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EXHIBIT 10.31
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of the date of
acceptance set forth below, is entered into by and between SPSS INC., a Delaware
corporation, with headquarters located at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000 ("SPSS"), and SIEBEL SYSTEMS, INC., a Delaware corporation, with
headquarters located at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
(the "Buyer").
W I T N E S S E T H:
WHEREAS, SPSS and the Buyer are executing and delivering this Agreement in
accordance with and in reliance upon an exemption from securities registration
afforded, inter alia, by Rule 506 under Regulation D ("Regulation D") as
promulgated by the United States Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "1933 Act" or the "Act"),
and/or Section 4(2) of the 1933 Act; and
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to the
conditions of this Agreement, such number of newly issued, unregistered shares
of common stock, $0.01 par value per share (the "Common Stock") of SPSS as more
fully described herein, subject to acceptance of this Agreement by SPSS;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE; CLOSING.
a. AGREEMENT TO PURCHASE; PURCHASE PRICE. The undersigned shall purchase
from SPSS on the Closing date that number of shares of SPSS Common Stock (the
"Shares") calculable based upon a price per share equal to ninety-five percent
(95%) of the average of the closing price of SPSS Common Stock, as quoted on the
NASDAQ National Market ("NASDAQ") for the ten (10) trading days following SPSS's
release of its earnings for the period ending June 30, 2001, which price is
$16.65 (the "Per Share Purchase Price"), and an aggregate purchase price equal
to FIVE MILLION AND NO/100 DOLLARS ($5,000,000) (subject to adjustment to
prevent the issuance of fractional Shares) (the "Purchase Price").
Notwithstanding anything to the contrary contained herein, fractional Shares
shall not be issued. In lieu of fractional shares, the Purchase Price shall be
adjusted such that only whole Shares shall be issued hereunder. Payment of the
Purchase Price will be made by Buyer by wiring immediately available funds in
United States dollars to an account designated by SPSS.
b. CLOSING. The Closing of the purchase, sale and issuance of the Shares
shall take place at the principal office of SPSS, 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 on or before September 28, 2001 or at such other time
and date as the parties hereto may agree (the "Closing"). At the Closing, SPSS
shall deliver to the Buyer a certificate or certificates in the Buyer's name for
the number of Shares set forth on the signature page hereto, against receipt
from the Buyer of the Purchase Price.
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2. BUYER REPRESENTATIONS AND WARRANTIES.
The Buyer represents and warrants to, and covenants and agrees with, SPSS
as follows:
a. Without limiting Buyer's right to sell the Common Stock pursuant to
the Registration Statement (as defined below), the Buyer is purchasing the
Shares for its own account for investment only and not with a view towards the
resale or distribution of any part thereof and not with a view to or for sale in
connection with any distribution thereof.
b. The Buyer is (i) an "accredited investor" as that term is defined in
Rule 501 of Regulation D as presently in effect, (ii) experienced in making
investments of the kind described in this Agreement and the related documents,
(iii) able, by reason of the business and financial experience of its officers
(if an entity) and/or professional advisors (who are not affiliated with or
compensated in any way by SPSS or any of its affiliates or selling agents), to
protect its own interests in connection with the transactions described in this
Agreement, and the related documents, and (iv) able to afford the entire loss of
its investment in the Shares.
c. The Buyer understands that the Shares have not been registered under
the 1933 Act, or any applicable state securities laws. Therefore, the Buyer
shall not sell or offer to sell the Shares except pursuant to registration of
the Shares under the 1933 Act or an exemption from registration requirements of
United States federal and state securities laws and in compliance with all
applicable state securities laws.
d. The Buyer understands that the Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that SPSS is relying upon the truth
and accuracy of, and the Buyer's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Buyer set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Shares.
e. The Buyer and its advisors have been furnished with all materials
relating to the business, finances and operations of SPSS and materials relating
to the offer and sale of the Shares which have been requested by the Buyer. The
Buyer and its advisors have been afforded the opportunity to ask questions of
SPSS and have received complete and satisfactory answers to any such inquiries.
f. The Buyer understands that no United States federal or state agency or
any other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares.
g. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding agreement of the
Buyer enforceable in accordance with its terms, subject as to enforceability to
general principles of equity and to bankruptcy, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights generally.
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3. SPSS REPRESENTATIONS AND WARRANTIES.
