokers, agents or other third parties, has any right of
first refusal, preemptive right, right of participation, anti-dilutive right or any similar right
to participate in, or to receive securities or other assets of the Company solely as a result of
the transactions contemplated by this Agreement or the other Transaction Documents.
3.18 Investment Company Status. The Company is not, and immediately after receipt of
payment for the Shares and the Warrants issued under this Agreement will not be, an “investment
company” or an entity “controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “Investment Company Act”), and shall conduct its
business in a manner so that it will not become subject to the Investment Company Act.
3.19 Tax Status. Except for matters that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (i) the Company and each Subsidiary has
filed all necessary federal, state and foreign income and franchise tax returns and has paid or
accrued all taxes shown as due thereon and (ii) the Company has no knowledge of a tax deficiency
which has been asserted or threatened against the Company or any Subsidiary.
3.20 Form S-3. The Company is eligible to register the Shares and Warrant Shares for
resale in a secondary offering by each Investor on a registration statement on Form S-3 under the
Securities Act.
3.21 Employee Matters. There is no strike, labor dispute or union organization
activities pending or, to the knowledge of the Company, threatened between it and its employees.
No employees of the Company belong to any union or collective bargaining unit.
3.22 Transactions With Affiliates. Except as set forth in the Company Commission
Reports, none of the executive officers or directors of the Company is presently a party to any
transaction with the Company or any Subsidiary (other than for services as executive officers or
directors), including any contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any executive officer or director or, to the knowledge of the
Company, any entity in which any executive officer or director has a
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substantial interest or is an officer, director, trustee or partner, in each case in excess of
$120,000, other than for (i) payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits,
including stock option or restricted stock agreements under any equity incentive plan of the
Company.
3.23 Title. Except as set forth on Schedule 3.23, the Company and its Subsidiaries
have good and indefeasible title to all real property and good and indefeasible title to all
personal property owned by them which is material to the business of the Company and its
Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as do
not materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries. Any real property
and facilities held under lease by the Company or any of its Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not material and do not
interfere in any material respect with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries.
3.24 Insolvency. The Company and its Subsidiaries, on a consolidated basis, are not
as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at
the Closing, will not be Insolvent (as defined below). For purposes of this Section 3.18,
“Insolvent” means, with respect to any Person, (a) the present fair saleable value of such Person’s
assets is less than the amount required to pay such Person’s total indebtedness, (b) such Person is
unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured, (c) such Person intends to incur or believes that it will
incur debts that would be beyond its ability to pay as such debts mature or (d) such Person has
unreasonably small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted.
3.25 Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other Person acting on
behalf of the Company or any of its Subsidiaries, has, in the course of its actions for, or on
behalf of, the Company or any of its Subsidiaries (a) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to political activity, (b)
made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds, (c) violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended, or (d) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic government
official or employee.
3.26 Xxxxxxxx-Xxxxx Act. The Company is in compliance in all material respects with
any and all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the
date hereof, and any and all applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof, except as would not reasonably be expected to
have a Material Adverse Effect.
3.27 Off Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company and an unconsolidated or other off balance sheet entity
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that is required to be disclosed by the Company in its Exchange Act filings and is not so
disclosed or that otherwise would be reasonably be expected to have a Material Adverse Effect.
3.28 Insurance. The Company maintains insurance for itself and the Subsidiaries in
such amounts and covering such losses and risks as is customary in the businesses in which the
Company and the Subsidiaries are engaged, except where the failure to maintain such insurance has
not had or would not reasonably be expected to have a Material Adverse Effect. As of the date
hereof, no notice of cancellation has been received for any of such policies and the Company is in
compliance in all material respects with all of the terms and conditions thereof. As of the date
hereof, the Company has director and officer insurance coverage in an amount at least equal to the
aggregate purchase price of the Shares and the Warrant hereunder.
3.29 Brokers or Finders. Other than Xxxxxxx Xxxx Partners, the Company has not
incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders’
fees or agents’ commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
3.30 Regulation M Compliance. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in
the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person
any compensation for soliciting another to purchase any other securities of the Company, other
than, in the case of clauses (ii) and (iii), compensation paid to Xxxxxxx Hill Partners in
connection with the placement of the Securities.
3.31 Disclosure. Except with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company confirms that neither it nor
any other Person acting on its behalf has provided any of the Investors or their agents or counsel
with any information that it believes constitutes or might reasonably constitute material,
non-public information. The Company understands that the Investors will rely on the foregoing
representation in effecting transactions in the Securities.
3.32 Application of Anti-Takeover Provisions. Without taking into account any
securities of the Company that may be held or otherwise beneficially owned by the Investors as of
the date hereof, the purchase by the Investors of the Shares and the Warrants pursuant to the terms
of this Agreement and the exercise of the Warrants by the Investors pursuant to the terms thereof
will not trigger any control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the Company’s
certificate of incorporation (or similar charter documents) or the laws of its state of
incorporation that is applicable to the Company.
3.33 No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers or sales of any
security or solicited any offers to buy any security under circumstances that would cause the
offering of the Securities pursuant to this Agreement to be integrated with prior offerings by the
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Company for purposes of the Securities Act which would prevent the Company from selling the
Securities pursuant to Rule 506 under the Securities Act, or any applicable exchange-related
stockholder approval provisions, nor will the Company or any of its Affiliates or Subsidiaries take
any action or steps that would cause the offering of the Securities to be integrated with other
offerings.
3.34 Acknowledgment Regarding Investors’ Purchase of Securities. The Company
acknowledges and agrees that each of the Investors is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Investor is acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and
the transactions contemplated thereby and any advice given by any Investor or any of their
respective representatives or agents in connection with the Transaction Documents and the
transactions contemplated thereby is merely incidental to the Investors’ purchase of the
Securities.
3.35 Acknowledgement Regarding Investors’ Trading Activity. It is understood and
acknowledged by the Company that, except as set forth in Sections 4.3 and 4.12, and assuming the
accuracy of the representations and warranties of the Investors contained in this Agreement, (i)
none of the Investors have been asked by the Company or its Subsidiaries to agree, nor has any
Investor agreed with the Company or its Subsidiaries, to desist from purchasing or selling, long
and/or short, securities of the Company, or “derivative” securities based on securities issued by
the Company or to hold the Securities for any specified term, (ii) any Investor, and counterparties
in “derivative” transactions to which any such Investor is a party, directly or indirectly,
presently may have a “short” position in the Common Stock, and (iii) no Investor shall be deemed to
have any affiliation with or control over any arm’s length counterparty in any “derivative”
transaction. The Company further understands and acknowledges that, except as set forth in Section
4.12, one or more Investors may engage in hedging and/or trading activities at various times during
the period that the Securities are outstanding and such hedging and/or trading activities, if any,
can reduce the value of the existing stockholders’ equity interest in the Company both at and after
the time the hedging and/or trading activities are being conducted. Assuming the accuracy of such
Investor’s representations and warranties in this Agreement, the Company acknowledges that such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement.
3.36 Independent Nature of Investors. The Company acknowledges that the obligations
of each Investor under the Transaction Documents are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for the performance of the
obligations of any other Investor under the Transaction Documents. The Company acknowledges that
each Investor has represented to the Company that the decision of each Investor to purchase
securities pursuant to this Agreement has been made by such Investor independently of any other
purchase and independently of any information, materials, statements or opinions as to the
business, affairs, operations, assets, properties, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Company or of its Subsidiaries which may have made or
given by any other Investor or by any agent or employee of any other Investor, and no Investor or
any of its agents or employees shall have any liability to any Investor (or any other person)
relating to or arising from any such information, materials,
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statements or opinions. The Company acknowledges that nothing contained herein, or in any
Transaction Document, and no action taken by any Investor pursuant hereto or thereto, shall be
deemed to constitute the Investors as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Investors are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated by the Transaction
Documents. The Company acknowledges that each Investor shall be entitled to independently protect
and enforce its rights, including without limitation, the rights arising out of this Agreement or
out of the other Transaction Documents, and it shall not be necessary for any other Investor to be
joined as an additional party in any proceeding for such purpose. The Company acknowledges that
for reasons of administrative convenience only, the Transaction Documents have been prepared by
counsel for one of the Investors and such counsel does not represent all of the Investors but only
such Investor and the other Investors have retained their own individual counsel with respect to
the transactions contemplated hereby. The Company acknowledges that it has elected to provide all
Investors with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by the Investors. The Company acknowledges that such
procedure with respect to the Transaction Documents in no way creates a presumption that the
Investors are in any way acting in concert or as a group with respect to the Transaction Documents
or the transactions contemplated hereby or thereby.
4. Representations and Warranties of each Investor. Each Investor hereby represents
and warrants to the Company as follows:
4.1 Incorporation. Such Investor is duly organized, validly existing and, where
applicable as a legal concept, in good standing under the laws of the jurisdiction of its
incorporation or organization.
