1
EXHIBIT 4.8
WARRANT SUBSCRIPTION AGREEMENT
THIS WARRANT SUBSCRIPTION AGREEMENT (the "AGREEMENT") is entered into as
of November 3, 1998, by and between INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.,
a California corporation (the "COMPANY"), and SILICON VALLEY BANK (the
"PURCHASER").
RECITALS
A. Pursuant to that certain Loan and Security Agreement dated as of the
date hereof (as the same may from time to time be amended, modified,
supplemented or restated, the "LOAN AGREEMENT"), by and between the Company, as
borrower, and Silicon Valley Bank, as lender, has agreed to extend credit to the
Company (the "CREDIT").
B. Silicon Valley Bank, as lender, was induced by the Company to make
the Credit available to the Company by the Company's agreement to sell Silicon
Valley Bank the Warrant (as defined below) pursuant to the terms of this
Agreement.
C. In connection with the foregoing, and as a condition precedent to the
Closing under the Loan Agreement, the Company is selling to the Purchaser a
Common Stock Warrant, substantially in the form of EXHIBIT A attached hereto
(the "WARRANT"), to purchase shares of the Company's common stock (the "COMMON
STOCK") for the applicable prices set forth therein. The shares of Common Stock
purchasable upon exercise of the Warrant are referred to herein collectively as
the "WARRANT SHARES."
D. The Purchaser desires to subscribe for and purchase from the Company,
and the Company desires to sell to the Purchaser, the Warrant.
AGREEMENT
In order to implement the foregoing and in consideration of the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
1. DEFINITIONS.
The following terms shall have the meanings ascribed to such terms in
the Sections set forth below:
TERM SECTION
Act 3.1
Agreement Recitals
Closing 2.2
Common Stock Recitals
Company Preamble
Credit Recitals
Loan Agreement Recitals
Exchange Act 4.2
Options 4.1 (e)
Piggyback Rights 5
Purchaser Preamble
2
TERM SECTION
Registration Rights Agreement 2.4 (b)
Regulated Purchaser 3.6
Rule 144 3.3 (d)
SEC 4.2
Transfer 3.1
Warrant Recitals
Warrant Shares Recitals
2. SUBSCRIPTION FOR, PURCHASE AND EXERCISE OF WARRANT; ORIGINAL ISSUE
DISCOUNT.
2.1 PURCHASE OF WARRANT. Subject to the terms and conditions
hereinafter set forth, the Purchaser hereby subscribes for and purchases, and
the Company hereby sells to the Purchaser, for good and valuable consideration,
the receipt of which is hereby acknowledged, the Warrant.
2.2 THE TIME AND PLACE OF THE CLOSING. The Closing of the
transactions provided for in this Agreement (the "CLOSING") shall be held at
10:00 a.m., local time, on November 3, 1998 at the offices of Xxxxxx Godward
LLP, Five Xxxx Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or at such other time
and place as the Purchaser and the Company shall agree.
2.3 CLOSING OF THE PURCHASE OF THE WARRANT. At the Closing, the
Company will execute and deliver to the Purchaser the Warrant which shall be
issued in the Purchaser's name.
2.4 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER AND THE
COMPANY. The obligations of the Purchaser and the Company hereunder shall be
subject to the following conditions:
(a) The representations and warranties made herein to
the Purchaser or the Company by the other party shall be true and correct in all
material respects at and as of the date of the Closing.
(b) The Purchaser and the Company shall have entered
into the Registration Rights Agreement in the form attached hereto as EXHIBIT B
(the "REGISTRATION RIGHTS AGREEMENT").
2.5 ORIGINAL ISSUE DISCOUNT. The Company and the Purchaser
hereby acknowledge and agree that the Warrant is part of an investment unit
within the meaning of Section 1273 (c) (2) of the Internal Revenue Code of 1986,
as amended, which investment unit includes all Credit Extensions (as defined in
the Loan Agreement) made pursuant to the Loan Agreement up to the maximum amount
of the Term Loan (as defined in the Loan Agreement). The Company and the
Purchaser agree that the fair market value of the Warrant is less than the DE
MINIMIS threshold for reporting income and expense relating thereto on a current
basis. Therefore, the Company and the Purchaser shall prepare their respective
federal income tax returns in a manner consistent with the foregoing agreement
and, pursuant to Treas. Reg. Section 1.1273, the original issue discount on the
Credit Extensions shall be considered to be zero.
