EXHIBIT 2
EXECUTION COPY
================================================================================
SECURITIES PURCHASE AGREEMENT
among
WARBURG, XXXXXX EQUITY PARTNERS, L.P.,
RIVERSIDE PARTNERSHIP,
THIRD POINT PARTNERS L.P.,
THIRD POINT OFFSHORE FUND LTD.,
POINTS WEST INTERNATIONAL INVESTMENTS LTD.
and
THE COBALT GROUP, INC.
June 26, 2000
================================================================================
THE COBALT GROUP, INC.
SECURITIES PURCHASE AGREEMENT
Dated as of June 26 , 2000
TO THE INVESTORS WHOSE NAMES APPEAR
ON THE SIGNATURE PAGE HERETO
Dear Sirs:
The Cobalt Group, Inc., a Washington corporation (the "Company"), hereby
agrees with each of the Investors whose names appear on the signature page
hereto (collectively, the "Investors") as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES
1.1. Grant of Options
(a) Each of the Investors hereby grants to the Company an irrevocable
option (each such option, an "Option" and collectively, the "Options") to cause
such Investor, subject to the terms and conditions set forth in this Agreement
and in reliance on the Company's representations and warranties set forth below,
to purchase from the Company on the Closing Date (as defined below) the number
of shares of the Company's Common Stock, $.01 par value ("Common Stock"), set
forth opposite such Investor's name on Schedule 1.1 (such shares, collectively
the "Shares") at a cash purchase price of $6.8578 per share (the "Purchase
Price"). The Purchase Price and the number and character of such Shares are
subject to adjustment as provided in this Agreement.
(b) The Options may be exercised in whole or in part on only one occasion
in the manner provided below. All Options must be exercised concurrently. If the
Options are exercised in part, the number of shares to be purchased by each
Investor shall have the same proportion to the aggregate number of shares to be
purchased by the Investors as the number of shares set forth opposite such
Investor's name on Schedule 1.1 has to 2,187,289.
1.2. Exercise of Options; Closing
(a) In the event the Company wishes to exercise the Options, it shall send
a written notice to the Investors not earlier than 80 nor more than 140 days
after the date hereof, specifying the number of shares to be sold by the Company
and purchased by each of the Investors. The closing of such sales and purchases
(the "Closing") shall take place at 10:00 a.m., local time, at the offices of
Stoel Rives LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx
00000-0000, on the tenth day after such notice is given (unless such day is not
a Business Day, in which case, on the first Business Day following such day), or
if any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx") shall not have then expired or been
terminated, on the second Business Day following such
expiration or termination, or at such other time as the parties hereto may agree
(the "Closing Date"). Such sales and purchases shall be effected on the Closing
Date by the Company executing and delivering to each of the Investors, duly
registered in its name, duly executed stock certificates evidencing the Shares
being purchased by it, against delivery by each of the Investors to the Company
of the aggregate Purchase Price for such shares by wire transfer of immediately
available funds to such account as the Company shall, not less than three
Business Days prior to the Closing Date, designate to the Investors.
1.3. Reduction in Number of Shares for Alternate Equity Issuances
(a) Each time, during the period from the date hereof to the Closing Date,
the Company issues equity securities of any kind for cash (the term "equity
securities" shall include for these purposes any warrants, options or other
rights to acquire equity securities and debt securities convertible into equity
securities, and any such issuance shall be referred to as an "Alternate Equity
Issuance"), the number of Shares to be purchased by each Investor upon the
Company's exercise of the Option granted by such Investor shall be reduced to
the number equal to (A) the product of (i) such Investor's Investor Percentage
and (ii) the excess, if any, of $15,000,000 over the gross proceeds to the
Company of such Alternate Equity Issuance divided by (B) the Purchase Price.
(b) For purposes of this Section 1.3, "Alternate Equity Issuances" shall
not include the issuance of: (i) securities pursuant to the acquisition of
another corporation by the Company by merger, stock purchase, purchase of
substantially all of the assets, or other reorganization; (ii) shares of Common
Stock (or related options) to employees, officers or other persons performing
services for the Company pursuant to any stock offering, plan or arrangement
approved by the Board of Directors of the Company; (iii) securities in
connection with any stock split, stock dividend, shareholder rights plan or
recapitalization by the Company; (iv) the Shares, the Warrant or the Warrant
Shares; (v) securities upon exercise or conversion of any rights, options,
warrants or convertible securities outstanding on the date of this Agreement;
(vi) securities pursuant to the acquisition of an asset of another corporation
or entity; or (vii) any right, option or warrant to acquire any security
exercisable for or convertible into securities, the issuance of which is
excluded from the definition of Alternate Equity Issuances pursuant to clauses
(i) through (vii) above, or issuable upon exercise or conversion of any
securities, the issuance of which is excluded from the definition of Alternate
Equity Issuances pursuant to clauses (i) through (vii) above.
(c) For purposes of this Section 1.3, the gross proceeds to the Company of
an Alternate Equity Issuance shall be determined without deduction of any
expenses incurred or any underwriting or other commissions, discounts or
concessions allowed by the Company in connection therewith.
1.4. Other Adjustments
An appropriate adjustment to the number of Shares to be purchased by each
Investor upon the exercise of the Option granted by such Investor, the character
of such Shares and the Purchase Price shall be made in the event that, prior to
the Closing, the outstanding shares of Common Stock, are changed into or
exchanged for a different number of shares or a
2
different class by reason of any reorganization, reclassification, subdivision,
recapitalization, split-up, combination, exchange of shares, stock dividend or
other similar transaction.
