EXECUTION COPY
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SHARE PURCHASE AND
WARRANT ISSUANCE AGREEMENT
THIRDSPACE LIVING LIMITED
MARCH 19, 2002
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THIRDSPACE LIVING LIMITED
SHARE PURCHASE AND WARRANT ISSUANCE AGREEMENT
THIS SHARE PURCHASE AND WARRANT ISSUANCE AGREEMENT (the "AGREEMENT") is
entered into as of March 19, 2002 (the "EFFECTIVE DATE"), by and among
Thirdspace Living Limited, a company incorporated in England and Wales
(registered no. 3949879), whose registered office is at Xxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxx Xxxxx XX0 0XX (the "COMPANY") and Concurrent Computer
Corporation, a Delaware corporation ("CONCURRENT").
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
1. Definitions.
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1.1 Definitions. The following terms, as used herein, have the
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following meanings:
"AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT" means the Amended and
Restated Shareholders' Agreement dated as of the date hereof by and among, inter
alia, Concurrent and the Company.
"ANCILLARY AGREEMENTS" means the Patent License Agreement, the Reseller
Agreement, the Strategic Alliance Agreement, the Loan Stock Instrument, the
Debenture, the Intercreditor Agreement, the Registration Rights Agreement, the
Articles, the Amended and Restated Shareholders' Agreement and the other
agreements and documents contemplated hereby and thereby.
"A ORDINARY SHARES" means 'A' ordinary shares of 1 xxxxx each in the
Company at the date of execution of this Agreement or such other nominal value
as may result from any sub-division or consolidation thereof and all other (if
any) shares, securities or other rights in the Company from time to time issued
in exchange or substitution therefor.
"ARTICLES" means the Articles of Association of the Company, as adopted on
the date hereof.
"B ORDINARY SHARES" means 'B' ordinary shares of 1 xxxxx each in the
Company at the date of execution of this Agreement or such other nominal value
as may result from any sub-division or consolidation thereof and all other (if
any) shares, securities or other rights in the Company from time to time issued
in exchange or substitution therefor.
"BUSINESS DAY" means any day except Saturday, Sunday or any day on which
banks are generally not open for business in Atlanta, Georgia, U.S.A.
"CAPITAL SHARES" means, collectively, the A ordinary shares, B ordinary
shares, C ordinary shares and any other share capital of the Company now
authorised or authorised in the future under the Articles.
"CLAIMS PERIOD" means the period during which a claim for indemnification
may be asserted under this Agreement by an Indemnified Party.
"COMPANY'S BOARD" means the board of directors of the Company.
"C ORDINARY SHARES" means 'C' ordinary shares of 1 xxxxx each in the
Company at the date of execution of this Agreement or such other nominal value
as may result from any sub-division or consolidation thereof and all other (if
any) shares, securities or other rights in the Company from time to time issued
in exchange or substitution therefor.
"CONCURRENT COMMON STOCK" means the common stock, par value $.01 per share,
of Concurrent.
"CONCURRENT INDEMNIFIED PARTIES" means Concurrent and each of its
affiliates, and each of their officers, directors, employees, agents and
representatives and each of the heirs, executors, successors and assigns of any
of the foregoing.
"CONCURRENT LOSSES" means the claims, liabilities, obligations, losses,
costs, expenses, penalties, fines and damages of the Concurrent Indemnified
Parties as to which Concurrent Indemnified Parties are entitled to
indemnification under Section 9.1.
"COMMERCIAL FALLOUT" has the meaning ascribed to such term in the Strategic
Alliance Agreement.
"COMPANY INDEMNIFIED PARTIES" means the Company and each of its affiliates,
and each of their officers, directors, employees, agents and representatives and
each of the heirs, executors, successors and assigns of any of the foregoing.
"COMPANY LOSSES" means the claims, liabilities, obligations, losses, costs,
expenses, penalties, fines and damages of the Company Indemnified Parties as to
which the Company Indemnified Parties are entitled to indemnification under
Section 9.2.
"EVENT OF DEFAULT" has the meaning ascribed to such term in the Loan Stock
Instrument.
"INDEMNIFIED PARTY" means a Concurrent Indemnified Party or a Company
Indemnified Party.
"SURVIVING OBLIGATIONS" means the indemnification obligations described in
Section 9.1(b).
"SURVIVING REPRESENTATIONS" means the representations and warranties in
Section 4.2 (Corporate Power), Section 4.5 (Authorization), the first sentence
of Section 4.5 (Title to Properties and Assets; Liens, etc.), Section 4.7
(Intellectual Property Rights), Section 4.8
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(Compliance with Other Instruments, None Burdensome, etc.), Section 4.13
(Related-Party Transactions), Section 4.14 (Taxes) and Section 4.21 (Oracle).
"THIRDSPACE SECURITIES" means, collectively, the Shares, the Warrant, the
Warrant Shares, the Loan Stock Instrument and the Loan Stock Instrument Shares.
1.2 Other Definitions. Each of the following terms is defined in the
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clause set forth opposite such term:
Term Clause
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2000 Statements . . . . . . . . . . . . . .4.18
2001 Statements . . . . . . . . . . . . . .4.18
Accredited Investor . . . . . 4.20 (c), 5.5(c)
Aggregate Liability Cap . . . . . . . . .9.5(b)
Agreement . . . . . . . . . . . . . . .Preamble
Company . . . . . . . . . . . . . . . .Preamble
Company Intellectual Property . . . . . . . 4.7
Closing . . . . . . . . . . . . . . . . . . 3.1
Closing Date. . . . . . . . . . . . . . . . 3.1
Closing Date Resolution . . . . . . . . .6.1(d)
Concurrent. . . . . . . . . . . . . . .Preamble
Concurrent Basket . . . . . . . . . . . .9.5(a)
Concurrent Nominee. . . . . . . . . .6.1(d)(ii)
Concurrent Reports. . . . . . . . . . . .5.4(a)
Concurrent Shares . . . . . . . . . . . . . 2.2
Debenture . . . . . . . . . . . . . . . .6.1(i)
Effective Date. . . . . . . . . . . . .Preamble
Exchange Act. . . . . . . . . . . . . . 4.20(a)
Financial Statements. . . . . . . . . . . .4.18
First Loan. . . . . . . . . . . . . . . . . 2.3
GAAP. . . . . . . . . . . . . . . . . . . .4.18
Indemnifying Party. . . . . . . . . . . .9.3(a)
Intercreditor Agreement . . . . . . . . .6.1(j)
Loans . . . . . . . . . . . . . . . . . . . 2.3
Loan Stock Instrument . . . . . . . . . . . 2.3
Loan Stock Instrument Shares. . . . . . . . 2.1
Major Actions . . . . . . . . . . . .6.1(d)(iv)
Material Adverse Change . . . . . . . . . . 4.9
nCube Dissolution Agreement . . . . . 6.1(h)(i)
Oracle Cure Agreement . . . . . . . .6.1(h)(ii)
Oracle Debenture. . . . . . . . . . 6.1(h)(iii)
Patent License Agreement. . . . . . . . .6.1(f)
Purchase Price. . . . . . . . . . . . . . . 2.2
Registration Rights Agreement . . . . . .6.1(k)
Reseller Agreement. . . . . . . . . . . .6.1(f)
SEC . . . . . . . . . . . . . . . . . . 4.20(a)
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Second Loan . . . . . . . . . . . . . . . . 2.3
Second Loan Conditions. . . . . . . . . . . 8.2
Second Loan Date. . . . . . . . . . . . . . 2.3
Securities Act. . . . . . . . . . . . . 4.20(c)
Shares. . . . . . . . . . . . . . . . . . . 2.1
Subsidiaries. . . . . . . . . . . . . . . . 4.3
Subsidiary. . . . . . . . . . . . . . . . . 4.3
Transfer. . . . . . . . . . . . . . . . . . 7.1
Warrant . . . . . . . . . . . . . . . . . . 2.1
Warrant Shares. . . . . . . . . . . . . . . 2.1
2. Authorization and Subscription of the Shares, Warrants and Loan Stock
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Instrument.
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2.1 Authorization. The Company has authorized the issuance and
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subscription by Concurrent, pursuant to the terms and conditions hereof, of
(i) 1,220,601 C ordinary shares (hereinafter defined) (the "SHARES"), (ii)
a warrant to purchase 400,000 C ordinary shares (the "WARRANT SHARES") the
form of which is attached hereto as Exhibit A (the "WARRANT") and (iii) the
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Loan Stock Instrument (as hereinafter defined) together with the C ordinary
shares issuable upon the conversion of the Loan Stock Instrument, in
accordance with their terms (the "LOAN STOCK INSTRUMENT SHARES").
