WARRANT PURCHASE AGREEMENT
BETWEEN
OBJECTSPACE, INC.
AND
ONSTAR CORPORATION
DATED AS OF DECEMBER 23, 1999
EXHIBIT 23.4
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made as of
December 23, 1999, by and between OBJECTSPACE, INC., a Delaware corporation
with its principal office at _00000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 (the "Company"), and ONSTAR CORPORATION, a Delaware corporation, with an
address at 0000 Xxxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxx 00000 (the "Purchaser").
AGREEMENT
IN CONSIDERATION of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the Company and the Purchaser agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SECURITIES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale and issuance
of a warrant, in substantially the form attached hereto as EXHIBIT A (the
"Warrant"), to purchase shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"). Pursuant to the Warrant, the Purchaser shall
be entitled to purchase that number of shares of Common Stock of the Company
that can be purchased with $2,500,000 at a price per share equal to the
initial offering price per share in connection with an underwritten initial
public offering of common stock of the Corporation registered under the
Securities Act of 1933, as amended (the "IPO").
1.2 SALE AND PURCHASE. Subject to the terms and conditions
of this Agreement, and in reliance on the representations and warranties
contained herein, concurrently with the execution of this Agreement, the
Company agrees to issue and sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, the Warrant for $100.00 and other good and valuable
consideration. The shares of Common Stock issuable upon exercise of the
Warrant will be hereinafter referred to as the "Warrant Shares."
1.3 CLOSING. Subject to the terms and conditions of Section
5, the closing of the sale and purchase of the Warrant (the "Closing") shall
be held concurrently with the execution of this Agreement (such date being
referred to as the "Closing Date") at the offices of the Purchaser, or at such
other time and place as the Company and Purchaser may agree.
1.4 DELIVERY. At the Closing, subject to the terms and
conditions hereof, the Company will issue and deliver to Purchaser the
Warrant, against payment of the purchase price therefor by cash or wire
transfer, unless other means of payment shall have been agreed upon by
Purchaser and the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Subject to and
except as disclosed by the Company in the Schedule of Exceptions attached
hereto as EXHIBIT B, the Company hereby represents and warrants and covenants
to Purchaser as of the date of this Agreement and as of the Closing Date as
follows:
1
EXHIBIT 23.4
2.1 AUTHORIZATION. All corporate action necessary for the
authorization, execution and delivery of this Agreement has been taken. The
Company has the requisite corporate power to enter into this Agreement and
carry out and perform its obligations under the terms of this Agreement. At
the Closing, the Company will have the requisite corporate power to sell the
Warrant to be sold at such Closing. This Agreement has been duly authorized,
executed and delivered by the Company and, upon due execution and delivery by
Purchaser, this Agreement will be a valid and binding obligation of the
Company, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by equitable principles.
2.2 NO CONFLICT WITH OTHER INSTRUMENTS. The execution,
delivery and performance by the Company of its obligations under this
Agreement, and the Warrant and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation,
the reservation for issuance and issuance of the Warrant Shares) will not (i)
result in a violation of the Articles or Certificate of Incorporation or the
By-laws of the Company; (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment or acceleration
or cancellation of, any material agreement, indenture or instrument to which
the Company is a party; or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or by which any property or
asset of the Company is bound or affected. The Company is not in breach of any
term of or in default under (x) its Articles or Certificate of Incorporation
or By-laws, or (y) any contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation
applicable to the Company. The business of the Company is not being conducted
in violation of any law, ordinance or regulation of any governmental entity.
2.3 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of _Delaware and has all requisite corporate power
and authority to own, lease and operate its properties and carry on its
business as now conducted and as proposed to be conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which its ownership of property or conduct of business requires such
qualification except where any failure to be so qualified would not have a
material adverse effect on the Company.
2.4 CAPITALIZATION.
(a) The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock $1.00 par value. As of the date hereof, 7,456,872 shares of
common stock are issued and outstanding, 571,429 shares of Series A
Convertible Preferred Stock and 2,702,703 shares of Series B Convertible
Preferred Stock are issued and outstanding. All issued and outstanding shares
have been duly authorized and validly issued, and are fully paid and
nonassessable, and such shares and all outstanding options, warrants,
convertible notes and other securities of the Company have been issued in
compliance with all applicable federal and state securities laws.
2
EXHIBIT 23.4
(b) Except as described on Schedule 2.4(b), after
giving effect to the sale of the securities hereunder, there are no preemptive
or other outstanding rights, options, warrants, conversion rights or
agreements for the purchase or acquisition from the Company of any shares of
its capital stock or other securities of the Company. Except as described on
Schedule 2.4(b), the Company has not granted or agreed to grant to any person
or entity any rights (including piggyback registration rights) to have any
securities of the Company registered with the United States Securities and
Exchange Commission ("SEC") or any other governmental authority.
2.5 SUBSIDIARIES. Except as set forth on Schedule 2.5, the
Company does not presently own or control, directly or indirectly, and has no
stock or other interest as owner or principal in, any other corporation or
partnership, joint venture, association or other business venture or entity.
2.6 VALID ISSUANCE OF STOCK.
(a) The Warrant, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed herein, will
be duly and validly authorized and issued, fully paid and nonassessable, will
be delivered to Purchaser free and clear of all liens, pledges, claims,
encumbrances, security interests or other restrictions, except for
restrictions on transfer contemplated herein or imposed to ensure compliance
with the Securities Act of 1933, as amended (the "Securities Act"), and, based
in part upon the representations of Purchaser in Section 3.3 of this
Agreement, will be issued in compliance with all applicable federal and state
securities laws.
(b) The Warrant Shares have been duly and validly
reserved for issuance, and upon issuance in accordance with the terms of the
Warrant will be duly and validly issued, fully paid and nonassessable, will be
delivered to Purchaser free and clear of all liens, pledges, claims,
encumbrances, security interests or other restrictions, except for
restrictions on transfer contemplated herein or imposed to ensure compliance
with the Securities Act, and, based in part upon the representations of
Purchaser in Section 3.3 of this Agreement, will be issued in compliance with
all applicable federal and state securities laws.
(c) Except as set forth on schedule 2.6(c), the
shares of Common Stock issuable under the Warrant are not subject to
preemptive rights, rights of first refusal or any other similar rights of the
stockholders of the Company.
(d) Except as set forth on Schedule 2.6(d), the
issuance of the Warrant will not require the Company to issue any additional
capital stock of the Company pursuant to any anti-dilution provision or
otherwise.
2.7 LITIGATION. There is no action, suit or proceeding
pending nor, to its knowledge, any action, suit, proceeding or investigation
currently threatened against the Company, nor, to its knowledge, is there any
basis therefor. The foregoing includes, without limitation, any action, suit,
proceeding or investigation, pending or threatened, that questions the
validity of this Agreement or the right of the Company to enter into the
Agreement.
3
EXHIBIT 23.4
2.8 GOVERNMENTAL CONSENTS. Except as set forth on Schedule
2.8, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state,
local or provincial governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated
by this Agreement.
