EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Ladies & Gentlemen:
The undersigned, _________________________________(the "Investor"),
hereby confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of _______ __,
2000 between Puma Technology, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company has authorized the sale and issuance of up to ________
shares (the "Shares") of common stock of the Company, $0.001 par value per
share (the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor ___________
Shares, for a purchase price of $_______ per share, or an aggregate purchase
price of $_______________ (the foregoing Share amounts are on a pre- 2-for-1
stock split basis; the number of Shares to be delivered to the Investor for
purposes of Section 3 of Annex I will be post-split), pursuant to the Terms
and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein. Unless
otherwise requested by the Investor, certificates representing the Shares
purchased by the Investor will be registered in the Investor's name and
address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three
years with the Company or persons known to it to be affiliates of the
Company, (b) neither it, nor any group of which it is a member or to which it
is related, beneficially owns (including the right to acquire or vote) any
securities of the Company and (c) it has no direct or indirect affiliation or
association with any member of the National Association of Securities Dealers
as of the date hereof. Exceptions:
________________________________________________________________________________
_______________________________________________________________________________.
(If no exceptions, write "none." If left blank, response will be deemed to
be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose. By
executing this Agreement, you acknowledge that the Company may use the
information in paragraph 4 above and the name and address information below
in preparation of the Registration Statement (as defined in Annex I).
AGREED AND ACCEPTED:
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PUMA TECHNOLOGY, INC. "INVESTOR"
--------------------------------- -----------------------------------------
By: By:
Title: Print Name:
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Title:
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Address:
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Tax ID No.:
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Contact name:
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Telephone:
Name in which shares should be registered
(if different):
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. AUTHORIZATION AND SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
________ Shares. The Company reserves the right to increase or decrease this
number.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES; SUBSCRIPTION DATE.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon
the terms and conditions hereinafter set forth, the number of Shares set
forth on the signature page hereto at the purchase price set forth on such
signature page.
2.2 The Company may enter into this same form of Stock Purchase
Agreement with certain other investors (the "Other Investors") and expects to
complete sales of Shares to them. (The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the "Agreements.") The
Company may accept executed Agreements from Investors for the purchase of
Shares commencing upon the date on which the Company provides the Investors
with the proposed purchase price per Share and concluding upon the date (the
"Subscription Date") on which the Company has (i) executed Agreements with
Investors for the purchase of at least _______ Shares, and (ii) notified the
Investors in writing that it is no longer accepting Agreements from Investors
for the purchase of Shares. The Company may not enter into any Agreements
after the Subscription Date.
3. DELIVERY OF THE SHARES AT CLOSING. The completion of the
purchase and sale of the Shares (the "Closing") shall occur (the "Closing
Date") on ________ __, 2000, at the offices of the Company's counsel. At the
Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature
page hereto, PROVIDED THAT if the Closing Date is after March 8, 2000 but on
or before March 22, 2000, the Company shall deliver to the Investor one or
more stock certificates representing one-half of the number of Shares set
forth on the signature page hereto, and in any event, each such certificate
to be registered in the name of the Investor or, if so indicated on the
signature page hereto, in the name of a nominee designated by the Investor.
If the Closing Date is after March 8, 2000 but on or before March 22, 2000,
the Company will deliver one or more stock certificates representing the
other half of the number of Shares set forth on the signature page hereto on
or promptly after March 22, 2000, each such certificate registered in
accordance with the preceding sentence.
The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived
by the Company: (a) receipt by the Company of a certified or official bank
check or wire transfer of funds in the full amount of the purchase price for
the Shares being purchased hereunder as set forth on the signature page
hereto; (b) completion of the purchases and sales under the Agreements with
the Other Investors; and (c) the accuracy of the representations and
warranties made by the Investors and the fulfillment of those undertakings of
the Investors to be fulfilled prior to the Closing.