1.5. Issuance of Warrants
In consideration for the Investors' granting the Options to the Company,
the Company has on the date hereof granted to each Investor warrants, in
substantially the form of Exhibit A (collectively, the "Warrants"), to purchase
the number of shares of Common Stock set forth opposite such Investor's name on
Schedule 1.5 (collectively, the "Warrant Shares").
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
2.1. Corporate Organization
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington. Attached hereto as
Exhibits B and C, respectively, are true and complete copies of the Certificate
of Incorporation and Bylaws of the Company, as amended through the date hereof
(collectively, the "Organizational Documents").
(b) The Company has all requisite power and authority and has all necessary
approvals, licenses, permits and authorization to own its properties and to
carry on its business as now conducted. The Company has all requisite power and
authority to execute and deliver the Transaction Documents and to perform its
obligations hereunder and thereunder.
(c) The Company has filed all necessary documents to qualify to do business
as a foreign corporation in, and the Company is in good standing under the laws
of each jurisdiction in which the conduct of the Company's business or the
nature of the property owned requires such qualification, except where the
failure to so qualify would not have or be reasonably likely to have a material
adverse effect on the business, properties, assets, liabilities, prospects,
profits, results of operations or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
2.2. Subsidiaries
Except as set forth on Schedule 2.2, on the date hereof, the Company has no
subsidiaries and no interests or investments in any partnership, trust or other
entity or organization. Each subsidiary of the Company listed on Schedule 2.2
has been duly incorporated, or duly established, and is validly existing and in
good standing under the laws of its jurisdiction of establishment, has full
power and authority (corporate or other) to own its properties and to conduct
its business and is duly registered, qualified and authorized to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or the nature of its properties requires such registration,
qualification or authorization; all of the issued and outstanding capital stock
of, or other form of ownership interest in, each subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable, and is owned by
the
3
Company free and clear of any mortgage, pledge, lien, encumbrance, security
interest, claim or equity.
2.3. Capitalization
(a) On the date hereof, the authorized capital stock of the Company
consists of 200,000,000 shares of Common Stock and 100,000,000 shares of
preferred stock, $.01 par value ("Preferred Stock"). As of the date hereof, (A)
17,557,008 shares of Common Stock were issued and outstanding, (B) no shares of
Preferred Stock were issued and outstanding, (C) 2,765,211 shares of Common
Stock were reserved for issuance upon the exercise of outstanding options under
the Company's stock option plan and (D) 1,364,765 shares of Common Stock were
reserved for issuance upon the exercise of outstanding warrants other than the
Warrants.
(b) All the outstanding shares of capital stock of the Company have been
duly and validly issued and are fully paid and non-assessable, and were issued
in accordance with the registration or qualification requirements of the
Securities Act and any relevant state securities laws or pursuant to valid
exemptions therefrom. Upon issuance, sale and delivery as contemplated by this
Agreement, the Shares will be duly authorized, validly issued, fully paid and
non-assessable shares of the Company, free of all preemptive or similar rights.
Upon their issuance in accordance with the terms of the Warrants, the Warrant
Shares will be duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock, free of all preemptive or similar rights.
(c) Except as set forth on Schedule 2.3(c) and except for the warrants and
options referenced in Section 2.3(a), the Options and the Warrants, on the date
hereof, there are no shares of Common Stock or any other equity security of the
Company issuable upon conversion or exchange of any security of the Company nor
will there be any rights, options or warrants outstanding or other agreements to
acquire shares of Common Stock nor will the Company be contractually obligated
to purchase, redeem or otherwise acquire any of its outstanding shares. No
stockholder of the Company is entitled to any preemptive or similar rights to
subscribe for shares of capital stock of the Company.
2.4. Corporate Proceedings, etc.
The Company has authorized the execution, delivery, and performance of the
Transaction Documents and each of the transactions and agreements contemplated
hereby and thereby. No other corporate action (including stockholder approval)
is necessary to authorize such execution, delivery and performance of the
Transaction Documents, and upon such execution and delivery each of the
Transaction Documents shall constitute the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
that such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and general principles of equity. The Company has authorized
the issuance and delivery of the Shares in accordance with this Agreement and
the Company has reserved for issuance the Warrant Shares.
4
2.5. Consents and Approvals
Except for the premerger notification requirements of the HSR Act and the
listing of the Shares and the Warrant Shares on the Nasdaq National Market
subject to notice of issuance and except as set forth on Schedule 2.5, the
execution and delivery by the Company of the Transaction Documents, the
performance by the Company of its obligations hereunder and thereunder and the
consummation by the Company of the transactions contemplated hereby and thereby
do not require the Company or any of its subsidiaries to obtain any consent,
approval or action of, or make any filing with or give any notice to, any
corporation, person or firm or any public, governmental or judicial authority.
2.6. Absence of Defaults, Conflicts, etc.
Except as set forth on Schedule 2.6, the execution and delivery of the
Transaction Documents, and the fulfillment of the terms hereof and thereof by
the Company, and the issuance of the Shares and the Warrant Shares will not,
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, or permit the acceleration of rights under or
termination of, any indenture, mortgage, deed of trust, credit agreement, note
or other evidence of indebtedness, or other material agreement of the Company or
any of its subsidiaries (collectively the "Key Agreements and Instruments"), or
the Organizational Documents, or any rule or regulation of any court or federal,
state or foreign regulatory board or body or administrative agency having
jurisdiction over the Company or any of its subsidiaries or over their
respective properties or businesses. No event has occurred and no condition
exists which, upon notice or the passage of time (or both), would constitute a
default under any such Key Agreements and Instruments or in any license, permit
or authorization to which the Company or any subsidiary is a party or by which
any of them may be bound.
