Exhibit C
COMMON STOCK
PURCHASE AGREEMENT
December 17, 1999
DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is made as of the 17th day
of December, 1999, by and among Digital Generation Systems, Inc., a California
corporation (the "Company"), and the investors, severally and not jointly,
listed on Schedule A hereto, each of which is herein referred to as an
"Investor."
WHEREAS, the Company desires to sell, and the Investors desire to
purchase, shares of the Company's Common Stock (the "Common Shares") with an
aggregate purchase price of three million seven hundred fifty thousand four
dollars and two cents ($3,750,004.02) and at a price per share equal to five
dollars and seventeen and one-tenth cents ($5.171) (the "Purchase Price").
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of the Common Shares.
1.1 Sale and Issuance of the Common Shares.
(a) On or prior to the Closing (as defined below), the
Company shall have authorized the sale and issuance to the Investors of the
Common Shares.
(b) Subject to the terms and conditions of this Agreement,
each Investor agrees, severally and not jointly, to purchase at the Closing, and
the Company agrees to sell and issue to each Investor at the Closing, that
number of Common Shares set forth opposite such Investor's name on Schedule A
hereto for the purchase price set forth opposite such Investor's name on
Schedule A hereto.
1.2 Closing . The purchase and sale of the Common Shares shall
take place at the offices of the Company at 10:00 A.M., on December 17,1999, or
at such other time and place as the Company and Investors acquiring in the
aggregate more than half of the Common Shares mutually agree upon orally or in
writing (which time and place are designated as the "Closing"). At the Closing
(or as soon thereafter as is practicable) the Company shall deliver to each
Investor a certificate representing the Common Shares that such Investor is
purchasing, against payment of the purchase price therefor by check or wire
transfer.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor that:
2.1 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Registration
Rights Agreement, in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), the performance of all obligations of the Company hereunder
and thereunder, and the authorization, issuance, sale and delivery of the Common
Shares being sold hereunder has been taken or will be taken prior to the
Closing, and this Agreement and the Registration Rights Agreement constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Registration Rights Agreement may be limited by
applicable federal or state securities laws.
2.2 Valid Issuance of Common Shares. The Common Shares that are
being purchased by the Investors hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement and the Registration Rights Agreement and under applicable state
and federal securities laws.
2.3 Offering. Subject in part to the truth and accuracy of each
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Common Shares as contemplated by this Agreement are
exempt from the registration requirements of any applicable state and federal
securities laws, and neither the Company nor any authorized agent acting on its
behalf will take any action hereafter that would cause the loss of such
exemption.
2.4 Additional Information. The Company has filed in a timely
manner all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the twelve (12)
months preceding the date of this Agreement (the "SEC Filings"). The SEC Filings
complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the "Act"), as the case may be, as of
their respective filing or effective dates, and the information contained
therein was true and correct in all material respects as of the date or
effective date of such documents, and each of the SEC Filings, as of such date,
did not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
3. Representations and Warranties of the Investors. Each Investor hereby
represents and warrants that:
3.1 Authorization. Such Investor has full power and authority to
enter into this Agreement and the Registration Rights Agreement, and each such
Agreement constitutes its valid and legally binding obligation, enforceable in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent the indemnification provisions
contained in the Registration Rights Agreement may be limited by applicable
federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made
with such Investor in reliance upon such Investor's representation to the
Company, which by such Investor's
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execution of this Agreement such Investor hereby confirms, that the Common
Shares to be received by such Investor will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to the Common Shares.
3.3 Disclosure of Information. Such Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Common Shares. Such Investor further represents that it
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Common Shares and the
business, properties, prospects and financial condition of the Company.
3.4 Investment Experience. Such Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Common
Shares. If other than an individual, such Investor also represents it has not
been organized for the purpose of acquiring the Common Shares.
