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EXHIBIT 10.15
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this
18th day of August, 1999, by and between BSQUARE Corporation, a Washington
corporation (the "Company"), and Vulcan Ventures Incorporated, a Washington
corporation ("Investor").
WHEREAS, the Company desires to sell shares of its common stock, no par
value ("Common Stock"), to Investor and Investor desires to purchase such
shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
SECTION 1. PURCHASE AND SALE OF SHARES
1.1 Sale and Purchase. Upon the terms and subject to the conditions
contained herein, and in reliance on the representations and warranties set
forth in Sections 2 and 3 below, at the Closing (as defined below) Investor
shall purchase from the Company, and the Company shall issue and sell to
Investor, One Million Five Hundred Eighteen Thousand Three Hundred Seventy-Eight
(1,518,378) shares of Common Stock (the "Shares") at a purchase price of
$12.31728084 per share for an aggregate purchase price of $18,702,288.25 (the
"Purchase Price").
1.2 Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 3:00 p.m. on the fifth business day following the
termination or expiration of any applicable waiting periods under the
Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act of 1976, as amended (the "HSR
Act") (the "Closing Date").
SECTION 2. REPRESENTATIONS AND WARRANTIES OF COMPANY
In order to induce the Investor to enter into this Agreement, the
Company represents and warrants to Investor:
2.1 Organization and Corporate Power. The Company is a corporation duly
organized and validly existing under the laws of the State of Washington. The
Company has all required corporate power and authority to carry on its business
as presently conducted and as described in the Registration Statement (as
defined below), to enter into and perform this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of the
Company pursuant to or as contemplated by this Agreement and to carry out the
transactions contemplated hereby and thereby, including the issuance and sale of
the Shares.
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2.2 Authorization and Non-Contravention. The execution, delivery and
performance by the Company of this Agreement and each agreement, document and
instrument to be executed and delivered by or on behalf of the Company pursuant
to or as contemplated by this Agreement and the issuance and sale of the Shares,
have been duly authorized by all necessary corporate action of the Company. This
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of the Company pursuant to or as contemplated by this
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of the Company pursuant to or as contemplated by this
Agreement and the performance by the Company of the transactions contemplated
hereby and thereby, including the issuance and delivery of the Shares, do not
and will not: (A) violate, conflict with or result in a default (whether after
the giving of notice, lapse of time or both) under any material contract or
obligation to which the Company is a party or by which it or its assets are
bound and which have not been waived, or any provision of the articles of
incorporation or bylaws of the Company; (B) to the Company's knowledge, violate
or result in a violation of, or constitute a default under, any provision of any
material law, regulation or rule, or any order of, or any restriction imposed
by, any court or governmental agency applicable to the Company; (C) require from
the Company any notice to, declaration or filing with, or consent or approval of
any governmental authority or third party other than as may be required (x) to
secure an exemption from qualification of the offer and sale of the Shares under
the Securities Act of 1933, as amended (the "Securities Act"), and applicable
state securities and blue sky laws, or (y) under the HSR Act; or (D) accelerate
any obligation under, or give rise to a right of termination of, any material
agreement, permit, license or authorization to which the Company is a party or
by which the Company is bound.
2.3 Capitalization. As of July 31, 1999, the authorized capital stock
of the Company consisted of 50,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, of which 18,266,399 shares of Common Stock and
8,333,333 shares of Series A Preferred Stock were outstanding. The Company has
reserved a total of 5,625,000 shares of Common Stock for issuance under its
stock option plan. As of July 31, 1999, there were outstanding options to
purchase 2,995,749 shares of Common Stock and 224,726 shares had been issued
upon exercise of options granted under the plan. The Company has authorized the
issuance of 1,500,000 shares of Common Stock under an Employee Stock Purchase
Plan that will be implemented upon effectiveness of the Registration Statement
referred to in Section 2.4 below. As of the Closing, and after giving effect to
the transactions contemplated hereby, all of the outstanding shares of capital
stock of the Company (including, without limitation, the Shares) will have been
validly issued, fully paid and non-assessable.
2.4 No Material Misstatements. The written materials provided to
Investor by the Company in a disclosure schedule on the date hereof do not, as
of the date hereof, contain any untrue statement of a material fact or omit to
state a material fact required to be stated or necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading.
