SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
Securities Purchase Agreement (this "Agreement") is dated as of
October 27, 2009 (the "Closing
Date") between Telanetix, Inc., a Delaware corporation ("Seller"), and Xxxx Xxxxxxxx,
an individual ("Purchaser"), with respect to
the following facts:
A. Seller
owns all of the issued and outstanding membership interests (collectively, the
"Interests") of each of
(i) AVS Installation Limited Liability Company, a New Jersey limited liability
company ("AVS") and
Union Labor Force One Limited Liability Company, a New Jersey limited liability
company ("ULF" and
together with AVS, the "Companies").
B. Seller
wishes to sell to Purchaser, and Purchaser wishes to purchase from Seller, the
Interests, subject to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the covenants contained in this Agreement, and
intending to be legally bound, Seller and Purchaser agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
have the meanings set forth in this Section 1.1:
"Action" means any claim,
action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of
violation, proceeding, litigation, citation, summons, subpoena or investigation
of any nature, civil, criminal, administrative, regulatory or otherwise, whether
at law or in equity.
"Affiliate" means any Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such term is used in
and construed under Rule 405 promulgated under the Securities Act.
"Business Day" means Monday
through Friday, excluding any day of the year on which banks are required or
authorized to close in the State of Washington.
"Company" means each of AVS and
ULF.
"Governmental Entity" means any
foreign, federal, state, municipal or local government, governmental, regulatory
or administrative authority, agency, instrumentality or commission or any United
States court, tribunal, or judicial or arbitral body of any nature; or any
United States body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or
power of any nature.
"Law" means any United States
federal, state, municipal or local statute, law, ordinance, regulation, rule,
code, executive order, injunction, judgment, decree or other order of any
Governmental Entity.
"Losses" means losses, damages,
liabilities, deficiencies, Actions, judgments, interest, awards, penalties,
fines, costs or expenses of whatever kind, including reasonable attorneys' fees
and the cost of enforcing any right to indemnification hereunder and the cost of
pursuing any insurance providers; provided, however, that "Losses" shall not
include punitive damages, except in the case of fraud or to the extent actually
awarded to a Governmental Entity or other third party.
1
"Person" means an individual,
sole proprietorship, partnership, joint venture, trust, unincorporated
association, corporation, limited liability company, entity or Governmental
Entity.
"Post-Closing Tax
Period" means any taxable period beginning after the Closing Date
and, with respect to any taxable period beginning before and ending after the
Closing Date, the portion of such taxable period beginning after the Closing
Date.
"Post-Closing Taxes" means
Taxes of the Companies for any Post-Closing Tax Period.
"Pre-Closing Tax
Period" means any taxable period ending on or before the Closing
Date and, with respect to any taxable period beginning before and ending after
the Closing Date, the portion of such taxable period ending on and including the
Closing Date.
"Pre-Closing Taxes" means
Taxes of the Companies for any Pre-Closing Tax Period.
"Sales Taxes" means all
federal, state, local, foreign and other sales and use taxes, fees, assessments
or charges of any kind whatsoever related to sales made by either of the
Companies on or after October 1, 2009, together with any interest, additions or
penalties with respect thereto and any interest in respect of such additions or
penalties.
"Taxes" means, except for
Sales Taxes, all federal, state, local, foreign and other income, gross
receipts, sales, use, production, ad valorem, transfer, franchise, registration,
profits, license, lease, service, service use, withholding, payroll, employment,
unemployment, estimated, excise, severance, environmental, stamp, occupation,
premium, property (real or personal), real property gains, windfall profits,
customs, duties or other taxes, fees, assessments or charges of any kind
whatsoever, together with any interest, additions or penalties with respect
thereto and any interest in respect of such additions or penalties.
"Tax Return" means any
return, declaration, report, claim for refund, information return or statement
or other document relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
"Transaction Documents" means
this Agreement and the other agreements contemplated hereby.
ARTICLE
II
PURCHASE AND
SALE
2.1 Purchase &
Sale. Upon the terms and subject to the conditions set forth
herein, substantially concurrent with the execution and delivery of this
Agreement by the parties hereto, Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase from Seller, the Interests in exchange for $10.00
(the "Purchase Price")
and the execution and delivery of the other Transaction Documents.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
3.1 Representations and
Warranties of Seller. Seller hereby represents and warrant to
Purchaser as follows:
2
(a) Organization of
Seller. Seller is an entity duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to perform its obligations under this
Agreement.
(b) Organization of Each
Company. Each Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of New Jersey
and has full limited liability company power and authority to own, operate or
lease the properties and assets now owned, operated or leased by it and to carry
on its business as it has been and is currently conducted.