2.2 Issuance and Subscription of Shares. Subject to the terms and
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conditions hereof, at the Closing (as defined hereafter), the Company will
issue and sell to Concurrent and Concurrent agrees to purchase from the
Company the Shares at a purchase price of U.S. $5.73 per Share or a total
purchase price of U.S. $7,000,000 (the "PURCHASE PRICE"). The Purchase
Price shall be paid at Closing by delivery to the Company of (i) a number
of shares of Concurrent Common Stock (the "CONCURRENT SHARES"), having an
aggregate value at Closing equal to U.S. $3,000,000 (or such amount in
excess of U.S. $3,000,000 as shall represent the aggregate value of that
number of whole shares of Concurrent Common Stock having an aggregate value
at Closing that approximately equals (but is not less than) U.S.
$3,000,000), and (ii) cash in U.S. dollars in an amount equal to the
difference between (x) the Purchase Price and (y) the aggregate value of
the Concurrent Shares delivered at Closing. For purposes of this Agreement,
each Concurrent Share shall be deemed to have a value at Closing equal to
the average of the closing prices of a share of Concurrent Common Stock for
the twenty (20) consecutive trading days ending on the fifth (5th) trading
day immediately prior to the Closing.
2.3 Issuance and Subscription of Warrant and Loan Stock Instrument.
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Subject to the terms and conditions hereof, at the Closing (as defined
hereafter), as additional consideration for the payment of the Purchase
Price, the making of the Loans and the other transactions contemplated
hereby, the Company will (i) issue and sell the Warrant to Concurrent and
(ii) execute and deliver the Loan Stock Instrument. Subject to the terms
and upon the conditions set forth in this Agreement, Concurrent agrees to
make loans to the Company in an aggregate principal amount of U.S.
$6,000,000 (the "LOANS"). The Loans will be made in two borrowings in the
principal amount of U.S. $3,000,000 each (the "FIRST LOAN" and the "SECOND
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LOAN"). Each Loan shall be evidenced by, and repayable in accordance with,
a loan stock instrument substantially in the form attached hereto as
Exhibit B (the "LOAN STOCK INSTRUMENT"). The First Loan will be made on the
Closing Date. Subject to satisfaction in full of the Second Loan Conditions
(as hereinafter defined), the Second Loan will be made on September 3, 2002
(the "SECOND LOAN DATE").
3. Closing; Delivery of Shares and Warrant.
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3.1 Closing. The closing of the purchase and subscription of the
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Shares and the Warrant (the "CLOSING") shall take place at the offices of
Xxxxxxxx Xxxxxxx at 5 p.m. (Atlanta Time) on March 19, 2002 (the "CLOSING
DATE") or at such other time as the Company and Concurrent may agree.
3.2 Deliveries. Subject to the terms of this Agreement, at the
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Closing, upon delivery to the Company by Concurrent of the Purchase Price
and the First Loan, the Company shall deliver to Concurrent (i) a share
certificate or certificates representing the Shares and confirmation that
the Shares have been registered in the name of Concurrent, (ii) the Warrant
and confirmation that the Warrant has been registered in the name of
Concurrent and (iii) the Loan Stock Instrument.
4. Representations and Warranties of the Company. As a contractual term of
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the contract being entered into herein by Concurrent, for the subscription of
the Shares and the Warrant hereunder, and to make the Loans and enter into the
other transactions contemplated hereby, except as set forth in the Disclosure
Schedule attached hereto as Schedule A, the Company represents and warrants to
Concurrent as follows:
4.1 Organization and Standing. The Company is a company duly organized
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and validly existing under, and by virtue of, the laws of England and Wales
and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets,
and to carry on its business as presently conducted and as proposed to be
conducted. The Company is qualified to do business as a foreign corporation
and is in good standing in every country or jurisdiction where the nature
or conduct of its business as now conducted requires such qualification,
except where the failure to so qualify would not have a Material Adverse
Change (hereinafter defined).
4.2 Corporate Power. The Company has all requisite corporate power and
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authority to enter into this Agreement and the Ancillary Agreements to
issue and sell the Thirdspace Securities hereunder, and to carry out and
perform its obligations under the terms of this Agreement and the Ancillary
Agreements.
4.3 Subsidiaries. The Company's subsidiaries (each a "SUBSIDIARY" and
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collectively the "SUBSIDIARIES") are listed on Exhibit C to this Agreement.
Each of the Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and is
qualified to do business as a foreign corporation in each jurisdiction in
which qualification is required, except where failure to so qualify would
not have a Material Adverse Change.
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4.4 Capitalization. The authorized capital of the Company consists or
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will consist immediately following the Closing, of:
(a) 4,159,760 A ordinary shares, of which 4,159,760 shares are
issued and outstanding;
(b) 3,122,600 B ordinary shares, of which 2,815,100 shares are
issued and outstanding; and
(c) 3,183,558 C ordinary shares, of which 1,482,158 are issued
and outstanding.
(d) The outstanding A ordinary shares, B ordinary shares and C
ordinary shares of the Company have been duly authorized and validly
issued and are fully paid and were issued in accordance with all
applicable laws.
(e) Except for the rights disclosed in Schedule A (Disclosures),
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there are not outstanding any options, warrants, rights (including
conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock. A
pro-forma capitalization table setting forth the pre-closing and
post-closing capitalization of the Company following the consummation
of the transactions contemplated herein and a complete list of all of
the shareholders, optionholders and holders of any other securities of
the Company, with the number of shares, options and other securities
of the Company held by each as of the Closing is set forth on Exhibit
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D hereto. Except as provided herein or in the Amended and Restated
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Shareholders' Agreement or the Articles and except as set forth in the
Schedule A (Disclosures), the Company is not a party or subject to any
agreement or understanding and, to the knowledge of the Company, there
is no agreement or understanding between any person(s) or entity(ies)
which affects or relates to the acquisition, disposition, voting or
giving consents with respect to any of the share capital of the
Company or any officer, director or shareholder of the Company.
4.5 Authorization. Except as set forth in Schedule A (Disclosures):
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(a) All corporate action on the part of the Company, its
officers, directors and shareholders necessary for (i) the sale and
issuance of the Thirdspace Securities pursuant hereto and (ii) the
execution, performance and delivery by the Company of this Agreement
and the Ancillary Agreements have been taken or will be taken prior to
the Closing. This Agreement and the Ancillary Agreements constitute
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms or, in the case of the
Ancillary Agreements, will constitute at Closing valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditor's
rights and rules or laws concerning equitable remedies and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
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(b) At Closing, the rights, preferences, privileges and
restrictions of the Shares, the Warrant Shares and the Loan Stock
Instrument Shares are as stated in the Articles and the Amended and
Restated Shareholders' Agreement. The Shares, the Warrant Shares and
the Loan Stock Instrument Shares, when issued, sold, and delivered in
compliance with the provisions of this Agreement and the Ancillary
Agreements, for the consideration expressed herein and therein, will
be duly authorized, validly issued, fully paid, and will be free of
any liens, restrictions, adverse claims, charges or encumbrances,
except that the Shares, the Warrant Shares and the Loan Stock
Instrument Shares may be subject to restrictions on transfer under the
Articles, the Amended and Restated Shareholders' Agreement and
applicable law.
4.6 Title to Properties and Assets; Liens, etc. Except as set forth in
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Schedule A (Disclosures), the Company has good and marketable title to its
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properties and assets and good title to all its leasehold estates, in each case
subject to no mortgage, pledge, lien, encumbrance or charge, other than, or
resulting from, taxes which have not yet become due and 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 which
have not arisen otherwise than in the ordinary course of business. With respect
to the property and assets it leases, the Company is in compliance with such
leases and holds a valid leasehold interest free of any liens, claims or
encumbrances.
4.7 Intellectual Property Rights.
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(a) Rights to Intellectual Property. Except as set forth in
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Schedule A (Disclosures), the Company owns, or has the right to use,
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all patents, patent applications, trademarks, service marks, service
names, trade names, trade dress, Internet domain names, copyrights,
licenses, trade secrets or other proprietary rights necessary to
conduct its business as now being conducted and as proposed to be
conducted (collectively, the "COMPANY INTELLECTUAL PROPERTY").
(b) Third Party Claims. Except as set forth in Schedule A
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(Disclosures), the Company has not received a notice that it is
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infringing upon or otherwise acting adversely to the right or claimed
right of any person under or with respect to any of the Company
Intellectual Property, and to the Company's knowledge there is no
basis for any such claim. There are no outstanding options, licenses,
or agreements of any kind relating to the Company Intellectual
Property, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the patents, patent
applications, trademarks, service marks, service names, trade names,
trade dress, Internet domain names, copyrights, licenses, trade
secrets, or other proprietary rights of any other person or entity.
The Company is not aware of any violation by a third party of any of
the Company Intellectual Property. The Company is not aware that any
of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative
agency, that would interfere with their duties to the Company or that
would conflict with the Company's business as now being conducted and,
to the Company's knowledge, as proposed to be conducted.