2.9 NO MATERIAL CHANGE. Except as set forth on Schedule 2.9,
since the date of last audited financial statements provided to Purchaser,
there has been no material adverse change in the financial condition, business
or results of operations of the Company which has not been disclosed to
Purchaser in the Schedule of Exceptions as of the date of this Agreement.
2.10 INTELLECTUAL PROPERTY. The Company owns or possesses
adequate rights or licenses to use all trademarks, trade names, service marks,
service xxxx registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets
and rights necessary to conduct its business as now conducted. Except as set
forth on Schedule 2.10, none of the Company's material trademarks, trade
names, service marks, service xxxx registrations, service names, patents,
patent rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets or other intellectual property rights have
expired or terminated, or are expected to expire or terminate within two (2)
years from the date of this Agreement. The Company does not have any knowledge
of any infringement by the Company of trademarks, trade name rights, patents,
patent rights, copyrights, inventions, licenses, service names, service marks,
service xxxx registrations, trade secret or other similar rights of others,
and, except as set forth on Schedule 2.10, there is no claim, action or
proceeding being made or brought against, or to the Company's knowledge, being
threatened against, the Company regarding trademarks, trade name rights,
patents, patent rights, inventions, copyrights, licenses, service names,
service marks, service xxxx registrations, trade secrets or other
infringement. The Company has taken reasonable security measures to protect
the secrecy, confidentiality and value of all of its intellectual properties.
2.11 COMPLIANCE. The Company has not been advised, and has no
reason to believe, that it is not conducting its 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 the failure
to comply with such laws would not have a material adverse effect on the
Company.
2.12 FINANCIAL STATEMENTS. The financial statements of the
Company provided to Purchaser (the "Financial Statements") comply as to form
in all material respects with applicable accounting requirements. The
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied and fairly present the financial
position of the Company at the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal, recurring adjustments).
2.13 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based on arrangements
made by the Company.
4
EXHIBIT 23.4
2.15 DISCLOSURE. Neither the representations or warranties
made by Company in this Agreement, nor in the Schedule of Exceptions or any
certificate or document executed and/or delivered by the Company pursuant to
this Agreement, when taken together, contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements or facts contained herein or therein not misleading in light of the
circumstances in which they were furnished.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to the Company as follows:
3.1 LEGAL POWER. Purchaser has the requisite legal power to
enter into this Agreement, to carry out and perform its obligations under the
terms of this Agreement, and has the requisite legal power to purchase the
Warrant.
3.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by Purchaser, and, upon due execution and delivery by
the Company, this Agreement will be a valid and binding obligation of
Purchaser, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by equitable principles.
3.3 INVESTMENT REPRESENTATIONS. In connection with the
purchase of the Warrant, the Purchaser makes the following representations:
(a) the Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved
in the purchase of the Warrant, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the Warrant;
(b) the Purchaser is acquiring the Warrant in the
ordinary course of its business and for its own account for investment only
(as defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976 and the regulations thereunder) and with no present intention of
distributing such Warrant or any arrangements or understanding with any other
persons regarding the distribution of such Warrant;
(c) the Purchaser will not, directly or indirectly,
offer, sell, pledge, transfer, or otherwise dispose of (or solicit any offers
to buy, purchase or otherwise acquire or take a pledge of) any of the Warrant
or capital stock of the Company issuable upon exercise thereof except in
compliance with the Securities Act, the rules and regulations of the SEC, and
the restrictions provided under the Registration Rights Agreement to be
entered into by the parties in substantially the form attached hereto as
EXHIBIT C;
(d) the Purchaser has completed or caused to be
completed the Stock Certificate Questionnaire, attached hereto as Appendix I,
and the answers thereto are true and correct to the best knowledge of the
Purchaser as of the date hereof;
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EXHIBIT 23.4
(e) the Purchaser has not, in connection with its
decision to purchase the Warrant, relied upon representations and warranties
of the Company other than those contained herein;
(f) the Purchaser is an "accredited investor" within
the meaning of Rule 501 of Regulation D promulgated under the Securities Act;
(g) the Purchaser understands that (i) the Warrant
has not been registered under the Securities Act by reason of a specific
exemption therefrom, that such Warrant must be held by Purchaser, and that
Purchaser must, therefore, bear the economic risk of such investment, until a
subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration; (ii) the Warrant (and any shares of capital
stock issuable upon exercise thereof) will be endorsed with the following
legends:
(1) THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(2) THE TRANSFER OF THE SHARES REPRESENTED BY
THIS STOCK CERTIFICATE IS RESTRICTED PURSUANT TO THE TERMS OF A REGISTRATION
RIGHTS AGREEMENT DATED AS OF DECEMBER __, 1999; and
(3) Any legend required to be placed thereon
by the Company's Bylaws or under applicable state securities laws; and
(iii) the Company will instruct any transfer agent not to register the
transfer of the Warrant or shares of capital stock issuable upon exercise
thereof (or any portion thereof) unless the conditions specified in the
foregoing legends are satisfied, until such time as a transfer is made
pursuant to the terms of this Agreement and in compliance with Rule 144 or
pursuant to a registration statement or if the opinion of counsel referred to
above is to the further effect that such legend is not required in order to
establish compliance with any provisions of the Securities Act or this
Agreement; and
(h) the Purchaser 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 Warrant purchased hereunder and the shares
of capital stock issuable upon exercise thereof.
3.4 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based on arrangements
made by Purchaser.
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EXHIBIT 23.4
4. OTHER COVENANTS.
4.1 THIRD PARTY CONSENTS. Each party shall use its
commercially reasonable efforts to obtain and to cooperate with the other
party in the effort to obtain, as soon as reasonably practicable, all permits,
authorizations, consents, waivers and approvals from third parties or
governmental authorities necessary to consummate this Agreement and the
transactions contemplated hereby. All such consents shall be at each party's
own expense.
4.2 CERTAIN NOTIFICATIONS. Each party shall promptly notify
the other in writing of the occurrence of any event which will or could
reasonably be expected to result in the failure to satisfy any of the
conditions to the obligations of such party specified in Section 5.1 or 5.2,
as the case may be, of this Agreement.
4.3 PURCHASER CONSENT. Purchaser consents to Company's use of Purchaser's
name (a) in the Registration Statement on Form S-1 relating to Company's sale
of common stock and the related prospectus, including any pre-effective and
post-effective amendments thereto, and (b) in any other documents filed by
ObjectSpace with the United States Securities and Exchange Commission under
the Securities Act of 1933 or the Securities Exchange Act of 1934
(collectively, the "Filings"). Purchaser further consents to the inclusion in
any Filing of all of the terms of, and any information relating to: (a) this
Agreement; (b) the Warrant; and (c) any other agreements between Purchaser and
ObjectSpace that ObjectSpace, in its reasonable discretion, determines are
material. In addition, the Purchaser consents to the inclusion in any Filing
of the case study attached hereto as EXHIBIT D (the "Case Study"). Company
acknowledges that Purchaser does not make any representation or warranty as to
the truth or accuracy of the Case Study by granting this consent, and agrees
to indemnify and hold Purchaser harmless from any and all liability resulting
from the inclusion of the Purchaser's name and the Case Study in any Filings.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO OBLIGATIONS OF PURCHASER AT CLOSING.