(c) Authorization. The
execution, delivery and performance by Seller of this Agreement and each other
Transaction Document to which it is a party and each of the transactions
contemplated hereby or thereby have been duly and validly authorized by Seller,
and no other corporate act or proceeding on the part of Seller, its board of
directors or its stockholders is necessary to authorize the execution, delivery
or performance by Seller of this Agreement or any Transaction Document to which
it is a party or the consummation of any of the transactions contemplated hereby
or thereby. This Agreement has been duly executed and delivered by
Seller and this Agreement constitutes, and the Transaction Documents upon
execution and delivery by Seller, will each constitute, a valid and binding
obligation of Seller, enforceable against Seller in accordance with their
respective terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or
hereafter in effect, relating to or limiting creditors' rights generally and
(ii) general principles of equity (whether considered in an action in equity or
at law).
(d) No
Conflict. The execution, delivery and performance by Seller of
this Agreement and the Transaction Documents to which it is a party and the
consummation of each of the transactions contemplated hereby or thereby will not
(i) violate or conflict with the certificate of incorporation, bylaws or other
organizational documents of Seller, (ii) violate, conflict with, result in any
material breach of, constitute a default under, result in the termination of,
result in the acceleration of any obligations under, result in a material change
in terms of, create in any party the right to accelerate, terminate, modify or
cancel, or require any consent or notice under, or create an event that, with
the giving of notice or the lapse of time, or both, would be a default under or
material breach of, any judgment, order, writ, injunction, decree or demand of
any Governmental Entity which materially affects the ability of Seller to
perform its obligations under this Agreement; and (iii) require any declaration,
filing or registration with, or authorization, consent or approval of, exemption
or other action by or notice to, any Governmental Entity or other Person under
the provisions of any Law.
(e) Legal
Proceedings. There is no action, claim, suit or proceeding
pending by or against Seller that challenges, or may have the effect of
preventing, delaying, making illegal or otherwise interfering with the execution
and delivery by Seller of this Agreement or any of the Transaction Documents to
which it is a party or the performance of Seller hereunder or
thereunder.
(f) Authorized
Capital. Neither of the Companies has a written operating
agreement. There are no outstanding options or warrants with respect to, or
privileges or rights to purchase or subscribe for, any membership interest of
either of the Companies, obligations or securities issued by the Companies
convertible into membership interests of either of the Companies, agreements
providing for or relating to any options, warrants, purchase rights, privileges,
convertible obligations, or securities to which Seller is a party, or any
agreements by Seller to issue, sell, or acquire any membership interests in
either of the Companies other than this Agreement. As of the date of
this Agreement, all of the membership interests in the Companies are held by
Seller. Neither of the Companies has any subsidiary.
(g) Preemptive and Other
Rights. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents.
3
(h) Brokers. There
are no claims or rights to brokerage commissions, finders fees or similar
compensation in connection with the transactions contemplated by this Agreement
based on any contract made or alleged to have been made by or on behalf of
Seller or any of its Affiliates, officers, employees or directors.
(i) Private
Placement. Assuming the accuracy of Purchaser's
representations and warranties set forth in Section 3.2, no registration under
the Securities Act is required for the offer and sale of the Interests by Seller
to Purchaser as contemplated hereby.
3.2 Representations and
Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller as follows:
(a) Authority. This
Agreement has been duly executed and delivered by Purchaser and this Agreement
constitutes, and the Transaction Documents upon execution and delivery by
Purchaser, will each constitute, a valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with their respective terms, except
as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect,
relating to or limiting creditors' rights generally and (ii) general principles
of equity (whether considered in an action in equity or at law).
(b) No
Conflict. The execution, delivery and performance by Purchaser
of this Agreement and the Transaction Documents to which it is a party and the
consummation of each of the transactions contemplated hereby or thereby will not
(i) violate, conflict with, result in any material breach of, constitute a
default under, result in the termination of, result in the acceleration of any
obligations under, result in a material change in terms of, create in any party
the right to accelerate, terminate, modify or cancel, or require any consent or
notice under, or create an event that, with the giving of notice or the lapse of
time, or both, would be a default under or material breach of, any judgment,
order, writ, injunction, decree or demand of any Governmental Entity which
materially affects the ability of Purchaser to perform its obligations under
this Agreement; and (ii) require any declaration, filing or registration with,
or authorization, consent or approval of, exemption or other action by or notice
to, any Governmental Entity or other Person under the provisions of any
Law.
(c) Legal
Proceedings. There is no action, claim, suit or proceeding
pending by or against Purchaser that challenges, or may have the effect of
preventing, delaying, making illegal or otherwise interfering with the execution
and delivery by Purchaser of this Agreement or any of the Transaction Documents
to which it is a party or the performance of Purchaser hereunder or
thereunder.