SPSS represents and warrants to the Buyer that:
a. SPSS STATUS.
(i) SPSS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has
the requisite power (corporate and other) and authority to own
its properties, to carry on its business as now being conducted
and to perform its obligations under any contract filed as an
exhibit to any SPSS SEC Documents (as defined below).
(ii) SPSS is qualified to do business as a foreign corporation, and
is in good standing, in each jurisdiction in which the nature of
its business and of its properties makes such qualification
necessary, except where the failure to be so qualified would not
have a material adverse effect on SPSS's business, condition
(financial or otherwise), assets, liabilities or operations.
b. SEC FILINGS; FINANCIAL STATEMENTS.
(i) SPSS has made available to the Buyer accurate and complete
copies of each report, registration statement and definitive
proxy statement filed by SPSS with the SEC since August 4, 1993
(the "SPSS SEC Documents"). As of the time it was filed with the
SEC (or, if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing): (a) each of
the SPSS SEC Documents complied in all material respects with
the applicable requirements of the 1933 Act or the 1934 Act (as
defined herein), as the case may be; and (b) none of the SPSS
SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. There are no contracts or other documents of SPSS
that are required to be filed as exhibits to the SPSS SEC
Documents which have not been filed.
(ii) The consolidated financial statements contained in the SPSS SEC
Documents: (a) complied as to form in all material respects with
the published rules and regulations of the SEC applicable
thereto; (b) were prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout
the periods covered, except as may be indicated in the notes to
such financial statements and (in the case of unaudited
statements) as permitted by Form 10-Q promulgated by the SEC,
and except that unaudited financial statements may not contain
footnotes and are subject to year-end audit adjustments (which
are not reasonably expected to be, individually or in the
aggregate, material in
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amount); and (c) fairly present the consolidated financial
position of SPSS and its subsidiaries as of the respective dates
thereof and the consolidated results of operations of SPSS and
its subsidiaries for the periods covered thereby.
(iii) Except for the liabilities included or reserved for in the
audited balance sheet of the Company for the year ended December
31, 2000, included in the Form 10-K or the unaudited
consolidated balance sheet of SPSS included in its Quarterly
Report on Form 10-Q (the "Form 10-Q") for the quarter ended June
30, 2001 (the "Balance Sheet"), each as filed with the SEC, SPSS
did not have, and since such date it has not incurred,
liabilities or any other obligations whatsoever that are
material (individually or in the aggregate) to SPSS, except
current liabilities incurred in the ordinary course of business
consistent with past practice subsequent to June 30, 2001.
c. AUTHORIZED SHARES. The Shares have been duly authorized and, when
issued to Buyer, will be duly and validly issued, fully paid and non-assessable.
d. AUTHORITY; BINDING AGREEMENT. SPSS has the absolute and unrestricted
right, power and authority to enter into and perform its obligations under this
Agreement, and the execution, delivery and performance by SPSS of this Agreement
and the transactions contemplated hereby (including the contemplated issuance of
the Shares), have been duly and validly authorized by SPSS, this Agreement has
been duly executed and delivered by SPSS. No vote of SPSS's stockholders is
needed to approve the sale and issuance of the Shares to the Buyer. This
Agreement, when executed and delivered by SPSS, will be a legal, valid and
binding agreement of SPSS, enforceable against it in accordance with its terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement of
creditors' rights generally.
e. NON-CONTRAVENTION. The execution and delivery of this Agreement by
SPSS, the issuance of the Shares, and the consummation by SPSS of the
transactions contemplated by this Agreement do not and will not conflict with or
result in a breach by SPSS of any of the terms or provisions of, or constitute a
default under (i) the articles of incorporation or by-laws of SPSS, (ii) any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which SPSS is a party or by which it or any of its properties or assets are
bound, (iii) to its knowledge, any existing applicable law, rule, or regulation
or any applicable decree or judgment, or (iv) to its knowledge, order of any
court, United States federal or state regulatory body, administrative agency, or
other governmental body having jurisdiction over SPSS or any of its properties
or assets, except any such conflict, breach or default which would not have a
material adverse effect on the transactions contemplated herein.
f. APPROVALS. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, stock
exchange or market or third party is required to be obtained by SPSS for the
issuance and sale of the Shares to the Buyer as contemplated by this Agreement,
except such authorizations, approvals and consents that have been obtained.
