STOCK PURCHASE AND MASTER STRATEGIC RELATIONSHIP AGREEMENT
This Stock Purchase and Master Strategic Relationship Agreement (this
"Agreement") is entered into as of May ___, 1999, by and between Commerce One,
Inc., a California corporation (the "Company"), and SingTel Ventures (Cayman)
Pte Limited, a corporation organized under the laws of Cayman Islands (the
"Purchaser"). Capitalized terms used in this Agreement and not otherwise defined
are defined in EXHIBIT A attached hereto.
WHEREAS, the Purchaser wishes to purchase from the Company, and the Company
wishes to issue and sell to the Purchaser, following the Company's
reincorporation into Delaware (the "Delaware Reincorporation"), certain shares
of the Common Stock;
WHEREAS, such sale and purchase of Common Stock shall occur immediately
following the closing of the Company's initial public offering (the "IPO").
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein, the parties hereto, intending to be legally bound, agree as follows:
1. AGREEMENT TO SELL AND PURCHASE SHARES; OTHER AGREEMENTS
1.1 SALE AND PURCHASE OF SHARES.
(a) Subject to the terms and conditions hereof, at the Closing,
the Company will issue and sell to the Purchaser, and the Purchaser will
purchase from the Company, shares of Common Stock equal in number to $5,000,000
divided by the Per Share Price. The "Per Share Price" shall be equal to the IPO
Price multiplied by 94%.
(b) At the Closing, the Purchaser shall pay the purchase price
(the "Purchase Price") for the shares of Common Stock purchased hereunder (the
"Purchased Shares") by wire transfer of immediately available funds in U.S.
dollars to an account specified in writing by the Company prior to the Closing.
(c) No fractional shares shall be issued upon the sale of any
Common Stock to the Purchaser pursuant to this Agreement, and the number of
shares of Common Stock to be issued to the Purchaser shall be rounded to the
nearest whole share.
(d) All certificates representing the Purchased Shares shall bear
the following legend:
(i) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. THE COMPANY MAY REQUIRE AN
OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT THAT A PROPOSED TRANSFER OR SALE IS IN COMPLIANCE
WITH THE ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDERS OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."
(ii) Any legend required by the blue sky or securities laws
of any state or jurisdiction to the extent such laws are applicable to the
shares represented by the certificate so legended.
(e) The certificates representing the Purchased Shares will be
subject to a stop transfer order with the Company's transfer agent that
restricts the transfer of the Purchased Shares except in compliance with this
Agreement.
1.2 CLOSING.
The closing of the purchase and sale of the Purchased Shares (the
"Closing") shall take place at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, at
11:00 a.m. (California time) on the date of and immediately following the
closing of the IPO, or on such other date or at such other place or time as the
Company and the Purchaser may mutually agree (such date, the "Closing Date").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as specifically set forth in the disclosure schedule attached hereto
as EXHIBIT B (the "Disclosure Schedule"), the Company hereby represents and
warrants to the Purchaser as follows:
2.1 ORGANIZATION, GOOD STANDING, AND QUALIFICATION.
Each of the Company and VEO Systems, Inc., a wholly-owned subsidiary of the
Company ("VEO"), is a corporation duly organized, validly existing and in good
standing under the laws of the State of California, and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted. Each of the Company and VEO is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the nature of its business or the location of its
properties requires such qualification and in which the failure to so qualify
would have a material adverse effect on its business. In connection with the
IPO, as of the Closing Date, the Company shall be incorporated in the State of
Delaware and VEO shall be a wholly-owned subsidiary of the Company duly
organized, validly existing and in good standing under the laws of the State of
California.
2.2 CAPITALIZATION.
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As of the date of this Agreement, the authorized capital of the Company
consists of the following:
(a) 29,000,000 shares of Preferred Stock, no par value
("Preferred Stock") of which 673,680 shares have been designated Series A
Preferred Stock, all of which are issued and outstanding, 3,595,976 have been
designated Series B Preferred Stock, of which 3,568,293 are issued and
outstanding, 6,450,000 shares have been designated Series C Preferred Stock, of
which 5,120,608 are issued and outstanding, 10,700,000 shares have been
designated Series D Preferred Stock, 8,866,757 of which are issued and
outstanding, 800,169 shares have been designated Series D' Preferred Stock, all
of which are issued and outstanding, and 5,518,764 shares have been designated
Series E Preferred Stock, of which 5,517,638 shares are issued and outstanding.
The rights, privileges and preferences of the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock, the Series D' Preferred Stock and the Series E Preferred Stock are as
stated in the Company's Amended and Restated Articles of Incorporation. In
connection with the Company's IPO, all of the outstanding shares of Preferred
Stock will convert into an equal number of shares of Common Stock, subject to
adjustment for any reverse split of the Company's Common Stock to be effected
prior to the IPO.
(b) 60,000,000 shares of common stock, no par value, 10,498,102
shares of which are issued and outstanding, subject to adjustment for any
reverse split of the Company's Common Stock to be effected prior to the IPO. In
connection with the Company's IPO, the Company will issue additional shares of
Common Stock.
(c) Warrants to purchase 27,562 shares of Series B Preferred
Stock (the "Series B Warrants"), warrants to purchase 1,293,580 shares of Series
C Preferred Stock (the "Series C Warrants"), and warrants to purchase 86,818
shares of Series D Preferred Stock (the "Series D Warrants") (each of which
Series B Warrants, Series C Warrants, and Series D Warrants is subject to
adjustment for any reverse split of the Company's Common Stock to be effected
prior to the IPO) are issued and outstanding.
(d) The Company has reserved 8,381,500 shares of common stock,
subject to adjustment for any reverse split of the Company's Common Stock to be
effected prior to the IPO, for issuance to directors, employees or consultants
under the Company's stock option and stock benefit plans of which 6,198,969
shares of common stock, subject to adjustment for any reverse split of the
Company's Common Stock to be effected prior to the IPO, are subject to
outstanding stock options as of the date hereof (the "Outstanding Options").