4.2 Authorization. All action on the part of such Investor and its Affiliates
necessary for the authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions contemplated herein and
therein has been taken. When executed and delivered by the Company and the Investors, each of this
Agreement and the Registration Rights Agreement shall constitute the legal, valid and binding
obligation of such Investor, enforceable against such Investor in accordance with its terms, except
as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’
rights generally and by general equitable principles. Such Investor has all requisite power to
enter into each of this Agreement and the Registration Rights Agreement and to carry out and
perform its obligations under the terms of this Agreement and the Registration Rights Agreement.
4.3 Purchase Entirely for Own Account, Etc. Such Investor is acquiring the Securities
for its own account, and not with a view to, or for sale in connection with, any distribution in
violation of the Securities Act. Except as contemplated by this Agreement, such Investor has no
present agreement, undertaking, arrangement, obligation or commitment providing for the disposition
of the Securities. Such Investor has not been organized, reorganized or recapitalized specifically
for the purpose of investing in the Securities. Notwithstanding the foregoing, by making the
representations in this Section 4.3, such Investor does not agree to hold any of the Securities for
any minimum or other specific term and reserves
11
the right to dispose of the Securities at any time in accordance with the Securities Act and
state securities laws applicable to such disposition.
4.4 Investor Status, Etc. Such Investor certifies and represents to the Company that
at the time the Investor acquires any of the Securities, such Investor will be an “accredited
investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. Such
Investor’s financial condition is such that it is able to bear the risk of holding the Shares for
an indefinite period of time and the risk of loss of its entire investment. Such Investor has
sufficient knowledge and experience in investing in companies similar to the Company so as to be
able to evaluate the risks and merits of its investment in the Company.
4.5 Information. The Company has, prior to the date hereof, provided such Investor
with information regarding the business, operations and financial condition of the Company and has,
prior to the date hereof, granted to such Investor the opportunity to ask questions of and receive
answers from representatives of the Company, its officers, directors, employees and agents
concerning the Company and materials relating to the terms and conditions of the purchase and sale
of the Shares and Warrants hereunder, in order for such Investor to make an informed decision with
respect to its investment in the Shares and Warrants. Neither such information nor any other
investigation conducted by such Investor or any of its representatives shall modify, amend or
otherwise affect such Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement.
4.6 Securities Not Registered. Such Investor understands that the Securities have not
been registered under the Securities Act and that the Securities must continue to be held by such
Investor unless a subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration. Such Investor understands that the exemptions from registration
afforded by Rule 144 (the provisions of which are known to it) promulgated under the Securities Act
depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the
basis for sales only in limited amounts.
4.7 Reliance on Exemptions. Such Investor understands that the Securities are being
offered and sold to it in reliance upon specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying upon the truth and
accuracy of the representations and warranties of such Investor set forth in this Article 4 in
order to determine the availability of such exemptions and the eligibility of such Investor to
acquire the Securities. Such Investor is relying on the representations, acknowledgments and
agreements made by the Company in Article 3 and elsewhere in this Agreement in making investing,
trading and/or other decisions concerning the Company’s securities.
4.8 Non-Affiliate Status; Common Stock Ownership. Such Investor is not an Affiliate
of the Company or of any other Investor and is not acting in association or concert with any other
Person in regard to its purchase of Shares and Warrants or otherwise in respect of the Company.
Such Investor’s investment in Shares and Warrants is not for the purpose of acquiring, directly or
indirectly, control of, and it has no intent to acquire or exercise control of, the Company or to
influence the decisions or policies of the Board of Directors of the Company.
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4.9 Consents. All consents, approvals, orders and authorizations required on the part
of such Investor in connection with the execution, delivery or performance of this Agreement and
the consummation of the transactions contemplated herein have been obtained and are effective as of
the Closing Date.
4.10 No Conflict. The execution and delivery of this Agreement and the Registration
Rights Agreement by such Investor and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in any violation of or default by such Investor (with or
without notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material benefit under (a) any
provision of the organizational documents of such Investor or (b) any agreement or instrument,
permit, franchise, license, judgment, order, statute, law, ordinance, rule or regulations,
applicable to the Investor or its properties or assets other than, in the case of (b) above, any
violation, default, right of termination, cancellation, acceleration or loss of benefits the
occurrence of which would not be likely to have a material adverse effect on the business,
financial condition or results of operations of such Investor.
4.11 Brokers or Finders. Such Investor has not incurred, and shall not incur,
directly or indirectly, any liability for any brokerage or finders’ fees or agents’ commissions or
any similar charges in connection with this Agreement or any transaction contemplated hereby.
4.12 Certain Trading Activities. Other than any bona fide pledge, hypothecation or
re-hypothecation, such Investor has not directly or indirectly, nor has any Person acting on behalf
of or pursuant to any understanding with such Investor, engaged in any purchases or sales of the
securities of the Company (which shall be deemed to include, without limitation, any Short Sales
involving the Company’s securities other than any bona fide pledge, hypothecation or
re-hypothecation) since the time that the Investor was first contacted by the Company or Xxxxxxx
Xxxx Partners regarding the transactions contemplated by this Agreement. Such Investor covenants
that, subject to Section 6.10 hereof and other than any bona fide pledge, hypothecation or
re-hypothecation, neither it nor any Person acting on its behalf or pursuant to any understanding
with it will engage in any purchases or sales of the securities of the Company (which shall be
deemed to include Short Sales other than any bona fide pledge, hypothecation or re-hypothecation)
prior to the time that the transactions contemplated by this Agreement are publicly disclosed.
“Short Sales” include, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act (“Regulation SHO”) and all types of
direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis), and sales and other transactions through non-U.S.
broker dealers or foreign regulated brokers.
5. Conditions Precedent.
5.1 Conditions to the Obligation of each Investor to Consummate the Closing. The
obligation of each Investor to consummate the Closing and to purchase and pay for the Shares and
Warrants being purchased by it pursuant to this Agreement is subject to the satisfaction of the
following conditions precedent:
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(a) The representations and warranties contained herein of the Company shall be true and
correct on and as of the Closing Date with the same force and effect as though made on and as of
the Closing Date (it being understood and agreed by each Investor that, in the case of any
representation and warranty of the Company contained herein (i) which is not hereinabove qualified
by application thereto of a materiality standard, such representation and warranty need be true and
correct only in all material respects in order to satisfy as to such representation or warranty the
condition precedent set forth in the foregoing provisions of this Section 5.1(a) or (ii) which is
made as of a specific date, such representation and warranty need be true and correct only as of
such specific date in order to satisfy as to such representation and warranty the condition
precedent set forth in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by the Company.
(c) The Company shall have performed in all material respects all obligations and conditions
herein required to be performed or observed by the Company on or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the transactions contemplated hereby, or
seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted
before any court, arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares and the Warrants by such Investor shall not be
prohibited by any law or governmental order or regulation.
(f) Such Investor shall have received an opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP,
the Company’s outside counsel, dated as of the Closing Date, in the form attached hereto as
Exhibit D.
(g) The Company shall have delivered to such Investor a certificate, executed by the Secretary
of the Company and dated as of the Closing Date, as to (i) the resolutions adopted by the Company’s
board of directors in connection with the transactions contemplated by this Agreement, (ii) the
Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Closing.
(h) The Company shall have delivered to such Investor a certificate, executed by the Chief
Financial Officer of the Company, dated as of the Closing Date, certifying as to compliance with
Sections 5.1(a) and 5.1(c).
(i) All instruments and corporate proceedings in connection with the transactions contemplated
by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to
such Investor, and such Investor shall have received copies (executed or certified, as may be
appropriate) of all documents which such Investor may have reasonably requested in connection with
such transactions.
5.2 Conditions to the Obligation of the Company to Consummate the Closing. The
obligation of the Company to consummate the Closing and to issue and sell to each Investor
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the Shares and the Warrants to be purchased by it at the applicable Closing is subject to the
satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of such Investor shall be true and
correct on and as of the Closing Date with the same force and effect as though made on and as of
the Closing Date (it being understood and agreed by the Company that, in the case of any
representation and warranty of such Investor contained herein which is not hereinabove qualified by
application thereto of a materiality standard, such representation and warranty need be true and
correct only in all material respects in order to satisfy as to such representation or warranty the
condition precedent set forth in the foregoing provisions of this Section 5.3(a)).
(b) The Registration Rights Agreement shall have been executed and delivered by such Investor.
(c) Such Investor shall have completed, executed and delivered the Securities Delivery
Instructions.
(d) Such Investor shall have performed in all material respects all obligations and conditions
herein required to be performed or observed by such Investor on or prior to the Closing Date.
