Exhibit 2.3
SPEAR TECHNOLOGIES, INC.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
March __, 2000
This Series C Preferred Stock Purchase Agreement (this "Agreement") is
entered into as of the date set forth above between Spear Technologies, Inc., a
California corporation (the "Company") and the undersigned purchaser
("Purchaser"). The parties hereby agree as follows:
SECTION 1
AUTHORIZATION AND SALE OF SECURITIES
Authorization. The Company has authorized the sale and issuance
pursuant to the terms and conditions hereof of up to _________________________
(...........) shares of its Series C Preferred Stock (the "Securities") having
the rights, restrictions, privileges and preferences set forth in the Second
Amended and Restated Articles of Incorporation (the "Restated Articles") to be
filed with the California Secretary of State in substantially the form
attached hereto as Exhibit A.
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Sale of Securities. Subject to the terms and conditions hereof, the
Company will issue and sell to Purchaser, and Purchaser will purchase from the
Company, the number of Securities set forth above in exchange for the
surrender of the warrant issued by the Company to Purchaser dated as of
November 14, 1997 (the "Warrant"). Surrender of the Warrant shall occur
immediately prior to the closing.
SECTION 2
CLOSING; DELIVERY
Closing. The closing of the purchase by the Purchaser and the sale by
the Company of the Securities shall be held at the offices of Xxxx Xxxx Xxxx &
Freidenrich LLP, counsel to the Company, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000,
Xxx Xxxxx, XX, 00000, on March ___, 2000, or at such other time and place as
the Company and Purchaser may agree in writing. The closing referred to in
this Section 2.1 shall be hereinafter referred to as the "Closing" and the
date thereof shall be the "Closing Date."
Delivery. At the Closing, in exchange for the surrender of the
Warrant, the Company will issue the Securities and deliver to Purchaser a
certificate in such Purchaser's name representing the Securities.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Schedule of Exceptions attached hereto as
Exhibit C, the Company hereby represents and warrants to Purchaser that the
statements in the following paragraphs of this Section 3 are true and correct as
of the date of this Agreement:
Organization and Standing. The Company is a corporation duly
incorporated and existing under the laws of the State of California and is in
good standing under such laws. The Company has the requisite corporate power
to own and operate its properties and assets, and to carry on its business as
presently conducted.
Authorization. All corporate action on the part of the Company, its
directors and shareholders necessary for the authorization, execution,
delivery and performance of this Agreement by the Company, the authorization,
sale, issuance and delivery of the Securities and the performance of the
Company's obligations hereunder has been taken prior to the Closing. This
Agreement, when executed and delivered by the Company, will constitute a valid
and binding obligation of the Company enforceable in accordance with its
terms, subject to (i) laws of general application relating to specific
performance, injunctive relief or other equitable remedies and (ii) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally.
Valid Issuance of Stock. When issued, sold and delivered in
accordance with the terms of this Agreement for the consideration provided for
herein, the Securities shall be duly authorized, validly issued, fully paid
and non-assessable and shall be free of any liens or encumbrances, except
those liens or encumbrances arising as a result of the ownership of the
Securities by Purchaser. Shares of Common Stock sufficient to permit the
conversion of the Securities have been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Restated Articles, will
be duly authorized, validly issued, fully paid and non-assessable.
Capitalization. Immediately prior to the Closing, the capitalization
of the Company will consist of the following:
Common Stock. A total of One Hundred Thirty Million
(130,000,000) authorized shares of Common Stock of which Eight Hundred
Sixty-four Thousand and Eighty-four (864,084) shares are issued and outstanding.
Preferred Stock. A total of Fifty-Nine Million (59,000,000)
authorized shares of Preferred Stock, consisting of Nine Million (9,000,000)
shares designated as Series A-1 Preferred Stock (the "Series A-1 Preferred"),
Seven Million Six Hundred Eleven Thousand Seven Hundred and Seventy-two
(7,611,772) shares of which are issued and outstanding, Forty-Five Million
(45,000,000) shares designated as Series B Preferred Stock (the "Series B
Preferred"),_______________ of which are issued and outstanding and Five Million
(5,000,000) shares of Series C Preferred Stock, (the "Series C Preferred"), none
of which are issued and outstanding.
Options, Warrants and Convertible Notes. The Company has
reserved Twenty-Seven Million (27,000,000) shares of its Common Stock for future
issuance to employees, directors and officers of, and consultants to, the
Company under the 1998 Stock Option Plan (the "1998 Plan") as may be determined
by the Company's Board of Directors from time to time. Under the 1998 Plan,
there are options outstanding to purchase Five Million Five Thousand Six Hundred
Sixty-Eight (5,005,668) shares. In addition to the Warrant, additional warrants
are outstanding to purchase (i) up to One Million Two Hundred Twenty-Three
Thousand Eight Hundred One (1,223,801) shares of the Series A-1 Preferred at
$1.00 per share, (ii) up to Fifteen Million Five Thousand Five Hundred Fifty-One
(15,005,551) shares of Common Stock, and (iii) up to Three Million Sixty-Four
Thousand Ninety-Five (3,064,095) shares of the Series B Preferred.
Settlement Agreement. The Company has agreed to issue certain
holders of its Series A-1 Preferred Stock warrants to purchase shares of its
Common Stock for a nominal exercise price per share in the event it issues
shares of its stock of a type and at a price that would trigger the
anti-dilution provisions of the Restated Articles. The issuance of the Series B
Preferred Stock has triggered these provisions. The number of shares issuable
pursuant to these warrants is the difference between the number of shares of
Common Stock into which the shares of Series A-1 Preferred Stock held by these
parties or subject to warrants held by these parties (the "Subject Shares")
would convert if the Series A-1 Preferred Stock was entitled to full-ratchet
anti-dilution protection, or 21,000,000 shares, less the number of shares of
Common Stock into which the subject shares may convert under the
weighted-average anti-dilution provisions of the Restated Articles. Based on the
number of shares of the Series B Preferred Stock sold to date, the provisions of
the Restated Articles allow conversion of the Subject Shares into approximately
6,800,000 shares of Common Stock, resulting in an obligation to issue warrants
to these parties for approximately 14,200,000 shares of Common Stock.
Following the Closing, the rights, preferences and privileges of the
Securities will be as set forth in the Restated Articles and as provided by law.
Subsidiaries. As of the date hereof, the Company does not presently
own or control, directly or indirectly, any equity interest in any other
corporation, partnership, trust, joint venture, association or other entity.
Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with,
any federal, state or local governmental authority by the Company is required
in connection with the consummation of the transactions contemplated by this
Agreement except: (i) the filing of a Notice of Transaction pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as
amended, and the rules thereunder (the "California Securities Law"), and (ii)
such other qualifications or filings under the Securities Act of 1933, as
amended, and the regulations thereunder (the "Securities Act") and all other
applicable securities laws as may be required in connection with the
transactions contemplated by this Agreement. All such qualifications and
filings will, in the case of qualifications, be effective on the Closing and
will, in the case of filings, be made within the time prescribed by law.
