EXHIBIT 10.20
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STOCK PURCHASE AGREEMENT
December 12, 1996
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TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock........................................ 1
1.1 Closing.................................................. 1
1.2 Delivery................................................. 1
2. Representations and Warranties of the Company..................... 1
2.1 Authority................................................ 1
2.2 Organization, Good Standing and Qualification............ 2
2.3 Capitalization and Voting Rights......................... 3
2.4 Subsidiaries............................................. 3
2.5 Valid Issuance of Common Stock........................... 3
2.6 Governmental Consents.................................... 4
2.7 Offering................................................. 4
2.8 Litigation............................................... 4
2.9 Intellectual Property.................................... 4
2.10 Conflicts................................................ 5
2.11 Compliance with Other Instruments........................ 5
2.12 Disclosure............................................... 6
2.13 Registration Rights...................................... 6
2.14 Title to Property and Assets............................. 6
2.15 Financial Statements..................................... 6
2.16 Changes.................................................. 6
2.17 SEC Documents; Material Contracts........................ 7
2.18 Compliance with All Laws................................. 7
2.19 Investment Company....................................... 8
3. Representations and Warranties of Investor........................ 8
3.1 Authorization............................................ 8
3.2 Purchase Entirely for Own Account........................ 8
3.3 Governmental Consents.................................... 8
3.4 No Consent............................................... 8
3.5 Disclosure of Information................................ 9
3.6 Investment Experience.................................... 9
3.7 Accredited Investor...................................... 9
3.8 Restricted Securities.................................... 9
3.9 Further Limitations on Disposition....................... 9
3.10 Legends.................................................. 10
4. Right to Notification............................................. 10
4.1 Notification of Acquisition of Securities................ 10
i.
4.2 Notification of Receipt of Acquisition Proposal
or Initiation of Sale................................. 10
4.3 Actual Voting Power...................................... 11
5. Registration Rights............................................... 11
5.1 Request for Registration................................. 11
5.2 Obligations of the Company............................... 12
5.3 Expenses of Registration................................. 14
5.4 Indemnification.......................................... 14
5.5 Limitations on Subsequent Registration Rights............ 16
6. Right of First Offer.............................................. 17
6.1 New Issuances............................................ 17
6.2 "New Securities"......................................... 17
6.3 Notice of New Securities................................. 17
6.4 Exercise of Right of First Offer......................... 18
6.5 Transferability.......................................... 18
6.6 Closing.................................................. 18
6.7 Reservation of Shares.................................... 18
6.8 Term..................................................... 18
7. Conditions of Investor's Obligations at Closing................... 18
7.1 Representations and Warranties........................... 19
7.2 Performance.............................................. 19
7.3 Compliance Certificate................................... 19
7.4 Qualifications........................................... 19
7.5 Proceedings and Documents................................ 19
7.6 Opinion of Company Counsel............................... 19
8. Conditions of the Company's Obligations at Closing................ 19
8.1 Representations and Warranties........................... 19
8.2 Payment of Purchase Price................................ 19
8.3 Qualifications........................................... 20
9. Investor Notice................................................... 20
10. Miscellaneous..................................................... 21
10.1 Survival of Warranties................................... 21
10.2 Assignment; Successors and Assigns....................... 21
10.3 Governing Law............................................ 21
10.4 Counterparts............................................. 21
10.5 Titles and Subtitles..................................... 22
10.6 Notices, etc............................................. 22
10.7 Finder's Fee............................................. 23
10.8 Expenses................................................. 23
ii.
10.9 Amendments and Waivers............................................ 23
10.10 Severability...................................................... 23
10.11 Entire Agreement.................................................. 23
iii.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
the 12th day of December, 1996, by and among Interlink Computer Sciences, Inc.,
a Delaware corporation (the "Company"), and Cisco Systems, Inc., a California
corporation ("Investor").
WHEREAS, the Company and Investor have agreed to execute a
Binding Letter of Intent contemporaneously with this Agreement;
WHEREAS, pursuant to the Binding Letter of Intent, the parties
have agreed that they will execute a Development, Marketing and Support
Agreement no later than January 16, 1997, which will supersede the Binding
Letter of Intent; and
WHEREAS, this Agreement supersedes Section 15 and Section 17
of the Binding Letter of Intent.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock. Subject to the terms and
conditions of this Agreement, Investor agrees to purchase at the Closing (as
hereinafter defined) and the Company agrees to sell and issue to Investor at the
Closing, 622,000 shares of the Company's Common Stock (the "Shares"), at a
purchase price of eleven dollars ($11.00) per share (the "Purchase Price").
1.1 Closing. The purchase and sale of the Shares shall be held
at the offices of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx, on December 12, 1996 at 4:00 p.m., or at such other time and
place upon which the Company and Investor shall agree (which time and place
shall be referred to as the "Closing").