The Investor's obligation to purchase the Shares shall be subject to
the following conditions, any one or more of which may be waived by the
Investor: (a) Investors shall have executed Agreements for the purchase of at
least _______ Shares, (b) the representations and warranties of the Company
set forth herein shall be true and correct as of the Closing Date in all
material respects and (c) the Investor shall have received (i) such documents
as such Investor shall reasonably have requested prior to execution of this
Agreement and delivery of the purchase price for its Shares purchased
hereunder and (ii) a standard opinion of Company counsel as to the matters
set forth in Section 4.2 and as to exemption from the registration
requirements of the Securities Act of 1933, as amended, of the sale of the
Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to, and covenants with, the Investor,
as follows:
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4.1 ORGANIZATION. The Company is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries (as defined in Rule
405 under the Securities Act of 1933, as amended (the "Securities Act")) has
full power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and as described in the
confidential offering memorandum, dated March 3, 2000 distributed in
connection with the sale of the Shares (including the documents incorporated
by reference therein, the "Placement Memorandum") and is registered or
qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be
so qualified would have a material adverse effect upon the business,
financial condition, properties or operations of the Company and its
Subsidiaries, considered as one enterprise, and no proceeding has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or
qualification.
4.2 DUE AUTHORIZATION AND VALID ISSUANCE. The Company has all
requisite power and authority to execute, deliver and perform its obligations
under the Agreements, and the Agreements have been duly authorized and
validly executed and delivered by the Company and constitute legal, valid and
binding agreements of the Company enforceable against the Company in
accordance with their terms, except as rights to indemnity and contribution
may be limited by state or federal securities laws or the public policy
underlying such laws, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law). The Shares being purchased by the Investor hereunder will, upon
issuance pursuant to the terms hereof, be duly authorized, validly issued,
fully-paid and nonassessable.
4.3 NON-CONTRAVENTION. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company
under the Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict
with or constitute a violation of, or default (with the passage of time or
otherwise) under, (i) any material bond, debenture, note or other evidence of
indebtedness, lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the
Company or any Subsidiary is a party or by which it or any of its
Subsidiaries or their respective properties are bound, (ii) the charter,
by-laws or other organizational documents of the Company or any Subsidiary,
or (iii) any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the
Company or any Subsidiary or their respective properties, or (B) result in
the creation or imposition of any lien, encumbrance, claim, security interest
or restriction whatsoever upon any of the material properties or assets of
the Company or any Subsidiary or an acceleration of indebtedness pursuant to
any obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any material
indenture, mortgage, deed of trust or any other agreement or instrument to
which the Company or any Subsidiary is a party or by which any of them is
bound or to which any of the property or assets of the Company or any
Subsidiary is subject. No consent, approval, authorization or other order
of, or registration, qualification or filing with, any regulatory body,
administrative agency, or other governmental body in the United States or any
other person is required to be made or received by the Company for the
execution and delivery of the Agreements and the valid issuance and sale of
the Shares to be sold pursuant to the Agreements, other than such as have
been made or obtained, or as may be required by securities laws of foreign
countries, and except for any post-closing securities filings or
notifications required to be made under federal or state securities laws.
4.4 CAPITALIZATION. The capitalization of the Company as of
February 25, 2000 is as set forth in the Placement Memorandum (excluding
unvested options and treasury shares). The Company has not issued any
capital stock since that date other than pursuant to (i) employee benefit
plans disclosed in the Placement Memorandum, or (ii) outstanding warrants or
options disclosed in the Placement Memorandum. The Shares to be sold
pursuant to the Agreements have been duly authorized, and when issued and
paid for in accordance with the terms of the Agreements will be duly and
validly issued, fully paid and nonassessable. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. Except as
set forth in or contemplated by the Placement Memorandum, there are no
outstanding rights (including, without limitation, preemptive rights),
warrants or options to acquire, or instruments convertible into or
exchangeable for, any unissued shares of capital stock or
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other equity interest in the Company or any Subsidiary, or any contract,
commitment, agreement, understanding or arrangement of any kind to which the
Company is a party or of which the Company has knowledge and relating to the
issuance or sale of any capital stock of the Company or any Subsidiary, any
such convertible or exchangeable securities or any such rights, warrants or
options. Without limiting the foregoing, no preemptive right, co-sale right,
right of first refusal, registration right, or other similar right exists
with respect to the Shares or the issuance and sale thereof. No further
approval or authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the Shares. The
Company owns the entire equity interest in each of its Subsidiaries, free and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest, other than as described in the Placement Memorandum. Except as
disclosed in the Placement Memorandum, there are no stockholders agreements,
voting agreements or other similar agreements with respect to the Common
Stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company's stockholders.