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g. OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Buyer contained in Section 2 hereof, the offer, sale and
issuance of the Shares will be exempt from the registration requirements of the
Securities Act and will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. Neither SPSS nor any agent
on its behalf has solicited or will solicit any offers to sell or has offered to
sell or will offer to sell all or any part of the Shares to any person or
persons or take any other action so as to bring the sale of such Shares by SPSS
within the registration provisions of the 1933 Act or any state securities laws.
h. ABSENCE OF CHANGES. From June 30, 2001 to the date of this Agreement,
there has not been any material adverse change in SPSS's business, condition
(financial or otherwise), assets, liabilities or operations and SPSS has carried
on its business in the ordinary course consistent with past practices.
i. LEGAL PROCEEDINGS; ORDERS. There is no pending Legal Proceeding and to
the best of SPSS's knowledge, no person or entity has threatened to commence any
Legal Proceeding (i) against SPSS that could reasonably be expected to have a
material adverse effect on SPSS's business, condition (financial or otherwise),
assets, liabilities or operations (other than any actual or threatened Legal
Proceeding that has been previously disclosed by SPSS in any of the SPSS SEC
Documents); or (ii) that challenges, or that may have the effect of preventing,
delaying, making illegal or otherwise interfering with, the sale and issuance of
the Shares of the Buyer. To the best of SPSS's knowledge, no event has occurred,
and no claim, dispute or other condition or circumstance exists, that will, or
that could reasonably be expected to, give rise to or serve as a basis for the
commencement of any such Legal Proceeding.
j. REGISTRATION STATEMENT ELIGIBILITY. SPSS is eligible to use a
Registration Statement on Form S-3.
4. SECURITIES MATTERS
a. REGISTRATION OF SPSS COMMON STOCK.
(i) SPSS shall prepare and file with the SEC a registration
statement on Form S-3 (together with all amendments and
supplements to any such registration statement, including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
registration statement, the "Registration Statement") under the
1933 Act, and the rules and regulations promulgated thereunder,
for the registration (the "Registration") of the offering of the
Shares for the account of the Buyer. SPSS shall take such steps
as are reasonably required to register such SPSS Common Stock
for sale on a delayed or continuous basis under Rule 415 of the
1933 Act and, provided that Form S-3 shall be available to SPSS
for the Registration, to keep such Registration Statement
continuously effective, current and available for use by the
Buyer until such time as all of the Shares have been sold by the
Buyer (the "Trading Period").
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(ii) The Buyer shall cooperate with SPSS in connection with the
Registration and shall provide such information and execute such
documents as SPSS shall reasonably request in connection with
the Registration.
(iii) SPSS shall permit the Buyer, at Buyer's cost and expense (except
as otherwise specifically provided in Section 4(c), to review
and have a reasonable opportunity to comment on the Registration
Statement and all amendments and supplements thereto at least
three (3) business days prior to their filing with the SEC and
shall not file any such document to which Buyer reasonably
objects.
(iv) Subject to Buyer's rights under clause (iii) above, SPSS hereby
covenants and agrees that it will file the Registration
Statement with the SEC no more that eight (8) business days
following the Closing and, if the Registration Statement is
reviewed by the SEC and the SEC provides comment with respect
thereto ("SEC Comment"), will A) promptly provide to Buyer 1) a
copy of any written SEC Comment with the date on which SPSS
received SEC Comment, 2) a written summary of any SEC Comment
received by SPSS in verbal, non-written format from the SEC and
the date on which SPSS received SEC Comment, B) prepare and file
a response, including, if necessary, an amendment to the
Registration Statement, no more than eight (8) business days
following the date on which SPSS receives such comments, and C)
provide to Buyer a copy of any response by SPSS to a SEC Comment
and the date on which SPSS delivered the response to the SEC
Comment to the SEC.
(v) SPSS hereby covenants and agrees that it will file a request for
acceleration pursuant to Rule 461 no more than five (5) business
days following the date on which it is advised by the SEC that
the SEC does not intend to comment or further comment, as the
case may be, on the Registration Statement.