2.7. SEC Reports; Financial Statements
(a) The Company has filed all forms, reports and documents required to be
filed with the SEC since August 3, 1999, and has heretofore delivered to
Investors, in the form filed with the SEC, its (i) Registration Statement on
Form S-1 (Registration No. 333-79483), (ii) Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, (iii) Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2000, (iv) all proxy statements relating to the
Company's meetings of stockholders (whether annual or special) held since August
5, 1999 and (v) all other reports or registration statements filed by the
Company with the SEC, since August 3, 1999 (collectively, the "SEC Reports").
The SEC Reports (i) were prepared in accordance with the requirements of the
Securities Act or the Exchange Act, as the case may be, and (ii) did not at the
time they were filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) The consolidated financial statements contained in the SEC Reports were
prepared in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto) and fairly presented the consolidated financial
position of the Company and the subsidiaries as at the respective dates thereof
and the consolidated results of operations and changes in financial
5
position of the Company and its subsidiaries for the periods indicated, except
that the unaudited interim financial statements were or are subject to normal
and recurring year-end adjustments (which in the aggregate are not material in
amount).
(c) Except as disclosed in any SEC Report filed prior to the date of this
Agreement, and except for liabilities and obligations incurred in the ordinary
course of business consistent with past practice since the date of the most
recent consolidated balance sheet included in the SEC Reports filed and publicly
available prior to the date of this Agreement, the Company and its subsidiaries
have no material liabilities of any nature (whether accrued, absolute,
contingent or otherwise).
2.8. Absence of Certain Developments
(a) Except as set forth on Schedule 2.8, since December 31, 1999 through
the date hereof, there has been no (i) material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries taken as a whole or
in their assets, liabilities, properties, profits, results of operations or
business or prospects, (ii) issuance of capital stock (other than pursuant to
the exercise of options, warrants, or convertible securities outstanding at such
date) or options, warrants or rights to acquire capital stock (other than the
Options and Warrants granted to the Investors hereunder), (iii) acquisition or
disposition of any material assets (or any contract or arrangement therefor), or
any other material transaction by the Company or any subsidiary otherwise than
for fair value in the ordinary course of business, (iv) material loss,
destruction or damage to any property of the Company or any subsidiary, whether
or not insured or (v) agreement, in writing or otherwise, by the Company or any
of its subsidiaries to take any of the actions described in this Section 2.8(a),
except as expressly contemplated by this Agreement.
(b) Except as set forth on Schedule 2.8, since December 31, 1999 there has
been no (i) declaration, setting aside or payment of any dividend or other
distribution with respect to the capital stock of the Company, , (ii)
acceleration or prepayment of any indebtedness for borrowed money or the
refunding of any such indebtedness, (iii) labor trouble involving the Company or
any subsidiary or any material change in their personnel or the terms and
conditions of employment, (iv) waiver of any valuable right, (v) loan or
extension of credit to any officer or employee of the Company or any subsidiary,
(vi) revaluation by the Company of any asset (including, without limitation, any
writing down of the value of inventory or writing off of notes or accounts
receivable), other than in the ordinary course of business consistent with past
practice, or (vii) agreement, in writing or otherwise, by the Company or any of
its subsidiaries to take any of the actions described in this Section 2.8(b),
except as expressly contemplated by this Agreement.
2.9. Compliance with Law
(a) Except as set forth on Schedule 2.9, neither the Company nor any of its
subsidiaries is in material violation of any laws, ordinances, governmental
rules or regulations to which it is subject, including without limitation laws
or regulations relating to the environment or to occupational health and safety,
and no material expenditures are or will be required in order
6
to cause its current operations or properties to comply with any such law,
ordinances, governmental rules or regulations.
(b) Except as set forth on Schedule 2.9, the Company and its subsidiaries
have all licenses, permits, franchises or other governmental authorizations
necessary to the ownership of their property or to the conduct of their
respective businesses, which if violated or not obtained might have a Material
Adverse Effect. Neither the Company nor any subsidiary has finally been denied
any application for any such licenses, permits, franchises or other governmental
authorizations necessary to its business.
2.10. Litigation
There are no legal actions, suits, arbitrations or other legal,
administrative or other governmental investigations, inquiries or proceedings
(whether federal, state, local or foreign) pending or, to the best of the
Company's knowledge, threatened against or affecting the Company or any
subsidiary or any of their respective properties, assets or businesses which,
individually or in the aggregate, would be reasonably likely to have a Material
Adverse Effect. The Company is not aware of any fact which might result in or
form the basis for any such action, suit, arbitration, investigation, inquiry or
other proceeding. Neither the Company nor any subsidiary is subject to any
order, writ, judgment, injunction, decree, determination or award of any court
or of any governmental agency or instrumentality (whether federal, state, local
or foreign).
2.11. Tax Matters
To the Company's knowledge, there are no federal, state, county or local
taxes due and payable by the Company or any of its subsidiaries which have not
been paid. The provisions for taxes on the balance sheets included in the SEC
Reports are sufficient for the payment of all accrued and unpaid federal, state,
county and local taxes of the Company whether or not disputed as of the
respective dates of such balance sheets. The Company and its subsidiaries have
duly filed all federal, state, county and local tax returns required to have
been filed by it and there are in effect no waivers of applicable statutes of
limitations with respect to taxes for any year. Neither the Company nor any of
its subsidiaries has been subject to a federal or state tax audit of any kind.
2.12. Employee Benefit Plans
The Company and its subsidiaries have no employee benefit plans (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974) covering
former and current employees of the Company or any of its subsidiaries, or under
which the Company or any of its subsidiaries has any obligation or liability.
