EXECUTION COPY
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of February 15,
2002 by and between TENFOLD CORPORATION, a Delaware corporation (the "Company"),
and FUSION CAPITAL FUND II, LLC, an Illinois limited liability company (the
"Buyer"). Capitalized terms used herein and not otherwise defined herein are
defined in Section 10 hereof.
WHEREAS:
Subject to the terms and conditions set forth in this Agreement, the
Company wishes to sell to the Buyer, and the Buyer wishes to buy from the
Company, up to Ten Million Dollars ($10,000,000) of the Company's common stock,
par value $0.001 per share (the "Common Stock"). The shares of Common Stock to
be purchased hereunder are referred to herein as the "Purchase Shares."
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE OF COMMON STOCK.
Subject to the terms and conditions set forth in Sections 6, 7 and 9 below,
the Company hereby agrees to sell to the Buyer, and the Buyer hereby agrees to
purchase from the Company, shares of Common Stock as follows:
(a) COMMENCEMENT OF PURCHASES OF COMMON STOCK. The purchase and sale of
Common Stock hereunder shall commence (the "Commencement") within five (5)
Trading Days following the date of satisfaction (or waiver) of the conditions to
the Commencement set forth in Sections 6 and 7 below (or such later date as is
mutually agreed to by the Company and Buyer) (the date of such Commencement, the
"Commencement Date").
(b) BUYER'S PURCHASE RIGHTS AND OBLIGATIONS. Subject to the Company's
right to suspend purchases under Section 1(d)(ii) hereof, the Buyer shall
purchase shares of Common Stock on each Trading Day during each Monthly Period
equal to the Daily Base Amount at the Purchase Price. Within one (1) Trading Day
of receipt of Purchase Shares, the Buyer shall pay to the Company an amount
equal to the Purchase Amount with respect to such Purchase Shares as full
payment for the purchase of the Purchase Shares so received. The Company shall
not issue any fraction of a share of Common Stock upon any purchase. All shares
of Common Stock (including fractions thereof) issuable upon a purchase under
this Agreement shall be aggregated for purposes of determining whether the
purchase would result in the issuance of a fraction of a share of Common Stock.
If, after the aforementioned aggregation, the issuance would result in the
issuance of a fraction of a share of Common Stock, the Company shall round such
fraction of a share of Common Stock up or down to the nearest whole share. All
payments made under this Agreement shall be made in lawful money of the United
States of America by wire transfer of immediately available funds to such
account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed
to be due by the terms of this Agreement is due on any day that is not a Trading
Day, the same shall instead be due on the next succeeding day that is a Trading
Day.
(c) COMPANY'S RIGHT TO DECREASE OR INCREASE THE DAILY BASE AMOUNT.
(i) COMPANY'S RIGHT TO DECREASE THE DAILY BASE AMOUNT. The Company
shall always have the right at any time to decrease the amount of the Daily
Base Amount by delivering written notice (a "Daily Base Amount Decrease
Notice") to the Buyer which notice shall specify the new Daily Base Amount.
The decrease in the Daily Base Amount shall become effective one Trading
Day after receipt by the Buyer of the Daily Base Amount Decrease Notice.
Any purchases by the Buyer which have a Purchase Date on or prior to the
first (1st) Trading Day after receipt by the Buyer of a Daily Base Amount
Decrease Notice must be honored by the Company as otherwise provided
herein. The decrease in the Daily Base Amount shall remain in effect until
the Company delivers to the Buyer a Daily Base Amount Increase Notice (as
defined below).
(ii) COMPANY'S RIGHT TO INCREASE THE DAILY BASE AMOUNT. The Company
shall always have the right at any time to increase the amount of the Daily
Base Amount up to the Original Daily Base Amount by delivering written
notice to the Buyer stating the new amount of the Daily Base Amount (a
"Daily Base Amount Increase Notice"). If the Closing Sale Price of the
Common Stock on each of the five (5) consecutive Trading Days immediately
prior to a Daily Base Amount Increase Notice is at least $3.00, the Company
shall have the right to deliver a Daily Base Amount Increase Notice which
increases the amount of the Daily Base Amount to any amount above the
Original Daily Base Amount. A Daily Base Amount Increase Notice shall be
effective ten (10) Trading Days after receipt by the Buyer. Such increase
in the amount of the Daily Base Amount shall continue in effect until the
delivery to the Buyer of a Daily Base Amount Decrease Notice.
Notwithstanding anything to the contrary, if the Daily Base Amount then in
effect or proposed to be in effect is greater than the Original Daily Base
Amount and the Sale Price of the Common Stock during any Trading Day is
less than $3.00, the amount of the Daily Base Amount shall be the Original
Daily Base Amount or such lesser amount as specified by the Company in a
Daily Base Amount Decrease Notice and any of the Buyer's obligations to
purchase shares of Common Stock in excess of the Original Daily Base Amount
shall be terminated. Thereafter, the Company shall again have the right to
increase the amount of the Daily Base Amount to any amount above the
Original Daily Base Amount only if the Closing Sale Price of the Common
Stock is at least $3.00 on each of five (5) consecutive Trading Days.
(d) LIMITATIONS ON PURCHASES.
(i) LIMITATION ON BENEFICIAL OWNERSHIP. The Company shall not effect
any sale under this Agreement and the Buyer shall not have the right to
purchase shares of Common Stock under this Agreement to the extent that
after giving effect to such purchase the Buyer together with its affiliates
would beneficially own in excess of 4.9% of the outstanding shares of the
Common Stock following such purchase. For purposes hereof, the number of
shares of Common Stock beneficially owned by the Buyer and its affiliates
or acquired by the Buyer and its affiliates, as the case may be, shall
include the number of shares of Common Stock issuable in connection with a
purchase under this Agreement with respect to which the determination is
being made, but shall exclude the number of shares of Common Stock which
would be issuable upon (1) a purchase of the remaining Available Amount
which has not been submitted for purchase, and (2) exercise or conversion
of the unexercised or unconverted portion of any other securities of the
Company (including, without limitation, any warrants) subject to a
limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by the Buyer and its affiliates. If the 4.9%
limitation is ever reached the Company shall have the option to increase
such limitation to 9.9% by delivery of written notice to the Buyer.
Thereafter, if the 9.9% limitation is ever reached this shall not effect or
limit the Buyer's obligation to purchase the Daily Base Amount as otherwise
provided in this Agreement (i.e., the Buyer shall continue to
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pay the Purchase Price for Purchase Shares but the Company shall not issue,
and the Buyer shall not be entitled to receive, such applicable Purchase
Shares until such time as, and to the extent that, the Buyer is below the
9.9% limitation). For purposes of this Section, in determining the number
of outstanding shares of Common Stock the Buyer may rely on the number of
outstanding shares of Common Stock as reflected in (1) the Company's most
recent Form 10-Q or Form 10-K, as the case may be, (2) a more recent public
announcement by the Company or (3) any other written communication by the
Company or its Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the reasonable written or oral request of the
Buyer, the Company shall promptly confirm orally and in writing to the
Buyer the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be determined after
giving effect to any purchases under this Agreement by the Buyer since the
date as of which such number of outstanding shares of Common Stock was
reported. Except as otherwise set forth herein, for purposes of this
Section 1(d)(i), beneficial ownership shall be determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended.