4.5 LEGAL PROCEEDINGS. There is no material legal or
governmental proceeding pending or, to the knowledge of the Company,
threatened to which the Company or any Subsidiary is or may be a party or of
which the business or property of the Company or any Subsidiary is subject
that is not disclosed in the Placement Memorandum.
4.6 NO VIOLATIONS. Neither the Company nor any Subsidiary is
in violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any
court or governmental agency, arbitration panel or authority applicable to
the Company or any Subsidiary, which violation, individually or in the
aggregate, would be reasonably likely to have a material adverse effect on
the business or financial condition of the Company and its Subsidiaries,
considered as one enterprise, or is in default (and there exists no condition
which, with the passage of time or otherwise, would constitute a default) in
any material respect in the performance of any bond, debenture, note or any
other evidence of indebtedness in any indenture, mortgage, deed of trust or
any other material agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or
by which the properties of the Company or any Subsidiary are bound, which
would be reasonably likely to have a material adverse effect upon the
business or financial condition of the Company and its Subsidiaries,
considered as one enterprise.
4.7 GOVERNMENTAL PERMITS, ETC. With the exception of the
matters which are dealt with separately in Section 4.1, 4.12, 4.13, and 4.14,
each of the Company and its Subsidiaries has all necessary franchises,
licenses, certificates and other authorizations from any foreign, federal,
state or local government or governmental agency, department, or body that
are currently necessary for the operation of the business of the Company and
its Subsidiaries as currently conducted and as described in the Placement
Memorandum except where the failure to currently possess could not reasonably
be expected to have a material adverse effect.
4.8 INTELLECTUAL PROPERTY. Except as specifically disclosed
under "Risk Factors" in the Placement Memorandum (i) each of the Company and
its Subsidiaries owns or possesses sufficient rights to use all material
patents, patent rights, trademarks, copyrights, licenses, inventions, trade
secrets, trade names and know-how (collectively, "Intellectual Property")
described or referred to in the Placement Memorandum as owned or possessed by
it or that are necessary for the conduct of its business as now conducted or
as proposed to be conducted as described in the Placement Memorandum except
where the failure to currently own or possess would not have a material
adverse effect on the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and its
Subsidiaries considered as one enterprise, (ii) neither the Company nor any
of its Subsidiaries has received any notice of, or has any knowledge of, any
infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business of the Company
and its Subsidiaries considered as one enterprise and (iii) neither the
Company nor any of its Subsidiaries has received any notice of any
infringement of rights of a third party with respect to any Intellectual
Property that, individually or in the aggregate, would have a material
adverse effect upon the business or financial condition of the Company and
its Subsidiaries, considered as one enterprise.
4.9 FINANCIAL STATEMENTS. The financial statements of the
Company and the related notes contained in the Placement Memorandum present
fairly, in accordance with generally accepted accounting principles, the
financial position of the Company and its Subsidiaries as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified. Such financial statements (including the related notes)
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have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods therein
specified, except as disclosed in the Placement Memorandum. The other
financial information contained in the Placement Memorandum has been prepared
on a basis consistent with the financial statements of the Company.
4.10 NO MATERIAL ADVERSE CHANGE. Except as disclosed in the
Placement Memorandum, since October 31, 1999, there has not been (i) any
material adverse change in the financial condition or earnings of the Company
and its Subsidiaries considered as one enterprise nor has any material
adverse event occurred to the Company or its Subsidiaries, (ii) any material
adverse event affecting the Company, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries considered
as one enterprise, incurred by the Company, except obligations incurred in
the ordinary course of business, (iv) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the
physical property of the Company or any of its Subsidiaries which has been
sustained which has a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the
Company and its Subsidiaries considered as one enterprise.
4.11 DISCLOSURE. The information contained in the Placement
Memorandum as of the date hereof and as of the Closing Date, did not and
shall not contain 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 were made,
not misleading.
4.12 NASDAQ COMPLIANCE. The Company's Common Stock is
registered pursuant to Section 12(g) of the Exchange Act and is listed on The
Nasdaq Stock Market, Inc. National Market (the "Nasdaq National Market"), and
the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
de-listing the Common Stock from the Nasdaq National Market, nor has the
Company received any notification that the Securities and Exchange Commission
(the "SEC") or the National Association of Securities Dealers, Inc. ("NASD")
is contemplating terminating such registration or listing.