3. PURCHASER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Purchaser
hereby represents, warrants and covenants to the Company as follows:
3.1 NO RESALES. The Purchaser will acquire the Warrant for
investment solely for its own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof except in
compliance with the provisions of Rule 144A under the Securities Act of 1933, as
amended (the "ACT"). The Purchaser agrees and acknowledges that it will not,
directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or
otherwise dispose of (referred to hereinafter as a "TRANSFER") its Warrant
3
Shares unless (i) such Transfer is pursuant to an effective registration
statement under the Act and complies with all applicable state securities laws,
or (ii) counsel for the Purchaser (which counsel shall be reasonably acceptable
to the Company) shall have furnished the Company with an opinion, reasonably
satisfactory in form and substance to the Company, to the effect that no such
registration is required because of the availability of an exemption from
registration under the Act and that the Transfer is exempt from all applicable
state securities laws, except that no such opinion shall be required (y) in
connection with a Transfer by the Purchaser to any affiliate of the Purchaser or
(z) in connection with a Transfer where the transferee simultaneously becomes a
lender under the Loan Agreement and makes the representations and warranties
contained in this Section 3. No Transfer of the Warrant or the Warrant Shares in
violation of this Agreement shall be made or recorded on the books of the
Company, and any such Transfer shall be void and of no effect
3.2 LEGENDS. The Warrant shall bear legends in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE: TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (A) SUCH TRANSFER IS
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR (B) THE COMPANY HAS BEEN FURNISHED
WITH A SATISFACTORY OPINION OF COUNSEL FOR THE PURCHASER THAT SUCH
TRANSFER IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT, THE
RULES AND REGULATIONS IN EFFECT THEREUNDER AND ANY APPLICABLE STATE
SECURITIES LAWS."
The Warrant, and the Warrant Shares issuable in respect thereof, shall bear
legends in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A CERTAIN WARRANT SUBSCRIPTION AGREEMENT (THE "WARRANT
SUBSCRIPTION AGREEMENT") AND REGISTRATION RIGHTS AGREEMENT (THE
"REGISTRATION RIGHTS AGREEMENT"), EACH DATED AS OF OCTOBER [___], 1998,
BY AND BETWEEN THE WARRANT PURCHASER AND THE COMPANY. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY."
3.3 WARRANT AND WARRANT SHARES UNREGISTERED. The Purchaser
acknowledges with respect to the Purchaser's Warrant and Warrant Shares that the
Purchaser has been advised that:
(a) the Warrant has not been registered under the Act or
qualified under the applicable securities laws of any state;
(b) except as otherwise provided herein, the Warrant
must be held indefinitely and the Purchaser must continue to bear the economic
risk of the investment in the Warrant and the Warrant Shares unless the sale
thereof is subsequently registered under the Act and qualified under applicable
state securities laws or an exemption from such registration or qualification is
available;
(c) it is not anticipated that there will be any public
market for the Warrant;
4
(d) Rule 144 promulgated under the Act ("RULE 144") is
not presently available with respect to the sale of the Warrant, and the Company
has made no covenant to make Rule 144 available (except as provided in SECTION
4.2 hereof);
(e) when and if the Warrant or the Warrant Shares may be
disposed of without registration in reliance on Rule 144, such disposition can
be made only in limited amounts in accordance with the terms and conditions of
Rule 144;
(f) if the Rule 144 exemption is not available, public
sale of the Warrant or the Warrant Shares without registration will require
compliance with Regulation A promulgated under the Act or some other exemption
under the Act and compliance with applicable state securities laws;
(g) appropriate restrictive legends in the form
heretofore set forth shall be placed on each of the Warrant and the Warrant
Shares; and
(h) a notation shall be made in the appropriate records
of the Company indicating that the Warrant is subject to restrictions on
transfer and, if the Company should at some time in the future engage the
services of a transfer agent, appropriate transfer restrictions will be issued
to such transfer agent with respect to the Warrant.
3.4 COMPLIANCE WITH RULE 144. If the Warrant or any Warrant
Shares are disposed of in accordance with Rule 144 under the Act, the Purchaser
shall deliver to the Company at or prior to the time of such disposition an
executed copy of Form 144 (if required by Rule 144) and such other documentation
as the Company may reasonably require in connection with such sale.