Purchaser's obligation to purchase the Warrant at the Closing is subject to
the fulfillment to Purchaser's satisfaction, on or prior to the Closing, of
all of the following conditions, any of which may be waived by Purchaser in
writing:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE
OF OBLIGATIONS. The representations and warranties made by the Company in
Section 2 hereof shall be true and correct in all material respects on the
Closing Date with the same force and effect as if they had been made on and as
of said date, and the Company shall have performed and complied with all
obligations and conditions herein required to be performed or complied with by
it on or prior to the Closing.
(b) PROCEEDINGS AND DOCUMENTS. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing and all documents and instruments incident to such transactions shall
be reasonably satisfactory in substance and form to counsel to the Purchaser,
and counsel to the Purchaser shall have received all such
7
EXHIBIT 23.4
counterpart executed originals or certified or other copies of such documents
as they may reasonably request, including, but not limited to, the Warrant.
(c) QUALIFICATIONS, LEGAL INVESTMENT. 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 sale and issuance of the Warrant shall have been
duly obtained and shall be effective on and as of the Closing. No order
enjoining the sale of such Warrant shall have been issued and no proceedings
for such purpose shall be pending or, to the knowledge of the Company,
threatened by any official having jurisdiction over this transaction. At the
time of the Closing, the sale and issuance of the Warrant shall be legally
permitted by all laws and regulations to which the Purchaser and the Company
are subject.
(d) OFFICER'S CERTIFICATE. The Company shall have
executed and delivered to the Purchaser a writing signed on its behalf by its
Chief Executive Officer certifying the completion of the conditions required
by Section 5.1(a).
(e) OPINION OF COMPANY COUNSEL. Purchaser shall have
received an opinion from Xxxxxx & Xxxxx, LLP, counsel for the Company, dated as
of the date of the Closing.
(f) TRANSACTION DOCUMENTS. The Company shall have
executed and delivered to the Purchaser this Agreement and the
Registration Rights Agreement, in substantially the form attached
hereto as EXHIBIT F.
If any of the foregoing conditions are not either satisfied or waived in
writing by Purchaser, Purchaser may terminate this Agreement without further
liability.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT CLOSING. The
Company's obligation to issue and sell the Warrant to be sold at the Closing
is subject to the fulfillment to the Company's satisfaction, on or prior to
the Closing of the following conditions, any of which may be waived by the
Company:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE
OF OBLIGATIONS. The representations and warranties made by the Purchaser in
Section 3 hereof shall be true and correct in all material respects at the
date of the Closing with the same force and effect as if they had been made on
and as of said date, and Purchaser shall have performed and complied with all
agreements and conditions herein required to be performed or complied with by
it on or before the Closing.
(b) QUALIFICATIONS, LEGAL INVESTMENT. 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 sale and issuance of the Warrant shall have been
duly obtained and shall be effective on and as of the Closing. No order
enjoining the sale of such Warrant shall have been issued and no proceedings
for such purpose shall be pending or, to the knowledge of the Company,
threatened by any official having jurisdiction over this transaction. At the
time of the Closing the sale and issuance of the Warrant shall be legally
permitted by all laws and regulations to which the Purchaser and the Company
are subject.
8
EXHIBIT 23.4
If any of the foregoing conditions are not either satisfied or waived in
writing by the Company, the Company may terminate this Agreement, without
further liability.
6. MISCELLANEOUS.
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein and in the Warrant delivered pursuant hereto shall
survive the execution of this Agreement, the delivery to the Purchaser of the
Warrant being purchased and the payment therefor.
6.2 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of Texas and
the United States of America, without regard to choice of law rules.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, and permitted assigns of the parties hereto.
6.4 ENTIRE AGREEMENT. This Agreement and the Exhibits
hereto, together with the Warrant, the Registration Rights Agreement and the
other documents delivered pursuant hereto, constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner
by any representations, warranties, covenants, or agreements except as
specifically set forth herein or therein. Nothing in this Agreement, express
or implied, is intended to confer upon any party, other than the parties
hereto and their respective successors and permitted assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
6.5 SEVERABILITY. Whenever possible, each provision of the
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of the Agreement. In the event of such invalidity,
the parties shall seek to agree on an alternative enforceable provision that
preserves the original purpose of this Agreement.
6.6 AMENDMENT AND WAIVER. Except as otherwise provided
herein, 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, either retroactively or prospectively, and either for a specified
period of time or indefinitely), with the written consent of the Company and
the holders representing a majority interest in the Warrant and the Common
Stock issuable pursuant thereto.
6.7 NOTICES. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively
given and received (a) upon personal delivery, (b) on the fifth day following
mailing by registered or certified mail, return
9
EXHIBIT 23.4
receipt requested, postage prepaid, addressed to the Company or to Purchaser,
as the case may be, at their respective addresses first above written, (c)
upon transmission of telegram or facsimile (with telephonic notice), or (d)
upon confirmed delivery by overnight commercial courier service.
6.8 FEES AND EXPENSES. Except as otherwise provided herein,
each of the Company and the Purchaser shall bear the expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
6.9 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
6.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
6.11 FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, the Company and
the Purchaser shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
6.12 PUBLICITY. The Company and Purchaser shall each have the
right to prior approval of the issuance of any press release or other public
statement with respect to the transactions contemplated hereby.
Notwithstanding the foregoing, each party shall be entitled, without the prior
approval of the other party, to make any press release or other public
disclosure with respect to such transaction as is required by applicable law
and regulations or as is necessary with any filings under the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934, as amended
(although such other party shall be consulted in connection with any such
press release or other public disclosure prior to its release and shall be
provided a copy thereof).
10
IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of
the date first above written.
COMPANY:
OBJECTSPACE, INC.
By: /s/ XXXXX XXXXXX
--------------------------------------
Name Xxxxx Xxxxxx
------------------------------------
Title: CEO
------------------------------------
PURCHASER:
ONSTAR CORPORATION
By: /s/ X. X. Xxxxx
--------------------------------------
Name X. X. Xxxxx
------------------------------------
Title: V. P. Alliances
------------------------------------
EXHIBIT 23.4
APPENDIX I
OBJECTSPACE, INC.
STOCK CERTIFICATE QUESTIONNAIRE
In connection with the Agreement, please provide us with the following
information:
1. The exact name that your Warrant is
to be registered in (this is the name
that will appear on your Warrant). You
may use a nominee name if appropriate:
OnStar Corporation
------------------------------
2. The relationship between the Purchaser
of the Warrant and the Registered
Holder listed in response to item 1
above: Same
------------------------------
3. The mailing address of the Registered
Holder listed in response to item 1
above:
C/o General Motors Legal Staff
------------------------------
Attention: Xxxxxxxx X. Xxxxxxx
------------------------------
300 Renaissance Center
------------------------------
Mail Code: 482-C25-C22
------------------------------
X.X. Xxx 000
------------------------------
Xxxxxxx, Xxxxxxxx 00000-0000
------------------------------
4. The Social Security Number or Tax
Identification Number of the
Registered Holder listed in response
to item 1 above: 00-0000000
------------------------------
EXHIBIT 23.4
EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS
OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
OBJECTSPACE, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. GM-01
FOR VALUE RECEIVED, OBJECTSPACE, INC., a Delaware corporation (the "Company"),
with its principal office at 00000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx,
hereby certifies that ONSTAR CORPORATION, a Delaware corporation (the
"Holder") is entitled, subject to the provisions of this Warrant, to purchase
from the Company at any time or times on or after the date hereof, but not
after 5:00 p.m. Eastern Time on the Expiration Date (as defined below) that
number of shares of Common Stock of the Company ("Common Stock") that can be
purchased with $2,500,000 at a price per share equal to the initial offering
price per share in connection with an underwritten initial public offering of
Common Stock of the Company registered under the Securities Act of 1933, as
amended (the "IPO"), at an exercise price per share (the "Exercise Price")
equal to the initial offering price per share in offered by the Company in the
IPO. "Expiration Date" means the date 360 days from and after the date of the
IPO or, if such date falls on a Saturday, Sunday or other day on which banks
are required or authorized to be closed in the State of New York (a
"Holiday"), the next preceding date that is not a Holiday.
