COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This COMMON STOCK AND WARRANT PURCHASE AGREEMENT, dated February 12,
2003 (this "Agreement"), is entered into by and between Niku Corporation, a
Delaware corporation (the "Company"), and each of those investors listed on
the Schedule of Investors attached as Schedule A (each individually, an
"Investor" and, collectively, the "Investors").
RECITALS
WHEREAS, the Board of Directors of the Company has authorized the
issuance and sale of 3,088,230 shares (the "Shares") of its common stock, par
value $0.0001 per share (the "Common Stock"), and warrants in the form
attached as Exhibit A (the "Warrants") to purchase up to 386,034 shares of
Common Stock (the "Warrant Shares," and together with the Shares and the
Warrants, the "Securities");
WHEREAS, the Investors desire to purchase the Securities, and the
Company desires to issue and sell the Securities to the Investors on the terms
and conditions set forth herein; and
WHEREAS, the parties hereto desire to enter into this Agreement for
the purpose of setting forth certain representations, warranties and covenants
made by each to the other as an inducement to the execution and delivery of
this Agreement and the conditions precedent to the consummation of the
transactions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK AND WARRANTS.
1.1 Issuance and Sale of Securities. Subject to the terms and
conditions of this Agreement, the Company hereby agrees to issue and sell to
each Investor, severally and not jointly, and each Investor agrees to
purchase, severally and not jointly, at the Initial Closing and the Subsequent
Closing (as such terms are defined below) the number of Shares and Warrants to
purchase the number of Warrant Shares at the price and in the amounts set
forth opposite such Investor's name on Schedule A. The price per Share is
$3.35 and the Price per Warrant Share is $0.40. The Warrants shall have a term
of five years and an exercise price of $3.40, subject to and as qualified by
the terms of the Warrant. The Shares and Warrants to be issued and sold by the
Company at the Initial Closing may be referred to herein as the "Initial
Shares" and the "Initial Warrants." The Shares and Warrants to be issued and
sold by the Company at the Subsequent Closing may be referred to herein as the
"Subsequent Shares" and the "Subsequent Warrants."
1.2 Initial Closing. The completion of the purchase and sale of
the Initial Shares and Initial Warrants (the "Initial Closing") shall take
place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in Palo Alto,
California, at 10:00 a.m., on the date hereof, or at any such other time or
place as the Company and Investors may mutually agree (such date, the "Initial
Closing Date"). At the Initial Closing, subject to the terms and conditions
hereof, the Company will deliver to each Investor a certificate representing
the number of Shares and a Warrant to be purchased at such Initial Closing by
such Investor, against payment of the purchase price therefore by wire
transfer to an account designated by the Company.
1.3 Subsequent Closing. The completion of the purchase and sale
of the Subsequent Shares and Subsequent Warrants (the "Subsequent Closing")
shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in
Palo Alto, California, at 10:00 a.m., on the third business day following the
date on which all of the conditions set forth in Sections 4 and 5 pertaining
to the Subsequent Closing (other than those conditions that by their nature
can only be fulfilled at the Subsequent Closing) shall have been fulfilled or
waived by each of the parties hereto, or at any such other time or place as
the Company and Investors may mutually agree (such date, the "Subsequent
Closing Date"). In the Subsequent Closing, the Company may sell Subsequent
Shares and Subsequent Warrants to investors ("Subsequent Investors")
reasonably acceptable to the Company and the Investors who purchased at least
a majority of the Shares and Warrants at the Initial Closing. Each Subsequent
Investor shall, prior to the filing of preliminary proxy statement pursuant to
Section 6.1 below, become a party to this Agreement and the Registration
Rights Agreement in the form attached as Exhibit B (the "Registration Rights
Agreement") and shall be treated as an Investor for purposes of this Agreement
and as a Holder for purposes of the Registration Rights Agreement. At the
Subsequent Closing, subject to the terms and conditions hereof, the Company
will deliver to each Investor and Subsequent Investor a certificate
representing the number of Shares and a Warrant to be purchased at such
Subsequent Closing by such Investor or Subsequent Investor, against payment of
the purchase price therefore by wire transfer to an account designated by the
Company. The Initial Closing and the Subsequent Closing each may be referred
to herein as a "Closing," and together as the "Closings." The Initial Closing
Date and the Subsequent Closing Date may be referred to herein as a "Closing
Date," and together as the "Closing Dates."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Investor as of
the date hereof, except as set forth on the Schedule of Exceptions provided to
each Investor, which qualifies the representations and warranties in their
entirety, as follows:
2.1 Organization, Good Standing and Qualification. The Company
and each of its subsidiaries is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its
incorporation and has all requisite corporate power and authority to own and
operate its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted. The Company and each of
its subsidiaries is duly qualified and is authorized to transact business and
is in good standing as a foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse effect on the results of
operations, properties or financial condition of the Company and its
subsidiaries taken as a whole in the aggregate (a "Material Adverse Effect").
Section 2.1 of the Schedule of Exceptions lists each subsidiary of the Company
which the Company deems to be a significant subsidiary (each a "Significant
Subsidiary" and collectively the "Significant Subsidiaries") and each
subsidiary of the Company which the Company deems to be an insignificant
subsidiary (each an "Insignificant Subsidiary" and collectively the
"Insignificant Subsidiaries").