3.5 ADDITIONAL REPRESENTATIONS. The Purchaser further represents
and warrants to the Company that:
(a) it has been given the opportunity to obtain any
information or documents and to ask questions and receive answers about such
documents, the Company and the business and prospects of the Company which it
deems necessary to evaluate the merits and risks related to its investment in
the Warrant and the Warrant Shares;
(b) its financial condition is such that it can afford
to bear the economic rise of holding its unregistered Warrant and Warrant Shares
for an indefinite period of time and has adequate means of providing for its
current needs and contingencies;
(c) it can afford to suffer a complete loss of its
investment in the Warrant and Warrant Shares;
(d) all information which it has provided to the Company
concerning itself and its financial position is correct and complete as of the
date of this Agreement and, if there should be any material change in such
information prior to the Closing, the Purchaser will immediately furnish such
revised or corrected information to the Company;
(e) it understands and is cognizant of all risk factors
related to the purchase of the Warrant and Warrant Shares;
(f) it is an "ACCREDITED INVESTOR" as that term is
defined in Rule 501(a) of Regulation D promulgated under the Act;
5
(g) its knowledge and experience in financial and
business matters are xxx that it is capable of evaluating the merits and risks
of its purchase of the Warrant and Warrant Shares as contemplated by this
Agreement;
(h) either (i) it has a pre-existing personal or
business relationship with the Company or any of its officers, directors or
controlling persons, or (ii) by reason of its business or financial experience
or the business or financial experience of its professional advisors who are
unaffiliated with, and who are not compensated by, the Company or any affiliate
of the Company, it has the capacity to protect its own interests in connection
with the investment in the Warrant and the Warrant Shares;
(i) it is an "excluded purchaser," as defined in Section
260.102.13 of the Corporate Securities Rules of the California Corporation
Commissioner, for purposes of Section 251 02(f) of the California Corporate
Securities Law of 1968, as amended; and
(j) this Agreement has been executed and delivered by
the Purchaser and is its valid and binding obligation, enforceable against the
Purchaser in accordance with its terms, except for (i) the effect of bankruptcy,
insolvency, fraudulent conveyance; reorganization, moratorium and other similar
laws relating to or affecting the rights of creditors generally, and (ii)
limitations imposed by federal or state law or equitable principles upon the
specific enforceability of any of the remedies, covenants or other provisions of
this Agreement and upon the availability of injunctive relief or other equitable
remedies.
3.6 NO CONTROLLING INFLUENCE. In the event and so long as the
Warrant or the related Warrant Shares are held by the Purchaser or any of its
affiliates or any person or entity to which the Purchaser or any of its
affiliates shall have transferred the Warrant or the related Warrant Shares (any
such person or entity, a "REGULATED PURCHASER"), such Regulated Purchaser will
neither:
(a) Exercise or attempt to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Company; nor
(b) Notwithstanding any other provision of this
Agreement, exercise either of the Warrant to the extent such exercise would
result in such Regulated Purchaser and its affiliates holding, directly or
indirectly, in excess of 4.99% of any class of the outstanding voting stock of
the Company, except in connection with (i) a widely dispersed public offering of
the Warrant Shares, (ii) a sale of the related Warrant Shares into the secondary
market pursuant to the transaction and volume limitations of Rule 144
(irrespective of holding periods), or (iii) a private placement or sale,
including pursuant to Rule 144A under the Act, so long as the transferee and its
affiliates do not collectively acquire from the Purchaser more than 2% of the
voting stock of the Company pursuant to such transfer.
4. THE COMPANY'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1 THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants that:
(a) ORGANIZATION, STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of California; has all requisite power and authority
to own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted after the funds are advanced under the
Loan Agreement; and is duly qualified or licensed to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or leases
property or in which the conduct of its business requires it to so qualify or be
licensed, except for such jurisdictions where the failure to so qualify or be
licensed would not have a material adverse effect on the business or financial
condition of the Company.
(b) AUTHORITY. The Company has all requisite power and
authority to enter into and perform all of its obligations under this Agreement,
to issue the Warrant and the Warrant Shares and to carry out the transactions
contemplated hereby.
5
6
(c) DUE AUTHORIZATION. The Company has taken all
corporate actions necessary to authorize it to enter into and perform its
obligations under this Agreement, to issue the Warrant and the Warrant Shares
and to consummate the transactions contemplated hereby. This Agreement is the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except for (i) the effect upon this Agreement of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting the rights of creditors generally and (ii)
limitations imposed by equitable principles or principles of public policy upon
the specific enforceability of any of the remedies, covenants or other
provisions of this Agreement and upon the availability of injunctive relief or
other equitable remedies.
