Exhibit 10
STOCK PURCHASE AND SALE AGREEMENT
This Stock Purchase and Sale Agreement (the "AGREEMENT") is made and
entered into as of February 20, 1998, by and among Microware Systems
Corporation, an Iowa corporation (the "SELLER"), each of the purchasers
listed on the signature page hereof (each a "PURCHASER" and collectively, the
"PURCHASERS"), and Unwired Planet, Inc., a Delaware corporation (the
"COMPANY").
RECITALS
A. The Seller is the record owner of one million nine hundred
sixty-seven thousand nine hundred sixty-one (1,967,961) shares of Series C
Preferred Stock of the Company and desires to transfer all of such Series C
Preferred Stock (the "STOCK") to the Purchasers.
B. The Seller is a party to that certain Series C Preferred Stock
Purchase Agreement, dated as of October 16, 1996, between the Company and the
Seller (the "PURCHASE AGREEMENT"). The Seller and the Company desire that,
in connection with the transfer of the Stock, the Purchasers be bound by the
terms and conditions of the Purchase Agreement.
C. The Seller is a party to that certain Third Amended and Restated
Investor Rights Agreement, dated as of January 23, 1998, among the Company,
the Seller and certain other security holders of the Company (the "RIGHTS
AGREEMENT"). The Seller and the Company desire that, in connection with the
transfer of the Stock, the Purchasers be bound by the terms and conditions
of, and be granted the rights of the holders of the Stock under, the Rights
Agreement.
AGREEMENT
In consideration of the foregoing and the mutual promises herein
contained, the parties hereby agree as follows:
1. TRANSFER AND SALE. Subject to the terms and conditions of this
Agreement, the Seller agrees to transfer and sell the Stock to the
Purchasers, and each of the Purchasers agrees to purchase from the Seller, as
of the Closing Date (as defined below), that number of shares of the Stock
set forth opposite such Purchaser's name on EXHIBIT A, at a purchase price
set forth on such exhibit.
2. CLOSING. The closing of the transfer and sale of the Stock pursuant
to this Agreement (the "CLOSING") shall occur simultaneously with the
execution of this Agreement by the parties or on such other date as the
parties shall agree but no later than February 20, 1998 (the "CLOSING DATE").
At the Closing, subject to the terms and conditions of this Agreement, the
Seller shall deliver to the Company, a certificate or certificates
representing the Stock registered in the name of the Seller duly endorsed by
the Seller for transfer to the Company and simultaneously, the Company shall
deliver to the Purchasers a certificate or certificates representing the
Stock, registered in the name of each of the respective Purchasers, in the
number of shares set forth by their respective names on EXHIBIT B, upon
payment of the aggregate purchase price for the Stock, which shall be made by
wire transfer.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. In connection
with the transfer of the Stock to each Purchaser, such Purchaser represents
and warrants to the Seller and the Company that:
(a) INVESTMENT EXPERIENCE. It is aware of the Company's business
affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to acquire the
Stock and the underlying Common Stock.
(b) INVESTMENT INTENT. It is acquiring the Stock and the
underlying Common Stock for investment purposes only for its own account, and
not with the view to, or for resale in connection with, any distribution
thereof. It understands that the Stock to be purchased and the underlying
Common Stock have not been, and will not be, registered under the Securities
Act of 1933, as amended (the "Securities Act") by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature
of the investment intent of such Purchaser as expressed herein.
(c) RULE 144. It acknowledges that the Stock and the underlying
Common Stock must not be transferred unless subsequently registered under the
Securities Act or unless an exemption from such registration is available.
It is aware of the provisions of Rule 144 promulgated under the Securities
Act which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the shares, the availability of
certain current public information about the Company, the resale occurring
not less than one year after the security was last held by the Company or an
affiliate of the Company, the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" and the number
of shares being sold during any three-month period not exceeding specified
limitations.
(d) ACCESS TO INFORMATION. It has been given the opportunity to
receive and it has received, all information concerning the Company and an
investment in the Stock that it has requested from the Company.
(e) NO PUBLIC MARKET. It understands that no public market now
exists for any of the securities issued by the Company, including the Stock
and the underlying Common Stock, and that the Company has made no assurances
that a public market will ever exist for the Company's securities.
