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TRICORD SYSTEMS, INC.
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STOCK PURCHASE AGREEMENT
July 23, 1999
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TABLE OF CONTENTS
Page
SECTION 1 AUTHORIZATION AND SALE OF COMMON STOCK ........................................................1
1.1 Authorization .................................................................................1
1.2 Sale of the Shares ............................................................................1
SECTION 2 CLOSING DATE; DELIVERY ........................................................................1
2.1 Closing .......................................................................................1
2.2 Delivery ......................................................................................1
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY .................................................2
3.1 Organization and Standing; Charter and Bylaws .................................................2
3.2 Corporate Power ...............................................................................2
3.3 Capitalization ................................................................................2
3.4 Authorization .................................................................................2
3.5 SEC Reports ...................................................................................3
3.6 No Conflicts ..................................................................................3
3.7 Brokers or Finders ............................................................................3
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ..............................................4
4.1 Experience; Accredited Investor ...............................................................4
4.2 Investment ....................................................................................4
4.3 Rule 144 ......................................................................................4
4.4 No Federal or State Approval ..................................................................4
4.5 Access to Data ................................................................................4
4.6 Authorization .................................................................................5
4.7 Address and Taxpayer Identification Number ....................................................5
SECTION 5 CONDITIONS TO CLOSING BY THE PURCHASERS .......................................................5
5.1 Representations and Warranties Correct ........................................................5
5.2 Covenants .....................................................................................5
5.3 Compliance Certificate ........................................................................5
5.4 Opinion of Company's Counsel ..................................................................5
5.5 Investors Agreement ...........................................................................6
5.6 Proceedings and Documents; Legal Matters ......................................................6
5.7 Good Standing Certificate .....................................................................6
5.8 Secretary's Certificate .......................................................................6
SECTION 6 CONDITIONS TO CLOSING BY THE COMPANY ..........................................................6
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6.1 Representations................................................................................6
SECTION 7 RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT ................................................................7
7.1 Restrictions on Transferability ...............................................................7
7.2 Restrictive Legend ............................................................................7
SECTION 8 COVENANTS .....................................................................................7
8.1 Fulfillment of Closing Conditions .............................................................7
8.2 Agreement by Purchasers .......................................................................7
8.3 Publicity .....................................................................................8
SECTION 9 MISCELLANEOUS .................................................................................8
9.1 Governing Law .................................................................................8
9.2 Survival ......................................................................................8
9.3 Successors and Assigns ........................................................................8
9.4 Entire Agreement; Amendment ...................................................................9
9.5 Notices, etc ..................................................................................9
9.6 Delays or Omissions ...........................................................................9
9.7 Severability .................................................................................10
9.8 Titles and Subtitles .........................................................................10
9.9 Counterparts .................................................................................10
9.10 Construction .................................................................................10
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EXHIBITS
A -- Schedule of and Signature Page for Purchasers
A-1 -- Purchaser Address and Taxpayer Identification Number Schedule
B -- Form of Opinion of Counsel to the Company
C -- Form of Investors Agreement
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STOCK PURCHASE AGREEMENT
This Agreement is entered into effective as of July 23, 1999 by and among
Tricord Systems, Inc., a Delaware corporation (the "Company"), and each of the
persons listed on the Schedule of and Signature Page for Purchasers attached
hereto as Exhibit A (each a "Purchaser" and, collectively, the "Purchasers").
SECTION I
AUTHORIZATION AND SALE OF COMMON STOCK
1.1 AUTHORIZATION. The Company has authorized the sale and issuance of up
to 1,600,000 shares (the "Shares") of its common stock, par value $.01 per share
("Common Stock"), at the Closing (as hereinafter defined).
1.2 SALE OF THE SHARES. Subject to the terms and conditions hereof, the
Company will severally issue and sell to the Purchasers, and the Purchasers will
severally buy from the Company, the number of shares of Common Stock for the
aggregate purchase price set forth opposite such Purchaser's name on Exhibit A
hereto. The Company's agreements with each of the Purchasers are separate
agreements, and the sales of the Shares to each of the Purchasers are separate
sales.
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING.
Closing Date. The closing of the purchase and sale of the Shares
hereunder shall be held at Five Post Oak Park, #1655, Xxxxxxx, Xxxxx 00000, on
or prior to July 23, 1999 (the "Closing"), or at such other time and place upon
which the Company and the Purchasers acquiring in the aggregate more than 50% of
such shares of Common Stock to be sold pursuant to the terms hereto mutually
agree upon orally or in writing (the date of the Closing is hereinafter referred
to as the "Closing Date").
2.2 DELIVERY. At the Closing, the Company will deliver to each Purchaser a
certificate or certificates, registered in such Purchaser's name representing
the number of shares of Common Stock in the amount set forth opposite such
Purchaser's name on Exhibit A hereto, against payment of the purchase price
therefor, by certified check payable to the Company or wire transfer per the
Company's instructions.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the disclosure schedule prepared by the Company and
delivered to the Purchasers, dated as of the date hereof (the "Disclosure
Schedule"), the Company represents and warrants to each Purchaser both as of the
date hereof and again as of the Closing as follows:
3.1 ORGANIZATION AND STANDING: CHARTER AND BYLAWS. The Company is a
corporation duly organized, existing and in good standing under the laws of the
State of Delaware. The Company has all requisite corporate power and authority
to own and operate its properties and assets, and to carry on its business as
presently conducted. The Company currently is qualified to do business as a
foreign corporation in each jurisdiction where the failure to be so qualified
would have a material adverse affect on the Company's properties and business
as now conducted or its financial condition. The Company has made available to
Purchasers a true, correct and complete copy of its Bylaws as in full force and
effect on the date hereof (the "Bylaws") and a true, correct and complete copy
of the Company's Certificate of Incorporation, as amended (the "Charter"), as in
full force and effect on the date hereof.
3.2 CORPORATE POWER. The Company has and will have at the Closing Date all
requisite corporate power and authority to execute and deliver this Agreement
and the Investors Agreement (as defined in Section 5.5 hereof), to sell and
issue the Shares hereunder and to carry out and perform its obligations under
the terms of this Agreement and the Investors Agreement referred to in Section
5.5 below.