(ii) COMPANY'S RIGHT TO SUSPEND PURCHASES. The Company may, at any
time, give written notice (a "Purchase Suspension Notice") to the Buyer
suspending purchases of Purchase Shares by the Buyer under this Agreement.
The Purchase Suspension Notice shall be effective only for purchases that
have a Purchase Date later than one (1) Trading Day after receipt of the
Purchase Suspension Notice by the Buyer. Any purchase by the Buyer that has
a Purchase Date on or prior to the first (1st) Trading Day after receipt by
the Buyer of a Purchase Suspension Notice from the Company must be honored
by the Company as otherwise provided herein. Such purchase suspension shall
continue in effect until a revocation in writing by the Company, at its
sole discretion. So long as a Purchase Suspension Notice is in effect, the
Buyer shall not be obligated to purchase any Purchase Shares from the
Company under Section 1 of this Agreement.
(iii) PURCHASE PRICE FLOOR. The Buyer shall not have the right or the
obligation to purchase any Purchase Shares under this Agreement in the
event that the Purchase Price for any purchases of Purchase Shares would be
less than the Floor Price. The Company may at any time give written notice
(a "Floor Price Notice") to the Buyer increasing or decreasing the Floor
Price. The Floor Price Notice shall be effective only for purchases that
have a Purchase Date later than one (1) Trading Day after receipt of the
Floor Price Notice by the Buyer. Any purchase by the Buyer that has a
Purchase Date on or prior to the first Trading Day after receipt of a Floor
Price Notice from the Company must be honored by the Company as otherwise
provided herein.
(e) RECORDS OF PURCHASES. The Buyer and the Company shall each maintain
records showing the remaining Available Amount at any give time and the dates
and Purchase Amounts for each purchase or shall use such other method,
reasonably satisfactory to the Buyer and the Company.
(f) TAXES. The Company shall pay any and all transfer, stamp or similar
taxes that may be payable with respect to the issuance and delivery of any
shares of Common Stock to the Buyer made under of this Agreement.
(g) COMPLIANCE WITH PRINCIPAL MARKET RULES. The Company shall not effect
any sale under this Agreement and the Buyer shall not have the right to purchase
shares of Common Stock under this Agreement to the extent that after giving
effect to such purchase the "Exchange Cap" shall be deemed to be reached. The
"Exchange Cap" shall be deemed to have been reached if, at any time prior to the
shareholders of the Company approving the transaction contemplated by this
Agreement, upon a purchase under this Agreement, the Purchase Shares issuable
pursuant to such purchase would, together
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with all Purchase Shares previously issued under this Agreement, exceed
7,325,679 shares of Common Stock (19.9% of the 36,812,462 outstanding shares of
Common Stock as of the date of this Agreement). The Company may, but shall be
under no obligation to, request its shareholders to approve the transaction
contemplated by this Agreement. The Company shall not be required or permitted
to issue any shares of Common Stock under this Agreement if such issuance would
breach the Company's obligations under the rules or regulations of the Principal
Market.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
The Buyer represents and warrants to the Company that as of the date hereof
and as of the Commencement Date:
(a) INVESTMENT PURPOSE. The Buyer is entering into this Agreement and
acquiring the Commitment Shares, (as defined in Section 4(f) hereof) (this
Agreement and the Commitment Shares are collectively referred to herein as the
"Securities"), for its own account for investment only and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof; provided however, by making the representations herein, the Buyer does
not agree to hold any of the Securities for any minimum or other specific term.
(b) ACCREDITED INVESTOR STATUS. The Buyer is an "accredited investor" as
that term is defined in Rule 501(a)(3) of Regulation D.
(c) RELIANCE ON EXEMPTIONS. The Buyer understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying in part upon the truth and accuracy of, and the
Buyer's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein in order to
determine the availability of such exemptions and the eligibility of the Buyer
to acquire the Securities.
(d) INFORMATION. The Buyer has been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Securities that have been reasonably requested by
the Buyer, including, without limitation, the SEC Documents (as defined in
Section 3(f) hereof). The Buyer understands that its investment in the
Securities involves a high degree of risk. The Buyer (i) is able to bear the
economic risk of an investment in the Securities including a total loss, (ii)
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the proposed investment in the
Securities and (iii) has had an opportunity to ask questions of and receive
answers from the officers of the Company concerning the financial condition and
business of the Company and other matters related to an investment in the
Securities. Neither such inquiries nor any other due diligence investigations
conducted by the Buyer or its representatives shall modify, amend or affect the
Buyer's right to rely on the Company's representations and warranties contained
in Section 3 below. The Buyer has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Securities.
(e) NO GOVERNMENTAL REVIEW. The Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or
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endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
(f) TRANSFER OR RESALE. The Buyer understands that except as provided in
the Registration Rights Agreement (as defined in Section 6(a) hereof): (i) the
Securities have not been and are not being registered under the 1933 Act or any
state securities laws, and may not be offered for sale, sold, assigned or
transferred unless (A) subsequently registered thereunder or (B) an exemption
exists permitting such Securities to be sold, assigned or transferred without
such registration; (ii) any sale of the Securities made in reliance on Rule 144
may be made only in accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of the Securities under circumstances in which
the seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the
SEC thereunder; and (iii) neither the Company nor any other person is under any
obligation to register the Securities under the 1933 Act or any state securities
laws or to comply with the terms and conditions of any exemption thereunder.
(g) VALIDITY; ENFORCEMENT. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Buyer and is a valid and
binding agreement of the Buyer enforceable against the Buyer in accordance with
its terms, subject as to enforceability to general principles of equity and to
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of
applicable creditors' rights and remedies.
(h) RESIDENCY. The Buyer is a resident of the State of Illinois.
(i) NO PRIOR SHORT SELLING. The Buyer represents and warrants to the
Company that at no time prior to the date of this Agreement has any of the
Buyer, its agents, associates, representatives or affiliates engaged in or
effected, in any manner whatsoever, directly or indirectly, any (i) "short sale"
(as such term is defined in Rule 3b-3 of the 0000 Xxx) of the Common Stock or
(ii) hedging transaction, which establishes a net short position with respect to
the Common Stock.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Buyer that as of the date hereof
and as of the Commencement Date:
(a) ORGANIZATION AND QUALIFICATION. The Company and its "Subsidiaries"
(which for purposes of this Agreement means any entity in which the Company,
directly or indirectly, owns 50% or more of the voting stock or capital stock or
other similar equity interests) are corporations duly organized and validly
existing in good standing under the laws of the jurisdiction in which they are
incorporated, and have the requisite corporate power and authority to own their
properties and to carry on their business as now being conducted. Each of the
Company and its Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing could not reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, "Material Adverse Effect" means any material
adverse effect on any of: (i) the business, properties, assets, operations,
results of operations or financial condition of the Company and its
Subsidiaries, if any, taken as a whole, or (ii) the authority or ability of the
Company to perform its obligations under the Transaction Documents (as defined
in Section 3(b) hereof). The Company has no Subsidiaries except as set forth on
Schedule 3(a).
