EXHIBIT 4.5
WARRANT PURCHASE AGREEMENT dated as of May 14, 1997 between ORACLE
CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX, XXXXX & CO., a
New York partnership ("Xxxxxxx Sachs").
WHEREAS, the Company proposes to enter into a Warrant Agreement (the
"Warrant Agreement"), substantially in the form of Exhibit I hereto, between the
Company and BankBoston, N.A., a national banking association, a California
banking corporation, as Warrant Agent, pursuant to which the Company proposes to
issue up to 5,000,000 Equity Call Warrants in one or more series (collectively,
the "Warrants" or, individually a "Warrant"), each representing the right to
purchase, subject to the terms and conditions set forth therein, one share of
the common stock, par value $0.01 per share (the "Common Stock"), of the
Company;
WHEREAS, in connection with the purchase of the Warrants pursuant to
the terms hereof and one or more Pricing Agreements (as defined herein), the
Company proposes to repurchase on the Closing Date up to 3,500,000 shares of
Common Stock pursuant to one or more Repurchase Contracts to be entered into
between the Company and Xxxxxxx Xxxxx (the "Repurchase Contracts"); and
WHEREAS, capitalized terms not defined herein are used as defined in
the Warrant Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements and other considerations set forth herein, the parties hereto agree
as follows:
1. Representations and Warranties. (a) The Company hereby
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represents and warrants to Xxxxxxx Sachs, as of the date hereof, as of each
Pricing Date (as defined herein) and as of each Closing Date as follows:
(i) The Company has been duly incorporated, and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own its
property and conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(iii) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(iv) The shares of Common Stock outstanding prior to the issuance of the
Warrants have been duly authorized and are validly issued, fully paid and
non-assessable.
(v) The Company has all requisite power and authority (corporate and
other), and has taken all necessary corporate action, to authorize,
execute, deliver, and perform this Warrant Purchase Agreement, the Warrant
Agreement, each Pricing Agreement (as defined herein) and each Repurchase
Contract; to execute, issue, sell, and deliver the Warrants and a
certificate or certificates evidencing the Warrants; to authorize and
reserve for issuance and, upon payment from time to time of the Purchase
Price, to issue, sell, and deliver the shares of Underlying Common Stock
issuable upon exercise of the Warrants; and to perform all of its
obligations under this Warrant Purchase Agreement, the Warrant Agreement,
each Pricing Agreement, the Warrants and each Repurchase Contract.
(vi) Each of this Warrant Purchase Agreement, the Warrant Agreement, each
Pricing Agreement and each Repurchase Contract has been duly authorized by
the Company and this Warrant Purchase Agreement has been duly executed and
delivered by the Company. The Warrant Agreement, each Repurchase Contract
and each Pricing Agreement, when duly executed and delivered by the
Company, will be legal, valid and binding agreements of the Company
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(vii) The Warrants have been duly authorized and, when duly executed and
countersigned in accordance with the provisions of the Warrant Agreement,
will be legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) the availability of equitable remedies
may be limited by equitable principles of general applicability.
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(viii) The shares of Underlying Common Stock, when issued and delivered
in accordance with the terms of the Warrant Agreement and the Warrants,
will be validly issued, fully paid and non-assessable, and the issuance of
such shares will not be subject to any preemptive or similar rights.
(ix) Assuming the accuracy of the representations of Xxxxxxx Xxxxx made
in the letter referred to in Section 3(d), the execution and delivery by
the Company of, and the performance by the Company of its obligations
under, this Warrant Purchase Agreement, the Warrant Agreement, each Pricing
Agreement, the Warrants and each Repurchase Contract will not contravene
any provision of applicable law.
(x) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Warrant Purchase Agreement, the
Warrant Agreement, each Pricing Agreement, the Warrants and each Repurchase
Contract will not contravene the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Warrant Purchase
Agreement, the Warrant Agreement, each Pricing Agreement, the Warrants or
each Repurchase Contract, except such as may be required by the Securities
Act, the securities or Blue Sky laws of the various states, the rules of
the National Association of Securities Dealers, Inc. (the "NASD") or the
rules and regulations applicable to the listing of securities on the Nasdaq
National Market in connection with the reoffer and resale of the shares of
Underlying Common Stock by Xxxxxxx Sachs or the issuance of shares of
Underlying Common Stock to any person other than Xxxxxxx Xxxxx.
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(xii) The Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1996, as amended, and its Quarterly Reports on Form 10-Q for the
periods ended August 31, 1996, November 30, 1996 and February 28, 1997 (the
"1934 Act Reports") (as previously furnished to Xxxxxxx Sachs), at the time
they were filed did not, and, giving effect as of the date hereof and as of
each of the Closing Dates to the transactions contemplated hereby and by
the Warrant Agreement and each Pricing Agreement do not, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading.
(xiii) There has not occurred any material adverse change in the
financial condition, earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the 1934 Act
Reports.
(xiv) Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act ("Regulation D")) of the Company has
directly, or through any agent, sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of any security (as defined in the
Securities Act) that is or will be integrated with the sale of any Warrants
in a manner that would require the registration under the Securities Act of
the offering contemplated by this Agreement and the Warrant Agreement. The
Company also agrees not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of any Warrants in a
manner that would require the registration under the Securities Act of the
offering contemplated by this Agreement and the Warrant Agreement.
(xv) No form of general solicitation or general advertising (as those
terms are defined in Regulation D under the Securities Act) was used by the
Company or any of its representatives in connection with the offer and sale
of any Warrants.
(xvi) There are no material legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that would be required to be described by Item 103 of Regulation S-
K under the Securities Act were such Item applicable to the 1934 Act
Reports and are not described as required in the 1934 Act Reports.
