EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of the 7th day of June, 2000 by
and between Kana Communications, Inc., a Delaware corporation with its principal
office at 000 Xxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxxxx (the "COMPANY"), and the
several purchasers named in the attached EXHIBIT A (individually, a "PURCHASER"
and collectively, the "PURCHASERS").
WHEREAS, the Company desires to issue and sell to the Purchasers an
aggregate of up to 2,500,000 shares (the "SHARES") of the authorized but
unissued shares of common stock, $.001 par value per share, of the Company (the
"COMMON STOCK"); and
WHEREAS, the Purchasers, severally, wish to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
(a) "AFFILIATE" of a party means any corporation or other business
entity controlled by, controlling or under common control with such party. For
this purpose "CONTROL" shall mean direct or indirect beneficial ownership of
fifty percent (50%) or more of the voting or income interest in such corporation
or other business entity.
(b) "CLOSING DATE" means the date of the Closing.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
(d) "REGISTRATION RIGHTS AGREEMENT" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(e) "MAJORITY PURCHASERS" shall mean Purchasers which, at any given
time, hold greater than fifty percent (50%) of the voting power of the
outstanding Shares.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and all of the rules and regulations promulgated thereunder.
2. PURCHASE AND SALE OF SHARES.
2.1 PURCHASE AND SALE. Subject to and upon the terms and conditions set
forth in this Agreement, the Company agrees to issue and sell to each Purchaser,
and each
Purchaser, severally, hereby agrees to purchase from the Company, at the
Closing, the number of shares of Common Stock set forth opposite the name of
such Purchaser under the heading "Number of Shares to be Purchased" on EXHIBIT A
hereto, at a purchase price of $50.00 per share. The total purchase price
payable by each Purchaser for the number of shares of Common Stock that such
Purchaser is hereby agreeing to purchase is set forth opposite the name of such
Purchaser under the heading "Purchase Price" on Exhibit A hereto. The aggregate
purchase price payable by the Purchasers to the Company for all of the Shares
shall be $125,000,000.
2.2 CLOSING. The closing of the transactions contemplated under this
Agreement (the "Closing") shall take place at the offices of Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP, Two Embarcadero Place, 0000 Xxxx Xxxx, Xxxx Xxxx, XX 00000 on the
second business day after the Company shall have given written notice to (the
"Closing Notice") the Purchasers that all of the conditions precedent set forth
in Section 5.1 have been satisfied in full or at such other location, date and
time as may be agreed upon between the Purchasers and the Company. At the
Closing, the Company shall deliver to each Purchaser a single stock certificate,
registered in the name of such Purchaser, representing the number of shares of
Common Stock purchased by such Purchaser, against payment of the purchase price
therefor by wire transfer of immediately available funds to such account or
accounts as the Company shall designate in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each of the Purchasers as follows:
3.1 INCORPORATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
qualified to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect upon
the Company. The Company has all requisite corporate power and authority to
carry on its business as now conducted.
3.2 CAPITALIZATION. The authorized capital stock of the Company
consists of (i) One billion shares of Common Stock, of which 90,444,414 shares
were outstanding as of June 5, 2000 and (ii) 5,000,000 shares of preferred
stock, of which no shares are outstanding on the date hereof. Except for options
for the purchase of Common Stock or the right to purchase Common Stock pursuant
to the Company's Employee Stock Purchase Plan, or as set forth in the SEC
Documents, there are no existing options, warrants, calls, preemptive (or
similar) rights, subscriptions or other rights, agreements, arrangements or
commitments of any character obligating the Company to issue, transfer or sell,
or cause to be issued, transferred or sold, any shares of the capital stock of
the Company or other equity interests in the Company or any securities
convertible into or exchangeable for such shares of capital stock or other
equity interests, and there are no outstanding contractual obligations of the
Company to repurchase, redeem or otherwise acquire any shares of its capital
stock or other equity interests except for the right to repurchase unvested
Common Stock purchased by service providers.