Compliance with Law and Charter Documents. The Company is not in
violation or default of any provisions of its Restated Articles or Bylaws, as
amended to date. To the Company's knowledge, the Company is in compliance in
all material respects with all applicable statutes, laws, regulations and
executive orders of the United States of America and all states, foreign
countries or other governmental bodies and agencies having jurisdiction over
the Company's business or properties, except as where the failure to be in
compliance therewith could not reasonably be expected to have a material
adverse effect on the business, property, financial condition or results of
operations (a "Material Adverse Effect") of the Company.
Registration Rights. Except as provided in the Rights Agreement dated
as of the date hereof and attached hereto as Exhibit B, the Company has not
granted or agreed to grant to any person or entity any rights (including
piggyback registration rights) to have any securities of the Company
registered with the United States Securities and Exchange Commission ("SEC")
or any other governmental authority, except those piggyback registration
rights granted to (i) Silicon Valley Bank in its warrant to purchase
Thirty-Four Thousand Eight Hundred (34,800) shares of Series A-1 Preferred and
Twenty-Five Thousand Two Hundred (25,200) shares of Common Stock and (ii) to
Purchaser, in the Warrant.
Full Disclosure. This Agreement, the exhibits hereto, the Rights
Agreement and all other documents delivered by the Company to the Purchaser or
its attorneys or agents in connection herewith or therewith or with the
transactions contemplated hereby or thereby, do not contain any untrue
statement of a material fact nor, to the Company's knowledge, omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. Notwithstanding the foregoing, the projected quarterly
balance sheets, income statements and statements of cash flow for the years
2000 and 2001 (the "Projections") provided to the Purchaser were prepared by
the management of the Company in a good faith effort to describe the Company's
projected financial status at the applicable time period. The assumptions
applied in preparing the Projections appeared reasonable to management as of
the date they were prepared; however, there is no assurance that these
assumptions will prove to be valid or that the results set forth in the
Projections will be achieved. To the Company's knowledge, there are no facts
which (individually or in the aggregate) materially adversely affect the
business, assets, liabilities, financial condition, prospects or operations of
the Company that have not been set forth in the Agreement, the exhibits
hereto, the agreements referred to herein or in other documents delivered to
Purchaser or its attorneys or agents in connection herewith.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
IV.
Purchaser hereby represents and warrants as follows:
Authorization. This Agreement constitutes Purchaser's valid and
legally binding obligation, enforceable in accordance with its terms except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies. Purchaser represents that Purchaser has
full power and authority to enter into this Agreement.
Investment. Purchaser is acquiring the Securities for investment for
Purchaser's own account and not with the view to the public resale or
distribution thereof within the meaning of the Securities Act, and Purchaser
has no present intention of selling, granting any participation in, or
otherwise distributing the Securities. No other person has a direct or
indirect beneficial interest, in whole or in part, in such Securities.
Purchaser understands that the Securities have not been registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, which exemption depends upon, among other
things, the bona fide nature of Purchaser's investment intent as expressed
herein.
Relationship to Company; Sophistication. Purchaser (i) has a
preexisting business or personal relationship with the Company and/or any of
its officers, directors or controlling persons or (ii) by reason of
Purchaser's business or financial experience or the business or financial
experience of Purchaser's personal representative(s), if any, who are
unaffiliated with and who are not compensated, directly or indirectly, by the
Company or any affiliate or selling agent of the Company, has the capacity to
protect Purchaser's own interests in connection with Purchaser's acquisition
of the Securities.
Restrictions on Transfer. Purchaser acknowledges that the Securities
must be held indefinitely unless subsequently registered under the Securities
Act or the Company receives an opinion of counsel satisfactory to the Company
that such registration is not required. Purchaser is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale
of stock purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the stock, the availability of certain current public information
about the Company, the resale occurring not less than one year after a party
has purchased and paid for the stock to be sold, the sale being through a
"broker's transaction" or in transactions directly with a "market maker" and
the number of shares of the stock being sold during any three-month period not
exceeding specified limitations. Purchaser further acknowledges and
understands that the Company may not be satisfying the current public
information requirement of Rule 144 at the time Purchaser wishes to sell the
Securities; and, if so, Purchaser would be precluded from selling the
Securities under Rule 144 even if the one year minimum holding period has been
satisfied.
No Public Market. Purchaser understands that no public market now
exists for the Securities issued by the Company, that there can be no
assurance that a public market will ever exist for the Securities and that the
Company is under no obligation to register the Securities.
Exemption from Registration. Purchaser further acknowledges that, in
the event all of the requirements of Rule 144 are not met, compliance with
Regulation A or some other registration exemption will be required; and that,
although Rule 144 is not exclusive, the staff of the SEC has expressed its
opinion that persons proposing to sell private placement securities other than
in a registered offering and other than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, that such persons and the
brokers who participate in the transactions do so at their own risk, and that,
therefore, there is no assurance that any exemption from registration under
the Securities Act will be available or, if available, will allow such person
to dispose of, or otherwise transfer, all or any portion of the Securities.
Access to Data. Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management and the opportunity to inspect Company facilities and such books
and records and material contracts as Purchaser deemed necessary to its
determination to purchase the Securities.
Experience. Purchaser and/or Purchaser's personal representative(s)
have such knowledge and experience in financial, tax and business matters so
as to enable Purchaser and/or Purchaser's personal representative(s) to
utilize the information made available to Purchaser and/or Purchaser's
personal representative(s) in connection with the offering of the Securities,
to evaluate the merits and risks of the prospective investment and to make an
informed investment decision with respect thereto. Each personal
representative, if any, to Purchaser, in connection with Purchaser's
investment in the Securities, has confirmed in writing the specific details of
any and all past, present or future relationships, actual or contemplated,
between Purchaser or Purchaser's affiliates and the Company or any of
Purchaser's affiliates.
Purchaser's Liquidity. Purchaser (i) has adequate means of providing
for Purchaser's current needs and possible personal contingencies, (ii) has no
need for liquidity in Purchaser's investment, (iii) is able to bear the
substantial economic risks of an investment in the Securities for an
indefinite period and (iv) at the present time, can afford a complete loss of
such investment. Purchaser's commitment to investments which are not readily
marketable is not disproportionate to Purchaser's net worth and Purchaser's
investment in the Securities will not cause Purchaser's overall commitment to
become excessive.
Offer and Sale. Purchaser understands that the sale of the Securities
has not been registered under the Securities Act in reliance upon an exemption
therefrom. Purchaser was not offered or sold the Securities, directly or
indirectly, by means of any form of general solicitation or general
advertisement, including the following: (i) any advertisement, article, notice
or other communication published in any newspaper, magazine or similar medium
or broadcast over television or radio or (ii) any seminar or other meeting
whose attendees had been invited by general solicitation or general
advertising.
Risks. Purchaser is experienced in evaluating and investing in
high-risk technology companies such as the Company and by reason of
Purchaser's business and financial experience has the capacity to protect
Purchaser's own interests in connection with the acquisition of the Securities
and has the ability to bear the economic risk of Purchaser's investment.