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(b) AUTHORIZATION; ENFORCEMENT; VALIDITY. (i) The Company has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement, the Registration Rights Agreement (as defined
in Section 6(a) hereof) and each of the other agreements entered into by the
parties on the Commencement Date and attached hereto as exhibits to this
Agreement (collectively, the "Transaction Documents"), and to issue the
Securities in accordance with the terms hereof and thereof, (ii) the execution
and delivery of the Transaction Documents by the Company and the consummation by
it of the transactions contemplated hereby and thereby, including without
limitation, the issuance of the Commitment Shares and the reservation for
issuance and the issuance of the Purchase Shares issuable under this Agreement,
have been duly authorized by the Company's Board of Directors and no further
consent or authorization is required by the Company, its Board of Directors or
its shareholders, (iii) this Agreement has been, and each other Transaction
Document shall be on the Commencement Date, duly executed and delivered by the
Company and (iv) this Agreement constitutes, and each other Transaction Document
upon its execution on behalf of the Company, shall constitute, the valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies. The Board of Directors of the
Company has approved the resolution (the "Signing Resolutions") set forth as
EXHIBIT D-1 attached hereto to authorize this Agreement and the transactions
contemplated hereby. The Signing Resolutions are valid, in full force and effect
and have not been modified or supplemented in any respect other than by the
resolutions set forth in EXHIBIT D-2 attached hereto regarding the registration
statement referred to in Section 4 hereof. The Company has delivered to the
Buyer (i) a true and correct copy of the relevant portion of the minutes of such
meeting of the Board of Directors at which the Signing Resolutions were adopted
and approved by the Board of Directors of the Company and (ii) a certificate
signed by the Secretary of the Company and dated as of the date hereof,
certifying that the Signing Resolutions were adopted and approved by the Board
of Directors of the Company and that such resolutions are valid and remain in
full force and effect and have not been modified or supplemented in any respect.
No other approvals or consents of the Company's Board of Directors and/or
shareholders are necessary under applicable laws and the Company's Certificate
of Incorporation or Bylaws to authorize execution and delivery of this Agreement
or any of the transactions contemplated hereby, including, but not limited to,
the issuance of the Commitment Shares and the issuance of the Purchase Shares.
(c) CAPITALIZATION. As of the date hereof, the authorized capital stock of
the Company consists of (i) 120,000,000 shares of Common Stock, of which as of
the date hereof, 36,812,462 shares are issued and outstanding, none of which are
held as treasury shares, 26,500,000 shares are reserved for issuance pursuant to
the Company's stock option plans of which only approximately 7,675,457 shares
remain available and 1,277,024 shares are issuable and reserved for issuance
pursuant to securities (other than stock options issued pursuant to the
Company's stock option plans) exercisable or exchangeable for, or convertible
into, shares of Common Stock and (ii) 2,000,000 shares of Preferred Stock,
$0.001 par value, of which as of the date hereof no shares are issued and
outstanding. All of such outstanding shares have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Except as disclosed in
Schedule 3(c), (i) no shares of the Company's capital stock are subject to
preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company, (ii) there are no outstanding debt
securities, (iii) except for the stock options issued pursuant to the stock
option plans described in the first sentence of this Section 3(c), there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
Subsidiaries, or contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or
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may become bound to issue additional shares of capital stock of the Company or
any of its Subsidiaries or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of the Company or any of
its Subsidiaries, (iv) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the sale of any of
their securities under the 1933 Act (except the Registration Rights Agreement),
(v) there are no outstanding securities or instruments of the Company or any of
its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the
Company or any of its Subsidiaries is or may become bound to redeem a security
of the Company or any of its Subsidiaries, (vi) there are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities as described in this Agreement and
(vii) the Company does not have any stock appreciation rights or "phantom stock"
plans or agreements or any similar plan or agreement. The Company has furnished
to the Buyer true and correct copies of the Company's Certificate of
Incorporation, as amended and as in effect on the date hereof (the "Certificate
of Incorporation"), and the Company's By-laws, as amended and as in effect on
the date hereof (the "By-laws"), and summaries of the terms of all securities
convertible into or exercisable for Common Stock, if any, and copies of any
documents containing the material rights of the holders thereof in respect
thereto.
(d) ISSUANCE OF SECURITIES. The Commitment Shares have been duly
authorized and, upon issuance in accordance with the terms hereof, the
Commitment Shares shall be (i) validly issued, fully paid and non-assessable and
(ii) free from all taxes, liens and charges with respect to the issue thereof.
At least 6,376,000 shares of Common Stock have been duly authorized and reserved
for issuance upon purchase under this Agreement. 316,456 shares of Common Stock
(subject to equitable adjustment for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction) have been duly
authorized and reserved for issuance as Additional Commitment Shares in
accordance with Section 4(f) of this Agreement. Upon issuance and payment
therefore in accordance with the terms and conditions of this Agreement, the
Purchase Shares shall be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issue thereof, with the
holders being entitled to all rights accorded to a holder of Common Stock.
(e) NO CONFLICTS. Except as disclosed in Schedule 3(e), the execution,
delivery and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
(including, without limitation, the reservation for issuance and issuance of the
Purchase Shares) will not (i) result in a violation of the Certificate of
Incorporation, any Certificate of Designations, Preferences and Rights of any
outstanding series of preferred stock of the Company or the By-laws or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its Subsidiaries is a
party, or result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and the
rules and regulations of the Principal Market applicable to the Company or any
of its Subsidiaries) or by which any property or asset of the Company or any of
its Subsidiaries is bound or affected, except in the case of conflicts, defaults
and violations under clause (ii), which could not reasonably be expected to
result in a Material Adverse Effect. Except as disclosed in Schedule 3(e),
neither the Company nor its Subsidiaries is in violation of any term of or in
default under its Certificate of Incorporation, any Certificate of Designation,
Preferences and Rights of any outstanding series of preferred stock of the
Company or By-laws or their organizational charter or by-laws, respectively.