All material plans, contracts, bonuses, commissions, profit-sharing, savings,
stock options, insurance, deferred compensation, or other similar fringe or
employee benefits covering former or current employees of the Company or any of
its subsidiaries or under which the Company or any of its subsidiaries has any
obligation or liability are and have been administered in substantial compliance
with their terms and with the requirements of applicable law.
7
2.13. Intellectual Property
Except as disclosed on Schedule 2.13, the Company and its subsidiaries own
all right, title and interest in and to, or have a valid and enforceable license
to use all the Intellectual Property used by them in connection with their
respective businesses, which represents all intellectual property rights
necessary to the conduct of the their business as now conducted (the "Company
Intellectual Property"). The Company and its subsidiaries are in material
compliance with all contractual obligations relating to the protection of such
of the Company Intellectual Property as they use pursuant to license or other
agreement. Except as disclosed on Schedule 2.13, to the Company's knowledge,
there are no conflicts with or infringements of any Company Intellectual
Property by any third party. To the Company's knowledge, the conduct of the
business of the Company and its subsidiaries as currently conducted does not
conflict with or infringe any proprietary right of any third party. Except as
disclosed on Schedule 2.13, there is no claim, suit, action or proceeding
pending or, to the knowledge of the Company, threatened against the Company or
any subsidiary: (i) alleging any such conflict or infringement with any third
party's proprietary rights; or (ii) challenging the Company's or any
subsidiary's ownership or use of, or the validity or enforceability of any
Company Intellectual Property that, individually, or in the aggregate, would be
reasonably likely to have a Material Adverse Effect.
2.14. Title to Assets
Except as disclosed in the SEC Reports filed prior to the date of the
Agreement, the Company and its subsidiaries have good title to their properties
and assets and good title to all their leasehold estates, in each case subject
to no mortgage, pledge, lien, lease, encumbrance or charge, other than or
resulting from taxes which have not yet become delinquent and minor liens and
encumbrances which do not in any case materially detract from the value of the
property subject thereto or materially impair the operations of the Company and
its subsidiaries and which have not arisen otherwise than in the ordinary course
of business.
2.15. Registration Rights
Except as disclosed in the SEC Reports filed prior to the date of the
Agreement, and as provided in the Registration Rights Agreement, as amended by
the Registration Rights Amendment, the Company is not on the date hereof under
any obligation to register any of its securities under the Securities Act.
2.16. Private Offering
Neither the Company nor anyone acting on its behalf has sold or has offered
any of the Shares or Warrants for sale to, or solicited offers to buy from, or
otherwise approached or negotiated with respect thereto with, any prospective
purchaser, other than the Investors. Neither the Company nor anyone acting on
its behalf shall offer the Shares or Warrants for issue or sale to, or solicit
any offer to acquire any of the same from, anyone so as to bring the issuance
and sale of such Shares or Warrants, or any part thereof, within the provisions
of Section 5 of the Securities Act. Based in part upon the representations of
the Investors set forth in Section 3, the offer, issuance and sale of the
Shares, the Warrants and the Warrant Shares are and will be exempt from the
registration and prospectus delivery requirements of the Securities Act, and
8
have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
2.17. Brokerage
There are no claims for brokerage commissions or finder's fees or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement made by or on behalf of the Company and the Company
agrees to indemnify and hold the Investors harmless against any costs or damages
incurred as a result of any such claim.
2.18. Material Facts
This Agreement, the schedules furnished contemporaneously herewith, and the
other agreements, documents (other than the SEC Reports), certificates or
written statements furnished or to be furnished to the Investors through the
Closing Date by or on behalf of the Company in connection with the transactions
contemplated hereby taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein or herein, in light of the circumstances in which they were
made, not misleading. There is no fact which is known to the Company and which
has not been disclosed herein or otherwise by the Company to the Investors which
may materially adversely affect the business, properties, assets, liabilities,
prospects, profits, results of operations or condition, financial or otherwise,
of the Company and its subsidiaries taken as a whole.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each of the Investors severally represents and warrants to the Company as
follows:
(a) It is acquiring the Shares and the Warrants (and will acquire the
Warrant Shares) for its own account for investment and not with a view towards
the resale, transfer or distribution thereof, nor with any present intention of
distributing the Shares or the Warrants (or the Warrant Shares), but subject,
nevertheless, to any requirement of law that the disposition of the Investors'
property shall at all times be within the Investors' control, and without
prejudice to the Investors' right at all times to sell or otherwise dispose of
all or any part of such securities under a registration under the Securities Act
or under an exemption from said registration available under the Securities Act.
(b) It has full power and legal right to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) It has taken all action necessary for the authorization, execution,
delivery, and performance of this Agreement and its obligations hereunder, and,
upon execution and delivery by the Company, this Agreement shall constitute the
valid and binding obligation of such Investor, enforceable against such Investor
in accordance with its terms, except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and general principles of
equity.
9
(d) There are no claims for brokerage commissions or finder's fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement made by or on behalf of such Investor and
such Investor agrees to indemnify and hold the Company harmless against any
costs or damages incurred as a result of any such claim.
(e) It has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of its investment in the
Company as contemplated by this Agreement, and is able to bear the economic risk
of such investment for an indefinite period of time. It has been furnished
access to such information and documents as it has requested and has been
afforded an opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of this
Agreement and the purchase of the Shares, the Warrants and the Warrant Shares
contemplated hereby.
SECTION 4. ADDITIONAL COVENANTS OF THE PARTIES
4.1. Resale of Securities
(a) Each of the Investors severally covenants that it will not sell or
otherwise transfer the Shares or the Warrants (or the Warrant Shares) except
pursuant to an effective registration under the Securities Act or in a
transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder.