(d) CAPITALIZATION OF COMPANY. The Company's capital
stock is divided into Common Stock and preferred stock ("PREFERRED STOCK"). The
authorized capital stock of the Company consists of 20,000,000 shares of Series
A Preferred Stock, of which, immediately after the date of the Closing, no
shares are issued or outstanding, and 300,000,000 shares of Common Stock, of
which, immediately after the date of the Closing, 6,278,881 shares will be
outstanding on a fully diluted basis, taking into account all outstanding
warrants, options and other rights to purchase the Common Stock). When the
Warrant to be purchased by the Purchaser hereunder at the Closing has been
delivered as provided herein, the Warrant Shares (i) together with all
outstanding shares of Common Stock, Preferred Stock and shares of Common Stock
issuable upon exercise of all outstanding Options (as defined below) of the
Company will not exceed the number of shares that have been authorized by the
Company's Articles of Incorporation, (ii) will have been duly authorized to be
issued by the Company's board of directors, (iii) will, upon payment therefor in
accordance with the terms of the Warrant, be duly and validly issued, fully paid
and nonassessable and (iv) will have been reserved for issuance pursuant to the
terms of the Warrant.
(e) NO ADJUSTMENT OF OTHER SHARES ON ISSUANCE. Neither
the issuance nor the exercise of the Warrant will cause the rate at which any of
the Company's outstanding securities are ultimately convertible into Common
Stock to change, nor will such issuance or exercise invoke any "antidilution"
feature of any of the Company's outstanding securities or rights to purchase
securities.
4.2 RULE 144. The Company agrees that it will perform each of it
obligations under the Registration Rights Agreement as set forth therein and
will use its best efforts to file in a timely manner all reports required to be
filed by it pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and, upon the request of the Purchaser, will furnish the
Purchaser with such reports so that the Purchaser may effect routine sales
pursuant to Rule 144 and Rule 144A (if applicable) under the Act or any similar
rule or regulations hereafter adopted by the Securities and Exchange Commission
(the "SEC").
4.3 PURCHASER'S PERCENTAGE OWNERSHIP. The Company hereby
represents and warrants that the initial 30,000 Warrant Shares in respect of the
Warrant currently represent that number of shares representing approximately a
0.5% interest in the Company's equity capital on a fully diluted basis (after
giving effect to the exercise of all options, warrants, and convertible
securities assuming all antidilution adjustments have been made and all options
authorized for grant, whether or not granted, have been granted).
5. REGISTRATION RIGHTS. The Purchaser shall have registration rights
relating to the Warrant and the applicable Warrant Shares as set forth in the
Registration Rights Agreement.
6
7
6. MISCELLANEOUS.
6.1 NO CHANGE OF FISCAL YEAR. Until the Warrant has been fully
exercised or has expired in accordance with their terms, the Company shall not
change its fiscal year end without the Purchaser's prior written consent, which
consent shall not unreasonably be withheld.
6.2 FINANCIAL INFORMATION. Until the Warrant has been fully
exercised or has expired in accordance with its terms, the Company shall use all
reasonable efforts to file its annual and quarterly reports as required by the
Exchange Act for publicly reporting companies, within the times specified in the
Exchange Act and the rules and regulations promulgated thereunder and to provide
copies of such reports to Purchaser promptly following such filing and within 30
days prior to the end of each of its fiscal years, shall provide financial
projections covering the period through at least the end of the next fiscal
year; PROVIDED, HOWEVER, that the Company shall not be required to supply any
information to the Purchaser which duplicates information already supplied to
the Purchaser under the Loan Agreement. In addition, the Company shall provide
the Purchaser with all of the information which the Company provides generally
to the holders of Common Stock. The Purchaser shall have standard inspection
rights until the Warrant has been fully exercised or has expired in accordance
with its terms.
6.3 STATE SECURITIES LAWS. The Company hereby agrees to comply
with all state securities or "blue sky" laws which might be applicable to the
sale of the Warrant.
6.4 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Purchaser and the Company and their
respective heirs, legal representatives, successors and assigns and, without
limiting the generality of the foregoing, the Company may assign this Agreement
without the consent of Purchaser to the Company's successor in a merger of the
Company or a sale of all or substantially all of the assets of the Company.
6.5 AMENDMENT. This Agreement may be amended only by a written
instrument, signed by the Purchaser and the Company, which specifically states
that it is amending this Agreement.
6.6 APPLICABLE LAW. The laws of the State of California shall
govern the interpretation, validity and performance of the terms of this
Agreement, regardless of the law that might be implied under principles of
conflicts of law.
6.7 NOTICES. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, to the party to whom it is directed:
If to the Company:
00 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Legal Department
Fax: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx, Esq.
Fax: 650/000-0000
7
8
If to the Purchaser:
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Mezzanine Finance, NC475
Fax: 408/000-0000
with a copy to:
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Treasury Department,
Fax: 408/000-0000
with a copy to:
Xxxxxx Godward LLP Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000 Attn: Xxxxxx X. Xxxxxxx, Esq.