The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for a share of Common Stock are
subject to adjustment from time to time as hereinafter set forth. The shares
of Common Stock deliverable upon such exercise, as adjusted from time to time,
together with the shares of Common Stock issuable upon the net issue exercise
of this Warrant pursuant to Section 1(b) (the "Net Exercise Stock"), are
hereinafter sometimes referred to as "Warrant Shares."
EXHIBIT 23.4
SECTION 1. EXERCISE OF WARRANT; NET ISSUE EXERCISE.
(a) GENERAL. This Warrant may be exercised in whole or in part on any
business day prior to the Expiration Date by presentation and surrender to the
Company at its principal office at the address set forth in the initial
paragraph hereof (or at such other address as the Company may hereafter notify
the Holder in writing) with the Purchase Form annexed hereto duly executed and
accompanied by proper payment of the Exercise Price in lawful money of the
United States of America in the form of a cash, wire transfer of funds, notice
of election of net issue as provided in Section 1(b) below for the number of
shares of Common Stock specified in the Purchase Form. If this Warrant should
be exercised in part only, the Company shall, upon surrender of this Warrant,
execute and deliver a new Warrant evidencing the rights of the Holder thereof
to purchase the balance of the shares of Common Stock purchasable hereunder.
Upon receipt by the Company of this Warrant and such Purchase Form, together
with proper payment of the Exercise Price, at such office, the Holder shall be
deemed to be the holder of record of such number of shares of Common Stock or
Net Exercise Stock, notwithstanding that the stock transfer books of the
Company shall then be closed or that certificates representing such Warrant
Shares shall not then be actually delivered to the Holder.
(b) NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of the share(s) of Common Stock issuable
upon exercise of this Warrant is greater than the Exercise Price (at the date
of exercise), in lieu of exercising this Warrant for cash, the Holder may
elect to receive Common Stock equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant
at the principal office of the Company together with the properly endorsed
Purchase Form and notice of such election in which event the Company shall
issue to the Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A-B)
-------
A
Where
X = the number of shares of Common Stock to be issued
to the Holder
Y = the number of shares of Common Stock purchasable
under the Warrant (at the date of exercise) or, if only a portion of the
Warrant is being exercised, the portion of the Warrant being canceled (at the
date of exercise)
A = the fair market value of one share of the Company's
Common Stock (at the date of exercise)
B = Exercise Price (as adjusted to the date of exercise)
For purposes of the above calculation, current fair market value of Common
Stock shall mean with respect to each share of Common Stock:
2
EXHIBIT 23.4
(i) if traded on a national securities exchange or The Nasdaq
National Market (or similar national quotation system), the
fair market value shall be deemed to be the closing price
(last reported sale) on the day the current fair market value
of the securities is being determined;
(ii) if traded over-the-counter, the fair market value shall
be deemed to be the average of the closing bid and ask prices
quoted on the day the current fair market value of the
securities is being determined; or
(iii) if at any time the Common Stock is not traded as
described in (i) or (ii) above, the current fair market value
shall be the highest price per share which the Company could
obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by
its Board of Directors, unless the Company shall become
subject to a merger, acquisition or other consolidation
pursuant to which the Company is not the surviving party, in
which case the fair market value shall be deemed to be the
value received by the holders of the Company's Common Stock on
a common equivalent basis pursuant to such merger or
acquisition.
SECTION 2. ISSUANCE OF NEW WARRANT. In the event of any exercise of
the rights represented by this Warrant, certificates for the Common Stock or
Net Exercise Stock so purchased shall be delivered to the holder hereof as
soon as practicable (but not later than ten (10) business days after exercise)
and, unless this Warrant has been fully exercised or has expired, a new
Warrant representing the portion of the Common Stock, if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the holder hereof within a reasonable time (but not later than ten (10)
business days after exercise). Such exercise shall be deemed to have been made
immediately prior to the close of business on the date of surrender of this
Warrant.
SECTION 3. RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant all shares of its Common Stock or other shares of capital stock
of the Company from time to time issuable upon exercise of this Warrant. All
such shares shall be duly authorized and, when issued upon such exercise in
accordance with the terms of this Warrant, shall be validly issued, fully paid
and nonassessable.
SECTION 4. FRACTIONAL INTEREST. The Company will not issue a
fractional share of Common Stock upon exercise of this Warrant. Instead, the
Company will deliver its check for the current fair market value of the
fractional share, as determined in good faith by the Board of Directors of the
Company.
SECTION 5. REPLACEMENT OF WARRANT. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of
indemnification satisfactory to the Company, and upon surrender and
3
EXHIBIT 23.4
cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
SECTION 6. RIGHTS OF THE HOLDER. The holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at
law or equity, and the rights of the holder are limited to those expressed in
this Warrant. Nothing contained in this Warrant shall be construed as
conferring upon the holder hereof the right to vote or to consent or to
receive notice as a stockholder of the Company on any matters or with respect
to any rights whatsoever as a stockholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the Common Stock purchasable hereunder until,
and only to the extent that, this Warrant shall have been exercised in
accordance with its terms.
SECTION 7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The
number and kind of securities purchasable upon the exercise of the Warrant and
the Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) RECLASSIFICATION OF OUTSTANDING SECURITIES. In case of any
reclassification, change or conversion of securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), the Company shall execute a new Warrant (in form and substance
reasonably satisfactory to the holder of this Warrant) providing that the holder
of this Warrant shall have the right to exercise such new Warrant and upon such
exercise to receive, in lieu of each share of Common Stock theretofore issuable
upon exercise of this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification or change
by a holder of one share of Common Stock. Such new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 7. The provisions of this subsection
(a) shall similarly apply to successive reclassification or changes.
(b) SUBDIVISIONS OR COMBINATION OF SHARES. If the Company at
any time while this Warrant remains outstanding and unexpired shall subdivide
or combine its Common Stock, the Exercise Price and the number of shares of
Common Stock issuable upon exercise hereof shall be proportionately adjusted.