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(c) Proprietary Information and Inventions Agreement. Except as
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set forth in Schedule A (Disclosures), former and current employee,
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officer and consultant of the Company has executed a proprietary
information and inventions agreement with the Company, providing for,
among other things, the confidentiality of information concerning the
business being conducted by the Company and the assignment of
inventions and proprietary information to the Company. No former or
current employee, officer or consultant of the Company has excluded
works or inventions made prior to his or her employment with the
Company from his or her assignment of inventions pursuant to such
employee, officer or consultant's proprietary information and
inventions agreement. Neither the execution nor delivery of this
Agreement or any of the Ancillary Agreements, nor the conduct of the
Company's business will, to the Company's knowledge, conflict with or
result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under
which any employee is now obligated. The Company does not believe it
is or will be necessary to utilize any inventions, trade secrets or
proprietary information of any of its employees (or people it
currently intends to hire) made prior to their employment by the
Company which use would violate the terms of any agreement with such
employees' prior employer.
4.8 Compliance with Other Instruments, None Burdensome, etc. The
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Company is not in violation of any term of the Articles or any mortgage,
indenture, contract, agreement, instrument, judgment, decree or order by
which the Company is bound or to which its properties are subject or, any
statute, rule, or regulation applicable to the Company which would
materially and adversely affect the business, assets, liabilities,
financial condition, operations and prospects of the Company. The
execution, delivery and performance of and compliance with this Agreement
and the Ancillary Agreements and the transactions contemplated hereby and
thereby will not result in any such material violation and will not be in
material conflict with or constitute a material default under any of the
foregoing and will not result in the creation of any material mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of
the Company pursuant to any of the foregoing.
4.9 Litigation, etc. Except as set forth in Schedule A (Disclosures),
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there are no actions, suits, proceedings or investigations pending or, to
the Company's knowledge, threatened against the Company, nor, to the
Company's knowledge, is there any basis therefor, which, either in any case
or in the aggregate, can reasonably be expected to result in any material
adverse change in the business, prospects, affairs or operations of the
Company or in any of its properties or assets, or in any material
impairment of the right or ability of the Company to carry on its business
as now conducted or as proposed to be conducted (any such change
constituting a "MATERIAL ADVERSE CHANGE"), and none which questions the
validity of this Agreement or any of the Ancillary Agreements or any action
taken or to be taken in connection herewith or therewith or the compliance
by the Company or any of its shareholders with the requirements of any of
the organizational documents or any shareholder agreement with respect to
the Company existing on the date hereof. The foregoing includes, without
limitation, actions, suits, proceedings or investigations pending or, to
the Company's knowledge, threatened in which the Company is a named party
from whom relief is sought which, if successful, would result in a Material
Adverse Change, involving the prior
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employment of any of the Company's employees, their use in connection with
the Company's business of any information or techniques allegedly
proprietary to any of their former employers or their obligations under any
written agreement with prior employers. The Company is not a party or
subject to any writ, order, decree or judgment and there is no action,
suit, proceeding or investigation by the Company currently pending or which
the Company intends to originate.
4.10 Consents, etc. Except as set forth in Schedule A (Disclosures),
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no consent, approval or authorization of, or designation, declaration or
filing with any governmental authority or party on the part of the Company
is required in connection with the valid execution and delivery of this
Agreement or any of the Ancillary Agreements, or the offer, sale or
issuance of the Thirdspace Securities or the consummation of any other
transaction contemplated hereby or thereby and, if required, qualifications
or filings under applicable laws which qualifications or filings, if
required, will be obtained or made and will be effective within the time
periods required by law.
4.11 Securities Laws. Subject to the accuracy of Concurrent's
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representations in Section 5 hereof, the offer, sale and issuance of the
Thirdspace Securities in conformity with the terms of this Agreement and
the Ancillary Agreements constitute transactions exempt from the
registration requirements of all applicable 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.
4.12 Agreements; Action.
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(a) Except as set forth in Schedule A (Disclosures), there are no
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material agreements, understandings or proposed transactions between
the Company and any of its affiliates or any of their respective
officers, directors or shareholders.
(b) Except as set forth in Schedule A (Disclosures), there are no
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agreements or understandings relating to the Company Intellectual
Property.
(c) Except as specifically described in Schedule A (Disclosures),
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there are no agreements or understandings with any person listed on
Exhibit D.
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(d) There are no agreements or understandings limiting or
restricting in any manner the sale by the Company of any of its
products or services to any person or in any location.
(e) Except as set forth in Schedule A (Disclosures), there are no
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agreements or understandings giving any person any preferential rights
to provide any products or services to the Company or its customers.
(f) Except as set forth in Schedule A (Disclosures), there are no
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agreements or understandings granting to any person the right to sell,
resell or distribute any product or service of the Company.
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(g) Except as set forth in Schedule A (Disclosures), all material
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contracts, agreements or instruments to which the Company is a party
are valid and binding upon the Company and the other parties thereto
and are in full force and effect and enforceable in accordance with
their terms, and neither the Company nor, to the Company's knowledge,
any other party has breached any provision of, or is in default under,
the terms thereof, and there are no existing facts or circumstances
that would prevent the work in progress of the Company or its
contracts and agreements from maturing in due course into fully
collectible accounts receivable.
4.13 Related-Party Transactions. The Company is not indebted, directly
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or indirectly, to any of its officers or directors or to any member of
their immediate families in any amount whatsoever other than in connection
with expenses or advances of expenses incurred in the ordinary course of
business or relocation expenses of employees. None of the Company's
officers or directors, or any members of their immediate families, are,
directly or indirectly, indebted to the Company (other than in connection
with purchases of A ordinary shares or B ordinary shares) or, to its
knowledge, have any direct or indirect ownership interest in any entity
with which the Company is affiliated or with which the Company has a
business relationship, or any entity which competes with the Company except
that officers, directors and/or shareholders of the Company may own stock
in (but not exceeding one percent of the outstanding capital stock of) any
publicly traded company that may compete with the Company. None of the
Company's officers or directors or any members of their immediate families
are, directly or indirectly, a party to any material contract with the
Company.
4.14 Taxes. The Company has filed all tax returns and reports as
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required by applicable laws. These returns and reports were true and
correct in all material respects at the time made. All taxes shown to be
due and payable on such returns, any assessments imposed, and, to the
Company's knowledge, all other taxes due and payable by the Company on or
before the Closing, have been paid or will be paid prior to the time they
become delinquent. The provision for taxes of the Company as shown in the
Financial Statements (as defined in Section 4.18 of this Agreement) is
adequate for taxes due or accrued as of the date thereof. The Company has
not been advised (a) that any of its tax returns have been or are being
audited as of the date hereof or (b) of any deficiency in assessment or
proposed adjustment to its taxes. The Company has no knowledge of any
liability for any tax to be imposed upon its properties or assets as of the
date of this Agreement that is not adequately provided for. Since the date
of the Financial Statements, the Company has not incurred any taxes,
assessments or governmental charges other than in the ordinary course of
business and the Company has made adequate provisions on its books of
account for all taxes, assessments and governmental charges with respect to
its business, properties and operations for such period. The Company has
withheld or collected from each payment made to each of its employees, the
amount of all taxes required to be withheld or collected therefrom, and has
paid the same to the proper tax receiving authorities or authorized
depositories.
4.15 Insurance. Except as set forth in Schedule A (Disclosures), the
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Company maintains insurance which is customary in its industry and which is
commercially reasonable given the risks involved in the business conducted
by the Company.
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4.16 Brokers or Finders; Other Offers. The Company has not incurred,
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and will not incur, directly or indirectly, as a result of any action taken
by the Company, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement or any
of the Ancillary Agreements.
4.17 Permits; Compliance with Law. The Company has all permits,
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licenses and any similar authority necessary for the conduct of its
business, the lack of which would materially and adversely affect the
business, properties, prospects, and financial condition of the Company,
and the Company believes it can obtain, without undue burden or expense,
any similar authority for the conduct of its business as planned to be
conducted. The Company is not in default in any material respect under any
of such permit, license or other similar authority. The Company has
conducted, and is currently conducting, its business so as to comply with
all applicable statutes, ordinances, rules, regulations and orders of any
governmental authority. The Company is not currently charged with or, to
the Company's knowledge, under governmental investigation with respect to,
any actual or alleged violation of any statute, ordinance, rule or
regulation. Neither the execution and delivery of this Agreement or any of
the Ancillary Agreements, nor the consummation of the transactions
contemplated hereby will result in the termination of any license,
certificate, permit or similar right held by the Company.
4.18 Financial Statements. The Company has delivered to Concurrent its
--------------------
audited financial statements (balance sheet and profit and loss statement,
statement of stockholders' equity and statement of cash flows, including
notes thereto) at December 31, 2000 (the "2000 STATEMENTS") and its audited
financial statements (balance sheet and profit and loss statement,
statement of stockholders' equity and statement of cash flows, including
notes thereto) at December 31, 2001 for the twelve (12) month period then
ended (the "2001 STATEMENTS") (the 2000 Statements and the 2001 Statements
are hereinafter referred to as the "FINANCIAL STATEMENTS"). The Financial
Statements were prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods indicated
and present a true and fair view of the financial condition and operating
results of the Company as of the respective dates, and for the respective
periods, indicated therein, subject to normal year-end audit adjustments.
