I
ALTAVISTA TECHNOLOGY, INC.
SERIES C PREFERRED STOCK PURCHASE
AGREEMENT
JUNE 11, 1997
TABLE OF CONTENTS
SECTION I AUTHORIZATION AND SALE OF SERIES C PREFERRED STOCK
1.1 Authorization
1.2 Sale of Preferred
SECTION 2 CLOSING DATE; DELIVERY
2.1 Closing Date
2.2 Delivery
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.t Organization and Standing; Articles and Bylaws
3.2 Corporate Power
3.3 Subsidiaries
3.4 Capitalization
3.5 Authorization
3.6 Litigation, etc.
3.7 Compliance with Other Instruments, None Burdensome, etc.
3.8 Governmental Consent, etc.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
4.1 Experience
4.2 Investment
4.3 Rule 144
4.4 No Public Market
4.5 Access to Data
4.6 Authorization
4.7 Brokers or Finders
4.8 Tax Liability
SECTION 5 PURCHASERS' CONDITIONS TO CLOSING
5.1 Representations and Warranties Correct
5.2 Covenants
5.3 Blue Sky
5.4 Restated Articles
5.5 Registration and Information Rights Agreement
5.6 Compliance Certificate
SECTION 6 CONDITIONS TO CLOSING OF COMPANY
6.1 Representations
6.2 Covenants
6.3 Blue Sky
6.4 Restated Articles
6.5 Legal Matters
SECTION 7 MISCELLANEOUS
7.1 Governing Law
7.2 Successors and Assigns
7.3 Entire Agreement; Amendment
7.4 Notices, etc.
7.5 Delays or Omissions
7.6 California Corporate Securities Law
7.7 Counterparts
7.8 Severability
7.9 Titles and Subtitles
ALTAVISTA TECHNOLOGY, INC.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Agreement is made as of June 5, 1997 by and among AltaVista Technology,
Inc., a California corporation (the "Company"), the individuals and entities set
forth on the Schedule of Purchasers attached hereto as Exhibit A (the
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"Purchasers"), and any other person or persons who shall have executed this
Agreement in connection with their purchase of Additional Shares, as defined
below (such persons listed on the Schedule of Purchasers and such persons who
shall have purchased Additional Shares collectively being referred to as
"Purchasers"), which person or persons shall be added to the Schedule of
Purchasers at such time as they shall purchase such Additional Shares pursuant
hereto.
SECTION I
AUTHORIZATION AND SALE OF SERIES C PREFERRED STOCK
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1.1 AUTHORIZATION. The Company will authorize the sale and issuance of
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up to 1,500,000 shares of its Series C Preferred Stock (the "Shares"), having
the rights, preferences, privileges and restrictions as set forth in the Amended
and Restated Articles of Incorporation ("Restated Articles") in substantially
the form attached hereto as Exhibit B.
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1.2 SALE OF PREFERRED. Subject to the terms and conditions hereof, the
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Company will issue and sell to the Purchasers, and the Purchasers will purchase
severally, and not jointly, from the Company, up to all of the Shares, (i) of
which not less than 10,000 of the Shares (the "Initial Shares') will be sold to
the Purchasers at the Initial Closing, as defined below, in the amounts
specified opposite the name of each such Purchaser in the column designated
"Initial Shares" on the Schedule of Purchasers, at a per share purchase price of
$.75, and (ii) of which up to 1,490,000 Shares (the "Additional Shares") may, at
the election of the Company, be sold to the Purchasers at one or more additional
closings subsequent to the Initial Closing (the "Subsequent Closing(s)"), in the
amounts as shall be specified opposite the name of each such Purchaser in the
column designated "Additional Shares" on the Schedule of Purchasers, at a per
share purchase price of $.75.
SECTION 2
CLOSING- DATE: DELIVERY
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2.1 CLOSING DATE. The closing of the purchase and sale of the Initial
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Shares hereunder (the "Initial Closing") shall be held at the offices of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, Two Palo Alto Square, Palo Alto, California, at I
0:00 a.m. on January , 1994, or at such other time and place upon which the
Company and the Purchasers shall agree. The Subsequent Closing(s), if any,
shall be held at the offices of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Two Palo
Alto Square, Palo Alto, California at such time(s) and date(s) as the Company
shall specify. The date(s) of the Subsequent Closing(s) shall hereinafter be
referred to as the "Subsequent Closing Date(s)." The Initial Closing and the
Subsequent Closing(s) are sometimes hereinafter referred to as the "Closings.'