(c) STOCK DIVIDENDS. If the Company at any time while this
Warrant is outstanding and unexpired shall pay a dividend payable in shares of
Common Stock (except any distribution specifically provided for in the
foregoing subsections (a) and (b)), then the Exercise Price shall be adjusted,
from and after the date of determination of stockholders entitled to receive
such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of determination by a
fraction (a) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution,
and (b) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such dividend or distribution and the
number of shares of Common Stock subject to this Warrant shall be
proportionately adjusted.
4
EXHIBIT 23.4
(d) NOTICE OF RECORD DATE. In the event of any taking by the
Company of a record of its stockholders for the purpose of determining
stockholders who are entitled to receive payment of any dividend (other than a
cash dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any share of any class or any other securities or property,
or to receive any other right, or for the purpose of determining stockholders
who are entitled to vote in connection with any proposed merger or
consolidation of the Company with or into any other corporation, or any
proposed sale, lease or conveyance of all or substantially all of the assets
of the Company, or any proposed liquidation, dissolution or winding up of the
Company, the Company shall mail to the holder of this Warrant, at least ten
(10) days prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
(e) NO ADJUSTMENT UPON EXERCISE OF WARRANTS. No adjustments
shall be made under any Section herein in connection with the issuance of the
Common Stock subsequent to exercise of the Warrant.
SECTION 8. OFFICER'S CERTIFICATE. Whenever the Exercise Price shall
be adjusted as required by the provisions of Section 7, the Company shall
deliver an officer's certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable detail the facts
requiring such adjustment and the manner of computing such adjustment. Each
such officer's certificate shall be signed by the chairman, chief executive
officer, president or chief financial officer of the Company.
SECTION 9. MERGERS, CONSOLIDATION, SALES. In the case of any
proposed consolidation or merger of the Company with another entity, or the
proposed sale of all or substantially all of its assets to another person or
entity, lawful and adequate provision shall be made whereby the holder of this
Warrant shall thereafter have the right to receive upon the basis and upon
substantially the terms and conditions specified herein, in lieu of the shares
of the Common Stock of the Company immediately theretofore purchasable
hereunder, such shares of stock, securities or assets as may (by virtue of
such consolidation, merger or sale) be issued or payable with respect to or in
exchange for the number of shares of such Common Stock purchasable hereunder
immediately before such consolidation, merger, or sale. In any case
appropriate provision shall be made with respect to the rights and interests
of the holder of this Warrant to the end that the provisions hereof shall
thereafter be applicable as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise of this
Warrant.
SECTION 10. TRANSFER RESTRICTIONS; REPRESENTATIONS OF HOLDER.
(a) This Warrant is transferable without the consent of the
Company, provided, however, that any transfer or assignment shall be subject
to the conditions set forth in Section 10(b), and such transferee shall
confirm in writing the representations set forth in Section 10(b) and shall
agree to be bound by the terms of this Warrant.
(b) This Warrant may not be exercised and neither this Warrant nor
any of the Warrant Shares, nor any interest in either, may be sold, assigned,
pledged, hypothecated,
5
EXHIBIT 23.4
encumbered or in any other manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities or Blue Sky laws and the terms and conditions hereof. Each Warrant
shall bear a legend in substantially the same form as the legend set forth on
the first page of this Warrant. Each certificate for Warrant Shares issued
upon exercise of this Warrant shall bear a legend substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in exchange or
substitution for any certificate for any Warrant Shares bearing such legend
shall also bear such legend unless, in the opinion of counsel for the Company,
the Warrant Shares represented thereby need no longer be subject to the
restrictions contained herein. The provisions of this Section 10 shall be
binding upon all subsequent holders of certificates for Warrant Shares bearing
the above legend and all subsequent holders of this Warrant, if any. In
addition, in connection with the issuance of this Warrant, the Holder
specifically represents to the Company by acceptance of this Warrant as
follows:
(a) The Holder is aware of the Company's business affairs
and financial condition, and has acquired information about the Company
sufficient to reach an informed and knowledgeable decision to acquire this
Warrant. The Holder is acquiring this Warrant (and the underlying Warrant
Shares) for its own account for investment purposes only and not with a view
to, or for the resale in connection with, any "distribution" thereof in
violation of the Securities Act of 1933, as amended (the "Act").
(b) The Holder understands that neither this Warrant nor the
Warrant Shares have been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the
bona fide nature of the Holder's investment intent as expressed herein.
(c) The Holder further understands that this Warrant (and
the Warrant Shares) must be held indefinitely unless subsequently registered
under the Act and qualified under any applicable state securities laws, or
unless exemptions from registration and qualification are
6
EXHIBIT 23.4
otherwise available. Moreover, the Holder understands that the Company is
under no obligation to register and qualify this Warrant.
(d) The Holder is aware of the provisions of Rule 144
promulgated under the Act, which, in substance, permit limited public resale
of "restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, if applicable, including,
among other things: the availability of certain public information about the
Company, the resale occurring not less than one year after the party has
purchased and paid for the securities to be sold; and the sale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934, as amended).
(e) The Holder further understands that at the time Holder
wishes to sell the Warrant Shares there may be no public market upon which to
make such a sale, and that, except as set forth in the Purchase Agreement and
related Registration Rights Agreement, the Company is under no obligation to
register the Warrant Shares.
(f) The Holder further understands that in the event all of
the requirements of Rule 144 are not satisfied, registration under the Act,
compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive,
the staff of the Securities and Exchange Commission has expressed its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their
own risk.
SECTION 12. GOVERNING LAW. This Warrant shall be governed by and
interpreted in accordance with the substantive laws of the State of Texas and
the United States of America, without regard to its choice of law rules.
SECTION 13. MODIFICATION AND WAIVER. Neither this Warrant nor any
term hereof may be amended, waived, discharged or terminated other than by an
instrument in writing signed by the Company and by the holder hereof.
SECTION 14 . NOTICES. Any notice, request or other document required
or permitted to be given or delivered to the holder hereof or the Company
shall be delivered or shall be sent by certified mail, confirmed facsimile or
personal delivery, to the holder at the holder's address as shown on the books
of the Company or to the Company at the address indicated therefor in the
first paragraph of this Warrant or such other address as the Company shall
have notified the holder.
SECTION 15. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant.
SECTION 16. ENTIRE AGREEMENT. This Warrant, together with the
Purchase Agreement, the Registration Rights Agreement and the documents
delivered pursuant thereto, constitutes the entire agreement between the
parties pertaining to the subject matter herein and
7
EXHIBIT 23.4
supersedes all prior and contemporaneous agreements, representations and
undertakings of the parties.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed by its duly authorized officer and to be dated as of December 23, 1999.
OBJECTSPACE, INC.
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: CEO
--------------------------------
8
EXHIBIT 23.4
PURCHASE FORM
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _________________ (_________)(1) shares of Common Stock of
OBJECTSPACE, INC. and herewith [makes payment of
_________________________________ Dollars ($________) therefor] [elects a Net
Issue Exercise pursuant to the provision of Section 1 of the within Warrant for
_________ shares of Common Stock (as calculated in accordance with the terms
therewith)], and requests that the certificates for such shares be issued in
the name of, and delivered to, __________________________________________,
whose address is _____________________________________________________.
The undersigned represents that it is acquiring such shares for its
own account for investment and not with a view to or for sale in connection
with any distribution thereof (subject, however, to any requirement of law
that the disposition thereof shall at all times be within its control).