(d) No
Representations. Purchaser confirms that neither Seller nor
any of its authorized agents has made any representation or warranty to
Purchaser about the Companies or the Interests other than those set forth in
this Agreement, and that Purchaser has not relied upon any other representation
or warranty, express or implied, in connection with the transactions
contemplated by this Agreement. Purchaser acknowledges that Purchaser is fully
aware of the financial condition, operations and prospects of the
Companies.
(e) Own
Account. Purchaser (i) understands that the Interests are
"restricted securities" and have not been registered under the Securities Act or
any applicable state securities law (ii) is acquiring the Interests as principal
for its own account and not with a view to or for distributing or reselling such
Interests (within the meaning of Section 2(11) of the Securities Act) or any
part thereof in violation of the Securities Act or any applicable state
securities law, (iii) has no present intention of distributing any of such
Interests in violation of the Securities Act or any applicable state securities
law and (iv) has no direct or indirect arrangement or understandings with any
other Persons to distribute or regarding the distribution of such
Interests.
4
(f) Purchaser
Status. At the time Purchaser was offered the Interests, it
was, and at the date hereof it is, an "accredited investor" as defined in Rule
501(a) under the Securities Act.
(g) Residency. Purchaser's
principal residence is in the state set forth immediately below Purchaser's name
on the applicable signature page attached hereto.
(h) Experience of
Purchaser. Purchaser, either alone or together with its
representatives (who are unaffiliated with and who are not compensated by Seller
or any Affiliate of Seller and who are not selling agents of Seller), has such
knowledge, sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective investment
in the Interests, and has so evaluated the merits and risks of such
investment. Purchaser is able to bear the economic risk of an
investment in the Interests and, at the present time, is able to afford a
complete loss of such investment.
(i) Investment
Risks. Purchaser acknowledges and is aware that: (i) there are
substantial restrictions on the transferability of the Interests and (ii) the
Interests will not be, and such Purchaser does not have the right to require
that the Interests be, registered under the Securities Act.
(j) Opportunity to Ask
Questions. During the course of the transaction contemplated
by this Agreement, and before acquiring the Interests, Purchaser has had the
opportunity (i) to be provided with financial and other written information
about the Companies, and (ii) to ask questions and receive answers concerning
the business of the Companies and its finances. Purchaser has, to the extent it
has availed itself of this opportunity, received satisfactory information and
answers.
(k) General Solicitation.
Purchaser is not purchasing the Interests as a result of any advertisement,
article, notice or other communication regarding the Interests published in any
newspaper, magazine or similar media or broadcast over television or radio or
presented at any seminar or meeting or, to its knowledge, in any other form of
general solicitation or general advertisement.
(l) Brokers and
Finders. No Person will have, as a result of the transactions
contemplated by this Agreement, any valid right, interest or claim against or
upon Seller or such Purchaser for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or on
behalf of such Purchaser.
(m) Reliance by
Seller. Purchaser understands that the foregoing
representations and warranties are to be relied upon by Seller as a basis for
exemption of the sale of the Interests under the Securities Act and under the
securities laws of all applicable states and for other purposes.
ARTICLE
IV
OTHER
AGREEMENTS
4.1 Vendor Payments. On
or before January 15, 2010, Seller shall pay up to $60,000 directly to one or
more creditors of either of the Companies, as directed by Purchaser, for
services provided by such creditors directly to one of the Companies.
Notwithstanding the foregoing, Seller may elect satisfy its obligation under
this Section 4.1 by depositing $60,000 into a bank account of one of the
Companies as directed by Purchaser.
5
4.2 Equipment Returned.
Within ninety days of the date hereof, Purchaser shall cause the equipment
identified on Exhibit
A to be returned to such location as Seller may instruct Purchaser in
writing. Purchaser and Seller agree and acknowledge that the
equipment identified on Exhibit A is owned by and property of Seller or one of
its subsidiaries other than one of the Companies.
4.3 Assigned
Agreements. Seller hereby assigns, transfers and conveys to
Purchaser, and Purchaser hereby accepts, all of Seller's rights, title,
interest, liabilities and obligations in, under and to the agreements identified
on Exhibit B
(the "Assigned
Agreements"). From and after the date hereof, Purchaser agrees to use
reasonable commercial efforts to cause the Companies to perform the obligations
of Seller and/or the Companies arising out of or relating to the Assigned
Agreements in good faith and with same or better standard of care than such
obligations were performed before the date hereof. Purchaser agrees
that it shall cause to be paid to Seller $10,000 from the revenue that Purchaser
receives in respect of the Assigned Agreements on and after the date hereof and
Seller shall be entitled to all other proceeds.
4.4 Publicity. Seller
shall have sole control over any press release, public announcement, statement
or acknowledgment with respect to this Agreement and the consummation of the
transactions contemplated herein.