Purchaser is aware that the Securities are highly speculative and that there
can be no assurance as to what return, if any, there may be. Purchaser is
aware that, subject to the provisions of the Restated Articles, the Company
may issue additional securities in the future which could result in the
dilution of Purchaser's ownership interest in the Company.
Investment Entity. Purchaser, if a corporation, partnership, trust or
other entity, is authorized and otherwise duly qualified to purchase and hold
the Securities; such entity has its principal place of business as set forth
on the signature page hereof; and such entity (i) has not been formed for the
specific purpose of acquiring Securities in the Company or (ii) each equity
owner thereof has executed and delivered simultaneously herewith a duly
completed Purchase Questionnaire.
Reliance. Purchaser has relied only upon the information provided to
him or her in writing by the Company, or information from books and records of
the Company. No oral representations have been made or oral information
furnished to Purchaser or his or her advisor(s) in connection with the
offering of the Securities which were not contained therein or were
inconsistent therewith.
SECTION 5
CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of Purchaser under Section 2 of this Agreement are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions, the waiver of which shall not be effective against any
Purchaser who does not consent to such waiver, which consent may be given by
written, oral or telephone communication to the Company or its counsel:
Representations and Warranties True. Each of the representations and
warranties of the Company contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
Performance. The Company shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing and shall have obtained all approvals, consents and
qualifications necessary to complete the purchase and sale described herein.
Restated Articles Effective. The Restated Articles shall have been duly
adopted by the Company by all necessary corporate action of its Board of
Directors and shareholders, and shall have been duly filed with and accepted by
the Secretary of State of the State of California.
Securities Exemptions. The offer and sale of the Securities to
Purchaser pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act, the qualification requirements of the
California Securities Law and the registration and/or qualification
requirements of all other applicable state securities laws.
Rights Agreement. The Rights Agreement shall have been executed and
delivered by the parties thereto.
SECTION 6
CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING
The Company's obligation to sell and issue the Securities at the
Closing is subject to the fulfillment or waiver by the Company of the following
conditions:
Representations and Warranties. The representations and warranties made
by the Purchaser in Section 4 hereof shall be true and correct when made and on
the Closing Date as if made on and as of the Closing Date.
Consents and Waivers. The Company shall have obtained any and all
consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
Surrender of Warrant. Purchaser shall have delivered to the Company
the Warrant.
Restated Articles Effective. The Restated Articles shall have been duly
adopted by the Company by all necessary corporate action of its Board of
Directors and shareholders, and shall have been duly filed with and accepted by
the Secretary of State of the State of California.
Securities Exemptions. The offer and sale of the Securities to
Purchaser pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act, the qualifications requirements of the
California Securities Law and the registration and/or qualification requirements
of all other applicable state securities laws.
SECTION 7
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
Restrictions on Transferability. The Securities shall not be
transferable except upon the conditions specified in this Section 7. Purchaser
will cause any proposed transferee of the Securities held by Purchaser to
agree to take and hold such Securities subject to the provisions and upon the
conditions specified in this Section 7.
Restrictive Legends. Each certificate representing the Securities,
and any other securities issued in respect of the Securities upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar
event (except as otherwise permitted by the provisions of this Section 7)
shall be stamped or otherwise imprinted with legends in substantially the
following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY
TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT."
Any other legends required by applicable state securities laws.
The Company need not register a transfer of legended Securities and may
also instruct its transfer agent not to register the transfer of the Securities,
unless the conditions specified in each of the foregoing legends are satisfied.
Removal of Legend and Transfer Restrictions. Any legend endorsed on a
certificate pursuant to Section 7.2 and the stop transfer instructions with
respect to such legended Securities shall be removed, and the Company shall
issue a certificate without such legend to the holder of such Securities if
such Securities are registered under the Securities Act and a prospectus
meeting the requirements of Section 10 of the Securities Act is available or
if such holder satisfies the requirements of Rule 144(k).
SECTION 8
MISCELLANEOUS
Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of California, without reference to principles
of conflict of laws or choice of law.
Survival. The representations, warranties, covenants and agreements
made herein shall survive the execution and delivery of this Agreement and the
Closing.
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.
Entire Agreement; Amendment. This Agreement and the exhibits to this
Agreement constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof. 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 Purchaser. Any amendment or waiver effected in accordance with this
section shall be binding upon the Company, Purchaser and each future holder of
the securities purchased hereunder.
Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger or
a nationally recognized overnight courier service, addressed (a) if to
Purchaser, at Purchaser's address set forth on Purchaser's signature page
hereto, or at such other address as Purchaser shall have furnished to the
Company in writing, (b) if to any other holder of any Securities, 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, to and at the address
of the last holder of such Securities who has so furnished an address to the
Company or (c) if to the Company, at the following address:
Spear Technologies, Inc.
Xxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
or at such other address as the Company shall have furnished to the Purchaser,
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx
All such notices, requests and other communications will (i) if delivered
personally or by express courier to the address as provided in this Section, be
deemed given upon delivery, or (ii) if delivered by facsimile transmission to
the facsimile number as provided in this Section, be deemed given upon receipt.
Any party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving ten (10) days'
prior written notice specifying such change to the other party hereto.
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.
Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
No Finder's Fees. Each party represents that it neither is nor will
be obligated for any finder's or broker's fee or commission in connection with
this transaction. Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of
a finders' or broker's fee (and any asserted liability) for which the
Purchaser or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless Purchaser from
any liability for any commission or compensation in the nature of a finder's
or broker's fee (and any asserted liability) for which the Company or any of
its officers, employees or representatives is responsible.
Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as
if such provision(s) were so excluded and shall be enforceable in accordance
with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Series C
Preferred Stock Purchase Agreement as of the date first set forth above.
SPEAR TECHNOLOGIES, INC.
By: ________________________________
Xxxxxxx Xxxxxxxx
President
COUNTERPART SIGNATURE PAGE TO
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
PURCHASER:
Name: ______________________________
(Please print or type)
Signature:_____________________________
Address: _____________________________
_____________________________
Exhibit A
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
Exhibit B
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
SPEAR TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
This Second Amended and Restated Rights Agreement (the "Agreement") is
entered into as of the 1st day of December, 1999, by and among Spear
Technologies, Inc., a California corporation (the "Company"), the undersigned
parties purchasing shares of the Company's Series B Preferred Stock on the date
hereof (the "Investors"), the undersigned holders of the Series A-1 Preferred
Stock of the Company (the "Prior Rights Holders"), the undersigned holders of
the Common Stock of the Company (the "Founders"), Silicon Valley Bank ("SVB")
and Tenera, Inc. ("Tenera"). The Prior Rights Holders and the Investors are
sometimes collectively referred to herein as the "Purchasers."
RECITALS
A. The Prior Rights Holders hold shares of the Company's Series A-1
Preferred Stock.
B. The Company, the Prior Rights Holders and the Founders have entered
into that certain Amended and Restated Rights Agreement, dated as
of March 29, 1999 (the "Prior Rights Agreement"), pursuant to the
terms of which the Company granted certain registration and other
rights to the Prior Rights Holders and the Founders.