(f) AUTHORIZATION. Each of this Agreement and the Rights
Agreement, when executed and delivered by such Purchaser, will constitute a
valid and legally binding obligation of the Purchaser, enforceable in
accordance with its terms, except as the indemnification provisions of
Section 5.6 of the Rights Agreement may be limited by principles of public
policy, and subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
(g) ACCREDITED INVESTOR. It is an accredited investor as defined
in Rule 501(a) of Regulation D under the Act.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. In connection with
the transfer of the Stock to the Purchasers, the Seller represents and
warrants to the Purchasers and the Company as of the date hereof and as of
the Closing Date:
(a) AUTHORITY. The Seller has all requisite legal and corporate
power and authority to execute, deliver, and perform its obligations under
this Agreement. This Agreement has been duly authorized executed and
delivered by the Seller and constitutes a legal, valid and binding obligation
of the Seller, enforceable against the Seller and the Seller's successors and
assigns, in accordance with its terms. Transfer and sale of the Stock does
not require the consent or approval of any third party except the Company.
(b) RESTRICTIONS ON THE STOCK. The Seller is the lawful owner of,
and has good and marketable title to, the Stock free and clear of any claims,
liens, encumbrances, security interests or other adverse claims. The transfer
and sale of the Stock is not subject to any right of first refusal or offer,
right of co-sale or other right restricting or otherwise encumbering the
Stock (other than restrictions on transfer under applicable state and federal
laws and the obligations of Seller under the Rights Agreement, which shall be
satisfied as to the Stock at or prior to the Closing). Upon payment for, and
delivery of, the Stock in accordance with the terms of this Agreement, good
and marketable title to the Stock, free and clear of any liens, claims,
encumbrances, security interests or other adverse claims whatsoever will be
transferred to, and vested in, the Purchasers.
(c) NO CONFLICTS. Neither the execution, the delivery nor the
performance of this Agreement by the Seller, nor the transfer and sale of the
Stock contemplated hereby will violate any term or provision of any agreement
to which the Seller is a party.
(d) NO VIOLATION OF SECURITIES LAWS. Assuming that the Stock is
issued, sold and delivered under the circumstances contemplated by the
Agreement and the Rights Agreement, that the representations, warranties and
covenants of the Purchasers are true, correct and complete and that the
Purchasers comply with their covenants in the Agreement, the offer and sale
of the Stock is exempt from the registration requirements of the Securities
Act and any applicable state securities law. The offer and sale of the Stock
has been for Seller's own account, was not accompanied by the publication of
any advertisement, and was not effected by or through a broker-dealer in a
public offering.
5. AGREEMENTS TO TRANSFER AND TO BE BOUND. Each Purchaser agrees to
execute, agree to and be bound by the terms and conditions of the Rights
Agreement, a copy of which is attached hereto as EXHIBIT C. The Seller
hereby assigns to such Purchaser all of Seller's rights pursuant to the
Rights Agreement which a holder of the number of shares purchased by such
Purchaser hereunder would have under such Rights Agreement. The Company
hereby acknowledges and consents to such assignment of rights.
6. CONDITIONS TO THE SELLER'S OBLIGATIONS. The Seller's obligation
to sell the Stock to each Purchaser is subject to the fulfillment, on or
prior to the Closing Date, of the following conditions (except as otherwise
provided below), any of which may be waived in whole or in part by the Seller:
(a) The representations and warranties made by each such Purchaser
in Section 3 hereof shall be true and correct when made, and shall be true
and correct on the Closing Date with the same force and effect as if they had
been made on and as of the same date.
(b) Each such Purchaser shall have delivered to the Seller a
certificate, executed by such Purchaser and dated the Closing Date,
certifying to the fulfillment of the conditions specified in Section 6(a) of
this Agreement.
(c) Each such Purchaser shall have delivered to the Seller or the
Seller's escrow agent the payment of the aggregate purchase price for the
Stock pursuant to Section 2 of this Agreement.
7. CONDITIONS TO THE PURCHASERS' OBLIGATIONS. Each Purchaser's
obligation to purchase the Stock is subject to the fulfillment, on or prior
to the Closing Date, of the following conditions (except as otherwise
provided below), any of which may be waived in whole or in part by such
Purchaser:
(a) The representations and warranties made by the Seller in
Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date with the same force and effect as if they had
been made on and as of the same date.