4.5 Further Assurances.
Following the date hereof, each of the parties hereto shall, and shall cause
their respective Affiliates to, execute and deliver such additional documents,
instruments, conveyances and assurances and take such further actions as may be
reasonably required to carry out the provisions hereof and give effect to the
transactions contemplated by this Agreement.
ARTICLE
V
TAX
MATTERS
5.1 Tax
Covenants.
(a) Without
the prior written consent of Purchaser, Seller shall not, to the extent it may
affect, or relate to the Companies, make, change or rescind any Tax election,
amend any Tax Return or take any position on any Tax Return, take any action,
omit to take any action or enter into any other transaction that would have the
effect of increasing the Tax liability or reducing any Tax asset of Purchaser or
the Companies in respect of any Post-Closing Tax Period.
(b) All
transfer, documentary, sales, use, stamp, registration, value added and other
such Taxes and fees (including any penalties and interest) incurred in
connection with this Agreement and the other Transaction Documents shall be
borne and paid equally by Seller and Purchaser when due. Seller
shall, at its own expense, timely file any Tax Return or other document with
respect to such Taxes or fees (and Purchaser shall cooperate with respect
thereto as necessary).
(c) Seller
shall prepare, or cause to be prepared, all Tax Returns required to be filed by
the Companies after the Closing Date with respect to a Pre-Closing Tax Period
other than Tax Returns for Sales Taxes. Any such Tax Return shall be
prepared in a manner consistent with past practice (unless otherwise required by
Law) and without a change of any election or any accounting method and shall be
submitted by Seller to Purchaser (together with schedules, statements and, to
the extent requested by Seller, supporting documentation) at least 45 days prior
to the due date (including extensions) of such Tax Return. If
Purchaser objects to any item on any such Tax Return, it shall, within 15 days
after delivery of such Tax Return, notify Seller in writing that it so objects,
specifying any such item and stating the factual or legal basis for any such
objection. If a notice of objection shall be duly delivered,
Purchaser and Seller shall negotiate in good faith and use their reasonable best
efforts to resolve such items. If Purchaser and Seller are unable to
reach such agreement within 15 days after receipt by Seller of such notice, the
disputed items shall be resolved by a nationally recognized accounting firm
selected by Seller and reasonably acceptable to Purchaser (the "Accounting Referee") and any
determination by the Accounting Referee shall be final. The Accounting Referee
shall resolve any disputed items within 20 days of having the item referred to
it pursuant to such procedures as it may require. If the Accounting Referee is
unable to resolve any disputed items before the due date for such Tax Return,
the Tax Return shall be filed as prepared by Seller objections and then amended
to reflect the Accounting Referee's resolution. The costs, fees and
expenses of the Accounting Referee shall be borne equally by Purchaser and
Seller. The preparation and filing of any Tax Return of the Companies
that does not relate to a Pre-Closing Tax Period and any Tax Return for Sales
Taxes shall be exclusively within the control of Purchaser, and Purchaser shall
be solely responsible for the Taxes and Sales Taxes in respect of such Tax
Returns.
6
5.2 Termination of Existing Tax
Sharing Agreements. Any and all existing Tax sharing agreements (whether
written or not) binding upon the Companies shall be terminated as of the Closing
Date. After such date neither of the Companies, Seller nor any of
Seller's Affiliates and their respective representatives shall have any further
rights or liabilities thereunder.
5.3 Tax Indemnification.
Seller shall indemnify the Companies and Purchaser, and hold them harmless from
and against any (a) Loss attributable to any breach or violation of, or failure
to fully perform, any covenant, agreement, undertaking or obligation in this
ARTICLE V; (b) all Taxes of either of the Companies or relating to the business
of the Companies for all Pre-Closing Tax Periods; (c) all Taxes of any member of
an affiliated, consolidated, combined or unitary group of which either of the
Companies is or was a member on or prior to the Closing Date by reason of a
liability under Treasury Regulation Section 1.1502-6 or any comparable
provisions of foreign, state or local Law; and (d) any and all Taxes of any
Person imposed on either of the Companies arising under the principles of
transferee or successor liability or by contract, relating to an event or
transaction occurring before the Closing Date. In each of the above cases,
together with any out-of-pocket fees and expenses (including attorneys' and
accountants' fees) incurred in connection therewith. Seller shall reimburse
Purchaser for any Taxes of the Companies that are the responsibility of Seller
pursuant to this Section 5.3 within 15 Business Days after payment of such Taxes
by Purchaser or the Company.