C. On November 14, 1997 the Company granted a warrant to purchase shares of its
Common Stock to Tenera (the "Tenera Warrant"). Simultaneously with the grant of
the Tenera Warrant, the Company agreed to provide "piggy-back" registration
rights for the shares of the Company's Common Stock underlying the Tenera
Warrant. On the date hereof, Tenera surrendered the Tenera Warrant to the
Company in exchange for shares of the Company's Series C Preferred Stock (the
"Tenera Stock").
D. On August 10, 1998, the Company granted a warrant to purchase shares of its
Series A Preferred Stock to SVB (the "SVB Warrant"). Simultaneously with the
grant of the SVB Warrant, the Company agreed to provide "piggy-back"
registration rights for the shares of the Company's Common Stock underlying the
SVB Warrant (such Common Stock being hereinafter referred to as the "SVB Warrant
Stock").
E. On the date hereof, the Company has sold shares of its Series B
Preferred Stock to the Investors pursuant to a Series B Stock
Purchase Agreement dated of even date herewith (the "Purchase
Agreement").
F. By this Agreement, the Company and the Prior Rights Holders desire to
restate and amend the Prior Rights Agreement to provide certain
registration and other rights to the Investors, SVB and Tenera as set forth
herein, and to include in this agreement the separate rights granted to SVB
and Tenera, joining the Investors, SVB and Tenera as parties hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
Registration Rights.
Certain Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
"Affiliate" shall mean a person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, is under common control with, or is
a partner or a partner of a partner of a Holder.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Conversion Stock" shall mean the Common Stock issued or issuable upon
conversion of the Series A-1 Preferred Stock or the Series B Preferred Stock
held by the Purchasers, as well as shares of Common Stock received by holders of
the Series A Preferred Stock upon conversion of the Company's Series A Preferred
Stock into shares of Series A-1 Preferred Stock and Common Stock.
"Holder" shall mean any shareholder of the Company holding Registrable
Securities or securities convertible into Registrable Securities, and any person
holding Registrable Securities or securities convertible into Registrable
Securities to whom the rights under this Section 1 have been transferred in
accordance with Section 1.10.
"Initiating Holders" shall mean any Holder or Holders of at least fifty percent
(50%) of the Registrable Securities (adjusted after the original issuance
thereof for stock splits, stock dividends, recapitalizations and the like).
"Offered Stock" shall mean all Stock proposed to be Transferred by a Holder.
"Registrable Securities" shall mean (i) the Conversion Stock; (ii) the shares of
Common Stock underlying the Series A-1 Preferred Stock and the Common Stock
purchaseable pursuant to that certain warrant issued by the Company to Xxxxxx X.
Xxxx on January 30, 1998; (iii) the shares of Common Stock purchaseable upon
exercise of warrants to purchase Common Stock issued by the Company to the
parties to the Settlement Agreement among the Company and certain holders of the
Series A-1 Preferred Stock (the "Settlement Agreement") and (iv) stock issued in
respect of the stock referred to in (i) (ii) or (iii) as a result of a stock
split, stock dividend, recapitalization or the like, which has not been sold to
the public. Except for subsections 1.2 and 1.4, "Registrable Securities" shall
also include the common stock issuable upon conversion of the Tenera Stock.
Except for subsections 1.2, 1.4 and 4, "Registrable Securities" shall also
include the shares of Common Stock of the Company issued or issuable to the
Founders, the shares of Common Stock of the Company issued or issuable to those
officers and directors of the Company to whom the Board of Directors of the
Company by unanimous vote extends the registration rights contained in
subsection 1.3, and the SVB Warrant Stock.
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 the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise stated
below, incurred by the Company in complying with Sections 1.2, 1.3 and 1.4
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, 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) and the reasonable fees and disbursements of one counsel for all
Holders in the event of each registration provided for in Sections 1.2, 1.3 and
1.4 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling commissions
and stock transfer taxes applicable to the securities registered by the Holders
and, except as set forth above, all reasonable fees and disbursements of counsel
for the selling Holders.
"Stock" means and includes all shares of Common Stock issued and outstanding at
the relevant time plus (i) all shares of Common Stock that may be issued upon
exercise of any options, warrants and other rights of any kind that are then
exercisable, and (ii) all shares of Common Stock that may be issued upon
conversion of (A) any convertible securities, including, without limitation,
preferred stock and debt securities then outstanding, which are by their terms
then convertible into or exchangeable for Common Stock or (B) any such
convertible securities issuable upon exercise of options, warrants or other
rights that are then exercisable.
"Transfer" means and includes any sale, assignment, encumbrance, hypothecation,
pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or
other transfer or disposition of any kind, including but not limited to
transfers to receivers, levying creditors, trustees or receivers in bankruptcy
proceedings or general assignees for the benefit of creditors, whether voluntary
or by operation of law, directly or indirectly, except:
any bona fide pledge by a Holder if the pledgee executes a counterpart copy of
this Agreement and becomes bound thereby as a Holder;
any transfers of Stock by a Holder to such Holder's spouse, lineal descendant or
antecedent, father, mother, brother or sister of the Holder, the adopted child
or adopted grandchild of the Holder, or the spouse of any child, adopted child,
grandchild or adopted grandchild of the Holder, or to a trust or trusts for the
exclusive benefit of such Holder or such Holder's family members as described in
this Section, or transfers of Stock by a Holder by devise or descent, in all
cases if the transferee or other recipient executes a counterpart copy of this
Agreement and becomes bound thereby as a Holder;
any transfer of Stock by a Holder made: (A) pursuant to a merger or
consolidation of the Company with or into another corporation or corporations;
(B) pursuant to the winding up and dissolution of the Company; or (C) at, and
pursuant to, a firm commitment underwritten public offering; or
any transfer of Stock by a Holder to an Affiliate of such Holder, provided such
Affiliate agrees in writing to be bound by the provisions of this Agreement.
Requested Registration.
Request for Registration. In case the Company shall receive from Initiating
Holders a written request that the Company effect any registration with respect
to at least twenty-five percent (25%) of the then outstanding Registrable
Securities and the reasonably anticipated aggregate public offering price would
equal or exceed $5,000,000, the Company will:
promptly give written notice of the proposed registration, qualification or
compliance to all other Holders; and
as soon as practicable, use its best efforts to effect such registration,
qualification or compliance (including, without limitation, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within twenty (20) days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance pursuant
to this Section 1.2:
in any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
at any time prior to the later of three (3) months after the effective date of
the Company's initial public offering of its securities pursuant to a
registration statement declared effective under the Securities Act ("IPO"), or
three (3) years from the closing of the transactions contemplated by the
Purchase Agreement;
after the Company has effected two (2) such registrations pursuant to this
Section 1.2(a);
if the Company shall furnish to such Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its Holders for a
registration statement to be filed in the near future, then the Company's
obligation to use its best efforts to register, qualify or comply under this
Section 1.2 shall be deferred for a period not to exceed one hundred twenty
(120) days from the date of receipt of written request from the Initiating
Holders, provided that the Company may not use this right or the right under
Section 1.4(b)(iv) more than once in any twelve (12) month period; and
within six (6) months following the effective date of a prior registered
offering of the Company's securities.