(e) No proceeding challenging this Agreement or the transactions contemplated hereby, or
seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted
before any court, arbitrator or governmental body, agency or official and shall be pending.
(f) The sale of the Shares and the Warrants by the Company shall not be prohibited by any law
or governmental order or regulation.
(g) All instruments and corporate proceedings in connection with the transactions contemplated
by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to
the Company, and the Company shall have received copies (executed or certified, as may be
appropriate) of all documents which the Company may have reasonably requested in connection with
such transactions.
6. Covenants.
6.1 Securities Law Transfer Restrictions. No Investor shall sell, assign, pledge,
transfer or otherwise dispose of or encumber any of the Securities, except (i) pursuant to an
effective registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state securities laws and, if
requested by the Company, upon delivery by such Investor of an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed transfer is exempt from registration
under the Securities Act and applicable state securities laws. Any transfer or purported transfer
of the Shares or Warrants in violation of this Section 6.1 shall be voidable by the Company. The
Company shall not register any transfer of the Shares or Warrants in violation of this Section 6.1.
The Company may, and may instruct any transfer agent for the Company to, place such stop
15
transfer orders as may be required on the transfer books of the Company in order to ensure
compliance with the provisions of this Section 6.1.
6.2 Legends. Certificates representing the Shares and Warrant Shares shall be
endorsed with the legends set forth below, and each Investor covenants that, except to the extent
such restrictions are waived by the Company, it shall not transfer any shares represented by any
such certificate without complying with the restrictions on transfer described in this Agreement
and the legends endorsed on such certificates: “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND, IF REQUESTED
BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
THE PROPOSED TRANSFER IS EXEMPT FROM SAID ACT. NOTWITHSTANDING THE FOREGOING, BUT SUBJECT TO
COMPLIANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SHARES.”
6.3 Removal of Legends.
(a) Within three (3) Business Days of receipt by the Company of a written request from an
Investor accompanied by such additional documentation as may reasonably be requested by the Company
to effect such request, the legend set forth in Section 6.2 shall be removed and the Company shall
issue a certificate without such legend to the holder of Shares or Warrant Shares, as the case may
be, unless otherwise required by state securities laws, (a) following the resale of such securities
pursuant to an effective registration statement (including the Registration Statement) or Rule 144
promulgated under the Securities Act (assuming the transferor is not an affiliate of the Company),
(b) if such securities are eligible to be sold, assigned or transferred under Rule 144(k)
promulgated under the Securities Act (provided that the holder provides the Company with reasonable
assurances that such securities are eligible for sale, assignment or transfer under Rule 144(k)
promulgated under the Securities Act), or (c) if such legend is not required under applicable
requirements of the Securities Act (including, without limitation, controlling judicial
interpretations and pronouncements issued by the Commission).
(b) Notwithstanding the foregoing, so long as the Registration Statement is effective and
sales thereunder are not suspended, within three (3) Business Days of receipt by the Company of a
written request from an Investor, the legend set forth in Section 6.2 shall be removed and the
Company shall issue a certificate without such legend to the holder of Shares or Warrant Shares, as
the case may be, unless otherwise required by state securities laws; provided that
by providing such request such Investor shall be deemed to have covenanted that with respect to the
offer and sale of the Shares or Warrant Shares, as the case may be, such Investor shall either (i)
comply with the requirements of Rule 144 promulgated under the Securities Act or (ii) in the case
of an offer or sale of the Shares or Warrant Shares, as the case may be,
16
pursuant to the Registration Statement, (x) comply with all applicable prospectus delivery
requirements promulgated under the Securities Act and (y) comply, or cause any broker or dealer
acting on the Investor’s behalf to comply, with the manner of sale and other requirements set forth
in the prospectus included in the Registration Statement, as may be amended or supplemented from
time to time; provided further, that by providing such request, such Investor shall
have agreed to indemnify and hold harmless the Company and its officers, directors, employees,
agents and representatives, and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act, against any losses, claims, damages, liabilities or
reasonable out-of-pocket expenses (whether joint or several) (collectively, including reasonable
legal expenses or other expenses reasonably incurred in connection with investigating or defending
same, “Losses”), insofar as any such Losses arise out of or are based upon any breach by
the Investor of such covenants; and provided further that in no event shall any
indemnity under this paragraph 6.3(b) exceed the net proceeds resulting from the sale of the Shares
and Warrant Shares sold by such Investor in connection with such covenants.
(c) If within four (4) Business Days of receipt by the Company of any written request and
additional documentation pursuant to Section 6(b) or Section 6(c) above, the Company shall fail to
issue and deliver an unlegended certificate for Shares or Warrant Shares, as the case may be, to
the Investor and if after such fourth (4th) Business Day the Investor purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Investor of such Shares or Warrant Shares, as the case may be, then the Company shall, within five
(5) Business Days after the Investor so requests, promptly honor its obligation to deliver to the
Investor a certificate or certificates representing such Shares or Warrant Shares, as the case may
be, and pay cash to the Investor in an amount equal to the excess (if any) of the Investor’s total
purchase price (including brokerage commissions, if any) for the shares of Common Stock so
purchased over the product of (A) such number of shares of Common Stock, times (B) the price at
which the sell order giving rise to such purchase obligation was executed. “Closing Sale
Price” means, for any security as of any date, the last closing sale price for such security on
The Nasdaq Global Market as reported by Bloomberg, or, if The Nasdaq Global Market begins to
operate on an extended hours basis and does not designate the closing sale price as the case may
be, then the last sale price of such security prior to 4:00:00 p.m., New York time, as reported by
Bloomberg, or, if The Nasdaq Global Market is not the principal securities exchange or trading
market for such security, the last closing sale price of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if
the foregoing do not apply, the last closing sale price of such security in the over-the-counter
market on the electronic bulletin board for such security as reported by Bloomberg, or, if no
closing sale price is reported for such security by Bloomberg, the average of the sale prices of
any market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly
the National Quotation Bureau, Inc.). If the Closing Sale Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Sale Price of such
security on such date shall be the fair market value as mutually determined by the Company and the
Investor.
6.4 Short Positions. Each Investor covenants and agrees that, so long as such
Investor owns any Shares purchased pursuant to this Agreement, such Investor and its Investor
Affiliates (as defined below), taken as a whole, shall not maintain a net short position in the
Common Stock (assuming exercise of the Warrants) (as determined under Regulation SHO but
17
taking into account all positions of such Investor and its Investor Affiliates whether or not
such Investor and its Investor Affiliates otherwise would constitute an independent trading unit
under Regulation SHO and including in such Investor’s long position all shares of Common Stock
deemed to be owned by the Investor pursuant to the provisions of Regulation SHO; provided that,
notwithstanding any provisions of Regulation SHO to the contrary, an Investor’s long position shall
be deemed to include all Warrant Shares such Investor could obtain by exercising its Warrants) (a
“Net Short Position”). By way of example, if an Investor on a date in question holds
1,000,000 Shares, 500,000 shares of Common Stock purchased in the open market, Warrants to purchase
up to 1,000,000 shares of Common Stock and other securities convertible into up to 250,000 shares
of Common Stock, such Investor could maintain Short Sales of up to 2,750,000 million shares of
Common Stock as of such date in question without establishing a Net Short Position. Each Investor
covenants and agrees, severally and not jointly, to provide the Company with written notice within
one (1) Business Day of any establishment by it and its Investor Affiliates, taken as a whole, of a
Net Short Position. “Investor Affiliates” with respect to any Investor means any Person
acting on behalf of or pursuant to an understanding with such Investor.
6.5 Reporting Status. Until the earlier of (a) the date on which the Investors shall
have sold all the Securities and (b) the date a Fundamental Transaction (as defined below) is
consummated, the Company shall timely file all reports required to be filed with the Commission
pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required
to file reports under the Exchange Act even if the Exchange Act or the rules and regulations
thereunder would permit such termination. “Fundamental Transaction” means that (i) the
Company shall, directly or indirectly, in one or more related transactions, (A) consolidate or
merge with or into (whether or not the Company is the surviving corporation) another Person, or (B)
sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties
or assets of the Company to another Person, (C) allow another Person to make a purchase, tender or
exchange offer that is accepted by the holders of more than the 50% of the outstanding Common Stock
(not including any Common Stock held by the Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase, tender or exchange offer), (D)
consummate a share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby
such other Person acquires more than the 50% of the outstanding Common Stock (not including any
Common Stock held by the other Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such share purchase agreement or other
business combination), or (E) reorganize, recapitalize or reclassify its Common Stock or (ii) any
“person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50% of the issued and outstanding Common Stock or the
aggregate ordinary voting power represented by issued and outstanding Common Stock.