Except as disclosed in Schedule 3(e), neither the Company nor any of its
Subsidiaries is in violation of any term of or is in default under any material
contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company or
its Subsidiaries, except for possible conflicts,
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defaults, terminations or amendments which could not reasonably be expected to
have a Material Adverse Effect. The business of the Company and its Subsidiaries
is not being conducted, and shall not be conducted, in violation of any law,
ordinance, regulation of any governmental entity, except for possible
violations, the sanctions for which either individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. Except as
specifically contemplated by this Agreement and as required under the 1933 Act
or applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency or any regulatory or self-regulatory agency in
order for it to execute, deliver or perform any of its obligations under or
contemplated by the Transaction Documents in accordance with the terms hereof or
thereof. Except as disclosed in Schedule 3(e), all consents, authorizations,
orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence shall be obtained or effected on or prior to
the Commencement Date. Except as listed in Schedule 3(e), since January 1, 2000,
the Company has not received nor delivered any notices or correspondence from or
to the Principal Market. Except as disclosed on Schedule 3(e), no current
proceedings against the Company have been commenced to delist the Common Stock
from the Principal Market.
(f) SEC DOCUMENTS; FINANCIAL STATEMENTS. Except as disclosed in Schedule
3(f), since January 1, 2000, the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act") (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein being hereinafter
referred to as the "SEC Documents"). As of their respective dates (except as
they have been correctly amended), the SEC Documents complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the SEC promulgated thereunder applicable to the SEC Documents, and none of the
SEC Documents, at the time they were filed with the SEC (except as they may have
been properly amended), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. As of their respective dates (except as they
have been properly amended), the financial statements of the Company included in
the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). Except as listed in
Schedule 3(f), the Company has received no notices or correspondence from the
SEC since January 1, 2001. The SEC has not commenced any enforcement proceedings
against the Company or any of its subsidiaries.
(g) ABSENCE OF CERTAIN CHANGES. Except as disclosed in Schedule 3(g),
since September 30, 2001, there has been no material adverse change in the
business, properties, operations, financial condition or results of operations
of the Company and its Subsidiaries, taken as a whole. The Company has not taken
any steps, and does not currently expect to take any steps, to seek protection
pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries
have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially
solvent and is generally able to pay its debts as they become due.
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(h) ABSENCE OF LITIGATION. There is no action, suit, proceeding, inquiry
or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the Company
or any of its Subsidiaries, threatened against or affecting the Company, the
Common Stock or any of the Company's Subsidiaries or any of the Company's or the
Company's Subsidiaries' officers or directors in their capacities as such, which
is reasonably likely to have a Material Adverse Effect. A description of each
action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body which, as
of the date of this Agreement, is pending or threatened in writing against or
affecting the Company, the Common Stock or any of the Company's Subsidiaries or
any of the Company's or the Company's Subsidiaries' officers or directors in
their capacities as such, is set forth in Schedule 3(h).
(i) ACKNOWLEDGMENT REGARDING BUYER'S STATUS. The Company acknowledges and
agrees that the Buyer is acting solely in the capacity of arm's length purchaser
with respect to the Transaction Documents and the transactions contemplated
hereby and thereby. The Company further acknowledges that the Buyer is not
acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions
contemplated hereby and thereby and any advice given by the Buyer or any of its
representatives or agents in connection with the Transaction Documents and the
transactions contemplated hereby and thereby is merely incidental to the Buyer's
purchase of the Securities. The Company further represents to the Buyer that the
Company's decision to enter into the Transaction Documents has been based solely
on the independent evaluation by the Company and its representatives and
advisors.
(j) NO GENERAL SOLICITATION. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the 0000 Xxx) in connection with the offer or sale of the
Securities.
(k) DILUTIVE EFFECT. The Company understands and acknowledges that the
number of Purchase Shares purchasable under this Agreement is not fixed and will
vary depending on the Purchase Price at which such shares are purchased. The
Company further acknowledges that its obligation to issue Purchase Shares under
this Agreement in accordance with the terms and conditions hereof is absolute
and unconditional regardless of the dilutive effect that such issuance may have
on the ownership interests of other shareholders of the Company.
(l) INTELLECTUAL PROPERTY RIGHTS. The Company and/or its Subsidiaries own
or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service xxxx registrations, service names, patents, patent
rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights necessary to conduct their respective
businesses as now conducted. Except as set forth on Schedule 3(l), none of the
Company's material trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, government authorizations, trade secrets or other
intellectual property rights have expired or terminated, or, by the terms and
conditions thereof, could expire or terminate within two years from the date of
this Agreement. The Company and its Subsidiaries do not have any knowledge of
any infringement by the Company or its Subsidiaries of any material trademark,
trade name rights, patents, patent rights, copyrights, inventions, licenses,
service names, service marks, service xxxx registrations, trade secret or other
similar rights of others, or of any such development of similar or identical
trade secrets or technical information by others and, except as set forth on
Schedule 3(l), there is no claim, action or proceeding being made or brought
against, or to the Company's knowledge, being threatened against, the Company or
its Subsidiaries regarding trademark, trade name, patents, patent rights,
invention, copyright, license, service names, service marks, service xxxx
registrations, trade secret or other infringement, which could reasonably be
expected to have a Material Adverse Effect.
9
(m) ENVIRONMENTAL LAWS. The Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where, in each of the
three foregoing clauses, the failure to so comply could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) TITLE. The Company and its Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
Subsidiaries, in each case free and clear of all liens, encumbrances and defects
except such as are described in Schedule 3(n) or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries.
Any real property and facilities held under lease by the Company and any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
Subsidiaries.
(o) INSURANCE. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged.
(p) REGULATORY PERMITS. The Company and its Subsidiaries possess all
material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit.
(q) TAX STATUS. The Company and each of its Subsidiaries has made or filed
all federal and state income and all other material tax returns, reports and
declarations required by any jurisdiction to which it is subject (unless and
only to the extent that the Company and each of its Subsidiaries has set aside
on its books provisions reasonably adequate for the payment of all unpaid and
unreported taxes) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
(r) TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule 3(r) and
other than the grant or exercise of stock options disclosed on Schedule 3(c),
none of the officers, directors, or employees of the Company is presently a
party to any transaction with the Company or any of its Subsidiaries (other than
for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any corporation, partnership, trust or other entity in
10
which any officer, director, or any such employee has an interest or is an
officer, director, trustee or partner.
(s) APPLICATION OF TAKEOVER PROTECTIONS. The Company and its board of
directors have taken or will take prior to the Commencement Date all necessary
action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Certificate of
Incorporation or the laws of the state of its incorporation which is or could
become applicable to the Buyer as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company's issuance of the
Securities and the Buyer's ownership of the Securities.
(t) FOREIGN CORRUPT PRACTICES. Neither the Company, nor any of its
Subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any of its Subsidiaries has, in the course of its
actions for, or on behalf of, the Company, used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating
to political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
4. COVENANTS.
(a) FILING OF REGISTRATION STATEMENT. The Company shall, on or before
March 29, 2002, file a new registration statement covering the sale of the
Commitment Shares and at least 6,376,000 Purchase Shares. The Buyer and its
counsel shall have a reasonable opportunity to review and comment upon such
registration statement or amendment to such registration statement and any
related prospectus prior to its filing with the SEC. Buyer shall furnish all
information reasonably requested by the Company for inclusion therein. The
Company shall use its best efforts to have such registration statement or
amendment declared effective by the SEC at the earliest possible date.