Subject to the foregoing clauses (A) through (E), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders.
Underwriting. In the event that a registration pursuant to Section 1.2 is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as part of the notice given pursuant to Section 1.2(a)(i). In
such event, the right of any Holder to participate in such registration shall be
conditioned upon such Holder's participation in the underwriting arrangements
required by this Section 1.2, and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent requested shall be limited to the
extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 1.2, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all participating Holders and
the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice, on
or before the fifth day prior to the effectiveness of the registration
statement, to the Company, the managing underwriter and the Initiating Holders.
The Registrable Securities or other securities so withdrawn shall also be
withdrawn from registration, and such securities shall not be transferred in a
public distribution prior to ninety (90) days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require.
If the underwriter has not limited the number of Registrable Securities
to be underwritten, the Company may include securities for its own account (or
for the account of other purchasers) in such registration if the managing
underwriter so agrees and if the number of Registrable Securities that would
otherwise have been included in such registration and underwriting will not
thereby be limited.
Company Registration.
Notice of Registration. If at any time or from time to time the Company shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders, other than (i) a registration relating
solely to employee benefit plans, or (ii) a registration relating solely to a
Commission Rule 145 transaction, the Company will:
except in the case of a registration effected pursuant to Sections 1.2 or 1.4
hereof, promptly give to each Holder written notice thereof, and 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 twenty (20)
days after receipt of such written notice from the Company, by any Holder; and
promptly give to each Holder of the Registrable Securities issued or issuable
upon conversion of the Tenera Stock written notice thereof, and 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 issued or issuable upon conversion of the Tenera Stock specified in a
written request or requests, made within twenty (20) days after receipt of such
written notice from the Company, by any such holder of Series C Preferred Stock.
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 Sections
1.3(a)(i) or 1.3(a)(ii). In such event the right of any Holder to registration
pursuant to Section 1.3 shall be conditioned upon such Holder's participation in
such underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company, but subject
to the reasonable approval of Holders holding more than a majority of the
Registrable Securities to be included in such registration. Notwithstanding any
other provision of this Section 1.3, if the managing underwriter determines that
marketing factors require limitation of the number of shares to be underwritten,
the managing underwriter may limit the Registrable Securities to be included in
such registration. The Company shall so advise all Holders and other holders
distributing their securities through such underwriting, and the number of
shares of securities that may be included in the registration and underwriting
(other than in behalf of the Company) shall be allocated among all Holders and
such other holders (provided that such other holders have contractual rights to
participate in such registration which are not subordinate to the Holders) in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities or other securities requested to be included in such registration by
such Holders and such other holders; provided, however, in no event shall the
amount of Registrable Securities of the Holders included in the offering be
reduced below twenty percent (20%) of the total amount of securities included in
such offering, unless such offering is the initial public offering of the
Company's securities in which case the Holders may be excluded entirely if the
underwriters make the determination described above or the Holders holding a
majority of the Registrable Securities consent in writing to such a reduction;
and provided, further, that the Registrable Securities held by the Founders
shall be reduced before any reduction in the Registrable Securities to be
offered by 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 holder to the nearest one hundred (100) shares. If any Holder
or holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Except as set forth in Section 1.11, any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to ninety (90) days
after the effective date of the registration statement relating thereto, or such
other shorter period of time as the underwriters may require.
Registration on Form S-3.
If any Holder or Holders request that the Company file a registration statement
on Form S-3 (or any successor form to Form S-3) for a public offering of shares
of the Registrable Securities the reasonably anticipated aggregate price to the
public of which would exceed $5,000,000, and the Company is a registrant
entitled to use Form S-3 to register the Registrable Securities for such an
offering, the Company shall use its best efforts to cause such Registrable
Securities to be registered for the offering on such form and to cause such
Registrable Securities to be qualified in such jurisdictions as the Holder or
Holders may reasonably request. The substantive provisions of Section 1.2(b)
shall be applicable to each registration initiated under this Section 1.4.
Notwithstanding the foregoing, the Company shall not be obligated to take any
action pursuant to this Section 1.4:
in any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
if the Company, within ten (10) days of the receipt of the request of the
Holders, gives notice of its bona fide intention to effect the filing of a
registration statement with the Commission within sixty (60) days of receipt of
such request (other than with respect to a registration statement relating to a
Rule 145 transaction, an offering solely to employees or any other registration
which is not appropriate for the registration of Registrable Securities);
within three (3) months of the effective date of any registration referred to in
Sections 1.2 and 1.3 above;
if the Company shall furnish to such Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or the Holder for
registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed one hundred twenty (120) days from the
receipt of the request to file such registration by such Holder, provided that
the Company may not use this right or the right under Section 1.2(a)(ii)(D) more
than once in any twelve month period; or
if the Company has effected one (1) registration pursuant to this subsection 1.4
within a twelve (12) month period from the date of such request.
Expenses of Registration. Unless otherwise stated, all Selling Expenses relating
to securities registered on behalf of the Holders shall be borne by the Holders
of such securities pro rata on the basis of the number of shares so registered.
All Registration Expenses incurred in connection with all registrations pursuant
to Sections 1.2, 1.3 and 1.4 shall be borne by the Company.
Registration Procedures. In the case of each registration, qualification or
compliance effected by the Company pursuant to this Section 1, the Company will
keep each Holder advised in writing as to the initiation of each registration
and as to the completion thereof. At its expense the Company will:
prepare and file with the Commission a registration statement with respect to
such securities and use its best efforts to cause such registration statement to
become and remain effective for at least one hundred eighty (180) days or until
the distribution described in the registration statement has been completed;
furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of the registration statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
use its best efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions;
in the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement;
notify each Holder of Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto 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 a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; and
use its best efforts to furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
Indemnification.
The Company will indemnify each Holder, each of Holder's officers and directors
and partners, and each person controlling such person within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, 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 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, in light of the circumstances in
which they were made, 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 Holder,
each of Holder's officers and directors, and each person controlling such
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 or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable to any such person 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
Holder, controlling person or underwriter and stated to be specifically for use
therein or the preparation thereby.
Each Holder will, if Registrable Securities held by such Holder are included in
the securities as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors and officers, 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 such Holder, each of
its officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of any untrue
statement (or alleged untrue statement) of a material fact contained in any
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 Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating, preparing 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 Holder and stated to be specifically for use therein or
the preparation thereby. Notwithstanding the foregoing, the liability of each
Holder under this subsection (b) shall be limited to an amount equal to the net
proceeds received by such Holder from the sale of Registrable Securities held by
such Holder in such registration.
Each party entitled to indemnification under this Section 1.7 (the "Indemnified
Party") shall give notice to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 1 unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action and
provided further, that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and different
defenses. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party a release from all liability in respect to such claim or
litigation.
Information by Holder. The Holders of securities included in any registration
shall furnish to the Company such information regarding such Holders, the
Registrable Securities held by them and the distribution proposed by such
Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 1.