Except for the Warrants described above, the Outstanding Options, and as
contemplated in connection with the Company's IPO, there are no outstanding
options, warrants, rights (including conversion or preemptive rights) or
agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
(e) All issued and outstanding shares of the Company's common
stock have been duly authorized and validly issued, are fully paid and
nonassessable, and were offered, issued and
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sold in compliance with all applicable state and federal laws concerning the
offer, sale and issuance of securities.
(f) Neither the offer nor the issuance or sale of the Purchased
Shares constitutes or will constitute an event, under any capital stock or
convertible security or any anti-dilution or similar provision of any agreement
or instrument to which the Company is a party or by which it is bound or
affected, which shall either increase the number of shares or units of capital
stock issuable upon conversion of any securities or upon exercise of any warrant
or right to subscribe to or purchase any stock or similar security, or decrease
the consideration per share or unit of capital stock to be received by the
Company upon such conversion or exercise.
2.3 SUBSIDIARIES.
Other than VEO, the Company does not currently own or control, directly or
indirectly, any interest in any other corporation, association, or other
business entity which is material to the Company's business.
2.4 AUTHORIZATION.
All corporate action on the part of the Company, its officers, directors
and shareholders necessary for the authorization, execution and delivery of this
Agreement, the performance of all obligations of the Company hereunder and
thereunder and the authorization, issuance and delivery of the Purchased Shares
has been taken or will be taken prior to the Closing. The Agreement, when
executed and delivered, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights; and (ii) general
principles of equity that restrict the availability of equitable remedies.
2.5 VALID ISSUANCE OF SECURITIES.
The Purchased Shares being issued hereunder, when issued, sold and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable. Based in
part upon the representations of the Purchasers in this Agreement and subject to
the provisions of Section 2.7 below, the Purchased Shares will be issued in
compliance with all applicable federal and state securities laws. The Purchased
Shares shall be free of any liens or encumbrances, other than any liens or
encumbrances created by the Purchasers; PROVIDED, HOWEVER, that the Purchased
Shares may be subject to restrictions on transfer under state and/or federal
securities laws. The Purchased Shares are not and will not be subject to any
preemptive rights, rights of first refusal, rights of first offer or other
similar rights that have not been properly waived or complied with.
2.6 FIRPTA.
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The Company is not a "United States Real Property Holding Corporation"
within the meaning of Section 847(c)(2) of the Internal Revenue Code of 1986, as
amended.
2.7 GOVERNMENTAL CONSENTS.
No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Agreement or the
consummation of the Transactions except as required in connection with the
Delaware Reincorporation and for the filing of notices required by applicable
Blue Sky laws, the filing of a Form D pursuant to Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"), as promulgated by
the Securities and Exchange Commission, and the filing of any notices required
by applicable foreign securities laws.
2.8 LITIGATION.
There is no action, suit, arbitration, proceeding or investigation pending
or currently threatened against the Company or its properties before any court,
arbitrator or governmental agency, nor is the Company aware that there is any
basis for the foregoing. The foregoing includes, without limitation, actions,
suits, arbitration proceedings or investigations pending or threatened (or any
basis therefor known to the Company) involving the prior employment of any of
the Company's employees, their use in connection with the Company's business of
any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court of government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
2.9 INTELLECTUAL PROPERTY.
As of the Closing, the Company has legally enforceable rights to use all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights, know-how and processes necessary for its
business as now conducted and as proposed to be conducted without any conflict
with or infringement on the rights of others, except as may otherwise be
described in Section 2.9 of the Disclosure Schedule. Except pursuant to
Contracts (as defined in Section 2.11 below) listed in the Disclosure Schedule,
copies of which have previously been delivered to the Purchasers, there are no
outstanding options, licenses, or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information, proprietary
rights, know-how and processes of any other person or entity. Except as
described in Section 2.9 of the Disclosure Schedule, to the best of the
Company's knowledge the Company has not violated or, by conducting its business
as proposed, would not violate any of the patents, trademarks, service marks,
trade names, copyrights or trade secrets or other proprietary rights of any
other person or entity. Each current or former employee, officer, director and
consultant of the Company has executed an agreement with the Company regarding
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confidentiality and proprietary information, a copy of the form of which has
previously been provided to the Purchasers, and no exceptions have been taken by
any such current or former employee, officer or consultant. The Company is not
aware that any of its employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of his or her best efforts to promote the interests
of the Company or that would conflict with the Company's business as conducted
or proposed to be conducted. Neither the execution nor delivery of this
Agreement or the other Transaction Agreements, nor the carrying on of the
Company's business as conducted or as currently proposed to be conducted, will,
to the Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. The
Company does not believe that it is or will be necessary for the Company to
utilize any inventions of any of its employees made prior to their employment
with the Company.
2.10 COMPLIANCE WITH OTHER INSTRUMENTS.
The Company is not in violation or default of any provisions of its charter
documents or of any instrument, judgment, order, writ, decree or contract to
which it is a party or by which it is bound or, of any provision of federal,
state or foreign statute, rule, regulation, order or restriction applicable to
the Company, including but not limited to the Foreign Corrupt Practices Act. The
execution, delivery and performance of this Agreement and the other Transaction
Agreements and the consummation of the Transactions will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any lien, charge or encumbrance upon any of the properties or
assets of the Company or the suspension, revocation, impairment, forfeiture, or
nonrenewal of any material permit, license, authorization, or approval
applicable to the Company, its business or operations or any of its assets or
properties. No consent, approval, qualification, order or authorization of, or
filing with, any governmental authority, or any consent or approval of any third
party person or entity is required in connection with the Company's valid
execution, delivery or performance of this Agreement or the offer, sale or
issuance of the Purchased Shares, or the consummation of any other transaction
contemplated on the part of the Company hereby, except as required in connection
with the Delaware Reincorporation and for the filing of any notice required by
applicable Blue Sky laws, the filing of a notice on Form D, the filing of any
notice required by applicable foreign securities laws. Except as disclosed in
the Disclosure Schedule, the Company has avoided every condition and has not
performed any act which would result in the Company's loss of any right granted
under any license, distribution or other agreement.