3.3 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated herein and therein has
been taken. When executed and delivered
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by the Company, each of this Agreement and the Registration Rights Agreement
shall constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such may
be limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally and by general equitable principles. The Company has
all requisite corporate power to enter into this Agreement and the Registration
Rights Agreement and to carry out and perform its obligations under the terms of
this Agreement, and the Registration Rights Agreement.
3.4 VALID ISSUANCE OF THE SHARES. The Shares being purchased by the
Purchasers hereunder will, upon issuance pursuant to the terms hereof, and the
Company's Amended and Restated Certificate of Incorporation, be duly authorized
and validly issued, fully paid and nonassessable.
3.5 FINANCIAL STATEMENTS. The Company has furnished to each Purchaser
its audited Statements of Income, Stockholders' Equity and Cash Flows for the
fiscal year ended December 31, 1999, its audited Balance Sheet as of December
31, 2000, its unaudited Statements of Income, Stockholders' Equity and Cash
Flows for the period from March 31, 2000, and its unaudited Balance Sheet as of
March 31, 2000. All such financial statements are hereinafter referred to
collectively as the "FINANCIAL STATEMENTS". The Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis during the periods involved, and fairly present, in all
material respects, the financial position of the Company and the results of its
operations as of the date and for the periods indicated thereon, except that the
unaudited financial statements may not be in accordance with generally accepted
accounting principles because of the absence of footnotes normally contained
therein and are subject to normal year-end audit adjustments which,
individually, and in the aggregate, will not be material. Since May 12, 2000, to
the Company's knowledge, there has been no material adverse change in the
assets, liabilities (contingent or other), affairs, operations, or condition
(financial or other) of the Company.
3.6 SEC DOCUMENTS. The Company has furnished to each Purchaser, a true
and complete copy of the Company's Annual Report on Form 10-K for the year ended
December 31, 1999, the Company's Quarterly Report on Form 10-Q for the period
ended March 31, 2000, and any other statement, report, registration statement
(other than registration statements on Form S-8) or definitive proxy statement
filed by the Company with the SEC during the period commencing May 12, 2000 and
ending on the date hereof. The Company will, promptly upon the filing thereof,
also notify each Purchaser of all statements, reports (including, without
limitation, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K),
registration statements and definitive proxy statements filed by the Company
with the SEC during the period commencing on the date hereof and ending on the
Closing Date (all such materials required to be furnished to each Purchaser
pursuant to this sentence or pursuant to the next preceding sentence of this
Section 3.6 being called, collectively, the "SEC DOCUMENTS"). As of their
respective filing dates, the SEC Documents complied or will comply in all
material respects with the requirements of the Exchange Act or the Securities
Act, as applicable, and none of the SEC Documents contained or will contain any
untrue statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
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misleading, as of their respective filing dates, except to the extent corrected
by a subsequently filed SEC Document.
3.7 CONSENTS. All consents, approvals, orders and authorizations
required on the part of the Company in connection with the execution, delivery
or performance of this Agreement (the "Consents") and the Registration Rights
Agreement and the consummation of the transactions contemplated herein and
therein have been obtained and will be effective as of the Closing Date except
if the failure to obtain such Consents would not have a Material Adverse Effect
on the transactions contemplated hereby.
3.8 NO CONFLICT. Neither the execution and delivery of this Agreement
of the Registration Rights Agreement nor the consummation of any transaction
herein or therein referred to or contemplated hereby or thereby nor the
fulfillment of the terms hereof or thereof or of any agreement or instrument
referred to in this Agreement or in the Registration Rights Agreement has
constituted or resulted in or will constitute or result in a breach of the
provisions of any material contract or agreement to which the Company or any of
its subsidiaries is a party or by which it is bound or of the charter or by-laws
of the Company, or the violation of any existing law, judgment, decree or
governmental order, rule or regulation applicable to the Company or any of its
subsidiaries, or result in the creation under any agreement or instrument of any
lien, security interest, encumbrance or other claim upon any of the assets of
the Company or any of its subsidiaries, or create in any person or entity any
right to terminate any agreements with the Company of any of its subsidiaries or
otherwise exercise any rights against the Company or any of its subsidiaries, or
cause any payment or performance obligation of the Company or any of its
subsidiaries to be accelerated, or cause the acceleration of any outstanding
rights to purchase or convert any instrument into capital stock of the Company.