3.5 Accredited Investor. Such Investor is an "accredited
investor" within the meaning of Securities and Exchange Commission ("SEC") Rule
501 of Regulation D, as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
Common Shares are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. In this connection, such Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, such Investor further agrees not
to make any disposition of all or any portion of the Common Shares unless and
until the transferee has agreed in writing for the benefit of the Company to be
bound by this Section 3 and the Registration Rights Agreement provided and to
the extent this Section 3 and such agreement are then applicable, and:
(a) There is then in effect a registration statement under
the Act, covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
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(b) (i) Such Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to SEC Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor that is a partnership to a partner of
such partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or the
transfer by gift, will or intestate succession of any partner to his or her
spouse or to the siblings, lineal descendants or ancestors of such partner or
his or her spouse, if the transferee agrees in writing to be subject to the
terms hereof to the same extent as if he or she were an original Investor
hereunder.
3.8 Legends. It is understood that the certificates evidencing
the Common Shares may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(b) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
(c) Any legend required by applicable blue sky law.
4. Conditions of Investors' Obligations at Closing. The obligations of
each Investor under Section 1 of this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions, the waiver of
which shall not be effective against any Investor who does not consent thereto:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
4.2 Performance. The company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
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4.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Common Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
4.4 Proceeding's and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.5 Registration Rights Agreement. The Company and each Investor
shall have entered into the Registration Rights Agreement.
4.6 Minimum Funding. The Investors shall collectively deliver to
the Company the aggregate Purchase Price.
4.7 Lock-Up. The Directors of the Company who are not parties
hereto shall have executed and delivered to the Company letters to the effect
that they shall be bound by restrictions substantially similar to the
restrictions set forth in Section 6.1 hereof.
5. Conditions of the Company's Obligations at Closing. The obligations
of the Company to each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor:
5.1 Representations and Warranties. The representations and
warranties of the Investors contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
5.2 Payment of Purchase Price. The Investor shall have delivered
the purchase price specified in Section 1. 1.
5.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Common Shares pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
6. Miscellaneous.
6.1 Lock-Up. Each Investor agrees, severally and not jointly,
that without the prior written consent of the Board of Directors, the Investor
will not, directly or indirectly, sell, offer to sell, contract to sell, solicit
an offer to buy, grant any option for the purchase or sale of, assign, pledge,
distribute or otherwise transfer, dispose of or encumber any shares of the
Company's
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Common Stock, or any options, rights, warrants or other securities convertible
into or exercisable or exchangeable for the Company's Common Stock or evidencing
any right to purchase or subscribe for shares of the Company's Common Stock,
whether or not beneficially owned by the undersigned, for a period of 180 days
after the Closing. Each Investor agrees to cause its Affiliates (as defined
under the Securities Act of 1933) to comply with the foregoing restrictions. To
the extent that any Investor or other person referred to above is subsequently
relieved of the foregoing restrictions, all Investors will be relieved from such
restriction on a pro rata basis.
In furtherance of the foregoing, the Company and ChaseMellon
Shareholder Services, L.L.C., as Transfer Agent for the Company's Common Stock,
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of the provisions hereof. Each
Investor hereby consents to the placing of a stop-transfer order with the
Transfer Agent for such 180-day period with respect to any of the shares of the
Company's Common Stock registered in the name of such Investor or his Affiliates
or beneficially owned by such Investor or his Affiliates.
6.2 Survival of Warranties. The warranties, representations and
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
6.3 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Common Shares). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.4 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
6.5 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.
6.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.7 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, deposit
with a nationally recognized overnight courier, confirmed facsimile or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address or
addresses indicated for such party
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on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
6.8 Finder's Fee. Each party represents that it neither is nor
will be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless each Investor
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
6.9 Expenses. Irrespective of whether the Closing is effected,
each party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement or the Registration Rights Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6.10 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of (a) the Company and (b) the
holders of two-thirds (2/3) of the Common Shares. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
6.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
6.12 Corporate Securities Law. THE SALE OF THE SECURITIES THAT
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 FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM 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.