2.5 No Other Representations. Other than as set forth in this Section
2, the Company makes no other representations and warranties to Investor,
written or oral, including without limitation, any representation with respect
to the valuation of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF INVESTOR
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In order to induce the Company to enter into this Agreement, Investor
represents and warrants to the Company:
3.1 Suitability of Investment. Investor represents to the Company that
it: (i) is a "qualified institutional buyer" as such term is defined in Rule
144A promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), (ii) has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the investment
contemplated by this Agreement and making an informed investment decision with
respect thereto; (iii) is able to bear the economic risk of an investment in the
Shares and can afford to sustain a substantial loss on such investment; (iv) has
made an independent investigation of the Company and relied upon its own due
diligence, valuation analysis and other analyses in determining to purchase the
Shares; and (v) is purchasing the Shares for its own account, for investment
only and not with a view to, or any present intention of, effecting a
distribution of such securities or any part thereof except pursuant to a
registration or an available exemption under applicable law.
3.2. Shares Not Registered. Investor acknowledges that the Shares have
not been registered under the Securities Act or the securities laws of any state
or other jurisdiction and cannot be disposed of unless the Shares are
subsequently registered under the Securities Act and any applicable state laws
or an exemption from such registration is available. Investor understands that
there is no public market for the Shares and that it must bear the economic risk
of investment in the Company for an indefinite period of time.
3.3. Authority to Purchase. Investor has the full right, authority and
power under its governing charter documents to enter into this Agreement and
each agreement, document and instrument to be executed and delivered by or on
behalf of Investor pursuant to or as contemplated by this Agreement and to carry
out the transactions contemplated hereby and thereby, and the execution,
delivery and performance by Investor of this Agreement and each such other
agreement, document and instrument have been duly authorized by all necessary
action under Investor's governing charter documents. This Agreement and each
agreement, document and instrument executed and delivered by Investor pursuant
to or as contemplated by this Agreement constitute, or when executed and
delivered will constitute, valid and binding obligations of Investor enforceable
in accordance with their respective terms. The execution, delivery and
performance by Investor of this Agreement and each such other agreement,
document and instrument, and the performance of the transactions contemplated
hereby and thereby, do not and will not: (i) to Investor's knowledge, violate,
conflict with or result in a default (whether after the giving of notice, lapse
of time, or both) under any material contract or obligation to which Investor is
a party or by which it or its assets are bound; (ii) violate or result in a
violation of, or constitute a default under, any provision of any material law,
regulation or rule, or any order of, or any restriction imposed by, any court or
other governmental agency applicable to Investor, or (iii) require from Investor
any notice to, declaration or filing with, or consent or approval of any
governmental authority or other third party, other than as may be required under
the HSR Act.
3.4. Legend. Investor acknowledges and agrees that the following legend
shall be placed on each certificate evidencing the Shares:
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSIONS
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT
TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES AND
BLUE SKY LAWS, PROVIDED THAT AN OPINION OF COUNSEL TO SUCH EFFECT IS
PROVIDED TO THE COMPANY IN CONNECTION THEREWITH.
SECTION 4. CONDITIONS OF PURCHASE
Investor's obligation to purchase and pay for the Shares is subject to
the satisfaction at or prior to the Closing Date of the following conditions:
4.1 Representations and Warranties; Performance of Obligations. The
representations and warranties of the Company made in Section 2 hereof shall be
true and correct as of the Closing Date with the same force and effect as if
they had been made as of 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.
4.2 Opinion of Counsel. Investor shall have received from Summit Law
Group, PLLC an opinion addressed to it, dated as of the Closing Date, in a form
agreed to by the parties.
4.3 HSR Act. The waiting period (and any extension thereof) under the
HSR Act with respect to the transaction shall have been terminated or expired.
4.4 Registration Rights Agreement. A Registration Rights Agreement in
substantially the form attached as Exhibit A hereto shall have been executed and
delivered by the parties hereto.
SECTION 5. COVENANTS OF COMPANY
5.1 Redemption Right.
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(a) If a registration statement registering shares of the Company's
common stock for sale in an initial public offering (an "IPO") and pursuant to
which the Company's Series A Preferred Stock is converted to Common Stock, is
not declared effective by the Securities and Exchange Commission on or before
December 15, 1999, then beginning on December 15, 1999 and ending on December
29,1999 (the "Redemption Period") Investor may demand that up to 100% of the
Shares be redeemed by the Company. Such redemption right shall be exercised by
giving written notice (the "Notice") to the Company during the Redemption
Period, stating in such Notice the number of Shares to be redeemed and
delivering the certificates for the Shares to be so redeemed to the Company.