2.11 MATERIAL CONTRACTS AND COMMITMENTS.
Except as listed in Section 2.11 of the Disclosure Schedule and except for
agreements explicitly contemplated hereby (the "Contracts"), there are no
agreements, instruments, leases, licenses, commitments (written or oral) or
contracts to which the Company is a party or by which it is
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bound, which (i) involve obligations of or payments to the Company, absolute or
contingent, in excess of $20,000 individually, (ii) involve provisions
restricting or affecting the development, manufacture or distribution of the
Company's products or services, or (iii) involve indemnification by the Company
with respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase and sale agreements entered into in the
ordinary course of business and ordinary course licensing agreements entered
into with customers of the Company). All of the Contracts are valid, binding and
in full force and effect in all material respects and enforceable by the Company
in accordance with their respective terms in all material respects, subject to
the effect of applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, usury or other laws of general application relating to
or affecting enforcement of creditors' rights and rules or laws concerning
equitable remedies. The Company is not in material default under any of such
Contracts, nor has the Company received notice that any third party does not
intend to renew any material contract it currently has with the Company, or that
any third party intends to terminate any material contract currently in place
with the Company. To the best knowledge of the Company, no other party to any of
the Contracts is in material default thereunder. Except for the merger of the
Company and VEO, the Company has not engaged in the past six (6) months in any
discussion (i) with any representative of any corporation or corporations
regarding the consolidation or merger of the Company with or into any such
corporation or corporations, (ii) with any corporation, partnership, association
or other business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company of a
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, or (iii) regarding any
other form of acquisition, liquidation, dissolution or winding up of the
Company.
2.12 TITLE TO PROPERTY AND ASSETS.
The Company has good and marketable title to its property and assets, free
and clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens which arise in the ordinary course of business and do not
materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to the best of its knowledge, holds a valid leasehold
interest free of any liens, claims or encumbrances. Other than ordinary wear and
tear, all tangible assets owned or leased by the Company are in good operating
condition and repair, are reasonably fit and usable for the purposes for which
they are being used, and are adequate and sufficient for the Company's business.
2.13 FINANCIAL STATEMENTS.
The Purchasers have received the Company's audited consolidated balance
sheet, statements of income, cash flow and shareholders' equity for the fiscal
year ended December 31, 1998, together with the related opinion of Ernst &
Young, LLP, independent public accountants (the "Financial Statements"), which
are complete and correct in all material respects and have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent throughout the periods indicated and consistent with each other,
subject to normal end-of-period adjustments. The
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Financial Statements fairly present the consolidated financial condition,
operating results and cash flows of the Company as of the respective dates and
for the respective periods indicated.
The Purchasers have received an unaudited consolidated balance sheet,
statements of income, cash flow and shareholders' equity for the three-month
period ended March 31, 1999 (the "Unaudited Financial Statements"). The
Unaudited Financial Statements were prepared in good faith by the Company, are
complete and correct in all material respects and have been prepared from the
books and records of the Company, in accordance with generally accepted
accounting principles consistently applied by the Company, and present the
consolidated financial condition, operating results and cash flows of the
Company as of the date and for the period indicated.
Except as disclosed in the Financial Statements and Unaudited Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation. The Company maintains and will continue
to maintain a standard system of accounting established and administered in
accordance with generally accepted accounting principles.
2.14 CHANGES.
Except as otherwise disclosed in the Financial Statements and Unaudited
Financial Statements, since March 31, 1999, there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial Statements
and Unaudited Financial Statements, except changes in the ordinary course of
business that have not been, in the aggregate, materially adverse;
(b) any incurrence of any indebtedness for money borrowed;
(c) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(d) any waiver by the Company of a valuable right or of a
material debt owed to it;
(e) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(f) except as described in Section 2.11 of the Disclosure
Schedule, any material change or amendment to a material contract or arrangement
by which the Company or any of its assets or properties is bound or subject;
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(g) any material change in any compensation arrangement or
agreement with any employee, contractor or director;
(h) [any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets, except licenses entered
into in the ordinary course of business and consistent with past practices;]
(i) any resignation or termination of employment of any key
officer of the Company, and the Company, to the best of its knowledge, does not
know of the impending resignation or termination of employment of any such
officer;
(j) receipt of notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
(k) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company with respect to any of its material properties or
assets, except liens for taxes not yet payable;
(l) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(m) any declaration, setting aside or payment of dividends or
other distribution with respect to any of the Company's capital stock or any
direct or indirect redemption, purchase or other acquisition of any of such
stock by the Company;
(n) to the best of the Company's knowledge, any other event or
condition of any character that could reasonably be expected to materially and
adversely affect the assets, properties, financial condition, operating results
or business of the Company (as such business is presently conducted);
(o) any agreement or commitment by the Company to perform any of
the acts described in this Section 2.14; or
2.15 OUTSTANDING INDEBTEDNESS; MATERIAL LIABILITIES.
Except pursuant to the Contracts or as disclosed in the Financial
Statements and Unaudited Financial Statements, the Company has no material
liabilities or obligations exceeding $500,000 in the aggregate, absolute or
contingent (individually or in the aggregate), except (i) liabilities and
obligations under a lease for its principal offices and leases for equipment
which do not exceed $5,000,000 in the aggregate, (ii) liabilities and
obligations under sales, procurement and other contracts and arrangements
entered into in the normal course of business, which do not exceed $20,000
individually, or $40,000 in the aggregate, (iii) liabilities incurred in the
ordinary course of business subsequent to March 31, 1999, and (iv) obligations
under contracts and commitments
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incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in the Financial Statements and
Unaudited Financial Statements, which, in all cases, individually or in the
aggregate, are not material to the financial condition or operating results of
the Company.