Except as contemplated by this Agreement the Registration Rights Agreement, no
approval, authorization or other action of any court, governmental authority or
agency or any securities exchange is required to be obtained by the Company in
connection with the execution, delivery and performance of this Agreement or the
Registration Rights Agreement. The Company is not in violation of any of the
listing requirements of the Nasdaq National Market.
3.9 BROKERS OR FINDERS. Except for Xxxxxxx Sachs & Co. and Pacific
Growth Equities, Inc., the Company has not entered an agreement with any broker
or finder in connection with the transactions contemplated by this Agreement,
and, except for certain fees and expenses payable by the Company to Xxxxxxx
Xxxxx & Co., Pacific Growth Equities, Inc. or as otherwise disclosed to Xxxxxxx
Sachs & Co. and Pacific Growth Equities, Inc., the Company has not incurred,
directly or indirectly, any liability for any brokerage or finders' fees or
agents commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.10 NASDAQ NATIONAL MARKET. The Common Stock is listed on the Nasdaq
National Market System, and there are no proceedings to revoke or suspend such
listing.
3.11 ABSENCE OF LITIGATION. There is no action, suit or proceeding or,
to the Company's knowledge, any investigation, pending, or to the Company's
knowledge, threatened by or before any governmental body against the Company and
in which an unfavorable outcome, ruling or finding in any said matter, or for
all matters taken as a whole,
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might have a material adverse effect on the Company. The foregoing includes,
without limitation, any such action, suit, proceeding or investigation that
questions this Agreement or the Registration Rights Agreement or the right of
the Company to execute, deliver and perform under same.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
severally for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
4.1 AUTHORIZATION. All action on the part of such Purchaser and, if
applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. Such Purchaser has all requisite
legal power to enter into each of this Agreement and the Registration Rights
Agreement and to carry out and perform its obligations under the terms of this
Agreement and the Registration Rights Agreement.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Purchaser is acquiring the
Shares being purchased by it hereunder for investment, for its own account and
not as nominee or agent, and not for resale or with a view to distribution
thereof in violation of the Securities Act.
4.3 PURCHASER STATUS; ETC. Such Purchaser certifies and represents to
the Company that at the time such Purchaser acquires any of the Shares, such
Purchaser will be an institutional investor that is an "Accredited Investor" as
defined in Rule 501 of Regulation D promulgated under the Securities Act and was
not organized for the purpose of acquiring the Shares. Such Purchaser's
financial condition is such that it is able to bear the risk of holding the
Shares for an indefinite period of time and the risk of loss of its entire
investment. Such Purchaser has been afforded the opportunity to ask questions of
and receive answers from the management of the Company concerning this
investment and has sufficient knowledge and experience in investing in companies
similar to the Company in terms of the Company's stage of development so as to
be able to evaluate the risks and merits of its investment in the Company.
4.4 SHARES NOT REGISTERED.
(a) Such Purchaser understands that the Shares have not been
registered under the Securities Act, by reason of their issuance by the Company
in a transaction exempt from the registration requirements of the Securities
Act, and that the Shares must continue to be held by such Purchaser and not
re-offered, resold, pledged or otherwise transferred unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
such registration and any such transfer is otherwise made in accordance with
applicable securities laws of any state of the United States. The Purchaser
understands that the exemptions from registration afforded by Rule 144 (the
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provisions of which are known to it) promulgated under the Securities Act depend
on the satisfaction of various conditions, and that, if applicable, Rule 144 may
afford the basis for sales only in limited amounts. The Purchaser understands
that neither the Company nor any of its agents makes any representation as to
the availability of Rule 144 or any other exemption under the Securities Act for
the re-offer, resale, pledge or transfer of the Shares.