(b) BLUE SKY. The Company shall, on or before the Commencement Date, take
such action, if any, as the Company shall reasonably determine is necessary in
order to obtain an exemption for or to qualify the Commitment Shares and the
Purchase Shares for sale to the Buyer pursuant to this Agreement under
applicable securities or "Blue Sky" laws of the states of the United States, and
shall provide evidence of any such action so taken to the Buyer on or prior to
the Commencement Date. The Company shall make all filings and reports relating
to the offer and sale of the Commitment Shares and the Purchase Shares required
under applicable securities or "Blue Sky" laws of the states of the United
States prior to the Commencement Date.
(c) NO VARIABLE PRICED FINANCING. Other than pursuant to this Agreement,
the Company agrees that beginning on the date of this Agreement and ending on
the date of termination of this Agreement (as provided in Section 11(k) hereof),
neither the Company nor any of its Subsidiaries shall, without the prior written
consent of the Buyer, contract for any equity financing (including any debt
financing with an equity component) or issue any equity securities of the
Company or any Subsidiary or securities convertible or exchangeable into or for
equity securities of the Company or any Subsidiary (including debt securities
with an equity component) which, in any case (i) are convertible into or
exchangeable for an indeterminate number of shares of common stock, (ii) are
convertible into or exchangeable for Common Stock at a price which varies with
the market price of the Common Stock, (iii) directly or indirectly provide for
any "re-set" or adjustment of the purchase price, conversion rate or
11
exercise price after the issuance of the security, or (iv) contain any
"make-whole" provision based upon, directly or indirectly, the market price of
the Common Stock after the issuance of the security, in each case, other than
reasonable and customary anti-dilution adjustments for issuance of shares of
Common Stock at a price which is below the market price of the Common Stock.
(d) LISTING. The Company shall promptly secure the listing of all of the
Purchase Shares and Commitment Shares upon each national securities exchange and
automated quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance) and shall maintain, so long as
any other shares of Common Stock shall be so listed, such listing of all such
securities from time to time issuable under the terms of the Transaction
Documents. The Company shall maintain the Common Stock's authorization for
quotation on the Principal Market. Neither the Company nor any of its
Subsidiaries shall take any action that would be reasonably expected to result
in the delisting or suspension of the Common Stock on the Principal Market. The
Company shall promptly, and in no event later than the following Trading Day,
provide to the Buyer copies of any notices it receives from the Principal Market
regarding the continued eligibility of the Common Stock for listing on such
automated quotation system or securities exchange. The Company shall pay all
fees and expenses in connection with satisfying its obligations under this
Section.
(e) PROHIBITION ON SHORT SALES AND HEDGING TRANSACTIONS. The Buyer agrees
that beginning on the date of this Agreement and ending on the date of
termination of this Agreement as provided in Section 11(k), the Buyer and its
agents, representatives and affiliates shall not in any manner whatsoever enter
into or effect, directly or indirectly, any (i) "short sale" (as such term is
defined in Rule 3b-3 of the 0000 Xxx) of the Common Stock, (ii) hedging
transaction, , or (iii) any similar transaction that establishes a net short
position with respect to the Common Stock.
(f) ISSUANCE OF COMMITMENT SHARES; LIMITATION ON SALES OF COMMITMENT
SHARES. Immediately upon the execution of this Agreement, the Company shall
issue to the Buyer 632,911 shares of Common Stock (the "Initial Commitment
Shares"). In connection with each purchase of Purchase Shares hereunder, the
Company agrees to issue to the Buyer a number of shares of Common Stock (the
"Additional Commitment Shares" and together with the Initial Commitment Shares,
the "Commitment Shares") equal to the product of (x) 316,456 and (y) the
Purchase Amount Fraction. The "Purchase Amount Fraction" shall mean a fraction,
the numerator of which is the Purchase Amount purchased by the Buyer with
respect to such purchase of Purchase Shares and the denominator of which is Ten
Million Dollars ($10,000,000). The Additional Commitment Shares shall be
equitably adjusted for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction. The Initial Commitment Shares shall be
issued in certificated form and (subject to Section 5 hereof) shall bear the
following restrictive legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES
LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT."
12
The Buyer agrees that the Buyer shall not transfer or sell the Commitment
Shares until the earlier of 800 Trading Days (40 Monthly Periods) from the date
hereof or date on which this Agreement has been terminated, provided, however,
that such restrictions shall not apply: (i) in connection with any transfers to
or among affiliates (as defined in the 1934 Act), (ii) in connection with any
pledge in connection with a bona fide loan or margin account, or (iii) if an
Event of Default has occurred, or any event which, after notice and/or lapse of
time, would become an Event of Default, including any failure by the Company to
timely issue Purchase Shares under this Agreement. Notwithstanding the forgoing,
the Buyer may transfer Commitment Shares to a third party in order to settle a
sale made by the Buyer where the Buyer reasonably expects the Company to deliver
Purchase Shares to the Buyer under this Agreement so long as the Buyer maintains
ownership of at least the same overall number of shares of Common Stock by
"replacing" the Commitment Shares so transferred with Purchase Shares when the
Purchase Shares are actually issued by the Company to the Buyer.
(g) DUE DILIGENCE. The Buyer shall have the right, from time to time as
the Buyer may reasonably deem appropriate, to perform reasonable due diligence
on the Company during normal business hours. The Company and its officers and
employees shall reasonably cooperate with the Buyer in connection with any
reasonable request by the Buyer related to the Buyer's due diligence of the
Company. The Buyer acknowledges that it is aware that in performing such due
diligence it may be provided with certain information concerning the Company
which is confidential or proprietary in nature and, as such, such information
shall be treated by the Buyer as confidential and that the Buyer shall remain
subject to the Confidentiality Agreement dated December 3, 2001, entered into by
the Company and the Buyer, which agreement the Buyer acknowledges to be in full
force and effect.
5. TRANSFER AGENT INSTRUCTIONS.
Immediately upon the execution of this Agreement, the Company shall deliver
to the Transfer Agent a letter in the form as set forth as EXHIBIT F attached
hereto with respect to the issuance of the Initial Commitment Shares. On the
Commencement Date, the Company shall cause any restrictive legend on the Initial
Commitment Shares to be removed and all of the Purchase Shares and Additional
Commitment Shares, to be issued under this Agreement shall be issued without any
restrictive legend. The Company shall issue irrevocable instructions to the
Transfer Agent, and any subsequent transfer agent, to issue Purchase Shares in
the name of the Buyer for the Purchase Shares (the "Irrevocable Transfer Agent
Instructions"). The Company warrants to the Buyer that no instruction other than
the Irrevocable Transfer Agent Instructions referred to in this Section 5, will
be given by the Company to the Transfer Agent with respect to the Purchase
Shares and that the Commitment Shares and the Purchase Shares shall otherwise be
freely transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Registration Rights Agreement subject to the
provisions of Section 4(f) in the case of the Commitment Shares.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO COMMENCE SALES OF SHARES OF
COMMON STOCK.