3.3 CAPITALIZATION. The authorized capital stock of the Company consists of
80,750,677 shares, 75,000,000 of which are designated as Common Stock, 2,043,966
of which are designated as series C convertible preferred stock, $.01 par value
("Series C Preferred Stock"), 706,711 of which are designated as series D
convertible preferred stock ("Series D Preferred Stock") 2,500,000 of which is
undesignated stock, $.01 par value ("Undesignated Stock") and 500,000 shares
which are designated as series A junior preferred stock, $.01 par value ("Series
A Junior Preferred Stock"), As of April 9, 1999, there were 19,018,309 shares of
Common Stock outstanding, and there were no shares of Series C Preferred Stock,
Series D Preferred Stock, Undesignated Stock or Series A Junior Preferred Stock
outstanding. The outstanding shares of the Company's capital stock have been
duly authorized and validly issued, and are fully paid and nonassessable.
3.4 AUTHORIZATION. All corporate action on the part of the Company, its
directors and its stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Investors Agreement by the
Company, the authorization, sale, issuance and delivery of the Shares and the
performance of all of the Company's obligations hereunder has been taken or will
have been taken prior to the Closing. This Agreement and the Investors
Agreement, when executed and delivered by the Company, shall constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms. The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable; and will be
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free of any pledges, liens, encumbrances, preemptive rights or restrictions
except for restrictions on transfer under federal and state securities laws as
set forth herein and as set out in the Investors Agreement.
3.5 SEC REPORTS. The Company has previously made available to the
Purchasers true and complete copies of its (i) Annual Reports on Form 10-K for
its fiscal years ended December 31, 1997 and December 31, 1998, (ii) Quarterly
Reports on Form 10-Q for its quarterly periods ended March 31, 1998, June 30,
1998, September 30, 1998 and Xxxxx 00, 0000, (xxx) Current Reports on Form 8-K
dated December 24, 1998 and May 18, 1999, (iv) definitive proxy statements for
its 1998 and 1999 annual stockholders meetings, and (v) any other reports or
registration statements filed by the Company with the Securities and Exchange
Commission (the "Commission") since January 1, 1998, except for preliminary
material, which are all the documents that the Company was required to file
since that date (collectively, the "SEC Reports"). As of their respective dates,
the SEC Reports complied as to form in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the
case may be, and the rules and regulations of the Commission thereunder
applicable to such SEC Reports. As of their respective dates, the SEC Reports
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 in which they were made, not misleading.
The audited consolidated financial statements and unaudited interim financial
statements of the Company included in the SEC Reports comply as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect thereto (except as may be
indicated thereon or in the notes thereto), have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods covered thereby
and present fairly the financial condition of the Company as of such dates and
the results of operations, changes in stockholders' equity and cash flows of the
Company for such period.
3.6 NO CONFLICTS. The execution, delivery and performance of and compliance
with this Agreement and the Investors Agreement, and the issuance of the Shares,
have not resulted and will not result (i) in any material violation of, or
conflict with, or constitute a material default under, the Company's Charter or
Bylaws or any mortgage, indebtedness, lease, indenture, contract, agreement,
license, instrument, judgement or decree to which the Company is party or
otherwise subject to, or (ii) in the creation of, any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company; and
there is no such violation or default which materially and adversely affects the
business of the Company or any of its properties or assets.
3.7 BROKERS OR FINDERS. The Company has not incurred, and will not incur,
directly or indirectly, as a result of any action taken by the Company, any
liability for brokerage or finders' fees or agents' commissions or any similar
charge in connection with this Agreement.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to the Company with
respect to the purchase of the Shares as of the date hereof and again as of the
Closing, as to himself only, as follows:
4.1 EXPERIENCE: ACCREDITED INVESTOR. He is a sophisticated investor and has
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that he is capable of
evaluating the merits and risks of his investment in the Company and has the
capacity to protect his own interests. Further, he recognizes that an investment
in the Company is highly speculative and involves significant risks (including
those identified in the SEC Reports) including a complete loss of such
investment. In addition, he is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D under the Securities Act. He (i) has no need for
liquidity in the investment in the Shares, (ii) is able to bear the substantial
economic risk of an investment in the Shares for an indefinite period and (iii)
could afford the complete loss of his investment in the Shares.
4.2 INVESTMENT. He is acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof and, if Purchaser is not a natural
person, it was not formed solely for purposes of making this investment. He
understands that the Shares to be purchased have not been, and will not be,
registered under the Securities Act or qualified under applicable blue sky or
other state securities laws by reason of specific exemptions from the
registration provisions of the Securities Act and the qualification provisions
of applicable blue sky and other state securities laws, the availability of
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of such Purchaser's representations as expressed herein.
In acquiring the Shares, he is acting on his own behalf and is not acting
together with any other person or entity (including any other Purchasers) for
the purpose of acquiring, holding, voting or disposing of the Shares within the
meaning of Section 13(d) of the Exchange Act.
4.3 RULE 144. He acknowledges that the Shares must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from such registration is available. He is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions.
4.4 NO FEDERAL OR STATE APPROVAL. He understands that no Federal or state
agency has passed upon the Shares or made any finding or determination as to the
fairness of the investment or any recommendation or endorsement of the Shares.
4.5 ACCESS TO DATA. He has read carefully and understands this agreement
and has consulted with his own attorney, accountant or investment advisor with
respect to the investment
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contemplated hereby and its suitability for him. He has had an opportunity to
discuss the Company's business, management and financial affairs with its
management and has had the opportunity to review the Company's facilities. He
also has had opportunity to ask questions of officers of the Company. His taking
advantage of any such opportunity however, does not limit or modify the
representations and warranties of the Company in Section 3 hereof or the right
of any of the Purchasers to rely thereon.
4.6 AUTHORIZATION. This Agreement and the Investors Agreement when executed
and delivered by such Purchaser, will constitute valid and legally binding
obligations of the Purchaser, enforceable in accordance with their terms, except
as such enforcement is subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors'
rights generally, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
4.7 ADDRESS AND TAXPAYER IDENTIFICATION NUMBER. The address and taxpayer
identification number set forth opposite his name on the Purchaser Address and
Taxpayer Identification Number Schedule attached hereto as Exhibit A-1 are true
and correct, such address is his resident or principal place of business, and he
has no present intention of changing such residence or principal place of
business to any other state or jurisdiction.