(vi) In the event that SPSS shall fail to satisfy its obligations
under either clause (iii) or (iv) above, notwithstanding SPSS's
receipt of Buyer's written approval of the contents of the
Registration Statement or any applicable amendment or supplement
thereto within three (3) business days after the date on which
SPSS has delivered the Registration == Statement or any
amendment or supplement thereto to Buyer for its review pursuant
to clause (iii) above, SPSS shall pay Siebel an amount equal to
$2,500 for each full business day during which such failure is
continuing, provided, however, that SPSS's maximum liability for
all such failures shall not exceed $100,000. Payment of
penalties under this subsection 4(a) shall be made by SPSS to
Buyer on the fifth (5th) day of each calendar month following
the date on which the penalty occurs for the amount of penalties
owed for the prior calendar month.
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(vii) SPSS shall not grant to any holder of shares of SPSS Common
Stock registration rights that interfere with the rights of the
Buyer and the obligations of SPSS under this Section 4.
b. SALES OF SPSS COMMON STOCK BY THE BUYER. If at any time prior to the
effectiveness of the Registration Statement the Buyer elects to sell all or any
portion of the Shares, the Buyer shall conduct such sales only through
registered securities brokers ("brokers").
c. REGISTRATION EXPENSES. SPSS shall be responsible for and shall pay all
fees, costs and expenses incurred by it relating to the Registration, including
without limitation, all SEC and securities exchange, NASDAQ registration and
filing fees, and all fees and expenses of compliance by SPSS with the federal
securities laws or any applicable state blue sky laws.
d. RESTRICTED STOCK. The Buyer understands and agrees, as follows:
(i) That the Shares are not currently subject to a registration
statement under the 1933 Act, and are issued pursuant to
exemptions from registration under the 1933 Act which exemptions
depend, among other things, on the bona fide nature of their
investment intent.
(ii) That Buyer shall not transfer the Shares except in compliance
with the provisions of the 1933 Act. Any proposed transferee of
any of the Shares shall agree to take and hold such securities
upon the conditions set forth in Section 4(d)(iii) hereof.
(iii) Until the Registration Statement is declared effective, each
certificate representing any of such Shares shall be stamped or
otherwise imprinted with a legend in substantially the following
form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT UNDER AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT
BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN EXEMPTION THEREFROM
OR IN CONTRAVENTION OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SHARES AND RESTRICTING THEIR TRANSFER.
When the Shares may be sold pursuant to the Registration
Statement, SPSS will, upon request of the Buyer, cause SPSS's
transfer agent to exchange the share certificates legended as
set forth above for unlegended share certificates.
(iv) Unless a registration statement under the 1933 Act covering
transactions in the SPSS Common Stock to be received by the
Buyer pursuant to this Agreement has been declared effective by
the SEC and such registration
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statement remains effective at the time of transfer, each holder
of shares of SPSS Common Stock to be received by the Buyer
pursuant to this Agreement shall comply in all respects with the
provisions of this Section 4(d). Prior to any proposed transfer
of any such securities, the holder thereof shall give written
notice to SPSS of such holder's intention to effect such
transfer and shall comply with the requirements set forth in the
balance of this section. Each such notice shall describe the
manner and circumstances of the proposed transfer in reasonable
detail, and shall be accompanied by (1) a written opinion of
legal counsel who shall be reasonably satisfactory to SPSS,
addressed to SPSS, to the effect that the proposed transfer of
such securities may be effected without registration under the
1933 Act, (2) a "no action" letter from the SEC to the effect
that the distribution of such securities without registration
will not result in a recommendation by the staff of the SEC that
action be taken with respect thereto, or (3) such other showing
satisfactory to SPSS and its counsel, which satisfaction shall
not be unreasonably withheld or delayed, that the proposed
transfer of such securities may be effected without registration
under the 1933 Act, whereupon the holder of such securities
shall be entitled to transfer such securities in accordance with
the terms of the notice delivered by the holder to SPSS.
e. INDEMNIFICATION. When the SPSS Common Stock held by the Buyer is
included in a registration statement under this Section 4:
(i) SPSS will indemnify and hold harmless the Buyer, any underwriter
(as defined in the 0000 Xxx) for the Buyer and each person, if
any, who controls the Buyer or underwriter within the meaning of
the 1933 Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations
(collectively a "Violation"): (a) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or
supplements thereto, (b) the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (c)
any violation or alleged violation by SPSS of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state
securities law; and SPSS will pay to the Buyer, underwriter or
controlling person, any and all legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in
this subsection 4(e)(i) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action
if such
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settlement is effected without the consent of SPSS, which
consent shall not be unreasonably withheld or delayed, nor shall
SPSS be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished by the Buyer
any controlling person of the Buyer expressly for use in
connection with such registration.