(b) Such Purchaser further represents that:
(i) no offering circular or prospectus will be provided to
such Purchaser or prepared in connection with the offer and the sale of the
Shares and that neither the Company or any of its agents has provided, and will
not be providing, such Purchaser with any other material regarding the Shares or
the Company prepared by the Company or any other person. Such Purchaser has not
requested the Company or any of its agents to provide such Purchaser with any
such information.
(ii) Neither the Company nor any of its agents makes any
representation or warranty, expressed or implied, as to the accuracy or
completeness of the information provided or to be provided to such Purchaser by
the Company, and nothing contained in any documents provided to such Purchaser
is, or shall be relied upon as, a promise or representation by the Company or
any of its agents.
(iii) An investment in the Shares includes a high degree of
risk. In making the decision to purchase the Shares, (a) such Purchaser has such
business and financial experience as is required to give such Purchaser the
capacity to protect its own interests in connection with the purchase of the
Shares, (b) such Purchaser has not relied and will not rely on any investigation
that any person acting on its behalf may have conducted with respect to the
Shares or the Company and (c) such Purchaser will make its own investment
decision regarding the Shares based on its own knowledge and investigation of
the Company and the Shares.
4.5 NO CONFLICT. The execution and delivery of this Agreement and the
Registration Rights Agreement by such Purchaser and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default by such Purchaser (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under (i) any
provision of the organizational documents of such Purchaser or (ii) any
agreement or instrument, permit, franchise, license, judgment, order, statute,
law, ordinance, rule or regulations, applicable to such Purchaser or its
respective properties or assets.
4.6 BROKERS. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 CONSENTS. All consents, approvals, orders and authorizations
required on the part of such Purchaser in connection with the execution,
delivery or performance
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of this Agreement and the consummation of the transactions contemplated herein
have been obtained and are effective as of the Closing Date.
5. CONDITIONS PRECEDENT.
5.1 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CONSUMMATE THE
CLOSING. The obligation of each Purchaser to consummate the Closing and to
purchase and pay for the Shares being purchased by it pursuant to this Agreement
is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of the Company
shall be true and correct on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date (it being understood and
agreed by each Purchaser that, in the case of any representation and warranty of
the Company contained herein which is not hereinabove qualified by application
thereto of a materiality standard, such representation and warranty need be true
and correct only in all material respects in order to satisfy as to such
representation or warranty the condition precedent set forth in the foregoing
provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by the Company.
(c) The Company shall have performed all obligations and conditions
herein required to be performed or observed by the Company on or prior to the
Closing Date.
(d) The Purchasers shall have received an opinion of Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP, in form customary for the transaction contemplated hereby.
(e) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted before any court, arbitrator or
governmental body, agency or official and shall be pending.
(f) The purchase of and payment for the Shares by the Purchasers shall
not be prohibited by any law or governmental order or regulation. All necessary
Consents and authorizations of, or registrations, declarations and filings with,
any governmental or administrative agency or of any other person with respect to
any of the transactions contemplated hereby shall have been duly obtained or
made and shall be in full force and effect.
(g) All instruments and corporate proceedings in connection with the
transactions contemplated by this Agreement to be consummated at the Closing
shall be satisfactory in form and substance to such Purchaser, and such
Purchaser shall have received copies (executed or certified, as may be
appropriate) of all documents which such Purchaser may have reasonably requested
in connection with such transactions.
5.2 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CONSUMMATE THE
CLOSING. The obligation of the Company to consummate the Closing and to issue
and sell to each of the Purchasers the Shares to be purchased by it at the
Closing is subject to the satisfaction of the following conditions precedent:
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(a) The representations and warranties contained herein of such
Purchaser shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of each Purchaser contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.2(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by each Purchaser.
(c) The Purchasers shall have performed all obligations and conditions
herein required to be performed or observed by the Purchasers on or prior to the
Closing Date.