1.2 Delivery. At the Closing, the Company will issue to
Investor a certificate registered in the Investor's name, representing the
number of Shares purchased by Investor against payment of the Purchase Price.
The Purchase Price shall be paid to the Company by certified check payable to
the Company or by wire transfer.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to Investor that:
2.1 Authority. The Company has full power and authority to
execute and deliver this Agreement, and to consummate the transactions
contemplated by this Agreement. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the execution and
delivery of, and the consummation of the
transactions contemplated by this Agreement and the performance of all
obligations of the Company under this Agreement has been taken. This Agreement,
upon execution and delivery by the Company and assuming the due and proper
execution and delivery by Investor, constitutes legal, valid and binding
obligations of the Company, enforceable in accordance with its respective 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. The making and performance of
this Agreement by the Company and the consummation of the transactions herein
contemplated will not violate any provisions of the certificate of incorporation
or bylaws, or other organizational documents, of the Company or any of its
subsidiaries, and will not conflict with, result in the breach or violation of,
or constitute, either by itself or upon notice or the passage of time or both, a
default under any material agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of its respective properties may be bound or affected, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
the Company or any of its subsidiaries or any of their respective properties.
2.2 Organization, Good Standing and Qualification. The Company
and each of its subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority (corporate and
other) to own and lease their properties and conduct their respective businesses
and all proposed future businesses. With the exception of Interlink Iberica
S.A., of which the Company owns 99.8% of the outstanding capital stock; each
subsidiary of the Company only has one class of capital stock and the Company
owns all of the outstanding capital stock of its subsidiaries free and clear of
all claims, liens, charges and encumbrances; the Company and each of its
subsidiaries are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and orders material to
the conduct of their respective businesses, all of which are valid and in full
force and effect, except where the failure of any such authorization, license,
permit, consent, certificate or order to be valid or in full force, would not in
any single case or when aggregated with all such failures by the Company and all
of its subsidiaries have a material adverse effect upon the Company; the Company
and each of its subsidiaries are duly qualified to do business and in good
standing as foreign corporations in each jurisdiction in which the ownership or
leasing of properties or the conduct of their respective businesses requires
such qualification, except for jurisdictions in which the failure to so qualify
would not have a material adverse effect upon the Company and its subsidiaries
taken as a whole; and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
2.
2.3 Capitalization and Voting Rights. The authorized capital
of the Company as of December 3, 1996 consisted of:
(i) Preferred Stock. 5,000,000 shares of Preferred
Stock, $0.001 par value (the "Preferred Stock"), none of which are issued and
outstanding.
(ii) Common Stock. 25,000,000 shares of common stock,
$0.001 par value ("Common Stock"), of which 6,388,789 shares are issued and
outstanding.
(iii) Other than 2,105,000 shares of Common Stock
reserved for issuance to employees pursuant to the Company's 1992 Stock Option
Plan (the "Option Plan"), of which options to purchase 1,335,310 shares have
been granted, 350,000 shares of Common Stock reserved for issuance under the
1996 Employee Stock Purchase Plan (the "Purchase Plan"), of which no shares have
been issued, 150,000 shares of Common Stock reserved for issuance under the
Company's 1996 Director Option Plan (the "Director Plan"), of which options to
purchase 15,000 shares have been granted, and warrants to purchase 468,750
shares of Common Stock, neither the Company nor any subsidiary has outstanding
any options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock or any
such options, rights, convertible securities or obligations. The Company is not
a party or subject to any agreement or understanding, and, to the best of the
Company's knowledge, there is no agreement or understanding between any persons
and/or entities, which affects or relates to the voting or giving of written
consents with respect to any security or by a director of the Company.
(iv) The issued and outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws and
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. All issued and outstanding
shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
2.4 Subsidiaries. Other than Interlink France S.A.R.I.,
Interlink Deutschland GmbH, Interlink Iberica S.A. (Spain), Interlink
(Switzerland) S.A., Interlink Computer Sciences, Ltd. (United Kingdom), New Era
Systems Services, Ltd. (Canada), Era Nua Teoranta, Ltd. (Ireland), and Interlink
Computer Sciences (Barbados) Inc., the Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
association, or other business entity. Other than as disclosed in each
statement, annual, quarterly and other report, registration statement (the
"Company SEC Documents") filed (other than preliminary material) by the Company
with the U.S. Securities and Exchange Commission (the "SEC"), the Company is not
a participant in any joint venture, partnership or similar arrangement.
3.
2.5 Valid Issuance of Common Stock. The Common Stock to be
sold by the Company has been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable, and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws. No preemptive rights or other
rights to subscribe for or purchase exist with respect to the issuance and sale
of the Common Stock by the Company pursuant to this Agreement.