5.4 Straddle Period. In
the case of Taxes that are payable with respect to a taxable period that begins
before and ends after the Closing Date (each such period, a "Straddle Period"), the portion
of any such Taxes that are treated as Pre-Closing Taxes for purposes of this
Agreement shall be:
(a) in the
case of Taxes based upon, or related to, income or receipts, deemed equal to the
amount which would be payable if the taxable year ended with the Closing Date;
and
(b) in the
case of other Taxes, deemed to be the amount of such Taxes for the entire period
multiplied by a fraction the numerator of which is the number of days in the
period ending on the Closing Date and the denominator of which is the number of
days in the entire period.
5.5 Contests. Purchaser
agrees to give written notice to Seller of the receipt of any written notice by
either of the Companies or Purchaser that involves the assertion of any claim,
or the commencement of any Action, in respect of which an indemnity may be
sought by Purchaser pursuant to this ARTICLE V (a "Tax
Claim"). Purchaser shall control the contest or resolution of
any Tax Claim; provided, however, that Purchaser shall obtain the prior written
consent of Seller (which consent shall not be unreasonably withheld or delayed)
before entering into any settlement of a claim or ceasing to defend such claim;
and, provided further, that Seller shall be entitled to participate in the
defense of such claim and to employ counsel of its choice for such purpose, the
fees and expenses of which separate counsel shall be borne solely by
Seller.
7
5.6 Cooperation and Exchange of
Information. Seller and Purchaser shall provide each other with such
cooperation and information as either of them reasonably may request of the
other in filing any Tax Return pursuant to this ARTICLE V or in connection with
any audit or other proceeding in respect of Taxes of either of the Companies.
Such cooperation and information shall include providing copies of relevant Tax
Returns or portions thereof, together with accompanying schedules, related work
papers and documents relating to rulings or other determinations by tax
authorities. Each of Seller and Purchaser shall retain all Tax Returns,
schedules and work papers, records and other documents in its possession
relating to Tax matters of the Companies for any taxable period beginning before
the Closing Date until the expiration of the statute of limitations of the
taxable periods to which such Tax Returns and other documents relate, without
regard to extensions except to the extent notified by the other party in writing
of such extensions for the respective Tax periods. Prior to transferring,
destroying or discarding any Tax Returns, schedules and work papers, records and
other documents in its possession relating to Tax matters of the Companies for
any taxable period beginning before the Closing Date, Seller or Purchaser (as
the case may be) shall provide the other party with reasonable written notice
and offer the other party the opportunity to take custody of such
materials.
5.7 Tax Treatment of
Indemnification Payments. Any indemnification payments pursuant to this
ARTICLE V shall be treated as an adjustment to the Purchase Price by the parties
for Tax purposes, unless otherwise required by Law.
5.8 Survival.
Notwithstanding anything in this Agreement to the contrary, the provisions of
this ARTICLE V shall survive for the full period of all applicable statutes of
limitations (giving effect to any waiver, mitigation or extension
thereof).
5.9 Overlap. To the
extent that any obligation or responsibility pursuant to ARTICLE VI may overlap
with an obligation or responsibility pursuant to this ARTICLE V, the provisions
of this ARTICLE V shall govern.
ARTICLE
VI
INDEMNIFICATION
6.1 Survival. Subject to
the limitations and other provisions of this Agreement, the representations and
warranties contained herein shall survive the date hereof and shall remain in
full force and effect until the date that is one year from the Closing Date. All
covenants and agreements of the parties contained herein (other than any
covenants or agreements contained in ARTICLE V which are subject to ARTICLE V)
shall survive the date hereof indefinitely or for the period explicitly
specified therein. Notwithstanding the foregoing, any claims asserted in good
faith with reasonable specificity (to the extent known at such time) and in
writing by notice from the non-breaching party to the breaching party prior to
the expiration date of the applicable survival period shall not thereafter be
barred by the expiration of the relevant representation or warranty and such
claims shall survive until finally resolved.
6.2 Indemnification By
Seller. Subject to the other terms and conditions of this ARTICLE VI,
Seller shall indemnify and defend each of Purchaser and its Affiliates
(including the Company) and their respective representatives (collectively, the
"Purchaser Indemnitees")
against, and shall hold each of them harmless from and against, and shall pay
and reimburse each of them for, any and all Losses incurred or sustained by, or
imposed upon, the Purchaser Indemnitees based upon, arising out of, with respect
to or by reason of:
(a) any
inaccuracy in or breach of any of the representations or warranties of Seller
contained in this Agreement or in any certificate or instrument delivered by or
on behalf of Seller pursuant to this Agreement, as of the date such
representation or warranty was made or as if such representation or warranty was
made on and as of the Closing Date (except for representations and warranties
that expressly relate to a specified date, the inaccuracy in or breach of which
will be determined with reference to such specified date); or
8
(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be
performed by Seller pursuant to this Agreement (other than any breach or
violation of, or failure to fully perform, any covenant, agreement, undertaking
or obligation in ARTICLE V, it being understood that the sole remedy for any
such breach, violation or failure shall be pursuant to ARTICLE V).