The obligation of the Company hereunder to commence sales of the Purchase
Shares is subject to the satisfaction of each of the following conditions on or
before the Commencement Date (the date that sales begin) and once such
conditions have been initially satisfied, there shall not be any ongoing
obligation to satisfy such conditions after the Commencement has occurred;
provided that these
13
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Buyer with prior written
notice thereof:
(a) The Buyer shall have executed each of the Transaction Documents and
delivered the same to the Company including the Registration Rights Agreement
substantially in the form of EXHIBIT A hereto (the "Registration Rights
Agreement").
(b) Subject to the Company's compliance with Section 4(a), a registration
statement covering the sale of all of the Commitment Shares and at least
6,376,000 Purchase Shares shall have been declared effective under the 1933 Act
by the SEC and no stop order with respect to the Registration Statement shall be
pending or threatened by the SEC.
(c) The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of the
Commencement Date as though made at that time (except for representations and
warranties that speak as of a specific date), and the Buyer shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Buyer at or prior to the Commencement Date.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO COMMENCE PURCHASES OF SHARES
OF COMMON STOCK.
The obligation of the Buyer to commence purchases of Purchase Shares under
this Agreement is subject to the satisfaction of each of the following
conditions on or before the Commencement Date (the date that sales begin) and
once such conditions have been initially satisfied, there shall not be any
ongoing obligation to satisfy such conditions after the Commencement has
occurred; provided that these conditions are for the Buyer's sole benefit and
may be waived by the Buyer at any time in its sole discretion by providing the
Company with prior written notice thereof:
(a) The Company shall have executed each of the Transaction Documents and
delivered the same to the Buyer including the Registration Rights Agreement
substantially in the form of EXHIBIT A hereto.
(b) The Company shall have issued to the Buyer the Initial Commitment
Shares and shall have removed the restrictive transfer legend from the
certificate representing the Initial Commitment Shares.
(c) The Common Stock shall be authorized for quotation on the Principal
Market, trading in the Common Stock shall not have been within the last 365 days
suspended by the SEC or the Principal Market and the Purchase Shares and the
Commitment Shares shall be approved for listing upon the Principal Market.
(d) The Buyer shall have received the opinions of the Company's legal
counsel dated as of the Commencement Date substantially in the form of EXHIBIT B
attached hereto.
(e) The representations and warranties of the Company shall be true and
correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section
3 above, in which case, such representations and warranties shall be true and
14
correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied with the covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by the Company at or prior to the Commencement Date. The Buyer shall have
received a certificate, executed by the CEO, President or CFO of the Company,
dated as of the Commencement Date, to the foregoing effect in the form attached
hereto as EXHIBIT C.
(f) The Board of Directors of the Company shall have adopted resolutions
in the form attached hereto as EXHIBIT D which shall be in full force and effect
without any amendment or supplement thereto as of the Commencement Date.
(g) As of the Commencement Date, the Company shall have reserved out of
its authorized and unissued Common Stock, (A) solely for the purpose of
effecting purchases of Purchase Shares hereunder, at least 6,376,000 shares of
Common Stock and (B) as Additional Commitment Shares in accordance with Section
4(f) hereof, 316,456 shares of Common Stock.
(h) The Irrevocable Transfer Agent Instructions, in form acceptable to the
Buyer shall have been delivered to and acknowledged in writing by the Company
and the Transfer Agent.
(i) The Company shall have delivered to the Buyer a certificate evidencing
the incorporation and good standing of the Company in the State of Delaware
issued by the Secretary of State of the State of Delaware as of a date within
ten (10) Trading Days of the Commencement Date.
(j) The Company shall have delivered to the Buyer a certified copy of the
Certificate of Incorporation as certified by the Secretary of State of the State
of Delaware within ten (10) Trading Days of the Commencement Date.
(k) The Company shall have delivered to the Buyer a secretary's
certificate executed by the Secretary of the Company, dated as of the
Commencement Date, in the form attached hereto as EXHIBIT E.
(l) A registration statement covering the sale of all of the Commitment
Shares and at least 6,376,000 Purchase Shares shall have been declared effective
under the 1933 Act by the SEC and no stop order with respect to the registration
statement shall be pending or threatened by the SEC. The Company shall have
prepared and delivered to the Buyer a final form of prospectus to be used by the
Buyer in connection with any sales of any Commitment Shares or any Purchase
Shares. The Company shall have made all filings under all applicable federal and
state securities laws necessary to consummate the issuance of the Commitment
Shares and the Purchase Shares pursuant to this Agreement in compliance with
such laws.
(m) No Event of Default has occurred, or any event that, after notice
and/or lapse of time, would become an Event of Default has occurred.
(n) On or prior to the Commencement Date, the Company shall take all
necessary action, if any, and such actions as reasonably requested by the Buyer,
in order to render inapplicable any control share acquisition, business
combination, shareholder rights plan or poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which
is or could become applicable to the Buyer as a result
15
of the transactions contemplated by this Agreement, including, without
limitation, the Company's issuance of the Securities and the Buyer's ownership
of the Securities.
8. INDEMNIFICATION.
In consideration of the Buyer's execution and delivery of the Transaction
Documents and acquiring the Securities hereunder and in addition to all of the
Company's other obligations under the Transaction Documents, the Company shall
defend, protect, indemnify and hold harmless the Buyer and all of its
affiliates, shareholders, officers, directors, employees and direct or indirect
investors and any of the foregoing person's agents or other representatives
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "Indemnitees")
from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by
any Indemnitee as a result of, or arising out of, or relating to (a) any
misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby, or
(c) any cause of action, suit or claim brought or made against such Indemnitee
and arising out of or resulting from the execution, delivery, performance or
enforcement of the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, other than with respect to Indemnified
Liabilities which directly and primarily result from the gross negligence or
willful misconduct of the Indemnitee. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities which is permissible under applicable law.