SECTION 5
CONDITIONS TO CLOSING BY THE PURCHASERS
The Purchasers' obligations to purchase the Shares at the Closing are, at
the option of the Purchasers, subject to the fulfillment of the following
conditions:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects as of the Closing Date with the same effect as though such
representations and warranties had been made on the Closing Date except to the
extent any such representation specifically references an earlier date.
5.2 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with.
5.3 COMPLIANCE CERTIFICATE. The Company shall have delivered to the
Purchasers a certificate executed by the Co-Chief Executive Officer of the
Company, dated the Closing Date, and certifying, among other things, to the
fulfillment of the conditions specified in Sections 5.1 and 5.2 of this
Agreement.
5.4 OPINION OF COMPANY'S COUNSEL. The Purchasers shall have received from
J. Xxxxx Xxxxxxx, Vice President and General Counsel to the Company, an opinion
addressed to the
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Purchasers, dated the Closing Date, in form and substance satisfactory to the
Purchasers, substantially in the form of Exhibit B hereto.
5.5 INVESTORS AGREEMENT. The Purchasers and the Company shall have entered
into an investors agreement providing for, among other things, certain
registration rights, rights of first refusal and information rights,
substantially in the form attached hereto as Exhibit C (the "Investors
Agreement").
5.6 PROCEEDINGS AND DOCUMENTS: LEGAL MATTERS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing, and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to the Purchasers. All material matters of a legal nature which
pertain to this Agreement and the Investors Agreement and the transactions
contemplated hereby and thereby, shall be reasonably approved by the Purchasers
on advice of counsel.
5.7 GOOD STANDING CERTIFICATE. The Company shall have delivered to the
Purchasers a Certificate dated as of a recent date issued by the Secretary of
State of Delaware to the effect that the Company is legally existing and in good
standing.
5.8 SECRETARY'S CERTIFICATE. The Company shall have delivered to the
Purchasers a certificate executed by the Secretary of the Company dated as of
the Closing, certifying as to (a) the directors resolutions authorizing the
transactions contemplated by this Agreement; (b) the Charter of the Company; (c)
the Bylaws of the Company; (d) the incumbency of the Chairman, Co-Chief
Executive Officer and Secretary of the Company; and (e) such other matters as
the Purchasers may reasonably request.
SECTION 6
CONDITIONS TO CLOSING BY THE COMPANY
The Company's obligation to sell and issue the Shares at the Closing is, at
the option of the Company, subject to the fulfillment as of the Closing Date of
the following conditions:
6.1 REPRESENTATIONS. The representations made by the Purchasers in Section
4 hereof shall be true and correct in all material respects on the Closing Date
with the same effect as though such representations and warranties had been made
on the Closing Date except to the extent any such representation specifically
references an earlier date.
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SECTION 7
RESTRICTIONS ON TRANSFERABILITY OF SHARES;
COMPLIANCE WITH SECURITIES ACT
7.1 RESTRICTIONS ON TRANSFERABILITY. The Shares referred to herein are
"Restricted Securities" and shall not be sold, assigned, transferred or pledged
except upon the conditions specified in this Section 7, which conditions are
intended to be in compliance with the provisions of the Securities Art. Each
Purchaser will cause any proposed purchaser, assignee, transferee, or pledgee of
the Shares held by such Purchaser to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 7.
7.2 RESTRICTIVE LEGEND. Each certificate representing (i) the Shares, and
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
be stamped or otherwise imprinted with a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER
EVIDENCE REASONABLY ACCEPTABLE TO IT THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT.
Each Purchaser consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Shares in order to implement
the restrictions on transfer established in this Section 7.
The Company agrees to cause new certificates to be issued without any such
legend to any Purchaser and such notation to be removed upon request by such
Purchaser when reasonable in light of the then general practice under the
Securities Act.
SECTION 8
COVENANTS
8.1 FULFILLMENT OF CLOSING CONDITIONS. The Company and each Purchaser
agrees to use its commercially reasonable best efforts to cause the fulfillment
of the closing conditions (to the extent, in whole or in part, within its or his
direct or indirect control) set forth in Sections 5 and 6 hereof.
8.2 AGREEMENT BY PURCHASERS. Each Purchaser hereby severally agrees not to
take any of the following actions without the advance approval of the Board of
Directors of the Company:
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(a) No Purchaser shall, directly or indirectly, offer, sell or
otherwise transfer any Shares except pursuant to a bona fide public
offering registered under the Securities Act, Rule 144 under the Securities
Act or other transaction that effects a broad distribution of such Shares
and that, to the best of the Purchaser's knowledge, would not result in
such acquiring party or related group of persons to such acquiring party
beneficially owning more than 3% of the combined voting power of the then
outstanding securities of the Company ordinarily having the right to vote
at elections of directors ("Voting Securities"); provided, however, that
this provision shall not prohibit (i) the assignment by a Purchaser to any
wholly owned subsidiary or parent of, or to any corporation or entity that
is, within the meaning of the Securities Act, controlling, controlled by or
under common control with, any such Purchaser, (ii) the assignment to
members of the Purchaser's immediate family and to trusts or entities
established for the benefit of the Purchaser or his immediate family, or
(iii) a bona fide pledge to an institutional lender for money borrowed,
provided, in each case, that the transferees agree to be bound by the terms
and conditions of this Section.
(b) No Purchaser shall solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the
Exchange Act) in opposition to the recommendation of the majority of the
directors of the Company with respect to the election of directors.
9.3 PUBLICITY. The Company and each Purchaser agrees not to issue any press
release or make any public announcement with respect to this Agreement or the
transactions contemplated hereby unless the prior written consents of the other
parties hereto have been obtained, which consents shall not be unreasonably
withheld; provided however, that the Company may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which case it will use
its best efforts to advise the Purchasers prior to making such disclosure).
