EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made as of
the 26th day of October, 2009, by and among KVO Capital Management LLC (the
"SELLER"), a limited liability company organized under the laws of Delaware,
Black Diamond Offshore Ltd., a Cayman Islands exempted company, Double Black
Diamond Offshore Ltd., a Cayman Islands exempted company (together with Black
Diamond Offshore Ltd., the "PURCHASERS"), and Xxxxxxx Capital, L.P. ("XXXXXXX").
WHEREAS, The Seller desires to sell to Purchasers, and
Purchasers desire to purchase and accept from the Seller, all of the shares of
common stock or securities convertible into common stock of Kana Software, Inc.
("KANA" or the "COMPANY"), a Delaware corporation, owned by the Seller
(collectively, the "PURCHASED SHARES") on the terms and subject to the
conditions of this Agreement; and
WHEREAS, each of the Purchasers and the Seller desires that
the foregoing transaction be completed on such terms and subject to such
conditions and wish to make certain representations, warranties and covenants in
connection therewith.
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, the Seller and the Purchasers agree as follows:
1. PURCHASE AND SALE OF PURCHASED SHARES.
1.1 AGREEMENT TO SELL AND PURCHASE THE SHARES. At the
Closing (as defined in Section 1.3(a)), the Seller will, on the terms and
subject to the terms of this Agreement, sell, assign, transfer and deliver to
the Purchasers, and the Purchasers will purchase and accept from the Seller, the
Purchased Shares (as set forth on the signature page hereto) against payment of
the Total Purchase Price (as defined in Section 1.2).
At the Closing, Seller shall deliver all certificates
representing the Purchased Shares being sold by the Seller duly endorsed by such
Seller (or accompanied by duly executed stock transfer powers executed in favor
of the Purchasers), or other evidence of valid transfer of the Purchased Shares
to the Purchasers in a form reasonably satisfactory to the Purchasers, as
applicable, with all necessary transfer tax stamps affixed (any expense of
acquiring such transfer tax stamps to be shared equally between Seller and
Purchasers).
1.2 TOTAL PURCHASE PRICE. Purchasers will pay to the
Seller the Total Purchase Price (as defined below) per share for the Purchased
Shares to be purchased and sold pursuant to this Agreement, calculated and paid
as follows:
(a) At the Closing (as defined in Section 1.3(a)), $0.95 per
Purchased Share (the "INITIAL PURCHASE PRICE"); and
(b) In the event that within nine months of the date of
execution of the Kana APA (the "KANA CLOSING PERIOD"), Kana consummates the sale
of all or substantially of its assets, or is otherwise acquired by virtue of the
merger or consolidation of the Company or the tender offer for a majority of the
Company's outstanding shares, then within two Business Days
following the consummation of such transaction (the "KANA CLOSING"), $0.10 per
Purchased Share (the "REMAINING PURCHASE PRICE", together with the Initial
Purchase Price, the "TOTAL PURCHASE PRICE"). Notwithstanding the foregoing, the
Remaining Purchase Price shall be automatically increased to $0.15 per Purchased
Share in the event that Seller does not receive payment of the Remaining
Purchase Price within five Business Days following the Kana Closing.
1.3 CLOSING. (a) The closing ( the "CLOSING") of the
purchase and sale of the Purchased Shares shall take place at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
promptly as practicable following the execution of this Agreement (but in any
event no later than two Business Days following the announcement of the
execution of the Asset Purchase Agreement, by and between Xxx Technology Corp,
Inc. and Kana, dated as of October 26, 2009 (the "KANA APA")), or at such other
time and place as the Seller and the Purchasers mutually agree upon in writing
(such date the "CLOSING DATE"). For purposes of this Agreement, "Business Day"
means any day other than Saturday, Sunday or any other day on which commercial
banks in New York City are authorized or required by Law (as defined in Section
2.4(b)) to remain closed.
(b) The Seller shall deliver to the Purchasers:
(i) promptly following the execution of this
Agreement, wire transfer instructions, in writing, designating the
Seller's account(s) to which the Purchasers shall deliver the Initial
Purchase Price at Closing in accordance with the terms and conditions
of this Agreement; and
(ii) at or prior to the Closing, a certificate or
certificates representing the Purchased Shares that the Purchasers are
purchasing at such Closing, duly endorsed by the Seller (or accompanied
by duly executed stock transfer powers executed in favor of the
Purchasers), or other evidence of valid transfer of the Purchased
Shares to the Purchasers in a form reasonably satisfactory to the
Purchasers, as applicable, with all necessary transfer tax stamps
affixed (any expense of acquiring such transfer tax stamps to be shared
equally between Seller and Purchasers).