(xvii) The Company acknowledges and agrees that it is not relying, and
has not relied, upon Xxxxxxx Xxxxx with respect to the legal, accounting,
tax or other implications of this Agreement and the Warrant Agreement and
the transactions contemplated hereby and thereby and that it has conducted
its own analysis of such transactions. The Company further acknowledges
and agrees that Xxxxxxx Sachs has not acted as its advisor in any capacity
in connection with this Agreement or the Warrant Agreement or the
transactions contemplated hereby or thereby. The Company understands and
acknowledges that Xxxxxxx Xxxxx and its Affiliates may from time to time
effect transactions, and hold positions, for their own accounts or the
accounts of customers, in securities or options on securities of the
Company and that Xxxxxxx Sachs and its Affiliates may continue to conduct
such transactions during the term of any Warrant.
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(b) Xxxxxxx Xxxxx agrees that it will not sell any Warrants or any
Underlying Common Stock except in compliance with the registration requirements
of Section 5 of the Securities Act or in a transaction that is exempt from such
registration.
Xxxxxxx Sachs acknowledges that the Company and, for purposes of the
opinions to be delivered to Xxxxxxx Xxxxx and the Company pursuant to Section 3
hereof, counsel to the Company and counsel to Xxxxxxx Sachs, will rely upon the
accuracy and truth of the foregoing agreement and hereby consents to such
reliance.
2. Purchase and Sale of Warrants. (a) The Company and Xxxxxxx Xxxxx
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propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") substantially in the form of Exhibit II hereto, with such additions
and deletions as the parties thereto may determine and subject to the terms and
conditions set forth herein, therein, and in the Warrant Agreement, pursuant to
which the Company will agree (i) to sell to Xxxxxxx Sachs and Xxxxxxx Xxxxx will
agree to purchase from the Company, up to an aggregate of 5,000,000 Warrants to
purchase, subject to the terms and conditions set forth in the Warrant
Agreement, up to an aggregate of 5,000,000 shares of Underlying Common Stock and
(ii) to repurchase shares of Common Stock (the "Repurchased Shares") pursuant
to, and subject to the terms and conditions set forth in, one or more Repurchase
Contracts. The terms and conditions of each particular sale of Warrants shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
this Warrant Purchase Agreement and the Warrant Agreement. This Warrant
Purchase Agreement shall not be construed as an obligation of the Company to
sell any of the Warrants or as an obligation of Xxxxxxx Sachs to purchase any of
the Warrants. The obligation of the Company to issue and sell any of the
Warrants and the obligation of Xxxxxxx Xxxxx to purchase any of the Warrants
shall be evidenced by the Pricing Agreement with respect to the Warrants
specified therein. Each Pricing Agreement shall specify the number of Warrants
of each series being purchased and the purchase price per Warrant of each
series. The date of each Pricing Agreement is hereinafter referred to as a
"Pricing Date." A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted.
(b) Payment by Xxxxxxx Sachs for each series of Warrants sold to
Xxxxxxx Xxxxx pursuant to the applicable Pricing Agreement and payment by the
Company to repurchase the Repurchased Shares pursuant to the applicable
Repurchase Contract shall be made in Federal or other funds immediately
available at the time and on the date as shall be specified on the applicable
Pricing Agreement and Repurchase Contract, respectively, (or as may be otherwise
agreed to by the parties thereto). The payment obligations of Xxxxxxx Sachs
with respect to the Warrants of any series may be netted against the payment
obligations of the Company with respect to the Repurchased Shares specified in
the related Repurchase Contract. The time and date of each such
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payment is hereinafter referred to as a Closing Date.
3. Conditions to Parties' Obligations. The obligations of the
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Company and Xxxxxxx Xxxxx hereunder and under each Pricing Agreement are subject
to the following conditions:
(a) Xxxxxxx Sachs shall have received on each Closing Date an opinion
of Venture Law Group, counsel for the Company, dated such Closing Date, to the
effect that:
(i) The Company has been duly incorporated, and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own its
property and conduct its business.
(iii) The Company has all requisite corporate power and authority, and
has taken all necessary corporate action, to authorize, execute, deliver,
and perform this Warrant Purchase Agreement, each Pricing Agreement, the
Warrant Agreement and each Repurchase Contract; to execute, issue, sell,
and deliver the Warrants and a certificate or certificates evidencing the
Warrants; to authorize and reserve for issuance and, upon payment from time
to time of the Purchase Price, to issue, sell, and deliver the shares of
Underlying Common Stock issuable upon exercise of the Warrants; and to
perform all of its obligations under the Warrant Purchase Agreement, each
Pricing Agreement, the Warrant Agreement, the Warrants and each Repurchase
Contract.
(iv) This Warrant Purchase Agreement, the Warrant Agreement, each Pricing
Agreement and each Repurchase Contract has been duly authorized, executed
and delivered by the Company, and the Warrant Agreement, each Repurchase
Contract and each Pricing Agreement are legal, valid and binding agreements
of the Company enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(v) The Warrants have been duly authorized, executed and countersigned in
accordance with the provisions of the Warrant Agreement and are legal,
valid and binding obligations of the Company, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
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(vi) The shares of Underlying Common Stock, when issued and delivered in
accordance with the terms of the Warrant Agreement and the Warrants, will
be validly issued, fully paid and non-assessable, and the issuance of such
shares will not be subject to any preemptive or similar rights set forth in
the Company's certificate of incorporation.
