EXHIBIT 1
COMPANY RIGHTS AGREEMENT
8
JOINT FILING AGREEMENT
The undersigned hereby agree that the attached statement on Schedule 13D is
filed on behalf of each of them.
October 8, 1996
Xxxxxx Xxxx
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Xxxxxx Xxxx
FWB SOFTWARE, INC.
By: Xxxxxx Xxxx
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Its: President
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FWB SOFTWARE, LLC
By: FWB Software, Inc., its manager
By: Xxxxxx Xxxx
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Its: President
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COMPANY RIGHTS AGREEMENT
THIS COMPANY RIGHTS AGREEMENT (the "AGREEMENT") is made to be
effective July 1, 1996 (the "CLOSING DATE"), by and between StreamLogic
Corporation, a Delaware corporation ("STREAMLOGIC"), and FWB Software, LLC, a
California limited liability company (the "COMPANY").
R E C I T A L S
WHEREAS, the Company is acquiring 1,256,123 shares of the common stock
of StreamLogic (the "COMMON STOCK") and in connection therewith StreamLogic
desires to grant the Company the rights set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein, and subject to the terms and conditions hereinafter set forth, the
parties hereby agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF STREAMLOGIC
Except as set forth otherwise in SCHEDULE 1.0 hereto, StreamLogic
represents and warrants as of the Closing Date that:
1.1 ORGANIZATION AND STANDING OF STREAMLOGIC. StreamLogic is a duly
organized and validly existing corporation in good standing under the laws of
the State of Delaware and has the corporate power and authority to enter into
and perform this Agreement and to consummate the transaction contemplated
hereby.
1.2 CORPORATE ACTION. StreamLogic has the corporate power and will,
prior to the Closing Date, have taken all necessary corporate action required to
authorize, execute, deliver and perform this Agreement and any other agreements
and instruments executed in connection herewith and therewith, and to issue,
sell and deliver the Common Stock. When executed and delivered by StreamLogic,
this Agreement and any other agreement and instrument executed in connection
herewith and therewith will constitute the valid and binding obligations of
StreamLogic, enforceable in accordance with their terms.
1.3 GOVERNMENTAL APPROVALS. Except for the filings to be made, if
any, to comply with exemptions from registration or qualification under federal
and state securities laws, no authorization, consent, approval, license,
exemption of or filing or registration with any court or governmental agency or
instrumentality is necessary for the offer, issuance, sale, execution or
delivery by StreamLogic, or for the performance by it of its obligations under,
this Agreement.
1.4 LITIGATION. There is no litigation or governmental proceeding or
investigation pending, or, to StreamLogic's knowledge, threatened against
StreamLogic affecting any of its properties or assets that, if decided adversely
to StreamLogic, will result in any material adverse change in the business,
operations, affairs, prospects or conditions of StreamLogic or that, if decided
adversely to StreamLogic, will call into question the validity of this
Agreement, nor, to StreamLogic's knowledge, has there occurred any event or does
there exist any condition on the basis of which any litigation, proceeding or
investigation might properly be instituted.
1.5 FILED REPORTS. The common stock of StreamLogic is registered
under Section 12 of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and quoted on the Nasdaq Stock Market. StreamLogic has
delivered to the Company copies of StreamLogic's (a) Annual Report on Form 10-K
for the fiscal year ended March 29, 1996 (the "FORM 10-K REPORT") as filed with
the Securities and Exchange Commission (the "COMMISSION") and (b) all proxy
statements relating to StreamLogic's meetings of stockholders (whether annual or
special) during 1996 as filed with the Commission. StreamLogic has made
available to the Company upon its request all other reports, registration
statements and other documents filed by StreamLogic with the Commission under
the Exchange Act and the Securities Act of 1933, as amended (the "SECURITIES
ACT"), for the past three fiscal years. All such documents described in the
first two sentences of this Section 1.5 are collectively referred to as
"STREAMLOGIC'S FILED REPORTS". StreamLogic has during the last three fiscal
years timely filed all reports, registration statements and other documents
(including StreamLogic's Filed Reports) required to be filed with the Commission
under the rules and regulations of the Commission, and all of StreamLogic's
Filed Reports complied as to form with the Securities Act or the Exchange Act,
as the case may be. As of their respective date, StreamLogic's Filed Reports
(including any exhibits or schedules thereto or documents incorporated therein
by reference) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
1.6 SECURITIES ACT OF 1933. StreamLogic has complied and will comply
with all applicable federal or state securities laws in connection with the
issuance and sale of the Common Stock to the Company.