Except as set forth in the balance sheet at December 31, 2001, the Company
has no material liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to
December 31, 2001, and (ii) obligations under contracts and commitments
incurred in the ordinary course of business that would not be required to
be reflected in financial statements prepared in accordance with GAAP,
which, in the case of both clause (i) and (ii), individually or in the
aggregate, are not material to the financial condition or operating results
of the Company. The Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation. The Company
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with GAAP.
4.19 Changes. Since December 31, 2001, there has not been:
-------
(a) Except as set forth in Schedule A (Disclosures), any change
------------------------
in the assets, liabilities, financial condition or operating results of the
Company from that
11
reflected in the Financial Statements, except changes in the ordinary
course of business that have not resulted in, individually or in the
aggregate, a Material Adverse Change and are not reasonably likely, to the
Company's knowledge, to result in, individually or in the aggregate, a
Material Adverse Change;
(b) any damage, destruction or loss, whether or not covered by
insurance, that has resulted in, individually or in the aggregate, a
Material Adverse Chance or is, to the Company's knowledge, reasonably
likely to result in, individually or in the aggregate, a Material Adverse
Change affecting the assets, properties, financial condition, operating
results, prospects or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a
material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the
ordinary course of business and that have not resulted in, individually or
in the aggregate, a Material Adverse Change and, to the Company's
knowledge, are not reasonably likely to result in, individually or in the
aggregate, a Material Adverse Change;
(e) any material change or amendment to a material contract or
arrangement by which the Company, or any of its respective assets or
properties is bound or subject;
(f) any material change in any compensation arrangement or
agreement with any employee of the Company;
(g) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other Company Intellectual Property;
(h) any resignation or termination of employment of any key
officer of the Company;
(i) receipt of notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
(j) Except as set forth in Schedule A (Disclosures), any pledge,
------------------------
transfer of a security interest in, or lien, created by the Company, with
respect to any of its material properties or assets, except liens for taxes
not yet due or payable;
(k) any loans or guarantees made by the Company to or for the
benefit of its respective employees, officers or directors, or any members
of their immediate families, other than travel advances and other advances
made in the ordinary course of business;
12
(l) any declaration, setting aside or payment or other
distribution in respect of any of the Company's shares, or any direct or
indirect redemption, purchase or other acquisition of any shares by the
Company;
(m) to the Company's knowledge, any other event or condition of
any character that might result in a Material Adverse Change affecting the
assets, properties, financial condition, operating results or business of
the Company (as such business is presently conducted and as it is proposed
to be conducted with Concurrent pursuant to this Agreement or any of the
Ancillary Agreements); any agreement or commitment by the Company to do any
of the things described in this Section 4.19.
4.20 Private Placement of the Concurrent Shares. In order to induce
--------------------------------------------
Concurrent to issue the Concurrent Shares to the Company, the Company
hereby warrants, represents, covenants and agrees as follows:
(a) The Company has received and carefully reviewed Concurrent's
Annual Report on Form 10-K for the fiscal year ended June 30, 2001 and all
other filings made by Concurrent with the Securities and Exchange
Commission (the "SEC") under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
subsequent to the date of Concurrent's Annual Report on Form 10-K for the
fiscal year ended June 30, 2001. The Company acknowledges that all
documents, records and books pertaining to Concurrent requested by the
Company have been made available for inspection by it, its attorneys,
financial advisors and accountants. The Company and its advisors have had a
reasonable opportunity to ask questions of and receive answers from the
officers of Concurrent, or a person or persons acting on their behalf,
concerning Concurrent and the terms and conditions of the purchase of the
Concurrent Shares. All such questions have been answered to the full
satisfaction of the Company.
(b) The Company has such knowledge and experience in financial
and business matters as to enable it (i) to utilize the information made
available to it in connection with the purchase of the Concurrent Shares,
(ii) to evaluate the merits and risks associated with a purchase of the
Concurrent Shares, and (iii) to make an informed decision with respect
thereto.
(c) The Company is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the "SECURITIES ACT").
(d) The Company (i) has adequate means of providing for its
current liabilities and possible contingencies, (ii) has no need for
immediate liquidity in connection with a purchase of the Concurrent Shares,
(iii) is able to bear the economic risks associated with a purchase of the
Concurrent Shares for an indefinite period and has the capacity to protect
its own interests in connection with a purchase of the Concurrent Shares,
and (iv) can afford the complete loss of the value of the Concurrent
Shares.
13
(e) The Company understands that a purchase of the Concurrent
Shares involves a significant degree of risk and the Company has full
cognizance of and understands all of the risk factors related its purchase
of the Concurrent Shares, including, but not limited to, the risks set
forth in Concurrent's Current Report on Form 8-K dated October 22, 2001.
The Company understands that the market price of the Concurrent Shares has
been volatile and that no representation is being made as to the future
value of the Concurrent Shares.
(f) The Company understands that (i) neither the offering nor the
sale of the Concurrent Shares has been registered under the Securities Act
in reliance upon exemptions from the registration provisions of the
Securities Act, (ii) the Concurrent Shares purchased by the Company must be
held by it until the sale or transfer thereof is subsequently registered
under the Securities Act, or an exemption from such registration is
available, and the certificates representing all the Concurrent Shares will
be legended to reflect such restrictions, (iii) Concurrent is under no
obligation to register any of the Concurrent Shares on the Company's behalf
or to assist the Company in complying with any exemption from registration,
other than as set forth in the Registration Rights Agreement (hereinafter
defined) and (iv) the officers of Concurrent will rely upon the
representations and warranties made by the Company in this Agreement in
order to establish such exemption from the registration provisions of the
Securities Act.
(g) The Company understands that (i) neither the offering nor the
sale of the Concurrent Shares has been registered or qualified for sale
under the securities laws of any state or foreign jurisdiction (as
applicable), (ii) the Concurrent Shares purchased by the Company must be
held by it indefinitely unless the sale or transfer thereof is subsequently
registered or qualified for sale under applicable state or foreign
securities laws, or an exemption from such registration or qualification is
available, and the certificates representing all the Concurrent Shares will
be legended to reflect such restrictions, (iii) Concurrent is under no
obligation to register or qualify for sale any of the Concurrent Shares on
the Company's behalf or to assist the Company in complying with any
exemption from registration or qualification under state or foreign
securities laws, other than as set forth in the Registration Rights
Agreement and (iv) that the officers of Concurrent will rely upon the
representations and warranties made by the Company in this Agreement in
order to establish such exemptions from registration or qualification under
state or foreign securities laws.
(h) The Company will not transfer any of the Concurrent Shares
unless such transfer is (i) registered under the Securities Act and
applicable state or foreign securities laws or (ii) is exempt from
registration under the Securities Act and such state or foreign securities
laws, and, if requested by Concurrent, the Company has furnished an opinion
of counsel reasonably satisfactory to Concurrent that such transfer is so
exempt.
(i) The Concurrent Shares are being purchased solely for the
Company's own account and not for the account of any other person. The
Concurrent Shares are being purchased for investment purposes only, and not
for distribution, assignment or resale to others.
14
(j) The Company understands that neither the SEC nor any state or
foreign securities commission or other state or foreign regulatory agency
has made any finding or determination relating to the fairness for public
investment of the Concurrent Shares to be purchased by the Company and that
no such commission or agency has recommended or endorsed or will recommend
or endorse the purchase of the Concurrent Shares.
4.21 Oracle. The nCube Dissolution Agreement, the Oracle Cure
------
Agreement and the Oracle Debenture are valid and binding upon the Company
and, to the Company's knowledge, the other parties thereto and are in full
force and effect and enforceable in accordance with their terms, and
neither the Company nor, to the Company's knowledge, any other party has
breached any provision of, or is in default under, the terms thereof. The
consummation of the transactions contemplated by the Oracle Cure Agreement
(i) has not resulted in, and is not reasonably expected to result in, a
Material Adverse Change and (ii) has not created, and is not reasonably
expected to created, any adverse tax liability of the Company.
4.22 Disclosure. To the Company's knowledge having made all proper
----------
inquiries of all relevant employees and directors of the Company, neither
this Agreement, Schedule A (Disclosures), the Exhibits hereto, the
-------------------------
Ancillary Agreements, nor any other certificate made or delivered by the
Company to Concurrent in connection herewith or therewith, contains any
untrue statement of a material fact nor omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which they were made.
5. Representations and Warranties by Concurrent. Concurrent represents and
--------------------------------------------
warrants to the Company as follows:
5.1 Organization and Standing. Concurrent is a company duly organized
-------------------------
and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. Concurrent has the
requisite corporate power and authority to own and operate its properties
and assets, and to carry on its business as presently conducted and as
proposed to be conducted. Concurrent is qualified to do business as a
foreign corporation and is in good standing in every country or
jurisdiction where the nature or conduct of its business as now conducted
requires such qualification, except where the failure to so qualify would
not have a material adverse change in the business, prospects, affairs or
operations of Concurrent or in any of its properties or assets, or in any
material impairment of the right or ability of Concurrent to carry on its
business as now conducted or as proposed to be conducted.