2.6 Governmental Consents. Other than compliance with the
Securities Act of 1933, as amended (the "Act") and such filings as may be
required to be made with the National Association of Securities Dealers (the
"NASD"), no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement.
2.7 Offering. Subject in part to the truth and accuracy of
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Common Stock as contemplated by this Agreement are
exempt from the registration requirements of the Act, and neither the Company
nor any authorized agent acting on its behalf will take any action hereafter
that would cause the loss of such exemption.
2.8 Litigation. Other than as disclosed in the Company SEC
Documents, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened to which the Company or any
of its subsidiaries is or may be a party or of which property owned or leased by
the Company or any of its subsidiaries is or may be the subject, or related to
environmental or discrimination matters, which actions, suits or proceedings
might, individually or in the aggregate, prevent or adversely affect the
transactions contemplated by this Agreement or result in a material adverse
change in the condition (financial or otherwise), properties, business or
results of operations of the Company and its subsidiaries taken as a whole; and
no labor disturbance by the employees of the Company or any of its subsidiaries
exists or, to the Company's knowledge, is imminent which might be expected to
have a material adverse effect on such condition, properties, business or
results of operations. Neither the Company nor any of its subsidiaries is a
party or subject to the provisions of any material injunction, judgment, decree
or order of any court, regulatory body, administrative agency or other
governmental body. There are no material legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened against any
executive officers or directors of the Company.
2.9 Intellectual Property. Other than as disclosed in the
Company SEC Documents, the Company has sufficient title and ownership of all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights and processes necessary for its business as now
conducted without any conflict with or
4.
infringement of the rights of others. Other than as disclosed in the Company SEC
Documents, there are no outstanding options, licenses, or agreements of any kind
relating to the foregoing, nor is the Company bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity. The
Company has not received any communications alleging that the Company has
violated or, by conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity. The Company is not aware
that any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of his or her best efforts to promote the interests of
the Company or that would conflict with the Company's business as proposed to be
conducted. Neither the execution nor delivery of this Agreement, nor the
carrying on of the Company's business by the employees of the Company, nor the
conduct of the Company's business as proposed, will, to the best of the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company.
2.10 Conflicts. Neither the execution nor delivery of this
Agreement, nor the carrying on of the Company's business will, to the best of
the Company's knowledge, conflict with or result in a material breach of the
terms, conditions or provisions of, or constitute a material default under, any
contract, covenant or instrument under which the Company or any of its employees
is now obligated.
2.11 Compliance with Other Instruments. Except as to defaults
which individually or in the aggregate would not be material to the Company and
its subsidiaries taken as a whole, neither the Company nor any of its
subsidiaries is in violation or default of any provision of its certificate of
incorporation or bylaws, or other organizational documents, or is in breach of
or default with respect to any provision of any agreement, judgment, decree,
order, mortgage, deed of trust, lease, franchise, license, indenture, permit or
other instrument to which it is a party or by which it or any of its properties
are bound; and, except as to defaults which individually or in the aggregate
would not be material to the Company and its subsidiaries taken as a whole, to
the Company's knowledge, there does not exist any state of facts which
constitutes an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby and thereby, will not result in any such violation or be in
conflict with or constitute, with or without the passage of time
5.
and giving of notice, either a default under any such provision, instrument,
judgment, order, writ, decree or contract or an event that results in the
creation of any lien, charge or encumbrance upon any assets of the Company or
the suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization, or approval applicable to the Company,
its business or operations or any of its assets or properties.
2.12 Disclosure. The Company has fully provided Investor with
all the information that such Investor has requested for deciding whether to
purchase the Common Stock. Neither this Agreement, nor any other statements or
certificates made or delivered in connection herewith or therewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading.
2.13 Registration Rights. Except for the registration rights
granted under this Agreement, and as disclosed in the Company SEC Documents,
there are no other stockholders of the Company that have been granted
registration rights, including piggyback rights, and the Company has not agreed
to grant any registration rights, to any person or entity.
2.14 Title to Property and Assets. The Company or the
applicable subsidiary has good and marketable title to all the properties and
assets subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except those which do not adversely affect the use made and proposed to be made
of such property by the Company and its subsidiaries. The Company or the
applicable subsidiary holds its leased properties under valid and binding
leases, with such exceptions as are not materially significant in relation to
the business of the Company. The Company owns or leases all such properties as
are necessary to its operations as now conducted.