1.7 NO BROKERS OR FINDERS. StreamLogic owes no commission, fee or
other compensation to any individual, corporation, partnership, joint venture,
trust, or unincorporated organization or other entity (each of which is
hereinafter referred to as a "PERSON") as a finder or broker as a result of the
transactions contemplated by this Agreement.
1.8 CAPITALIZATION; STATUS OF CAPITAL STOCK. The authorized capital
stock of StreamLogic is as set forth on StreamLogic's Filed Reports. All of the
issued and outstanding shares of capital stock of StreamLogic as of March 29,
1996 are set forth on the Form 10-K Report. All of the outstanding shares of
capital stock of StreamLogic have been duly authorized, are validly issued and
are fully paid and nonassessable, and no holder thereof is entitled to
preemptive rights. Between March 29, 1996 and the Closing Date, there has been
no material change in the outstanding capital stock of StreamLogic. Except as
set forth in StreamLogic's Filed Reports, there are no options, warrants or
rights to purchase shares of its capital stock or other securities authorized,
issued or outstanding, nor is StreamLogic obligated in any manner to issue
shares of its capital stock or other securities.
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1.9 ABSENCE OF CHANGES. Since March 29, 1996, no event has occurred
or failed to occur that would be required to be disclosed in the footnotes of
StreamLogic's financial statements for such statements to be prepared in
accordance with generally accepted accounting principles, and to the best
knowledge of StreamLogic, there has been no other event or condition of any
character specifically relating to StreamLogic which specifically pertains to
and materially adversely affects its business, properties or condition,
financial or otherwise.
SECTION 2. REGISTRATION RIGHTS
2.1 REGISTRATION.
(a) No later than forty-five (45) days after the Closing Date,
StreamLogic shall prepare and file an S-3 registration statement with the
Securities and Exchange Commission (the "COMMISSION") under the Securities
Act to register the resale of the Common Stock by the Company (the
"REGISTRATION STATEMENT") and shall use its reasonable best efforts,
including the filing of one or more subsequent registration statements or
amendments or supplements to the Registration Statement, to obtain
effectiveness of the Registration Statement under the Securities Act.
(b) StreamLogic shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and the Company shall pay all Selling Expenses (as defined
below) and other expenses that are not Registration Expenses relating to
the Common Stock resold by the Company. "REGISTRATION EXPENSES" shall mean
all expenses, except for Selling Expenses, incurred by StreamLogic in
complying with the registration provisions herein described, including,
without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for
StreamLogic, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration. "SELLING
EXPENSES" shall mean all selling commissions, underwriting fees and stock
transfer taxes applicable to the Common Stock, and all other expenses
incurred by the Company or any transferee of the Company in connection with
sales of the Common Stock.
(c) StreamLogic shall use its best efforts to: (i) keep such
Registration Statement effective until the earlier of (A) the first
anniversary of the effectiveness of the Registration Statement plus any
"blackout" periods imposed during such year, provided, that the Company
shall use its best efforts to sell the Common Stock within the first one
hundred eighty (180) days following the effectiveness of the Registration
Statement plus any "blackout" periods imposed during such 180-day period
and any periods during which StreamLogic's Common Stock is not listed on
either the Nasdaq Stock Market or any national securities exchange,
(B) such date as all of the Common Stock have been resold, and (C) such
date as all of the shares of Common Stock may be resold under Rule 144
during a three month period (collectively, the "Registration Process");
(ii) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the prospectus used in connection with
the Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Common Stock covered by the Registration Statement; (iii) furnish such
number of prospectuses and other documents incident thereto, including any
amendment of, or
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supplement to, the prospectus as the Company from time to time may
reasonably request; (iv) cause all Common Stock registered as described
herein to be listed on each securities exchange and quoted on each
quotation service on which similar securities issued by StreamLogic are
then listed or quoted; (v) provide a transfer agent and registrar for all
Common Stock registered pursuant to the Registration Statement and a CUSIP
number for all such Common Stock; (vi) otherwise use its best efforts to
comply with all applicable rules and regulations of the Commission; and
(vii) file the documents required of StreamLogic and otherwise use its
reasonable best efforts to maintain requisite blue sky clearance in all
United States jurisdictions specified in writing by the Company; PROVIDED,
HOWEVER, that StreamLogic shall not be required to qualify to do business
or consent to service of process in any state in which it is not now so
qualified or has not so consented. StreamLogic may impose "blackouts"
during the effectiveness of the Registration Statement during which the
Company may not sell any of the shares of Common Stock under the
Registration Statement. StreamLogic may impose a "blackout" only in
circumstances where the Board of Directors of StreamLogic determines in
good faith that a material event is occurring or is reasonably expected to
occur with respect to StreamLogic which StreamLogic has not yet disclosed
to the public or in any other case where the Board has in good faith
determined that such action is necessary for the protection of StreamLogic
or its shareholders or to comply with applicable law. However, a
"blackout" period may not last more than three (3) weeks and StreamLogic
may not impose more than three (3) "blackout" periods during the
Registration Process. A "blackout" period shall not be effective and
binding upon the Company until one (1) day after the Company has received a
written communication from StreamLogic by facsimile informing the Company
that StreamLogic is imposing a "blackout."