2.16 TAX RETURNS AND PAYMENTS.
The Company has accurately prepared all United States income tax returns
and all state and municipal tax returns required to be filed by it, has paid all
taxes, assessments, fees and charges when and as due under such returns, and has
made adequate provision for the payment of all other taxes, assessments, fees
and charges shown on such returns or on assessments received by the Company. The
Company has not requested any extension of time within which to file any
federal, state or local tax return, which tax return has not since been filed.
The Company has not been advised that any of its returns, federal, state or
other, have been or are being audited as of the date hereof, and no deficiency
assessment or proposed adjustment of the Company's United States income tax or
state or municipal taxes is pending or, to the best knowledge of the Company,
threatened. The provision for taxes for the Company as shown in the Financial
Statements and Unaudited Financial Statements is adequate for taxes due or
accrued as of the date thereof. Since the date of the Financial Statements and
Unaudited Financial Statements, the Company has made adequate provisions on its
books of account for all taxes, assessments and governmental charges with
respect to its business, properties and operations for such period. The Company
has withheld or collected from each payment made to each of its employees the
amount of all taxes (including, but not limited to, federal income taxes,
Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom and has paid the same to the
proper tax receiving officers or authorized depositaries.
2.17 EMPLOYEES AND EMPLOYEE BENEFIT PLANS.
(a) The employment of each officer and employee of the Company is
terminable at will. The Company does not have any collective bargaining
agreements covering any of its employees. There is no labor union organizing
activity pending or, to the Company's knowledge, threatened, with respect to the
Company.
(b) The Company is not aware of any key employee of the Company
who has any plans to terminate his or her employment with the Company. Except as
described in Section 2.17 of the Disclosure Schedule, the Company does not have
any deferred compensation, pension, profit sharing, bonus, insurance, severance
or other similar employee benefit plan or obligation covering any of its
employees or any plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). To the Company's knowledge, the Company has complied
with all applicable state and federal equal employment opportunity and other
laws relating to employment. The Company has not made any loans or advances to
any person other than ordinary expenses for travel expenses. There is no strike
or other labor dispute involving the Company pending, or to the best of the
Company's knowledge, threatened, that could have a material adverse effect on
the assets, properties, financial condition, operating results, or business of
the Company (as such business is
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presently conducted and as it is proposed to be conducted), nor is the Company
aware of any labor organization activity involving its employees. The Company
has no written employment agreement or contract with any employee of the
Company.
(c) Except as set forth in Section 2.17 of the Disclosure
Schedule, the Company does not maintain or make contributions to any employee
benefit plans ("Plans"), as defined in Section 3(3) of ERISA. The Company has no
material liability with respect to any such Plans (including, without
limitation, any unfunded liability or any accumulated funding deficiency) or any
material liability to the Pension Benefit Guaranty Corporation ("PBGC") or under
Title IV of ERISA, with respect to a multi-employer pension benefit plan, nor
would the Company have any such liability if any such plan were terminated or if
the Company withdrew, in whole or in part, from any multi-employer plan. To the
Company's best knowledge, the Company's ERISA Plans are in compliance in all
material respects with ERISA, the Internal Revenue Code and other applicable
legal requirements. The Company has filed all reports required to be filed by it
prior to the filing deadlines (including extensions) with the Internal Revenue
Service or the PBGC under ERISA and the Internal Revenue Code.
2.18 CERTAIN TRANSACTIONS.
Except as set forth in Section 2.18 of the Disclosure Schedule, the Company
is not indebted, directly or indirectly, to any of its officers, directors or
shareholders or to their spouses or children, in any amount whatsoever; and none
of said officers, directors or, to the best of the Company's knowledge,
shareholders, or any member of their immediate families, are indebted to the
Company or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship (except as a holder of securities of a corporation whose
securities are publicly traded and which is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to the extent of owning not more than two percent (2%) of the issued and
outstanding securities of such corporation). Except as set forth in Section 2.18
of the Disclosure Schedule, no such officer, director or shareholder, or any
member of their immediate families, is, directly or indirectly, interested in
any material contract with the Company. The Company is not guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.19 INSURANCE.
The Company has in full force and effect the several insurance policies
listed in 2.19 of the Disclosure Schedule with such coverage and insurance
against such hazards, risks and liabilities to persons and property to the
extent and in the manner customary for companies in similar businesses similarly
situated.
2.20 PERMITS.
The Company has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which could reasonably be expected
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to have a material adverse effect on the Company, and the Company believes it
can obtain, without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. The Company is not in
default in any material respect under any of such franchises, permits, licenses,
or other similar authority.
2.21 ENVIRONMENTAL AND SAFETY LAWS.
The Company is not in violation of any applicable federal, state or local
statute, law or regulation relating to the environment or occupational health
and safety, and no material expenditures are or will be required in order to
comply with any such existing statute, law or regulation.
2.22 DISCLOSURE.
No representation or warranty of the Company contained in this Agreement,
or in any other Transactional Agreement, or any certificate furnished or to be
furnished to the Purchaser at the Closing, when read together, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
3.1 ORGANIZATION AND GOOD STANDING.
The Purchaser is a corporation duly organized and validly existing under
the laws of Singapore.