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6.13 Entire Agreement. This Agreement and the documents referred
to herein constitute the entire agreement among the parties and no party shall
be liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx
Address: 0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
INVESTOR
PEQUOT PRIVATE EQUITY FUND, L.P.
By: Pequot Capital Management, Inc.
as Investment Manager
/s/ Xxxxx X. Xxxxx
By:_______________________________________
Xxxxx X. Xxxxx, Chief Financial Officer
Address 000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
PEQUOT OFFSHORE PRIVATE EQUITY
FUND, INC.
By: Pequot Capital Management, Inc.,
as Investment Advisor
/s/ Xxxxx X. Xxxxx
By:_______________________________________
Xxxxx X. Xxxxx, Chief Financial Officer
Address: 000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
SIGNED PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
TCV II, V.O.F.
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
/s/ Xxxxxx X. Xxxxxx
By: ___________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000 Copy: Technology Crossover Ventures
Xxxxxxxx, Xxx Xxxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
TECHNOLOGY CROSSOVER VENTURES II,
L.P.
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
/s/ Xxxxxx X. Xxxxxx
By: ______________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000 Copy: Technology Crossover Ventures
Xxxxxxxx, Xxx Xxxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
TCV II (Q), L.P.
By: Technology Crossover Management II, L.L.C.,
General Partner
/s/ Xxxxxx X. Xxxxxx
By: ___________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000 Copy: Technology Crossover Ventures
Xxxxxxxx, Xxx Xxxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
TCV II STRATEGIC PARTNERS, L.P.
By: Technology Crossover Management II, L.L.C.
Its: General Partner
/s/ Xxxxxx X. Xxxxxx
By: ___________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000 Copy: Technology Crossover Ventures
Xxxxxxxx, Xxx Xxxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
TECHNOLOGY CROSSOVER VENTURES II, C.V.
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
/s/ Xxxxxx X. Xxxxxx
By: -----------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000 Copy: Technology Crossover Ventures
Xxxxxxxx, Xxx Xxxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
/s/ Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxxx X. Xxxxxx
Address 0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
AGGREGATE
PURCHASE PRICE OF NUMBER OF
NAME AND ADDRESS COMMON SHARES COMMON SHARES
---------------- ------------- -------------
Pequot Private Equity Fund, L.P. $1,109,525.96 214,567
00 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Pequot Offshore Private Equity $ 140,475.39 27,166
Fund, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
TCV II, V.O.F. $ 11,655.43 2,254
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Technology Crossover Ventures II, $ 358,779.49 69,383
L.P.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TCV II, (A), L.P. $ 275,836.65 53,343
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TCV II Strategic Partners, L.P. $ 48,953.86 9,467
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Technology Crossover Ventures II, $ 54,776.40 10,593
C.V.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx $1,250,001.34 241,733
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxx $ 499,999.50 96,693
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
TOTAL $ 3,750,004.02 725,199
============== =======
EXHIBIT A
---------
Registration Rights Agreement.