(vii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Warrant Purchase Agreement,
each Pricing Agreement, the Warrant Agreement, the Warrants and each
Repurchase Contract do not contravene any provision of applicable
California or Delaware General Corporate Law or federal law or the
certificate of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is set forth as an exhibit to
the 1934 Act Reports or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any California or federal
governmental body or agency is required for the performance by the Company
of its obligations under this Warrant Purchase Agreement, each Pricing
Agreement, the Warrant Agreement, the Warrants or each Repurchase Contract,
except such as may be required by the Securities Act, securities or Blue
Sky laws of the various states, the rules of the NASD or the rules and
regulations applicable to the listing of securities on the Nasdaq National
Market in connection with the reoffer and resale of the shares of
Underlying Common Stock by Xxxxxxx Xxxxx or the issuance of shares of
Underlying Common Stock to any person other than Xxxxxxx Sachs.
(viii) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(ix) Such counsel does not know of any material legal or governmental
proceeding pending or threatened as of such Closing Date to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that would
be required to be described by Item 103 of Regulation S-K under the
Securities Act were such Item applicable as of such Closing Date and are
not described as required in the 1934 Act Reports.
(x) Such counsel believes that (except for financial statements and
schedules as to which such counsel need express no belief) the 1934 Act
Reports, as of the date of this Warrant Purchase Agreement, did not, and,
giving effect as of the date
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hereof and as of each of the Closing Dates to the transactions contemplated
hereby and by the Warrant Agreement and each Pricing Agreement, as of such
Closing Date do not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(xi) The sale by the Company of the Warrants to Xxxxxxx Xxxxx in the
manner contemplated by this Warrant Purchase Agreement and the repurchase
by the Company of the Repurchased Shares in the manner contemplated by each
Repurchase Contract and this Warrant Agreement do not require registration
under the Securities Act.
(b) Each of Xxxxxxx Sachs and the Company shall have received on each
Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx (who may rely as to all matters
of California law upon the opinion referred to in paragraph (a) above), counsel
for Xxxxxxx Sachs, dated such Closing Date, covering the matters referred to in
subparagraphs (iv), (v), (vi) and (xi) of paragraph (a) above.
(c) Xxxxxxx Xxxxx shall have received on each Closing Date a
certificate dated such Closing Date and signed by an executive officer of the
Company, to the effect that the representations and warranties of the Company
contained in this Warrant Purchase Agreement are true and correct as of such
Closing Date and that the Company has complied in all material respects with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder, under the Warrant Agreement and under each
Pricing Agreement on or before such Closing Date and such other certificates and
documents as it may reasonably request.
(d) Counsel for the Company shall have received on each Closing Date
a letter dated such Closing Date and signed by an officer of Xxxxxxx Sachs,
substantially in the form of Exhibit III hereto.
(e) The Company shall have made available to Xxxxxxx Xxxxx, and
counsel, accountants or other professionals retained by Xxxxxxx Sachs, such
financial and other information, books, records and properties of the Company
and its subsidiaries, and caused the officers, directors, employees, counsel and
independent certified public accountants of the Company and its subsidiaries to
respond to such inquiries and supply all information, as is reasonably
necessary, in the judgment of Xxxxxxx Xxxxx and its counsel, to conduct a
reasonable investigation.
(f) On or prior to each Closing Date, the Company shall have purchased
from Xxxxxxx Sachs all the Repurchased Shares to be purchased pursuant to the
related Repurchase Contract.
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4. Shelf Registration. (a) Subject to the terms hereof, the Company
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agrees that it shall file under the Securities Act a "shelf" registration
statement (the "Shelf Registration") providing for the registration of the sale
on a continuous or delayed basis by Xxxxxxx Xxxxx of all Underlying Common Stock
issuable upon exercise of all of the Warrants pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the SEC. The
Company agrees to use its best efforts (i) to cause the Shelf Registration to
become or be declared effective on or prior to the earliest First Exercise Date
of all Warrants issued under the Warrant Agreement and sold pursuant to this
Agreement and each Pricing Agreement and (ii) to keep such Shelf Registration
continuously effective for a period ending 90 days after the Final Expiration
Date, subject to Section 4(d) (such period being referred to as the "Effective
Period"). Notwithstanding the first two sentences of this Section 4(a), the
Company may elect, in its sole discretion, not to file such Shelf Registration,
provided that if the Company so elects or in the event that the Shelf
Registration is not declared effective on or prior to such First Exercise Date,
the Company will exercise, with respect to all Warrants issued under the Warrant
Agreement and sold pursuant to this Agreement and each Pricing Agreement, its
right pursuant to Section 4(d) of the Warrant Agreement to effect either a Cash
Settlement or Net Share Settlement of each exercise of such Warrants.
(b) The Company further agrees, if necessary, to supplement or make
amendments to the Shelf Registration, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration or by the Securities Act or rules and regulations thereunder,
and the Company agrees to furnish to Xxxxxxx Sachs copies of any such supplement
or amendment prior to its being used and/or filed with the SEC and that it will
not file any such supplement or amendment to which Xxxxxxx Xxxxx reasonably
objects. In connection with such registration of the Underlying Common Stock,
the Company will, upon the request of Xxxxxxx Sachs use all reasonable efforts
to obtain a listing of the Underlying Common Stock on the Nasdaq National Market
or such national securities exchange or other quotation system on which the
Common Stock of the Company may at such time be listed. Xxxxxxx Xxxxx shall
notify (any such notice, a "Notice of Sale") the Company not less than five
Business Days prior to the date on which Xxxxxxx Sachs intends to commence any
sales of Underlying Common Stock pursuant to the Shelf Registration (the "Resale
Commencement Date").