SECTION 9
MISCELLANEOUS
9.1 GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of Texas as applied to
agreements made and performed in Texas by residents of the State of Texas.
9.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Purchasers and the closing
of the transactions contemplated hereby for a period of two years.
9.3 SUCCESSORS AND ASSIGNS. Except as otherwise 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.
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9.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, 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. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that holders of a majority of the Shares, issued and issuable
hereunder may waive, modify or amend, on behalf of all such holders, any
provisions hereof
9.5 NOTICES. ETC. All notices and other communications required or
permitted hereunder shall be in writing (or in the form of a telex or telecopy
(confirmed in writing) to be given only during the recipient's normal business
hours unless arrangements have otherwise been made to receive such notice by
telex or telecopy outside of normal business hours) and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, or telex or telecopy (as provided above) addressed (a) if to a
Purchaser, at such address as such Purchaser shall have furnished to the Company
in writing or (b) if to any other holder of any Shares, at such address as such
holder shall have furnished the Company in writing or, until any such holder so
furnishes an address to the Company, then to the address of the last holder of
such Shares who has so furnished an address to the Company or (c) if to the
Company, sent to its principal executive offices and addressed to the attention
of the Co-Chief Executive Officer, or at such other address as the Company shall
have furnished to the Purchasers.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid or, if
by telex or telecopy, when received and confirmed in the manner provided above.
9.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement shall
impair any such right, power or remedy of such holder nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any holder of any breach or
default under this Agreement, or any waiver on the part of any holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
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9.7 SEVERABILITY. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, invalid,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision. In such event, the parties shall negotiate, in good
faith, a legal, valid and enforceable substitute provision which most nearly
effects the intent of the parties in entering into this Agreement.
9.8 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not considered in construing or
interpreting this Agreement.
9.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
9.10 CONSTRUCTION. Whenever the context so requires, the singular number
includes the plural and vice versa, and a reference to one gender includes the
other gender or the neuter.
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The foregoing agreement is hereby executed as of the date first above
written.
TRICORD SYSTEMS, INC.
By: /s/ J. Xxxxx Xxxxxxx
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Name: J. Xxxxx Xxxxxxx
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Title: Vice President
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General Counsel & Secretary
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EXHIBIT A
Schedule of and Signature Page for Purchasers
PURCHASER SIGNATURE NUMBER OF SHARES AMOUNT
--------- --------- ---------------- ------
Xxxxx X. Xxxxxx 400,000 $1,000,000.00
Xxxxx Xxxxxxxxxx 120,000 $ 300,000.00
Xxxx and Xxxxx Xxxxxxxxxx
Family Investment
Partnership, Ltd. 80,000 $ 200,000.00
Xxxxxx Xxxxxx 56,000 $ 140,000.00
Xxxxx Xxxxx 24,000 $ 60,000.00
Xxxxx Xxxxxxx, III 40,000 $ 100,000.00
Xxxxx Xxxxxx 80,000 $ 200,000.00
Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx 40,000 $ 100,000.00
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EXHIBIT B
Form of Opinion of Counsel to the Company
(attached)
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[TRICORD LOGO]
July 23, 1999
To the Purchasers
Listed in Exhibit A
To the Purchase Agreement
Described Herein
Ladies and Gentlemen:
This opinion is being furnished pursuant to Section 5.4 of the Stock
Purchase Agreement, dated as of July 23, 1999 (the "Purchase Agreement"), by and
among Tricord Systems, Inc., a Delaware corporation (the "Company"), and the
Purchasers identified in Exhibit A thereto (the "Purchasers"), relating to the
sale by the Company to the Purchasers of up to 1,600,000 shares of the Company's
common stock, par value $0.01 per share ("Common Stock"). Capitalized terms used
but not defined herein shall have the meaning assigned to such terms in the
Purchase Agreement.
As Vice President, General Counsel and Secretary of the Company, I have
caused to be examined the originals, or copies certified or otherwise
identified, of the Purchase Agreement, the Investors Agreement, the Certificate
of Incorporation and Bylaws of the Company, each as amended to date, corporate
records of the Company, including certain resolutions of the Board of Directors
of the Company, certificates of public officials and of representatives of the
Company, statutes and other instruments and documents, as a basis for the
opinions hereinafter expressed. In giving such opinions, I have relied upon
certificates, statements or other representatives of the Company with respect to
the accuracy of the material factual matters contained in or covered by such
certificates, statements or representations.
In such examinations, I have assumed (i) the genuineness of all signatures,
the authenticity and completeness of all documents, certificates, instruments
and records submitted to me as originals and the conformity to the original
instruments of all documents submitted to me as copies, and the authenticity and
completeness of the originals of such copies, (ii) the due authorization,
execution and delivery by the parties thereto, other than the Company, of all
such documents and instruments examined by me and (iii) that, to the extent that
any such documents and instruments purport to constitute
19
Purchasers
July 23, 1999
Page -2-
agreements of such other parties, they constitute valid and binding obligations
of such other parties.
Based upon and subject to the foregoing and subject to the limitations set
forth herein, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware and has
corporate power and authority to enter into and perform its
obligations under the Purchase Agreement and the Investors Agreement.
2. The Shares have been duly authorized and, when issued and paid for
in compliance with the provisions of the Purchase Agreement, will be
validly issued, fully paid and nonassessable.
3. The Purchase Agreement and the Investors Agreement have each been duly
authorized, executed and delivered by the Company and each constitutes
a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its respective terms, except as
such enforceability is subject to the effect of any applicable
bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
I am a member of the State Bar of Texas. The opinions set forth
herein are based upon and limited to the laws of the State of Texas and the
general corporation law of the state of Delaware.
This opinion is intended to be for the benefit of the Purchasers and
may be relied upon only by the Purchasers and may not be relied by any other
person or for any other purpose.
Very truly yours,
/s/ J. Xxxxx Xxxxxxx
-----------------------------
J. Xxxxx Xxxxxxx
Vice President,
General Counsel and Secretary
20
EXHIBIT C
Form of Investors Agreement
(attached)
15
21
INVESTORS AGREEMENT
THIS INVESTORS AGREEMENT is entered into effective as of July 23, 1999
by and among Tricord Systems, Inc., a Delaware corporation (the "Company"), and
the individuals listed as "Investors" on the signature pages hereto (each an
"Investor" and, collectively, the "Investors").