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
December 9, 1998
TABLE OF CONTENTS
Page
----
1. Purchase and Sale of the Common Shares and the Warrants ................ l
1.1 Sale and Issuance of Common Shares and the Warrants ............. 1
1.2 Closing ......................................................... 2
2. Representations and Warranties of the Company .......................... 2
2.1 Authorization ................................................... 2
2.2 Valid Issuance of Common Shares and Warrants .................... 2
2.3 Offering ........................................................ 2
2.4 Additional Information........................................... 2
3. Representations and Warranties of the Investors ........................ 3
3.l Authorization ................................................... 3
3.2 Purchase Entirely for Own Account ............................... 3
3.3 Disclosure of Information ....................................... 3
3.4 Investment Experience ........................................... 3
3.5 Accredited Investor ............................................. 4
3.6 Restricted Securities ........................................... 4
3.7 Further Limitations on Disposition .............................. 4
3.8 Legends ......................................................... 4
4. Conditions of Investors' Obligations at Closing ........................ 5
4.1 Representations and Warranties .................................. 5
4.2 Performance ..................................................... 5
4.3 Qualifications .................................................. 5
4.4 Proceedings and Documents ....................................... 5
4.5 Registration Rights Agreement ................................... 5
5. Conditions of the Company's Obligations at Closing ..................... 5
5.1 Representations and Warranties .................................. 5
5.2 Payment of Purchase Price ....................................... 6
5.3 Qualifications .................................................. 6
6. Miscellaneous .......................................................... 6
6.1 Survival of Warranties .......................................... 6
6.2 Successors and Assigns .......................................... 6
6.3 Governing Law ................................................... 6
6.4 Counterparts .................................................... 6
6.5 Titles and Subtitles ............................................ 6
6.6 Notices ......................................................... 6
6.7 Finder's Fee .................................................... 6
6.8 Expenses ........................................................ 7
6.9 Amendments and Waivers .......................................... 7
6.10 Severability .................................................... 7
i
DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT is made as of the
9th day of December, 1998, by and among Digital Generation Systems, Inc., a
California corporation (the "Company"), and the investors, severally and not
jointly, listed on Schedule A hereto, each of which is herein referred to as an
"Investor."
WHEREAS, the Company desires to sell, and the Investors desire to
purchase, shares of the Company's Common Stock (the "Common Shares") with an
aggregate purchase price of three million three dollars and fifty cents
($3,000,003.50) and at a price per share equal to three dollars and twenty-five
cents ($3.25) (the "Purchase Price"); and
WHEREAS, the Company desires to sell, and the Investors desire to
purchase for an aggregate purchase price of three thousand dollars ($3,000),
warrants, in the form attached hereto as Exhibit A (the "Warrants"), to purchase
shares of the Company's Common Stock in an amount equal to fifty percent (50%)
of the number of Common Shares purchased by each Investor pursuant to this
Agreement (the "Warrant Shares") and with an exercise price equal to the
Purchase Price of the Common Shares.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of the Common Shares and the Warrants.
1.1 Sale and Issuance of the Common Shares and the Warrants.
(a) On or prior to the Closing (as defined below), the Company
shall have authorized (i) the sale and issuance to the Investors of the Common
Shares, (ii) the sale and issuance to the Investors of the Warrants and (iii)
the issuance of the Warrant Shares to be issued upon exercise of the Warrants.
(b) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally and not jointly, to purchase at the Closing, and the
Company agrees to sell and issue to each Investor at the Closing, that number of
Common Shares set forth opposite such Investor's name on Schedule A hereto for
the purchase price set forth opposite such Investor's name on Schedule A hereto.
(c) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally and not jointly, to purchase at the Closing, and the
Company agrees to sell and issue to each Investor at the Closing, a Warrant to
purchase that number of shares of the Company's Common Stock equal to fifty
percent (50%) of the number of Common Shares purchased by such Investor, for the
purchase price set forth opposite such Investor's name on Schedule A hereto. The
Company and each Investor agrees, severally and not jointly, that as of the date
hereof the purchase price of the Warrants is equal to the fair market value of
such warrants.
1
1.2 Closing. The purchase and sale of the Common Shares and the
Warrants shall take place at the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx, LLP,155 Constitution Drive, Menlo Park, California, at
10:00 A.M., on December 9, 1998, or at such other time and place as the Company
and Investors acquiring in the aggregate more than half of the Common Shares and
the Common Stock issuable or issued upon exercise of the Warrants mutually agree
upon orally or in writing (which time and place are designated as the
"Closing"). At the Closing the Company shall deliver to each Investor (a) a
certificate representing the Common Shares that such Investor is purchasing and
(b) a Warrant to purchase that number of shares of the Company's Common Stock as
set forth in Section 1.1(c) above, against payment of the purchase price
therefor by check or wire transfer.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor that:
2.1 Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement and the Registration Rights Agreement,
in the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
the performance of all obligations of the Company hereunder and thereunder, and
the authorization, issuance (or reservation for issuance), sale and delivery of
the Common Shares and the Warrants being sold hereunder and the Warrant Shares
issuable upon conversion of the Warrants has been taken or will be taken prior
to the Closing, and this Agreement and the Registration Rights Agreement
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Registration Rights Agreement may be limited by
applicable federal or state securities laws.