(ii) The Buyer will indemnify and hold harmless SPSS, each of its
directors, each of its officers who has signed the registration
statement, each person, if any, who controls SPSS within the
meaning of the 1933 Act, any underwriter, and any controlling
person of any such underwriter, against any losses, claims,
damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the 1933 Act, the
1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information
furnished by the Buyer expressly for use in connection with such
registration, and the Buyer will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 4(e)(ii), in connection
with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity
agreement contained in this subsection 4(e)(ii) shall not apply
to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Buyer, which consent shall not be unreasonably
withheld or delayed. In no event shall the liability of the
Buyer hereunder be greater in amount than the dollar amount paid
by Buyer for the Shares purchased pursuant to this Agreement.
(iii) Promptly after receipt by an indemnified party under this
Section 4(e) of notice of any claim, demand or the commencement
of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 4(e),
deliver to the indemnifying party a written notice of the claim,
demand or action and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties
which may be represented without conflict by one counsel) shall
have the right to retain one separate counsel, with the fees and
expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to a conflict of
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The
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failure to deliver written notice to the indemnifying party
within a reasonable time of receipt by the indemnified party of
notice of such claim, demand or commencement of any such action,
if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the
indemnified party under this Section 4(e).
(iv) If the indemnification provided for in this Section 4(e) from
the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with
the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative faults of such indemnifying party
and indemnified party shall be determined by reference to, among
other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include any fees, charges or expenses (including fees,
disbursements and other charges of legal counsel) reasonably
incurred by such party in connection with any investigation or
proceeding. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person.
f. ADDITIONAL OBLIGATIONS OF SPSS. With respect to any registration
hereunder, SPSS shall:
(i) Use its best efforts to cause the Registration Statement to
become effective as soon as possible after the filing of the
Registration Statement, but in no event later than ten (10)
business days thereafter (assuming that the SEC does not review
the Registration Statement). If the SEC reviews the Registration
Statement, the Company shall use its best efforts to cause such
Registration Statement to become effective as soon as possible
after the filing of the Registration Statement, which efforts
shall include, but not be limited to, promptly responding to all
SEC comments in an appropriate manner. The Company shall use its
best efforts to cause the Registration Statement to remain
effective for the period set forth in Section 4.a.(i).
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(ii) Prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement
effective throughout the Trading Period and to comply with the
provisions of the 1933 Act with respect to the sale or other
disposition of the Shares covered by the Registration Statement.
(iii) Furnish to the Buyer such numbers of copies of the Registration
Statement, a prospectus, including a preliminary prospectus, and
any amendments and supplements thereto, in conformity with the
requirements of the 1933 Act, such documents incorporated by
reference in the Registration Statement and such other documents
as the Buyer may reasonably request in order to facilitate the
disposition of shares of SPSS Common Stock owned by it.
(iv) Promptly notify the Buyer, at any time when a prospectus
relating thereto covered by the Registration Statement is
required to be delivered under the 1933 Act, upon SPSS becoming
aware that the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and
immediately thereafter, use reasonable efforts to prepare and
file with the SEC as soon as possible and furnish to the Buyer a
reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Shares, such prospectus
shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they are made.
(v) Use reasonable efforts to register and qualify the securities
covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Buyer or appropriate for the
distribution of the securities covered by the registration
statement.
(vi) To the extent required by NASDAQ requirements, notify NASDAQ of
the issuance of the shares of SPSS Common Stock covered by such
registration.
g. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Buyer the benefits of Rule 144 promulgated under the 1933 Act and any other rule
or regulation of the SEC that may at any time permit the Buyer to sell
securities of SPSS to the public without registration, SPSS agrees to use its
reasonable efforts to:
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(i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports and other
documents required of SPSS under the 1933 Act and the 1934 Act;
and
(iii) furnish to the Buyer forthwith upon request a written statement
by SPSS that it has complied with the reporting requirements of
Rule 144 and of the 1933 Act and the 1934 Act, a copy of the
most recent annual or quarterly report of SPSS, and such other
reports and documents so filed by SPSS as may be reasonably
requested in availing the Buyer of any rule or regulation of the
SEC permitting the selling of any securities of SPSS held by it
without registration.
h. THIRD-PARTY REGISTRATION RIGHTS. Until the Registration Statement
becomes effective, (i) SPSS shall not grant future registration rights to any
third party without Buyer's prior written consent, which consent shall not be
unreasonably withheld or delayed (provided, however, that this subsection
4(h)(i) shall not apply to any registration rights of any third party granted
prior to the date hereof), and (ii) Buyer may assign its registration rights
granted hereunder to one or more of its affiliates.