(c) The Company's obligation to supplement or amend the Shelf
Registration pursuant to Section 4(b) hereof shall be subject to the terms
hereof (including Sections 4(d) and 4(e)) and the following limitations:
(i) in no event shall the Company be required to effect any such
supplement or amendment during the period beginning 14 Business Days prior
to the end of any fiscal quarter of the Company and ending two Business
Days after such time as the Company publicly releases its results of
operations for such fiscal quarter;
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(ii) subject to the provisions of subparagraph (iii) and Section 4(e)
below, the Company may on one or more occasions by notice to Xxxxxxx Xxxxx
given in accordance with Section 13(c) hereof, suspend its obligation to
supplement or amend the Shelf Registration for a period of time to be
specified in such notice, it being understood that the Company shall not
indicate to Xxxxxxx Sachs the reasons for such suspension; and
(iii) if Xxxxxxx Xxxxx shall deliver to the Company a Notice of Sale,
then the Company may not (x) commence a suspension of its obligations to
supplement or amend the Shelf Registration pursuant to Section 4(c)(ii)
hereof or (y) commence a suspension of the right to exercise Warrants
pursuant to Section 4(f) of the Warrant Agreement at any time during the
period commencing at 5:00 P.M., New York City time, on the Business Day
immediately preceding the Resale Commencement Date and ending at 5:00 P.M.,
New York City time, on the tenth Business Day following the Resale
Commencement Date (the "Final Resale Date").
Xxxxxxx Sachs agrees that during the periods specified in Section 4(c)(i) hereof
and in any notice from the Company delivered pursuant to Section 4(c)(ii)
hereof, Xxxxxxx Xxxxx shall not dispose of Underlying Common Stock pursuant to a
registration statement applicable to such Underlying Common Stock. The Company
agrees to provide Xxxxxxx Sachs with at least one Business Day's notice of the
expiration of any period of suspension under clause (ii) of paragraph (c) of
this Section 2.
(d) The Company may on no more than one occasion by notice to Xxxxxxx
Xxxxx given subsequent to the Final Expiration Date (after having given effect
to any and all extensions of the Expiration Date of any of the Warrants) extend
the Effective Period for a period of up to 90 days.
(e) Notwithstanding anything to the contrary in this Agreement or the
Warrant Agreement, the Company may not suspend its obligation to supplement and
amend the Shelf Registration or suspend Holders' rights to exercise any
outstanding Warrants unless during a period of no less than 10 consecutive
Business Days occurring after the sixtieth day following the Final Expiration
Date such obligations and rights are in full force and effect and free from any
such suspension.
5. Redemption Price. In the case of any redemption of Warrants made
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pursuant to Section 5 of the Warrant Agreement at a time when such Warrants are
owned by Xxxxxxx Sachs or by any affiliate of Xxxxxxx Xxxxx, the Redemption
Price applicable to such Warrants will also include a reasonable estimate by
Xxxxxxx Sachs of its cost for liquidating its hedge for the Warrants that the
Company wishes to redeem. Xxxxxxx Xxxxx will advise the Company verbally and by
facsimile transmission of such cost to be
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included in the calculation of the Redemption Price.
6. Registration Procedures. (a) In connection with the Company's
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obligations to register the reoffer and resale of the shares of Underlying
Common Stock by Xxxxxxx Sachs the Company shall use all reasonable efforts to
effect or cause the applicable registration statement or registration statements
to permit the sale of the Underlying Common Stock by Xxxxxxx Xxxxx in accordance
with the intended method or methods of distribution thereof described in the
Shelf Registration, provided that the Company shall have no such obligation
during any suspension of the Company's obligation to supplement or amend the
Shelf Registration Statement under Section 4(c)(i) or 4(c)(ii). In connection
therewith, the Company shall:
(i) comply with the provisions of the Securities Act with respect to
the disposition of all of the Underlying Common Stock covered by the Shelf
Registration in accordance with the intended methods of disposition by
Xxxxxxx Sachs set forth therein;
(ii) provide Xxxxxxx Xxxxx, and up to one other underwriter (as shall
be reasonably acceptable to the Company) participating in such sale and any
attorney, accountant or other professional retained by Xxxxxxx Sachs
(collectively, the "Participants") the opportunity to participate in the
preparation of the Shelf Registration, each prospectus included therein or
filed with the SEC and each amendment or supplement thereto;
(iii) in connection with each sale of Underlying Common Stock to be
registered pursuant to Section 4(a) hereof, make available for inspection
by Xxxxxxx Xxxxx and any other Participant such financial and other
information, books, records and properties of the Company, and cause the
officers, directors, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries and supply all
information, as shall be reasonably necessary, in the judgment of Xxxxxxx
Sachs and its counsel or any underwriter participating in such sale, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such person shall be required
to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company in writing as
being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in the Shelf
Registration or otherwise), or (B) such person shall be required so to
disclose such information pursuant to the subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such person
shall have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set forth in the
Shelf Registration or each prospectus included therein or in any
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amendment to the Shelf Registration or any amendment or supplement to such
prospectus in order that the Shelf Registration or such prospectus,
amendment or supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, further, that if the Company's obligation to
effect and maintain a registration statement is suspended pursuant to
Section 4(c) hereof after Xxxxxxx Sachs has conducted an investigation
contemplated by this Section 6(a)(iii) and prior to the time when Xxxxxxx
Xxxxx has sold such Underlying Common Stock, then Xxxxxxx Sachs shall have
the right, after the time such suspension ends, to supplement its
investigation with such additional inspection of financial and other
information, books, records and properties and such additional inquiries as
shall be reasonably necessary, in the judgment of Xxxxxxx Xxxxx and its
counsel, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act;
(iv) promptly notify Xxxxxxx Sachs, and confirm such advice in
writing, (A) when the Shelf Registration or prospectus included therein or
any amendment or supplement thereto has been filed, and, with respect to