2.2 Valid Issuance of Common Shares and Warrants. The Common Shares
and the Warrants that are being purchased by the Investors hereunder, when
issued, sold and delivered in accordance with the terms of this Agreement for
the consideration expressed herein, will be duly and validly issued, fully paid,
and nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Registration Rights
Agreement and under applicable state and federal securities laws. The Warrant
Shares issuable upon conversion of the Warrants purchased under this Agreement
have been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Company's Amended and Restated Articles of
Incorporation, will be duly and validly issued, fully paid, and nonassessable
and will be free of restrictions on transfer other than restrictions on transfer
under this Agreement and the Registration Rights Agreement and under applicable
state and federal securities laws.
2.3 Offering. Subject in part to the truth and accuracy of each
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Common Shares and the Warrants as contemplated by this
Agreement are exempt from the registration requirements of any applicable state
and federal securities laws, and neither the
2
Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption.
2.4 Additional Information. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the twelve (12)
months preceding the date of this Warrant (the "SEC Filings"). The SEC Filings
complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the "Act"), as the case may be, as of
their respective filing or effective dates, and the information contained
therein was true and correct in all material respects as of the date or
effective date of such documents, and each of the SEC Filings, as of such date,
did not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
3. Representations and Warranties of the Investors. Each Investor
hereby represents and warrants that:
3.1 Authorization. Such Investor has full power and authority to
enter into this Agreement and the Registration Rights Agreement, and each such
Agreement constitutes its valid and legally binding obligation, enforceable in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent the indemnification provisions
contained in the Registration Rights Agreement may be limited by applicable
federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with
such Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Common Shares and the Warrant to be received by such Investor
and the Warrant Shares issuable upon exercise of the Warrant to be received by
such Investor (collectively, the "Securities") will be acquired for investment
for such Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
3.3 Disclosure of Information. Such Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Common Shares and the Warrant. Such Investor further
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Common Shares and the Warrant and the business, properties, prospects and
financial condition of the Company.
3.4 Investment Experience. Such Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear
3
the economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Common Shares and the Warrant. If other than an
individual, Investor also represents it has not been organized for the purpose
of acquiring the Common Shares and the Warrant.
3.5 Accredited Investor. Such Investor is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. In this connection, such Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and the Registration Rights Agreement provided and to the extent
this Section 3 and such agreement are then applicable, and:
(a) There is then in effect a Registration Statement under the
Act, covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to SEC Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by an Investor that is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will or intestate succession of any partner to his or her spouse or to
the siblings, lineal descendants or ancestors of such partner or his or her
spouse, if the transferee agrees in writing to be subject to the terms hereof to
the same extent as if he or she were an original Investor hereunder.
3.8 Legends. It is understood that the certificates evidencing the
Securities may bear one or all of the following legends:
4
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(b) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations and
Sections 417 and 418 of the California Corporations Code.
(c) Any legend required by applicable blue sky law.
4. Conditions of Investors' Obligations at Closing. The obligations
of each Investor under Section 1 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
thereto:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
4.2 Performance. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
4.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing.
4.4 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.5 Registration Rights Agreement. The Company and each Investor
shall have entered into the Registration Rights Agreement.
5. Conditions of the Company's Obligations at Closing. The
obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor:
5.1 Representations and Warranties. The representations and
warranties of the Investors contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
5
5.2 Payment of Purchase Price. The Investor shall have delivered the
purchase price specified in Section 1.1.
5.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
6.2 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Securities). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
6.4 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.
6.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, deposit
with a nationally recognized overnight courier, confirmed facsimile or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address or
addresses indicated for such party on the signature page hereof, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties.