5. ATTENDANCE AT MEETINGS OF SPSS INDUSTRY ADVISORY BOARD. For so long as
the Buyer holds at least ten percent (10%) of the Shares, Xxxxxxx Xxxxxx or
another individual designated by the Buyer, in Buyer's sole discretion, (which
designee shall be reasonably acceptable to SPSS) shall be entitled to attend (at
the Buyer's expense) all meetings of SPSS's industry advisory board (the
"Industry Advisory Board"). SPSS shall give the Buyer adequate notice of
meetings of SPSS's Industry Advisory Board, provided, however, that SPSS
reserves the right to exclude such representative from access to any material or
meeting or any portion thereof if SPSS reasonably believes upon advice of
counsel that such exclusion is necessary to preserve the attorney-client
privilege or to protect highly confidential proprietary information. The Buyer
shall be entitled to receive all written materials and other information given
to directors in connection with any meeting of the Industry Advisory Board as
soon as practicable after such materials and other information have been given
to the other attendees thereof. The Buyer shall not be entitled to attend, or
have any individual designated by the Buyer attend, any meetings of the Board of
Directors of SPSS without the express approval of an officer or the Board of
Directors of SPSS.
6. CONDITIONS TO CLOSING
a. CONDITIONS TO THE BUYER'S OBLIGATION. The obligation of the Buyer to
purchase and pay for the Shares to be purchased by it at the Closing is subject
to the following conditions (all of which, other than breaches of
representation, warranties and covenants not known to that Buyer at Closing,
shall be deemed satisfied or waived by the Buyer at or prior to the Closing in
the event all of the transactions contemplated to be effected at the Closing are
consummated and all or any of which in any case may be waived by the Buyer at or
prior to Closing):
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(i) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of SPSS set forth in Section 3 hereof shall be true,
accurate and correct on and as of the Closing with the same
effect as though such representations and warranties had been
made as of the Closing.
(ii) PERFORMANCE. SPSS shall have performed and complied with all
agreements, obligations, and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the Closing.
(iii) CLOSING DOCUMENTS. SPSS shall have delivered to the Buyer each
of the documents set forth in Section 7.a.
(iv) QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection
with the lawful issuance and sale of the Shares pursuant to this
Agreement shall be duly obtained and effective as of the
Closing.
(v) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Closing
and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Buyer's special
counsel, and it shall have received all such counterpart
original and certified or other copies of such documents as it
may reasonably request.
b. CONDITIONS TO SPSS'S OBLIGATION. The obligation of SPSS to sell and
issue the Shares to the Buyer at Closing is subject to the following conditions
(all of which shall be deemed satisfied or waived by SPSS at or prior to Closing
in the event all of the transactions contemplated to be effected at the Closing
are consummated and all or any of which in any case may be waived by SPSS at or
prior to Closing):
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Buyer set forth in Section 2 hereof shall be
true, accurate and correct on and as of the Closing with the
same effect as though such representations and warranties had
been made as of the Closing.
(ii) SECURITIES LAW QUALIFICATION. The offer and sale to the Buyer of
the Shares shall be qualified or exempt from qualification under
all applicable federal and state securities laws.
(iii) PERFORMANCE. The Buyer shall have performed and complied with
all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the Closing.
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7. CLOSING DELIVERIES
a. CLOSING DELIVERIES OF SPSS. The Buyer shall have received prior to or
at the Closing all of the following documents, each in form and substance
reasonably satisfactory to the Buyer and its counsel:
(i) A certificate of the Chief Executive Officer and the Chief
Financial Officer of SPSS stating that (a) the representations
and warranties of SPSS set forth in Section 3 hereof are true,
accurate and correct on and as of the Closing, and (b) all
agreements, obligations and conditions contained in this
Agreement required to be performed and complied with by SPSS
prior to or at the Closing have been performed as of the Closing
and (c) that there shall have been no adverse change in the
business, affairs, operations, properties, assets or condition
of SPSS since June 30, 2001.