9. EVENTS OF DEFAULT.
An "Event of Default" shall be deemed to have occurred at any time as any
of the following events occurs:
(a) while any registration statement is required to be maintained
effective pursuant to the terms of the Registration Rights Agreement, the
effectiveness of such registration statement lapses for any reason (including,
without limitation, the issuance of a stop order) or is unavailable to the Buyer
for sale of all of the Registrable Securities (as defined in the Registration
Rights Agreement) in accordance with the terms of the Registration Rights
Agreement, and such lapse or unavailability continues for a period of ten (10)
consecutive Trading Days or for more than an aggregate of thirty (30) Trading
Days in any 365-day period;
(b) the suspension from trading or failure of the Common Stock to be
listed on the Principal Market for a period of ten (10) consecutive Trading Days
or for more than an aggregate of thirty (30) Trading Days in any 365-day period;
(c) the delisting of the Company's Common Stock from the Principal Market,
provided the Company is not immediately thereafter trading on the The Nasdaq
OTC/Bulletin Board market, the Nasdaq National Market, the New York Stock
Exchange or the American Stock Exchange;
16
(d) the failure for any reason by the Transfer Agent to issue Purchase
Shares to the Buyer within five (5) Trading Days after the applicable Purchase
Date which the Buyer is entitled to receive (subject to the Company's right to
cure such Event of Default upon five (5) Trading Days' written notice from the
Buyer to the Company);
(e) if at any time after the Commencement Date, the "Exchange Cap" is
reached (the "Exchange Cap" shall be deemed to be reached at such time if, upon
submission of a Purchase Notice under this Agreement, the issuance of such
shares of Common Stock would exceed that number of shares of Common Stock which
the Company may issue under this Agreement without breaching the Company's
obligations under the rules or regulations of the Principal Market);
(f) the Company breaches any representation, warranty, covenant or other
term or condition under any Transaction Document if such breach could have a
Material Adverse Effect and except, in the case of a breach of a covenant which
is reasonably curable, only if such breach continues for a period of at least
ten (10) Trading Days;
(g) except as set forth on Schedule 9(g), any payment default under any
contract whatsoever or any acceleration prior to maturity of any mortgage,
indenture, contract or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company or for money borrowed the repayment of which is guaranteed by the
Company, whether such indebtedness or guarantee now exists or shall be created
hereafter, which, with respect to any such payment default or acceleration prior
to maturity, is in excess of $1,000,000;
(h) if any Person commences a proceeding against the Company pursuant to
or within the meaning of any Bankruptcy Law;
(i) if the Company pursuant to or within the meaning of any Bankruptcy
Law; (A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its property, (D) makes a
general assignment for the benefit of its creditors, (E) becomes insolvent, or
(F) is generally unable to pay its debts as the same become due; or
(j) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (A) is for relief against the Company in an involuntary
case, (B) appoints a Custodian of the Company or for all or substantially all of
its property, or (C) orders the liquidation of the Company or any Subsidiary.
In addition to any other rights and remedies under applicable law and this
Agreement, including the Buyer termination rights under Section 11(k) hereof, so
long as an Event of Default has occurred and is continuing, or if any event
which, after notice and/or lapse of time, would become an Event of Default, has
occurred and is continuing, or so long as the Purchase Price is below the
Purchase Price Floor, the Buyer shall not be obligated to purchase any shares of
Common Stock under this Agreement. If pursuant to or within the meaning of any
Bankruptcy Law, the Company commences a voluntary case or any Person commences a
proceeding against the Company, a Custodian is appointed for the Company or for
all or substantially all of its property, or the Company makes a general
assignment for the benefit of its creditors, (any of which would be an Event of
Default as described in Sections 9(h), 9(i) and 9(j) hereof) this Agreement
shall automatically terminate without any liability or payment to the Company
without further action or notice by any Person. No such termination of this
Agreement under Section 11(k)(i) shall affect the Company's or the Buyer's
obligations under this Agreement with respect to pending
17
purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.
10. CERTAIN DEFINED TERMS.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "Available Amount" means initially Ten Million Dollars ($10,000,000)
in the aggregate which amount shall be reduced by the Purchase Amount each time
the Buyer purchases shares of Common Stock pursuant to Section 1 hereof.
(c) "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
(d) "Closing Sale Price" means, for any security as of any date, the last
closing trade price for such security on the Principal Market as of the regular
closing of the Principal Market (i.e. not including after-hours trading) as
reported by Bloomberg, or, if the Principal Market is not the principal
securities exchange or trading market for such security, the last closing trade
price of such security on the principal securities exchange or trading market
where such security is listed or traded as of the regular closing of such
exchange or market as reported by Bloomberg.
(e) "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
(f) "Daily Base Amount" means initially Twelve Thousand Five Hundred
Dollars ($12,500) per Trading Day, which amount may be increased or decreased
from time to time pursuant to Section 1(c) hereof.
(g) "Floor Price" means initially $0.35, which amount may be increased or
decreased from time to time pursuant to Section 1(d)(iii) hereof, except that in
no case shall the Floor Price be less than $0.25 without the prior written
consent of the Buyer.
(h) "Maturity Date" means the date that is 800 Trading Days (40 Monthly
Periods) from the Commencement Date which such date may be extended by up to an
additional six (6) Monthly Periods by the Company, in its sole discretion, by
written notice to the Buyer.
(i) "Monthly Base Amount" means Two Hundred Fifty Thousand Dollars
($250,000) per Monthly Period.
(j) "Monthly Period" means each successive 20 Trading Day period
commencing with the Commencement Date.
(k) "Original Daily Base Amount" means Twelve Thousand Five Hundred
Dollars ($12,500) per Trading Day.
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(l) "Person" means an individual or entity including any limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof.
(m) "Principal Market" means the Nasdaq SmallCap Market; provided,
however, that in the event the Company's Common Stock is ever listed for trading
on the Nasdaq National Market, Nasdaq OTC/Bulletin Board Market or the American
Stock Exchange, than the "Principal Market" shall mean such other market on
which the Company's Common Stock is then listed.
(n) "Purchase Amount" means the portion of the Available Amount to be
purchased by the Buyer pursuant to Section 1 hereof.
(o) "Purchase Date" means the actual date that the Buyer is to buy
Purchase Shares pursuant to Section 1 hereof.
(p) "Purchase Price" means, as of any date of determination the lower of
the (A) the lowest Sale Price of the Common Stock on such date of determination
and (B) the arithmetic average of the three (3) lowest Closing Sale Prices for
the Common Stock during the ten (10) consecutive Trading Days ending on the
Trading Day immediately preceding such date of determination (to be
appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction).
(q) "Sale Price" means, for any security as of any date, any trade price
for such security on the Principal Market during regular trading hours (i.e. not
including after-hours trading)as reported by Bloomberg, or, if the Principal
Market is not the principal securities exchange or trading market for such
security, the trade price of such security on the principal securities exchange
or trading market where such security is listed or traded during regular trading
hours as reported by Bloomberg.
(r) "SEC" means the United States Securities and Exchange Commission.
(s) "Transfer Agent" means the transfer agent of the Company as set forth
in Section 11(f) hereof or such other person who is then serving as the transfer
agent for the Company in respect of the Common Stock.
(t) "Trading Day" means any day on which the Principal Market is open for
customary trading.
11. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION; JURY TRIAL. The corporate laws of the
State of Delaware shall govern all issues concerning the relative rights of the
Company and its shareholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the other
Transaction Documents shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of Illinois. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of Chicago, for
the adjudication of any dispute hereunder or under the other Transaction
Documents or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any
19
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(b) COUNTERPARTS. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile signature shall be
considered due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original, not a facsimile
signature.