the Shelf Registration or any amendment, when the same has become
effective, (B) of any comments of the SEC and of the Blue Sky or securities
commissioner or regulator of any state with respect thereto or any request
by the SEC for amendments or supplements to the Shelf Registration or
prospectus or for additional information, (C) of the issuance by the SEC of
any stop order suspending the effectiveness of the Shelf Registration or
the initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company contemplated
by Section 1 or Section 6(a)(xiii) hereof cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Underlying Common Stock for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (F) at any time when a
prospectus is required to be delivered under the Securities Act, of the
occurrence and the nature of any event requiring the preparation of an
amendment to the Shelf Registration or a supplement to the prospectus
included therein so that, as thereafter delivered as required under the
Securities Act, the Shelf Registration, prospectus, amendment or supplement
or any document incorporated by reference in any of the foregoing, will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(v) use all reasonable efforts to prevent entry of any order
suspending the effectiveness of the Shelf Registration or any post-
effective amendment thereto or obtain at the earliest practicable date the
withdrawal of any such order if entered;
(vi) if requested by Xxxxxxx Xxxxx, promptly incorporate in an
12
amendment to the Shelf Registration or in a supplement to the prospectus
included therein such information as is required by the applicable rules
and regulations of the SEC and as Xxxxxxx Sachs specifies relating to the
sale of such Underlying Common Stock and promptly make all required filings
of such amendment or supplement, as the case may be;
(vii) promptly furnish to Xxxxxxx Xxxxx an executed copy of the Shelf
Registration, and any amendment thereto (in each case including all
exhibits thereto and documents incorporated by reference therein) and such
number of copies of the Shelf Registration (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by Xxxxxxx Sachs), any amendment thereto, the prospectus included
in the Shelf Registration (including each preliminary prospectus and any
summary prospectus), any supplement thereto, and such other documents as
Xxxxxxx Xxxxx may reasonably request in order to facilitate the offering
and disposition of the Underlying Common Stock owned by Xxxxxxx Sachs, and
to permit Xxxxxxx Xxxxx to satisfy the prospectus delivery requirements of
the Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any
supplement thereto by Xxxxxxx Sachs and by any agent or underwriter, in
each case in the form most recently provided to such party by the Company,
in connection with the offering and sale of the Securities covered by such
prospectus (including such preliminary and summary prospectus) or
supplement thereto;
(viii) use all reasonable efforts to (A) promptly register or qualify
the Underlying Common Stock to be included in the Shelf Registration under
such securities laws or Blue Sky laws of such United States jurisdictions
as Xxxxxxx Xxxxx and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the periods the Shelf Registration is required to
remain effective under Section 4 above, and for so long as may be necessary
to enable Xxxxxxx Sachs or any agent or underwriter to complete its
disposition of Underlying Common Stock pursuant to such Shelf Registration
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable Xxxxxxx Xxxxx any agent, and any underwriter, to
consummate the disposition in such jurisdictions of such Underlying Common
Stock; provided, however, that the Company shall not be required for any
such purpose to (I) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 6(a)(viii) or (II) consent to general service
of process in any such jurisdiction;
(ix) use its best efforts to obtain the consent or approval of each
13
governmental agency or authority, whether United States federal, state or
local, which may be required to make the Shelf Registration effective or to
effect the offering or sale in connection therewith or to enable Xxxxxxx
Sachs to offer, or to consummate the disposition of, the Underlying Common
Stock;
(x) cooperate with Xxxxxxx Xxxxx to facilitate the timely preparation
and delivery of certificates representing Underlying Common Stock to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and, in the case of an
underwritten offering, enable such Underlying Common Stock to be in such
denominations and registered in such names as Xxxxxxx Sachs may request at
least 1 Business Day prior to any sale of the Underlying Common Stock;
(xi) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including (without limitation)
customary provisions relating to indemnification and contribution, and take
such other actions in connection therewith as Xxxxxxx Xxxxx shall request
in order to expedite or facilitate the disposition of the Underlying Common
Stock;
(xii) whether or not an agreement of the type referred to in Section
(6)(a)(xi) hereof is entered into and whether or not any portion of the
offering contemplated by the Shelf Registration is an underwritten offering
or is made through a placement or sales agent or any other entity, (A) make
such representations and warranties to Xxxxxxx Sachs in form, substance and
scope as are customarily made in connection with an offering of equity
securities pursuant to any appropriate agreement and/or to a registration
statement filed on the form applicable to the Shelf Registration
(including, without limitation, representations to the effect that (i) as
of the date of such agreement or registration statement and as of the date
of the closing of the offering, there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the applicable disclosure document and (ii) the outstanding
Common Stock is fully paid and non-assessable); (B) obtain an opinion of
outside counsel to the Company of recognized standing in customary form and
covering such matters of the type customarily covered by such an opinion,
as Xxxxxxx Xxxxx may reasonably request, addressed to Xxxxxxx Sachs, dated
the closing date of such offering (and if such Shelf Registration
contemplates an underwritten offering of a part or all of the Underlying
Common Stock, dated the date of the underwriting agreement relating thereto
and addressed to the underwriters) (it being agreed that the matters to be
covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company; the
14
qualification of the Company to transact business as a foreign corporation;
the due authorization, execution and delivery of this Agreement, each
Pricing Agreement, the Warrant Agreement and of any agreement of the type
referred to in Section 6(a)(xi) hereof; the conformity as to legal matters
of the authorized capital stock of the Company to the description thereof
contained in the prospectus included in the Shelf Registration, as then
amended or supplemented; the due authorization and issuance, and status as
fully paid and non-assessable, of the Underlying Common Stock; the absence
of material legal or governmental proceedings involving the Company; the