5.2 Corporate Power. Concurrent has all requisite corporate power and
---------------
authority to enter into this Agreement and the Ancillary Agreements and to
carry out and perform its obligations under the terms of this Agreement and
the Ancillary Agreements. Concurrent has all requisite corporate power and
authority to issue and sell the Concurrent Shares hereunder.
5.3 Authorization.
-------------
15
(a) Concurrent has the full right, power and authority to enter
into and perform its obligations under this Agreement and the Ancillary
Agreements to which it is a party, and this Agreement and the Ancillary
Agreements to which it is a party constitute valid and binding obligations
of Concurrent enforceable in accordance with their terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting enforcement of
creditor's rights and rules or laws concerning equitable remedies, (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, if any, contained in the Rights Agreement may
be limited by applicable laws.
(b) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of
Concurrent is required in connection with the valid execution and delivery
by Concurrent of this Agreement and the Ancillary Agreements to which it is
a party.
(c) The Concurrent Shares, when issued, sold, and delivered in
compliance with the provisions of this Agreement and the Ancillary
Agreements, for the consideration expressed herein, will be duly
authorized, validly issued, fully paid, and non-assessable and will be free
of any liens, restrictions, adverse claims, charges or encumbrances, except
that the Concurrent Shares may be subject to restrictions on transfer under
applicable law or otherwise described in this Agreement or the Ancillary
Agreements.
5.4 Concurrent Reports; Financial Statements.
-------------------------------------------
(a) Concurrent has filed all forms, reports, statements and all
other documents required to be filed by Concurrent with the SEC since
January 1, 2001 (the "CONCURRENT REPORTS"), each of which has complied in
all material respects with the applicable requirements of the Securities
Act, and the rules and regulations promulgated thereunder, and the Exchange
Act, and the rules and regulations promulgated thereunder, each as in
effect on the date so filed.
(b) All of the financial statements included in the Concurrent
Reports have been prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the
notes thereto) and fairly present in all material respects the consolidated
financial position of Concurrent and each of its subsidiaries at the
respective date thereof and the consolidated results of its operations and
changes in cash flows for the periods indicated.
5.5 Investment.
----------
(a) The Thirdspace Securities are being or will be acquired for
Concurrent's own account, and not as nominee or agent, for investment and
not with a view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act or other
applicable U.S. state securities laws. The
16
Thirdspace Securities are being or will be purchased for investment
purposes only and not for distribution, assignment or resale to others.
(b) Concurrent understands that the Thirdspace Securities have
not been registered under the Securities Act by reason of their issuance in
a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act pursuant to Section 4(2) thereof, that
the Company has no present intention of registering the Thirdspace
Securities, that the Thirdspace Securities must be held by Concurrent
indefinitely, and that Concurrent must therefore bear the economic risk of
such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from registration.
Concurrent further understands that the Thirdspace Securities have not been
qualified or registered under any applicable U.S. state securities laws by
reason of their issuance in a transaction exempt from the qualification or
registration requirements of such laws, which exemption depends upon, among
other things, the bona fide nature of Concurrent's investment intent
expressed above.
(c) Concurrent (i) is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act
and has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of Concurrent's
prospective investment in the Thirdspace Securities; (ii) has the ability
to bear the economic risks of Concurrent's prospective investment,
including a complete loss of Concurrent's investment in the Thirdspace
Securities; (iii) has been furnished with and has had access to such
information as Concurrent has considered necessary to make a determination
as to the purchase of the Thirdspace Securities together with such
additional information as is necessary to verify the accuracy of the
information supplied; (iv) has had a reasonable opportunity to ask
questions of and receive answers from the officers of the Company, or a
person or persons acting on their behalf, concerning the Company and the
terms and conditions of the purchase of the Thirdspace Securities; (v) has
had all questions which have been asked by Concurrent satisfactorily
answered by the Company; and (vi) has not been offered the Thirdspace
Securities by any form of advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any such media.
(d) Concurrent will not transfer any of the Thirdspace Securities
unless such transfer is (i) registered under the Securities Act and
applicable state and foreign securities laws or (ii) is exempt from
registration under the Securities Act and such state and foreign securities
laws, and, if requested by the Company, Concurrent has furnished an opinion
of counsel reasonably satisfactory to the Company that such transfer is so
exempt.
(e) Concurrent understands that neither the SEC nor any state or
foreign securities commission or other state or foreign regulatory agency
has made any finding or determination relating to the fairness for public
investment of the Thirdspace Securities to
17
be purchased by Concurrent and that no such commission or agency has
recommended or endorsed or will recommend or endorse the purchase of the
Thirdspace Securities.
(f) Legend. Upon issuance, the Thirdspace Securities shall be
imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED.
together with any legend required under applicable state and
foreign securities laws; provided, however, that as soon as practicable
following the Closing Date, Thirdspace shall use its reasonable best
efforts to include a substantially similar legend on any of its A ordinary
shares and C ordinary shares previously issued to any of its shareholders
pursuant to exemptions from registration under United States federal
securities laws, if such certificates are not already so legended.
5.6 Securities Laws. Subject to the accuracy of the Company's
----------------
representations in Section 4 hereof, the offer, sale and issuance of the
Concurrent Shares in conformity with the terms of this Agreement and the
Ancillary Agreements constitute transactions exempt from the registration
requirements of all applicable securities laws, and neither Concurrent nor
any authorized agent acting on its behalf will take any action hereafter
that would cause the loss of such exemption.
6. Conditions to Closing.
-----------------------
6.1 Conditions to Obligations of Concurrent. The obligation of
-------------------------------------------
Concurrent to purchase the Shares and the Warrant and to make the First
Loan at the Closing is subject to the fulfillment on or prior to the
Closing Date of the following conditions, any of which may be waived by
Concurrent:
(a) Representations and Warranties Correct; Performance of
-----------------------------------------------------------
Obligations. The representations and warranties made by the Company in
-----------
Section 4 above shall be true, correct and complete on the Closing Date;
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing Date.
(b) Consents and Waivers. The Company shall have obtained any and
--------------------
all consents (including all governmental or regulatory consents, approvals
or authorizations required in connection with the valid execution and
delivery of this Agreement or any of the Ancillary Agreements), permits and
waivers necessary or appropriate for consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
18
(c) Compliance Certificate. The Company shall have delivered to
Concurrent a certificate, executed by the Chief Executive Officer of the
Company, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in subsections (a), (b), (d) and (g) of this Section
6.1.
(d) Board of Directors Resolution. The Company's Board shall have
executed and delivered to Concurrent a resolution (the "CLOSING DATE
RESOLUTION") of the Company's Board that:
(i) increases the size of the Company's Board by 1 member;
(ii) appoints Concurrent's Chief Executive Officer (the
"CONCURRENT NOMINEE") to the Company's Board;
(iii) defines the responsibilities of the managers of the
Company substantially in accordance with Exhibit E hereto;
----------
(iv) specifies that (A) the Company shall not take any
action with respect to the major actions described in Exhibit F hereto
---------
(the "MAJOR ACTIONS") without the prior approval of the Company's
Board and (B) prohibits the Company's Board from delegating
responsibilities or decision authority with respect to any Major
Actions to any committee of the Company's Board;
(v) confirms that the directors of the Company, having made
all proper enquiries of all relevant employees and directors of the
Company, are satisfied that neither this Agreement, Schedule A
-----------
(Disclosures), the Exhibits hereto, the Ancillary Agreements, nor any
-------------
other certificate made or delivered by the Company to Concurrent in
connection herewith or therewith, contains any untrue statement of a
material fact nor omits to state a material fact necessary in order to
make the statements contained herein or therein not misleading in
light of the circumstances in which they were made; and
(vi) properly allots and issues the Shares, the Warrant and
the Loan Stock Instrument to Concurrent.
The Closing Date Resolution shall have not been repealed or amended and
shall be in full force and effect as of the Closing Date.
(e) Approval by Concurrent Board. Concurrent's board of directors
----------------------------
shall have approved this Agreement, the Ancillary Agreements and the
transactions contemplated hereby and thereby.
(f) Strategic Relationship Agreements. The Patent License
-----------------------------------
Agreement executed by the Company and Concurrent as of February 28, 2002, a
copy of which is attached hereto as Exhibit G (the "PATENT LICENSE
AGREEMENT") shall be in full force and effect as of the Closing Date. The
Company and Concurrent shall have executed and
19
delivered a Reseller Agreement substantially in the form attached hereto as
Exhibit H (the "RESELLER AGREEMENT"), and a Strategic Alliance Agreement
substantially in the form attached hereto as Exhibit I (the "STRATEGIC
ALLIANCE AGREEMENT"), and the Reseller Agreement and the Strategic Alliance
Agreement shall be in full force and effect.