2.2 Authorization. The Company has all requisite corporate
power and authority to enter into this Agreement and the Registration Rights
Agreement, and to perform its obligations hereunder and thereunder, including
to issue and sell the Securities, subject to obtaining the requisite
stockholder approval of the transactions contemplated herein to take place at
the Subsequent Closing in a manner that complies with NASD Rule 4350(i) (the
"Required Stockholder Approval"). The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Company, subject to
obtaining the Required Stockholder Approval. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company and constitute valid and binding agreements of the Company,
enforceable against it in accordance with their terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the enforcement of creditors' rights
generally, and (b) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
2.3 No Violation. The execution, delivery and performance of
this Agreement and the Registration Rights Agreement will not violate any
provision of the Company's Amended and Restated Certificate of Incorporation
(the "Certificate") or Amended and Restated Bylaws (the "Bylaws"), will not
conflict with, result in any breach of any of the terms, conditions or
provisions of, constitute (with or without notice or lapse of time or both) a
default under, or require a consent or waiver under any material indenture,
lease, agreement or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or by which any of the Company's properties or any of its subsidiaries'
properties is bound, or any decree, judgment, order, statute, rule or
regulation applicable to the Company or any of its subsidiaries, except for
any conflict, breach, default or failure to obtain a consent or waiver which
would not result, either individually or in the aggregate, in a Material
Adverse Effect.
2.4 Valid Issuance of Shares and Warrants. Subject to obtaining
the Required Stockholder Approval with respect to the Subsequent Shares and
Subsequent Warrants: (a) the Shares and the Warrants have been duly authorized
and, when issued, sold and delivered against payment therefor in accordance
with the terms of this Agreement, will be validly issued and, in the case of
the Shares, fully paid and nonassessable and free and clear of all liens,
taxes and encumbrances except for restrictions on transfer contained herein,
and not be subject to preemptive or similar rights; and (b) the Warrant Shares
have been duly authorized and, upon exercise of the Warrants in accordance
with the terms thereof, will be validly issued, fully paid and nonassessable
and free and clear of all liens, taxes and encumbrances except for
restrictions on transfer contained herein, and not be subject to preemptive or
similar rights.
2.5 Capitalization. As of January 31, 2003, the authorized
capital stock of the Company consists of 250,000,000 shares of Common Stock,
8,761,076 shares of which are issued and outstanding, and 10,000,000 shares of
preferred stock, par value $0.0001 per share, of which none are issued and
outstanding. As of the date hereof, 1,496,642 shares of Common Stock are
reserved for issuance upon the exercise of options that have been granted and
are outstanding under the Company's various option and equity incentive plans
(the "Company Stock Incentive Plans") and 19,583 shares of Common Stock are
reserved for issuance upon the exercise of outstanding warrants. All issued
and outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable. As of the date hereof, immediately
prior to the Initial Closing and other than as set forth in this Section 2.5
or Section 1.3, (a) no shares of the Company's capital stock are subject to
preemptive rights or any other similar rights created by statute, the
Company's Certificate or Bylaws or any agreement or instrument to which the
Company is a party, and (b) there are no options, warrants, rights to
subscribe to, calls or commitments or agreements of any character which the
Company is bound to issue additional shares of capital stock of the Company or
obligating the Company to grant, effect or enter, into any such option,
warrant, right to subscribe to, call, commitment or agreement.
2.6 Governmental Consents. Except for the Required Stockholder
Approval and subject to the accuracy of each Investor's representations and
warranties set forth in this Agreement, no consent, approval, qualification,
order or authorization of, or filing with, any local, state, or federal
governmental authority is required on the part of the Company in connection
with the Company's valid execution, delivery, or performance of this Agreement
or the Registration Rights Agreement, or the offer, sale or issuance of the
Securities by the Company, except for any notices of sale required to be filed
with the Securities and Exchange Commission (the "SEC") under Regulation D
("Regulation D") of the Securities Act of 1933, as amended (the "Securities
Act"), or such post-closing filings as may be required under applicable state
securities laws, which will be timely filed within the applicable periods
therefor.
2.7 Offering. Subject to the accuracy of each Investor's
representations and warranties set forth in this Agreement, the offer, sale
and issuance of the Securities are exempt from the registration requirements
of the Securities Act.
2.8 Reports and Financial Statements. The Company has filed
with the Securities and Exchange Commission (the "SEC") all forms, reports,
schedules, statements and other documents required to be filed since January
31, 2002 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (such documents, as amended, the "Company SEC Documents"). As of their
respective dates, or if amended, as of the date of the last amendment, the
Company SEC Documents, including, without limitation, the financial statements
included therein (the "Company Financial Statements") (a) did not contain an
untrue statement of a material fact or omit 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 and (b)
complied in all material respect with the applicable requirements of the
Exchange Act and the applicable rules and regulations of the SEC promulgated
thereunder. The Company Financial Statements have been prepared in accordance
with generally accepted accounting principles and present fairly the financial
position, results of operations and cash flows of the Company as of the dates
thereof and for the periods presented.