RECITALS
WHEREAS, the Company and the Investors are parties to that certain
Stock Purchase Agreement, dated as of July 23, 1999 (the "Purchase Agreement"),
providing for the sales by the Company and the purchases by the Investors of
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, the sales of the Common Stock to the Investors is conditioned
upon granting the rights set forth herein to the respective Investors;
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
SECTION 1
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"BOARD" means the Board of Directors of the Company.
"COMMISSION" means the Securities and Exchange Commission of the United
States or any other U.S. federal agency at the time administering the Securities
Act.
"COMMON STOCK" means the common stock of the Company, par value $.01
per share.
"EXEMPT ISSUANCES" means:
(i) the sale or issuance of Voting Securities pursuant to an effective
registration statement under the Securities Act,
(ii) the sale or issuance of shares of Common Stock to officers,
directors and employees of, and consultants and advisors to, the Company
pursuant to stock grants, option plans, purchase plans or other compensatory
benefit contracts, programs or arrangements approved by the Board or
22
upon exercise of options or warrants granted to such parties pursuant to any
such plan or arrangement,
(iii) shares of Common Stock issued upon exercise or conversion of any
options, warrants or rights to acquire shares of Common Stock outstanding on the
date hereof,
(iv) Voting Securities issued pursuant to any merger, consolidation or
acquisition involving the Company or in connection with a Recapitalization,
(v) Voting Securities issued in connection with any acquisition of a
third parties' assets, products, technology or other rights, and
(vi) Voting Securities issued in connection with research and
development partnerships, OEM or distribution arrangements, licensing or
collaborative arrangements or similar transactions, in each case approved by the
Board.
"HOLDER" means each of the Investors, and their transferees as
permitted by Section 2.8 hereof, holding Registrable Securities.
"OTHER HOLDERS" means holders of Company securities, other than
Holders, proposing to distribute their securities pursuant to a registration
under this Agreement.
"PRO RATA PORTION" means, for purposes of Section 4 hereof, the amount
of Company Offered Securities multiplied by a fraction, the numerator of which
shall equal the number of shares of Common Stock issued then held by the
applicable Holder, and the denominator of which shall equal the aggregate number
of shares of Common Stock issued.
"RECAPITALIZATION" means any stock split, stock dividend, stock
combination, recapitalization or similar event.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and all applicable blue sky or other
securities laws), and the declaration or ordering of the effectiveness of such
registration statement (and qualification or compliance with such laws).
"REGISTRABLE SECURITIES" means (i) the Common Stock and (ii) any shares
of Common Stock issued or issuable in respect of such Common Stock upon any
Recapitalization, in each case, held by Holders; provided, however, that
Registrable Securities shall not include (i) shares that have been sold to the
public either pursuant to a registration statement or Rule 144 under the
Securities Act or (ii) shares sold in a transaction in which the registration
rights conferred by this Agreement are not transferred as provided in Section
2.8 hereof.
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23
"REGISTRATION EXPENSES" means all expenses, other than Selling
Expenses, incurred by the Company in complying with Section 2 hereof, including,
without limitation, all registration, qualification, listing and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company and one counsel for the Investors as a group selected by holders of at
least a majority of the Registrable Securities proposed to be included in such
registration, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"SELLING EXPENSES" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
Holders.
"SELLING HOLDER" means each Holder who holds Registrable Securities
included in a registration statement under the Securities Act pursuant to this
Agreement.
"TRANSFER" means any transfer, sale, assignment, conveyance, pledge,
mortgage, donation, change of legal record or beneficial ownership, issuance or
other disposal or delivery.
"VOTING SECURITIES" means the Common Stock, any other securities of the
Company entitled to vote in the election of directors of the Company, any
securities convertible into or exchangeable for such securities, and any
options, warrants or other rights to purchase such securities.
SECTION 2
REGISTRATION RIGHTS
2.1 Piggyback Registration.
(a) Notice of Registration. If at any time, or from time to time,
the Company shall determine to register any of its Common Stock, either for its
own account or the account of any security holder or holders, other than (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Rule 145 transaction, the Company will:
(A) promptly give to each Holder written notice thereof; and
(B) include in such registration (and any related qualification
under Blue Sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within 20 days after receipt of such written notice from the
Company, by any Holder.
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24
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1(a). In such event the right of any Holder to
registration pursuant to Section 2.1 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall, together with the Company and Other Holders, enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company. Notwithstanding any other provision of
this Section 2.1, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may limit or eliminate the Registrable Securities and other
securities to be included in such registration by Holders and Other Holders. The
Company shall so advise all Holders and Other Holders, and the number of shares
that may be included in the registration and underwriting by all Holders and
Other Holders shall be allocated among them, as nearly as practicable, first,
among the Holders in proportion to the respective amounts of Registrable
Securities held by such holders at the time of filing of the registration
statement, and, second, among the Other Holders in proportion to the number of
shares proposed to be included in such registration by such Other Holders. To
facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to any Holder or Other Holder
to the nearest 100 shares.
If any Holder or Other Holder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.1 prior to the effectiveness of such registration whether or not any
Holder has elected to include Registrable Securities in such registration.
2.2 Limitations on Subsequent Registration Rights. From and after the
date hereof, the Company will not, without the prior written consent of Holders
of a majority of the then outstanding Registrable Securities, enter into any
agreement with respect to its securities which is inconsistent with, or grants
rights superior or pari passu to, the registration rights granted under this
Section 2; provided, however, that such purchasers shall agree to lockup
restrictions identical to those imposed on the Holders pursuant to Section 2.9
hereof.
2.3 Expenses of Registration.
(a) Registration Expenses. The Company shall bear all Registration
Expenses incurred in connection with all registrations pursuant to Section 2.1.
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25
(b) Selling Expenses. Unless otherwise stated, all Selling Expenses
directly relating to securities registered on behalf of the Holders and Other
Holders shall be borne by the Holders and Other Holders pro rata on the basis of
the number of shares so registered.