3.2 AUTHORITY; BINDING NATURE OF AGREEMENTS.
The Purchaser has the requisite corporate power and authority to enter into
and to perform its obligations under this Agreement. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation or
performance of the Transactions have been duly authorized by all necessary
corporate action on the part of the Purchaser. This Agreement constitutes, or
upon execution and delivery will constitute, the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, and (ii) laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
3.3 NON-CONTRAVENTION; CONSENTS.
(a) Neither the execution and delivery by the Purchaser, nor the
consummation or performance by the Purchaser of any of the Transactions to be
consummated or performed by it, will directly or indirectly (with or without
notice or lapse of time): (i) violate any provision of the
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Purchaser's certificate or articles of incorporation or bylaws or other charter
documents; (ii) constitute or result in a breach or default by the Purchaser, or
give rise to a right of termination on the part of any other party, or result in
the creation or imposition of any lien, claim or encumbrance on any Purchaser
assets, under any agreement or instrument to which the Purchaser is a party or
by which the Purchaser is bound.
(b) Except for compliance with the terms of Sections 13 and 16 of
the Exchange Act (if required), no consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
Governmental Authority on the part of the Purchaser is required in connection
with the consummation of the Transactions.
3.4 LITIGATION.
As of the date hereof, there are no suits, proceedings or investigations
pending or, to the knowledge of the Purchaser, threatened against the Purchaser,
which in any such case would materially adversely affect the Purchaser's ability
to perform its obligations under this Agreement.
3.5 BROKERS.
The Purchaser has not granted or become obligated to pay, or taken any
action that likely would result in any Person claiming to be entitled to receive
from the Company, any brokerage commission, finder's fee or similar commission
or fee in connection with any of the Transactions.
3.6 INVESTMENT REPRESENTATIONS.
(a) The Purchaser understands that none of the Purchased Shares
has been registered under the Securities Act. The Purchaser also understands
that the Purchased Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon the
Purchaser's representations contained in this Agreement, and that the Company is
relying upon the truth and accuracy of the Purchaser's representations,
warranties, acknowledgements and understandings with respect to a material fact
set forth herein.
(b) The Purchaser is acquiring the Purchased Shares for the
Purchaser's own account for investment only, and not with the current intention
of making a public distribution thereof.
(c) The Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests. The
Purchaser, by reason of its business or financial experience, has the capacity
to protect its own interests in connection with the Transactions. The Purchaser
is an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D.
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(d) The Purchaser acknowledges that the Purchased Shares must be
held indefinitely and that the Purchaser must bear the economic risk of this
investment indefinitely unless the Purchased Shares are subsequently registered
under the Securities Act or an exemption from such registration is available.
The Purchaser understands that the Company has no present intention of
registering the Purchased Shares. The Purchaser also understands that there is
no assurance that any exemption from registration under the Securities Act will
be available and that, even if available, such exemption may not allow the
Purchaser to transfer all or any portion of the Purchased Shares under the
circumstances, in the amounts or at the times the Purchaser might propose.
(e) The Purchaser has been advised or is aware of the provisions
of Rule 144 under the Securities Act ("Rule 144"), which permit limited resale
of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things: (i) the availability of
certain current public information about the Company, (ii) the resale occurring
not less than one year after a party has purchased and paid for the security to
be sold, (iii) the sale being through an unsolicited "broker's transaction" or
in transactions directly with a market maker (as said term is defined under the
Exchange Act) and (iv) the number of shares being sold during any three-month
period not exceeding specified limitations.
(f) The Purchaser initiated discussions with the Company relating
to the purchase and sale contemplated by this Agreement on an unsolicited basis
prior to the date of this Agreement. The Purchaser did not receive any
information regarding such purchase and sale through any general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act.
(g) Without the prior written consent of the Company, the
Purchaser will not, during the period commencing on the Closing Date and ending
one hundred eighty (180) days after the date of the final prospectus relating to
the IPO, (i) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise.
3.7 COMPANY DISCLOSURE DOCUMENTS.
(a) The Purchaser has received and reviewed a copy of the
Company's Registration Statement on Form S-1, as filed with the Securities and
Exchange Commission on April 26, 1999 (the "Registration Statement"), including,
without limitation, the language therein under the caption "Risk Factors."
(b) The Purchaser has been furnished with materials relating to
the Company and its proposed activities, including, without limitation, the
Registration Statement. Without limiting
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the Company's obligations with respect to any representations or warranties made
by the Company in this Agreement, the Purchaser has been afforded the
opportunity to obtain any additional information deemed necessary by the
Purchaser to verify the accuracy of any representations made or information
conveyed to the Purchaser. The Purchaser confirms that all documents, records
and books pertaining to its investment in Common Stock and requested by the
Purchaser have been made available or delivered to the Purchaser. The Purchaser
has had an opportunity to ask questions of and receive answers from the Company,
or from a person or persons acting on the Company's behalf, concerning the terms
and conditions of this investment.
3.8 FOREIGN OFFERING REPRESENTATIONS.
(a) No offer or solicitation of an offer was made by the Company,
any of its affiliates or any other person acting for or on behalf of the
Company, to the Purchaser to enter into this Agreement, or to consummate the
Transactions (including, without limitation, the issuance of the Purchased
Shares), while the Purchaser was inside the United States and, at the time of
the execution and delivery by the Purchaser of this Agreement, the Purchaser was
outside the United States.
(b) In making the decision to invest in the shares of the
Company's Common Stock to be issued hereto, the Purchaser has not relied upon
any materials received in connection with any "directed selling efforts" of the
Company, any of its affiliates or any person acting for or on behalf of the
Company, as such term is defined in Rule 902(b) under Regulation S ("Regulation
S") promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), including, without limitation, any printed materials distributed in a
publication with a general circulation within the United States, or
advertisements with radio or television stations broadcasting within the United
States, in each case which discuss the terms of this Agreement or the
Transactions (including, without limitation, the issuance of the Purchased
Shares pursuant hereto).
(c) In making the decision to invest in the shares of the
Company's Common Stock to be issued pursuant hereto, the Purchaser has not
relied upon any "Distributors", as such term is defined in Rule 902(c) of
Regulation S, including, without limitation, any underwriter or dealer.