Upon its receipt of the Notice and share certificates, the Company shall have
until the close of business on January 12, 2000, to redeem all Shares as to
which it received Notice for redemption of in accordance with the foregoing to
the extent that the Company's shareholders' equity is sufficient for such
purpose under Washington law. Any redemption hereunder shall be at a redemption
price equal to the per share price paid by Investor (adjusted appropriately for
stock splits, stock dividends and the like) (the "Redemption Price").
(b) This redemption right shall terminate in all cases, immediately
upon the effectiveness of a registration statement in an IPO on or before
December 15, 1999 and pursuant to which the Company's Series A Preferred Stock
is converted to Common Stock.
(c) If the Company does not, under Washington law, have sufficient
shareholders' equity to redeem all the Shares for which redemption is requested,
then it shall redeem all remaining Shares as soon as it may legally do so. In
the event that the Company fails to timely redeem Shares for which redemption is
requested, then the Redemption Price for such Shares shall bear interest at a
per annum rate equal to the Prime Rate (as reported by the Wall Street Journal
from time to time) plus five (5) percent.
(d) The Company agrees and covenants that it shall set up a
separate account for the funds to be received from Investor in payment of the
Purchase Price and agrees and covenants that it will not use any of such funds
for any purposes whatsoever prior to the closing of an IPO without the express
written permission of Investor.
5.2 Antitrust Notification. The Company shall within ten business days
of the date hereof file with the United States Federal Trade Commission and the
United States Department of Justice the notification and report form required
for the transactions contemplated hereby and any supplemental or additional
information which may reasonably be requested in connection therewith pursuant
to the HSR Act and will comply in all material respects with the requirements of
the HSR Act.
5.3 Board Representation. At Investor's request, the Company agrees
that it shall use its best efforts to cause Xxxxx Xxxxx, or another
representative of Investor reasonably acceptable to Company, to be elected to
the Company's board of directors.
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SECTION 6. COVENANTS OF INVESTOR
6.1 Board Representation. As promptly as practicable after an IPO,
Investor shall make available Xxxxx Xxxxx, or another representative reasonably
acceptable to the Company, to serve on the Company's Board of Directors.
6.2 Lock-up Agreement. Investor covenants and agrees that in connection
with an IPO it will execute and deliver to the underwriters selected by the
Company a "lock-up" agreement in such form as is requested of other Company
shareholders and pursuant to which Investor will agree that for a period not to
exceed 180 days it will not directly or indirectly offer, transfer, donate,
sell, assign, pledge, hypothecate or otherwise dispose of all or any portion of
the Shares.
6.3 Antitrust Notification. Investor will use its best efforts within
ten business days of the date hereof file with the United States Federal Trade
Commission and the United States Department of Justice the notification and
report form required for the transactions contemplated hereby and any
supplemental or additional information which may reasonably be requested in
connection therewith pursuant to the HSR Act and will comply in all material
respects with the requirements of the HSR Act.
6.4 Strategic Relationships. Investor shall exercise reasonably
commercial efforts to facilitate strategic relationships and customer
introductions for the Company within the set-top box market segment.
SECTION 7. GENERAL
7.1 Governing Law. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, the laws of the State of
Washington, without giving effect to conflict of laws principles thereof.
7.2 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original, but such counterparts shall together constitute but one
and the same instrument.
7.3 Notices and Demands. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand,
facsimile, or two (2) days after being sent by overnight delivery providing
receipt of delivery, to the following addresses:
if to the Company: BSQUARE Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
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copy to: Summit Law Group, P.L.L.C.
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
if to Investor: Vulcan Ventures Incorporated
000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
copy to: Xxxxxx Godward LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxx
Fax: 000-000-0000
7.4 Integration. This Agreement, including the exhibits, documents and
instruments referred to herein or therein, constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COMPANY:
BSQUARE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name:
Title:
INVESTOR:
VULCAN VENTURES INCORPORATED.
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
this 18th day of August, 1999, by and between BSQUARE Corporation, a Washington
corporation (the "Company"), and Vulcan Ventures Incorporated, a Washington
corporation ("Holder").