(c) At or prior to the Closing, the Purchasers shall deliver
to the Seller a wire transfer of immediately available funds to an
account or accounts designated by the Seller, in the aggregate amount
equal to the Initial Purchase Price; and
1.4 PAYMENT OF THE REMAINING PURCHASE PRICE. At or
prior to two Business Days following the Kana Closing to the extent such Kana
Closing is consummated within the Kana Closing Period, Purchasers shall deliver
to the Seller by wire transfer of immediately available funds to an account or
accounts designated by the Seller (such wire transfer instructions to be
provided to Purchasers in writing at least two Business Days prior to the date
of payment of the Remaining Purchase Price), an aggregate amount equal to the
Remaining Purchase Price.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Purchased Shares hereunder, the
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Seller hereby represents and warrants to the Purchasers as of the date hereof
and as of the Closing Date that:
2.1 ORGANIZATION, EXECUTION AND EFFECT OF AGREEMENT.
(a) The Seller is a limited liability company that (A) is duly organized,
validly existing and in good standing under the Laws (as defined herein) of its
jurisdiction of formation, (B) is duly qualified or licensed to do business and
is in good standing as a foreign limited liability company in each jurisdiction
in which the character of the properties owned or leased by it or the nature of
its business makes such qualification necessary, except for such of the
foregoing in which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have or result in a
material adverse effect on the authority or ability of Seller to enter into this
Agreement or the other documents to be delivered at Closing hereunder (the
"TRANSACTION DOCUMENTS") or consummate the transactions contemplated hereby or
thereby, (C) has the requisite power and authority to execute and deliver this
Agreement and the Transaction Documents to which it is a party and to perform
the transactions contemplated hereby and thereby to be performed by it, and (D)
has duly taken all necessary action required to be taken under applicable Law
for the due authorization of the execution and delivery by the Seller of this
Agreement and the Transaction Documents to which it is a party and the
performance by it of the transactions contemplated hereby or thereby.
(b) This Agreement has been, and the Transaction Documents
to which the Seller is a party will be, duly and validly executed and delivered
by such Seller and, assuming the due execution and delivery of this Agreement by
Purchasers, and assuming the due execution and delivery of the Transaction
Documents by any other parties thereto, constitutes a legal, valid and binding
obligation of the Seller, enforceable against such Seller in accordance with
their terms.
2.2 OWNERSHIP. The Seller is the true and lawful
owner, beneficially or of record, of, and has sole voting power and sole
dispositive power over, the Purchased Shares. The Purchased Shares represent all
of the shares of common stock of the Company and other securities convertible
for or exchangeable into common stock of the Company owned by the Seller and its
Affiliates (as defined in Section 11.2). The delivery of the certificates
representing the Purchased Shares (or other evidence of transfer of the
Purchased Shares in a form reasonably satisfactory to Purchasers) being sold by
the Seller will transfer to Purchasers good and valid title to such Purchased
Shares, free of any liens, security interests or other encumbrances, claims or
voting or other restrictions (collectively, "LIENS") of any kind adverse to the
Purchasers.
2.3 NO OPTIONS. There are no outstanding subscriptions,
options, rights (including phantom stock rights), warrants, calls, commitments,
understandings, arrangements, plans or other agreements of any kind affecting
the Seller's Purchased Shares which will be applicable to the Purchased Shares
following the Closing.
2.4 NO RESTRICTIONS. (a) There is no suit, action,
claim, investigation or inquiry by any court, tribunal, arbitrator, authority,
agency, commission, official or other instrumentally of the United States, any
foreign country or any domestic or foreign state, county, city or other
political subdivision ("GOVERNMENTAL AUTHORITY"), and no legal, administrative
or
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arbitration proceeding pending or, to the Seller's knowledge, threatened against
the Seller or any of its Purchased Shares, with respect to the execution,
delivery and performance of this Agreement or any Transaction Documents or the
transactions contemplated hereby or thereby or any other agreement entered into
by such Seller in connection with the transactions contemplated hereby or
thereby.