6.8 EXPIRATION OF AGREEMENT. Except as otherwise set forth
herein, this Agreement (but not the Warrant) shall terminate and be of no
further force or effect with respect to any Warrant Shares which are sold by the
Purchaser pursuant to an effective registration statement filed by the Company
pursuant to the Registration Rights Agreement or in compliance with Rule 144.
Except as otherwise expressly provided herein and unless extended prior to such
date, this Agreement shall terminate on the earlier of the date the Warrant
shall have been fully exercised and the fifth anniversary of this Agreement.
6.9 RECAPITALIZATIONS, ETC. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to the Warrant, to
any and all shares of capital stock of the Company or any capital stock, limited
liability company membership interests, partnership units or any other security
evidencing ownership interests in any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution of any of the Warrant
Shares by reason of any stock dividend, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise and to any Warrant Shares.
6.10 ASSIGNMENT. This Agreement and the rights and obligations
of the parties hereunder shall inure to the benefit of, and be binding upon, the
parties' respective successors, assigns and legal representatives.
Notwithstanding anything herein or in the Warrant to the contrary and without
regard to any limitations set forth herein or therein, the parties acknowledge
that the Purchaser may transfer all or any of its rights hereunder and under the
Warrant to any affiliate of the Purchaser (including, without limitation, the
officers, and employees of the Purchaser, or any partnership comprised thereof
or any corporation owned by any of them, the ancestors, descendants or spouse,
or to trusts for the benefit of such persons) and that for the purpose of
interpreting and enforcing this Agreement, all such assigns shall be considered
as one and the same person.
6.11 INTEGRATION. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement, the Warrant and the Registration Rights Agreement.
8
9
6.12 PERSONAL JURISDICTION. The Company and the Purchaser hereby
agree that any legal action or proceeding with respect to this Agreement or any
of the agreements, documents or instruments delivered in connection herewith may
be brought in the courts of the State of California or of the United States of
America for the Northern District of California as the Purchaser may elect, and,
by execution and delivery hereof, each of the Company and the Purchaser accepts
and consents to, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts and agrees that such
jurisdiction shall be exclusive, unless waived by the Purchaser in writing, with
respect to any action or proceeding brought by the Company against the
Purchaser. Nothing herein shall limit the right of the Purchaser to bring
proceedings against the Company in the courts of any other jurisdiction. The
Company waives, to the full extent permitted by law, any right to stay or to
dismiss any action or proceeding brought before said courts on the basis of
FORUM NON conveniens.
6.13 JURY WAIVER. Each of the Company and the Purchaser waives
any right to have a jury participate in resolving any dispute, whether sounding
in contract, tort, or otherwise, between the Company and the Purchaser arising
out of, connected with, related to or incidental to the relationship established
between them in connection with this agreement or any other instrument, document
or agreement executed or delivered in connection herewith or therewith or the
transactions related hereto or thereto.
6.14 CONFIDENTIALITY. In handling any confidential information
of the Company, the Purchaser shall exercise the same degree of care that it
exercises with respect to its own proprietary information of the same types to
maintain the confidentiality of any non-public information thereby received or
received pursuant to this Agreement EXCEPT that disclosure of such information
may be made (i) to the subsidiaries or affiliates of the Purchaser in connection
with their present or prospective business relations with the Company, (ii) to
prospective transferees or purchasers of any interest in the loans, PROVIDED
that they have entered into a comparable confidentiality agreement in favor of
the Company and have delivered a copy to the Company, (iii) as required by law,
regulation, rule or order, subpoena, judicial order or similar order, (iv) as
may be required in connection with the examination, audit or similar
investigation of the Purchaser, and (v) as the Purchaser may deem appropriate in
connection with the exercise of any remedies hereunder. Confidential information
hereunder shall not include information that either (a) is in the public domain
or in the knowledge or possession of the Purchaser when disclosed to Bank, or
becomes part of the public domain after disclosure to Bank through no fault of
Bank; or (b) is disclosed to the Purchaser by a third party, PROVIDED the
Purchaser does not have actual knowledge that such third party is prohibited
from disclosing such information.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the date first above written.
THE COMPANY: INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: (SGD.)
Printed Name: Xxx Xxxxxxx
Title: Chief Financial Officer
THE PURCHASER: SILICON VALLEY BANK
By: (SGD.)
Printed Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
[WARRANT SUBSCRIPTION AGREEMENT]
9