6.3 Indemnification By
Purchaser. Subject to the other terms and conditions of this ARTICLE VI,
Purchaser shall indemnify and defend each of Seller and its Affiliates and their
respective Representatives (collectively, the "Seller Indemnitees") against,
and shall hold each of them harmless from and against, and shall pay and
reimburse each of them for, any and all Losses incurred or sustained by, or
imposed upon, the Seller Indemnitees based upon, arising out of, with respect to
or by reason of:
(a) any
inaccuracy in or breach of any of the representations or warranties of Purchaser
contained in this Agreement or in any certificate or instrument delivered by or
on behalf of Purchaser pursuant to this Agreement, as of the date such
representation or warranty was made or as if such representation or warranty was
made on and as of the Closing Date (except for representations and warranties
that expressly relate to a specified date, the inaccuracy in or breach of which
will be determined with reference to such specified date); or
(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be
performed by Purchaser pursuant to this Agreement (other than ARTICLE V, it
being understood that the sole remedy for any such breach thereof shall be
pursuant to ARTICLE V).
6.4 Indemnification
Procedures. The party making a claim under this ARTICLE VI is referred to
as the "Indemnified
Party", and the party against whom such claims are asserted under this
Article VIII is referred to as the "Indemnifying
Party".
(a) Third Party Claims.
If any Indemnified Party receives notice of the assertion or commencement of any
Action made or brought by any Person who is not a party to this Agreement or an
Affiliate of a party to this Agreement or a representative of the foregoing (a
"Third Party Claim")
against such Indemnified Party with respect to which the Indemnifying Party is
obligated to provide indemnification under this Agreement, the Indemnified Party
shall give the Indemnifying Party reasonably prompt written notice thereof, but
in any event not later than 30 calendar days after receipt of such notice of
such Third Party Claim. The failure to give such prompt written notice shall
not, however, relieve the Indemnifying Party of its indemnification obligations,
except and only to the extent that the Indemnifying Party forfeits rights or
defenses by reason of such failure. Such notice by the Indemnified Party shall
describe the Third Party Claim in reasonable detail, shall include copies of all
material written evidence thereof and shall indicate the estimated amount, if
reasonably practicable, of the Loss that has been or may be sustained by the
Indemnified Party. The Indemnifying Party shall have the right to participate
in, or by giving written notice to the Indemnified Party, to assume the defense
of any Third Party Claim at the Indemnifying Party's expense and by the
Indemnifying Party's own counsel, and the Indemnified Party shall cooperate in
good faith in such defense. In the event that the Indemnifying Party assumes the
defense of any Third Party Claim, subject to Section 6.4(b), it shall have the
right to take such action as it deems necessary to avoid, dispute, defend,
appeal or make counterclaims pertaining to any such Third Party Claim in the
name and on behalf of the Indemnified Party. The Indemnified Party shall have
the right to participate in the defense of any Third Party Claim with counsel
selected by it subject to the Indemnifying Party's right to control the defense
thereof. The fees and disbursements of such counsel shall be at the expense of
the Indemnified Party, provided, that if in the reasonable opinion of counsel to
the Indemnified Party, (A) there are legal defenses available to an Indemnified
Party that are different from or additional to those available to the
Indemnifying Party; or (B) there exists a conflict of interest between the
Indemnifying Party and the Indemnified Party that cannot be waived, the
Indemnifying Party shall be liable for the reasonable fees and expenses of
counsel to the Indemnified Party in each jurisdiction for which the Indemnified
Party determines counsel is required. If the Indemnifying Party elects not to
compromise or defend such Third Party Claim, fails to promptly notify the
Indemnified Party in writing of its election to defend as provided in this
Agreement, or fails to diligently prosecute the defense of such Third Party
Claim, the Indemnified Party may, subject to Section 6.4(b), pay, compromise,
defend such Third Party Claim and seek indemnification for any and all Losses
based upon, arising from or relating to such Third Party Claim. Seller and
Purchaser shall cooperate with each other in all reasonable respects in
connection with the defense of any Third Party Claim, including making available
(subject to any confidentiality provisions thereof) records relating to such
Third Party Claim and furnishing, without expense (other than reimbursement of
actual out-of-pocket expenses) to the defending party, management employees of
the non-defending party as may be reasonably necessary for the preparation of
the defense of such Third Party Claim.