(b) The execution and delivery by Seller of this Agreement
and the Transaction Documents to which it is a party do not, and the performance
by the Seller of the transactions contemplated hereby and thereby to be
performed by it will not, conflict with, or result in any material violation of,
or constitute a material default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any material obligations or the loss of a material benefit or
the incurrence of a material liability under, (i) any provision of the
certificate of incorporation or bylaws or comparable governing documents of the
Seller, or (ii) to the knowledge of Seller, any material permit or approval
("PERMIT"), if any, issued to Seller, under any statute, law, rule, regulation
or ordinance (collectively, "LAWS") or any judgment, decree, order, writ, permit
or license (collectively, "ORDERS") relating to Seller, except for those as
would not, individually or in the aggregate, reasonably be expected to have or
result in a material adverse effect on the authority or ability of Seller to
enter into this Agreement or the Transaction Documents or to consummate the
transactions contemplated hereby and thereby.
(c) The execution, delivery and performance by the Seller of
its obligations under this Agreement and the Transaction Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby will not (i) result in the violation by the Seller of any Law or Order
applicable only to it or any of its Purchased Shares or (ii) conflict with,
result in any violation or breach of, constitute (with or without notice or
lapse of time or both), a default under or require the Seller to obtain any
consent, approval or action of, make any filing with or give any notice to, or
result in or give to any Person (as defined in Section 11.2) any right of
payment or reimbursement, termination, cancellation, modification or
acceleration, or result in the creation or imposition of any Lien upon the
Seller's Purchased Shares, under any of, the terms conditions or provisions of
any agreement, commitment, lease, license, evidence of indebtedness, mortgage,
indenture, security agreement, instrument, note, bond, franchise, permit,
concession or other instrument, obligation or agreement of any kind
(collectively, "CONTRACTS") to which the Seller is a party or by which such
Seller or any of its assets or properties are bound, in each case, except for
(y) that certain Non-Disclosure Agreement between Seller and the Company dated
as of July 30, 2009 and the Amended and Restated Rights Agreement, dated as of
January 13, 2009 by and between Kana and Computershare Trust Company, N.A.
(collectively, the "SELLER KANA AGREEMENTS"), or (z) as would not, individually
or in the aggregate, reasonably be expected to have or result in a material
adverse effect on the authority or ability of the Seller to enter into this
Agreement or the Transaction Documents or to consummate the transactions
contemplated hereby and thereby.
2.5 APPROVALS AND CONSENTS. Except as required under
the Seller Kana Agreements, no material consent, approval or action of, filing
with or notice to any Governmental Authority or Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order or any
Contract to which the Seller is a party or its Purchased Shares are bound for
the execution and delivery of this Agreement and any Transaction
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Documents by the Seller, the performance by the Seller of its obligations
hereunder or thereunder or the consummation by the Seller of the transactions
contemplated hereby or thereby except as would not, individually or in the
aggregate, reasonably be expected to have or result in a material adverse effect
on the authority or ability of the Seller to enter into this Agreement or the
Transaction Documents or to consummate the transactions contemplated hereby and
thereby.
2.6 BROKERS' FEES. The Seller has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the
Purchasers could become liable or obligated.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each
of the Purchasers hereby represents, warrants and covenants as of the date
hereof and as of the Closing Date that:
3.1 ORGANIZATION, AUTHORIZATION AND EFFECT OF
AGREEMENT. (a) Purchaser is an exempted company that (A) is duly organized,
validly existing and in good standing under the Laws of its jurisdiction of
incorporation or formation, (B) is duly qualified or licensed to do business and
is in good standing as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it or the nature of its business
makes such qualification necessary, except for such of the foregoing in which
the failure to be so qualified or in good standing would not, individually or in
the aggregate, reasonably be expected to have or result in a material adverse
effect on the authority or ability of the Purchaser to enter into this
Agreement, the Transaction Documents or to consummate the transactions
contemplated hereby or thereby, (C) has the requisite power and authority to
execute and deliver this Agreement and the Transaction Documents to which it is
a party and to perform the transactions contemplated hereby and thereby to be
performed by it, and (D) has duly taken all necessary action required to be
taken under applicable Law for the due authorization of the execution and
delivery by the Purchaser of this Agreement and the Transaction Documents to
which it is a party and the performance by it of the transactions contemplated
hereby or thereby.
(b) This Agreement has been, and the Transaction Documents
to which the Purchaser is a party will be, duly and validly executed and
delivered by such Purchaser and, assuming the due execution and delivery of this
Agreement by Seller, and assuming the due execution and delivery of the
Transaction Documents by any other parties thereto, constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against such Purchaser in
accordance with their terms.