(g) Approval by the Company Shareholders. The Company's
----------------------------------------
shareholders shall have approved the terms and provisions of the Articles
and the Amended and Restated Shareholders' Agreement.
(h) Approval by Concurrent of Third-Party Agreements.
-----------------------------------------------------
(i) Concurrent shall have approved the terms and provisions
of the nCube Dissolution Agreement dated as of February 27, 2002, a
copy of which is attached hereto as Exhibit J (the "NCUBE DISSOLUTION
---------
AGREEMENT"), and the nCube Dissolution Agreement shall be in full
force and effect as of the Closing Date.
(ii) Concurrent shall have approved the terms and provisions
of the Settlement Agreement dated as of March 1, 2002, a copy of which
is attached hereto as Exhibit K (the "ORACLE CURE AGREEMENT"), and the
---------
Oracle Cure Agreement shall be in full force and effect as of the
Closing Date.
(iii) Concurrent shall have approved the terms and
provisions of the Oracle Debenture dated as of March 1, 2002, a copy
of which is attached hereto as Exhibit L (the "ORACLE DEBENTURE") and
---------
the Oracle Debenture shall be in full force and effect as of the
Closing Date.
(i) Debenture. The Company shall have executed and delivered the
---------
Debenture substantially in the form attached hereto as Exhibit M (the
---------
"DEBENTURE"), and the Debenture shall be in full force and effect. The
Debenture shall have created a valid and enforceable lien on the assets of
the Company described therein with the priority as to other liens and right
to proceeds described therein.
(j) Intercreditor Agreement. Oracle, Alcatel and Concurrent shall
-----------------------
have executed and delivered the Deed of Priority substantially in the form
attached hereto as Exhibit N (the "INTERCREDITOR AGREEMENT"), and the
----------
Intercreditor Agreement shall be in full force and effect.
(k) Registration Rights Agreement. Concurrent and the Company
-------------------------------
shall have executed and delivered the Registration Rights Agreement
substantially in the form attached hereto as Exhibit O (the "REGISTRATION
---------
RIGHTS AGREEMENT"), and the Registration Rights Agreement shall be in full
force and effect.
6.2 Conditions to Obligations of the Company. The Company's obligation
----------------------------------------
to sell and issue the Shares and the Warrant at the Closing is subject to
the fulfillment on or prior to the Closing of the following conditions, any
of which may be waived by the Company:
20
(a) Representations and Warranties. The representations and
--------------------------------
warranties made by Concurrent in Section 5 hereof shall be true, correct
and complete on the Closing Date; and Concurrent shall have performed all
obligations and conditions herein required to be performed or observed by
it on or prior to the Closing Date.
(b) Payment of Purchase Price and First Loan. The Company shall
-----------------------------------------
have received from Concurrent the Purchase Price and the First Loan.
(c) Consents and Waivers. Concurrent shall have obtained any and
--------------------
all consents (including all governmental or regulatory consents, approvals
or authorizations required in connection with the valid execution and
delivery of this Agreement or any of the Ancillary Agreements), permits and
waivers necessary or appropriate for consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
(d) Strategic Relationship Agreements. The Patent License
-----------------------------------
Agreement shall be in full force and effect as of the Closing Date, and the
Company and Concurrent shall have executed and delivered the Reseller
Agreement and the Strategic Alliance Agreement, and the Reseller Agreement
and the Strategic Alliance Agreement shall be in full force and effect as
of the Closing Date.
(e) Intercreditor Agreement. Oracle and Concurrent shall have
------------------------
executed and delivered the Intercreditor Agreement, and the Intercreditor
Agreement shall be in full force and effect.
(f) Registration Rights Agreement. Concurrent and the Company
-------------------------------
shall have executed and delivered the Registration Rights Agreement, and
the Registration Rights Agreement shall be in full force and effect.
(g) Compliance Certificate. Concurrent shall have delivered to
-----------------------
the Company a certificate, executed by the Chief Executive Officer of
Concurrent, dated as of the Closing Date, certifying to the fulfillment of
the conditions specified in subsections (a) and (c) of this Section 6.2.
7. Covenants.
---------
7.1 Restrictions on Concurrent Shares.
------------------------------------
(a) Notwithstanding the registration of the Concurrent Shares,
the Company hereby agrees and covenants that (i) the Company shall not
sell, assign, transfer, pledge, hypothecate, encumber or dispose of by gift
or otherwise ("TRANSFER") including without limitation any Transfer in
whole or in part by merger, consolidation, sale of stock, sale of assets or
otherwise, fifty percent (50%) of the Concurrent Shares prior to Xxxxxx 0,
0000, (xx) the Company shall not Transfer including without limitation any
Transfer in whole or in part by merger, consolidation, sale of stock, sale
of assets or otherwise, an additional twenty-five percent (25%) of the
Concurrent Shares prior to the date that is 270 days after the Closing
Date, and (iii) the Company shall not Transfer including without limitation
any Transfer
21
in whole or in part by merger, consolidation, sale of stock, sale of assets
or otherwise, the remaining twenty-five percent (25%) of the Concurrent
Shares prior to the date that is one (1) year after the Closing Date;
provided, however, that the term "Transfer," as used in this Section 7.1,
shall not include (a) transfers or assignment of the Concurrent Shares by
the Company to one or more wholly-owned subsidiaries of the Company or in
connection with a merger or consolidation in which the holders of the
Thirdspace Securities outstanding immediately prior to the transaction
constitute all the holders of the Thirdspace Securities of the Company or
the surviving entity outstanding immediately following the transaction, (b)
the Company establishing or effecting a collar, hedge or other similar
arrangement in connection with the Concurrent Shares through a broker
during such periods of restriction, (c) general liens created by operation
of law on the assets of the Company or (d) if approved by the shareholders
of the Company in accordance with Article 14.1 the Articles, transfers or
assignment of the Concurrent Shares in connection with a transaction
referenced in Article 14.1.4 of the Articles. The certificates representing
the Concurrent Shares will be legended to reflect the restrictions of this
Section 7.1, and any purported Transfer of Concurrent Shares in violation
of this Section 7.1 shall be void and shall have no force or effect.
(b) The Company will not transfer any of the Concurrent Shares
unless such transfer is (i) registered under the Securities Act and
applicable state or foreign securities laws or (ii) is exempt from
registration under the Securities Act and such state or foreign securities
laws, and, if requested by Concurrent, the Company has furnished an opinion
of counsel reasonably satisfactory to Concurrent that such transfer is so
exempt.
7.2 Restrictions on Thirdspace Securities. Concurrent will not
----------------------------------------
transfer any of the Thirdspace Securities unless such transfer is (i)
registered under the Securities Act and applicable state and foreign
securities laws or (ii) is exempt from registration under the Securities
Act and such state and foreign securities laws, and, if requested by the
Company, Concurrent has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt.
7.3 Reservation of Capital Shares. On each date on which any notice is
-----------------------------
delivered by Concurrent to the Company pursuant to any Ancillary Agreement
to exercise or convert the Warrant or Loan Stock Instrument (as the case
may be) into any Warrant Shares or Loan Stock Instrument Shares (as the
case may be), the Company shall procure that the Company has sufficient
authorized, allotted and unissued Capital Shares to enable such exercise or
conversion to take place (and that the Company has the necessary authority
under s80 of the Companies Xxx 0000 and any other required corporate
authorities to enable such exercise or conversion to take place). Upon the
consummation of the actions required under this Section 7.3 and the Warrant
or Loan Stock Instrument (as the case may be), the Warrant Shares and Loan
Stock Instrument Shares for which Concurrent has delivered a notice to
exercise or convert (as the case may be) will have been duly authorized and
validly issued and will be fully paid and will have been issued in
accordance with all applicable laws.
22
8. Loans.
-----
8.1 Repayment of Loans. The Company agrees to pay or cause to be paid
------------------
to Concurrent any and all principal and interest due in respect of the Loan
Stock Instrument according to its terms, which terms are incorporated
herein in their entirety. The Company expressly agrees that to the extent
the Company makes a payment or payments to Concurrent, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or are required to be repaid to a
trustee, receiver or other party under any bankruptcy or insolvency law
with the effect that Concurrent is required to either pay or repay the
amount in question or never receives such amount, then to the extent of
such payment or payments, the obligations of the Company intended to be
satisfied by such payment or payments shall be revived and continued in
full force and effect as if said payment or payments had not been made.
8.2 Second Loan Conditions. The Second Loan shall not be made
------------------------
hereunder unless on the date of the borrowing in respect of the Second Loan
(the "SECOND LOAN CONDITIONS"):
(a) First Loan. The First Loan shall have been made in accordance
----------
with the terms hereof and no breach or default shall exist and be
continuing with respect to any liability or obligation of the Company in
respect of the First Loan.
(b) No Default. No breach or default shall have occurred and be
-----------
continuing with respect to any obligation or liability of the Company under
(i) this Agreement, (ii) any Ancillary Agreement or (iii) Oracle Cure
Agreement or the Oracle Debenture. For the purposes of determining whether
a breach or default has occurred under the Loan Stock Instrument or the
Debenture, a breach or default shall have occurred only upon the occurrence
of an Event of Default.