2.9 Absence of Certain Changes. Except as disclosed in the
Company SEC Documents, since October 31, 2002 (the "Determination Date") and
the date hereof, there has not been
(a) any change in the assets, liabilities, financial
condition or operating results of the Company or any of its subsidiaries from
the Company Financial Statements, except changes in the ordinary course of
business which have not in the aggregate had a Material Adverse Effect;
(b) any damage, destruction, or loss, whether or not
covered by insurance, materially and adversely affecting the assets, financial
condition, properties, operating results or business of the Company or any of
its subsidiaries;
(c) any change or amendment to a material contract or
arrangement by which the Company or any of its subsidiaries or any of the
Company's or any of its subsidiaries assets or properties is bound or subject,
except changes or amendments in the ordinary course of business which have not
had a Material Adverse Effect;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or any of its
subsidiaries, except a satisfaction, discharge or payment made in the ordinary
course of business that is not material to the assets, properties, financial
condition, operating results or business of the Company;
(e) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets, except a
sale, assignment or transfer made in the ordinary course of business that is
not material to the assets, properties, financial condition, operating results
or business of the Company;
(f) any resignation or termination of employment of any
key officer of the Company;
(g) any loans or advances to, guarantees for the benefit
of, or any investments in, any person, corporation, partnership, joint venture
or other entity;
(h) any sale, disposition, mortgage, pledge, transfer of a
security interest in, or lien, created by the Company or any of its
subsidiaries, with respect to any of its material properties or assets, except
liens for taxes not yet due or payable;
(i) any declaration, setting aside a payment or other
distribution in respect to any of the Company's capital stock, or any direct
or indirect redemption, purchase or other acquisition of any such stock by the
Company;
(j) any material change in accounting methods or practices
the Company follows, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates;
(k) any waiver or amendment by the Company or any of its
subsidiaries of a material right or of a material debt owed to it;
(l) any creation, incurrence or assumption of any
indebtedness exceeding $100,000;
(m) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company or any of
its subsidiaries except losses or cancellations which have not had a Material
Adverse Effect; or
(n) any arrangement or commitment by the Company or any of
its subsidiaries to do any of the foregoing.
2.10 Proxy Statement. The Proxy Statement (as defined in
Section 6.1) shall not, on the date the Proxy Statement (including any
amendment or supplement thereto) is first mailed to stockholders, or at the
time of the Company Stockholders' Meeting (as defined in Section 6.2), contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading. The Proxy Statement shall comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder.
2.11 Intellectual Property. The Company and each of its
subsidiaries owns or possesses adequate rights to use all patents, patent
rights, inventions, trade secrets, know-how, trademarks, service marks, trade
names, copyrights or other information (collectively, "Intellectual
Property"), which are necessary to conduct its businesses as currently
conducted, except where the failure to currently own or possess would not
result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of, and has no knowledge of, any
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property which, if the subject of an unfavorable decision, ruling
or finding, would reasonably be expected to have a Material Adverse Effect,
and to the Company's knowledge, none of the patent rights licensed by the
Company or any of its subsidiaries are unenforceable or invalid. The Company
is not aware that any of its employees are 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 their duties to the Company
or any of its subsidiaries. The conduct of the Company's and each of its
subsidiary's business as currently conducted, does not, to the knowledge of
the Company, 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 employee is now obligated. The Company does not
believe it is or will be necessary to utilize any inventions, trade secrets or
proprietary information developed or acquired by any of its employees in the
conduct of the Company's or any of its subsidiary's business prior to their
employment by the Company or any of its subsidiaries, except for inventions,
trade secrets or proprietary information that have been assigned to the
Company or any of its subsidiaries.
2.12 Litigation. Except as set forth in the Company SEC
Documents, there is no action, suit, proceeding, or investigation pending or,
to the Company's knowledge, currently threatened against the Company, any of
its subsidiaries, the Company's properties, any of its subsidiaries'
properties or any of the Company's officers or directors, in their respective
capacities as such. None of the Company, any of its subsidiaries nor any of
the Company's officers or directors, in their respective capacities as such,
is a party to or, to the best of the Company's knowledge, named in or subject
to any order, writ, injunction, judgment, or decree of any court, government
agency, or instrumentality.
2.13 Tax Returns and Payments. The Company and each of its
subsidiaries has timely filed all material tax returns (federal, state, local
and foreign) required to be filed by it. All taxes shown to be due and payable
on such returns, any assessments imposed, and all other material taxes due and
payable by the Company or any of its subsidiaries has been paid or will be
paid prior to the time they become delinquent. Neither the Company nor any of
its subsidiaries has been advised (i) that any of its returns, federal state,
foreign or other, have been or are being audited as of the date hereof, or
(ii) of any deficiency in assessment or proposed adjustment to its federal,
state, foreign or other taxes. There exists no liability for any tax or
potential tax to be imposed upon the properties or assets of the Company or
any of its subsidiaries as of the date of this Agreement that is not
adequately provided for.
2.14 Employees. To the knowledge of the Company: (i) no
employee of the Company or any of its subsidiaries, nor any consultant with
whom the Company or any of its subsidiaries has contracted, is in violation of
any term of any employment contract, proprietary information agreement or
other agreement relating to the right of any such individual to be employed
by, or to contract with, the Company or any of its subsidiaries; and to the
knowledge of the Company, and (ii) the continued employment by the Company or
any of its subsidiaries of their present employees, and the performance of the
contracts of the Company and each of its subsidiaries with its independent
contractors, will not result in any such violation. The Company has not
received any notice alleging that any such violation has occurred. No employee
of the Company or any of its subsidiaries has been granted the right to
continued employment by the Company or any of its subsidiaries or to any
material compensation following termination of employment with the Company or
any of its subsidiaries. No officer has communicated to the Company his or her
intention to terminate his or her employment with the Company.