The Initial Closing Date and the Subsequent Closing Date(s) are sometimes
hereinafter referred to as the "Closing Dates."
2.2 DELIVERY. At the Initial Closing, the Company will deliver to each
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Purchaser a certificate or certificates representing the number of Shares set
forth opposite such Purchaser's name in the column designated "Shares' on the
Schedule of Purchasers against payment of the purchase price therefor by check
payable to the Company or by wire transfer made pursuant to the Company's
instructions. At the Subsequent Closing(s), the Company will deliver to each
Additional Purchaser who shall have executed this Agreement a certificate or
certificates representing the number of shares as shall be specified opposite
the name of each Purchaser in the column designated "Additional Shares" on the
Schedule of Purchasers, against payment of the purchase price therefor, by check
payable to the Company or by wire transfer made pursuant to the Company's
instructions. At each Subsequent Closing, if any, a Supplemental Schedule of
Purchasers shall be added to this Agreement as Exhibit A. 1. At each Subsequent
Closing, if any, the Purchaser purchasing Additional Shares therein shall
execute a signature page to this Agreement.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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Except as set forth on Exhibit Cattached hereto, the Company represents and
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warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING: ARTICLES AND BYLAWS. The Company is a
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corporation duly organized and existing under, and by virtue of, the laws of the
State of California and is in good standing under such laws. The Company has
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted. The Company is not presently qualified to do business as a
foreign corporation in any jurisdiction, and the failure to be so qualified will
not have a material adverse effect on the Company's business as now conducted.
The Company has furnished each Purchaser with copies of the Restated Articles
and of its Bylaws, which are true, correct and complete and contain all
amendments through the Closing Date.
3.2 CORPORATE POWER. The Company will have at the Closing Date all
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requisite legal and corporate power and authority to execute and deliver this
Agreement and the Registration and Information Rights Agreement in substantially
the form attached hereto as Exhibit D (the "Registration and Information Rights
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Agreement"), to sell and issue the Shares hereunder, to issue the Common Stock
issuable upon conversion of the Series C Preferred Stock, a and to carry out and
per-form its obligations under the terms of this Agreement and the Registration
and Information Rights Agreement (together the "Agreements").
3.3 SUBSIDIARIES. The Company has no subsidiaries or affiliated
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companies and does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business entity.
3.4 CAPITALIZATION. The authorized capital stock of the Company, upon
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the filing of the Restated Articles, consists of I 0,000,000 shares of Common
Stock, of which 500,000 shares are issued and outstanding, and 10,000,000 shares
of Preferred Stock, of which 1,500,000 shares have been designated Series C
Preferred Stock ("Series C Preferred'), none of which are issued and outstanding
stock immediately prior to the Initial Closing. The Series C Preferred shall
have the rights, preferences, privileges and restrictions set forth in the
Restated Articles. The currently outstanding shares of Common Stock have been
duly authorized and validly issued, and are fully paid and non-assessable, and
have been issued in compliance with applicable securities laws. The shares of
Series C Preferred to be issued and sold to the Purchaser have been duly
authorized and, when issued in accordance with this Agreement and the Restated
Articles, will be validly issued, fully paid and non-assessable. The Company
has reserved 1,500,000 shares of Series C Preferred for issuance hereunder,
1,500,000 shares of Common Stock for issuance upon conversion of the Series C
Preferred and 5,000,000 shares of its Common Stock for issuance to officers,
directors, employees and consultants of the Company pursuant to the 1993 Stock
Plan or other arrangements approved by the Board. Except as set forth above,
there are no options, warrants, subscriptions, calls, puts, claims, commitments,
convertible securities or other agreements or arrangements under which the
Company is or may be obligated to issue or purchase, as the case may be, shares
of the Company's capital stock.
3.5 AUTHORIZATION. All corporate action on the part of the Company, its
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directors and shareholders necessary for the authorization, execution, delivery
and performance of the Agreements by the Company, the authorization, sale,
issuance and delivery of the Series C Preferred (and the Common Stock issuable
upon conversion of the Series C Preferred), and the performance of all of the
Company's obligations hereunder has been taken or will be taken prior to each
Closing. The Agreements, when executed and delivered by the Company, shall
constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
The Shares, when issued in compliance with the provisions of this Agreement,
will be validly issued, fully paid and non-assessable, and will have the rights,
preferences and privileges described in the Restated Articles; the Common Stock
issuable upon conversion of the Shares has been duly and validly reserved and,
when issued in compliance with the provisions of the Restated Articles, will be
validly issued, and will be fully paid and non-assessable; and the Shares and
such Common Stock will be free of any liens or encumbrances, assuming each
Purchaser takes the Shares with no notice thereof, other than any liens or
encumbrances created by Purchaser; provided, however, that the Shares (and the
Common Stock issuable upon conversion thereof) may be subject to restrictions on
transfer under state or federal securities laws as set forth in this Agreement
and the exhibits hereto. The Shares (and the Common Stock issuable upon the
conversion thereof) are not subject to any preemptive rights or rights of first
refusal.