(c) Representations and Warranties True and Correct. The
----------------------------------------------------
representations and warranties made by the Company in Section 4 above and
in each Ancillary Agreement, as supplemented and delivered in a form
similar to Schedule A (Disclosures) to Concurrent on or prior to the Second
Loan Date, shall be true, correct and complete on the Second Loan Date; and
the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Second Loan
Date.
(d) Material Adverse Change. The Company shall not have suffered
-----------------------
a Material Adverse Change which has not been at least equally offset or
compensated for by a material positive event or matter in favour of the
Company. Further, the definition of "Material Adverse Change" as used in
this Section 8.2(d) shall not include (alone or in combination with any
other event identified in this proviso): (i) any change, event,
circumstance, development or effect attributable to conditions generally
affecting the economy as a whole; or (ii) any change, event, circumstance,
development or effect attributable to conditions generally affecting the
industry as a whole in which the Company participates.
23
(e) Debenture. The Debenture shall be in full force and effect as
---------
of such date. The Debenture shall have created a valid and enforceable lien
on the assets of the Company described therein with the priority as to
other liens and right to proceeds described therein.
(f) Intercreditor Agreement. The Intercreditor Agreement shall be
-----------------------
in full force and effect as of such date.
(g) Amended and Restated Shareholders' Agreement. The Amended and
--------------------------------------------
Restated Shareholders' Agreement shall be in full force and effect as of
such date.
(h) No Event of Default; No Commercial Fallout. No Event of
-----------------------------------------------
Default and no Commercial Fallout shall have occurred under any Ancillary
Agreement as of such date.
(i) Compliance Certificate. The Company shall have delivered to
-----------------------
Concurrent a certificate executed by the Chief Executive Officer of the
Company, dated the Second Loan Date, certifying to the fulfillment of the
conditions specified in subsections (a), (b), (c), (d), (e), (f), (g) and
(h) of this Section 8.2.
9. Indemnification.
---------------
9.1 Indemnification Obligations of the Company. Subject to (i) the
---------------------------------------------
indemnification provisions contained in the Registration Rights Agreement
(which shall control the indemnification obligations of the parties hereto
with respect to the Registration Rights Agreement) and (ii) any limitations
of liability or exclusion of damages specifically set forth in any of the
Ancillary Agreements, the Company will indemnify, defend and hold harmless
the Concurrent Indemnified Parties from, against and in respect of any and
all claims, liabilities, obligations, losses, costs, expenses, penalties,
fines and judgments (at equity or at law) and damages whenever arising or
incurred (including, without limitation, amounts paid in settlement, costs
of investigation and reasonable attorneys' fees and expenses) arising out
of or relating to:
(a) any breach of any representation or warranty made by the
Company in this Agreement or in any of the Ancillary Agreements; or
(b) any breach of any covenant, agreement or undertaking made by
the Company in this Agreement or in any of the Ancillary Agreements.
9.2 Indemnification Obligations of Concurrent. Subject to (i) the
--------------------------------------------
indemnification provisions contained in the Registration Rights Agreement
(which shall control the indemnification obligations of the parties hereto
with respect to the Registration Rights Agreement) and (ii) any limitations
of liability or exclusion of damages specifically set forth in any of the
Ancillary Agreements, Concurrent will indemnify and hold harmless the
Company Indemnified Parties from, against and in respect of any and all
claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and judgments (at equity or at law, including statutory and common) and
damages whenever arising or incurred (including,
24
without limitation, amounts paid in settlement, costs of investigation and
reasonable attorneys' fees and expenses) arising out of or relating to:
(a) any breach of any representation or warranty made by
Concurrent in this Agreement or in any of the Ancillary Agreements; or
(b) any breach of any covenant, agreement or undertaking made by
Concurrent in this Agreement or in any of the Ancillary Agreements.
9.3 Indemnification Procedure.
--------------------------
(a) Promptly after receipt by an Indemnified Party of notice by a
third party (including any governmental entity) of any complaint or the
commencement of any audit, investigation, action or proceeding with respect
to which such Indemnified Party may be entitled to receive payment from the
other party for any Concurrent Losses or Company Losses (as the case may
be), such Indemnified Party will notify Concurrent or the Company, as the
case may be (the "INDEMNIFYING PARTY"), in writing promptly following the
Indemnified Party's receipt of such complaint or of notice of the
commencement of such audit, investigation, action or proceeding; provided,
--------
however, that the failure to so notify the Indemnifying Party will relieve
-------
the Indemnifying Party from liability under this Agreement with respect to
such claim only if, and only to the extent that, such failure to notify the
Indemnifying Party results in the forfeiture by the Indemnifying Party of
rights and defenses otherwise available to the Indemnifying Party with
respect to such claim. The Indemnifying Party will have the right, upon
written notice delivered to the Indemnified Party within ten (10) days
thereafter assuming full responsibility for any Concurrent Losses or
Company Losses (as the case may be) resulting from such audit,
investigation, action or proceeding, to assume the defense of such audit,
investigation, action or proceeding. In any audit, investigation, action or
proceeding for which the Indemnifying Party has assumed the defense, the
Indemnified Party will have the right to participate in such matter and to
retain its own counsel at the Indemnified Party's own expense. The
Indemnifying Party will at all times use reasonable efforts to keep the
Indemnified Party reasonably apprised of the status of the defense of any
matter the defense of which the Indemnifying Party has assumed, and the
Indemnified Party shall cooperate in good faith with the Indemnifying Party
with respect to the defense of any such matter. In the event, however, that
the Indemnifying Party declines or fails to assume the defense of the
audit, investigation, action or proceeding on the terms provided above
within such ten (10)-day period, then such Indemnified Party may employ
counsel reasonably satisfactory to the Indemnifying Party to represent or
defend it in any such audit, investigation, action or proceeding and the
Indemnifying Party will pay the reasonable fees and disbursements of such
counsel as incurred (provided that Indemnifying Party shall be obligated to
pay for only one firm of counsel for the Indemnified Party in any
jurisdiction in any single audit, investigation, action or proceeding). In
any audit, investigation, action or proceeding for which the Indemnifying
Party has declined or failed to assume the defense, the Indemnifying Party
will have the right to participate in such matter and to retain its own
counsel at the Indemnifying Party's own expense. The Indemnified Party will
at all times use reasonable efforts to
25
keep the Indemnifying Party reasonably apprised of the status of the
defense of any matter the defense of which the Indemnifying Party has
declined or failed to assume and the Indemnifying Party shall cooperate in
good faith with the Indemnified Party with respect to the defense of any
such matter.
(b) No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification
is being sought hereunder without the prior written consent of the
Indemnifying Party, unless (i) the Indemnifying Party fails to assume and
maintain the defense of such claim pursuant to Section 9.3(a) or (ii) such
settlement, compromise or consent includes an unconditional release of the
Indemnifying Party and its officers, directors, employees and affiliates
from all liability arising out of such claim. An Indemnifying Party may
not, without the prior written consent of the Indemnified Party (which
consent may not be unreasonably withheld), settle or compromise any claim
or consent to the entry of any judgment with respect to which
indemnification is being sought hereunder unless (i) such settlement,
compromise or consent includes an unconditional release of the Indemnified
Party and its officers, directors, employees and affiliates from all
liability arising out of such claim, (ii) does not contain any admission or
statement suggesting any wrongdoing or liability on behalf of the
Indemnified Party and (iii) does not contain any equitable order, judgment
or term which in any manner affects, restrains or interferes with the
business of the Indemnified Party or any of the Indemnified Party's
affiliates.
(c) In the event an Indemnified Party claims a right to payment
pursuant to this Agreement, such Indemnified Party will send written notice
of such claim to the appropriate Indemnifying Party. Such notice will
specify the basis for such claim. As promptly as possible after the
Indemnified Party has given such notice, such Indemnified Party and the
appropriate Indemnifying Party will establish the merits and amount of such
claim (by mutual agreement, litigation, arbitration or otherwise) and,
within five (5) Business Days of the final determination of the merits and
amount of such claim, the Indemnifying Party will pay to the Indemnified
Party immediately available funds in an amount equal to such claim as
determined hereunder.
9.4 Claims Period. The Claims Periods under this Agreement shall begin
-------------
on the date hereof and terminate as follows:
(a) with respect to Concurrent Losses arising (i) under Section
9.1(a) with respect to any breach of any Surviving Representations or (ii)
under Section 9.1(b), the Claims Period shall terminate on the expiration
of the statute of limitations period that would be applicable to the
underlying breach giving rise to such indemnification claim under common
law;
(b) with respect to Company Losses arising (i) under Section
9.2(a) with respect to a breach of Section 5.2 or Section 5.3 or (ii) under
Section 9.2(b), the Claims Period shall terminate on the expiration of the
statute of limitations period that would be applicable to the underlying
breach giving rise to such indemnification claim under common law; and
26
(c) with respect to all other Concurrent Losses or Company Losses
arising under this Agreement, the Claims Period shall terminate on the date
that is eighteen (18) months after the Closing Date.