(d) The Purchaser understands and acknowledges that the Purchased
Shares to be issued pursuant hereto are being issued in reliance upon the
exemption from the registration requirements of the Securities Act afforded by
Regulation S, that such shares will not be registered under the Securities Act
or any state securities or "blue sky" law, and that such shares may not be
offered or sold in the United States or to any "U.S. Person", as such term is
defined in Rule 902(o) of Regulation S ( a "U.S. Person"), or otherwise disposed
of, except in accordance with the provisions of Rules 903 and 904 of Regulation
S, pursuant to registration of such shares under the Securities Act, or pursuant
to another available exemption from the registration requirements of the
Securities Act.
(e) Purchaser is not a U.S. Person, and the Purchaser is not
acquiring the Purchased Shares for the account or benefit of any U.S. Person.
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(f) The Purchaser understands and acknowledges that it may not
resell any of the Purchased Shares to be issued pursuant hereto unless any such
resale is effected in accordance with the provisions of Rule 904 of Regulation
S, pursuant to registration of such resale under the Securities Act, or pursuant
to another available exemption from the registration requirements of the
Securities Act.
4. CONDITIONS TO CLOSING
4.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS.
The Purchaser's obligations to purchase the Purchased Shares and to take
the other actions required to be taken by it at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Purchaser, in whole or in part):
(a) The representations and warranties of the Company contained
in this Agreement shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing Date, except to the extent any such representations and warranties are
stated to be made as of a specific date, in which case they shall be true as of
such date, except in each case for any inaccuracies in such representations and
warranties as would not have a material adverse effect on the Company. In
addition, the Company shall have performed in all material respects all
obligations required pursuant to the terms of this Agreement to be performed or
observed by it on or prior to the Closing.
(b) The Company shall have delivered to the Purchaser a
certificate, executed by an executive officer of the Company, dated the date of
the Closing, setting forth the Company's representation that the conditions set
forth in Section 4.1(a) above shall have been satisfied.
(c) The Company shall have obtained any and all consents,
permits, waivers and approvals necessary or appropriate for consummation of the
Transactions (except for such as may be properly obtained subsequent to the
Closing).
(d) There shall be no injunction, writ, preliminary restraining
order or other order in effect of any nature issued by a court or governmental
agency of competent jurisdiction directing that the Transactions not be
consummated in the manner provided for in this Agreement. No action or
proceeding shall have been instituted and remain pending before a court or other
governmental body of competent jurisdiction to restrain, prohibit or otherwise
challenge any of the Transactions (or seeking material damages from the
Purchaser or the Company as a result thereof), other than any such action or
proceeding which would not have a material adverse effect on the Company or
prevent the Company or the Purchaser from performing their respective
obligations hereunder.
(e) The Company shall have delivered to the Purchaser a legal
opinion from counsel to the Company, in form and substance reasonably
satisfactory to the Purchaser and its counsel and addressing the matters listed
in EXHIBIT C hereto.
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(f) On or prior to the Closing Date, the Purchaser shall have
received a certificate of the Secretary of State of the State of Delaware, dated
as of a recent date, as to the good standing of the Company.
(g) The IPO shall have been closed.
4.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS.
The Company's obligations to sell the Purchased Shares and to take the
other actions required to be taken by the Company at the Closing is subject to
the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by the Company, in whole or in part):
(a) The representations and warranties of the Purchaser contained
in this Agreement shall be true in all material respects on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing Date, except to the extent any such
representations and warranties are stated to be made as of a specific date, in
which case they shall be true in all material respects as of such date, and the
Purchaser shall have performed in all material respects all obligations required
pursuant to the terms of this Agreement to be performed or observed by either of
them on or prior to the Closing.
(b) The Purchaser shall have delivered to the Company a
certificate, executed by an executive officer of the Purchaser, dated the date
of the Closing, setting forth the Purchaser's representation that the conditions
set forth in Section 4.2(a) above shall have been satisfied.
(c) The Purchaser shall have obtained any and all consents,
permits, waivers and approvals necessary or appropriate for consummation of the
Transactions (except for such as may be properly obtained subsequent to the
Closing).
(d) There shall be no injunction, writ, preliminary restraining
order or other order in effect of any nature issued by a court or governmental
agency of competent jurisdiction directing that the Transactions not be
consummated in the manner provided for in this Agreement. No action or
proceeding shall have been instituted and remain pending before a court or other
governmental body of competent jurisdiction to restrain, prohibit or otherwise
challenge any of the Transactions (or seeking material damages from the
Purchaser or the Company as a result thereof), other than any such action or
proceeding which would not have a material adverse effect on the Company or
prevent the Company or the Purchaser from performing their respective
obligations hereunder.
(e) On or prior to the Closing Date, if the Purchaser is
organized in the United States, the Company shall have received a certificate of
the Secretary of State (or equivalent agency) of the state of the Purchaser's
organization, as to the good standing of such party.
(f) The IPO shall have been closed.
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(g) Concurrently with such sale, the Purchaser shall have paid to
the Company the Purchase Price for the Purchased Shares.
5. COVENANTS OF THE PARTIES
5.1 FILINGS AND CONSENTS.
Concurrently with execution and delivery of this Agreement, the Purchaser
will promptly furnish all information as may be required by the Singapore
[Ministry of Finance] in order for the requisite approvals for the purchase and
sale of the Purchased Shares, and the consummation of the Transactions, to be
obtained. Each party hereto will cooperate with each other with respect to
obtaining, as promptly as practicable, and in any event prior to the Closing,
all necessary consents, approvals, authorizations and agreements of, and the
giving of all notices and making of all other filings with, any third parties,
including Governmental Authorities, necessary to authorize, approve or permit
the closing of the Transactions.