6.7 Finder's Fee. Each party represents that it neither is nor will
be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible.
6
The Company agrees to indemnify and hold harmless each Investor from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
6.8 Expenses. Irrespective of whether the Closing is effected, each
party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the Warrants or the Registration Rights Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
6.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of (a) the Company and (b) the
holders of two-thirds (2/3) of the Common Shares and the Common Stock issuable
or issued upon exercise of the Warrants. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
6.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 Corporate Securities Law. THE SALE OF THE SECURITIES THAT 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 FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM 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.
6.12 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
------------------------------------------
By:
---------------------------------------
Address:
------------------------------------------
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
---------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Integral Capital Partners IV, L.P.
------------------------------------------
By Integral Capital Management IV, LLC
its General Partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, a Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Integral Capital Partners IV MS Side Fund, L.P.
-------------------------------------------------
By ICP MS Management IV, LLC
its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx, a Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Pequot Private Equity Fund, LP
-------------------------------------------------
By: [SIGNATURE ILLEGIBLE]
----------------------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Pequot Offshore Private Equity Fund
-------------------------------------------------
By: [SIGNATURE ILLEGIBLE]
----------------------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Technology Crossover Ventures, L.P.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Technology Crossover Ventures, C.V.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
TCV II, V.O.F.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Technology Crossover Ventures II, L.P.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
TCV II (Q), L.P.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
TCV II Strategic Partners, L.P.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Technology Crossover Ventures II, C.V.
-------------------------------------------------
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Lion Investments Limited
-------------------------------------------------
By: [SIGNATURE ILLEGIBLE]
----------------------------------------------
Address: Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
----------------------------------------------
Xxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
INVESTOR:
Westpool Investment Trust plc
-------------------------------------------------
By: [SIGNATURE ILLEGIBLE]
----------------------------------------------
Address: Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
AGGREGATE
PURCHASE PRICE OF NUMBER OF PURCHASE PRICE NUMBER OF
NAME AND ADDRESS COMMON SHARES COMMON SHARES OF WARRANT WARRANT SHARES
---------------- ----------------- ------------- -------------- --------------
Integral Capital Partners IV, L.P. $ 447,690.75 137,751 $ 447.69 68,876
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Integral Capital Partners IV MS Side $ 2,310.75 711 $ 2.31 356
Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Pequot Private Equity Fund, LP $1,198,281.50 368,702 $1,198.28 184,351
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Pequot Offshore Private Equity $ 151,716.50 46,682 $ 151.72 23,341
Fund, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Technology Crossover Ventures, $ 231,653.50 71,278 $ 231.65 35,639
L.P
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Technology Crossover Ventures, $ 18,349.50 5,646 $ 18.35 2,823
C.V.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TCV 11, V.O.F $ 7,774.00 2,392 57.77 1,196
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Technology Crossover Ventures II, $ 239,187.00 73,596 $ 239.19 36,798
L.P
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TCV 11 (Q), L.P. $ 183,891.50 56,582 $ 183.89 28,291
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
TCV II Strategic Partners, L.P. $ 32,630.00 10,040 $ 32.63 5,020
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
AGGREGATE
PURCHASE PRICE OF NUMBER OF PURCHASE PRICE NUMBER OF
NAME AND ADDRESS COMMON SHARES COMMON SHARES OF WARRANT WARRANT SHARES
---------------- ----------------- ------------- -------------- --------------
Technology Crossover Ventures, II, $ 36,517.00 11,236 $ 36.52 5,618
C.V.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Lion Investments Limited $ 134,998.50 41,538 $ 135.00 20,769
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx XXX 0XX
XXXXXXX
Westpool Investment Trust plc $ 315,003.00 96,924 $ 315.00 48,462
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
XXXXXXX
TOTAL $3,000,003.50 923,078 $ 3000.00 461,540
EXHIBIT A
Form of Warrant
EXHIBIT B
Registration Rights Agreement