2.15 Financial Statements. The Company has delivered to
Investor its audited financial statements (balance sheet and profit and loss
statement, statement of stockholders' equity and statement of cash flows,
including notes thereto) at June 30, 1996 and for the fiscal year then ended,
and its unaudited financial statements (balance sheet and profit and loss
statement) as at and for the 3-month period ended September 30, 1996 (the
audited and unaudited financial statements are collectively, the "Financial
Statements"). The Financial Statements of the Company and its subsidiaries,
present fairly the financial position of the Company and its subsidiaries, as
the case may be, as of the respective dates of such financial statements and
schedules, and the results of operations and changes in financial position of
the Company and its subsidiaries, as the case may be, for the respective periods
covered thereby. Such Financial Statements, schedules and related notes have
been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis.
2.16 Changes. Since September 30, 1996:
6.
(a) the Company and its subsidiaries have not incurred any
material liabilities or obligations, indirect, direct or contingent, or entered
into any material verbal or written agreement or other transaction which is not
in the ordinary course of business;
(b) the Company and its subsidiaries have not sustained any
material loss or interference with their respective businesses or properties
from fire, flood, windstorm, accident or other calamity, whether or not covered
by insurance;
(c) the Company has not paid or declared any dividends or
other distributions with respect to its capital stock and the Company and its
subsidiaries are not in default in the payment of principal or interest on any
outstanding debt obligations;
(d) There has not been any change in the capital stock or,
other than in the ordinary course of business, indebtedness material to the
Company and its subsidiaries; and
(e) there has not been any material adverse change or any
development involving or which may reasonably be expected to involve a
prospective material adverse change, in the condition (financial or otherwise),
business, properties, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
2.17 SEC Documents; Material Contracts. The Company has filed
each statement, annual, quarterly and other report, registration statement and
definitive proxy statement required to be filed (other than preliminary
material) by the Company with the SEC subsequent to August 15, 1996. As of their
respective filing dates, the Company SEC Documents complied in all material
respects with the requirements of the Act or the Securities Exchange Act of 1934
(the "1934 Act"), as the case may be, and none of the Company SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not misleading,
except to the extent corrected by any subsequently filed Company SEC Documents.
The Company's Registration Statement on Form S-1, which became effective on
August 14, 1996 (the "Registration Statement"), and the Company SEC Documents,
include certain contracts as required by the SEC's rules and regulations. The
contracts so described in the Registration Statement and in the Company SEC
Documents, that are currently material to the Company and its business, are in
full force and effect on the date hereof. Neither the Company nor any of its
subsidiaries, nor to the Company's knowledge, any other party is in breach of or
default under any of such contracts, except as to breaches or defaults which, in
any single case or in the aggregate would not have a material adverse effect on
the Company or the subsidiary.
7.
2.18 Compliance with All Laws. The Company has not been
advised, and has no reason to believe, that either it or any of its subsidiaries
is not conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal environmental laws
and regulations, except where failure to be so in compliance would not
materially adversely affect the condition (financial or otherwise), business,
results of operations or prospects of the Company and its subsidiaries taken as
a whole.
2.19 Investment Company. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
3. Representations and Warranties of Investor. Investor hereby
represents and warrants that:
3.1 Authorization. Investor has full power and authority to
execute and deliver, and to consummate the transactions contemplated by the
Closing and this Agreement. All corporate action on the part of Investor, its
officers, directors and shareholders necessary for (i) the execution and
delivery of, and the consummation of the transactions contemplated by, this
Agreement, and (ii) as of the Closing, the performance of all obligations of
Investor under this Agreement, has been taken. This Agreement, upon execution
and delivery by Investor and assuming the due and proper execution and delivery
by the Company, constitutes a legal, valid and binding obligation of Investor,
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.
3.2 Purchase Entirely for Own Account. This Agreement is made
with Investor in reliance upon Investor's representation to the Company, which
by Investor's execution of this Agreement Investor hereby confirms, that the
Common Stock to be received by Investor (collectively, the "Securities") will be
acquired for investment for Investor's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and that
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, Investor further
represents that Investor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
3.3 Governmental Consents. Other than compliance with the Act
and such filings as may be required to be made with the NASD, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of Investor is required in connection with
the consummation of the transactions contemplated by this Agreement.
8.
3.4 No Consent. No consent, approval, waiver or other action
by any entity under any material contract, agreement, indenture, lease,
instrument or other document to which Investor is a party or by which it is
bound is required or necessary for the execution, delivery and performance of,
or the consummation of the transactions contemplated by, this Agreement by
Investor.
3.5 Disclosure of Information. Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Common Stock. Investor further represents that it has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Common Stock and the
business, properties, prospects and financial condition of the Company. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of Investor to rely
thereon.
3.6 Investment Experience. Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Common
Stock. Investor has not been organized for the purpose of acquiring the Common
Stock.