4.13 REPORTING STATUS. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") during the 12 months
preceding the date of this Agreement. The following documents complied in
all material respects with the SEC's requirements as of their respective
filing dates, and the information contained therein as of the date thereof
did not contain 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 where they were made
not misleading:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended July 31, 1999, containing audited financial
statements for the fiscal year ended July 31, 1999.
(b) The Company's Definitive Proxy Statement Filed with the SEC
on November 22, 1999 in connection with the 1999 Annual
Meeting of Stockholders.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended October 31, 1999.
(d) The Company's Current Report on Form 8-K filed with the SEC
on February 25, 2000.
(e) All other documents, if any, filed by the Company with the
SEC since March 3, 2000 pursuant to the reporting
requirements of the Exchange Act.
4.14 LISTING. The Company shall comply with all requirements of
the National Association of Securities Dealers, Inc. with respect to the
issuance of the Shares and the listing thereof on the Nasdaq National Market.
4.15 NO MANIPULATION OF STOCK. The Company has not taken and
will not, in violation of applicable law, take, any action designed to or
that might reasonably be expected to cause or result in stabilization or
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manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
5.1 The Investor represents and warrants to, and covenants
with, the Company that: (i) the Investor is an "accredited investor" as
defined in Regulation D under the Securities Act and the Investor is also
knowledgeable, sophisticated and experienced in making, and is qualified to
make decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company and investments in comparable
companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the
Shares; (ii) the Investor is acquiring the number of Shares set forth on the
signature page hereto in the ordinary course of its business and for its own
account for investment only and with no present intention of distributing any
of such Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares; (iii) the Investor will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except in compliance with the Securities Act,
applicable state securities laws and the respective rules and regulations
promulgated thereunder; (iv) the Investor has answered all questions on the
signature page hereto for use in preparation of the Registration Statement
and the answers thereto are true and correct as of the date hereof and will
be true and correct as of the Closing Date; (v) the Investor will notify the
Company immediately of any change in any information provided to the Company,
to the extent the Company requires any such changed information in order to
comply with any law or any regulation or rule of any government agency, the
National Association of Securities Dealers or the Nasdaq National Market
applicable to the Company, until such time as the Investor has sold all of
its Shares or until the Company is no longer required to keep the
Registration Statement effective; and (vi) the Investor has, in connection
with its decision to purchase the number of Shares set forth on the signature
page hereto, relied only upon the Placement Memorandum and the
representations and warranties of the Company contained herein. Investor
understands that its acquisition of the Shares has not been registered under
the Securities Act or registered or qualified under any state securities law
in reliance on specific exemptions therefrom, which exemptions may depend
upon, among other things, the bona fide nature of the Investor's investment
intent as expressed herein. Investor has completed or caused to be completed
and delivered to the Company the Investor Questionnaire attached to the
Placement Memorandum, which questionnaire is true and correct in all material
respects. Investor agrees to furnish promptly to the Company such
information regarding such Investor and the distribution proposed by such
Investor as the Company may reasonably request in order to prepare the
Registration Statement and to the extent the Company requires any such
information in order to comply with any law or any regulation or rule of any
government agency, the National Association of Securities Dealers or the
Nasdaq National Market applicable to the Company.
5.2 The Investor acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction outside the United
States by the Company that would permit an offering of the Shares, or
possession or distribution of offering materials in connection with the issue
of the Shares, in any jurisdiction outside the United States where legal
action by the Company for that purpose is required. Each Investor outside
the United States will comply with all applicable laws and regulations in
each foreign jurisdiction in which it purchases, offers, sells or delivers
Shares or has in its possession or distributes any offering material, in all
cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make
any sale of the Shares without complying with the provisions of this
Agreement and without causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Investor acknowledges that the
certificates evidencing the Shares will be imprinted with a legend that
prohibits their transfer except in accordance therewith. The Investor
acknowledges that there may occasionally be times when the Company determines
that it must suspend the use of the Prospectus forming a part of the
Registration Statement, as set forth in Section 7.2(c).