5.2 COVENANT TO SATISFY CONDITIONS.
Each party agrees to use all reasonable efforts to insure that the
conditions to the other party's obligations hereunder set forth in Section 4,
insofar as such matters are within the control of such party, are satisfied as
promptly as practicable, and in any event prior to the closing of the IPO,
PROVIDED HOWEVER, that notwithstanding anything herein to the contrary, the
Company shall have the sole and absolute discretion as to when, and whether, to
consummate or close the IPO, and may choose to cease pursuit of the IPO or to
postpone the IPO until after the termination of this Agreement, all without any
liability or obligation whatsoever to the Purchaser.
5.3 FURTHER ASSURANCES.
Each party shall execute and deliver such additional instruments, documents
or other writings as may be reasonably requested by any other party, before or
after the Closing, in order to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
6. MARKET STANDOFF AGREEMENT
6.1 MARKET STANDOFF AGREEMENT
The Purchaser hereby agrees that, for a period of one hundred eighty (180)
days after the initial public offering (the "Commencement Date") of the Common
Stock of the Company, the Purchaser will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any of the Purchased
Shares or publicly disclose the intention to make any such offer, sale, pledge
or disposal, without the prior written consent of Credit Suisse First Boston
Corporation.
-18-
In furtherance of the foregoing, the Purchaser hereby agrees that the
Company and its transfer agent and registrar are authorized to decline to make
any transfer of any of the Purchased Shares if such transfer would constitute a
violation or breach of this Section 6.1.
The restrictions in this Section 6.1 shall be binding on the Purchaser and
the respective successors, heirs, personal representatives and assigns of the
Purchaser.
7. TERMINATION
7.1 TERMINATION.
This Agreement may be terminated at any time prior to the Closing:
(a) by the written agreement of the Purchaser and the Company;
(b) by the Company or the Purchaser, if the Closing shall not
have occurred by August 31, 1999; PROVIDED HOWEVER, that the failure to
consummate the Closing by such date is not a result of the Company, in the case
the Company is so electing to terminate this Agreement, or of the Purchaser, in
the case the Purchaser is so electing to terminate this Agreement, failing to
perform any of its obligations or breaching any of its representations and
warranties hereunder; and
(c) by the Company or the Purchaser in the event any court or
governmental agency of competent jurisdiction shall have issued an order, decree
or ruling or taken any other action restricting, enjoining or otherwise
prohibiting the Transactions and such order, decree, ruling or other action
shall have become final and unappealable, and the parties hereto hereby agree to
use all reasonable efforts to prevent any such order, decree, ruling or other
action from becoming final and unappealable.
7.2 EFFECT OF TERMINATION.
Except for the obligations of Section 9 hereof and this Section 7.2, if
this Agreement shall be terminated pursuant to the preceding Section 7.1, all
obligations, representations and warranties of the parties hereto under this
Agreement shall terminate and there shall be no liability hereunder of any party
hereto to any other party hereto; PROVIDED HOWEVER, that nothing in this Section
7 shall relieve any party of liability for breach of any warranty, covenant or
agreement herein or in any other Transactional Agreement.
8. SUCCESSORS AND ASSIGNS
8.1 SUCCESSORS AND ASSIGNS; REINCORPORATION.
(a) Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto. Except as
otherwise expressly provided herein, neither party may assign any of its rights
or obligations hereunder without the written consent of the other party hereto;
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PROVIDED, HOWEVER, that the Company shall have the right, with or without the
consent of the Purchaser, to reincorporate into Delaware prior to the Closing
and such Delaware successor corporation will succeed to all of the Company's
rights and obligations under this Agreement.
(b) In the event of a transfer of the rights and obligations of
the Purchaser under this Agreement, the Purchaser shall ensure that all the
rights and obligations of the Purchaser under this Agreement and the ownership
of the Purchased Shares are transferred to the said successor entity without any
dilution or adverse effect on the enforceability of such obligations. Subject to
the aforesaid, the Company: (i) agrees that such a reorganization by itself
shall not constitute a default by the Purchaser or any successor entity of the
Purchaser under this Agreement and shall not constitute grounds for termination
of this Agreement by any of such parties; (ii) anything to the contrary herein
or elsewhere notwithstanding, consents to the transfer of all the rights and
obligations of the Purchaser under this Agreement to a successor entity as part
of such reorganization; (iii) consents to the transfer of the Purchaser Shares
to a successor entity as part of such reorganization; and (iv) anything to the
contrary herein or elsewhere notwithstanding, agrees to absolutely and
irrevocably release the Purchaser from its obligations under this Agreement upon
such reorganization, provided, in each case, that the successor entity shall be
subject to the terms and conditions of this Agreement, including, without
limitation, the representations and warranties of the Purchaser herein, and
shall deliver to the Company a written agreement to such effect, in form and
substance reasonably satisfactory to the Company, and provided, further, in each
case, that the successor entity is either one of the Regional Companies or the
Long Distance Company currently contemplated in the Amendment.
9. MISCELLANEOUS
9.1 PRESS RELEASES AND ANNOUNCEMENTS.
All press releases and announcements concerning the Transactions shall be
mutually agreed to by the Company and the Purchaser, except for any such
disclosure required by law which, in the case of such disclosure by the Company,
shall, to the extent practicable under the circumstances, be first discussed
with the Purchaser and, in the case of such disclosure by the Purchaser, shall,
to the extent practicable under the circumstances, be first discussed with the
Company.
9.2 INTERPRETATION.
(a) The various section headings are inserted for purposes of
reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
(b) Each party hereto acknowledges that it has been represented
by competent counsel and participated in the drafting of this Agreement, and
agrees that any applicable rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not be applied in connection
with the construction or interpretation of this Agreement.
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(c) The original and controlling version of this Agreement shall
be the version using the English language. All translations of this Agreement
into other languages shall be for the convenience of the parties only, and shall
not control the meaning or application of this Agreement. All notices and other
communications required or permitted by this Agreement must be in English, and
the interpretation and application of such notices and other communications
shall be based solely upon the English language version thereof.