Notwithstanding the foregoing, if, prior to the close of business on the last
day of the applicable Claims Period, an Indemnifying Party shall have been
properly notified of a claim for indemnity hereunder and such claim shall not
have been finally resolved or disposed of at such date, such claim shall
continue to survive and shall remain a basis for indemnity hereunder until such
claim is finally resolved or disposed of in accordance with the terms hereof.
9.5 Liability Limits.
-----------------
(a) Notwithstanding anything to the contrary set forth herein,
the Concurrent Indemnified Parties shall not make a claim against the
Company for indemnification under this Section 9 for Concurrent Losses
unless and until the aggregate amount of such Concurrent Losses exceeds the
U.S. $75,000 (the "CONCURRENT BASKET"), in which event the Concurrent
Indemnified Parties may claim indemnification for all Concurrent Losses,
including the initial U.S. $75,000; provided, however, the Surviving
-------- -------
Obligations and the Surviving Representations shall not be subject to the
Concurrent Basket.
(b) Notwithstanding anything to the contrary set forth herein,
the maximum aggregate liability of the Company under this Section 9 for
Concurrent Losses shall not exceed the Purchase Price (the "AGGREGATE
LIABILITY CAP"); provided, however, the Surviving Obligations and the
-------- -------
Surviving Representations shall not be subject to the Aggregate Liability
Cap.
(c) No Indemnified Party otherwise entitled to indemnification
under this Section 9 shall be indemnified pursuant to this Section 9 to the
extent that a court of competent jurisdiction finally determines that such
Indemnified Party's losses are caused by the willful misconduct or gross
negligence of such Indemnified Party.
(d) No Indemnifying Party will be required to indemnify any
Indemnified Party under this Section 9 for any Concurrent Losses or Company
Losses (as the case may be) to the extent reimbursed by insurance payments
that are directly attributable to such loss and are paid to such
Indemnified Party prior to the expiration of the Claims Period with respect
to such loss under this Section 9; provided, however, that the Indemnified
-------- -------
Party shall use reasonable efforts to obtain recovery under any insurance
policy which was acquired by such Indemnified Party for the specific
Concurrent Losses or Company Losses (as the case may be) for which the
Indemnified Party is seeking indemnification, that is in effect at such
time of such loss and for which the Indemnified Party may be entitled to
indemnification; provided, further, nothing in this Section 9.4(d) shall
-------- -------
require an Indemnified Party to obtain any insurance with respect to
Concurrent Losses or Company Losses (as the case may be) for which it may
seek indemnification hereunder.
9.6 Investigations. The respective representations and warranties of
--------------
the Parties contained in this Agreement or in any certificate or other
document delivered by any Party
27
prior to the Closing and the rights to indemnification set forth in Section
9 will not be deemed waived or otherwise affected by any investigation made
by a Party to this Agreement.
10. Miscellaneous.
-------------
10.1 Amendments and Waivers. Neither this Agreement nor any provision
----------------------
hereof may be amended, changed, waived, discharged or terminated orally,
but only by a statement in writing signed by the party against which
enforcement of the amendment, change, waiver, discharge or termination is
sought.
10.2 Delays or Omission; Remedies Cumulative. No delay or omission to
---------------------------------------
exercise any right, power or remedy accruing to any party, upon any breach
or default of this Agreement shall impair any such right, power or remedy
of such power or be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default
be deemed a waiver of any other breach or default theretofore or thereafter
occurring. All of a party's remedies, either under this Agreement, or by
law or otherwise afforded to such party, shall be cumulative and not
alternative.
10.3 Governing Law; Exclusive Jurisdiction. This Agreement will be
----------------------------------------
governed by and construed and enforced in accordance with the internal laws
of the State of Delaware without reference to its choice of law rules. Each
of the parties hereby irrevocably consents and agrees that legal dispute
shall be brought only to the exclusive jurisdiction of the courts of the
State of Georgia or the federal courts located in the State of Georgia. The
parties agree that, after a legal dispute is before a court as specified in
this Section 10.3 and during the pendency of such legal dispute before such
court, all actions, suits or proceedings with respect to such legal dispute
or any other legal dispute, including, without limitation, any
counterclaim, cross-claim or interpleader, shall be subject to the
exclusive jurisdiction of such court. Each of the parties hereby waives,
and agrees not to assert, as a defense in any legal dispute, that such
party is not subject thereto or that such action, suit or proceeding may
not be brought or is not maintainable in such court or that such party's
property is exempt or immune from execution, that the action, suit or
proceeding is brought in an inconvenient forum or that the venue of the
action, suit or proceeding is improper. Each party hereto agrees that a
final judgment in any action, suit or proceeding described in this Section
10.3 after the expiration of any period permitted for appeal and subject to
any stay during appeal shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable laws.
10.4 Successors and Assigns. Except as otherwise expressly provided
------------------------
herein, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto. No party may assign either this
Agreement or any of its rights, interests or obligations hereunder without
the prior written approval of the other parties; provided, however, that
-------- -------
Concurrent may freely assign its rights to Concurrent or to another wholly
owned subsidiary of Concurrent (and vice versa) without such prior written
approval provided that such assignee remains at all times an affiliate of
Concurrent and no such assignment shall relieve Concurrent of any of its
obligations hereunder.
28
10.5 Entire Agreement. This Agreement and the Ancillary Agreements
-----------------
constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
10.6 Construction of Certain Terms. Wherever the words "including,"
-------------------------------
"include" or "includes" are used in this Agreement, they shall be deemed
followed by the words "without limitation." References to any gender shall
be deemed to mean any gender. All references herein to the Company shall
include any predecessor entity or other entity merged with or into the
Company prior to or as of the date hereof. All references herein to the
Company's knowledge or awareness shall mean the knowledge of officers of
the Company.
10.7 Notices, etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be sent via facsimile,
overnight courier service or mailed by certified or registered mail,
postage prepaid, return receipt requested, addressed or sent:
(a) if to Concurrent, to it at:
Concurrent Computer Corporation
0000 XxxxxXxxxx Xxxxxxx
Xxxxxx, XX 00000
XXX
Facsimile Number: (000) 000-0000
Attention: Xxxx Xxxxxx
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
XXX
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx.
29
(b) if to the Company, to it at:
Thirdspace Living Limited
Xxxxxxx Xxxxx
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx
XX0 0XX XX
Attention: General Counsel
Chief Executive Officer
Facsimile Number: x00(0) 0000 000000
or to such other address or facsimile number as either party may have furnished
to the other in writing in accordance herewith, except that notices of change of
address or facsimile number shall be effective only upon receipt. All notices
and other communications given in accordance with the provisions of this
Agreement shall be deemed to have been given and received (i) four (4) business
days after the same are sent by certified or registered mail, postage prepaid,
return receipt requested, (ii) when delivered by hand or transmitted by
facsimile or electronic mail (with acknowledgment received and, in the case of a
facsimile or electronic mail only, a copy of such notice is sent no later than
the next business day by a reliable overnight courier service, with
acknowledgement of receipt) or (iii) two (2) business days after the same are
sent by a reliable overnight courier service, with acknowledgement of receipt.
10.8 Severability. In case any provision of this Agreement shall be
------------
declared invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
10.9 Expenses. Each party shall pay all costs and expenses that it
--------
incurs with respect to the negotiation, execution, delivery and performance
of this Agreement and the Ancillary Agreements.
10.10 Titles and Subtitles; Drafting. The titles of the paragraphs and
------------------------------
subparagraphs of this Agreement are for convenience of reference only and
are not to be considered in construing this Agreement. This Agreement has
been the subject of review and negotiation among the parties hereto, and
the parties agree that principles of contract interpretation based on the
party responsible for drafting shall not be applied.
10.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[Remainder of Page Intentionally Left Blank]
30
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COMPANY:
THIRDSPACE LIVING LIMITED
By: /s/ Xxxxxx Xxxx
----------------
Print Name: Xxxxxx Xxxx
Title: Director
CONCURRENT:
CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------
Print Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
SCHEDULES AND EXHIBITS
----------------------
Schedule A Disclosure Schedule
Exhibit A Form of Warrant
Exhibit B Form of Loan Stock Instrument
Exhibit C Subsidiaries
Exhibit D List of Shareholders/Optionholders
Exhibit E Responsibilities of Managers
Exhibit F Major Actions
Exhibit G Patent License Agreement
Exhibit H Form of Reseller Agreement
Exhibit I Form of Strategic Alliance Agreement
Exhibit J nCube Dissolution Agreement
Exhibit K Oracle Cure Agreement
Exhibit L Oracle Debenture
Exhibit M Form of Debenture
Exhibit N Form of Intercreditor Agreement
Exhibit O Form of Registration Rights Agreement