Dated: _______________
(Signature must conform in all
respects to name of holder)
By:
-----------------------------------
Title:
---------------------------------
-----------------------
(1) Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment for
additional Warrant Shares or any other stock or the adjustment provisions of
the Warrant, which may be deliverable upon exercise.
EXHIBIT 23.4
EXHIBIT B
DISCLOSURE SCHEDULES
FOR
WARRANT PURCHASE AGREEMENT
EXHIBIT 23.4
Schedule 2.4(b):
1. As a holder of 571,429 shares of our Series A Preferred Stock,
Novell, Inc. currently holds (a) preemptive rights to acquire
shares of the Company's capital stock, and (b) registration
rights under the terms of the Investor's Rights Agreement dated
as of September 4, 1998, as amended. Shares of Series A
Preferred Stock convert into shares of Common Stock on a two
for one basis.
2. As a holders of our Series B Preferred Stock, the following
entities currently holds (a) preemptive rights to acquire
shares of the Company's capital stock, and (b) registration
rights under the terms of the Investor's Rights Agreement dated
as of December 30, 1998:
Magellen Technologies, Inc. (1,351,352 shares)
Cornerstone Equity Partners, L.L.C. ( 27,027 shares)
Cornerstone Fund I, L.L.C. ( 658,784 shares)
Venture Fund I, L.L.C. ( 152,027 shares)
Xxxxxxx SBIC, L.L.C. ( 108,108 shares)
Diamond Venture Capital, L.L.C. ( 405,405 shares)
Shares of Series B Preferred Stock convert into shares of Common
Stock on a two for one basis.
3. As a holder of a Warrant to purchase 140,000 shares of common
stock, Silicon Valley Bank currently holds (a) right of first
refusal to acquire shares of the Company's capital stock, and
(b) registration rights under the terms of the Warrant
Subscription Agreement dated as of June 16, 1998.
4. Messrs. Xxxxx Xxxx and Xxxxxxx Xxxxxxx, the holders of
approximately 10% of our issued and outstanding common stock,
currently hold registration rights under the terms of the
Registration Rights Agreement dated as of January 8, 1997, as
amended.
5. Growth Capital Partners holds a Warrant to purchase 167,568
shares of common stock.
6. As of December 23, 1999, there were options to purchase
1,914,807 shares of common stock that were issued to our
directors, officers and employees under our option plans and
agreements.
Schedule 2.5:
EXHIBIT 23.4
The Company periodically invests its cash in mutual funds which invest
in the stock of other entities.
Schedule 2.8(c):
Holders of our Series A and Series B Preferred Stock and Silicon Valley
Bank as the holder of one of our outstanding warrants to purchase
common stock each have preemptive rights, rights of first refusal or
similar rights.
Schedule 2.8
Based, in part upon the representations of Purchaser, no registration
with any governmental authority is required in connection with issuance
of the Warrant or the consummation of the transactions contemplated by
the Agreement.
EXHIBIT 23.4
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of the 23 day of December, 1999, by and between ObjectSpace, Inc., a
Delaware corporation (the "Company"), and OnStar Corporation, a Delaware
corporation (the "Purchaser").
RECITALS
A. The Company has agreed, upon the terms and subject to the
conditions of the Warrant Purchase Agreement (the "Warrant Purchase
Agreement"), to issue and sell to Purchaser a warrant to acquire shares of the
Company's Common Stock (the "Warrant").
B. To induce the Purchaser to execute and deliver the Warrant
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder, as well as applicable
state securities laws.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) REGISTRATION. The terms "REGISTER,"
"REGISTERED," and "REGISTRATION" refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness of such registration
statement by the U.S. Securities and Exchange Commission (the "SEC").
(b) REGISTRABLE SECURITIES. The term "REGISTRABLE
SECURITIES" means: (1) all the shares of Common Stock of the Company issued or
issuable upon exercise of the Warrant (collectively, the "Warrant Shares");
and (2) all shares of Common Stock issued or issuable with respect to the
Warrant Shares or the Warrant as a result of any stock split, stock dividend,
recapitalization, exchange or similar event; provided, however, that
notwithstanding Section 2.1 below, such shares of Common Stock shall no longer
be treated as Registrable Securities (i) after they have been sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities
EXHIBIT 23.4
transaction, whether in a registered offering, pursuant to Rule 144 or
otherwise, ; or (ii) at any time and for so long as they may be sold pursuant
to Rule 144.
1.2 PIGGYBACK REGISTRATIONS. The Company shall notify
Purchaser in writing at least thirty (30) business days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (excluding a registration
statement relating to an initial public offering of securities of the Company,
a secondary offering of securities of the Company, and any registration
statements relating to any employee benefit plan or a transaction under Rule
145 of the Securities Act) and will afford Purchaser an opportunity to include
in such registration statement all or any part of the Registrable Securities
then held by Purchaser. If Purchaser desires to include in any such
registration statement all or any part of its Registrable Securities,
Purchaser shall, within twenty (20) business days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable
Securities Purchaser wishes to include in such registration statement. If
Purchaser decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, Purchaser shall
nevertheless continue to have the right to include any Registrable Securities
in any subsequent registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
If a registration statement under which the Company gives notice
under this Section 1.2 is for an underwritten offering, then the Company shall
so advise Purchaser. In such event, the right of Purchaser to be included in a
registration pursuant to this Section 1.2 shall be conditioned upon
Purchaser's participation in such underwriting, and the inclusion of
Purchaser's Registrable Securities in the underwriting to the extent provided
herein. If Purchaser proposes to distribute its Registrable Securities through
such underwriting, Purchaser shall (i) enter into an underwriting agreement in
customary form with the managing underwriter or underwriter(s) selected for
such underwriting. (ii) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up agreements (not
exceeding 180 days in duration) and other documents that are required under
the terms of such underwriting arrangements; and (iii) promptly provide in
writing any information reasonably requested by the Company or the managing
underwriter. Notwithstanding any other provision of this Agreement, if the
managing underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be
included in the registration and the underwriting shall be allocated, first,
to the Company or, if such registration is being effected as a result of the
exercise of demand registration rights, the other party for whom the
registration is being effected, ; and (ii) second, to the Company if such
registration is being effected as the result of the exercise of demand
registration rights, or if not pro rata among the holders of Common Stock
issued or issuable upon the conversion of Series A Preferred Stock and Series
B Preferred Stock of the Company and holders of registration
2
EXHIBIT 23.4
rights under that certain Registration Rights Agreement dated January 8, 1997,
as amended, who are exercising piggyback registration rights, and (iii) third,
to Purchaser and any other holders of securities requested to be included in
such registration pursuant to piggyback registration rights on the basis of
the number of shares requested to be included in such registration by each
Holder, Purchaser and other holders. If Purchaser disapproves of the terms of
any such underwriting, Purchaser may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 1.2 prior to the effectiveness
of such registration, whether or not Purchaser has elected to include
Registrable Securities in such registration.