3.2 NO RESTRICTIONS. (a) There is no suit, action,
claim, investigation or inquiry by any Governmental Authority, and no legal,
administrative or arbitration proceeding pending or, to the Purchaser's
knowledge, threatened against the Purchaser, with respect to the execution,
delivery and performance of this Agreement or any Transaction Document or the
transactions contemplated hereby or thereby or any other agreement entered into
by such Purchaser in connection with the transactions contemplated hereby or
thereby.
(b) The execution and delivery by Purchaser of this
Agreement and the Transaction Documents to which it is a party do not, and the
performance by the Purchaser of the transactions contemplated hereby and thereby
to be performed by it will not, conflict with, or result in any material
violation of, or constitute a material default (with or without notice or lapse
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of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any material obligations or the loss of a material benefit or
the incurrence of a material liability under, (i) any provision of the
certificate of incorporation or bylaws or comparable governing documents of the
Purchaser, or (ii) to the knowledge of Purchaser, any material Permit, if any,
issued to the Purchaser under any Laws or any Orders relating to such Purchaser,
in each case except as would not, individually or in the aggregate, reasonably
be expected to have or result in a material adverse effect on the authority or
ability of the Purchaser to enter into this Agreement or the Transaction
Documents or to consummate the transactions contemplated hereby and thereby.
(c) The execution, delivery and performance by the Purchaser
of its obligations under this Agreement and the Transaction Documents to which
it is a party and the consummation of the transactions contemplated hereby and
thereby will not (i) result in the violation by the Purchaser of any Law or
Order applicable only to it or (ii) conflict with, result in any violation or
breach of, constitute (with or without notice or lapse of time or both), a
default under or require the Purchaser to obtain any consent, approval or action
of, make any filing with or give any notice to, or result in or give to, any
Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration under any of, the terms, conditions or provisions
of any Contracts to which the Purchaser is a party or by which such Purchaser or
any of its assets or properties are bound, in each case except as would not,
individually or in the aggregate, reasonably be expected to have or result in a
material adverse effect on the authority or ability of the Purchaser to enter
into this Agreement or the Transaction Documents or to consummate the
transactions contemplated hereby and thereby.
3.3 APPROVALS AND CONSENTS. No consent, approval or
action of, filing with or notice to any Governmental Authority or Person is
necessary or required under any of the terms, conditions or provisions of any
Law or Order or any Contract to which the Purchaser is a party for the execution
and delivery of this Agreement and any Transaction Documents by the Purchaser,
the performance by the Purchaser of its obligations hereunder or thereunder or
the consummation by the Purchaser of the transactions contemplated hereby or
thereby except as would not, individually or in the aggregate, reasonably be
expected to have or result in a material adverse effect on the authority or
ability of the Purchaser to enter into this Agreement or the Transaction
Documents or to consummate the transactions contemplated hereby and thereby.
3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Purchased
Shares to be received by the Purchaser will be acquired by the Purchaser for
investment purposes only, and not with a view to the resale of any part thereof,
and that the Purchaser has no present intention of selling or granting any
participation in the same. By executing this Agreement, the Purchaser further
represents that it does not have any Contract, undertaking, agreement or
arrangement with any person or entity to sell, transfer or grant participations
to such person or entity or to any third person or entity, with respect to any
of the Purchased Shares.
3.5 BROKERS' FEES. The Purchaser has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.
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3.6 FINANCING. The Purchaser has and will have at the
Closing and at the Kana Closing sufficient cash immediately available to pay the
Total Purchase Price.
4. AGREEMENTS WITH RESPECT TO MATERIAL NON-PUBLIC
INFORMATION.
4.1 Each of the Purchasers and the Seller is
sophisticated with respect to transactions in the Purchased Shares and has
adequate information concerning the business and financial condition of the
issuer of the Purchased Shares to make an informed decision regarding the
purchase and sale contemplated hereby and has independently and without reliance
upon the other and based on such information as it has deemed appropriate in its
independent judgment made its own analysis and decision to enter into the
transaction.