2.4 Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act, pursuant to this Agreement, the Company
will as promptly as is practicable and in good faith:
(a) prepare and file with the Commission, as soon as practicable,
and use its best efforts to cause to become effective, a registration statement
under the Securities Act relating to the Registrable Securities to be offered on
such form as the Company determines and for which the Company then qualifies;
(b) prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
until the earlier of such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition set forth in
such registration statement or the expiration of 135 days after such
registration statement becomes effective; provided that: (i) such 135-day period
shall be extended for a period of time equal to the period the Holder refrains
from selling any securities included in such registration at the request of the
Company or an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 135-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under
the Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment that (A) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (B) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of
information required to be included in (A) and (B) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in
the registration statement;
(c) furnish to the Selling Holders and to any underwriter of
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act, such
documents incorporated by reference in such registration statement or
prospectus, and such other documents, as the Selling Holders or such underwriter
may reasonably request, and, if requested, a copy of any and all transmittal
letters or other correspondence to, or received from, the commission or any
other
-5-
26
governmental agency or self regulatory body or other body having jurisdiction
(including any domestic or foreign securities exchange) relating to such
offering;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of such registration statement at the
earliest possible moment;
(e) if requested by a Selling Holder, use its best efforts to
furnish to each Selling Holder a "comfort" or "special procedures" letter
addressed to each Selling Holder and any underwriters and signed by the
independent public accountants who have audited the Company's financial
statements included in such registration statement, in each such case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and with respect to events subsequent to the
date of such financial statements as are customarily covered in accountants'
letters delivered to underwriters in underwritten public offerings of securities
and such other matters as the Selling Holders may reasonably request;
(f) immediately notify the Selling Holders in writing (i) at any
time when a prospectus relating to a registration hereunder is required to be
delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any 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, and
(ii) of any request by the Commission or any other regulatory body or other body
having jurisdiction for any amendment of or supplement to any registration
statement or other document relating to such offering, and in either such case
(i) or (ii) at the request of a Selling Holder prepare and furnish to such
Selling Holders a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(g) cause the listing of all such Registrable Securities covered
by such registration statement on each securities exchange and inter-dealer
quotation system on which similar securities issued by the Company are then
listed or quoted and to pay all fees and expenses in connection therewith;
(h) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securities holders, as soon as
-6-
27
reasonably practicable, an earnings statement covering the period of at least
12 months, but not more than 18 months, beginning with the first month after the
effective date of the Registration Statement which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(i) prepare and file such forms, prosecute such registrations,
obtain such qualifications and comply with all requirements of all state or
foreign governmental or other agencies having jurisdiction under blue sky or
other securities laws and regulations.
2.5 Indemnification; Contribution.
(a) By Company. To the extent permitted by law, the Company will
indemnify each Selling Holder, each of its officers and directors, partners and
legal counsel, and each person controlling such Selling Holder within the
meaning of Section 15 of the Securities Act, with respect to which 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 or liabilities (or actions or proceedings 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 thereto, 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 the Company of the Securities Act or
any rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Selling Holder, each of its officers,
directors, partners and legal counsel, and each person controlling such Selling
Holder, 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, settling or defending any such claim,
loss, damage, liability or action, provided that the Company 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 or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
such Selling Holder, controlling person or underwriter and stated to be
specifically for use therein or such Selling Holder's failure to deliver a copy
of the registration statement or prospectus or any amendment thereto after the
Company has furnished such Selling Holder with a sufficient number of copies of
the same.
(b) By Selling Holders. To the extent permitted by law, each
Selling Holder will indemnify the Company, each of its directors, officers and
legal counsel, each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other Selling Holder, each of its officers, directors and partners, and each
person controlling such Selling Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages
-7-
28
and liabilities (or actions or proceedings in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or 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, and will reimburse the Company, such Selling Holders,
such officers, directors, partners, legal counsel, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating, settling 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 alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Selling Holder
and stated to be specifically for use therein. Notwithstanding the foregoing,
the liability of each Selling Holder under this subsection (b) shall be limited
in an amount equal to the net proceeds of the shares sold by such Selling
Holder, unless such liability arises out of or is based on willful misconduct by
such Selling Holder.
(c) Procedure for Indemnification. Each party indemnified under
subsection (a) or (b) of this Section 2.5 (the "Indemnified Party") shall,
promptly after receipt of actual notice of any claim or the commencement of any
action against such Indemnified Party in respect of which indemnity may be
sought notify the party required to provide indemnification (the "Indemnifying
Party") in writing of the claim or the commencement thereof, provided that the
failure of the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which it may have to an
Indemnified Party on account of the indemnity agreement contained in subsection
(a) or (b) of this Section 2.5, unless the Indemnifying Party was materially
prejudiced by such failure, and in no event shall relieve the Indemnifying Party
from any other liability which it may have to such Indemnified Party. If any
such claim or action shall be brought against an Indemnified Party, it shall
notify the Indemnifying Party thereof and the Indemnifying Party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified Indemnifying Party, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Party. After notice from
the Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable
(except to the extent the proviso to this sentence is applicable, in which event
it will be so liable) to the Indemnified Party under this Section 2.5 for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each Indemnified Party shall have the right to
employ separate counsel to represent it and assume its defense (in which case,
the Indemnifying Party shall not represent it) if (i) upon the advice of
counsel, the representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, or
(ii) in the event the Indemnifying Party has not assumed the defense thereof
within 10 days of receipt of notice of such claim or commencement of action, and
in which case the fees and expenses of one such separate counsel shall be paid
by the Indemnifying Party. The Indemnifying Party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one firm for all such Indemnified Parties,
unless conflicting interests of
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29
the Indemnified Parties make the retention of one firm on behalf of all of them
unreasonable. If any Indemnified Party employs such separate counsel it will not
enter into any settlement agreement which is not approved by the Indemnifying
Party, such approval not to be unreasonably withheld. If the Indemnifying Party
so assumes the defense thereof, it may not agree to any settlement of any such
claim or action as the result of which any remedy or relief, other than monetary
damages for which the Indemnifying Party shall be responsible hereunder, shall
be applied to or against the Indemnified Party, without the prior written
consent of the Indemnified Party which consent shall not be unreasonably
withheld. In any action hereunder as to which the Indemnifying Party has assumed
the defense thereof with counsel reasonably satisfactory to the Indemnified
Party, the Indemnified Party shall continue to be entitled to participate in the
defense thereof with counsel of its own choice, but, except as set forth above,
the Indemnifying Party shall not be obligated hereunder to reimburse the
Indemnified Party for the costs thereof. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) Contribution. If the indemnification provided for in this
Section 2.5 shall for any reason be unavailable to an Indemnified Party in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to reflect
the relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Indemnifying Party on the one hand or the
Indemnified Party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any Indemnified Party's stock
ownership in the Company. In no event, however, shall a Selling Holder be
required to contribute in excess of the amount of the net proceeds received by
such Selling Holder in connection with the sale of Registrable Securities in the
offering which is the subject of such loss, claim, damage or liability. The
amount paid or payable by an Indemnified Party as a result of the loss, claim,
damage or liability, or action in respect thereof referred to above in this
subsection (d) shall be deemed to include, for purposes of this paragraph, any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating, settling or defending any such action or claim.