6.6 Use of Proceeds. The Company will use the proceeds from the sale of the
Securities solely for general working capital purposes and shall not use such proceeds for the
satisfaction of any portion of the Company’s debt (other than payment of trade payables in the
ordinary course of the Company’s business and prior practices), or to redeem any Common Stock or
Common Stock equivalents (other than shares of restricted stock issued to directors,
18
employees or consultants pursuant to the Company’s equity incentive plans) or to settle any
outstanding litigation.
6.7 Reservation of Common Stock. The Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient number of shares of Common Stock
for the issuance of Warrant Shares pursuant to any exercise of the Warrants.
6.8 Listing. The Company shall use commercially reasonably efforts to maintain the
listing of the Shares and the Warrant Shares on The Nasdaq Global Market (other than any
termination of such listing in connection with a merger, consolidation, business combination,
tender offer, exchange of shares, recapitalization, reorganization, disposition of more than fifty
percent (50%) of the voting power of the Company or similar transaction or series of transactions).
6.9 Subsequent Equity Sales. From the date hereof until 30 days after the Effective
Date (as defined in the Registration Rights Agreement), neither the Company nor any Subsidiary
shall issue shares of Common Stock or Common Stock equivalents; provided, however,
the 30 day period set forth in this Section 6.9 shall not apply to the issuance of any Excluded
Securities (as defined below) and shall be extended for the number of Business Days following the
Effective Date that the prospectus included in the Registration Statement may not be used by the
Investors for the resale of the Shares and Warrant Shares. “Excluded Securities” means
shares of Common Stock issued or deemed to be issued by the Company or warrants: (a) in connection
with any employee benefit plan which has been approved by the Board of Directors of the Company or
a committee thereof, pursuant to which the Company’s securities may be issued to any employee,
officer, consultant or director for services provided to the Company, (b) as consideration,
including as part of an earn-out, in an acquisition by the Company or any of its subsidiaries of a
business enterprise or assets approved by the Board of Directors of the Company or a committee
thereof, (c) upon conversion of the Warrants, (d) upon exercise of Options or Convertible
Securities which are outstanding on the date hereof, provided that such issuance is made pursuant
to the terms of such Options or Convertible Securities in effect on the date hereof and the
exercise, conversion or similar price and the number of shares underlying such Option or
Convertible Security are not amended or changed after the date hereof and the other material terms
of such Options or Convertible Securities are not otherwise amended or changed after the date
hereof, (e) in connection with any share split, share dividend, recapitalization or similar
transaction by the Company, (f) in connection with the formation of a joint venture, strategic
alliance or other bona fide commercial relationship with a third party approved by the Company’s
Board of Directors or a committee thereof, or (g) issued in connection with any bona fide
commercial loan or debt transaction with a third party, provided that the primary purpose of such
transaction is not to raise equity capital and is approved by the Company’s Board of Directors or a
committee thereof. “Options” means rights, warrants or options to subscribe for or
purchase shares of Common Stock or Convertible Securities (as defined below). “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly
convertible into or exercisable or exchangeable for shares of Common Stock.
6.10 Pledge of Securities. The Company acknowledges and agrees that the Securities
may be pledged by an Investor in connection with a bona fide margin agreement or
19
other loan or financing arrangement that is secured by the Securities. A bona fide pledge of
Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder,
and no Investor effecting a pledge of Securities shall be required to provide the Company with any
notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any
other Transaction Document; provided that an Investor and its pledgee shall be required to comply
with the provisions of Section 7.8 hereof in order to effect a sale, transfer or assignment of
Securities to such pledgee.
6.11 Disclosure of Transactions. The Company shall, on or before 8:30 a.m., New York
City time, on the first Business Day after the date of this Agreement, issue a press release
reasonably acceptable to the Investors disclosing all the material terms of the transactions
contemplated by the Transaction Documents. On or before 4:30 p.m., New York City time, on the
second Business Day following the date of this Agreement, the Company shall file a Current Report
on Form 8-K describing all the material terms of the transactions contemplated by the Transaction
Documents in the form required by the Exchange Act and attaching the Transaction Documents (the
“8-K Filing”). The Company confirms that neither it nor any of its Subsidiaries or their
respective officers, directors, employees or agents, has provided the Investors with material
nonpublic information, other than the terms of the Securities and the existence and terms of the
transactions contemplated by the Transaction Documents. The Company shall not, and shall cause
each of its Subsidiaries and its and each of their respective officers, directors, employees and
agents, not to, provide any Investor with any material, nonpublic information regarding the Company
or any of its Subsidiaries from and after the issuance of the 8-K Filing without the express prior
written consent of such Investor. Subject to the foregoing, neither the Company, its Subsidiaries
nor any Investor shall issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall be entitled, without
the prior approval of any Investor, to make any press release or other public disclosure with
respect to such transactions (i) in substantial conformity with the 8-K Filing and (ii) as is
required by applicable law and regulations (provided that in the case of clause (i) each Investor
shall be consulted by the Company in connection with any such press release or other public
disclosure prior to its release if it is materially inconsistent with the description of the
transactions so described in such 8-K Filing). Without the prior written consent of any applicable
Investor, neither the Company nor any of its Subsidiaries shall disclose the name of such Investor
in any filing, announcement, release or otherwise, except as may be required by applicable law and
regulations.
6.12 Non-Public Information. Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, the Company covenants and agrees
that neither it nor any other Person acting on its behalf will provide any Investor or its agents
or counsel with any information that the Company believes constitutes material non-public
information, unless prior thereto such Investor shall have executed a written agreement regarding
the confidentiality and use of such information. The Company understands that each Investor shall
be relying on the foregoing covenant in effecting transactions in securities of the Company.
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7. Miscellaneous Provisions.
7.1 Further Assurances. The parties agree to cooperate fully with the other parties
and to execute such further instruments, documents and agreements and to give such further written
assurances, as may be reasonably requested by the other parties to better evidence and reflect the
transactions described herein and contemplated hereby, and to carry into effect the intents and
purposes of this Agreement.
7.2 Expenses. Each party will bear its own costs and expenses in connection with this
Agreement.
7.3 Notices. Any notice, demand or request required or permitted to be given by the
Company or an Investor pursuant to the terms of this Agreement shall be in writing and shall be
deemed delivered (i) when delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such delivery will be deemed to
be made on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to
a reputable overnight courier and (iii) on the Business Day actually received if deposited in the
U.S. mail (certified or registered mail, return receipt requested, postage prepaid), addressed as
follows:
| If to the Company: | ||
| Bookham, Inc. | ||
| 0000 Xxxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attn: Chief Financial Officer | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 | ||
| with a copy to: | ||
| Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xxxxxx X. Xxxx, Esq. | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 | ||
| If to a Investor, to its address and facsimile number set forth on the Schedule of Investors, with copies to such Investor’s representatives as set forth on the Schedule of Investors, | ||
| with copies (for informational purposes) to: | ||
| Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP | ||
| 1177 Avenue of the Americas |
00
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxxxxx X. Xxxxxxx | ||
| Tel: 000-000-0000 | ||
| Fax: 000-000-0000 |
7.4 Severability. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the
invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes,
to the extent possible, the original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Agreement shall remain binding upon the parties
hereto.
7.5 No Reliance. Each party acknowledges that (i) it has such knowledge in business
and financial matters as to be fully capable of evaluating this Agreement, the other Transaction
Documents and the transactions contemplated hereby and thereby, (ii) it is not relying on any
advice or representation of any other party in connection with entering into this Agreement, the
other Transaction Documents or such transactions (other than the representations made in this
Agreement or the other Transaction Documents), (iii) it has not received from any other party any
assurance or guarantee as to the merits (whether legal, regulatory, tax, financial or otherwise) of
entering into this Agreement or the other Transaction Documents or the performance of its
obligations hereunder and thereunder, and (iv) it has consulted with its own legal, regulatory,
tax, business, investment, financial and accounting advisors to the extent that it has deemed
necessary, and has entered into this Agreement and the other Transaction Documents based on its own
independent judgment and on the advice of its advisors as it has deemed necessary, and not on any
view (whether written or oral) expressed by any other party.
7.6 Independent Nature of Investors’ Obligations and Rights. The obligations of each
Investor hereunder are several and not joint with the obligations of the other Investors hereunder,
and no Investor shall be responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other agreement or document delivered at
any Closing, and no action taken by any Investor pursuant hereto or thereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or any other kind of
entity, or a “group” as described in Section 13(d) of the Exchange Act, or create a presumption
that the Investors are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Investor has been represented by its own
separate counsel in connection with the transactions contemplated hereby, shall be entitled to
protect and enforce its rights, including without limitation rights arising out of this Agreement
or the other Transaction Documents, individually, and shall not be required to be join any other
Investor as an additional party in any proceeding for such purpose.