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 Registrable 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 best efforts to:
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 Securities Exchange Act of 1934, as amended (as amended,
the "Exchange Act").
Use its best efforts to 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);
So long as a Holder owns any Registrable Securities to furnish to the Holder
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 (at any time after ninety (90)
days after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of 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 the Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holder to sell any such securities
without registration.
Transfer of Registration Rights. Subject to Section 3 hereof, the rights to
cause the Company to register securities granted to the Holder under sections
1.2, 1.3 and 1.4 may be assigned to a transferee or assignee (other than a
competitor as reasonably determined by the Company in good faith) in connection
with any transfer or assignment of Registrable Securities by the Holder provided
that the transferor provides the Company with written notice of the proposed
transfer, the transferee agrees to be bound by the terms of this Agreement, and:
(i) the transferee acquires all of the transferor's Registrable Securities not
sold to the public; (ii) the transferee acquires at least the lesser of all or
500,000 shares (subject to adjustments for stock splits, combinations, dividends
or the like) of the transferor's Registrable Securities not sold to the public;
or (iii) the transferee is a shareholder or Affiliate of the Holder.
Standoff Agreement. Each Holder agrees, in connection with the Company's initial
public offering of the Company's securities and upon request of the Company or
the underwriters managing any underwritten offering of the Company's securities,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of not to exceed a period
commencing upon the effective date of such registration and ending one hundred
and eighty (180) days thereafter; provided, that the officers and directors of
the Company who own stock of the Company and all shareholders owning five
percent or more of any class or series of the Company's stock also agree to such
restrictions.
Termination. Any registration rights granted pursuant to this Section 1 shall
terminate with respect to any Holder at such date after the Company's initial
registered public offering when all remaining Registrable Securities held or
entitled to be held by such Holder may be sold under Rule 144 during any ninety
(90) day period.
Other Registration Rights. The Company shall not, without the prior written
consent of Holders of a majority of the Registrable Securities then outstanding
grant any registration rights superior to or on a parity with the rights granted
pursuant to this Section 1.
Purchaser Right of First Refusal Upon Issuance of Securities by the Company.
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Right of First Refusal. The Company hereby grants to each Prior Rights Holder
and each Investor holding at least 1,000,000 shares of the Series B Preferred
Stock (as adjusted for any stock split, stock dividend, recapitalization, or
similar event) (a "Qualified Series B Holder") or any transferees pursuant to
Section 2.1(f) hereof (collectively, hereinafter, the "Rights Holders") the
right of first refusal to purchase all or part of its pro rata share of New
Securities (as defined in this Section 2.1) which the Company may, from time to
time, propose to sell and issue. For purposes of this right of first refusal, a
pro rata share for a Rights Holder is the ratio that the number of shares of
Conversion Stock and warrants to purchase Conversion Stock then held by such
Rights Holder bears to the number of shares of Stock then outstanding.
"Equity Securities" shall mean any securities having voting rights in the
election of the Board of Directors not contingent upon default, or any
securities evidencing an ownership interest in the Company, or any securities
convertible into or exercisable for any shares of the foregoing, or any
securities issuable pursuant to any agreement or commitment to issue any of the
foregoing.
Except as set forth below, "New Securities" shall mean any Equity Securities,
whether now authorized or not, and rights, options or warrants to purchase said
Equity Securities. Notwithstanding the foregoing, "New Securities" does not
include (i) securities offered to the public generally pursuant to a
registration statement under the Securities Act; (ii) the Conversion Stock;
(iii) stock issued in connection with any stock split, stock dividend or
recapitalization by the Company, (iv) shares of Common Stock issued to officers,
directors, employees or consultants of the Company pursuant to stock grants,
stock purchase and stock option plans or other stock incentive programs,
agreements or arrangements approved by the Board of Directors, (v) shares of
Common Stock or Preferred Stock of the Company issued to or issuable to lenders
upon conversion, exercise or exchange of warrants in connection with loan or
lease agreements approved by the Board of Directors, (vi) shares of Common Stock
of the Company issued or issuable upon conversion, exercise or exchange of
warrants issued to the parties to the Settlement Agreement, (vii) securities
issued pursuant to the acquisition of all or part of another company by the
Company by merger or other reorganization, or by purchase or all or part of the
assets of another company, pursuant to a plan or arrangement approved by the
Board of Directors, (viii) securities issued in transactions with strategic
partners, (ix) shares of Series B Preferred sold pursuant to the Purchase
Agreement, as the same is amended from time to time, and (x) the Tenera Stock.
In the event the Company proposes to undertake an issuance of New Securities, it
shall give each Rights Holder written notice of its intention, describing the
type of New Securities, and the price and terms upon which the Company proposes
to issue the same. Each Rights Holder shall have ten (10) days from the date of
receipt of any such notice to agree to purchase up to its respective pro rata
share of such New Securities for the price and upon the applicable terms
specified in the notice by giving written notice to the Company and stating
therein the quantity of New Securities to be purchased.
If, within ten (10) days from the date of receipt of the Company's written
notice a Rights Holder does not notify the Company that it desires to purchase
its pro rata share of the New Securities, those Rights Holders who have elected
to purchase their pro rata share of such New Securities (the
"Fully-participating Rights Holders") may elect to purchase their pro rata
portion of the New Securities not elected to be purchased. No later than five
(5) days after expiration of the ten (10) days after the receipt of the
Company's notice, the Company will send a second notice to the
Fully-participating Rights Holders providing notice of the number of shares of
the New Securities available for purchase pursuant to this over-allotment right
(the "Over-allotment Right"). Each of these Fully-participating Rights Holders
shall have an additional five (5) days after the date of the Company's second
notice to notify the Company that it elects to purchase its pro rata share of
New Securities so offered. Each Fully-participating Rights Holder's pro rata
share of such New Securities shall be the ratio that the number of shares of
Conversion Stock and warrants to purchase Conversion Stock then held by such
Fully-participating Rights Holder bears to the sum of the total number of shares
of Conversion Stock plus Conversion Stock subject to warrants held by all
Fully-participating Rights Holders.
In the event a Fully-participating Rights Holder fails to exercise the right of
first refusal within said five (5) day period or if there are no
Fully-participating Rights Holders within ten (10) days of receipt of the
Company's initial notice, the Company shall have ninety (90) days thereafter to
sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within sixty (60) days from the date
of said agreement) to sell the New Securities not elected to be purchased by
Rights Holders at the price and upon the terms no more favorable to the
purchasers of such securities than specified in the Company's original notice.
In the event the Company has not sold the New Securities within said ninety (90)
day period (or sold and issued New Securities in accordance with the foregoing
within sixty (60) days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities without first offering such
securities in the manner provided above.
The right of first refusal granted under this section shall expire upon the
closing of the earlier of (i) the first firm commitment underwritten offering of
the Company's securities to the public pursuant to an effective registration
statement under the Securities Act or (ii) a statutory share exchange,
consolidation or merger of this Company with or into any other corporation or
corporations (other than a wholly-owned subsidiary), or the sale, transfer or
other disposition of all or substantially all of the assets of this Company or
the consummation of any transaction or series of related transactions which
results in the Company's shareholders immediately prior to such transaction not
holding at least a majority of the voting power of the surviving or continuing
entity.