(d) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted before any court, arbitrator or
governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be prohibited by
any law or governmental order or regulation. All necessary Consents and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby shall have been duly obtained or made
and shall be in full force and effect.
(f) Each of the Purchasers shall have executed and delivered to the
Company a Purchaser's Questionnaire, in the form attached hereto as Exhibit B,
pursuant to which each such Purchaser shall provide information necessary to
confirm each such Purchaser's status as an "accredited investor" (as such term
is defined in Rule 501 promulgated under the Securities Act)".
(g) Each of the other Purchasers shall have purchased, in accordance
with this Agreement, the number of shares of Common Stock set forth opposite its
name under the heading "Number of Shares to be Purchased".
(h) All instruments and corporate proceedings in connection with the
transactions contemplated by this Agreement to be consummated at the Closing
shall be satisfactory in form and substance to the Company, and the Company
shall have received counterpart originals, or certified or other copies of all
documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. TRANSFER, LEGENDS.
6.1 SECURITIES LAW TRANSFER RESTRICTIONS. No Purchaser shall sell,
assign, pledge, transfer or otherwise dispose or encumber any of the Shares
being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or
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(ii) pursuant to an available exemption from registration under the Securities
Act and applicable state securities laws and, if requested by the Company, upon
delivery by such Purchaser of an opinion of counsel reasonably satisfactory to
the Company to the effect that the proposed transfer is exempt from registration
under the Securities Act and applicable state securities laws. Any transfer or
purported transfer of the Shares in violation of this Section 6.1 shall be
voidable by the Company. The Company shall not register any transfer of the
Shares in violation of this Section 6.1. The Company may, and may instruct any
transfer agent for the Company, to place such stop transfer orders as may be
required on the transfer books of the Company in order to ensure compliance with
the provisions of this Section 6.1.
6.2 LEGENDS. Each certificate requesting any of the Shares shall be
endorsed with the legends set forth below, and each Purchaser covenants that,
except to the extent such restrictions are waived by the Company, it shall not
transfer the shares represented by any such certificate without complying with
the restrictions on transfer described in this Agreement and the legends
endorsed on such certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON
DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT THE PROPOSED TRANSFER IS EXEMPT FROM SAID ACT."
7. TERMINATION; LIABILITIES CONSEQUENT THEREON. This Agreement may be
terminated and the transactions contemplated hereunder abandoned at any time
prior to the Closing only as follows:
(a) by the Purchasers, upon notice to the Company if the conditions set
forth in Section 5.1 shall not have been satisfied on or prior to June 17, 2000;
or
(b) by the Company, upon notice to the Purchasers if the conditions set
forth in Section 5.2 shall not have been satisfied on or prior to June 17, 2000;
or
(c) at any time by mutual agreement of the Company and the Purchasers;
or
(d) by the Purchasers, if there has been any breach of any
representation or warranty or any material breach of any covenant of the Company
contained herein and the same has not been cured within 15 days after notice
thereof, (it being understood and agreed by each Purchaser that, in the case of
any representation or warranty of the Company contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(d) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by the Company); or
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(e) by the Company, if there has been any breach of any representation,
warranty or any material breach of any covenant of any Purchaser contained
herein and the same has not been cured within 15 days after notice thereof (it
being understood and agreed by the Company that, in the case of any
representation and warranty of the Purchaser contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(e) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by such Purchaser).
Any termination pursuant to this Section 7 shall be without liability on
the part of any party, unless such termination is the result of a material
breach of this Agreement by a party to this Agreement in which case such
breaching party shall remain liable for such breach notwithstanding any
termination of this Agreement.