4.2 Each party hereto has executed a confidentiality
agreement with the Company and hereby acknowledges that the other party and its
representatives may have received and may possess material non-public
information ("NON-PUBLIC INFORMATION") regarding the Purchased Shares, the
issuer of the Purchased Shares or its other outstanding debt or securities that
may not have been provided to the other party, including, without limitation,
information received on a confidential basis directly or indirectly from the
issuer. Such Non-public Information may be indicative of a value of the
Purchased Shares that is substantially more than the Total Purchase Price
reflected in the transaction contemplated hereby or otherwise adverse to either
party's interest, and, therefore, such information might be material to the
Seller's decision to sell the Purchased Shares or the Purchaser's decision to
purchase the Purchased Shares. Each of the Purchasers and Seller acknowledges
that it has not requested and does not wish to receive Non-public Information
from the other party and agrees that neither party shall have any liability to
the other with respect to the non-disclosure of Non-public Information.
4.3 Each of Purchasers and Seller expressly releases
the other, its Affiliates and their respective officers, directors, employees,
agents and controlling persons from any and all liabilities arising from their
respective failure to disclose or review, such Non-public Information, and each
of Purchasers and Seller agrees to make no claim against the other, its
Affiliates and their respective officers, directors, employees, shareholders,
partners, agents, representatives or Affiliates with respect to the transaction,
relating to such failure to disclose, or to review Non-public Information.
4.4 Purchasers and Seller are relying on the other's
representations in engaging in the transaction contemplated hereby, and would
not engage in such transaction in the absence of such representations.
4.5 This Section 4 represents the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof as to disclosure or non-disclosure of the Non-public Information, and
supersedes any prior or contemporaneous agreements relating thereto.
5. COVENANTS
5.1 Each of Purchasers and Seller shall, (i) subject
to the satisfaction of the conditions to such party's obligations set forth in
Sections 6, 7, and 8, execute and deliver
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such other documents, certificates, agreements and other writings and (ii) take
such other actions, in each case, as may be necessary or reasonably requested by
the other in order to consummate or implement expeditiously the transactions
contemplated hereby in accordance with the terms of this Agreement.
5.2 Each of Purchasers and Seller shall use its
reasonable best efforts to cause all conditions precedent to the obligations of
Purchasers and the Seller to be satisfied. Upon the terms and subject to the
conditions of this Agreement, each of the Purchasers and Seller will use its
reasonable best efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable consistent with
applicable law to consummate and make effective in the most expeditious manner
practicable the transactions contemplated hereby.
5.3 Subject to the consummation of the purchase and
sale of the Purchased Shares contemplated by Section 1, for a period of twelve
months following the Closing, the Seller shall not, and shall cause its
Affiliates, directors, officers, and employees not to, directly or indirectly,
acting alone or in concert with others, acquire, sell or otherwise transfer
ownership of (including "beneficial ownership" as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) any securities or indebtedness
of, or any economic interest in, the Company or any of its subsidiaries
(including any participation interest therein or any assets underlying such
securities or indebtedness).
5.4 Purchasers hereby agree to indemnify and hold
harmless Seller from and against any and all any and all losses, liabilities,
costs, damages, and expenses (including, without limitation, reasonable
attorneys' fees, disbursements and administrative or court costs) relating to
any failure by Purchasers to pay Seller any portion of the Total Purchase Price.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASERS AND
THE SELLER. The obligations of each of Purchasers and the Seller under this
Agreement to consummate the transactions contemplated hereby will be subject to
the satisfaction, at or prior to the Closing, of the following conditions:
6.1 RESTRAINING ACTION. There shall not have been
entered a preliminary or permanent injunction, temporary restraining order or
other judicial or administrative order or decree in any jurisdiction, the effect
of which prohibits the Closing.
7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASERS. The obligations of Purchasers under this Agreement to consummate the
transactions contemplated hereby will be subject to the satisfaction, at or
prior to the Closing, of all of the following conditions, any one or more of
which may be waived at the option of Purchasers:
7.1 NO MATERIAL MISREPRESENTATION OR BREACH. (a) There
shall have been no material breach by the Seller in the performance of any of
the covenants herein to be performed by him, her or it in whole or in part prior
to the Closing and (b) the representations and warranties of the Seller
contained in this Agreement (i) that are not qualified as to materiality or
material adverse effect shall be true and correct in all material respects and
(ii) that are so
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qualified shall be true and correct, in each case on the date hereof and as of
the Closing Date as if made anew on the Closing Date, except for representations
or warranties made as of a specified date, which shall be true and correct in
all material respects as of the specified date; and
7.2 CLOSING DELIVERABLES. The Purchasers shall have
received the closing deliverables described in Section 1.3(b).