(b) The certificates evidencing the Shares and the Warrant Shares will bear
the following legend reflecting the foregoing restrictions on the transfer of
such securities:
"These securities have not been registered under the Securities Act of
1933, as amended, the Washington State Securities Act or any other applicable
securities act (the "Acts"), and neither the offering of the securities nor any
offering materials have been reviewed by any administrator under the Acts. The
securities were acquired by the registered holder pursuant to a representation
that the holder was acquiring the securities for the holder's own account, for
investment. These securities may not be pledged, hypothecated, sold, transferred
or offered for sale in the absence of any effective registration statement under
the Acts or an opinion of counsel satisfactory to the Corporation that such
registration is not required".
4.2. Covenants Pending Closing
Pending the Closing, (a) the Company shall, and shall cause each of its
subsidiaries to, (i) carry on its respective businesses in the ordinary course,
(ii) use all reasonable best efforts to preserve intact its current business
organizations and keep available the services of its current officers and key
employees, (iii) use all reasonable best efforts to preserve its relationships
with customers, suppliers, and other Persons with whom it has business dealings,
and (iv) comply in all material respects with all laws and regulations
applicable to it or any of its properties, assets or business, and (b) the
Company shall not, without the Investors' prior written consent, take any action
which would result in the condition set forth in Section 5.1 not being satisfied
at and as of the time immediately after such action, or in any of the covenants
contained in this Agreement becoming incapable of performance. The Company shall
promptly advise the
10
Investors of any action or event of which would cause or result in the condition
set forth in Section 5.1 not being satisfied at and as of the time immediately
after such action or event or which has the effect of rendering any of the
covenants contained herein incapable of performance.
4.3. Further Assurance
Each of the parties shall execute such documents and other papers and take
such further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby. Each such party
shall use its reasonable efforts to fulfill or obtain the fulfillment of the
conditions to the Closing as promptly as practicable.
SECTION 5. INVESTORS' CLOSING CONDITIONS
The obligation of the Investors to purchase and pay for the Shares on the
Closing Date, as provided in Section 1 hereof, shall be subject to the
satisfaction, prior thereto or concurrently therewith, of the following
conditions:
5.1. Representations and Warranties
The representations and warranties of the Company contained in this
Agreement shall be true on and as of the date of this Agreement. In addition,
such representations and warranties shall be true, without regard to any
materiality or Material Adverse Effect qualifications contained in such
representations and warranties, on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing Date, except
to the extent they are expressly made as of another specific date, and except
for inaccuracies in such representations and warranties that (i) individually or
in the aggregate, have not had and would not be reasonably expected to have a
Material Adverse Effect or (ii) are the result of any action taken by the
Company, which action or failure to take action was specifically approved by the
affirmative vote of at least two-thirds of the members of the Company's entire
Board of Directors.
5.2. Compliance with Agreement
The Company shall have performed and complied with all agreements,
covenants and conditions contained in this Agreement which are required to be
performed or complied with by the Company prior to or on the Closing Date.
5.3. Officer's Certificate
Each of the Investors shall have received a certificate, dated the Closing
Date, signed by each of the Chief Executive Officer and the Chief Financial
Officer of the Company, certifying that the conditions specified in the
foregoing Sections 5.1 and 5.2 hereof have been fulfilled.
11
5.4. Injunction
There shall be no effective injunction, writ, preliminary restraining order
or any order of any nature issued by a court of competent jurisdiction directing
that the transactions provided for herein or any of them not be consummated as
herein provided.
5.5. Counsel's Opinion
The Investors shall have received from the Company's counsel, Stoel Rives
LLP, an opinion, dated the Closing Date, substantially in the form of Exhibit D
hereto.
5.6. Adverse Developments
There shall not have occurred (i) any general suspension of, or limitation
on prices for, trading in securities on any national securities exchange or the
over-the-counter market, (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iii) any
limitation (whether or not mandatory) by any government or governmental entity,
on the extension of credit by banks or other lending institutions, (iv) a
commencement of a war or armed hostilities or other national calamity directly
involving the United States, (v) in the case of any of the foregoing existing at
the date of this Agreement, a material acceleration or worsening thereof, or
(vi) any suspension of trading of the Common Stock on the Nasdaq National Market
by the Nasdaq Stock Market or the SEC.
5.7. Listing of the Shares
The Shares and the Warrant Shares shall have been approved for designation,
upon notice of issuance, on the Nasdaq National Market.
5.8. HSR Act
Any waiting period under the HSR Act applicable to the Investors'
acquisition of the Shares and the Warrant Shares shall have expired or
terminated.
5.9. Consents and Approvals
All consents and approvals from, action of, filings with, and notices to,
any government, governmental entity or other Person required for the
consummation of the purchase of the Shares and the Warrant Shares and the other
transactions contemplated by the Transaction Documents shall have been obtained,
made or given and shall be in effect.
5.10. Registration Rights Amendment
The Company and each of the other parties thereto shall have executed the
amendment to the Registration Rights Agreement, in substantially the form
attached as Exhibit E hereto (the "Registration Rights Amendment").
12
5.11. Approval of Proceedings
All proceedings to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
satisfactory in form and substance to the Investors and their special counsel,
Xxxxxxx Xxxx & Xxxxxxxxx; and the Investors shall have received copies of all
documents or other evidence which they and Xxxxxxx Xxxx & Xxxxxxxxx may request
in connection with such transactions and of all records of corporate proceedings
in connection therewith in form and substance satisfactory to the Investors and
Xxxxxxx Xxxx & Xxxxxxxxx.