Subject to Section 3 hereof, the right of first refusal hereunder may be
assigned to a transferee or assignee (other than a competitor as reasonably
determined by the Company in good faith) in connection with any transfer or
assignment by a Purchaser of Registrable Securities provided that the transferor
provides the Company with written notice of the proposed transfer, transferee
agrees to be bound by the terms of this Agreement, and (i) the transferee
acquires all of the transferor's Registrable Securities not sold to the public;
(ii) the transferee acquires at least 500,000 shares (subject to adjustments for
stock splits, combinations, dividends or the like) of the transferor's
Registrable Securities, or (iii) the transferee is shareholder or Affiliate of
the Purchaser.
If the Board of Directors of the Company determines it to be in the best
interests of the Company, it may authorize completion of any issuance or series
of issuances of New Securities without first offering the Purchasers the
opportunity to exercise their rights pursuant to this section as long as
promptly following such issuances the Company offers each Purchaser the
opportunity to purchase such New Securities as it would have been entitled to
purchase pursuant to this section.
Company Right of First Refusal Upon Transfer by Holders. The Holders hereby
agree as follows:
Notice of Proposed Transfer. Before any Holder may effect any Transfer of any
Stock, the Holder must give to the Company a written notice signed by the Holder
(the "Holder's Notice") stating (a) the Holder's bona fide intention to transfer
such Offered Stock; (b) the number of shares of the Offered Stock; (c) the name,
address and relationship, if any, to the Holder of each proposed purchaser or
other transferee; and (d) the bona fide cash price or, in reasonable detail,
other consideration, per share for which the Holder proposes to transfer such
Offered Stock (the "Offered Price"). Upon the request of the Company, the Holder
will promptly furnish such information to the Company as may be reasonably
requested to establish that the offer and proposed transferee are bona fide.
Right of First Refusal.
----------------------
Company's Right. Pursuant to this Agreement, the Company and its assignees shall
have the right of first refusal (the "Right of First Refusal") to purchase all
or any part of the Holder's Offered Stock, if the Company gives written notice
(the "Company's Exercise Notice") of the exercise of such right to the Holder
within thirty (30) days (the "Company's Refusal Period") after the date of the
Holder's Notice to the Company.
Purchase Price. The purchase price for the Offered Stock to be purchased by the
Company exercising its Right of First Refusal under this Agreement will be the
Offered Price, but will be payable as set forth in Section 3.2(c) hereof. If the
Offered Price includes consideration other than cash, the cash equivalent value
of the non-cash consideration will be determined by the Board of Directors of
the Company in good faith, which determination will be binding upon the Company
and the Holder absent fraud or error.
Payment. Payment of the purchase price for the Offered Stock purchased by the
Company exercising its Right of First Refusal will be made within seven (7) days
after the date of the Company's Exercise Notice. Payment of the purchase price
will be made, at the option of the Company (i) in cash (by cashier's check or
wire transfer), (ii) by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company or (iii) by any combination of the
foregoing.
Rights as a Shareholder. If the Company or its assignees exercise the Right of
First Refusal to purchase all of the Offered Stock, then, upon the date the
notice of such exercise is given by the Company, the Holder will have no further
rights as a holder of such Offered Stock with respect to which a Right of First
Refusal has been exercised, except the right to receive payment for such Offered
Stock from the Company in accordance with the terms of this Agreement, and the
Holder will forthwith cause all certificate(s) evidencing such Offered Stock to
be surrendered to the Company for cancellation.
Holder's Right To Transfer. If the Company has not elected to purchase all of
the Offered Stock, then, the Holder may transfer any such remaining Offered
Stock permitted to be sold by the Holder, to any person named as a purchaser or
other transferee in the Holder's Notice, at the Offered Price or at a higher
price, provided that such transfer (i) is consummated within ninety (90) days
after the date of the Holder's Notice and (ii) is in accordance with all the
terms of this Agreement. If the Offered Stock is not so transferred during such
ninety (90) day period, then the Holder may not transfer any of such Offered
Stock without complying again in full with the provisions of this Agreement.
Legend. All certificates representing any shares of Registrable Securities
shall have endorsed thereon the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF FIRST REFUSAL IN FAVOR OF THE CORPORATION OR ITS ASSIGNEE SET FORTH
IN AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED HOLDER, OR
HIS OR HER PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE CORPORATION.
The right to Holder's Notice and Right of First Refusal granted under this
Section 3 shall expire upon the closing of the earlier of (i) the first firm
commitment underwritten offering of the Company's securities to the public
pursuant to an effective registration statement under the Securities Act and
(ii) a statutory share exchange, consolidation or merger of this Company with or
into any other corporation or corporations (other than a wholly-owned
subsidiary), or the sale, transfer or other disposition of all or substantially
all of the assets of this Company or the consummation of any transaction or
series of related transactions which results in the Company's shareholders
immediately prior to such transaction not holding at least a majority of the
voting power of the surviving or continuing entity.
Information Rights.
------------------
Annual Financial Information. The Company shall deliver to each Holder within 90
days after the end of each fiscal year, income, shareholders' equity and cash
flow statements of the Company for such year, and a balance sheet of the Company
as of the end of such year, such year-end financial reports to be in reasonable
detail, prepared in accordance with generally accepted accounting principles
("GAAP"), and certified by independent public accountants of national standing
selected by the Company's Board of Directors.
Quarterly Financial Information. The Company shall deliver to each Holder within
45 days after the end of each quarter (except the last quarter of the fiscal
year), an unaudited quarterly report including a balance sheet, income statement
and cash flow analysis prepared in accordance with GAAP (except for required
footnotes), all in reasonable detail and signed, subject to changes resulting
from year-end audit adjustments, by the principal financial officer or chief
executive officer of the Company.
Monthly Financial Information. The Company shall deliver to each Holder of at
least 1,500,000 shares of Conversion Stock converted or convertible from the
Series A Preferred Stock or Series A-1 Preferred Stock (as adjusted for any
stock split, stock dividend, recapitalization, or similar event) (a "Qualified
Series A-1 Holder") and each Qualified Series B Holder within thirty (30) days
after the monthly accounting period of the Company an unaudited monthly report
including a balance sheet, income statement and cash flow statement.
Annual Financial Plan. Prior to the end of the fiscal year, the Company shall
provide each Qualified Series A-1 Holder and each Qualified Series B Holder with
the Company's annual financial plan and operating budget for the next fiscal
year as approved by the Company's Board of Directors.
Inspection. The Company shall permit any Qualified Series A-1 Holder and
Qualified Series B Holder, at such Holder's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by the Holder; provided, however, that the
Company shall not be obligated pursuant to this section to provide access to any
information which it reasonably considers to be a trade secret or similar
confidential information.