No person guilty of fraudulent misrepresentation (within the meaning of Section
1 1(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) Conflicts. Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in
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30
connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
2.6 Information by Selling Holder. Selling Holders including any
Registrable Securities in any registration shall promptly furnish to the Company
such information regarding such Selling Holders as shall be necessary to enable
the Company to comply with the provisions hereof in connection with any
registration referred to in this Agreement.
2.7 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its reasonable best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) Furnish to any Holder forthwith upon written request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information in the possession of or reasonably
obtainable by the Company as such Holder may reasonably request in writing in
availing itself of any rule or regulation of the Commission allowing such Holder
to sell any such securities without registration.
2.8 Transfer of Registration Rights. The rights to cause the Company to
register securities granted to Holders under Section 2.1, may be assigned only
concurrent with the sale or transfer of Registrable Securities and only in
connection with (i) the assignment by a Holder to any wholly owned subsidiary or
parent of, or to any corporation or entity that is, within the meaning of the
Securities Act, controlling, controlled by or under common control with, any
such Holder, (ii) the assignment to members of the Holder's immediate family and
to trusts or entities established for the benefit of the Holder or his immediate
family, or (iii) in connection with the sale or transfer of at least 1% of the
total outstanding shares of Registrable Securities (subject to adjustment for
any stock dividend, stock split, subdivision, combination or other
recapitalization of the Company). Notwithstanding the foregoing, such rights may
only be assigned provided that all of the following additional conditions are
satisfied: (a) such assignment is effected in compliance with applicable
securities laws; (b) such assignee agrees in writing to become subject to the
terms of this Agreement; and (c) the Company is given written notice by such
Holder of such assignment, stating the name
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31
and address of the assignee and identifying the Registrable Securities with
respect to which such rights are being assigned.
2.9 Lockup Agreement. Each Investor agrees that, if in connection with an
underwritten public offering of the Company's securities, the Company or the
underwriters managing the offering so request, he shall not sell, make any short
sale or loan, grant any option for the purchase of or otherwise dispose of any
Company securities (other than those included in the registration) other than
intra-family transfers and transfers to trusts or entities established for the
benefit of him or his immediate family, without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time (not
to exceed 180 days) from the effective date of such registration as may be
requested by the Company or the underwriters; provided that each other officer
and each other director of the Company also agrees to such restrictions. This
Section 2.9 shall also be binding on all Holders and on all transferees or
assignees of Registrable Securities, whether or not such persons are entitled
to registration rights pursuant to Section 2.8.
2.10 Termination. The right of any Holder to effect registration of its
Registrable Securities pursuant to Section 2.1 shall terminate, with respect to
each Holder, upon the seventh anniversary of the date hereof. The respective
indemnities, representations and warranties of the Investors and the Company
shall survive such termination.
2.11 Acknowledgment of Other Registration Rights. The Company hereby
notifies the Investors, and the Investors hereby acknowledge receipt of notice,
of the existence of certain registration rights held by the investors party to
that certain Investors Agreement, dated as of December 7, 1998 (the "December
1998 Investors Agreement"), between such investors and the Company relating to
shares of Common Stock purchased pursuant to that certain Stock Purchase
Agreement, dated as of December 7, 1998, between such investors and the Company.
The Company hereby represents to the Investors that the registration rights
granted by the December 1998 Investors Agreement are as stated in the December
1998 Investors Agreement, a copy of which has been provided to the Investors.
SECTION 3
INFORMATION RIGHTS
3.1 Delivery of Company Information. The Company hereby covenants and agrees
that it will promptly deliver to each Holder a copy of each filing with the
Commission by the Company and a copy of each press release issued by the
Company.
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SECTION 4
RIGHT OF FIRST REFUSAL
4.1 Company Offer. Subject to the terms and conditions contained in this
Section 4, the Company hereby grants to each Investor the right to purchase all
or any part of his Pro Rata Portion of any Voting Securities (other than Exempt
Issuances) which the Company intends to sell or issue after the date hereof.
The Company shall give each Investor 20 days' prior written notice (the
"Company Offer"), delivered or mailed as provided in Section 5.4, of the
Company's intention to sell or issue any Voting Securities (the "Company Offered
Securities"), other than an Exempt Issuance, stating the proposed price per
Voting Security, the number of Voting Securities offered and the other material
terms of such proposed sale or issuance and the Investor's respective record
ownership of Voting Securities. Such notice shall include a representation to
the Investors that the Company has a good faith intention to sell such Voting
Securities to such person on the terms specified. A Company Offer shall
constitute an offer by the Company, irrevocable for 20 days, to sell or issue
to each Investor all or any part of such Investor's Pro Rata Portion of the
Company Offered Securities on the same terms as specified in the Company Offer
or, if such terms provide for consideration other than cash, for cash in an
amount equal to the fair market value of such noncash consideration (as
determined in good faith by the Board) if the parties cannot mutually agree
upon such value.