3.6 LITIGATION, ETC. There are no actions, suits, proceedings or
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investigations pending or, to the Company's knowledge, threatened against the
Company or its properties before any court or governmental agency other than the
suit filed by Digital Equipment is United States District Court for the District
of Massachusetts (civil action 96-12192NG).
3.7 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME, ETC. The Company
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is not in violation of any term of the Restated Articles or its Bylaws or any
mortgage, indebtedness, indenture, judgment or decree, or in any material
respect of any term or provision of any material contract, agreement or
instrument, and to the best of its knowledge is not in violation of any order,
statute, rule or regulation applicable to the Company. The execution, delivery
and performance of and compliance with the Agreements, and the issuance of the
Series C Preferred and the Common Stock issuable upon conversion of the Series C
Preferred, have not resulted and will not result in any violation of, or
conflict with, or constitute a default under, the Restated Articles or the
Company's Bylaws, nor will it result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Company.
3.8 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of
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or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of the Agreements, or the offer, sale or issuance of the Series C
Preferred (and the Common Stock issuable upon conversion of the Series C
Preferred), or the consummation of any other transaction contemplated hereby or
thereby, except (a) filing of the Restated Articles in the office of the
California Secretary of State, (b) qualification (or taking such action as may
be necessary to secure an exemption from qualification, if available) of the
offer and sale of the Series C Preferred (and the Common Stock issuable upon
conversion of the Series C Preferred) under the California Corporate Securities
Law of 1968, as amended, and other applicable Blue Sky laws, which filings and
qualifications, if required, will be accomplished in a timely manner, and (c)
filing of a notice, if required, pursuant to Regulation D of the Securities Act,
which filing will be accomplished in a timely manner.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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Each Purchaser hereby represents and warrants to the Company with respect to the
purchase of the Shares as follows:
4.1 EXPERIENCE. It has substantial experience in evaluating and
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investing in private transactions of securities in companies similar to the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests and
bear the risk of loss of its entire investment.
4.2 INVESTMENT. It is acquiring the Series C Preferred and the underlying
Common Stock for investment for its own account, not as a nominee or agent, and
not with the view to, or for resale in connection with, any distribution
thereof. It understands that the Series C Preferred to be purchased and the
underlying Common Stock have not been, and will not be, registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
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such Purchaser's representations as expressed herein. It is an "accredited
investor' within the meaning of Regulation D, Rule 501(a), promulgated by the
Securities and Exchange Commission.
4.3 RULE 144. It acknowledges that the Series C Preferred and the
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underlying Common Stock must be held indefinitely unless subsequently registered
under the Securities Act or unless an exemption from such registration is
available. It is aware of the provisions of Rule 144 promulgated under the
Securities Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about the Company, the resale occurring
not less than two years after a party has purchased and paid for the security to
be sold, the sale being effected through a "broker's transaction" or in
transactions directly with a "market maker', and the number of shares being sold
during any three-month period not exceeding specified limitations.
4.4 NO PUBLIC MARKET. It understands that no public market now exists
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for any of the securities issued by the Company and that no assurances can be
made that a public market will ever exist for the Company's securities.
4.5 ACCESS TO DATA. It has had an opportunity to discuss the Company's
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business, management and financial affairs with its management and the
opportunity to review the Company's facilities and has had access to all other
information about the Company it deemed necessary in connection with the
purchase of the Series C Preferred. It has also had an opportunity to ask
questions of officers of the Company. It understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain aspects of the Company's business and prospects but were not a thorough
or exhaustive description.
4.6 AUTHORIZATION. The Agreements, when executed and delivered by
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Purchaser, will constitute a valid and legally binding obligations of each
Purchaser, enforceable in accordance with their respective terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief of
debtors arid rules of law governing specific performance, injunctive relief or
other equitable remedies.