8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
SELLER. The obligations of the Seller under this Agreement to consummate the
transactions contemplated hereby will be subject to the satisfaction, at or
prior to the Closing, of all the following conditions, any one or more of which
may be waived by the Seller at its option:
8.1 NO MATERIAL MISREPRESENTATION OR BREACH. (a)
There shall have been no material breach by Purchasers in the performance of any
of the covenants herein to be performed by it in whole or in part prior to the
Closing and (b) the representations and warranties of Purchasers contained in
this Agreement (i) that are not qualified as to materiality or material adverse
effect shall be true and correct in all material respects and (ii) that are so
qualified (if any) shall be true and correct, in each case on the date hereof
and as of the Closing Date as if made anew on the Closing Date, except for
representations or warranties made as of a specified date, which shall be true
and correct in all material respects as of the specified date; and
8.2 CLOSING DELIVERABLES. The Seller shall have
received the closing deliverables described in Section 1.3(c).
9. TERMINATION. (a) Notwithstanding anything contained in
this Agreement to the contrary, this Agreement may be terminated at any time
prior to the Closing:
(i) by the mutual written consent of Purchasers and the
Seller;
(ii) by either Purchasers or the Seller, if the Closing shall
not have occurred on or before October 30, 2009, provided, however, that the
right to terminate this Agreement pursuant to this Section 9(a)(ii) will not be
available to any party whose breach of any provision of this Agreement results
in the failure of the Closing to occur by such time;
(iii) by either Purchasers or the Seller if there shall have
been entered a final, nonappealable order or injunction of any Governmental
Authority restraining or prohibiting the consummation of the transactions
contemplated hereby or any material part thereof;
(iv) by Purchasers if the Seller shall have (i) failed to
perform any obligation or to comply with any agreement or covenant of the Seller
under this Agreement or (ii) breached any of its representations or warranties,
in each case such that the condition in Section 7.1 would not be satisfied,
which failure has not been cured within ten calendar days of notice from
Purchasers; or
(v) by the Seller if the Purchasers shall have (i) failed to
perform any obligation or comply with any agreement or covenant of Purchasers
under this Agreement or (ii) breached any of its representations or warranties,
in each case such that the condition in Section 8.1 would not be satisfied,
which failure has not been cured within ten calendar days of notice
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from the Seller.
(b) In the event of the termination of this Agreement under
this Section 9, each party hereto will pay all of its own fees and expenses.
There will be no further liability hereunder on the part of any party hereto if
this Agreement is so terminated, except by reason of a prior breach of any
representation, warranty or covenant contained in this Agreement.
10. RELEASE OF CLAIMS. Subject to the occurrence of the
Closing and the payment of all amounts due Seller under this Agreement, the
Seller, its representatives and Affiliates hereby release and forever discharge
the Company, its subsidiaries, representatives and Affiliates and the
Purchasers, their representatives and Affiliates from any and all actions,
causes of action, suits, debts, claims and demands (except for liabilities and
obligations arising under this Agreement and the Transaction Documents) that
arise out of or relate to acts, events, conditions or omissions occurring or
existing at any time prior to and including the Closing Date.
11. MISCELLANEOUS.
11.1 SURVIVAL. The warranties, representations and
covenants of the Purchasers and the Seller contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement.
11.2 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties (including permitted transferees of any
Purchased Shares). Nothing in this Agreement, express or implied, is intended to
confer upon any party, other than the parties hereto or their respective
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
This Agreement may not be assigned by any party without the prior written
consent of the other party. Notwithstanding the foregoing, the Seller and
Purchasers may assign this Agreement and any or all rights or obligations
hereunder, without the consent of the other party, to one or more of their
respective Affiliates; PROVIDED that no assignment or attempted assignment shall
relieve the assignor of any of its obligations under this Agreement. For
purposes of this Agreement, "Affiliate" means any individual, group of
individuals or entity, including without limitation, any trust, custodian,
individual retirement account, corporation, limited liability company, joint
venture, limited partnership or general partnership (each, a "PERSON"), that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with a Person, (ii) any other Person
that, directly or indirectly, is the beneficial owner of a majority of any class
of equity securities of the specified person or of which the specified Person is
directly or indirectly the owner of a majority of any class of equity securities
or (iii) with respect to Purchasers, any fund or account that is managed by the
Purchasers.