(d) StreamLogic shall furnish to the Company upon request a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary in order to facilitate the public sale or
other disposition of all or any of the Common Stock held by the Company.
(e) With a view to making available to the Company the benefits
of certain rules and regulations of the Commission which at any time permit
the sale of the Common Stock to the public without registration,
StreamLogic agrees to:
(1) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act
("RULE 144"), at all times after the effective date of the first
registration statement under the Securities Act filed by StreamLogic
for an offering of its securities to the general public;
(2) Use its best efforts to then file with the Commission
in a timely manner all reports and other documents required of
StreamLogic under the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements); and
(3) So long as a the Company owns any unregistered Common
Stock, furnish to the Company upon request a written statement by
StreamLogic as to its compliance with the reporting requirements of
said Rule 144 (at any time after 90 days after the effective date of
the first registration statement filed by FWB for an
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offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent
annual or quarterly report of FWB, and such other reports and
documents of FWB as such Shareholder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a
Shareholder to sell any such securities without registration.
(f) StreamLogic will indemnify the Company, each of its
officers, directors, employees, partners, legal counsel and accountants,
and each person controlling the Company within the meaning of section 15 of
the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect
to which any registration, qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if any, and each person
who controls any underwriter within the meaning of section 15 of the
Securities Act, against all expenses, claims, losses, damages and
liabilities (or action in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereof,
incident to any such registration, qualification or compliance, or based on
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or any violation by StreamLogic of any rule or regulation
promulgated under the Securities Act, the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") or state securities laws applicable to
StreamLogic and relating to action or inaction required of StreamLogic in
connection with any such registration, qualification or compliance and will
reimburse the Company, each of its officers, directors, employees,
partners, legal counsel and accountants, and each person controlling the
Company, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that StreamLogic will not be liable
in any such case to the extent that any such claim, loss, damage, liability
or expense arises out of or is based on any untrue statement or omission
made in reliance upon and in conformity with written information furnished
to StreamLogic by an instrument duly executed by or on behalf of the
Company or underwriter and stated to be specifically for use therein, and
further provided that there shall be no liability if StreamLogic provided
to the Company, a reasonable period before the sale, a prospectus
correcting any such untrue statement or omission but such prospectus was
not delivered to the purchaser.
(g) The Company will, if any of the Common Stock held by the
Company is included in the securities as to which such registration,
qualification or compliance is being effected, indemnify StreamLogic, each
of its directors, officers, employees, partners, legal counsel and
accountants, each underwriter, if any, of such Common Stock covered by such
a registration statement, each person who controls StreamLogic or such
underwriter within the meaning of section 15 of the Securities Act, against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement of a material fact
contained in any such registration statement, prospectus, offering circular
or other document, or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse StreamLogic,
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such directors, officers, employees, partners, legal counsel, accountants,
persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, in each case to the
extent, but only to the extent that such untrue statement or omission is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information
furnished to StreamLogic by an instrument duly executed by or on behalf of
the Company and stated to be specifically for use therein.
(h) Each party entitled to indemnification under this
Section 2.1 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense,
provided further, that if any Indemnified Party shall have reasonably
concluded that there may be one or more legal defenses available to the
Indemnifying Party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 2.1, the Indemnifying Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party, and
such Indemnifying Party shall not be required to reimburse such Indemnified
Party and any person controlling such Indemnified Party for that portion of
the fees and expenses of any counsel retained by the Indemnified Party
which are related to such different or additional defenses or which are
beyond the scope of the indemnity agreement provided in this Section 2.1,
and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, unless such failure is prejudicial to the
Indemnifying Party in defending such claim or litigation. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(i) If the indemnification provided for in this Section 2.1 is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relative fault
of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to
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correct or prevent such statement or omission.