7.7 Amendment; Waiver. Except as expressly provided herein, including without
limitation Section 2.3, neither this Agreement nor any term hereof may be amended or waived except
pursuant to a written instrument executed by the Company and the Investors holding at least
two-thirds (2/3) of the Shares and Warrant Shares (including Warrant Shares issuable upon exercise
of Warrants, without regard to any limitation on exercise of the Warrants). Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each Investor and the
Company. The failure of any party to exercise any right or remedy under this
22
Agreement or otherwise, or the delay by any party in exercising such right or remedy, shall
not operate as a waiver thereof. No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be
construed as, a further or continuing waiver of any such term, provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
7.8 Assignment. The rights and obligations of the parties hereto shall inure to the
benefit of and shall be binding upon the authorized successors and permitted assigns of each party.
No party hereto may assign its rights or obligations under this Agreement or designate another
person (i) to perform all or part of its obligations under this Agreement or (ii) to have all or
part of its rights and benefits under this Agreement, in each case without the prior written
consent of the other parties. Notwithstanding the foregoing, an Investor may assign some or all of
its rights and obligations hereunder in connection with the transfer of the right to acquire at
least 250,000 Shares or at least 250,000 shares of Common Stock issuable upon exercise of its
Warrants (or, if an Investor has the right to acquire fewer than 250,000 Shares or fewer than
250,000 shares of Common Stock issuable upon exercise of its Warrants, the transfer of the
Investor’s right to acquire all of such Shares or all of such shares of Common Stock issuable upon
exercise of its Warrants). In the event of any assignment in accordance with the terms of this
Agreement, the assignee shall specifically assume and be bound by the provisions of the Agreement
by executing and agreeing to an assumption agreement reasonably acceptable to the other parties.
7.9 Waiver of Right of First Refusal. Each Investor that is a party to the Exchange
Agreement, dated as of January 13, 2006, by and among the Company, Bookham Technology plc and the
Investors (as defined therein) (the “Exchange Agreement”) hereby waives the application of Section
6.1 of the Exchange Agreement to the issuance and sale by the Company of the Securities.
Notwithstanding the foregoing waiver, the undersigned agrees that the Securities offered and sold
pursuant to this Agreement shall constitute “Offered Securities” for purposes of calculating the
Capped Amount (as defined in Section 6.1 of the Exchange Agreement).
7.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which together shall be deemed one and the same instrument.
This Agreement, once executed by a party, may be delivered to any other party hereto by facsimile
transmission or email transmission of a .pdf file.
7.11 Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement (whether brought against
a party hereto or its respective affiliates, directors, officers, shareholders, employees or
agents) shall be commenced exclusively in the state and federal courts sitting in the City of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby (including with
respect to the enforcement of this Agreement), and hereby
23
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to
serve process in any other manner permitted by law. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other
costs and expenses incurred with the investigation, preparation and prosecution of such action or
proceeding.
7.12 Waiver of Jury Trial. In any action, suit or proceeding in any jurisdiction
brought by any party against any other party, the parties each knowingly and intentionally, to the
greatest extent permitted by applicable law, hereby absolutely, unconditionally, irrevocably and
expressly waives forever trial by jury.
7.13 Survival. The respective representations and warranties given by the parties
hereto, and the other covenants and agreements contained herein, shall survive the Closing Date and
the consummation of the transactions contemplated herein for a period of two years.
7.14 Pronouns. All pronouns or any variation thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity
or entities may require.
7.15 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
7.16 Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
7.17 Entire Agreement. This Agreement, the Registration Rights Agreement and the
Warrants constitute the entire agreement among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein. This Agreement, the Registration Rights
Agreement and the Warrants supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
24
Executed under seal as of the day and year first above written.
| BOOKHAM, INC. | ||||
By:
|
/s/ Xxxxx Xxxxx | |||
| Name: Xxxxx Xxxxx | ||||
| Title: Chief Financial Officer | ||||
25
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| VICIS CAPITAL MASTER FUND | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| Vicis Capital, LLC | ||||||
| Address: Xxxxx 00, Xxxxx 000 | ||||||
| 000 Xxxx 00xx Xxxxxx | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxxxx@xxxxxxxxxxxx.xxx | ||||||
| Number of Shares: 2,250,000 | ||||||
| Number of Warrants: 675,000 | ||||||
| Aggregate Purchase Price: $4,725,000 | ||||||
26
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXXX L MADOFF INVESTMENT SECURITIES LLC | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Director of Trading | ||||||
| Address: 000 Xxxxx Xxx | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000 000-0000 | ||||||
| Email Address: xxxxxxx@xxxxxx.xxx | ||||||
| Number of Shares: 200,000 | ||||||
| Number of Warrants: 60,000 | ||||||
| Aggregate Purchase Price: $420,000 | ||||||
27
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| SATELLITE CONVERTIBLE ARBITRAGE MASTER FUND, LLC | ||||||
| By: | /s/ illegible
|
|||||
| Title: | ||||||
| Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 212-209-2020 | ||||
| Email Address: xxxxx.xxxxxxxxxxx@xxxxxxxxx-xx.xxx | ||||
| Number of Shares: 250,000 | ||||
| Number of Warrants: 75,000 | ||||
| Aggregate Purchase Price: $525,000.00 |
28
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| SATELLITE STRATEGIC FINANCE ASSOCIATES, LLC | ||||||
| By: | /s/ illegible
|
|||||
| Title: | ||||||
| Address: 000 Xxxxx Xxxxxx | ||
| 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 212-209-2020 | ||
| Email Address: xxxx.xxxxxxx@xxxxxxxxx-xx.xxx | ||
| Number of Shares: 1,000,000 | ||
| Number of Warrants: 300,000 | ||
| Aggregate Purchase Price: $2,100,000.00 |
29
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: CAPITAL VENTURES INTERNATIONAL by: Heights Capital Management, Inc. its authorized agent |
||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: Investment Manager | ||||||
| Address: c/o Heights Capital Management | ||
| 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxx Xxxxxxxxx, XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 000-000-0000 | ||
| Email Address: xxxxxx.xxxxxxxx@xxx.xxx | ||
| Number of Shares: 500,000 | ||
| Number of Warrants: 150,000 | ||
| Aggregate Purchase Price: $1,050,000 |
30
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| IROQUOIS MASTER FUND LTD. | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx
|
|||||
| Title: Authorized Signator | ||||||
| Address: 000 Xxxxxxxxx Xxx. 00xx Xx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: xxxxxxxxxx@xxxxxx.xxx | ||||
| Number of Shares: 800,000 | ||||
| Number of Warrants: 240,000 | ||||
| Aggregate Purchase Price: $1,680,000 |
31
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| PORTSIDE GROWTH AND OPPORTUNITY FUND | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: Authorized Signatory | ||||||
| Address: c/o Ramius Capital Group, LLC | ||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Telephone No.: (000) 000-0000/(000) 000-0000 | ||
| Facsimile No.: (000) 000-0000 | ||
| Email Address: xxxxxx@xxxxxx.xxx/xxxxxxxx@xxxxxx.xxx | ||
| Number of Shares: 750,000 | ||
| Number of Warrants: 225,000 | ||
| Aggregate Purchase Price: $1,575,000 |
32
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||||