(ii) A stock certificate evidencing the Shares.
(iii) Certified copies of the resolutions duly adopted by SPSS's board
of directors authorizing the execution, delivery and performance
of this Agreement and each of the other agreements contemplated
hereby, the issuance and sale of the Shares and the consummation
of all other transactions contemplated by this Agreement.
(iv) An opinion of Xxxx & Xxxxxxx, counsel for SPSS, dated as of the
Closing, in the form attached hereto as Exhibit A.
(v) A certificate of good standing issued by the Secretary of State
of the State of Delaware.
(vi) Copies of all third party and governmental consents, approvals
and filings required in connection with the consummation of the
transactions hereunder.
b. CLOSING DELIVERIES OF THE BUYER. SPSS shall have received prior to or
at the Closing all of the following materials or documents, each in the form and
substance reasonably satisfactory to SPSS and its counsel:
(i) The Purchase Price.
(ii) A certificate of the Chief Financial Officer of the Buyer
stating that the representations and warranties of the Buyer set
forth in Section 2 hereof are true, accurate and correct in all
material respects on and as of the Closing and that all
agreements, obligations and conditions contained in this
Agreement required to be performed and complied with by the
Buyer prior to or at the Closing have been performed as of the
Closing.
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8. MISCELLANEOUS
a. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
b. AMENDMENTS, WAIVERS AND CONSENTS. This Agreement may be amended only
by an instrument in writing signed by both parties hereto. Any waiver or consent
may be given subject to satisfaction of conditions stated therein and any waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
c. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of SPSS and the Buyer and their respective heirs,
successors and assigns.
d. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement or any other instrument or document delivered
in connection herewith, shall survive the execution and delivery hereof or
thereof and shall terminate one year from the date of this Agreement.
e. PRIOR AGREEMENTS. This Agreement and the Mutual Non-Disclosure
Agreement attached as Exhibit B to the Letter of Intent dated June 28, 2001
between the Buyer and SPSS, and any related documents constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements relating to the subject matter
hereof existing between the parties hereto are expressly canceled.
f. SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this the Agreement in any other jurisdiction.
g. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with the internal laws of the State of California, without giving
effect to its conflict of laws principles.
h. HEADINGS. Article, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
i. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
j. FURTHER ASSURANCES. From and after the date of this Agreement, upon
the request of SPSS, the Buyer shall execute and deliver such instruments,
documents and other
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writings as may be reasonably necessary to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement and the Shares.
9. NOTICES. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given, (i) on the date delivered, (a) if by personal delivery, or (b) if advance
copy is given by fax, (ii) seven business days after deposit in the United
States Postal Service by regular or certified mail, or (iii) three business days
mailing by international express courier, with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten days
advance written notice to each of the other parties hereto:
SPSS: SPSS Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
President and Chief Executive Officer
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
BUYER: Siebel Systems, Inc.
0000 Xxxxxxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Legal Affairs
Facsimile: 000-000-0000
10. MOST FAVORED NATION. During the six-month period after the Closing,
SPSS shall not issue or sell any security of SPSS at less than 95% of the
then-current ten-day average trading price of the SPSS Common Stock or on terms
otherwise more favorable to those offered to Buyer without Buyer's prior written
consent, which consent shall not be unreasonably withheld or delayed. This
provision shall not apply to shares of capital stock issued upon exercise of
SPSS stock options, shares issued pursuant to SPSS's employee stock purchase
plan or shares issued in connection with a merger with or acquisition of the
stock or assets of another entity.
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11. NO PUBLICITY. Except to the extent required by applicable law or a
court of competent jurisdiction, SPSS shall not make any public announcement
that refers to or identifies Buyer as an investor in SPSS without Buyer's prior
written consent which consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date set forth below.
BUYER:
SIEBEL SYSTEMS, INC., a Delaware corporation
By:
------------------------------------------
Name:
Title:
Dated:
---------------------------------------
THIS AGREEMENT HAS BEEN ACCEPTED AS OF THE DATE SET FORTH BELOW.
SPSS:
SPSS INC., a Delaware corporation
By:
-----------------------------------------
Xxxx Xxxxxx
President and Chief Executive Officer
Dated:
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