3.7 Accredited Investor. Investor is an "accredited investor"
within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.8 Restricted Securities. Investor understands that the
Securities it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.9 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, Investor further agrees not to
make any disposition of all or any portion of the Securities unless and until
the transferee has agreed in writing for the benefit of the Company to be bound
by this Section 3 provided and to the extent this Section is applicable, and:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
9.
(b) If reasonably requested by the Company, Investor shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company that such disposition will not require registration of such
shares under the Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
3.10 Legends. Each certificate or instrument representing
Shares shall bear legends in substantially the following forms:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
'SECURITIES ACT') AND ARE 'RESTRICTED SECURITIES' AS DEFINED IN RULE
144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES MAY NOT BE
SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (I) IN
CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT, OR (II) IN COMPLIANCE WITH RULE 144, OR (III)
PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE
SECURITIES THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO
SUCH SALE, OFFER OR DISTRIBUTION."
(ii) Any other legends required by California law or
other applicable blue sky or state securities laws.
The Company need not register a transfer of any Shares, and may also instruct
its transfer agent not to register a transfer of any Shares, unless the
conditions specified in the foregoing legends are satisfied to the extent
applicable.
4. Right to Notification.
4.1 Notification of Acquisition of Securities. The Company
will notify Investor in the event any person or entity acquires securities which
results in such person or entity owning five (5%) percent or more of the
securities of the Company or a Spinoff (defined as a subsidiary of the Company,
to which the Company transfers substantially all of its assets used in
development and/or production of TCP/IP products) promptly when the Company
becomes aware of the acquisition. In the event any person or entity varies its
ownership above five (5%) percent by one (1%) percent or more, then the Company
shall notify Investor immediately after the Company receives a copy of the
applicable Form 13 or any other applicable form or earlier if the Company
becomes aware of such acquisition prior to receiving the applicable form filed
with the SEC.
10.
4.2 Notification of Receipt of Acquisition Proposal or
Initiation of Sale. In the event that the Board of Directors of the Company or
the Spinoff (i) receives an offer to be acquired by means of (x) a merger,
consolidation or other business combination pursuant to which the stockholders
of the Company or a Spinoff immediately prior to the effective date of such
transaction have beneficial ownership of less than fifty percent (50%) of the
total combined voting power for election of directors of the surviving
corporation immediately following such transaction; or (y) the sale of all or
substantially all of the assets of the Company or a Spinoff, or (ii) votes to
initiate a sale to any other person or entity of (xx) twenty-five (25%) percent
or more of the Actual Voting Power of the Company (as defined in Section 4.3
below) or a Spinoff, or (yy) all or substantially all of the Company's or a
Spinoff's assets, prior to accepting such acquisition proposal or initiating
such sale, the Company or the Spinoff shall provide to Investor written notice
(the "Notice") of the proposed terms of such acquisition proposal or sale within
two (2) business days of receipt of such acquisition proposal or the initiation
of a sale of the Company or the Spinoff. The Notice shall include the following
information: (a) the identity of the party making the acquisition proposal and
(b) the specific terms of the acquisition proposal or the initiation of a sale
of the Company or the Spinoff. Further, the Company shall provide a true and
complete copy of the acquisition proposal if in writing, or a complete written
summary thereof if the proposal is not in writing, and any and all documents
containing or referring to non-public information of the Company that are or
have been supplied to the party making the acquisition proposal. The Company
agrees not to accept an acquisition proposal or vote to initiate a sale of the
Company or the Spinoff as provided for in this Section 4.2 earlier than twenty
(20) days from the date of Investor's receipt of the Notice.
4.3 Actual Voting Power. "Actual Voting Power of the Company
or a Spinoff" shall mean the total number of votes that may be cast in the
election of Directors of the Company or a Spinoff at any meeting of stockholders
of the Company or a Spinoff if all shares of Common Stock and other securities
of the Company or a Spinoff entitled to vote generally in the election of
Directors of the Company or a Spinoff were present and voted at such meeting,
other than votes that may be cast only by one class or series of stock (other
than shares of Common Stock) or upon the happening of a contingency.
4.4 Term. The Notice requirements set forth in Section 4.1
shall commence on December 10, 1996 and shall terminate on December 31, 1999.
11.
5. Registration Rights.
5.1 Request for Registration.
(a) If the Company shall receive at any time after August 15,
1997, a written request from Investor that the Company file a registration
statement under the Act covering the registration of the Common Stock purchased
hereunder, then the Company shall effect as soon as practicable, and in any
event within 60 days of the receipt of such request, the registration under the
Act of all securities which Investor requests to be registered.
(b) If Investor intends to distribute the securities covered
by its request by means of an underwriting, Investor shall so advise the Company
as a part of its request made pursuant to subsection (a) above. The underwriter
will be selected by the Company and shall be reasonably acceptable to Investor.