| CRANSHIRE CAPITAL, LP | ||||||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||||||
| Name: | Xxxxxxxx X. Xxxxx | |||||||
| Title: | President—Downsview Capital | |||||||
| The General Partner | ||||||||
| Address: 0000 Xxxxxx Xx, Xxxxx 000 | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: xxxxxx@xxxxxxxxxxxxxxxx.xxx | ||||
| Number of Shares: 250,000 | ||||
| Number of Warrants: 75,000 | ||||
| Aggregate Purchase Price: $525,000 |
33
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| SMITHFIELD FIDUCIARY LLC | ||||||
| By: | /s/ Xxxx X. Chill
|
|||||
| Title: Authorized Signatory | ||||||
| Address: c/o Highbridge Capital Management, LLC | ||
| 0 Xxxx 00xx Xx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxx X. Xxxxxx/Xxxx X. Chill | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 212-751-0755 | ||
| Email Address: xxx.xxxxxx@xxxxx.xxx | ||
| xxxx.xxxxx@xxxxx.xxx | ||
| Number of Shares: 500,000 | ||
| Number of Warrants: 150,000 | ||
| Aggregate Purchase Price: $1,050,000 |
34
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| ENABLE GROWTH PARTNERS LP | ||||||
| By: | /s/ Xxxxxxx X’Xxxx
|
|||||
| Title: Principal and Portfolio Manager | ||||||
| Address: Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 |
||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: xxxxxx@xxxxxxxxxxxxx.xxx | ||||
| Number of Shares: 2,550,000 | ||||
| Number of Warrants: 765,000 | ||||
| Aggregate Purchase Price: $5,355,000.00 |
35
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| ENABLE OPPORTUNITY PARTNERS LP | ||||||
| By: | /s/ Xxxxxxx X’Xxxx
|
|||||
| Title: Principal and Portfolio Manager | ||||||
| Address: Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 |
||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: xxxxxx@xxxxxxxxxxxxx.xxx | ||||
| Number of Shares: 300,000 | ||||
| Number of Warrants: 90,000 | ||||
| Aggregate Purchase Price: $630,000.00 |
36
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXX DIVERSIFIED STRATEGY MASTER FUND LLC, ENA | ||||||
| By: | /s/ Xxxxxxx X’Xxxx
|
|||||
| Title: Principal and Portfolio Manager | ||||||
| Address: Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 |
||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: xxxxxx@xxxxxxxxxxxxx.xxx | ||||
| Number of Shares: 150,000 | ||||
| Number of Warrants: 45,000 | ||||
| Aggregate Purchase Price: $315,000.00 |
37
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| UBS X’XXXXXX LLC FBO X’XXXXXX PIPES CORPORATE STRATEGIES MASTER LMITED | ||||||
| By: | /s/ Xxxx Xxxxxx
|
|||||
| Title: Executive Director | ||||||
| Address: Xxx Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: Xxxxx.Xxxxxxx@xxx.xxx | ||||
| Number of Shares: 1,000,000 | ||||
| Number of Warrants: 300,000 | ||||
| Aggregate Purchase Price: $2,100,000 |
38
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| UBS X’XXXXXX LLC FBO X’XXXXXX GLOBAL CONVERTIBLE ARBITRAGE II MASTER LIMITED | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Title: Managing Director | ||||||
| Address: Xxx Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: Xxxxx.Xxxxxxx@xxx.xxx | ||||
| Number of Shares: 37,500 | ||||
| Number of Warrants: 11,250 | ||||
| Aggregate Purchase Price: $78,750 |
39
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| UBS X’XXXXXX LLC FBO X’XXXXXX GLOBAL CONVERTIBLE ARBITRAGE MASTER LIMITED | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
|||||
| Title: Managing Director | ||||||
| Address: Xxx Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Telephone No.: 000-000-0000 | ||||
| Facsimile No.: 000-000-0000 | ||||
| Email Address: Xxxxx.Xxxxxxx@xxx.xxx | ||||
| Number of Shares: 462,500 | ||||
| Number of Warrants: 138,750 | ||||
| Aggregate Purchase Price: $971,250 |
40
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| SF CAPITAL PARTNERS LTD. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: Managing Director | ||||||
| Address: c/x Xxxxx Offshore Management LLC | ||
| 0000 Xxxxx Xxxx Xxxxx | ||
| Xx. Xxxxxxx, XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 000-000-0000 | ||
| Email Address: Xxxxxxxxx@xx-xxxxxxx.xxx | ||
| Number of Shares: 1,750,000 | ||
| Number of Warrants: 525,000 | ||
| Aggregate Purchase Price: $3,675,000.00 |
41
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| LAGUNITAS PARTNERS LP | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: General Partner | ||||||
| Address: c/o Gruber & XxXxxxx Cap Mgmt | ||
| 50 Xxxxxx Place-PH | ||
| Xxx Xxxxxxxxx XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 000-000-0000 | ||
| Email Address: xxxxx@xxxx.xxx | ||
| Number of Shares: 504,005 | ||
| Number of Warrants: 151,201 | ||
| Aggregate Purchase Price: $1,058,410.50 |
42
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| J XXXXXXXXX MCBAINE | ||||||
| By: | /s/ J Xxxxxxxxx XxXxxxx
|
|||||
| Title: Individual | ||||||
| Address: c/o Gruber & XxXxxxx Cap Mgmt | ||
| 50 Xxxxxx Place-PH | ||
| Xxx Xxxxxxxxx XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 000-000-0000 | ||
| Email Address: xxxxx@xxxx.xxx | ||
| Number of Shares: 45,200 | ||
| Number of Warrants: 13,560 | ||
| Aggregate Purchase Price: $94,920.00 |
43
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| THE XXXXXXX FOUNDATION | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Investment Advisor | ||||||
| Address: c/o Gruber & XxXxxxx Cap Mgmt | ||
| 50 Xxxxxx Place-PH | ||
| Xxx Xxxxxxxxx XX 00000 | ||
| Telephone No.: 000-000-0000 | ||
| Facsimile No.: 000-000-0000 | ||
| Email Address: xxxxx@xxxx.xxx | ||
| Number of Shares: 43,300 | ||
| Number of Warrants: 12,990 | ||
| Aggregate Purchase Price: $90,930.00 |
44
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXX & MCBAINE INTERNATIONAL | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Investment Advisor | ||||||
| Address: c/o Gruber & XxXxxxx Cap Mgmt | ||||||
| 50 Xxxxxx Place-PH | ||||||
| Xxx Xxxxxxxxx XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxx@xxxx.xxx | ||||||
| Number of Shares: 117,643 | ||||||
| Number of Warrants: 35,292 | ||||||
| Aggregate Purchase Price: $247,050.00 | ||||||
45
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXXX SALES INC. | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Investment Advisor | ||||||
| Address: c/o Gruber & XxXxxxx Cap Mgmt | ||||||
| 50 Xxxxxx Place-PH | ||||||
| Xxx Xxxxxxxxx XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxx@xxxx.xxx | ||||||
| Number of Shares: 34,800 | ||||||
| Number of Warrants: 10,440 | ||||||
| Aggregate Purchase Price: $73,080.00 | ||||||
46
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXX D AND XXXXX X XXXXXX TRUST | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Trustee | ||||||
| Address: c/o Gruber & McBaine Cap Mgmt | ||||||
| 50 Xxxxxx Place-PH | ||||||
| Xxx Xxxxxxxxx XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxx@xxxx.xxx | ||||||
| Number of Shares: 129,476 | ||||||
| Number of Warrants: 38,842 | ||||||
| Aggregate Purchase Price: $271,899.60 | ||||||
47
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXXX XXXXXX XXXXXX | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Investment Advisor | ||||||
| Address: c/o Gruber & McBaine Cap Mgmt | ||||||
| 50 Xxxxxx Place-PH | ||||||
| Xxx Xxxxxxxxx XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxx@xxxx.xxx | ||||||
| Number of Shares: 7,300 | ||||||
| Number of Warrants: 2,190 | ||||||
| Aggregate Purchase Price: $15,330.00 | ||||||
48
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| XXXXXXXX XXXXX XXXXXX TRUST | ||||||
| By: | /s/ Xxx X. Xxxxxx
|
|||||
| Title: Trustee | ||||||
| Address: c/o Gruber & McBaine Cap Mgmt | ||||||
| 50 Xxxxxx Place-PH | ||||||
| Xxx Xxxxxxxxx XX 00000 | ||||||
| Telephone No.: 000-000-0000 | ||||||
| Facsimile No.: 000-000-0000 | ||||||
| Email Address: xxxxx@xxxx.xxx | ||||||
| Number of Shares: 8,500 | ||||||
| Number of Warrants: 2,550 | ||||||
| Aggregate Purchase Price: $17,850.00 | ||||||
49
SCHEDULE OF INVESTORS
| (6) | ||||||||||||||||
| (3) | (4) | Legal | ||||||||||||||
| Aggregate | Aggregate | (5) | Representative’s | |||||||||||||
| (1) | (2) | Amount of | Number of | Aggregate Purchase | Address and | |||||||||||
| Investor | Address and Facsimile Number | Shares | Warrant Shares | Price | Facsimile Number | |||||||||||
Vicis Capital Master Fund |
Xxxxx 00, Xxxxx 000 | 2,250,000 | 675,000 | $4,725,000 | ||||||||||||