5.4 The Investor further represents and warrants to, and
covenants with, the Company that (i) the Investor has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and (ii)
this Agreement constitutes a valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties'
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rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and except as the indemnification
agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not use any of the restricted Shares acquired
pursuant to this Agreement to cover any short position in the Common Stock of
the Company if doing so would be in violation of applicable securities laws.
5.6 The Investor understands that nothing in the Placement
Memorandum, this Agreement or any other materials presented to the Investor
in connection with the purchase and sale of the Shares constitutes legal, tax
or investment advice. The Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of Shares.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the
delivery to the Investor of the Shares being purchased and the payment
therefor.
7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND OTHER MATTERS. The Company
shall:
(a) subject to receipt of necessary information from the
Investors after prompt request from the Company to the Investors to provide
such information, use its reasonable best efforts to prepare and file with
the SEC, within 35 days after the Closing Date, a registration statement (the
"Registration Statement") to enable the resale of the Shares by the Investors
from time to time through the automated quotation system of the Nasdaq
National Market or in privately-negotiated transactions;
(b) will use its reasonable best efforts to file with the
SEC on or prior to 30 days from the Closing a Current Report on Form 8-K
which includes the financial statements required by Regulation S-X for such
Registration Statement reflecting the acquisition of NetMind Technologies,
Inc. in a pooling of interests transactions;
(c) use its reasonable best efforts, subject to receipt
of necessary information from the Investors after prompt request from the
Company to the Investors to provide such information, to cause the
Registration Statement to become effective within 30 days after the
Registration Statement is filed by the Company such efforts to include,
without limiting the generality of the foregoing, preparing and filing with
the SEC in such 30-day period any financial statements that are required to
be filed prior to the effectiveness of such Registration Statement;
(d) use its reasonable efforts to prepare and file with
the SEC such amendments and supplements to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement current and effective for a period not exceeding, with
respect to each Investor's Shares purchased hereunder, the earlier of (i) the
second anniversary of the Closing Date, (ii) the date on which the Investor
may sell all Shares then held by the Investor without restriction by the
volume limitations of Rule 144(e) of the Securities Act, or (iii) such time
as all Shares purchased by such Investor in this Offering have been sold
pursuant to a registration statement.
(e) furnish to the Investor with respect to the Shares
registered under the Registration Statement such number of copies of the
Registration Statement, Prospectuses and Preliminary Prospectuses in
conformity with the requirements of the Securities Act and such other
documents as the Investor may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares by the Investor;
provided, however, that the obligation of the Company to deliver copies of
Prospectuses or Preliminary Prospectuses to the Investor shall be subject to
the receipt by the Company of reasonable assurances from the Investor that
the Investor will comply with the applicable provisions of the Securities Act
and of such other securities or blue sky laws as may be applicable in
connection with any use of such Prospectuses or Preliminary
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Prospectuses;
(f) file documents required of the Company for normal
blue sky clearance in states specified in writing by the Investor; provided,
however, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented;
(g) bear all expenses in connection with the procedures
in paragraph (a) through (f) of this Section 7.1 and the registration of the
Shares pursuant to the Registration Statement; and
(h) advise the Investor, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration Statement or of
the initiation or threat of any proceeding for that purpose; and it will
promptly use its reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal at the earliest possible moment if such stop
order should be issued.
Notwithstanding anything to the contrary herein, the Registration
Statement shall cover only the Shares.
The Company understands that the Investor disclaims being an
underwriter, but the Investor being deemed an underwriter by the SEC shall
not relieve the Company of any obligations it has hereunder; PROVIDED,
HOWEVER that if the Company receives notification from the SEC that the
Investor is deemed an underwriter, then the period by which the Company is
obligated to submit an acceleration request to the SEC shall be extended to
the earlier of (i) the 90th day after such SEC notification, or (ii) 120 days
after the initial filing of the Registration Statement with the SEC.
7.2 TRANSFER OF SHARES AFTER REGISTRATION; SUSPENSION.
(a) The Investor agrees that it will not effect any
disposition of the Shares or its right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act except as
contemplated in the Registration Statement referred to in Section 7.1 and as
described below or as otherwise permitted by law, and that it will promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Investor or its plan of distribution to
the extent such changes would be required to be reflected in such
Registration Statement or an amendment thereto.