2.15 Registration Rights. Except as required pursuant to the
Registration Rights Agreement, the Company is not under any obligation, and
has not granted any rights, to register any of the Company's securities under
the Securities Act.
2.16 Obligations to Related Parties. Except as set forth in the
Company SEC Documents, there are no material obligations of the Company or any
of its subsidiaries to officers, directors, stockholders, or employees of the
Company or any of its subsidiaries other than (a) for payment of salary for
services rendered, (b) reimbursement for reasonable expenses incurred on
behalf of the Company or any of its subsidiaries and (c) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the
Company Board of Directors or the Board of Directors of the relevant
subsidiary. Except as set forth in the Company SEC Documents, no officer or
director, or, to the Company's knowledge, any member of their immediate
families, is indebted to the Company or any of its subsidiaries or has any
direct ownership interest in any firm or corporation with which the Company or
any of its subsidiaries is affiliated, or any company that competes with the
Company or any of its subsidiaries, in each case other than ownership of less
than 2% of the outstanding stock of publicly traded companies. No such officer
or director, or, to the Company's knowledge, any member of their immediate
families, is, directly or indirectly, interested in any material contract with
the Company or any of its subsidiaries. Neither the Company not any of its
subsidiaries is a guarantor or indemnitor of any indebtedness of any other
individual, corporation, partnership or other entity.
2.17 Property and Assets. The Company and each of its
subsidiaries has good and marketable title to all of their material properties
and assets, and good title to their leasehold estates, in each case subject to
no mortgage, pledge, lien, security interest, lease, charge or encumbrance,
other than liens resulting from taxes which have not yet become delinquent and
liens and encumbrances which do not in any case materially detract from the
value of the property subject thereto or materially impair the operations of
the Company or any of its subsidiaries, and which have not arisen otherwise
than in the ordinary course of business.
2.18 Disclosure. The Company has provided each Investor with
all the information reasonably available to it that such Investor has
requested for deciding whether to purchase the Securities, and all information
regarding the terms and conditions of the offering of the Securities and the
results of operations, properties, prospects and financial condition of the
Company that the Company believes is reasonably necessary to enable such
Investor to make such decision. To the best of the Company's knowledge after
reasonable investigation, neither this Agreement nor any other agreements,
written statements or certificates made or delivered in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF EACH OF THE INVESTORS.
Each Investor hereby, severally and not jointly, represents and
warrants to the Company, as follows:
3.1 Authorization. The Investor has all requisite corporate
power and authority to enter into this Agreement and the Registration Rights
Agreement, and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Registration Rights Agreement
by the Investor and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of the Investor. This Agreement and the Registration Rights Agreement
have been duly executed and delivered by the Investor and constitute valid and
binding agreements of the Investor, enforceable against it in accordance with
their terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
enforcement of creditors' rights generally, and (b) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies.
3.2 Purchase Entirely for Own Account. Each Investor hereby
confirms that the Securities will be purchased for investment purposes for
such Investor's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Each Investor further represents that such Investor
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any
third person, with respect to any of the Securities.
3.3 Reliance Upon Investors' Representations. The Investor
understands that none of the Securities are registered under the Securities
Act, on the ground that the sale provided for in this Agreement and the
issuance of the Securities hereunder is exempt from registration, and that the
Company's reliance on such exemption is predicated on the Investors'
representations set forth herein. The Investor realizes that the basis for the
exemption may not be present if, notwithstanding such representations, the
Investor has in mind merely acquiring the Securities for a fixed or
determinable period in the future, or for a market rise, or for sale if the
market does not rise. The Investor has no such intention.
3.4 Receipt of Information. The Investor has received all the
information such Investor considers necessary or appropriate for deciding
whether to purchase the Securities. Each Investor further represents that such
Investor has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Securities
and the results of operations, properties, prospects, and financial condition
of the Company and to obtain additional information deemed necessary by such
Investor. Notwithstanding the foregoing, such investigation and due diligence
shall not limit the representations and warranties of the Company in Section 2
of this Agreement.
3.5 Investment Experience. The Investor represents that such
Investor is experienced in evaluating and investing in private placement
transactions of securities of companies in a similar stage of development and
acknowledges that such Investor is able to fend for himself, herself or
itself, can bear the economic risk of such Investor's investment, and has such
knowledge and experience in financial and business matters that such Investor
is capable of evaluating the merits and risks of the investment in the
Securities. If other than an individual, Investor also represents such
Investor has not been organized for the purpose of acquiring the Securities.
3.6 Accredited Investor. The Investor represents that it is an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Securities Act.
3.7 Restricted Securities. The Investor will not sell, offer to
sell, transfer, assign, pledge or hypothecate any of the Securities unless
pursuant to an effective registration statement under the Securities Act or
such holder provides the Company with an opinion of counsel, in a form
acceptable to the Company, to the effect that such sale, offer to sell,
transfer, assignment, pledge or hypothecation of the Securities may be made
without registration under the Securities Act. Notwithstanding anything to the
contrary contained in this Agreement, the Investor may transfer (without
restriction and without the need for an opinion of counsel) the Securities to
a current or former general partner, limited partner, shareholder, majority
owned affiliated (as defined in the Securities Act) corporate entity, member
of an Investor or a family member or trust for the benefit of an Investor,
provided that such transferee or assignee is an "accredited investor" under
Regulation D and such transferee or assignee agrees to be bound by the terms
and conditions of this Agreement.