(c) HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(e) ENTIRE AGREEMENT; AMENDMENTS. With the exception of the Mutual
Nondisclosure Agreement between the parties dated as of December 03, 2001, this
Agreement supersedes all other prior oral or written agreements between the
Buyer, the Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement, the other
Transaction Documents and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor the Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be
amended other than by an instrument in writing signed by the Company and the
Buyer, and no provision hereof may be waived other than by an instrument in
writing signed by the party against whom enforcement is sought.
(f) NOTICES. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Trading Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
20
If to the Company:
TenFold Corporation
000 Xxxx Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: General Counsel
With a copy to:
Xxxxxx, Xxxxxx & Xxxxx
000 Xxxxx Xxxxx Xxx.
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Buyer:
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Transfer Agent:
EquiServe Trust Company, N.A.
000 Xxxxxxxxxx Xxxx., 0xx Xxxxx
Xxxx Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxx
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) Trading Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, and recipient facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Buyer, including by merger or
consolidation. The Buyer may not assign its rights or obligations under this
Agreement.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
21
(i) PUBLICITY. The Buyer shall have the right to approve before issuance
any press releases or any other public disclosure (including any filings with
the SEC) with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of the
Buyer, to make any press release or other public disclosure (including any
filings with the SEC) with respect to such transactions as is required by
applicable law and regulations (although the Buyer shall be consulted by the
Company in connection with any such press release or other public disclosure
prior to its release and shall be provided with a copy thereof).
(j) FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) TERMINATION. This Agreement may be terminated only as follows:
(i) By the Buyer any time an Event of Default exists without any
liability or payment to the Company. However, if pursuant to or within the
meaning of any Bankruptcy Law, the Company commences a voluntary case or
any Person commences a proceeding against the Company, a Custodian is
appointed for the Company or for all or substantially all of its property,
or the Company makes a general assignment for the benefit of its creditors,
(any of which would be an Event of Default as described in Sections 9(h),
9(i) and 9(j) hereof) this Agreement shall automatically terminate without
any liability or payment to the Company without further action or notice by
any Person. No such termination of this Agreement under this Section
11(k)(i) shall affect the Company's or the Buyer's obligations under this
Agreement with respect to pending purchases and the Company and the Buyer
shall complete their respective obligations with respect to any pending
purchases under this Agreement.
(ii) In the event that the Commencement shall not have occurred, the
Company shall have the option to terminate this Agreement for any reason or
for no reason without liability of any party to any other party.
(iii) In the event that the Commencement shall not have occurred on or
before May 31, 2002, due to the failure to satisfy the conditions set forth
in Sections 6 and 7 above with respect to the Commencement (and the
nonbreaching party's failure to waive such unsatisfied condition(s)), the
nonbreaching party shall have the option to terminate this Agreement at the
close of business on such date or thereafter without liability of any party
to any other party.
(iv) If by the Maturity Date (including any extension thereof by the
Company pursuant to Section 10(g) hereof), for any reason or for no reason
the full Available Amount under this Agreement has not been purchased as
provided for in Section 1 of this Agreement, by the Buyer without any
liability or payment to the Company.
(v) At any time after the Commencement Date, the Company shall have
the option to terminate this Agreement for any reason or for no reason by
delivering notice (a "Company Termination Notice") to the Buyer electing to
terminate this Agreement without any liability or payment to the Buyer. The
Company Termination Notice shall not be effective until one (1) Trading Day
after it has been received by the Buyer.
22
(vi) This Agreement shall automatically terminate on the date that the
Company sells and the Buyer purchases Ten Million Dollars ($10,000,000) as
provided herein, without any action or notice on the part of any party.
Except as set forth in Sections 11(k)(i) (in respect of an Event of Default
under Sections 9(h), 9(i) and 9(j)) and 11(k)(vi), any termination of this
Agreement pursuant to this Section 11(k) shall be effected by written notice
from the Company to the Buyer, or the Buyer to the Company, as the case may be,
setting forth the basis for the termination hereof. The representations and
warranties of the Company and the Buyer contained in Sections 2 and 3 hereof,
the indemnification provisions set forth in Section 8 hereof and the agreements
and covenants set forth in Section 11, shall survive the Commencement and any
termination of this Agreement. No termination of this Agreement shall affect the
Company's or the Buyer's obligations under this Agreement with respect to
pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.
(l) NO FINANCIAL ADVISOR, PLACEMENT AGENT, BROKER OR FINDER. The Company
acknowledges that it has retained Chela Technology Partners, LLC as financial
advisor in connection with the transactions contemplated hereby. The Company
represents and warrants to the Buyer that it has not engaged any other financial
advisor, placement agent, broker or finder in connection with the transactions
contemplated hereby. The Buyer represents and warrants to the Company that it
has not engaged any financial advisor, placement agent, broker or finder in
connection with the transactions contemplated hereby. The Company shall be
responsible for the payment of any fees or commissions, if any, of any financial
advisor, placement agent, broker or finder relating to or arising out of the
transactions contemplated hereby. The Company shall pay, and hold the Buyer
harmless against, any liability, loss or expense (including, without limitation,
attorneys' fees and out of pocket expenses) arising in connection with any such
claim.
(m) NO STRICT CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
(n) REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The
Buyer's remedies provided in this Agreement shall be cumulative and in addition
to all other remedies available to the Buyer under this Agreement, at law or in
equity (including a decree of specific performance and/or other injunctive
relief), no remedy of the Buyer contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit the Buyer's right to pursue actual damages for any failure by the
Company to comply with the terms of this Agreement. The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to
the Buyer and that the remedy at law for any such breach may be inadequate. The
Company therefore agrees that, in the event of any such breach or threatened
breach, the Buyer shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without the necessity of
showing economic loss and without any bond or other security being required.
(o) CHANGES TO THE TERMS OF THIS AGREEMENT. This Agreement and any
provision hereof may only be amended by an instrument in writing signed by the
Company and the Buyer. The term "Agreement" and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or supplemented.
(p) ENFORCEMENT COSTS. If: (i) this Agreement is placed by the Buyer in
the hands of an attorney for enforcement or is enforced by the Buyer through any
legal proceeding; or (ii) an attorney is
23
retained to represent the Buyer in any bankruptcy, reorganization, receivership
or other proceedings affecting creditors' rights and involving a claim under
this Agreement; or (iii) an attorney is retained to represent the Buyer in any
other proceedings whatsoever in connection with this Agreement, then the Company
shall pay to the Buyer, as incurred by the Buyer, all reasonable costs and
expenses including attorneys' fees incurred in connection therewith, in addition
to all other amounts due hereunder.
(q) FAILURE OR INDULGENCE NOT WAIVER. No failure or delay in the exercise
of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege.
* * * * *
24
IN WITNESS WHEREOF, the Buyer and the Company have caused this Common Stock
Purchase Agreement to be duly executed as of the date first written above.
THE COMPANY:
TENFOLD CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx III
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx III
Title: Executive Vice-President
BUYER:
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
25