Investor shall (together with the Company) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Investor a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than 120 days after receipt of the request of Investor; provided, however,
that the Company may not utilize this right more than once in any twelve-month
period.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 5.1:
(i) After the Company has effected one
registration, other than a registration which is made on Form S-3 pursuant to
this Section 5.1, and such registration has been declared or ordered effective;
(ii) If all securities which Investor requests
to be registered may immediately be sold under Rule 144 during any 90-day
period.
(iii) More than once in any 12-month period.
5.2 Obligations of the Company. Whenever required under this
Section 5 to effect the registration of any securities, the Company shall, as
expeditiously as reasonably possible:
12.
(a) Prepare and file with the SEC a registration statement
with respect to such securities and use commercially reasonable efforts to cause
such registration statement to become effective, and, upon the request of
Investor, keep such registration statement effective for a period of up to one
hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed; provided, however, that such 120-day
period shall be extended for a period of time equal to the period Investor
refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company.
(b) Prepare and file with the SEC 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 Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to Investor such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of securities.
(d) Use commercially reasonable 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 Investor; 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, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act.
(e) 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, said form to be
agreeable to the Company and its counsel. Investor shall also enter into and
perform its obligations under such an agreement.
(f) Notify Investor at any time when a prospectus relating to
such registration statement is required to be delivered under the 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.
(g) Cause all such securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed.
13.
(h) Use commercially reasonable efforts to furnish, at the
request of Investor, on the date that securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
5, 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 Investor 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
Investor.
5.3 Expenses of Registration. All expenses other than
underwriting discounts and commissions incurred in connection with the request
for registration pursuant to Section 5.1, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company (including fees and disbursements
of counsel for the Company in its capacity as counsel to Investor hereunder; if
Company counsel does not make itself available for this purpose, the Company
will pay the reasonable fees and disbursements of one counsel for Investor)
shall be borne by the Company and all such expenses for subsequent registrations
shall be borne by Investor; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 5.1 if the registration request is subsequently withdrawn at the
request of Investor (in which case Investor shall bear such expense); provided
further, however, that if at the time of such withdrawal, Investor has learned
of a material adverse change in the condition, business, or prospects of the
Company from that known to Investor at the time of its request and has withdrawn
the request with reasonable promptness following disclosure by the Company of
such material adverse change, then Investor shall not be required to pay any of
such expenses and shall retain its rights pursuant to Section 5.1.
5.4 Indemnification. In the event any securities are included
in a registration statement under this Section 5:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless Investor, any underwriter (as defined in the Act) for Investor
and each person, if any, who controls Investor or underwriter within the meaning
of the Act or the 1934 Act, against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Act or the 1934
Act or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
14.
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, or the 1934 Act or any state securities
law; and the Company will pay to each Investor, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 5.4(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any Investor, underwriter or controlling person.
(b) To the extent permitted by law, Investor will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, and any controlling
person of any such underwriter or Investor, against any losses, claims, damages,
or liabilities (joint or several) to which any of the foregoing persons may
become subject, under the Act, or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by Investor expressly for use
in connection with such registration; and Investor will pay, as incurred, any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 5.4(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 5.4(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Investor, which consent shall not be unreasonably withheld; provided, that, in
no event shall any indemnity under this subsection 5.4(b) exceed the gross
proceeds from the offering received by Investor.
(c) Promptly after receipt by an indemnified party under this
Section 5.4 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 5.4, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
15.
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
5.4, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 5.4.
(d) If the indemnification provided for in this Section 5.4 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Investor under this
Section 5.4 shall survive the completion of any offering of securities in a
registration statement under this Section 5, and otherwise.
5.5 Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of Investor, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder (a) to include such securities in any registration
filed under Section 5.1 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities
16.
in any such registration only to the extent that the inclusion of its securities
will not reduce the amount of the securities of Investor which are included or
(b) to make a demand registration which could result in such registration
statement being declared effective prior to the earlier of August 15, 1997 or
within one hundred twenty (120) days of the effective date of any registration
effected pursuant to Section 5.1.