3.8 Consents. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of the Investor required in
connection with the consummation of the transactions contemplated in the
Agreement and the Registration Rights Agreement have been or shall have been
obtained prior to and be effective as of the Closing.
3.9 Legends.
(a) To the extent applicable, each certificate or other
document evidencing any of the Securities shall be endorsed with the legends
substantially in the form set forth below, and the Investor covenants that,
except to the extent provided in this Agreement or to the extent such
restrictions are waived by the Company, the Investor shall not transfer the
Securities represented by any such certificate without complying with the
restrictions on transfer described in the legends endorsed on such certificate
(and a stop-transfer order may be placed against the transfer of the
certificates for the Securities):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) Any legend endorsed on the Securities pursuant to this
Section 3.9 and the stop transfer instructions with respect to such Securities
shall be removed and the Company shall issue or cause to be issued a
certificate without such legend to the holder thereof, if such legend may
properly be removed under the terms of Rule 144 promulgated under the
Securities Act or if such holder provides the Company with an opinion of
counsel for such holder, reasonably satisfactory to legal counsel for the
Company, to the effect that a sale, transfer or assignment of such Securities
may be made without registration.
3.10 Requirements of Foreign Jurisdictions. The Investor
acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company that would permit
an offering of the Securities, or possession or distribution of offering
materials in connection with the issue of the Securities, in any jurisdiction
outside the United States where action for that purpose is required. Each
Investor outside the United States will comply with all applicable laws and
regulations in each foreign jurisdiction in which it purchases, offers, sells
or delivers Securities or has in its possession or distributes any offering
material, in all cases at its own expense.
3.11 Further Representation by Foreign Investors. If the
Investor is not a U.S. Person, such Investor hereby represents that such
Investor is satisfied as to the full observance of the laws of such Investor's
jurisdiction in connection with any invitation to subscribe for the Securities
or any use of this Agreement, including (i) the legal requirements with such
Investor's jurisdiction for the purchase of the Securities, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or
other consents that may need to be obtained, and (iv) the income tax and other
tax consequences, if any, which may be relevant to the purchase, holding,
redemption, sale, or transfer of the Securities. Such Investor's subscription
and payment for, and such Investor `s continued beneficial ownership of, the
Securities will not violate any applicable securities or other laws of such
Investor `s jurisdiction.
3.12 No Legal, Tax or Investment Advice. The Investor
understands that nothing in this Agreement or any other materials presented to
the Investor in connection with the purchase and sale of the Securities
constitutes legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Securities.
4. CONDITIONS TO EACH INVESTOR'S OBLIGATIONS AT CLOSING.
The obligations of each Investor to purchase the Shares and Warrants
at the Closing are subject to the fulfillment or waiver by such Investor of
each of the following conditions:
4.1 Representations and Warranties. The representations and
warranties made by the Company in Section 2 of this Agreement shall be true
and correct in all material respects as of the Closing Date with the same
force and effect as if they had been made as of the Closing Date (except for
representations and warranties that speak as of a specific date).
4.2 Performance. The Company shall have performed and complied
in all material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or observed by
it on or prior to the Closing.
4.3 Registration Rights Agreement. The Registration Rights
Agreement in the form attached hereto shall have been executed and delivered
by the parties hereto.
4.4 Voting Agreement. The officers and directors of the Company
and their affiliated funds, who in the aggregate hold at least seven and three
tenths percent (7.3%) of the issued and outstanding Common Stock, calculated
as of the Initial Closing Date, shall have entered into a Voting Agreement
with Xxxxxx XX II, L.P., in the form attached as Exhibit C, providing that
such stockholders agree to vote their shares at the Company's Stockholders'
Meeting (as defined in Section 6.2), in person or by proxy, in favor of the
issuance of the Subsequent Shares and Subsequent Warrants.
4.5 Compliance Certificate. The Company shall have delivered to
the Investors a Compliance Certificate, executed by the Chief Executive
Officer of the Company, dated as of the Closing Date, to the effect that the
conditions specified in Sections 4.1, 4.2, 4.3, 4.4 and 4.7 have been
satisfied.
4.6 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 Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
4.7 Governance Representation. Upon the Initial Closing: (a)
Xxxx Xxxxxx shall have been elected to the Board of Directors of the Company;
(b) Xxxxxx Xxxxxxxxx shall be permitted to be an observer of the Board of
Directors of the Company; and (c) Xxxxxxx Xxxxxx shall have been appointed to
the Company's Advisory Board.
4.8 Legal Opinion. The Investors shall have received from legal
counsel to the Company an opinion addressed to the Investors, dated as of the
Closing Date, in substantially the form attached as Exhibit D.
4.9 Required Stockholder Approval. With respect to the
Subsequent Closing only, the Company shall have obtained the Required
Stockholder Approval.
4.10 Corporate Documents. The Company shall have delivered to
the Investors: (a) a certificate evidencing the incorporation and good
standing, including payment of franchise taxes, of the Company in the State of
Delaware and the State of California issued by the Secretary of State of the
State of Delaware and the State of California, respectively, and the Franchise
Tax Board of the State of California; and (b) a secretary's certificate, dated
as of the Closing Date, certifying as to (i) the resolutions of the Board of
Directors approving this Agreement, the Registration Rights Agreement and the
Voting Agreement and the consummation of the transactions contemplated hereby,
(ii) the Certificate and (iii) the Bylaws, each as in effect at the Closing.