| 000 Xxxx 00xx Xx. | ||||||||||||||||
| Xxx Xxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxx L Madoff |
000 Xxxxx Xxx. | 200,000 | 60,000 | $420,000 | ||||||||||||
Investment Securities LLC |
Xxx Xxxx, XX 00000 | |||||||||||||||
| Attn: Xxxx Xxxxxx | ||||||||||||||||
| 000-000-0000 | ||||||||||||||||
Satellite Convertible |
000 Xxxxx Xxx., 00xx Xxxxx | 250,000 | 75,000 | $525,000 | ||||||||||||
Arbitrage Master Fund, |
Xxx Xxxx, XX 00000 | |||||||||||||||
LLC |
Attn: Xxxxx Xxxxxxxxxxx | |||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Satellite Strategic Finance |
000 Xxxxx Xxx., 00xx Xxxxx | 1,000,000 | 300,000 | $2,100,000 | ||||||||||||
Associates, LLC |
Xxx Xxxx, XX 00000 | |||||||||||||||
| Attn: Xxxx Xxxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Capital Ventures |
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 | 500,000 | 150,000 | $1,050,000 | ||||||||||||
International |
Xxx Xxxxxxxxx, XX 00000 | |||||||||||||||
| Attn: Xxxxxx Xxxxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Iroquois Master Fund Ltd. |
000 Xxxxxxxxx Xxx., 00xx Floor | 800,000 | 240,000 | $1,680,000 | ||||||||||||
| Xxx Xxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxx Xxxxxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Portside Growth and |
c/o Ramius Capital Group, LLC | 750,000 | 225,000 | $1,575,000 | ||||||||||||
Opportunity Fund |
000 Xxxxx Xxx., 00xx Xxxxx | |||||||||||||||
| Xxx Xxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxx Xxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Cranshire Capital, LP |
0000 Xxxxxx Xxxx, Xxxxx 000 | 250,000 | 75,000 | $525,000 | ||||||||||||
| Xxxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxx Xxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
| (6) | ||||||||||||||||
| (3) | (4) | Legal | ||||||||||||||
| Aggregate | Aggregate | (5) | Representative’s | |||||||||||||
| (1) | (2) | Amount of | Number of | Aggregate Purchase | Address and | |||||||||||
| Investor | Address and Facsimile Number | Shares | Warrant Shares | Price | Facsimile Number | |||||||||||
Smithfield Fiduciary LLC |
c/o Highbridge Capital | 500,000 | 150,000 | $1,050,000 | ||||||||||||
| Management, LLC | ||||||||||||||||
| 0 Xxxx 00xx Xx., 00xx Xxxxx | ||||||||||||||||
| Xxx Xxxx, XX 00000 | ||||||||||||||||
| Attn: Xxx X. Xxxxxx/Xxxx | ||||||||||||||||
| X. Chill | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Enable Growth Partners LP |
Xxx Xxxxx Xxxxxxxx, Xxxxx 000 | 2,550,000 | 765,000 | $5,355,000 | ||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxx X’Xxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Enable Opportunity Partners LP |
Xxx Xxxxx Xxxxxxxx, Xxxxx 000 | 000,000 | 90,000 | $630,000 | ||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxx X’Xxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxx Diversified Strategy |
Xxx Xxxxx Xxxxxxxx, Xxxxx 000 | 000,000 | 45,000 | $315,000 | ||||||||||||
Master Fund LLC, Ena |
Xxx Xxxxxxxxx, XX 00000 | |||||||||||||||
| Attn: Xxxxxxx X’Xxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
UBS X’Xxxxxx LLC fbo |
One North Xxxxxx Drive | 462,500 | 138,750 | $971,250 | Xxxxxxx Xxxx & Xxxxx | |||||||||||
X’Xxxxxx Global |
Xxxxxxx, XX 00000 | LLP | ||||||||||||||
Convertible Arbitrage |
Attn: Xxxxx Xxxxxxx | 000 Xxxxx Xxxxxx | ||||||||||||||
Master Limited |
Fax: 000-000-0000 | Xxx Xxxx, Xxx Xxxx | ||||||||||||||
| 00000 | ||||||||||||||||
| Attention: Xxxxxxx X. | ||||||||||||||||
| Xxxxx, Esq. | ||||||||||||||||
| Tel: 000-000-0000 | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
UBS X’Xxxxxx LLC fbo |
One North Xxxxxx Drive | 37,500 | 11,250 | $78,750 | Xxxxxxx Xxxx & Xxxxx | |||||||||||
X’Xxxxxx Global |
Xxxxxxx, XX 00000 | LLP | ||||||||||||||
Convertible Arbitrage II |
Attn: Xxxxx Xxxxxxx | 000 Xxxxx Xxxxxx | ||||||||||||||
Master Limited |
Fax: 000-000-0000 | Xxx Xxxx, Xxx Xxxx | ||||||||||||||
| 00000 | ||||||||||||||||
| Attention: Xxxxxxx X. | ||||||||||||||||
| Xxxxx, Esq. | ||||||||||||||||
| Tel: 000-000-0000 | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
UBS X’Xxxxxx LLC fbo |
One North Xxxxxx Drive | 1,000,000 | 300,000 | $2,100,000 | Xxxxxxx Xxxx & Xxxxx | |||||||||||
X’Xxxxxx PIPES Corporate |
Xxxxxxx, XX 00000 | LLP | ||||||||||||||
Strategies Master Limited |
Attn: Xxxxx Xxxxxxx | 000 Xxxxx Xxxxxx | ||||||||||||||
| Fax: 000-000-0000 | Xxx Xxxx, Xxx Xxxx | |||||||||||||||
| 00000 | ||||||||||||||||
| Attention: Xxxxxxx X. | ||||||||||||||||
| Xxxxx, Esq. | ||||||||||||||||
| Tel: 000-000-0000 | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
SF Capital Partners Ltd. |
c/x Xxxxx Offshore | 1,750,000 | 525,000 | $3,675,000 | ||||||||||||
| Management LLC | ||||||||||||||||
| 0000 Xxxxx Xxxx Xxxxx | ||||||||||||||||
| Xx. Xxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxx Xxxxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
51
| (6) | ||||||||||||||||
| (3) | (4) | Legal | ||||||||||||||
| Aggregate | Aggregate | (5) | Representative’s | |||||||||||||
| (1) | (2) | Amount of | Number of | Aggregate Purchase | Address and | |||||||||||
| Investor | Address and Facsimile Number | Shares | Warrant Shares | Price | Facsimile Number | |||||||||||
Lagunitas Partners LP |
c/o Gruber & XxXxxxx | 504,005 | 151,201 | $1,058,411 | ||||||||||||
| Cap Mgmt | ||||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
X. Xxxxxxxxx McBaine |
c/o Gruber & XxXxxxx | 45,200 | 13,560 | $94,920 | ||||||||||||
| Cap Mgmt | ||||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
The Xxxxxxx Foundation |
c/o Gruber & XxXxxxx | 43,300 | 12,990 | $90,930 | ||||||||||||
| Cap Mgmt | ||||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxx & McBaine |
c/o Gruber & XxXxxxx Cap | 117,643 | 35,292 | $247,050 | ||||||||||||
International |
Cap Mgmt | |||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxxx Sales Inc. |
c/o Gruber & XxXxxxx Cap | 34,800 | 10,440 | $73,080 | ||||||||||||
| Cap Mgmt | ||||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxx X. & Xxxxx X. Xxxxxx |
c/x Xxxxxx & XxXxxxx Cap | 129,476 | 38,843 | $271,900 | ||||||||||||
Trust |
Cap Mgmt | |||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxxx Xxxxxx Xxxxxx |
x/x Xxxxxx & XxXxxxx Xxx | 7,300 | 2,190 | $15,330 | ||||||||||||
| Cap Mgmt | ||||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
Xxxxxxxx Xxxxx Xxxxxx |
c/o Gruber & XxXxxxx Cap | 8,500 | 2,550 | $17,850 | ||||||||||||
Trust |
Cap Mgmt | |||||||||||||||
| 00 Xxxxxx Xxxxx - XX | ||||||||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||||||
| Attn: Xxxxxxxxx Xxxxxx | ||||||||||||||||
| Fax: 000-000-0000 | ||||||||||||||||
52
EXHIBIT A
Investor Signature Page
By its execution and delivery of this signature page, the undersigned hereby agrees to become an
Investor, as defined in the Securities Purchase Agreement dated as of March 22, 2007 (the “Purchase
Agreement”) by and among Bookham, Inc. and the Investors (as defined therein), and joins in and
agrees to be bound by the terms and conditions of the Purchase Agreement as to the number of shares
of Common Stock and Warrants set forth below, and authorizes this signature page to be attached to
the Purchase Agreement or counterparts thereof.
| Name of Investor: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
| Telephone No.: | ||||||
| Facsimile No.: | ||||||
| Email Address: | ||||||
| Number of Shares: | ||||||
| Number of Warrants: | ||||||
| Aggregate Purchase Price: $ | ||||||
EXHIBIT B
[FORM OF WARRANT]
54
EXHIBIT C
SECURITIES DELIVERY INSTRUCTIONS
Please instruct us as to where you would like the Securities delivered to following the Closing:
Name:
Company:
Address:
Telephone:
Other Special Instructions:
55
EXHIBIT D
[FORM OF LEGAL OPINION]
56
Disclosure Schedule
March 22, 2007
Each disclosure contained in this Disclosure Schedule shall qualify the corresponding section
or subsection contained in Section 3 of the Securities Exchange Agreement dated as of March 22,
2007 (the “Securities Exchange Agreement”) by and among Bookham, Inc. and each of the entities
whose names appear on the signature pages to such Securities Exchange Agreement.
The headings contained in this Disclosure Schedule are included for convenience only, and are
not intended to limit the effect of the disclosures contained in this Disclosure Schedule or to
expand the scope of the information required to be disclosed in this Disclosure Schedule.