6. Right of First Offer.
6.1 New Issuances. The Company hereby grants to Investor the
right of first offer (the "Right of First Offer") to purchase a pro rata share
(rounded to the next lowest number) of all (or any part) of any "New Securities"
(as defined in Section 6.2) that the Company may, from time to time propose to
sell and issue in a private equity financing. Such pro rata share, for purposes
of this right of first offer, is the ratio of the number of Shares then owned by
Investor to the total number of shares of Common Stock outstanding immediately
prior to such issuance. This Right of First Offer shall be subject to the
following provisions:
6.2 "New Securities" shall mean any Common Stock of the
Company whether or not authorized on the date hereof, and rights, options, or
warrants to purchase Common Stock and equity securities of any type whatsoever
that are, or may become, convertible into Common Stock; provided, however, that
"New Securities" does not include the following:
(a) issuances of any other securities issued upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event;
(b) securities of the Company issued pursuant to the
acquisition of a business by the Company by merger, purchase of assets, or other
acquisition or reorganization approved by the Board of Directors;
(c) securities of the Company issued in connection with
equipment lease transactions, loan guarantees, commercial loans, bank financing
transactions or technology licenses approved by the Board of Directors; and
(d) shares of Common Stock, warrants to purchase shares of
Common Stock or options to purchase shares of Common Stock, issued or granted to
officers, directors, employees or consultants of the Company pursuant to stock
plans and option plans or other compensatory arrangements approved by the Board
of Directors.
6.3 Notice of New Securities. In the event that the Company
proposes to undertake an issuance of New Securities, it shall give Investor
written notice of its intention, describing the type of New Securities, the
price, and the general terms upon which the Company proposes to issue the same.
Investor shall have ten (10) business days after receipt of such notice to agree
to purchase its pro rata share of such New
17.
Securities at the price and upon the terms specified in the notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased.
6.4 Exercise of Right of First Offer. In the event that
Investor fails to exercise in full the right of first refusal within the ten
(10) business day period specified above, the Company shall have ninety (90)
days thereafter to sell (or enter into an agreement to sell) the New Securities
respecting which the right of Investor was not exercised at a price and upon
terms no more favorable to the purchasers thereof than specified in the
Company's notice. In the event the Company has not sold (or entered into an
agreement to sell) the New Securities within ninety (90) day period the Company
shall not thereafter issue or sell any New Securities, without first offering
such New Securities to the Investor in the manner provided above.
6.5 Transferability. This Right of First Offer may not be
transferred or assigned by Investor.
6.6 Closing. The purchase and sale of any securities pursuant
to the exercise of the Right of First Offer shall take place at 10:00 a.m. on
the fifth business day following expiration or early termination of all waiting
periods imposed on such purchase and sale by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx"), or, if no waiting period is imposed on
such purchase and sale by the HSR Act, not later than five (5) business days
following Investor's exercise of the Right of First Offer. Any such purchase and
sale shall occur at the offices of the Company located at the address set forth
on the signature page hereof, or at such other time and place as the Company and
Investor may agree. The Company and Investor will use their commercially
reasonable efforts to comply with all Federal and state laws and regulations and
stock exchange listing requirements applicable to any purchase and sale of
securities pursuant to the exercise of the Right of First Offer. The issuance of
such shares shall be subject to compliance with applicable laws and regulations
of any applicable stock exchange and there shall not then be in effect any order
enjoining or restraining such exercise or issuance.
6.7 Reservation of Shares. The Company agrees that it shall
not take any of the actions or series of actions referred to in Paragraph 6
above which would have the effect of triggering the right of Investor to
exercise the Right of First Offer unless the Company shall have an adequate
number of shares available or reserved to satisfy any obligation it may have to
issue shares under Paragraph 6 above.
6.8 Term. The right to purchase additional shares in this
Section 6 shall terminate on December 31, 1999.
7. Conditions of Investor's Obligations at Closing. The
obligations of Investor under subsection 1.2 of this Agreement are subject to
the fulfillment on or
18.
before the Closing of each of the following conditions, the waiver of which
shall not be effective without Investor's consent thereto:
7.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true 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 such Closing.
7.2 Performance. The Company shall have performed and complied
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.
7.3 Qualifications. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
7.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investor, and it shall have received all such counterpart original
and certified or other copies of such documents as it may reasonably request.
7.5 Opinion of Company Counsel. Investor shall have received
from Wilson, Sonsini, Xxxxxxxx & Xxxxxx, counsel for the Company, an opinion,
dated as of the Closing, in a form reasonably acceptable to counsel for
Investor.
7.6 Waiver of Registration Rights. The Company shall obtain a
waiver and/or consent from the requisite number of holders of Registrable
Securities, as defined in that certain Registration Rights Agreement, dated
January 27, 1994, by and among the Company and each of the parties listed on
Exhibit A thereto (the "Rights Agreement"), of any and all rights granted by
that certain Rights Agreement, as required by the Rights Agreement.
8. Conditions of the Company's Obligations at Closing. The
obligations of the Company to Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by
Investor:
8.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
8.2 Payment of Purchase Price. The Investor shall have
delivered the purchase price specified in Section 1.
19.