(b) The Seller shall have delivered to the Purchasers a
certificate, executed by the chief financial officer of the Seller and dated
the Closing Date, certifying to the fulfillment of the conditions specified
in Section 7(a) of this Agreement.
(c) The Purchasers shall have received from X'Xxxxxx & Xxxxxx,
counsel to the Seller, an opinion letter addressed to them, dated the Closing
Date and in substantially the form attached hereto as EXHIBIT D.
8. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State
of California, without giving effect to principles of conflicts of law.
(b) ENTIRE AGREEMENT; ENFORCEMENT OF RIGHTS. Except as expressly
set forth herein, this Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, shall be
effective
unless in writing signed by the parties to this Agreement. The failure by
either party to enforce any rights under this Agreement shall not be
construed as a waiver of any rights of such party.
(c) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this Agreement,
(ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be enforceable
in accordance with its terms.
(d) CONSTRUCTION. This Agreement is the result of negotiations
between and has been reviewed by each of the parties hereto and their
respective counsel, if any; accordingly, this Agreement shall be deemed to be
the product of all of the parties hereto, and no ambiguity shall be construed
in favor of or against any one of the parties hereto.
(e) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient when delivered personally
or sent by telegram or fax or forty-eight (48) hours after being deposited in
the U.S. mail, as certified or registered mail, with postage prepaid, and
addressed to the party to be notified at such party's address as set forth
below or as subsequently modified by written notice.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counter parts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(g) INDEMNIFICATION. The Seller will indemnify each Purchaser
against any and all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any reasonable fees and disbursements
of counsel of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any violation by the
Seller of the Securities Act, the Securities Exchange Act, any state
securities law or any rule or regulation promulgated under such laws
applicable to the Seller in connection with the purchase by the Purchaser and
sale by the Seller of the Stock pursuant to this Agreement, and the Seller
will reimburse each such Purchaser, for any and all legal and any other
expenses reasonably incurred, as such expenses are incurred, in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that the Seller will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission (i) contained in any offering material relating
to the Company prepared by or on behalf of the Company or (ii) made in
reliance upon and in conformity with written information furnished to the
Seller by any of the Purchasers in connection with the purchase and sale of
the Stock by the Purchasers pursuant to this Agreement.
The parties have executed this Agreement as of the date first set forth
above.
MICROWARE SYSTEMS UNWIRED PLANET, INC.
CORPORATION
By: By:
Title: Title:
Address: 0000 X.X. 000xx Xxxxxx Address: 000 Xxxxxx Xxxxxxx
Xxx Xxxxxx, XX 00000 Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx Attention: CFO
SOCIETE DE FINANCEMENTS ET SEMA GROUP INTERNATIONAL
DE PARTICIPATIONS DANS LA LIMITED
COMMUNICATION (PART'COM), S.A.
By: By:
Title: Title:
Address: Tour Maine Montparnasse Address: 00, Xxx Xxxxxx
00 Xxxxxx Xx Xxxxx Xxxxx, Xxxxxx 92126
Xxxxx, Xxxxxx 00000 Attention:
Attention:
SMART FUND KLM UP
By: By:
Title: Title:
Address: Gemplus Paris Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
00 xxx Xxxxxxxx Xxxxx 000
00000 Xxxx-Xxx-Xxxxxxxxxx Xxxxx Xxxxx, XX 00000
Cedex, France Attention:
Attention:
XXX XXXXXXX CAPITAL MANAGEMENT
By:
Title:
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention:
EXHIBIT A
SCHEDULE OF PURCHASERS
Number of Shares
of Series C Preferred Purchase Price for
Name Stock Purchased Shares Purchased
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Societe de Financements et de 809,969 $2,600,000
Participations dans la
Communication
(Part'Com), S.A.
------------------------------------------------------------------------------
SEMA Group International Limited 311,526 1,000,000
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Smart Fund 311,526 1,000,000
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KLM UP 218,069 700,000
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Xxx Xxxxxxx Capital Management 316,871 1,017,156
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1,967,961 $6,317,156