WHEREAS, the Company has entered into a Stock Purchase Agreement with
Holder dated as of the date hereof for the issuance and sale to Holder of
1,518,378 shares of Company Common Stock (the "Shares"); and
WHEREAS, in connection with the purchase of the Shares, the Company has
agreed to offer Holder certain rights with respect to the registration of such
Shares under the Securities Act of 1933, as amended (the "Securities Act").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. Piggy-Back Registration.
(a) If at any time or times after the Company has had a registration
statement with respect to an initial public offering of shares of its Common
Stock declared effective by the Securities and Exchange Commission (the "SEC"),
the Company shall seek to register any shares of its Common Stock under the
Securities Act, whether in connection with a public offering of securities by
the Company (a "primary offering"), a public offering of securities by
shareholders of the Company (a "secondary offering"), or both, the Company will
promptly, but in any event at least 30 days prior to the filing of the
applicable registration statement, give written notice thereof to Holder holding
Registrable Securities (as such term is hereinafter defined). If, prior to the
filing of the applicable registration statement, Holder requests in a writing
delivered to the Company the inclusion of some or all of the Registrable
Securities owned by it in such registration, the Company will use its best
efforts to effect the registration under the Securities Act of all Registrable
Securities requested to be so included.
(b) In the case of the registration of shares of capital stock by the
Company in connection with any underwritten public offering, if the
underwriter(s) determines that marketing factors require a limitation on the
number of Registrable Securities to be offered, the Company shall not be
required to register Registrable Securities of Holder in excess of the amount,
if any, of shares of the capital stock which the principal underwriter of such
underwritten offering shall reasonably and in good faith agree to include in
such offering in excess of any amount to be registered for the Company. If any
limitation of the number of shares ("secondary shares") to be sold by selling
shareholders, including Holder, is required, then the number of secondary shares
that may be included in the registration statement shall be allocated among all
selling shareholders
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who have been granted registration rights by the Company in proportion, as
nearly as practicable, to the respective holdings of all such selling
shareholders.
(c) The provisions of this Section 1 will not apply to a registration
effected solely to implement (i) an employee benefit plan or similar
registration on Form S-8, or (ii) a merger or similar registration on Form S-4,
or (iii) a transaction to which Rule 145 or any other similar rule of the SEC
under the Securities Act is applicable.
2. Registrable Securities. For the purposes of this Agreement, the
term "Registrable Securities" shall mean any shares of Common Stock held by
Holder, including any shares issued by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, and provided, further, that any Common
Stock that is sold in a registered sale pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144 thereunder, or that
may be sold without restriction as to volume or otherwise pursuant to Rule 144
under the Securities Act (as confirmed by an unqualified opinion of counsel to
the Company), shall not be deemed Registrable Securities.
3. Further Obligations of the Company. Whenever the Company is
required hereunder to register any Registrable Securities, it agrees that it
shall also do the following:
(a) Pay all expenses of such registrations and offerings (exclusive
of underwriting discounts and commissions);
(b) Furnish to Holder such copies of each preliminary and final
prospectus and such other documents as Holder may reasonably request to
facilitate the public offering of its Registrable Securities;
(c) Use its best efforts (with due regard to management of the
ongoing business of the Company and the allocation of managerial resources) to
register or qualify the securities covered by said registration statement under
the securities or "blue sky" laws of such jurisdictions as Holder may reasonably
request, provided that the Company shall not be required to register or qualify
the securities in any jurisdictions which require it to qualify to do business
therein;
(d) Immediately notify Holder, at any time when a prospectus
relating to Holder's Registrable Securities is required to be delivered under
the Securities Act, of the happening of any event as a result of which such
registration statement or such prospectus contains an untrue statement of a
material fact or omits any material fact necessary to make the statements
therein not misleading, and, at the request of Holder, promptly prepare an
amendment to such registration statement or supplement to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
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(e) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(f) Otherwise use its best efforts to comply with the securities
laws of the United States and other applicable jurisdictions and all applicable
rules and regulations of the SEC and comparable governmental agencies in other
applicable jurisdictions and make generally available to its holders, in each
case as soon as practicable, but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company which will satisfy
the provisions of Section 11(a) of the Securities Act; and
(g) Otherwise cooperate with the underwriter or underwriters, the
SEC and other regulatory agencies and take all actions and execute and deliver
or cause to be executed and delivered all documents necessary to effect the
registration of any Registrable Securities under this Agreement.