(b) Except in the event that paragraph (c) below applies,
the Company shall (i) if deemed necessary by the Company, prepare and file
from time to time with the SEC a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that such Registration Statement will not contain 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 not
misleading, and so that, as thereafter delivered to purchasers of the Shares
being sold thereunder, such Prospectus will not contain 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 were made, not misleading; (ii) provide the
Investor copies of any documents filed pursuant to Section 7.2(b)(i); and
(iii) inform each Investor that the Company has complied with its obligations
in Section 7.2(b)(i) (or that, if the Company has filed a post-effective
amendment to the Registration Statement which has not yet been declared
effective, the Company will notify the Investor to that effect, will use its
reasonable efforts to secure the effectiveness of such post-effective
amendment as promptly as possible and will promptly notify the Investor
pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of
any request by the SEC or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or related Prospectus
or for additional information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; or (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for
7
such purpose; or (iv) of any event or circumstance which, upon the advice of
its counsel, necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
any omission to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; then the Company shall, deliver a
certificate in writing to the Investor (the "Suspension Notice") to the
effect of the foregoing and, upon receipt of such Suspension Notice, the
Investor will refrain from selling any Shares not already sold pursuant to
the Registration Statement (a "Suspension") until the Investor's receipt of
copies of a supplemented or amended Prospectus prepared and filed by the
Company, or until it is advised in writing by the Company that the current
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in any such Prospectus. In the event of any Suspension, the
Company will use its reasonable efforts to cause the use of the Prospectus so
suspended to be resumed as soon as reasonably practicable within 20 business
days after the delivery of a Suspension Notice to the Investor. In addition
to and without limiting any other remedies (including, without limitation, at
law or at equity) available to the Investor, the Investor shall be entitled
to specific performance in the event that the Company fails to comply with
the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this
Section 7.2, the Investor shall not be prohibited from selling Shares under
the Registration Statement as a result of Suspensions on more than three
occasions of not more than 30 days each in any twelve month period, unless,
in the good faith judgment of the Company's Board of Directors, upon advice
of counsel, the sale of Shares under the Registration Statement in reliance
on this paragraph 7.2(d) would be reasonably likely to cause a violation of
the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect the
Investor may sell Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such
Shares. Upon receipt of a request therefor, the Company has agreed to provide
an adequate number of current Prospectuses to the Investor and to supply
copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor
pursuant to the Registration Statement, the Investor must also deliver to the
Company's transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached hereto, so that the Shares
may be properly transferred.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the Investor
and any affiliate of such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless
each Selling Stockholder from and against any losses, claims, damages or
liabilities to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon (i) any untrue statement of a material fact contained in the
Registration Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the Company will
reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any
such action, proceeding or claim, or preparing to defend any such action,
proceeding or claim, PROVIDED, HOWEVER, that the Company shall not be liable
in
8
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Selling Stockholder
specifically for use in preparation of the Registration Statement or the
failure of such Selling Stockholder to comply with its covenants and
agreements contained in Section 7.2 hereof respecting sale of the Shares or
any statement or omission in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Investor prior to the
pertinent sale or sales by the Investor. The Company shall reimburse each
Selling Stockholder for the amounts provided for herein on demand after such
expenses are incurred but prior to final determination of any lawsuits or
other legal proceedings.
(b) The Investor agrees to indemnify and hold harmless
the Company (and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or
any such officer, director or controlling person) may become subject (under
the Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, (i) any failure to comply with the covenants and agreements
contained in Section 7.2 hereof respecting sale of the Shares, or (ii) any
untrue statement of a material fact contained in the Registration Statement
if such untrue statement was made in reliance upon and in conformity with
written information furnished by or on behalf of the Investor specifically
for use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as
the case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim; PROVIDED that the Investor's obligation to indemnify the Company
shall be limited to the net amount received by the Investor from the sale of
the Shares.