4.11 Listing of Additional Shares. Prior to the Closing, the
Company shall have filed with the Nasdaq Stock Market a Notification Form for
Listing of Additional Shares in accordance with Nasdaq Marketplace Rules
4310(c)(17) and the 4500 series.
5. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company to issue and sell the Shares and
Warrants at the Closing to the Investor, severally and not jointly, are
subject to the fulfillment or waiver by the Company of each of the following
conditions:
5.1 Representations and Warranties. The representations and
warranties made by the Investor in Section 3 of this Agreement shall be true
and correct in all material respects as of the Closing Date with the same
force and effect as if they had been made as of the Closing Date (except for
representations and warranties that speak as of a specific date).
5.2 Performance. The Investor shall have performed and complied
in all material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or observed by
it on or prior to the Closing.
5.3 Registration Rights Agreement. The Registration Rights
Agreement in the form attached hereto shall have been executed and delivered
by the parties hereto.
5.4 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 Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
5.5 Purchase Price. Each of the Investors shall have paid its
respective purchase price for the Shares and Warrants as indicated on Schedule
A.
5.6 Required Stockholder Approval. With respect to the
Subsequent Closing only, the Company shall have obtained the Required
Stockholder Approval.
6. COVENANTS OF THE COMPANY
6.1 Proxy Statement. As promptly as possible but in no event
later than twenty (20) days following the execution of this Agreement, the
Company will prepare and file with the SEC the preliminary proxy statement
(the "Proxy Statement") relating to issuance of the Subsequent Shares and
Subsequent Warrants for approval by the stockholders of the Company. Each
Investor and the Company will provide each other with any information which
may be required in order to effectuate the preparation and filing of the
preliminary proxy statement. The Company will notify each Investor upon the
receipt of any comments from the SEC or its staff in connection with the
filing of, or amendments or supplements to, the preliminary proxy statement.
As promptly as practicable after any comments are received from the SEC
thereon and after the furnishing by the Company and each Investor of all
information required to be contained therein, the Company shall file with the
SEC a revised proxy statement and will use all reasonable efforts to have it
cleared by the SEC as soon thereafter as practicable. The Company will cause
the definitive proxy statement to be mailed to its stockholders at the
earliest practicable time after it is cleared by the SEC.
6.2 Meeting of Company Stockholders. Promptly after the proxy
statement is cleared by the SEC, the Company will take all action necessary in
accordance with applicable state law and its Certificate and Bylaws to call,
hold and convene a meeting of its stockholders to consider the issuance of the
Subsequent Shares and Subsequent Warrants (the "Company Stockholders'
Meeting") to be held as promptly as practicable after the proxy statement is
cleared by the SEC. Subject to Section 6.3, the Company will use all
reasonable efforts to solicit from its stockholders proxies in favor of the
issuance of the Subsequent Shares and Subsequent Warrants, and will take all
other action necessary or advisable to secure the vote or consent of its
stockholders required by the applicable rules or laws to obtain such
approvals. Notwithstanding anything to the contrary contained in this
Agreement, the Company may adjourn or postpone the Company Stockholders'
Meeting for a period not to exceed thirty (30) days if, as of the time for
which the Company Stockholders' Meeting is originally scheduled (as set forth
in the proxy statement), there are insufficient shares of Common Stock
represented (either in person or by proxy) to constitute a quorum necessary to
conduct the business of the Company Stockholders' Meeting. The Company shall
ensure that the Company Stockholders' Meeting is called, noticed, convened,
held and conducted, and that all proxies solicited by its in connection with
the Company Stockholders' Meeting are solicited in compliance with applicable
state law, its Certificate and Bylaws, and all other applicable rules and
laws.
6.3 Board Recommendation. The Company Board of Directors shall
recommend that the Company's stockholders vote in favor of the issuance of the
Subsequent Shares and Subsequent Warrants at the Company Stockholders'
Meeting. The proxy statement shall include a statement to the effect that the
Company Board of Directors has recommended that the Company's stockholders
vote in favor of the issuance of the Subsequent Shares and Subsequent Warrants
at the Company Stockholders' Meeting. Neither the Company's Board of Directors
nor any committee thereof shall withdraw, amend or modify, or propose or
resolve to withdraw, amend or modify, in a manner adverse to the consummation
of the Subsequent Closing, the recommendation of the Company's Board of
Directors that the Company's stockholders vote in favor of the issuance of the
Subsequent Shares and Subsequent Warrants.
6.4 Board Observer. So long as WaldenVC II, L.P. ("Xxxxxx"),
together with entities in which Xxxxxx owns a majority interest, holds at
least 750,000 shares of Common Stock, whether held in the form of shares of
Common Stock or in the form of Warrants to purchase such shares of Common
Stock (such number to be proportionately adjusted for stock splits, stock
dividends, and similar events), the Company will permit one person appointed
by Xxxxxx (the "Observer"), who shall first be Xxxxxx Xxxxxxxxx, to attend all
meetings of the Company's Board of Directors and all committees thereof
(whether in person, telephonic or other) in a non-voting, observer capacity
and shall provide to Xx. Xxxxxxxxx, concurrently with the members of the Board
of Directors and in the same manner, notice of such meeting and a copy of all
materials provided to such members. The Observer shall enter into a
confidentiality agreement with the Company and agree to abide by the Company's
xxxxxxx xxxxxxx and other policies in effect from time to time.