SECTION 6. COMPANY CLOSING CONDITIONS
The obligation of the Company to issue and deliver the Shares on the
Closing Date, as provided in Section 1 hereof, shall be subject to the
satisfaction, prior thereto or concurrently therewith, of the following
conditions:
6.1. Representations and Warranties
The representations and warranties of the Investors contained in this
Agreement shall be true on and as of the date of this Agreement, and on and as
of the Closing Date as though such warranties and representations were made at
and as of the Closing Date.
6.2. Compliance with Agreement
The Investors shall have performed and complied with all agreements,
covenants and conditions contained in this Agreement which are required to be
performed or complied with by it prior to or on the Closing Date.
6.3. Investors' Certificates
The Company shall have received a certificate from each of the Investors,
dated the Closing Date, signed by a duly authorized representative of such
Investor, certifying that the conditions specified in the foregoing Sections 6.1
and 6.2 hereof have been fulfilled.
6.4. Injunction
There shall be no effective injunction, writ, preliminary restraining order
or any order of any nature issued by a court of competent jurisdiction directing
that the transactions provided for herein or any of them not be consummated as
herein provided.
SECTION 7. COVENANTS
7.1. Use of Net Proceeds
The Company shall apply the net proceeds from the sale of the Shares for
general working capital purposes.
13
7.2. HSR Act
The Investors and the Company shall in good faith cooperate to file any
notification required under the HSR Act and use reasonable efforts to cause
expiration or termination of any waiting period under such act prior to the
Closing.
SECTION 8. INTERPRETATION OF THIS AGREEMENT
8.1. Terms Defined
As used in this Agreement, the following terms have the respective meanings
set forth below or set forth in the Section hereof following such term:
Affiliate: means any Person or entity, directly or indirectly, controlling,
controlled by or under common control with such Person or entity.
Alternative Equity Issuance: shall have the meaning set forth in Section
1.3(a).
Business Day: shall mean a day other than a Saturday, Sunday or other day
on which banks in the State of New York are required or authorized to close.
Certificate of Designation: shall have the meaning set forth in Section 1.
Closing: shall have the meaning set forth in Section 1.2(a).
Closing Date: shall have the meaning set forth in Section 1.2(a).
Code: shall mean the Internal Revenue Code of 1986, as amended.
Common Stock: shall have the meaning set forth in Section 1.1(a).
Company's knowledge (or words of similar import): shall mean the actual
knowledge of the officers of the Company and any knowledge which would have
likely been obtained by such officers through due and diligent inquiry of any
appropriate employees of the Company or its subsidiaries.
Exchange Act: shall mean the Securities Exchange Act of 1934.
HSR Act: shall have the meaning set forth in Section 1.2.
Intellectual Property: shall mean: (i) trademarks and service marks, trade
dress, product configurations, trade names and other indications of origin,
applications or registrations in any jurisdiction pertaining to the foregoing
and all goodwill associated therewith; (ii) patentable inventions, discoveries,
improvements, ideas, know-how, formula methodology, processes, technology,
software (including password unprotected interpretive code or source code,
object code, development documentation, programming tools, drawings,
specifications and data) and applications and patents in any jurisdiction
pertaining to the foregoing, including re-issues, continuations, divisions,
continuations-in-part, renewals or extensions; (iii) trade secrets,
14
including confidential information and the right in any jurisdiction to limit
the use or disclosure thereof; (iv) copyrights in writings, designs software,
mask works or other works, applications or registrations in any jurisdiction for
the foregoing and all moral rights related thereto; (v) database rights; (vi)
Internet Web sites, domain names and applications and registrations pertaining
thereto and all intellectual property used in connection with or contained in
all versions of the Company's Web sites; (vii) rights under all agreements
relating to the foregoing; (viii) books and records pertaining to the foregoing;
and (ix) claims or causes of action arising out of or related to past, present
or future infringement or misappropriation of the foregoing.
Investor Percentage: shall mean, with respect to any Investor, a fraction,
the numerator of which is the number of Shares to be purchased by such Investor
upon the Company's exercise of the Option granted by such Investor and the
denominator of which is the aggregate number of Shares purchasable by all
Investors upon the Company's exercise of all Options.
Key Agreements and Instruments: shall have the meaning set forth in Section
2.6
Material Adverse Effect: shall have the meaning set forth in Section 2.1.
Option and Options: shall have the meanings set forth in Section 1.1(a).
Organizational Documents: shall have the meaning set forth in Section
2.1(a).
Person: shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust, unincorporated organization or
other entity.
Preferred Stock: shall have the meaning set forth in Section 2.3(a).
Purchase Price: shall have the meaning set forth in Section 1.1(a).
Registration Rights Agreement: means the Registration Rights Agreement,
dated as of February 28, 1997, among the Company, and the Persons listed on the
Schedule of Purchasers attached thereto, as amended by a First Amendment, dated
as of October 7, 1998, and a Second Amendment, dated as of January 7, 1998.
Registration Rights Amendment: shall have the meaning set forth in Section
5.10.
SEC: shall mean the Securities and Exchange Commission.
SEC Reports: shall have the meaning set forth in Section 2.7.
Securities Act: shall mean the Securities Act of 1933, as amended.
Shares: shall have the meaning set forth in Section 1.1(a).
subsidiary: shall mean a corporation of which a Person owns, directly or
indirectly, more than 50% of the Voting Stock.
15
Transaction Documents: shall mean this Agreement, the Warrants and the
Registration Rights Agreement, as amended by the Registration Rights Amendment.
Voting Stock: shall mean securities of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions).
Warrants: shall have the meaning set forth in Section 1.5.
Warrant Shares: shall have the meaning set forth in Section 1.5.
