EXHIBIT 4.2
AGREEMENT
This Agreement (the "AGREEMENT"), dated as of November 30, 2001, is among
General Magic, Inc., a Delaware corporation (the "COMPANY"), and Xxxxxx Xxxxx
Partners and Strong River Investments Ltd. (collectively, the "INVESTORS").
WHEREAS, pursuant to a Common Stock Purchase Agreement, dated the date
hereof (the "PURCHASE AGREEMENT"), the Company is offering and selling to the
Purchasers named therein, including the Investors, certain shares of its common
stock under its Registration Statement (No. 333-66126) (as supplemented and
amended from time to time, the "REGISTRATION Statement").
WHEREAS, the Company has agreed that the Investors shall be entitled to a
right of first refusal as set forth herein, to acquire all other shares of
Common Stock which may be issuable under the Registration Statement that have
not been sold on the date hereof under the Purchase Agreement. This right of
first refusal is a material inducement to the Investors to enter into the
transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1 Subsequent Financings; Limitation on Registration
Commencing with the execution and delivery of this Agreement, the
Company shall not directly or indirectly, offer, sell, grant any option to
purchase, or otherwise dispose of (or announce any offer, sale, grant of any
option to purchase or other disposition) any Common Stock or any equity or
equity equivalent securities (including any equity, debt or other instrument
that is at any time over the life thereof convertible into or exchangeable for
Common Stock) (other than in connection with a Strategic Transaction), and the
Company will cause its Subsidiaries not to offer, sell or issue any of such
Subsidiary's securities which provide the holder thereof the right to receive
any Common Stock (other than in connection with a Strategic Transaction), in
each case utilizing the Registration Statement (collectively, "COMMON STOCK
EQUIVALENTS"), and any such dispositions of Common Stock or Common Stock
Equivalents, (collectively, a "SUBSEQUENT PLACEMENT"), unless: (A) the Company
delivers to the Investors a written notice (the "SUBSEQUENT PLACEMENT NOTICE")
of its intention to effect such Subsequent Placement, which Subsequent Placement
Notice shall describe in reasonable detail the proposed terms of such Subsequent
Placement, the amount of proceeds intended to be raised thereunder, the Person
with whom such Subsequent Placement shall be effected, and attached to which
shall be a term sheet or similar document relating thereto and (B) such
Investors shall not have notified the Company by 6:30 p.m. (New York City time)
on the third Trading Day after its receipt of the Subsequent Placement Notice of
its willingness to provide, subject to completion of mutually acceptable
documentation, financing to the Company on the same terms set forth in the
Subsequent Placement Notice. If the Investors shall fail to notify the Company
of its intention to enter into such negotiations within such time period, the
Company may effect the Subsequent Placement substantially upon the terms and to
the Persons set forth in the Subsequent Placement Notice; provided, that the
Company shall provide the Investors with a second Subsequent Placement Notice,
and the Investors shall again have the right of first refusal set forth above in
this paragraph, if the Subsequent Placement subject to the initial Subsequent
Placement Notice shall not have been consummated for any reason on the terms set
forth in such Subsequent Placement Notice within 30 Trading Days after the date
of the initial Subsequent Placement Notice with the Person identified in the
Subsequent Placement Notice. The Subsequent Placement shall be allocated among
the Investors on a pro rata basis by reference to the purchase price indicated
below the Investor's name on the signature pages to this Agreement, or in such
other manner as the Investors shall determine. Notwithstanding anything to the
contrary contained in this section, it shall be a prerequisite for an Investor
to participate in a Subsequent Placement that the Investor (1) owns shares of
the Company's Common Stock, and (2) in its response to a Subsequent Placement
Notice represents that such Investor owns shares of Common Stock. A "Strategic
Transaction" shall mean a transaction or relationship in which the Company
issues Common Stock to an entity which is, itself or through its subsidiaries,
an operating company whose primary business is not the investment of securities
and that is engaged in business with the Company from which the Company derives
significant business benefit.
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Section 2 Placement Agent
The parties agree that Atlas Capital Services, LLC will be paid
by the Company a placement fee equal to (i) 4% of the gross purchase price paid
by the Investors for any securities sold to the Investors in a Subsequent
Placement under this Agreement, payable in cash as directed by Atlas Capital
Services, LLC, and (ii) a common stock purchase warrant (in the form of the
warrant issued to Atlas Capital Services, LLC in connection with the Purchase
Agreement) to acquire a number of shares of Common Stock equal to 3% of the
securities (including shares issuable in connection with sales of Common Stock
Equivalents) sold to the Investors in such Subsequent Placements.
Section 3 Miscellaneous
(a) Each party, by its execution and delivery of this Agreement,
hereby represents to each other party that (i) it has the requisite power and
legal capacity to enter into and consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder, (ii) the
execution, delivery and performance by such party of this Agreement has been
duly authorized by all necessary action on the part of such party, and (iii)
this Agreement constitutes the valid and binding commitment of such party,
enforceable against it, in accordance with its terms.
(b) For all purposes hereof the parties agree that this Agreement
shall be executed and delivered immediately following the execution and delivery
of the Purchase Agreement.
(c) Other than Atlas Capital Services, LLC, this Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
GENERAL MAGIC, INC.
By: /s/ X. X. XXXXXX
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Name: Xxxxxxxx X. Xxxxxx
Title: President and CEO
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
XXXXXX XXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Director
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
STRONG RIVER INVESTMENTS LTD.
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Attorney-in-Fact