6.5 Rescission of Initial Shares by Company in the Event of No
Required Stockholder Approval. Subject to compliance with applicable law, in
the event that the Required Stockholder Approval is not obtained within six
(6) months after the Company Stockholder's Meeting, the Investors may, at
their option, rescind the purchase of Shares and Warrants purchased hereby.
Upon written notice to the Company by any such Investor, the Company shall
purchase from such Investors: (i) the Initial Shares purchased by such
Investor at the Initial Closing, which the Company shall purchase for $3.40
per Share; and (ii) any Warrant Shares issued to such Investor upon the
exercise of an Initial Warrant, which the Company shall purchase for $3.40 per
Share; provided, however, that the Initial Warrant issued to such Investor at
the Initial Closing shall be terminated immediately upon such purchase and
sale. Subject to compliance with applicable law, the Company shall pay each
Investor for any such Initial Shares and Warrant Shares that such Investor
desires to be sold back to the Company within fifteen (15) days following
tender by such Investor of the certificates representing such Initial Shares
and Warrant Shares being sold back to the Company. In the event the
certificates representing such Initial Shares or Warrant Shares are lost or
destroyed, the Investor shall, in lieu of tendering such certificates, execute
a document reasonably acceptable to the Company providing that such
certificates have been lost or destroyed and a customary indemnity. Investors
acknowledge and agree that the rescission of Securities may be limited by
applicable law.
6.6 Sale of Securities. The Company shall use its reasonable
best efforts to sell all Securities authorized for sale and issuance pursuant
to this Agreement.
6.7 Further Action. Subject to the terms and conditions of this
Agreement and applicable law, each of the parties hereto shall use its
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement
as soon as reasonably practicable, including such actions or things as any
other party hereto may reasonably request in order to cause any of the
conditions to such other party's obligation to consummate such transactions
specified in Section 6 to be fully satisfied.
7. COVENANT OF THE INVESTORS
7.1 Restrictions on Short Sales and Hedging Transactions. From
the date thirty (30) days prior to the date hereof until the earlier of the
Subsequent Closing Date or the Termination Date, the Investor covenants,
severally and not jointly, that neither the Investor nor its agents,
representatives or affiliates shall, in any manner whatsoever, (a) effect,
directly or indirectly, any "short sales" (as defined in Rule 3b-3 of the
Exchange Act) of Common Stock or any securities convertible, exercisable or
exchangeable, directly or indirectly and with or without consideration, into
any Common Stock ("Convertible Securities") or (b) engage in any sale,
exchange, transfer, distribution, redemption or other transactions or use any
puts, calls or other derivatives directly involving any Common Stock or
Convertible Securities to reduce in any way Investor's risk of ownership of
the Securities. The Investor represents that it has complied and will comply
with this Section 7.1 for the 30 days preceding the date hereof through the
Closing Date.
7.2 Voting Restrictions. Pursuant to IM-4350-2 of the NASD
Manual, the Investor agrees not to vote the Shares for or against the approval
of the issuance of the Subsequent Shares and Subsequent Warrants.
8. INDEMNIFICATION
8.1 The Company agrees to indemnify each Investor from and
against the entirety of any Adverse Consequences (as defined below) such
Investor may suffer through and after the date of the claim for
indemnification as a result of a claim by any third party (a "Third Party
Claim") resulting from, and arising directly out of, this Agreement (which
shall include, without limitation, any and all actions by or brought on behalf
of the stockholders of the Company against an Investor) or the transactions
contemplated hereby, including but not limited to, the representations,
warranties and covenants made by the Company.
8.2 If any third party shall notify any Investor (the
"Indemnified Party") with respect to any Third Party Claim which may give rise
to a claim for indemnification by the Company (the "Indemnifying Party") under
this Section 8, then the Indemnified Party shall promptly notify the
Indemnifying Party thereof in writing; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) the Indemnifying Party thereby is prejudiced.
8.3 The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
satisfactory to the Indemnified Party so along as (i) the Indemnifying Party
notifies the Indemnified Party in writing within fifteen (15) days after the
Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party from and against the
entirety of any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by
the Third Party Claim; (ii) the Indemnifying Party provides the Indemnified
Party with evidence acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Third Party
Claim and fulfill its indemnifications obligations hereunder; and (iii) the
Indemnifying Party reasonably conducts the defense of the Third Party Claim
actively and diligently.
8.4 So long as the Indemnifying Party is conducting the defense
of the Third Party Claim in accordance with Section 8.3 above, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim; (ii) the Indemnified
Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld; and (iii) the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld.
8.5 In the event any of the conditions in Section 8.3 above is
or becomes unsatisfied, (i) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with respect
to, the Third Party Claim in any manner it may deem appropriate (and the
Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith; (ii) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the reasonable
and actual costs of defending against the Third Party Claim (including
reasonably attorneys' fees and expenses); and (iii) the Indemnifying Party
will remain responsible for any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim to the fullest extent provided in this Section
8.
8.6 Other Indemnification Provisions. The foregoing
indemnification provision are in addition to, and not in derogation of, any
statutory, equitable, or common law remedy any party may have with respect to
the transactions contemplated by this Agreement and any rights any party may
have under any other agreement, document or instrument, including, without
limitation, the Registration Rights Agreement.