1.3 FORM S-3 REGISTRATION. In case the Company shall
receive from Purchaser a written request that the Company effect a
registration on Form S-3 with respect to all or a part of the Registrable
Securities owned by Purchaser, then the Company will, as soon as reasonably
practicable, effect such registration on Form S-3 as may be so requested and
as would permit or facilitate the sale and distribution of all or such portion
of Purchaser's Registrable Securities as are specified in such request;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by
Purchaser; or
(ii) if the Company shall furnish to Purchaser a
certificate signed by the President or 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 Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement no more than once during any twelve month period for a period of not
more than one hundred twenty (120) days after receipt of the request of
Purchaser under this Section 1.4.
1.4 OBLIGATIONS OF THE COMPANY.
(a) EXPENSES. All expenses incurred in connection with
all registrations pursuant to Sections, 1.2 and 1.3, including without
limitation all registration and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company (but excluding
underwriters' and brokers' discounts and commissions and fees and
disbursements of counsel for Purchaser), shall be borne by the Company.
Purchaser shall bear its proportionate share (based on the total number of
shares sold in such registration other than for the account of the Company) of
all
3
EXHIBIT 23.4
underwriting discounts or commissions payable to underwriters or brokers in
connection with such offerings.
(b) REGISTRATION. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(i) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities, use commercially
reasonable efforts to cause such registration statement to become effective
and, upon the request of Purchaser, keep such registration statement effective
for up to ninety (90) days PLUS any additional periods represented by any
"Black-Out Period" (as defined in the last paragraph of Section 1.5(b) below)
or until the distribution described in the registration statement has been
completed.
(ii) 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 the Company may determine to be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(iii) Furnish to Purchaser such number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it and included in such registration.
(iv) 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 Purchaser, 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.
(v) 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(s) of
such offering. Purchaser shall also enter into and perform its obligations
under such an agreement.
(vi) Notify Purchaser at any time when a prospectus
relating to the Registrable Securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact necessary, in light of the circumstances under which made, to make the
statements therein not misleading, and, at the request of Purchaser, the
Company will promptly prepare and provide to it a supplement or amendment to
such
4
EXHIBIT 23.4
prospectus so that, as thereafter delivered to the purchasers of Purchaser's
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary, in light of
the circumstances under which made, to make the statements therein not
misleading.
(vii) Furnish, at the reasonable request of
Purchaser, on the date that its Registrable Securities are delivered to the
underwriters for sale, 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 as of 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 and
reasonably satisfactory to Purchaser, addressed to the underwriters, if any,
and to Purchaser, and (ii) a "comfort" letter dated as of 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 and reasonably satisfactory to
Purchaser, addressed to the underwriters, if any, and to Purchaser.
(viii) Purchaser agrees that if the Company has
delivered preliminary or final prospectuses to Purchaser and after having done
so (a) the Company determines that the prospectus needs to be amended or
supplemented to comply with the requirements of the Securities Act, (b) a stop
order suspending the effectiveness of the registration statement is issued by
the SEC or (c) the Company shall, in good faith and for business reasons,
enter into negotiations relating to or otherwise commence a material business
transaction, including, without limitation, the acquisition or divestiture of
assets or the offering or sale of securities, then the Company shall promptly
notify Purchaser and Purchaser shall immediately cease making offers and sales
of Registrable Securities and return all remaining prospectuses to the
Company. Following such amendment or supplement, the lifting of any stop order
or the completion or termination of any material transaction, the Company
shall promptly provide Purchaser with revised prospectuses, and, following
receipt of the revised prospectuses, Purchaser shall be free to resume making
offers of the Registrable Securities, or any portion thereof. The period
during which the Company exercises its rights as described in this paragraph
to postpone, delay or interrupt the offer and sale of the Registrable
Securities or during the pendency of any stop order, injunction or other order
or requirement of the SEC or any other governmental agency or court shall be
referred to herein as the "BLACK-OUT PERIOD."
1.5 FURNISH INFORMATION. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to Sections, 1.2
or 1.3 that Purchaser shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities and such other information as the Company may
reasonably request to timely effect the registration of its Registrable
Securities.
1.6 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Sections, 1.2 or 1.3:
5
EXHIBIT 23.4
(a) BY THE COMPANY. The Company agrees to indemnify
and hold harmless Purchaser, each of its directors and officers, any
underwriters (as defined in the Securities Act) for the Purchaser and each
person, if any, who controls Purchaser within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses to which
Purchaser or such officer or director, underwriter or controlling person may
become subject, under the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or any other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement, including the prospectus, financial
statements and schedules, and all other documents filed as a part thereof or
incorporated by reference therein, as amended at the time of effectiveness of
the registration statement, including any information deemed to be a part
thereof as of the time of the effectiveness pursuant to paragraph (b) of Rule
430A, or pursuant to Rule 434 of the rules and regulations, or the prospectus,
in the form first filed with the SEC pursuant to Rule 424(b) of the
regulations, or filed as part of the registration statement at the time of
effectiveness if no Rule 424(b) filing is required (the "Prospectus"), or any
amendment or supplement thereto, (ii) the omission or alleged omission to
state in any of them a material fact required to be stated therein or
necessary to make the statements in any of them not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement (the matters in the foregoing
clauses (i) through (iii) being, collectively, "Violations"), and will
reimburse Purchaser and each such officer or director, underwriter or
controlling person for any legal and other expenses as such expenses are
reasonably incurred by Purchaser or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon (i) an
untrue statement or alleged untrue statement or omission or alleged omission
made in the registration statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of Purchaser expressly for use
therein, (ii) the failure of Purchaser to comply with the covenants and
agreements contained in this Agreement respecting the sale of the Registrable
Securities, (iii) the inaccuracy of any representations made by Purchaser
herein, or (iv) any statement or omission in any Prospectus that is corrected
in any subsequent Prospectus that was delivered to Purchaser prior to the
pertinent sale or sales by Purchaser.
(b) BY PURCHASER. Purchaser will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the registration statement and each person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages,
liabilities or expenses to which the
6
EXHIBIT 23.4
Company, each of its directors, each of its officers who signed the
registration statement or controlling person may become subject, under the
Securities Act, the Exchange Act, or any other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of
Purchaser) insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof as contemplated below) arise out of or are
based upon any Violation, in each case to the extent, but only to the extent,
that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Purchaser
expressly for use therein, and will reimburse the Company, each of its
directors, each of its officers who signed the registration statement or
controlling person for any legal and other expenses reasonably incurred by the
Company, each of its directors, each of its officers who signed the
registration statement or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action.