4.2 Acceptance of Company Offer. Within 20 days after receipt of a
Company Offer, each Investor may elect to provide written notice to the Company
(a "Section 4 Acceptance Notice") that such Investor has elected to purchase all
or a part of his Pro Rata Portion of the Company Offered Securities. If such
Investor fails to give a Section 4 Acceptance Notice by the end of such 20-day
period, such Investor shall be deemed to have elected not to purchase any of
the Company Offered Securities. In addition, in such notice an Investor who
elects to purchase all of his Pro Rata Portion may also elect to purchase his
pro rata share (with others who so elect) of the Pro Rata Portions of other
Investors who do not elect to purchase all of their Pro Rata Portions.
4.3 Closing. The closing of any sale or issue of Company Offered
Securities to an Investor pursuant to this Section 4 shall take place at such
time and on such terms as may be provided for by the terms of such sale of
Voting Securities. At any such closing, the Company shall deliver to such
Investor certificate(s) representing the Company Offered Securities being
issued, registered in the name of such Investor or its nominee, against payment
of the applicable purchase price by check or wire transfer of same day funds.
4.4 Sale to Third Parties. If the Investors in the aggregate do not elect
to purchase all of the Company Offered Securities, the Company shall have the
right to sell and issue the Company Offered Securities not purchased by the
Investors at not less than the price stated in the Company Offer and otherwise
on terms and conditions that are not materially more favorable than those set
forth in the Company Offer on or before the 90th day following the expiration of
the 20-day period in Section 4.2 hereof (subject to extension to comply with
applicable securities and other applicable laws and regulations related to the
sale and issuance of the Company Offered Securities to such third
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party). If the Company Offered Securities have not been sold and issued within
such period, then the Company may not sell or issue any Company Offered
Securities unless it provides the Investors with a new Company Offer pursuant to
Section 4.1 hereof.
4.5 Continuing Rights
(a) The election or non-election to participate in a Company Offer
shall not adversely affect an Investor's right to participate in subsequent
Company Offers pursuant to this Section 4.
(b) To the extent that an Investor does not elect to purchase his Pro
Rata Portion of the Company Offered Securities in connection with any particular
Company Offer, he shall have the prior right to acquire more than his then Pro
Rata Portion in any subsequent Company Offer so as to permit him (even though at
the different price of the later Company Offer) to restore or move toward
restoring his proportionate ownership of Common Stock as in effect on the date
hereof; provided, however, that this should not increase the total number of
Company Offered Securities that may be purchased by Investors. Reasonable
allocations and procedures shall be instituted by the Company to achieve this
goal.
4.6 Termination of Right of First Refusal. The rights of the Investors
under this Section 4 shall terminate upon the fifth anniversary of the date
hereof.
4.7 Transfer. The right of first offer set forth in this Section 4 may
not be assigned or transferred, except that (i) such right is assignable by each
Investor to any wholly owned subsidiary or parent of, or to any corporation or
entity that is, within the meaning of the Securities Act, controlling,
controlled by or under common control with, any such Investor, (ii) such right
is assignable between and among any of the Investors, and (iii) such right is
assignable to members of the Investor's immediate family and to trusts or
entities established for the benefit of the Investor or his immediate family.
SECTION 5
MISCELLANEOUS
5.1 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas without regard to any principles
of conflicts of law that, if applied, might require or permit the application of
the laws of a different jurisdiction.
5.2 Amendment and Waivers. 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 consent of holders of at least
two-thirds of the then-outstanding Registrable Securities, voting as a class, if
such amendment or waiver would adversely effect the terms and conditions of
Xxxxxxx 0,
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00
0 xx 0 of this Agreement. Any amendment or waiver effected in accordance with
this paragraph will be binding upon the Company, each Investor and each future
holder of Registrable Securities.
5.3 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegally
invalid, unenforceable or void, this Agreement shall continue in full force and
effect without said provision. In such event, the parties shall negotiate, in
good faith, a legal, valid and binding substitute provision which most nearly
effects the intent of the parties in entering into this Agreement,
5.4 Notices. All notices and other communications required or permitted
hereunder shall be in writing (or in the form of a telex or telecopy (confirmed
in writing) to be given only during the recipient's normal business hours unless
arrangements have otherwise been made to receive such notice by telex or
telecopy outside of normal business hours) and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger, or
telex or telecopy (as provided above) addressed (a) if to an Investor, at such
other address as such Investor shall have furnished to the Company in writing or
(b) if to the Company, one copy should be sent to its principal executive
offices and addressed to the attention of the Corporate Secretary, or at such
other address as the Company shall have furnished to the Investors.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid, or, if
by telex or telecopy pursuant to the above, when received.
5.5 Facsimile Signatures. Any signature page delivered by a fax machine or
telecopy machine shall be binding to the same extent as an original signature
page, with regard to any agreement subject to the terms hereof or any amendment
thereto. Any party who delivers such a signature page agrees to later deliver an
original counterpart to any party which requests it.
5.6 Conflict with Certificate of Incorporation or Bylaws. It is expressly
agreed that whether or not the Certificate of Incorporation or Bylaws of the
Company fully incorporate the provisions hereof, or any of them, the parties'
rights and obligations shall be governed by this Agreement which shall prevail
in the event of any ambiguity or inconsistency between this Agreement and the
Certificate of Incorporation or Bylaws.
5.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
5.8 Headings and Subheadings. The headings and subheadings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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5.9 Termination. Except as otherwise provided herein, this Agreement shall
terminate on the tenth anniversary of the date hereof.
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IN WITNESS WHEREOF, the parties have executed this Investors Agreement as
of the date first above written.
TRICORD SYSTEMS INC.
By: /s/ J. Xxxxx Xxxxxxx
----------------------------------
Name: J. Xxxxx Xxxxxxx
---------------------------
Title: Vice President,
---------------------------
General Counsel & Secretary
---------------------------
INVESTORS:
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxxx
/s/ Xxxx Xxxxxxxxxx, G.P.
----------------------------------
Xxxx Xxxxxxxxxx, General Partner
Xxxx & Xxxxx Xxxxxxxxxx
Family Investment Partnership, Ltd.
/s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
/s/ H. Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx, III
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
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