9
(b) Settlement of Third Party
Claims. Notwithstanding any other provision of this Agreement, the
Indemnifying Party shall not enter into settlement of any Third Party Claim
without the prior written consent of the Indemnified Party, except as provided
in this Section 6.4(b). If a firm offer is made to settle a Third Party Claim
without leading to liability or the creation of a financial or other obligation
on the part of the Indemnified Party and provides, in customary form, for the
unconditional release of each Indemnified Party from all liabilities and
obligations in connection with such Third Party Claim and the Indemnifying Party
desires to accept and agree to such offer, the Indemnifying Party shall give
written notice to that effect to the Indemnified Party. If the Indemnified Party
fails to consent to such firm offer within 10 days after its receipt of such
notice, the Indemnified Party may continue to contest or defend such Third Party
Claim and in such event, the maximum liability of the Indemnifying Party as to
such Third Party Claim shall not exceed the amount of such settlement offer. If
the Indemnified Party fails to consent to such firm offer and also fails to
assume defense of such Third Party Claim, the Indemnifying Party may settle the
Third Party Claim upon the terms set forth in such firm offer to settle such
Third Party Claim. If the Indemnified Party has assumed the defense pursuant to
Section 6.4(a), it shall not agree to any settlement without the written consent
of the Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).
(c) Direct Claims. Any
Action by an Indemnified Party on account of a Loss which does not result from a
Third Party Claim (a "Direct
Claim") shall be asserted by the Indemnified Party giving the
Indemnifying Party reasonably prompt written notice thereof, but in any event
not later than 30 days after the Indemnified Party becomes aware of such Direct
Claim. The failure to give such prompt written notice shall not, however,
relieve the Indemnifying Party of its indemnification obligations, except and
only to the extent that the Indemnifying Party forfeits rights or defenses by
reason of such failure. Such notice by the Indemnified Party shall describe the
Direct Claim in reasonable detail, shall include copies of all material written
evidence thereof and shall indicate the estimated amount, if reasonably
practicable, of the Loss that has been or may be sustained by the Indemnified
Party. The Indemnifying Party shall have 30 days after its receipt of such
notice to respond in writing to such Direct Claim. The Indemnified Party shall
allow the Indemnifying Party and its professional advisors to investigate the
matter or circumstance alleged to give rise to the Direct Claim, and whether and
to what extent any amount is payable in respect of the Direct Claim and the
Indemnified Party shall assist the Indemnifying Party's investigation by giving
such information and assistance (including access to the Company's premises and
personnel and the right to examine and copy any accounts, documents or records)
as the Indemnifying Party or any of its professional advisors may reasonably
request. If the Indemnifying Party does not so respond within such 30 day
period, the Indemnifying Party shall be deemed to have rejected such claim, in
which case the Indemnified Party shall be free to pursue such remedies as may be
available to the Indemnified Party on the terms and subject to the provisions of
this Agreement.
10
(d) Tax Claims.
Notwithstanding any other provision of this Agreement, the control of any claim,
assertion, event or proceeding in respect of Taxes of the Company (including any
breach or violation of or failure to fully perform any covenant, agreement,
undertaking or obligation in ARTICLE V) shall be governed exclusively
by ARTICLE V.
6.5 Payments. Once a Loss
is agreed to by the Indemnifying Party or finally adjudicated to be payable
pursuant to this ARTICLE VI, the Indemnifying Party shall satisfy its
obligations within 15 Business Days of such final, non-appealable adjudication
by wire transfer of immediately available funds. The parties hereto agree that
should an Indemnifying Party not make full payment of any such obligations
within such 15 Business Day period, any amount payable shall accrue interest
from and including the date of agreement of the Indemnifying Party or final,
non-appealable adjudication to and including the date such payment has been made
at a rate per annum equal to 10%. Such interest shall be calculated daily on the
basis of a 365 day year and the actual number of days elapsed.
6.6 Tax Treatment of
Indemnification Payments. All indemnification payments made under this
Agreement shall be treated by the parties as an adjustment to the Purchase Price
for Tax purposes, unless otherwise required by Law.
6.7 Exclusive Remedies.
The parties acknowledge and agree that their sole and exclusive remedy with
respect to any and all claims (other than claims arising from fraud, criminal
activity or willful misconduct on the part of a party hereto in connection with
the transactions contemplated by this Agreement) for any breach of any
representation, warranty, covenant, agreement or obligation set forth herein or
otherwise relating to the subject matter of this Agreement, shall be pursuant to
the indemnification provisions set forth in ARTICLE V and this ARTICLE VI. In
furtherance of the foregoing, each party hereby waives, to the fullest extent
permitted under Law, any and all rights, claims and causes of action for any
breach of any representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this Agreement it
may have against the other parties hereto and their Affiliates and each of their
respective representatives arising under or based upon any Law, except pursuant
to the indemnification provisions set forth in ARTICLE V and this ARTICLE VI.