(j) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with an underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall be controlling.
(k) The obligations of StreamLogic and the Company under this
Section 2.1 shall be in addition to any liability which StreamLogic and the
Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls StreamLogic or the Company
within the meaning of the Securities Act.
(l) The Company shall not have any right to take any action to
restrain, enjoin or otherwise delay any registration pursuant to this
Section 2.1 as a result of any controversy that may arise with respect to
the interpretation or implementation of this Agreement.
(m) The rights and obligations of this Section 2.1 shall be
binding upon and available to subsequent transferees of the Common Stock;
provided, however, that there shall be no more than ten (10) transferees of
the Common Stock without StreamLogic's prior written consent, which shall
not be unreasonably withheld.
2.2 RESTRICTIONS ON PUBLIC SALE; INCONSISTENT AGREEMENTS.
(a) LOCK-UP. Notwithstanding any registration of the Common Stock
pursuant to Section 2.1, the holder(s) of the Common Stock agree not to effect
any sale or distribution of any of the Common Stock in a transaction not exempt
from the registration requirements of the Securities Act except as follows:
one-third (1/3) may be resold immediately upon effectiveness of the Registration
Statement, one-third (1/3) may be resold 60 days after the shares are registered
and the final one-third (1/3) may be resold 60 days later. StreamLogic may
impose a stop-transfer instruction with respect to the shares (or other
securities) subject to the foregoing restriction until the end of such period.
(b) NO DISTRIBUTION. StreamLogic agrees (i) without the written
consent of the Company, which may not be unreasonably withheld, not to effect
any public or private sale or distribution of its common equity securities or
any security convertible into or exchangeable or exercisable for any equity
security of StreamLogic, including a sale pursuant to Regulation D under the
Securities Act, during the Company's or its transferees' Registration Process
(except (A) as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form or (B) equity securities issued
pursuant to the conversion or exchange of any securities convertible into or
exchangeable for StreamLogic's common equity securities and which were
outstanding prior to the commencement of such Registration Process), and (ii) to
use its reasonable efforts to cause each holder of its privately placed
securities purchased from StreamLogic at any time on or after the date of this
Agreement to agree not to effect any public sale or distribution of any such
securities during such period, including a sale pursuant to Rule 144 (except as
part of such underwritten registration, if permitted), other than pursuant to
any tender offer by StreamLogic to holders of its currently outstanding
subordinated debt securities.
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SECTION 3. MISCELLANEOUS
3.1 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part
of any party in exercising any right, power or remedy hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
3.2 ADDRESSES FOR NOTICES, ETC. All notices, requests, demands and
other communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed, by certified or registered mail, or
telegraphed or delivered to the applicable party at the addresses indicated
below:
If to StreamLogic: StreamLogic Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
with copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
If to the Company: FWB Software, LLC
0000 Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: President
with copy to: McCutchen, Doyle, Xxxxx & Enersen
Three Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Either party to this Agreement may change its address by a written
notice to the other party complying as to delivery with the terms of this
Section. All such notices, requests, demands and other communications shall,
when mailed or telegraphed, respectively, be effective when deposited in the
mails or delivered to the telegraph company, respectively, addressed as
aforesaid.
3.3 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of each party and its respective successors and
assigns, except that neither of the parties shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
other, which shall not be unreasonably withheld.
3.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Agreement, or any other instrument or document
delivered in connection herewith, shall survive the execution and delivery
hereof or thereof until one year from the Closing Date.
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3.5 PRIOR AGREEMENTS. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings or
agreements concerning the subject matter hereof.
3.6 SEVERABILITY. The invalidity or unenforceability of any
provision hereto shall in no way affect the validity or enforceability of any
other provision.
3.7 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
3.8 HEADINGS. Article, Section and Subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
3.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
3.10 FURTHER ASSURANCES. From and after the date of this Agreement,
upon the reasonable request of either party, the other party shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
STREAMLOGIC CORPORATION
By: Xxx Xxxxxxx
Xxx Xxxxxxx, Chief Financial Officer
FWB SOFTWARE, LLC
By: FWB Software, Inc., its Manager
By: Xxxxxx Xxxx
Xxxxxx Xxxx, President
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