8.2. Accounting Principles
Where the character or amount of any asset or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, this shall be done in accordance with GAAP at the
time in effect, to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
8.3. Directly or Indirectly
Where any provision in this Agreement refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
8.4. Governing Law
This Agreement shall be governed by and construed in accordance with the
law of the State of Washington applicable to contracts made and to be performed
entirely within such State.
8.5. Paragraph and Section Headings
The headings of the sections and subsections of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part thereof.
SECTION 9. MISCELLANEOUS
9.1. Notices
(a) All communications under this Agreement shall be in writing and shall
be delivered by hand or facsimile or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
16
(1) if to an Investor, at the address or facsimile number set forth on
Schedule 1.1 hereto, or at such other address or facsimile number as the
Investor may have furnished the Company in writing,
(2) if to the Company, at: The Cobalt Group, Inc., 0000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 (facsimile: (000) 000-0000), marked
for the attention of the Chief Financial Officer, or at such other address
or facsimile number as it may have furnished the Investors in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered by
hand or facsimile, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
9.2. Expenses and Taxes
(a) The Company agrees to pay the out-of-pocket fees and expenses incurred
by the Investors in connection with the negotiation, preparation, execution and
delivery of the Transaction Documents and the other instruments and agreements
entered into pursuant to this Agreement, and any amendments to the same, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of Xxxxxxx Xxxx &
Xxxxxxxxx, special counsel for the Investors and any filing fees applicable to
filings under the HSR Act. Such payments shall be made by the Company no later
than 30 days after a xxxx for such fees and expenses has been sent to the
Company.
(b) The Company will pay, and save and hold the Investors harmless from any
and all liabilities (including interest and penalties) with respect to, or
resulting from any delay or failure in paying, stamp and other taxes (other than
income taxes), if any, which may be payable or determined to be payable on the
execution and delivery or acquisition of the Shares or the Warrant Shares.
9.3. Reproduction of Documents
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by the Investors on the Closing Date (except
for certificates evidencing the Shares themselves, and the Warrants) and (c)
financial statements, certificates and other information previously or hereafter
furnished to the Investors, may be reproduced by any Investor by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process and any Investor may destroy any original document so
reproduced. All parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by an Investor in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
17
9.4. Termination and Survival
Unless the Closing has occurred prior thereto, this Agreement and, except
as herein provided, all the rights and obligations of the parties hereto (other
than with respect to the Warrants and Warrant Shares), shall terminate on
November 24, 2000 (unless (i) the Options shall have been exercised prior to
such date and the Closing has not occurred on or prior to such date because any
applicable waiting period under the HSR Act has not expired or terminated, in
which case, on December 26, 2000 or (ii) such date is extended by mutual written
consent). All warranties, representations, and covenants made by the Investors
and the Company herein or in any certificate or other instrument delivered by
one of the Investors or the Company under this Agreement shall be considered to
have been relied upon by the Company or the Investors, as the case may be, and
shall survive all deliveries to the Investors of the Shares, or payment to the
Company for such Shares, regardless of any investigation made by the Company or
an Investor, as the case may be, or on the Company's or an Investor's behalf.
The Officer's Certificate delivered by the Company pursuant to Section 5.3 shall
constitute warranties and representations by the Company hereunder as to the
matters set forth in such certificate.
9.5. Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of each of the parties. No party may assign any
of its rights or obligations under this Agreement without the consent of the
other parties, except that (i) any Investor may assign all or any portion of its
rights and obligations hereunder to an Affiliate of such Investor so long as
such Affiliate agrees in writing in advance to be bound by the terms of this
Agreement and is able to make the representations and warranties contained in
Section 3 hereof and (ii) each of Warburg, Xxxxxx Equity Partners, L.P., and
First Analysis Corp. may assign all or any portion of its rights and obligations
hereunder to any other Person so long as (A) after giving effect to such
assignment to such other Person, such Investor and its Affiliates remain
obligated to purchase at least 45% of the aggregate Shares in the case of
Warburg, Xxxxxx Equity Partners, L.P., 8% of the aggregate Shares in the case of
First Analysis Corp., and (B) such other Person agrees in writing in advance to
be bound by the terms of this Agreement and is able to make the representations
and warranties contained in Section 3 hereof (any assignment complying with this
clause (ii), a "Third Party Assignment"). Upon making a Third Party Assignment,
the assigning Investor will be released from its obligation to purchase Shares
hereunder to the extent such obligation is so assigned. This Agreement is not
intended to confer upon any other person, except the parties hereto, any rights
or remedies hereunder, and no third person shall be a third party beneficiary of
this Agreement.
9.6. Entire Agreement; Amendment and Waiver
This Agreement and the agreements attached as Exhibits hereto constitute
the entire understandings of the parties hereto and supersede all prior
agreements or understandings with respect to the subject matter hereof among
such parties. This Agreement may be amended, and the observance of any term of
this Agreement may be waived, with (and only with) the written consent of the
Company and the Investors.
18
9.7. Publicity.
No party shall, without the prior consent of the other parties, file any
documents or issue any statement or communication to the public or to the press
regarding this Agreement, or any of the terms, conditions, or other matters with
respect to this Agreement, except as required by law or the rules, regulations
and guidelines of the SEC and then only following prior notice to, and
consultation with, the other parties (which notice shall include a copy of the
proposed statement or communication to be issued to the press or public).
9.8. Severability
In the event that any part or parts of this Agreement shall be held illegal
or unenforceable by any court or administrative body of competent jurisdiction,
such determination shall not affect the remaining provisions of this Agreement
which shall remain in full force and effect.