non-contravention (of law or organizational documents of the Company) of
the execution and delivery by the Company and performance by the Company of
its obligations under any agreement of the type referred to in Section
6(a)(xi); the absence of governmental approvals required to be obtained in
connection with the Shelf Registration, the offering and sale of the
Underlying Common Stock, this Agreement, each Pricing Agreement, the
Warrant Agreement or any agreement of the type referred to in Section
6(a)(xi) hereof; the fair presentation in the Shelf Registration and the
prospectus included therein, as then amended or supplemented, of such legal
matters, documents and proceedings described therein as shall be specified;
the Company not being an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined under the Investment
Company Act of 1940; the compliance as to form of the Shelf Registration,
the prospectus included therein, as then amended or supplemented, and any
documents incorporated by reference therein with the Securities Act and the
applicable rules and regulations of the SEC thereunder; and, as of the date
of the opinion and of the Shelf Registration or most recent post-effective
amendments thereto and the date of effectiveness thereof, as the case may
be, the absence from the Shelf Registration and each prospectus included
therein, as then amended or supplemented, and from the documents
incorporated by reference therein of any untrue statement of a material
fact or the omission to state therein a material fact necessary in order to
make the statements therein not misleading (in the case of each such
prospectus, in the light of the circumstances under which the statements
therein were made)); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company addressed to
Xxxxxxx Xxxxx and any underwriter or agent and in form and substance
satisfactory to them, dated (I) as of the date of the agreement to sell
Securities and (II) the closing date of any sale of Underlying Common Stock
pursuant to any prospectus supplement to the prospectus included in the
Shelf Registration or post-effective amendment to the Shelf Registration,
such letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by Xxxxxxx Sachs to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above and the
compliance with or satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement entered
15
into by the Company; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in Sections
8, 9, 10 and 11 hereof;
(xiii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Underlying Common Stock or participate as
a member of an underwriting syndicate or selling group or "participate in
the distribution" (within the meaning of Section 2720 of the Conduct Rules
of the NASD) thereof, whether as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, assist such broker-
dealer in complying with the requirements of such Conduct Rules, including,
without limitation, by providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules of the NASD; and
(xiv) comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its security holders
as soon as practicable, an earnings statement of the Company and its
subsidiaries covering a period of 12 months, beginning within three months
after the effective date of the Shelf Registration, complying with Section
11(a) of the Securities Act (including, at the option of the Company, Rule
158 thereunder).
(b) In the event that the Company would be required, pursuant to
Section 6(a)(iv)(F) above, to notify Xxxxxxx Xxxxx, the Company shall (subject
to its right to suspend its obligations pursuant to Sections 4(c)(i) or
4(c)(ii)) without delay prepare and furnish to Xxxxxxx Sachs a reasonable number
of copies of a prospectus supplemented or amended in form and substance
reasonably satisfactory to it, so that, as thereafter delivered to purchasers of
Underlying Common Stock, such prospectus shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Xxxxxxx
Xxxxx agrees that upon receipt by Xxxxxxx Sachs of any notice from the Company
pursuant to Section 6(a)(iv)(F) hereof, Xxxxxxx Xxxxx shall forthwith
discontinue the disposition of Underlying Common Stock pursuant to the
registration statement applicable to such Securities until Xxxxxxx Sachs shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, Xxxxxxx Xxxxx shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in Xxxxxxx
Sachs's possession of the prospectus covering such Underlying Common Stock at
the time of receipt of such notice.
(c) The Company may require Xxxxxxx Xxxxx to furnish to the Company
such information regarding Xxxxxxx Sachs and Xxxxxxx Sachs's intended method of
resale of the Underlying Common Stock as the Company may from time to time
reasonably request in writing, but only to the extent that such information is
required in
16
order to comply with the Securities Act. Xxxxxxx Sachs agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by Xxxxxxx Xxxxx to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to the Shelf
Registration contains or would contain an untrue statement of a material fact
regarding Xxxxxxx Sachs or Xxxxxxx Sachs's intended method of distribution of
such Underlying Common Stock or omits to state any material fact regarding
Xxxxxxx Sachs or Xxxxxxx Sachs's intended method of distribution of such
Underlying Common Stock required to be stated therein or necessary to make the
statements therein not misleading, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information so that such prospectus shall not contain, with respect to Xxxxxxx
Sachs or the distribution of such Underlying Common Stock an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
7. Registration Expenses. (a) The Company agrees to bear and to pay
---------------------
or cause to be paid promptly upon request being made therefor all expenses
incident to filing and causing effectiveness of the Shelf Registration,
including, without limitation, (i) all SEC, stock exchange, Nasdaq National
Market or NASD registration and filing fees and expenses, (ii) all fees and
expenses (if any) in connection with the qualification of the Underlying Common
Stock for reoffering and resale under the state securities and Blue Sky laws
referred to in Section 6(a)(viii) hereof, including reasonable fees and
disbursements of counsel for Xxxxxxx Xxxxx in connection with such
qualifications, (iii) all expenses relating to the preparation, word processing,
printing, distribution and reproduction of the Shelf Registration (including the
preliminary prospectus included therein) and each amendment to the foregoing,
(iv) internal expenses (including, without limitation, all salaries and expenses
of the Company's officers and employees performing legal or accounting duties),
and (v) fees, disbursements and expenses of counsel and independent certified
public accountants of the Company. Notwithstanding the foregoing, Xxxxxxx Sachs
shall pay all agency fees and commissions and underwriting discounts and
commissions attributable to the sale of the Underlying Common Stock and the fees
and disbursements of any counsel or other advisors or experts retained by
Xxxxxxx Xxxxx.