Termination of Information Covenants and Confidentiality of Information. The
covenants of the Company set forth in this section shall terminate as to all
Holders and be of no further force or effect (i) upon the consummation by the
Company of the IPO (as defined in subsection 1.2 above), or (ii) when the
Company first becomes subject to the periodic reporting requirements of Section
12(g) or 15(d) of the Exchange Act, whichever event shall first occur. Each
Holder agrees that it will keep confidential and will not disclose or divulge
any confidential, proprietary or secret information which such Holder may obtain
from the Company, and which the Company has prominently marked "confidential,"
"proprietary" or "secret," pursuant to financial statements, reports and other
materials submitted by the Company as required hereunder, unless such
information is or becomes known to the Holder from a source other than the
Company without violation of any rights of the Company, or is or becomes
publicly known, or unless the Company gives its written consent to the Holder's
release of such information, except that no such written consent shall be
required (and the Holder shall be free to release such information to such
recipient) if such information is to be provided to a Holder's counsel or
accountant (and the provision of such information is directly necessary in order
for such recipient to provide services to Holder), or to an officer, director or
partner of a Holder, provided that the Holder shall inform the recipient of the
confidential nature of such information, and such recipient agrees in writing in
advance of disclosure to treat the information as confidential.
Amendment, Restatement and Waiver of Rights of Prior Rights Holders;
Addition of Parties.
Amendment, Restatement of Prior Rights Agreement; Approval of Grant of Rights
to Investors. Pursuant to Section 6.5 of the Prior Rights Agreement, the parties
to this Agreement, among whom are holders of a majority of the "Registrable
Securities" as defined by the Prior Rights Agreement, on behalf of themselves
and all other holders of Registrable Securities under the Prior Rights
Agreement, hereby agree that (i) the Prior Rights Agreement is amended and
restated in its entirety by this Agreement, (ii) the registration rights, rights
of first refusal and obligations of the holders of Registrable Securities under
the Prior Rights Agreement are exclusively as set forth in this Agreement, and
(iii) the Company is authorized to enter into this Agreement with Tenera, SVB
and the Investors, grant the Investors the registration rights and rights of
first refusal and first offer set forth in this Agreement, and grant Tenera and
SVB the registration rights set forth in Section 1.3 of this Agreement. The
parties to this Agreement agree that any parties added to the Purchase Agreement
subsequent to the date of this Agreement can be added as parties to this
Agreement with all of the rights and obligations of the Investors without
further approval by the parties to this Agreement.
Waiver of Right of First Refusal. Pursuant to Section 6.5 of the Prior Rights
Agreement, the parties to this Agreement, among whom are the holders of a
majority of "Registrable Securities" as defined in the Prior Rights Agreement,
on behalf of themselves and all other holders of such Registrable Securities,
waive any and all rights granted pursuant to Section 2 of the Prior Rights
Agreement with respect to the sale and issuance of up to thirty-eight million
(38,000,000) shares of Series B Preferred Stock to the Investors pursuant to the
Purchase Agreement in closings on or after the date hereof and the shares of
Series C Preferred stock to Tenera in exchange for tender to the Company of the
Tenera Warrant.
Miscellaneous.
-------------
Governing Law. This Agreement shall be governed in all respects by the laws of
the State of California as applied to transactions taking place between
California residents and wholly within the State of California.
Survival. The representations, warranties, covenants and agreements made herein
shall survive any investigation made by any party hereto and the closing of the
transactions contemplated hereby.
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.
Determination of Share Amounts. To determine the number of Registrable
Securities held by a Holder for purposes of this Agreement, including without
limitation Sections 1.2, 1.3(b), 1.10, 1.13, 2.1(f), 4, and 6.5, all Registrable
Securities held by an Affiliate of the Holder shall be deemed held by such
Holder.
Entire Agreement; Amendment. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof, 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. With the written consent of the record or beneficial holders of at least
a majority of the Registrable Securities held by the Purchasers, the obligations
of the Company and the rights of the Holders under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely), and
with the same consent the Company, when authorized by resolution of its Board of
Directors, may enter into a supplementary agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement. Notwithstanding the foregoing, the rights of the holders of
the Series C Preferred Stock under Sections 1.3, 1.5, 1.6, 1.7 and 4 may not be
modified in a manner materially more adverse to such rights than to the rights
of the holders of the Series B Preferred Stock under the same sections without
the consent of holders of a majority of the outstanding shares of Series C
Preferred Stock. Upon the effectuation of each such waiver, consent, agreement
or amendment or modification, the Company shall promptly give written notice
thereof to the record holders of the Registrable Securities who have not
previously consented thereto in writing. This Agreement or any provision hereof
may be changed, waived, discharged or terminated only by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, except to the extent provided in this Section 6.5.
Notices, etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be delivered personally, via facsimile,
mailed by first class mail, postage prepaid, or delivered by courier or
overnight delivery, addressed (a) at such Holder's address as set forth in the
Company's records, or at such other address or facsimile number as the Holder
shall have furnished to the Company in writing or (b) if to the Company at Xxx
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000, or such
address as the Company shall have furnished to the Holder in writing. All such
notices, requests and other communications will (i) if delivered personally or
by express courier to the address as provided in this Section, be deemed given
upon delivery, or (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt.
Delays or Omissions. Except as expressly provided herein, no delay or omission
to exercise any right, power or remedy accruing to any Holder, 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, by law or otherwise afforded to any holder shall be cumulative
and not alternative.
Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
Severability. If any provision of this Agreement, or the application thereof,
shall for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to persons or
circumstances shall be interpreted so as best to reasonably effect the intent of
the parties hereto; the parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
which will achieve to the extent possible, the economic, business and other
purposes of the void or unenforceable provision.
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.
The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
SPEAR TECHNOLOGIES, INC.
By:___________________________________________
Title:________________________________________
(Company Signature Page to Second Amended and Restated Rights Agreement)
COUNTERPART SIGNATURE PAGE TO
SPEAR TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
"FOUNDER"
If you are an individual, print your
name and sign below.
-------------------------------------
Name (Please Print)
-------------------------------------
Signature
COUNTERPART SIGNATURE PAGE TO
SPEAR TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
"PRIOR RIGHTS HOLDER"
If you are an individual, print your
name and sign below.
-------------------------------------
Name (Please Print)
-------------------------------------
Signature
If you are signing on behalf of an
entity, please print the name of the
entity and sign below, indicating your
title.
-------------------------------------
Name (Please Print)
-------------------------------------
Signature
-------------------------------------
Title
COUNTERPART SIGNATURE PAGE TO
SPEAR TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
"INVESTOR"
If you are an individual, print your
name and sign below.
-------------------------------------
Name (Please Print)
-------------------------------------
Signature
If you are signing on behalf of an
entity, please print the name of the
entity and sign below, indicating your
title.
-------------------------------------
Name (Please Print)
-------------------------------------
Signature
-------------------------------------
Title
COUNTERPART SIGNATURE PAGE TO
SPEAR TECHNOLOGIES, INC.
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
"TENERA"
TENERA, INC.
By:___________________________________________
Title:________________________________________
"SVB"
SILICON VALLEY BANK
By:___________________________________________
Title:________________________________________
Exhibit C
SCHEDULE OF EXCEPTIONS