9.9. Limitation on Enforcement of Remedies
The Company hereby agrees that it will not assert against the limited
partners of any of the Investors any claim it may have under this Agreement by
reason of any failure or alleged failure by such Investor to meet its
obligations hereunder.
19
9.10. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall be considered one
and the same agreement.
Very truly yours,
THE COBALT GROUP, INC
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President - Finance
ACCEPTED AND AGREED:
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: WARBURG, XXXXXX & CO.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
General Partner
20
RIVERSIDE PARTNERSHIP, A Limited Partnership
By: RIVERSIDE L.L.C., Managing General Partner
By: FIRST ANALYSIS MANAGEMENT COMPANY III, L.L.C.,
Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx
Member
00
XXXXX XXXXX PARTNERS L.P.
By: THIRD POINT ADVISORS L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
Managing Member
THIRD POINT OFFSHORE FUND LTD.
By: THIRD POINT MANAGEMENT COMPANY L.L.C.,
Investment Advisor
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
Managing Member
POINTS WEST INTERNATIONAL INVESTMENTS LTD.
By: THIRD POINT MANAGEMENT COMPANY L.L.C.,
Investment Advisor
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
Managing Member
22
Schedule 1.1
------------
Investors
---------
Investor Name and Address Number of Shares
------------------------- ----------------
Warburg, Xxxxxx Equity Partners, L.P. 1,312,373
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Riverside Partnership 437,458
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Third Point Partners L.P. 223,395
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Third Point Offshore Fund Ltd. 173,669
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Points West International Investments Ltd. 40,394
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
23
Schedule 1.5
------------
Warrant Shares
--------------
Name of Investor Number of Warrant Shares
----------------- ------------------------
Warburg, Xxxxxx Equity Partners, L.P. 416,390
Riverside Partnership 138,797
Third Point Partners L.P. 70,879
Third Point Offshore Fund Ltd. 55,102
Points West International Investments Ltd. 12,816
24
TABLE OF CONTENTS
-----------------
SECTION 1. PURCHASE AND SALE OF SECURITIES.....................................1
1.1. Grant of Options....................................................1
1.2. Exercise of Options; Closing........................................1
1.3. Reduction in Number of Shares for Alternate Equity Issuances........2
1.4. Other Adjustments...................................................2
1.5. Issuance of Warrants................................................3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................3
2.1. Corporate Organization..............................................3
2.2. Subsidiaries........................................................3
2.3. Capitalization......................................................4
2.4. Corporate Proceedings, etc..........................................4
2.5. Consents and Approvals..............................................5
2.6. Absence of Defaults, Conflicts, etc.................................5
2.7. SEC Reports; Financial Statements...................................5
2.8. Absence of Certain Developments.....................................6
2.9. Compliance with Law.................................................6
2.10. Litigation..........................................................7
2.11. Tax Matters.........................................................7
2.12. Employee Benefit Plans..............................................7
2.13. Intellectual Property...............................................8
2.14. Title to Assets.....................................................8
2.15. Registration Rights.................................................8
2.16. Private Offering....................................................8
2.17. Brokerage...........................................................9
2.18. Material Facts......................................................9
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.....................9
SECTION 4. ADDITIONAL COVENANTS OF THE PARTIES................................10
4.1. Resale of Securities...............................................10
4.2. Covenants Pending Closing..........................................10
4.3. Further Assurance..................................................11
SECTION 5. INVESTORS' CLOSING CONDITIONS......................................11
5.1. Representations and Warranties.....................................11
5.2. Compliance with Agreement..........................................11
5.3. Officer's Certificate..............................................11
5.4. Injunction.........................................................12
5.5. Counsel's Opinion..................................................12
5.6. Adverse Developments...............................................12
5.7. Listing of the Shares..............................................12
5.8. HSR Act............................................................12
5.9. Consents and Approvals.............................................12
5.10. Registration Rights Amendment......................................12
5.11. Approval of Proceedings............................................13
SECTION 6. COMPANY CLOSING CONDITIONS.........................................13
6.1. Representations and Warranties.....................................13
6.2. Compliance with Agreement..........................................13
6.3. Investors' Certificates............................................13
6.4. Injunction.........................................................13
SECTION 7. COVENANTS..........................................................13
7.1. Use of Net Proceeds................................................13
7.2. HSR Act............................................................14
SECTION 8. INTERPRETATION OF THIS AGREEMENT...................................14
8.1. Terms Defined......................................................14
8.2. Accounting Principles..............................................16
8.3. Directly or Indirectly.............................................16
8.4. Governing Law......................................................16
8.5. Paragraph and Section Headings.....................................16
SECTION 9. MISCELLANEOUS......................................................16
9.1. Notices............................................................16
9.2. Expenses and Taxes.................................................17
9.3. Reproduction of Documents..........................................17
9.4. Termination and Survival...........................................18
9.5. Successors and Assigns.............................................18
9.6. Entire Agreement; Amendment and Waiver.............................18
9.7. Publicity..........................................................19
9.8. Severability.......................................................19
9.9. Limitation on Enforcement of Remedies..............................19
9.10. Counterparts.......................................................20
SCHEDULES AND EXHIBITS
NUMBER SCHEDULE NAME
1.1 Grant of Options
1.5 Issuance of Warrants
2.2 Subsidiaries
2.3(c) Capitalization
2.5 Consents and Approvals
2.6 Absence of Defaults, Conflicts, etc.
2.8 Absence of Certain Developments
2.9 Compliance with Law
2.13 Intellectual Property
NUMBER EXHIBIT NAME
Exhibit A Form of Warrant
Exhibit B Certificate of Incorporation of the Company
Exhibit C Bylaws of the Company
Exhibit D Counsel's Opinion
Exhibit E Registration Rights Amendment