(b) Notwithstanding the terms of Section 7(a) hereof, Xxxxxxx Sachs
agrees to bear and to pay or cause to be paid promptly upon request being made
therefor all reasonable expenses incident to the takedown of Underlying Common
Stock off the Shelf Registration, including, without limitation, (i) all
expenses relating to the preparation, printing, distribution and reproduction of
each supplement to the preliminary prospectus included in the Shelf
Registration, and (ii) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company.
8. Indemnification by the Company. The Company agrees to indemnify
------------------------------
17
and hold harmless Xxxxxxx Xxxxx its officers, directors, agents, employees, and
each person, if any, who controls Xxxxxxx Sachs 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 and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the 1934 Act Reports or
any registration statement or prospectus relating to the Underlying Common Stock
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to Xxxxxxx Xxxxx furnished in writing to the Company by
Xxxxxxx Sachs or on Xxxxxxx Sachs's behalf expressly for use therein. The
Company also agrees to indemnify any underwriters of the Underlying Common
Stock, their officers and directors and each person who controls such
underwriters on substantially the same basis as that of the indemnification of
Xxxxxxx Sachs provided in this Section 8.
9. Indemnification by Xxxxxxx Xxxxx. Xxxxxxx Xxxxx agrees to
--------------------------------
indemnify and hold harmless the Company, its officers, directors, employees and
agents and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to Xxxxxxx Sachs but
only with reference to information related to Xxxxxxx Xxxxx furnished in writing
by Xxxxxxx Sachs or on Xxxxxxx Sachs's behalf expressly for use in any
registration statement or prospectus relating to Underlying Common Stock, or any
amendment or supplement thereto, or any preliminary prospectus.
10. Conduct of Indemnification Proceedings. In case any proceeding
--------------------------------------
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 8 or 9,
such person (the "Indemnified Party") shall promptly notify the person against
whom such indemnity may be sought (the "Indemnifying Party") in writing and the
Indemnifying Party, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel
18
would be inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Party shall not, in respect of the
legal expenses of any Indemnified Party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) at
any time for the Indemnified Party, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Party, such firm shall be designated in writing by the Indemnified
Party. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for fees and expenses of
counsel as contemplated by the second and third sentences of this Section 10,
the Indemnifying Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 Business Days after receipt by such Indemnifying Party
of the aforesaid request and (ii) such Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request prior to the
date of such settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such proceeding.
11. Contribution. To the extent the indemnification provided for in
------------
Sections 8, 9 and 10 of this Warrant Purchase Agreement is unavailable to an
Indemnified Party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each such Indemnifying Party under such
Section, 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 or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and the Indemnified Party on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of Xxxxxxx Sachs on the other
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 or by
Xxxxxxx Xxxxx and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and Xxxxxxx Sachs agree that it would not be just or equitable
if
19
contribution pursuant to this Section 11 were determined by pro rata allocation
--- ----
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph 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.
Notwithstanding the provisions of this Section 11, Xxxxxxx Xxxxx shall not be
required to contribute any amount in excess of the amount by which the proceeds
to Xxxxxxx Sachs of a sale of Underlying Common Stock exceed the amount of any
damages which Xxxxxxx Xxxxx have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
12. Rule 144. The Company covenants that it will file any reports
--------
required to be filed by it under the Securities Act and the Exchange Act to the
extent required from time to time to enable Xxxxxxx Sachs to sell Underlying
Common Stock without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC (as so amended and along with any such similar rule
or regulation, "Rule 144"). Upon the request of Xxxxxxx Xxxxx, the Company will
deliver to Xxxxxxx Sachs a written statement as to whether it has complied with
such requirements.
13. Miscellaneous. (a) No Inconsistent Agreements. The Company
------------- --------------------------
will not hereafter enter into any agreement with respect to its securities which
is inconsistent with the rights granted to Xxxxxxx Xxxxx in this Warrant
Purchase Agreement.
(b) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Warrant Purchase Agreement may not be amended, modified or
supplemented, and waivers to or departures from the provisions hereof may not be
given unless consented to in writing by each party.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made by hand delivery, telex, telecopy, overnight
courier or registered first-class mail as follows:
(i) if to Xxxxxxx Sachs: Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx Xxxxxxx, with a copy to the
General Counsel;
(ii) if to the Company: Oracle Corporation, 000 Xxxxxx Xxxxxxx,
00
Xxxxxxx Xxxx, Xxxxxxxxxx 00000, attention: General Counsel.
All such notices and communications shall be deemed to have been duly
given: when delivered, if by hand, overnight courier or mail; when the
appropriate answer back is received, if by telex; when transmitted, if by
telecopy.
(d) Successors and Assigns; Transfer of Registration Rights. This
-------------------------------------------------------
Warrant Purchase Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties. The registration rights set forth
in this Warrant Purchase Agreement may be transferred in whole or in part from
time to time to any holder of Warrants.
(e) Counterparts. This Warrant Purchase Agreement may be executed in
------------
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings to this Warrant Purchase Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Warrant Purchase Agreement shall be governed
-------------
by and construed in accordance with the laws of the State of California.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby.
(i) Survival. The indemnity and contribution provisions contained in
--------
Sections 8, 9, 10 and 11 and the representations and warranties of the Company
contained in this Agreement and in each Pricing Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of Xxxxxxx Xxxxx or any
person controlling Xxxxxxx Sachs or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Warrants.