3.2. Capitalization
Approximate total number of shares subject to outstanding options
to purchase Common Stock pursuant to all stock option plans and
agreements and the employee stock purchase plan (as of March 19, 2007):
|
6,714,168 | |||
Total number of shares of Common Stock issuable pursuant to outstanding
warrants (as of March 19, 2007):
|
5,991,512 |
The Company is obligated to issue up to an aggregate of approximately 348,000 shares of Common
Stock upon the achievement of certain integration and revenue milestones pursuant to the Share
Purchase Agreement dated as of March 2, 2006 by and between the Shareholders listed on Annex B
thereto and the Company.
Pursuant to Section 6.1 of the Exchange Agreement, dated as of January 13, 2006, by and among the
Company, Bookham Technology plc and the Investors (as defined therein), the Investors have the
right of participation as set forth therein.
The Company and certain of its subsidiaries (collectively, the “Borrowers”) have entered into a
credit agreement with Xxxxx Fargo Foothill, Inc. and other lenders regarding a three-year
$25,000,000 senior secured revolving credit facility. The obligations of the Borrowers under the
credit agreement are secured pursuant to a security agreement by the assets of the Company and
certain of its subsidiaries, including a pledge of the capital stock holdings of certain
subsidiaries of the Company.
3.9 No Conflict
Payments under the Warrants will be subject to the prior satisfaction of any amounts owed by
the Company under the Credit Agreement, dated as of August 2, 2006, among the Company, Bookham
Technology plc, New Focus, Inc. and Bookham (US), Inc., Xxxxx Fargo Foothill, Inc. and other
lenders party thereto
57
3.10 Litigation
On June 26, 2001, a putative securities class action captioned Xxxxxx v. New Focus, Inc. et
al., Civil Action No. 01-CV-5822, was filed against New Focus, Inc. and several of its officers and
directors, or the Individual Defendants, in the United States District Court for the Southern
District of New York. Also named as defendants were Credit Suisse First Boston Corporation, Chase
Securities, Inc., U.S. Bancorp Xxxxx Xxxxxxx, Inc. and CIBC World Markets Corp., or the Underwriter
Defendants, the underwriters in New Focus’s initial public offering. Three subsequent lawsuits
were filed containing substantially similar allegations. These complaints have been consolidated.
On April 19, 2002, plaintiffs filed an amended class action complaint, described below, naming as
defendants the Individual Defendants and the Underwriter Defendants.
On November 7, 2001, a class action complaint was filed against Bookham Technology plc and others
in the United States District Court for the Southern District of New York. On April 19, 2002,
plaintiffs filed an Amended Complaint. The Amended Complaint names as defendants Bookham
Technology plc, Xxxxxxx, Sachs & Co. and FleetBoston Xxxxxxxxx Xxxxxxxx, Inc., two of the
underwriters of Bookham Technology plc’s initial public offering in April 2000, and Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxx, each of whom was an officer and/or director at the
time of Bookham Technology plc’s initial public offering.
The Amended Complaint asserts claims under certain provisions of the securities laws of the United
States. It alleges, among other things, that the prospectuses for Bookham Technology plc’s and New
Focus’s initial public offerings were materially false and misleading in describing the
compensation to be earned by the underwriters in connection with the offerings, and in not
disclosing certain alleged arrangements among the underwriters and initial purchasers of ordinary
shares, in the case of Bookham Technology plc, or common stock, in the case of New Focus, from the
underwriters. The Amended Complaint seeks unspecified damages (or in the alternative rescission
for those class members who no longer hold Bookham or New Focus common stock), costs, attorneys’
fees, experts’ fees, interest and other expenses. In October 2002, the individual defendants were
dismissed, without prejudice, from the action. In July 2002, all defendants filed motions to
dismiss the Amended Complaint. The motion was denied as to Bookham Technology plc and New Focus in
February 2003. Special committees of the board of directors authorized the companies to negotiate
a settlement of pending claims substantially consistent with a memorandum of understanding
negotiated among class plaintiffs, all issuer defendants and their insurers.
Plaintiffs and most of the issuer defendants and their insurers have entered into a stipulation of
settlement for the claims against the issuer defendants, including the Company. Under the
stipulation of settlement, the plaintiffs will dismiss and release all claims against participating
defendants in exchange for a payment guaranty by the insurance companies collectively responsible
for insuring the issuers in the related cases, and the assignment or surrender to the plaintiffs of
certain claims the issuer defendants may have against the underwriters. On February 15, 2005, the
court issued an Opinion and Order preliminarily approving the settlement provided that the
defendants and plaintiffs agree to a modification narrowing the scope of the bar order set forth in
the original settlement agreement. The parties agreed to the modification narrowing the scope of
the bar order, and on August 31, 2005, the court issued an order
58
preliminarily approving the
settlement. On December 5, 2006, the United States Court of Appeals for the Second Circuit
overturned the District Court’s certification of the class of plaintiffs who are pursuing the
claims that would be settled in the settlement against the underwriter defendants. Plaintiffs
filed a Petition for Rehearing and Rehearing En Banc with the Second Circuit on January 5, 2007 in
response to the Second Circuit’s decision and have informed the District Court that they would like
to be heard as to whether the settlement may still be approved even if the decision of the Court of
Appeals is not reversed. The District Court indicated that it would defer consideration of final
approval of the settlement pending plaintiffs’ request for further appellate review.
3.17 Registration Rights; Rights of Participation
Pursuant to Section 6.1 of the Exchange Agreement, dated as of January 13, 2006, by and among
the Company, Bookham Technology plc and the Investors (as defined therein), the Investors have the
right of participation as set forth therein.
3.23 Title
The Borrowers have entered into a credit agreement with Xxxxx Fargo Foothill, Inc. and other
lenders regarding a three-year $25,000,000 senior secured revolving credit facility. The
obligations of the Borrowers under the credit agreement are secured pursuant to a security
agreement by the assets of the Company and certain of its subsidiaries, including a pledge of the
capital stock holdings of certain subsidiaries of the Company.
Barclays Bank PLC has a charge over the credit balance of accounts of Bookham Technology plc
with Barclays Bank PLC securing the following facilities from Barclays Bank PLC to Bookham
Technology plc: (i) a bonds, guarantees and indemnities facility of 320,000 pounds sterling; and
(ii) a spot and forward exchange transaction facility of up to a gross limit of 1,000,000 pounds
sterling.
| Debtor | File No. | |||||||||
| Name | Jurisdiction | and Date | Secured Party | Collateral | ||||||
Ignis Optics,
Inc. (a DE corp.) |
DE SOS (UCC, Tax Liens) |
11196273 9/20/01 |
The CIT Group | Lease filing (specific equipment) |
||||||
| 11726855 12/18/01 |
Pentech Financial Services, Inc. and CIT Technology Financing Services, Inc. (by partial assignment) | Lease filing (specific equipment) |
||||||||
| 20683783 3/15/02 |
The CIT Group | Lease filing (specific equipment) |
||||||||
| 22559304 10/4/02 |
Agilent Financial Services, Inc. | Lease filing (specific equipment) |
||||||||
| 30649254 2/21/03 |
Agilent Financial Services, Inc. | Lease filing (specific equipment) |
||||||||
59
| Debtor | File No. | |||||||||
| Name | Jurisdiction | and Date | Secured Party | Collateral | ||||||
New
Focus, Inc. (a DE corp.) |
Santa Xxxxx County, CA (UCC, Tax Liens, Judgments, Litigation, Bankruptcy) |
00000000 12/29/00 |
Xxxxxxxxx-Xxxxx, Inc. | Mechanics’ Lien ($8,054.16) | ||||||
Xxxxxx, Inc.
(a DE corp.)
|
DE SOS (UCC, Tax Liens) |
20439863 1/25/02 |
Cedar Boulevard Lease Funding LLC |
Lease filing (specific equipment) |
||||||
| 32516519 9/29/03 |
Cedar Boulevard Lease Funding LLC |
Lease filing (specific equipment) and in lieu continuation statement | ||||||||
Nectar Acquisition
Corporation
(a DE corp.)
|
DE (UCC, Tax Liens) | 50676859 3/2/05 |
Societe Generale, as Security Agent |
Pledge shares of NFO WorldGroup, Inc., a DE corp. | ||||||
| 50858978 3/17/05 |
Societe Generale, as Security Agent |
Pledge shares of NFO WorldGroup, Inc., a DE corp. | ||||||||
Bookham Technology plc
|
UK | 01/08/1996 | ING Lease (UK) Limited | All monies due or to become due from the company to the ING Lease (UK) Limited under or in respect of Lease Agreements. | ||||||
Bookham (Canada) Inc.
|
CN | 000000000 | Royal Bank of Canada | Accounts and Other | ||||||
60