11.3 PRESS RELEASES. Purchasers and Seller will consult
with the other before issuing, and provide the other the opportunity to review,
comment upon and approve, any press release or other public statements with
respect to this Agreement, the Transaction Documents or the transactions
contemplated hereby or thereby and will not issue any such press release or make
any such public statement without the other party's prior written consent,
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except that a party hereto may make such disclosures as are required by
applicable Law, but only after disclosing to the other party the basis for
concluding that such disclosure is so required and consulting with the other
parties regarding the contents of such disclosure prior thereto. Notwithstanding
anything to the contrary contained in this Agreement, nothing contained in this
Agreement shall restrict the parties hereto from filing with the Securities and
Exchange Commission a Schedule 13D with respect to Kana (or any amendment
thereto), to which this Agreement shall be an exhibit, and detailing the terms
and conditions hereof.
11.4 GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of New York as applied to agreements
among New York residents entered into and to be performed entirely within New
York. Any judicial proceeding brought with respect to this Agreement must be
brought in any court of competent jurisdiction in the State of New York.
11.5 SPECIFIC PERFORMANCE. Each party hereto
acknowledges and agrees that the other party would be irreparably damaged in the
event the provisions of this Agreement are not specifically enforced in the
event of a breach hereof by such party and that such damage could not be
adequately remedied by the payment of money damages. Consequently, in addition
to any other remedies that may be available at law or at equity, each party
agrees that upon any breach or threatened breach of this Agreement by such
party, the other party hereto shall be entitled to temporary and permanent
injunctive or other appropriate equitable relief to restrain or otherwise
prevent such breach or threatened breach without posting any bond and without
proving that monetary damages would be inadequate.
11.6 LIMITATION ON DAMAGES. Notwithstanding any other
provisions of this Agreement, in no event will any party hereto be liable to any
other party for, nor will any party be entitled to claim for, any lost profits
or consequential, exemplary, indirect, punitive or special damages or losses
with respect to any claim arising out of or related to this Agreement or the
transactions contemplated hereby.
11.7 TITLES AND SUBTITLES. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
11.8 NOTICES. All notices required or permitted
hereunder shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified, (ii) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient, if not, then
on the next business day; (iii) five days after having been sent by registered
or certified mail, return receipt requested, postage prepaid; or (iv) one day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the address as specified below or to any other address or addresses as
any party may from time to time designate by written notice to the other party;
as set forth on the signature page hereof or at such other address as such party
may designate by ten days advance written notice to the other parties hereto.
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If to Purchasers, to:
Black Diamond Offshore Ltd.
c/o Carlson Capital, L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Double Black Diamond Offshore Ltd.
c/o Carlson Capital, L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
If to Seller, to:
KVO Capital Management, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxxxx, XxXxxxxxx & Fish, LLP
000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
11.9 AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of the Purchasers and
Seller. Any amendment or waiver effected in accordance with this paragraph shall
be binding upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities are
convertible), each future holder of all such securities and the Seller.
11.10 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall he enforceable in
accordance with its terms.
11.11 ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.
11.12 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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12. GUARANTY BY XXXXXXX. Xxxxxxx hereby absolutely,
unconditionally and irrevocably guarantees, as principal and not as a surety, to
the Seller the prompt and complete payment in full as and when due and payable
by Purchasers (and its successors and permitted assigns) of any and all amounts
payable by Purchasers pursuant to this Agreement. If for any reason Purchasers
shall fail or be unable promptly and fully to pay any of their respective
obligations under this Agreement as and when the same shall be due and payable
hereunder, Xxxxxxx shall forthwith pay or cause to be paid such amounts to the
Seller, and the Seller shall not be obligated to pursue remedies against
Purchasers as a condition to enforcement of this guaranty. Xxxxxxx represents
and warrants to the Seller that it has the full corporate power and authority to
provide the guaranty contained in this Section 12, to perform its obligations
with respect thereto and to execute this Agreement for the purposes thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the above written.
Double Black Diamond Offshore Ltd.
By: Xxxxxxx Capital, L.P.,
its investment manager
By: Asgard Investment Corp.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Black Diamond Offshore Ltd.
By: Xxxxxxx Capital, L.P.,
its investment manager
By: Asgard Investment Corp.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Xxxxxxx Capital, L.P.
By: Asgard Investment Corp.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
KVO Capital Management, LLC
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Member
Owner of 3,354,343 Purchased Shares on the date hereof.
[Signature Page SPA]