4.7 BROKERS OR FINDERS. The Company has not, and will not, incur,
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directly or indirectly, as a result of any action taken by such Purchaser, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
4.8 TAX LIABILITY. It has reviewed with its own tax advisors the
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federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. It relies solely on such advisors
and not on any statements or representations of the Company or any of its
agents. It understands that it (and not the Company) shall be responsible for
its own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
SECTION 5
PURCHASERS' CONDITIONS TO CLOSING
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The Purchasers' obligation to purchase the Shares at the Closing is, at the
option of Purchasers, subject to the fulfillment of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
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made by the Company in Section 3 hereof shall be true and correct in all
material respects as of the Closing Date.
5.2 COVENANTS. All covenants, agreements and conditions contained in
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this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects, unless
waived in writing by the Purchaser.
5.3 BLUE SKY. Me Company shall have obtained all necessary Blue Sky law
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permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Series C Preferred and the
Common Stock issuable upon conversion of the Series C Preferred.
5.4 RESTATED ARTICLES. The Restated Articles shall have been filed with
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the California Secretary of State.
5.5 REGISTRATION AND INFORMATION RIGHTS AGREEMENT The Company shall have
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executed the Registration and Information Rights Agreement in substantially the
form attached hereto as Exhibit D.
5.6 COMPLIANCE CERTIFICATE The Company shall have delivered to the
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Purchasers a certificate of the Company in substantially the form attached
hereto as Exhibit E, executed by the President of the Company, dated the Closing
Date, and certifying, among other things, the fulfillment of the conditions
specified in Sections S. 1, 5.2 and 5.4 of this Agreement.
SECTION 6
CONDITIONS TO CLOSING OF COMPANY
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The Company's obligation to sell and issue the Shares at the Closing Date is, at
the option of the Company, subject to the fulfillment as of the Closing Date of
the following conditions:
6.1 REPRESENTATIONS. The representations made by the Purchasers in
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Section 4 hereof shall be true and correct as of the Closing Date.
6.2 COVENANTS. All covenants, agreements, and conditions contained in
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this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with in all material respects unless
waived in writing by the Company.
6.3 BLUE SKY. The Company shall have obtained all necessary Blue Sky law
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permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Series C Preferred and the
Common Stock issuable upon conversion of the Series C Preferred.
6.4 RELATED ARTICLES. The Restated Articles shall have been filed with
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the California Secretary of State.
6.5 LEGAL MATTERS. All material matters of a legal nature which pertain to
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this Agreement, and the transactions contemplated hereby, shall have been
reasonably approved by counsel to the Company.
SECTION 7
MISCELLANEOUS
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7.1 GOVERNING LAW. This Agreement shall be governed in all respects by
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the internal laws of the State of California.
7.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided, however, that the rights of the Purchasers to purchase the Series C
Preferred shall not be assignable without the consent of the Company.
7.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
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delivered pursuant hereto at each Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
7.4 NOTICES, ETC. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Purchaser, at the address set forth on the Schedule of
Purchasers attached hereto as Exhibit A, or at such other address as such
Purchaser shall have furnished to the Company in writing, or (b) if to the
Company, one copy should be sent AltaVista Technology, INC. 0000 Xxxx Xxx.,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 and addressed to the attention of the
President, or at such other address.-as the Company shall have furnished to the
Purchaser, and one copy should be sent TO Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
Xxx Xxxx Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, to the attention of Xxxxx X.
Xxxxx, Esq. Each such notice or other communication shall, for all intents and
purposes of this Agreement, be treated as effective or having been given when
delivered if delivered personally, or, if sent by mail, at the earlier of its
receipt or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of the United States mail, addressed and mailed as
aforesaid.
7.5 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
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or omission to exercise any right, power or remedy accruing to the Purchasers,
upon any breach or default of the Company under this Agreement, shall impair any
such right, power or remedy of the Purchasers nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
thereto fore or thereafter occurring. Any waiver, permit, consent or approval
of any kind or character on the part of the Purchasers, or any waiver on the
part of the Purchasers of any provisions or conditions of this Agreement, must
be in writing and shall be effective only to the extent specifically set forth
in such writing. All remedies, either under this Agreement or by law or
otherwise afforded to the Purchasers, shall be cumulative and not alternative.
7.6 CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
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WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100,25102, OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
7.7 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be enforceable against the party actually
executing such counterpane and all of which together shall constitute one
instrument.
7.8 SEVERABILITY. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision, provided that no such severability shall be effective if
it materially changes the economic BENEFIT of this Agreement to any party.
7.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