(d) When a reference is made in this Agreement to a Section,
Exhibit or Schedule, such reference shall be to a Section of, Exhibit to or
Schedule to this Agreement, unless otherwise indicated.
9.3 FEES AND EXPENSES.
Each party hereto shall be solely responsible for the payment of the fees
and expenses of its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement, except to
the extent expressly set forth in this Agreement. Without limiting the
generality of the foregoing, the Purchaser shall pay all stamp and other taxes,
if any, which may be payable in respect of the issuance, sale and delivery to
the Purchaser or any Assignee of Common Stock pursuant to the terms of this
Agreement, and shall save the Company harmless against any loss or liability
resulting from nonpayment or delay in the payment of any such tax.
9.4 GOVERNING LAW; JURISDICTION AND VENUE.
(a) Prior to Closing, this Agreement is to be construed in
accordance with and governed by the internal laws of the State of California
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties. On and after Closing, this
Agreement is to be construed in accordance with and governed by the internal
laws of the State of Delaware without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the parties.
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement may be brought
or otherwise commenced in any state or federal court located in the County of
Contra Costa, California. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the County of Contra
Costa, California (and each appellate court located in the State of California)
in connection with any such legal proceeding, including to enforce any
settlement, order or award;
(ii) agrees that each state and federal court located in the
County of Contra Costa, California shall be deemed to be a convenient forum; and
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(iii) waives and agrees not to assert (by way of motion, as
a defense or otherwise), in any such legal proceeding commenced in any state or
federal court located in the County of Contra Costa, California, any claim that
such party is not subject personally to the jurisdiction of such court, that
such legal proceeding has been brought in an inconvenient forum, that the venue
of such proceeding is improper or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court.
(c) Each party hereto agrees to the entry of an order to enforce
any resolution, settlement, order or award made pursuant to this Section by the
state and federal courts located in the County of Contra Costa, California and
in connection therewith hereby waives, and agrees not to assert by way of
motion, as a defense, or otherwise, any claim that such resolution, settlement,
order or award is inconsistent with or violative of the laws or public policy of
the laws of the State of California or any other jurisdiction.
(d) The Purchaser has irrevocably designated
______________________, a ____________________ corporation, as agent for service
of process hereunder and the above named is authorized and directed to accept
service of process on behalf of the Purchaser in any suit regarding the
Transactions or otherwise related to this Agreement.
9.5 SPECIFIC ENFORCEMENT.
The parties hereto agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific intent or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent or
cure breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof, this being in addition to any other remedy to
which they may be entitled by law or equity.
9.6 SURVIVAL.
The representations and warranties of the parties hereunder shall terminate
upon the Closing and thereafter shall terminate and be of no force or effect.
9.7 NO THIRD PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns and are not for the benefit of, nor
may any provision hereof or thereof be enforced by, any other Person.
9.8 ENTIRE AGREEMENT.
This Agreement and the other documents delivered expressly hereby,
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and no
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party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein and therein.
9.9 SEVERABILITY.
The provisions of this Agreement shall be severable, and any invalidity,
unenforceability or illegality of any provision or provisions of this Agreement
shall not affect any other provision or provisions of this Agreement, and each
term and provision of this Agreement shall be construed to be valid and
enforceable to the full extent permitted by law.
9.10 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
mutual written consent of the Company and the Purchaser.
(b) No failure to exercise and no delay in exercising any right,
power or privilege granted under this Agreement shall operate as a waiver of
such right, power or privilege. No single or partial exercise of any right,
power or privilege granted under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies provided in this Agreement are cumulative and are not
exclusive of any rights or remedies provided by law.
9.11 RELATIONSHIP OF THE PARTIES.
For all purposes of this Agreement, each of the parties hereto and their
respective Affiliates shall be deemed to be independent entities and, anything
in this Agreement to the contrary notwithstanding, nothing herein shall be
deemed to constitute the parties hereto or any of their respective Affiliates as
partners, joint venturers, co-owners, an association or any entity separate and
apart from each party itself, nor shall this Agreement make any party hereto an
employee or agent, legal or otherwise, of the other parties for any purposes
whatsoever. This Agreement does not create or constitute, and shall not be
construed as creating or constituting, a voting trust agreement under the
Delaware General Corporation Law or any other applicable corporation law. None
of the parties to this Agreement is authorized to make any statements or
representations on behalf of any other party or in any way to obligate any other
party, except as expressly authorized in writing by the other parties. Anything
in this Agreement to the contrary notwithstanding, no party hereto or thereto
shall assume nor shall be liable for any liabilities or obligations of the other
parties, whether past, present or future.
9.12 NOTICES.
All notices required or permitted hereunder shall be in writing and shall
be deemed effectively given: (i) upon personal delivery to the party to be
notified; (ii) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; (iii)
seven (7) days after having been sent by registered or certified mail, return
receipt
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requested, postage prepaid; or (iv) two (2) days after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the parties hereto
at the respective addresses set forth below, or as notified by such party from
time to time at least ten (10) days prior to the effectiveness of such notice:
if to the Purchaser: SingTel Ventures (Cayman) Pte Limited
00 Xxxxxx Xxxx, Xxxxxxxxx, #00-00
Xxxxxxxxx 000000
Xx. Xxxxxx Xxxx
Director, Corporate Development
with a copy to:
------------------------------------------
------------------------------------------
------------------------------------------
Attention:
--------------------------------
Facsimile:
--------------------------------
and a copy to:
------------------------------------------
------------------------------------------
------------------------------------------
Attention:
--------------------------------
Facsimile:
--------------------------------
if to the Company: Commerce One, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
-24-
9.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-25-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
PURCHASER: SingTel Ventures (Cayman) Pte Limited
By: /s/ Chua Sock Koong
-------------------------------------------
Name: Chua Sock Koong
Title: Director
COMPANY: Commerce One, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & General Council
-26-