8.3 Qualifications. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
9. Investor Notice. In the event that Investor (which, for
purposes of this Section 9 includes Investor, its affiliates and all of its
subsidiaries) intends to, directly or indirectly, acquire, or enter into
discussions, negotiations, arrangements or understandings with any third party
to acquire prior to the expiration of this Section 9 (including, without
limitation, the lapse of the negative covenants of this Section 9.1 upon the
occurrence of any of the events described in Section 9.1(a) through (c)),
beneficial ownership of any Common Stock and any other securities issued by the
Company having the ordinary power to vote in the election of directors of the
Company (other than securities having such power only upon the happening of a
contingency) ("Voting Stock"), any securities convertible into or exchangeable
for Voting Stock, or any other right to acquire Voting Stock (except, in any
case, by way of stock dividends or other distributions or offerings made
available to the holders of Voting Stock generally) and if the effect of such
acquisition would be to increase the voting power of all Voting Stock then owned
by Investor or which Investor has a right to acquire more than 9.9% of the total
voting power of all Voting Stock then outstanding, Investor shall provide to the
Company prior written notice of the proposed acquisition of Voting Stock. Such
notice shall include the specific terms of the proposed method of acquisition of
the securities of the Company or the Spinoff and shall be delivered to the
Company four business days prior to the closing of such transaction.
Notwithstanding the foregoing, Investor may acquire Voting Stock without first
providing the Company with prior written notice upon the following events:
(a) if any person or group not affiliated with Investor and
then owning Voting Stock representing at least 5% of the voting power of all
Voting Stock then outstanding provides written notice to the Company or files
any document with the SEC that contains terms that put the Company reasonably on
notice of the likelihood that such person or group has acquired or is proposing
to acquire any shares of Voting Stock or the right to acquire shares of Voting
Stock having aggregate voting power of more than twenty-five percent (25%) of
the total voting power of all shares of Voting Stock then outstanding and, in
the case of a proposal to acquire such shares, the proposal and any related
offers to purchase shares are not withdrawn or terminated prior to Investor
making an offer to acquire Voting Stock or acquiring Voting Stock in response
thereto; provided, however, that the negative covenants of this Section 9 will
resume following the withdrawal of any proposal or offer to purchase shares made
in accordance with this Section 9;
(b) if it is publicly disclosed or Investor otherwise learns
that the Company has entered into any letter of intent or agreement with a
person or group that, if consummated, would result in such person or group
owning or having the right to
20.
acquire shares of Voting Stock having aggregate voting power of more than 20% of
the total voting power of all shares of Voting Stock then outstanding;
(c) if a tender offer is made as evidenced by the filing with
the SEC of a Schedule 14D-1 (or any successor schedule or form promulgated or
adopted for such purpose by the SEC) and the actual dissemination of tender
offer materials to security holders by another person or group to purchase or
exchange for cash or other consideration any Voting Stock which, if successful,
would result in such person or group owning or having the right to acquire
shares of Voting Stock with aggregate voting power of at least 50% of the total
voting power of the Company then in effect; or
(d) upon the earlier of a merger, consolidation, or sale of
substantially all of the Company's assets or December 31, 1999.
(e) Excluded Shares. For purposes of this agreement, Investor
will not be deemed to have beneficial ownership of any Voting Stock held by an
Investor pension plan or other employee benefit program if Investor does not
have the power to control the investment decisions of such plan or program.
10. Miscellaneous.
10.1 Survival of Warranties. The warranties, representations
and covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Investor or the Company.
10.2 Assignment; Successors and Assigns. No provision of this
Agreement may be assigned without the prior written consent of the other party
hereto. Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any Securities).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
10.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
10.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21.
10.5 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.6 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be sent by
personal delivery, facsimile, overnight courier or mailed by certified or
registered mail, postage prepaid, return receipt requested, to the facsimile
number or address as follows:
Company: Interlink Computer Sciences, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy (which will not constitute notice) to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
Investor: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx, Esq.
with a copy (which will not constitute notice) to:
Xxxxxxx, Phleger & Xxxxxxxx, LLP
0000 Xxxx Xxxx
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this Section 10.6. Such notices or other
communications shall be deemed delivered upon receipt, in the case of overnight
delivery, personal delivery or
22.
facsimile transmission (as evidenced by the confirmation thereof), or 2 days
after deposit in the mails (as determined by reference to the postmark).
10.7 Finder's Fee. Each party represents that it neither is
nor will be obligated for any finders' fee or commission in connection with this
transaction. Investor agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which such Investor or any of its officers, partners, employees,
or representatives is responsible.
The Company agrees to indemnify and hold harmless Investor
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
10.8 Expenses. Irrespective of whether the Closing is
effected, each party shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
10.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investor. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities are convertible),
each future holder of all such securities, and the Company.
10.10 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
10.11 Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
23.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Title: President & CEO
-----------------------------
INVESTOR:
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Title: President & CEO
-----------------------------
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
24.