8.7 For purposes of this Section 8, "Adverse Consequences"
shall mean all actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees, rulings,
damages, dues, penalties, fines, costs, amounts paid in settlement,
liabilities, obligations, taxes, liens, losses, expenses and fees, including
court costs and reasonably attorneys' fees and expenses, including any
damages, of whatever nature, resulting from a Third Party Claim.
8.8 The provisions of this Section 8 shall terminate two (2)
years from the Subsequent Closing Date.
9. MISCELLANEOUS.
9.1 Entire Agreement. This Agreement, the Registration Rights
Agreement, the Voting Agreement, the documents referred to herein and therein
and all Schedules and Exhibits hereto and thereto constitute the entire
agreement among the parties and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
9.2 Survival. The parties agree that, regardless of any
investigation made by the parties, the warranties, representations and
covenants of the Company and the Investors contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
each Closing.
9.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto and shall inure to the benefit of and be enforceable by
each person who shall be a holder of the Securities from time to time. Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
9.4 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware, without regard to conflicts of
laws principles thereof.
9.5 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
9.6 Amendment and Waiver. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investors
holding a majority in interest of the Shares and Warrant Shares issued and
issuable under this Agreement. Each Investor acknowledges and agrees that the
operation of this Section 9.6 may adversely affect an Investor's interest
herein without such Investor's consent. No such amendment shall be effective
to the extent any such amendment affects any rights specifically granted to a
particular Investor and not to the other Investors.
9.7 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) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or
(iv) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the Company at the address as set forth on the
signature page hereof, and to its counsel, Skadden, Arps, Slate, Xxxxxxx and
Xxxx LLP, at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx, Xxxxxxxxxx 00000,
facsimile number (000) 000-0000, attention: Xxxxxxx Xxxxx, and to Investor at
the address set forth on Schedule A or at such other address as the Company or
Investor may designate by ten (10) days advance written notice to the other
parties hereto.
9.8 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement or the
Registration Rights Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, and disbursements in addition to any other
relief to which such party may be entitled.
9.9 California Corporate Securities Law.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT
HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE
STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE
OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR
25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES
TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION
BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
9.10 Titles and Subtitles. The titles of the Sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
9.11 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.
9.12 Broker's Fees. Each party hereto represents and warrants
that no agent, broker, investment banker, person or firm acting on behalf of
or under the authority of such party hereto is or will be entitled to any
broker's or finder's fee or any other commission directly or indirectly in
connection with the transactions contemplated herein. Each party hereto
further agrees to indemnify each other party for any claims, losses or
expenses incurred by such other party as a result of the representation in
this Section being untrue.
9.13 Expenses. The Company and the Investors shall each bear
their respective expenses and legal fees incurred with respect to this
Agreement and the transactions contemplated hereby; provided, however, that as
soon as reasonably practicable after each of the Initial Closing and
Subsequent Closing, but in no event more than fifteen (15) days following the
receipt of an invoice to the Company, the Company will pay the reasonable and
documented actual hourly legal fees, expenses and disbursements of Xxxx Xxxx
Xxxx & Freidenrich LLP, counsel to the Investors, not to exceed an aggregate
of $30,000.
9.14 Termination. In the event that the Company's stockholders
do not approve the issuance and sale of the Subsequent Shares and Subsequent
Warrants at the Company Stockholder's Meeting, the obligation of the Company
to issue and sell the Subsequent Shares and Subsequent Warrants, and the
obligation of the Investors to purchase the Subsequent Shares and Subsequent
Warrants, shall immediately terminate without further action or notice (the
"Termination Date") as of the date and time immediately subsequent to the vote
of the Company's stockholders. The rights and obligations of the parties under
this Agreement, other than the obligation of the company to issue and sell the
Subsequent Shares and Subsequent Warrants and the obligation of the Investors
to purchase the Subsequent Shares and Subsequent Warrants, shall not terminate
on the Termination Date.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
NIKU CORPORATION
By:
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
Address: 000 Xxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
INVESTORS:
Xxxxx X. Xxxxxx Trust Xxxxxx Xxxxx, Revocable Trust
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Xxxxx family supporting Foundation Xxxxx-Xxxxxxxx, Inc.
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Xxxxxx Capital Partners Xxxxxx Investors
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Xxxxxx Management Co. Pension Fund Xxxxxx Management corporation
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Xxxxxx SBIC, L.P. WaldenVC II, L.P.
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Xxxxxx XX II-Side, L.P.
By:
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
INVESTORS:
Vector Capital II, L.P. Vector Member Fund II, L.P.
By: By:
-------------------------------------------- --------------------------------------------
Name: Name:
Title: Title:
Vector Entrepreneur Fund II, L.P.
By:
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
INVESTORS:
By:
--------------------------------------------
Name: Xxxx Xxxxxxxxx
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
INVESTORS:
By:
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
INVESTORS:
XXXXXX CAPITAL PARTNER II, L.P.
By:
--------------------------------------------
Name:
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
SCHEDULE A
SCHEDULE OF INVESTORS
SCHEDULE B
SCHEDULE OF EXCEPTIONS
EXHIBIT A
FORM OF WARRANT
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
VOTING AGREEMENT
EXHIBIT D
LEGAL OPINION