21
IN WITNESS WHEREOF, the parties have executed this Warrant Purchase
Agreement as of the date first written above.
ORACLE CORPORATION
By:/s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXXXX, XXXXX & CO.
By:/s/ J. Xxxxx Xxxxxx
---------------------------
Name: J. Xxxxx Xxxxxx
Title: Managing Director
EXHIBIT II
PRICING AGREEMENT
-----------------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
May __, 1997
Dear Sirs/Mesdames:
Oracle Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to Xxxxxxx, Xxxxx & Co., a New York partnership ("Xxxxxxx
Sachs"), subject to the terms and conditions stated herein, in the Warrant
Agreement (the "Warrant Agreement"), to be dated as of May 19, 1997, between the
Company and BankBoston, N.A., as Warrant Agent, and in the Warrant Purchase
Agreement (the "Warrant Purchase Agreement"), dated as of May 14, 1997, among
the Company and you, __________ Series _ Equity Call Warrants at a purchase
price of $__ per Warrant.
Each provision of the Warrant Purchase Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement.
Unless otherwise defined herein, terms used herein and defined in the Warrant
Purchase Agreement are used herein as therein defined.
Subject to the terms and conditions set forth herein and in the
Warrant Purchase Agreement incorporated herein by reference, the Company agrees
to issue and sell to you, and you agree to purchase from the Company on the
third business day following the date hereof, at the time and place set forth in
the Warrant Purchase Agreement (or at such other time and place as may be agreed
to by the parties) and at the purchase price to you set forth above, __________
Series _ Equity Call Warrants.
The effectiveness of this Pricing Agreement is subject to the condition
that on or prior to the date hereof, the Company shall have entered into a
Repurchase Contract with respect to _______ shares of common stock of the
Company substantially in the form of Annex I hereto.
Very truly yours,
ORACLE CORPORATION
By:___________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By:___________________________
Name:
Title:
2
EXHIBIT III
LETTER OF REPRESENTATION
------------------------
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
In connection with (x) the sale (the "Sale") to, and the purchase by,
Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs", "we" or "us") of ________ Series ___
Equity Call Warrants, (collectively, the "Warrants" or, individually a
"Warrant"), each representing the right to purchase one share of the common
stock, par value $___ per share (the "Common Stock"), of Oracle Corporation (the
"Company"), pursuant to the Warrant Purchase Agreement (the "Warrant Purchase
Agreement") dated as of May 14, 1997, and the Pricing Agreement (the "Pricing
Agreement") dated as of May __, 1997, in each case among the Company and Xxxxxxx
Xxxxx and (y) the repurchase by the Company from Xxxxxxx Sachs of ________
shares of Common Stock pursuant to, and subject to the terms and conditions of,
the Warrant Purchase Agreement and the Repurchase Contract dated May __, 1997,
among the Company and Xxxxxxx Xxxxx, we hereby represent as follows:
1. We are aware that we must bear the risk of an investment in the
Warrants for an indefinite period of time, and we are able to bear such risk.
As of the time of the Sale, however, we have hedged our position in the Warrants
through the short sale of Common Stock pursuant to the Repurchase Contract[s]
referred to above. Under current market conditions, we do not expect to engage
in the short sale of shares of Common Stock in addition to the sales made
pursuant to the Repurchase Contract in order to hedge our position in the
Warrants. To the extent we or any affiliate of ours engage in short sales
("Short Sales") of shares of Common Stock to any person other than the Company
to hedge our position in the Warrants, (i) neither we nor any such affiliate
will engage in any special selling efforts or selling methods in connection with
any Short Sales and, (ii) to the extent required by applicable law, we and any
such affiliate (A) will not cover any Short Sales or repay any borrowing of
shares of Common Stock used to settle any Short Sales with any shares of Common
Stock issued on exercise of the Warrants ("Warrant Shares") and (B) will take
all reasonable steps so as not to (I) knowingly sell any Warrant Shares to any
person from whom we or any such affiliate
purchase any shares of Common Stock used to cover any Short Sales or (II)
knowingly purchase any shares of Common Stock to be used to settle any Short
Sales or to repay any borrowing of shares of Common Stock used to settle any
Short Sales from: (x) any person to whom we or any such affiliate has sold any
Warrant Shares or (y) any person that we or any such affiliate has reason to
believe indirectly acquired Warrant Shares.
2. We have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of purchasing the
Warrants.
3. We are purchasing the Warrants for our own account. We are not
acquiring the Warrants with a view to distribution thereof, or with any present
intention of offering or selling the Warrants, subject, nevertheless, to the
disposition of our property being at all times within our control.
4. On the basis of the applicable Purchase Price, and other terms of
each series of Warrants, the historical volatility of the Common Stock and such
other factors as we have deemed advisable for the purposes of this letter, we
believe that with respect to each Warrant purchased pursuant to the Warrant
Purchase Agreement there exists at least a 50% probability that such Warrant
will expire worthless.
5. We are an "accredited investor" within the meaning of subparagraph
(a)(1) of Rule 501 under the Securities Act.
We acknowledge that for purposes of the opinion to be delivered to
Xxxxxxx Sachs, as our agent, pursuant to Section 3(b) of the Warrant Purchase
Agreement, you will rely upon the accuracy and truth of the foregoing
representations and we hereby consent to such reliance.
Terms used herein but not otherwise defined herein are used herein as
defined in the Warrant Agreement dated as of May 19, 1997 between the Company
and BankBoston, N.A., as Warrant Agent.
Date: May __, 1997
XXXXXXX, XXXXX & CO.
By:_________________________________
Name:
Title:
2