(c) NOTICE. Promptly after receipt by an indemnified
party under this Section 1.6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 1.6, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 1.6 or to the extent it is not prejudiced
as a proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions
of the indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 1.6 for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed such counsel in connection with the assumption of legal defenses
in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by such indemnifying party in the
case of paragraph (a), representing the indemnified parties who are parties to
such action) or (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the
7
EXHIBIT 23.4
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) LIMITATION. The foregoing indemnity agreements of
the Company and Purchaser are subject to the condition that, insofar as they
relate to the bases for any losses, claims, damages, liabilities or expenses
contemplated in Section 1.7(a) arising out of the preparation and filing of
the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the SEC at the time the registration statement in
question becomes effective or in the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(e) CONTRIBUTION. If the indemnification provided for
in this Section 1.6 is required by its terms but is for any reason held to be
unavailable to, or otherwise insufficient to hold harmless an indemnified
party under paragraphs (a), (b) or (c) of this Section 1.6 in respect to any
losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to herein in such proportion as is
appropriate to reflect the relative fault of the Company and Purchaser in
connection with the statements or omissions or inaccuracies in the
representations and warranties in this Agreement which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company and
Purchaser shall be determined by reference to, among other things, whether the
untrue or alleged misstatement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company
or by Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 1.6(c) any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 1.6(c) with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this paragraph (d);
PROVIDED, HOWEVER, that no additional notice shall be required with respect to
any action for which notice has been given under Section 1.6(c) for purposes
of indemnification. The Company and Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 1.6(d) were determined
solely by pro rata allocation (even if Purchaser were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 1.6(d), Purchaser shall not be
required to contribute any amount in excess of the amount by which the amount
paid by
8
EXHIBIT 23.4
Purchaser for the Registrable Securities that were sold pursuant to the
registration statement and the amount received by Purchaser from such sale
exceeds the amount of any damages that Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) SURVIVAL. The obligations of the Company and the
Purchaser under this Section 1.6 shall survive the completion of any offering
of Registrable Securities in a registration statement, and otherwise.
1.8 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the SEC, which may at any time
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act,
at all times after the date hereof;
(b) Use its best efforts to file with the SEC in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(c) So long as Purchaser owns any Registrable
Securities, to furnish to Purchaser forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements
of said Rule 144, and of the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of the Company, and (iii) such
other reports and documents of the Company as Purchaser may reasonably request
in availing itself of any rule or regulation of the Commission allowing
Purchaser to sell any such securities without registration.
2. TRANSFER AND ASSIGNMENT.
2.1 TRANSFER OF RIGHTS. Notwithstanding anything herein to
the contrary, the registration rights of Purchaser under Section 1 hereof may
be assigned by Purchaser to a transferee of at least twenty-five percent (25%)
of the Registrable Securities; provided, however that no entity may be
assigned any of the foregoing rights unless the Company is given written
notice by the assigning entity at the time of such assignment stating the name
and address of the assignee and identifying the securities of the Company as
to which the rights in question are being assigned; and provided further that
any such assignee shall receive such assigned rights subject to all the terms
and conditions of this Agreement, including without limitation the provisions
of this Section
9
EXHIBIT 23.4
3. GENERAL PROVISIONS.
3.1 ASSIGNMENT. Except as provided in Section 2 above, no
party to this Agreement may assign, by operation of law or otherwise, all or
any portion of its rights, obligations or liabilities under this Agreement.
3.2 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
3.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware, without reference to principles of conflict of laws or choice
of laws.
3.4 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.
3.5 HEADINGS. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. All references in this Agreement to
sections, paragraphs, exhibits and schedules shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which exhibits and schedules are incorporated herein by this
reference.
3.6 NOTICES. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively
given and received (a) upon personal delivery, (b) on the fifth day following
mailing by registered or certified mail, return receipt requested, postage
prepaid, addressed to the Company or to Purchaser, as the case may be, at
their respective addresses set forth below, (c), upon transmission of telegram
or facsimile (with telephonic notice), or (d) upon confirmed delivery by
overnight commercial courier service.
If to Purchaser: OnStar
0000 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
10
EXHIBIT 23.4
With a copy to: General Motors Legal Staff
300 Renaissance Center
Mail Code: 482-C25-C22
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 313-665-4978
If to ObjectSpace: ObjectSpace, Inc.
00000 Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxx
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxx & Xxxxx, LLP
000 Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Such addresses may be changed, from time to time, by means of a notice given
in the manner provided in this Section 3.6.
3.7 ATTORNEYS' FEES. 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 recover its reasonable attorneys' fees, experts'
fees and costs, including those for pretrial, trial, on appeal, in arbitration
and in bankruptcy and all other costs and necessary disbursements associated
with any such actions, in addition to any other relief to which such party may
be entitled.
3.8 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock
or preferred stock of the Company of any class or series, then, upon the
occurrence of any subdivision, combination or stock dividend of such class or
series of stock, the specific number of shares so referenced in this Agreement
shall automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
3.09 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holder of
at least a majority of the Registrable Securities. Any amendment or waiver
effected in accordance with this
11
EXHIBIT 23.4
Section 3.09 shall be binding upon Purchaser and the Company. No waiver of any
of the provisions of this Agreement shall be deemed to be or shall constitute
a waiver of any other provisions hereof, whether or not similar, nor shall any
such waiver constitute a continuing waiver.
3.10 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement. In the event of such invalidity,
the parties shall seek to agree on an alternative enforceable provision that
preserves the original purpose of this Agreement.
3.11 ENTIRE AGREEMENT. This Agreement, the Warrant Purchase
Agreement, and the Warrant constitute the entire agreement and understanding
of the parties with respect to the subject matter hereof and thereof and
supersede any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof and thereof.
3.13 EXPENSES. Except as otherwise provided herein, each of
the Company and the Purchaser shall bear the expenses incurred on its behalf
with respect to this Agreement and the transaction contemplated hereby.
12
EXHIBIT 23.4
IN WITNESS WHEREOF, the foregoing Registration Rights Agreement is
hereby executed as of the date first above written.
COMPANY:
OBJECTSPACE, INC.
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: CEO
---------------------------
PURCHASER:
ONSTAR CORPORATION
By: /s/ X. X. Xxxxx
-----------------------------
Name: X. X. XXXXX
---------------------------
Title: V. P. Alliances
---------------------------
13
EXHIBIT 23.4
EXHIBIT D
General Motors/OnStar
OnStar, a division of General Motors, operates several call centers
to provide GM vehicle owners with convenience and emergency services.
BUSINESS CHALLENGE. OnStar wanted to expand the functionality and
breadth of travel related services it could offer to GM car owners. OnStar
decided to create a call center service that could be accessed by the push of
a button within a car, through which a car passenger could speak with a call
center agent regarding a larger variety of convenience services. Examples of
these services include providing dinner reservations, travel planning and
entertainment choices. In providing its new expanded service, OnStar was
confronted with the challenge of integrating multiple, disparate internal call
center and back office systems with external applications from services
organizations, such as restaurants and travel agencies, that provided OnStar
access to additional convenience services. Furthermore, OnStar required a
flexible and scalable solution that could easily manage increasing service and
customer contact information as well as accommodate millions of potential
general motors customers.
SOLUTION. OnStar selected our OpenBusiness solution as a flexible
integration architecture to quickly integrate new call center services. Our
OpenBusiness infrastructure platform enabled OnStar to efficiently integrate a
wide variety of internal applications, data bases and other business systems
seamlessly into a new web-based call center application. Our solution also
reduced the time required to integrate service offerings or applications from
external service providers into OnStar's Call Center Application. OnStar's
service partners who employ a variety of computer operating platforms and
technologies were able to provide services to OnStar without having to adopt
new integration technologies or reprogram their existing applications. Through
the use of our solution, OnStar expects to rapidly expand its service
offerings and deliver these services across a layer base of car owners in a
highly efficient and cost-efficient process.