4. Indemnification; Contribution.
(a) Incident to any registration statement filed hereunder, the
Company will indemnify and hold harmless Holder, including its partners,
directors, officers, employees and agents, and each person who controls any of
them (a "Controlling Person") within the meaning of Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934,a s amended (the
"Exchange Act"), from and against any and all losses, claims, damages, expenses
and liabilities, joint or several (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, as the same are incurred), to
which they, or any of them, may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based on (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement (including any related
preliminary or definitive prospectus, or any amendment or supplement to such
registration statement or prospectus), (ii) any omission or alleged omission to
state in such document a material fact required to be stated in it or necessary
to make the statements in it not misleading, or (iii) any violation by the
Company of the Securities Act, any state securities or "blue sky" laws or any
rule or regulation thereunder in connection with such registration; provided,
however, that the Company will not be liable to the extent that such loss,
claim, damage, expense or liability arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information furnished in writing to the Company by
such Holder or Controlling Person expressly for use in such registration
statement. With respect to such untrue statement or omission or alleged untrue
statement or omission in the information furnished in writing to the Company by
Holder or a Controlling Person expressly for use in such registration statement,
Holder will indemnify and hold harmless each underwriter, the Company (including
its directors, officers, employees and agents), each
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other holder of other registration rights who registered securities, including
its partners (including partners of partners and shareholders of such partners),
directors, officers, employees and agents of any of them, and each person who
controls any of them within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, expenses and liabilities, joint or several, to which they, or any of
them, may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise to the
same extent provided in the immediately preceding sentence. In no event,
however, shall Holder be liable for indemnification under this Section 4(a) for
an amount in excess of the proceeds (net of the applicable underwriting
discount) received by Holder from its sale of Registrable Securities under such
registration statement.
(b) If the indemnification provided for in Section 4(a) above for
any reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
4, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, Holder and
the underwriters from the offering of the Registrable Securities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
Holder and the underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages, expenses or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, the Holder and the underwriters shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company and Holder and the underwriting discount
received by the underwriters, in each case as set forth in the table on the
cover page of the applicable prospectus, bear to the aggregate public offering
price of the Registrable Securities. The relative fault of the Company, Holder
and the underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, Holder or the underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, Holder, and the underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 4(b) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall Holder be
required to contribute any amount under this Section 4(b) in excess of the
proceeds (net of the applicable underwriting discount) received by Holder from
its sale of Registrable Securities under such registration statement. No person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f)
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of the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 4 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 4 will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified parties
or any officer, director, employee, agent or controlling person of the
indemnified parties.
(d) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions of such underwriting
agreement shall control.
5. Rule 144 and Rule 144A Requirements. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use its best efforts to take all action as may be required as a condition
to the availability of Rule 144 or Rule 144A under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). The Company shall
furnish to Holder, within 15 days of a written request, a written statement
executed by the Company as to the steps it has taken to comply with the current
public information requirements of Rule 144 or Rule 144A or such successor
rules.
6. "Market Stand-Off" Agreement. In connection with any underwritten
public offering by the Company, Holder, if requested in good faith by the
Company and the managing underwriter of the Company's securities and all
executive officers and directors of the Company have entered into similar
agreements, shall agree not to sell or otherwise transfer or dispose of any
securities of the Company held by them (except for any securities sold pursuant
to such registration statement) for a period following the effective date of the
applicable registration statement that in no event shall exceed 180 days. In
order to enforce the foregoing, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of Holder (and the
securities of every other person subject to the foregoing restriction) until the
end of such period.
7. General.
(a) This Agreement shall be deemed to be a contract made under, and
shall be construed in accordance with, the laws of the State of Washington,
without giving effect to conflict of laws principles thereof.
(b) This Agreement may be executed simultaneously in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original, but such counterparts shall together constitute but one and the
same instrument.
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(c) Any notice or demand which is required or provided to be given
under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand, facsimile, or two (2) days
after being sent by overnight delivery providing receipt of delivery, to the
following addresses:
if to the Company: BSQUARE Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
copy to: Summit Law Group P.L.L.C.
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
if to Holder: Vulcan Ventures Incorporated
000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
copy to: Xxxxxx Godward LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxx
Fax: 000-000-0000
(d) This Agreement constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
BSQUARE CORPORATION
By:
Name:
Title:
VULCAN VENTURES INCORPORATED
By:
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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