(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.3, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, but the omission
to so notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party under this Section 7.3 (except to
the extent that such omission materially and adversely affects the
indemnifying party's ability to defend such action) or from any liability
otherwise than under this Section 7.3. Subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified
person, the indemnifying person shall be entitled to participate therein,
and, to the extent that it shall elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, PROVIDED, HOWEVER,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be responsible
for the fees and expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no event shall
any indemnifying person be liable in respect of any amounts paid in
settlement of any action unless the indemnifying person shall have approved
the terms of such settlement; PROVIDED that such consent shall not be
unreasonably withheld. No indemnifying person shall, without the prior
written consent of the indemnified person, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified person
is or could have been a party and indemnification could have been sought
hereunder by such indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section
7.3 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
9
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on
the one hand and the Investor, as well as any other Selling Stockholders
under such registration statement on the other in connection with the
statements or omissions or other matters which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, in the case of an untrue
statement, whether the untrue statement relates to information supplied by
the Company on the one hand or an Investor or other Selling Stockholder on
the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement. The Company and
the Investor agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Investor and other Selling Stockholders were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), the Investor shall not be required to
contribute any amount in excess of the amount by which the net amount
received by the Investor from the sale of the Shares to which such loss
relates exceeds the amount of any damages which such Investor has otherwise
been required to pay by reason of such untrue statement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Investor's obligations in
this subsection to contribute shall be in proportion to its Investor sale of
Shares to which such loss relates and shall not be joint with any other
Selling Stockholders.
(e) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof including, without
limitation, the provisions of this Section 7.3, and are fully informed
regarding said provisions. They further acknowledge that the provisions of
this Section 7.3 fairly allocate the risks in light of the ability of the
parties to investigate the Company and its business in order to assure that
adequate disclosure is made in the Registration Statement as required by the
Act and the Exchange Act. The parties are advised that federal or state
public policy as interpreted by the courts in certain jurisdictions may be
contrary to certain of the provisions of this Section 7.3, and the parties
hereto hereby expressly waive and relinquish any right or ability to assert
such public policy as a defense to a claim under this Section 7.3 and further
agree not to attempt to assert any such defense.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of
the Shares shall cease and terminate as to any particular number of the
Shares when such Shares shall have been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the
intended method of disposition set forth in the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory to
the Company shall have been rendered to the effect that such conditions are
not necessary in order to comply with the Securities Act.
7.5 INFORMATION AVAILABLE. So long as the Registration
Statement is effective covering the resale of Shares owned by the Investor,
the Company will furnish to the Investor:
(a) as soon as practicable after it is available, one
copy of (i) its Annual Report to Stockholders (which Annual Report shall
contain financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public accountants),
(ii) its Annual Report on Form 10-K and (iii) its Quarterly Reports on Form
10-Q (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Investor, all exhibits
excluded by the parenthetical to subparagraph (a) of this Section 7.5 as
filed with the SEC and all other information that is made available to
stockholders; and
(c) upon the reasonable request of the Investor, an
adequate number of copies of the Prospectuses to supply to any other party
requiring such Prospectuses; and the Company, upon the reasonable request of
the Investor, will meet with the Investor or a representative thereof at the
Company's headquarters to discuss all information relevant for disclosure in
the Registration Statement covering the Shares and will otherwise cooperate
with any Investor conducting an investigation for the purpose of reducing or
eliminating such Investor's exposure to liability under the Securities Act,
including the reasonable production of information at the Company's
headquarters; provided, that the Company shall not be required to disclose
any confidential information to or meet at its headquarters with any Investor
until and unless the Investor shall have entered into a confidentiality
agreement in
10
form and substance reasonably satisfactory to the Company with the Company
with respect thereto.
8. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed (A) if within
domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by
International Federal Express or facsimile, and shall be deemed given (i) if
delivered by first-class registered or certified mail domestic, three
business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed, (iv) if
delivered by facsimile, upon electronic confirmation of receipt and shall be
delivered as addressed as follows:
(a) if to the Company, to:
Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
(b) with a copy to:
General Counsel Associates LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
(c) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as may have
been furnished to the Company in writing.
9. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
10. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed
to be part of this Agreement.
11. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware,
without giving effect to the principles of conflicts of law.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
14. RULE 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder (or, if the Company
is not required to file such reports, it will, upon the request of any
Investor holding Shares purchased hereunder made after the first anniversary
of the Closing Date, make publicly available such information as necessary to
permit sales pursuant to Rule 144 under the Securities Act), and it will take
such further action as any such Investor may reasonably request, all to the
extent required from time to time to enable such Investor to sell Shares
purchased hereunder without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the SEC. Upon the request of the
Investor, the Company will deliver to such holder a written statement as to
whether it has complied with such information and requirements.
11