Nothing in this Section 6.7 shall limit any Person's right to seek and obtain
any equitable relief to which any Person shall be entitled or to seek any remedy
on account of any Person's fraudulent, criminal or intentional
misconduct.
ARTICLE
VII
MISCELLANEOUS
7.1 Fees and
Expenses. Each party shall pay 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. Seller shall pay all
transfer agent fees, stamp taxes and other taxes and duties levied in connection
with the delivery of any Interests to Purchaser.
7.2 Entire
Agreement. This Agreement together with its exhibits and
schedules contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into this Agreement and its exhibits and
schedules.
11
7.3 Notices. All
notices or other communications which are required or permitted hereunder shall
be in writing and shall be sufficiently given if (a) delivered personally or (b)
sent by registered or certified mail, postage prepaid, or (c) sent by overnight
courier with a nationally recognized courier, or (d) sent via facsimile
confirmed in writing in any of the foregoing manners, as set forth on the
signature pages attached hereto if delivered to Purchaser, or as follows if
delivered to Seller:
Telanetix,
Inc.
00000 XX
0xx Xxxxxx, Xxxxx 000
Xxxxxxxx
XX 00000
Attention: Xxxx
Xxxxx, Chief Financial Officer
Fax: 000-000-0000
If sent
by mail, notice shall be considered delivered five Business Days after the date
of mailing, and if sent by any other means set forth above, notice shall be
considered delivered upon receipt thereof. Any party may by notice to
the other parties change the address or facsimile number to which notice or
other communications to it are to be delivered or mailed.
7.4 Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument signed, in the
case of an amendment, by Seller and Purchaser, or in the case of a waiver, by
the party against whom enforcement of any such waived provision is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right.
7.5 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
7.6 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns (including,
without limitation, by merger, share exchange or other similar corporate
reorganization or similar transaction).
7.7 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
7.8 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Washington, without regard to the principles of conflicts of law
thereof.
7.9 Counterparts. This
Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. Facsimile
and PDF signatures shall be treated as if they were originals.
7.10 Severability. If
any term or provision of this Agreement or the application thereof to any
circumstance shall, in any jurisdiction, be invalid or unenforceable, such term
or provision shall be ineffective as to such jurisdiction to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
such term or provision in any other jurisdiction, the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or
enforceable.
12
7.11 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of Purchaser and Seller will be
entitled to specific performance under this Agreement. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agrees to waive and not to assert in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
7.12 Attorney's
Fees. In any proceeding arising out of this Agreement,
including with respect to any instrument, document or agreement made under or in
connection with this Agreement, the prevailing party shall be entitled to
recover its costs and actual attorneys' fees. As used in this
Agreement, "actual attorneys' fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matters involved,
calculated on the basis of the usual hourly fees charged by the attorneys
performing such services.
7.13 Construction. This
Agreement has been negotiated by the parties and is to be interpreted according
to its fair meaning as if the parties had prepared it together and not strictly
for or against any party. For purposes of this Agreement, (a) the
words "include," "includes" and "including" shall be deemed to be followed by
the words "without limitation"; (b) the word "or" is not exclusive; and (c) the
words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this
Agreement as a whole. Currency amounts referenced herein, unless
otherwise specified, are in U.S. dollars. Unless the context otherwise requires,
references herein: (i) to the masculine, feminine or neuter gender includes
others (ii) to articles, sections, schedules and exhibits are to articles,
sections, schedules and exhibits of or to this Agreement; (iii) to an agreement,
instrument or other document means such agreement, instrument or other document
as amended, supplemented and modified from time to time to the extent permitted
by the provisions thereof and (iv) to a statute means such statute as amended
from time to time and includes any successor legislation thereto and any
regulations promulgated thereunder.
[Signature
Pages Follow]
13
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
Telanetix,
Inc., a Delaware corporation
By:
/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title: Chief Executive
Officer
Xxxx
Xxxxxxxx
/s/
Xxxxxxx
Xxxxxxxx
Address:
0 Xxxxx
Xxxx
Xxxxxxx,
XX
00000
Fax:
[Signature
Page to Securities Purchase Agreement]
14
Exhibit
A
Equipment
|
Item
|
Description
|
Serial
#
|
|
18 Inter-Tel
Phones
|
||
|
Cisco
Switches model WS-C2960-24PC-L
|
FOC1229Z281
|
|
|
Cisco
Switches model WS-C2960-24PC-L
|
FOC1229Z288
|
|
|
Juniper
Netscreen SSG-5
|
Firewall/Router
|
162072008000488
|
|
2
Dell 210L
|
||
|
1
APC 2200 UPS
|
Exhibit
B
Assigned
Agreements
|
Description
|
|
|
1.
|
Agreement
dated October 14, 2009 among Telanetix, Inc. and Xxxxxxx
Brothers.
|