8. INDEMNIFICATION. The Company will indemnify, defend, protect, and hold
harmless each Purchaser and each other holder of the Shares and all of their
respective stockholders, trustees, officers, directors, employees and direct or
indirect investors and any of their respective agents, counsel or other
representatives (collectively, the "INDEMNITEES") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (regardless of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "INDEMNIFICATION LIABILITIES"), which may be incurred by any Indemnitee or
which may be asserted against any Indemnitee as a result of, or arising out of,
or relating to (a) any breach of any representation or warranty made by the
Company herein or in any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation of
the Company contained herein or in any other certificate, instrument or document
contemplated hereby or thereby, or (c) any cause of action, suit or claim
brought or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance, breach or enforcement of this Agreement by the
Company. To the extent that the foregoing undertaking by the Company is
unenforceable for any reason, the Company will make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities that is
permissible under applicable law.
9. MISCELLANEOUS PROVISIONS.
9.1 PUBLIC STATEMENTS OR RELEASES. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its suppliers or customers, with respect to this
Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed, provided, that
nothing in this Section 9.1 shall prevent any of the parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations, but to the extent not inconsistent with such obligations, it
shall provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made.
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9.2 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other party and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
the other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes of
this Agreement.
9.3 RIGHTS CUMULATIVE. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
9.4 PRONOUNS. All pronouns or any variation thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
9.5 NOTICES.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
Kana Communications, Inc.
000 Xxx Xxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
If to any Xxxxxx Investor:
x/x Xxxxxx Investment Management, Inc.
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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Attention: Law Department
Telecopier: (000) 000-0000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
If to any other Purchaser:
To the address for such Purchaser set forth on Exhibit A hereto
(c) Any entity may change the address to which correspondence to it is
to be addressed by notification as provided for herein.
9.6 CAPTIONS. The captions and paragraph headings of this Agreement are
solely for the convenience of reference and shall not affect its interpretation.
9.7 SEVERABILITY. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provisions shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
9.8 GOVERNING LAW; INJUNCTIVE RELIEF.
(a) This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of California and without
regard to any conflicts of laws concepts which would apply the substantive law
of some other jurisdiction.
(b) Each of the parties hereto acknowledges and agrees that damages
will not be an adequate remedy for any material breach or violation of this
Agreement if such material breach or violation would cause immediate and
irreparable harm (an "Irreparable Breach"). Accordingly, in the event of a
threatened or ongoing Irreparable Breach, each party hereto shall be entitled to
seek, in any state or federal court in the State of California, equitable relief
of a kind appropriate in light of the nature of the ongoing or threatened
Irreparable Breach, which relief may include, without limitation, specific
performance or injunctive relief; PROVIDED, HOWEVER, that if the party bringing
such action is unsuccessful in obtaining the relief sought, the moving party
shall pay the non-moving party's reasonable costs, including attorney's fees,
incurred in connection with defending such action. Such remedies shall not be
the parties' exclusive remedies, but shall be in addition to all other remedies
provided in this Agreement.
12
9.9 WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or be construed as, a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
9.10 EXPENSES. Each party will bear its own costs and expenses in
connection with this Agreement.
9.11 ASSIGNMENT. The rights and obligations of the parties hereto shall
inure to the benefit of and shall be binding upon the authorized successors and
permitted assigns of each party. Neither party may assign its rights or
obligations under this Agreement or designate another person (i) to perform all
or part of its obligations under this Agreement or (ii) to have all or part of
its rights and benefits under this Agreement, in each case without the prior
written consent of the other party. In the event of any assignment in accordance
with the terms of this Agreement, the assignee shall specifically assume and be
bound by the provisions of the Agreement by executing and agreeing to an
assumption agreement reasonably acceptable to the other party.
9.12 SURVIVAL. The respective representations and warranties given by
the parties hereto, and the other covenants and agreements contained herein,
shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period one year, without regard to any investigation
made by any party.
9.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and supersedes
all prior agreements, negotiations, understandings, representations and
statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the Company and the Majority Purchasers.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement under seal as of the day and year first above written.
THE COMPANY:
KANA COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Chief Executive Officer
PURCHASERS:
GALLEON TECHNOLOGY PARTNERS I, L.P.
By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
GALLEON TECHNOLOGY PARTNERS II, L.P.
By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
GALLEON TECHNOLOGY OFFSHORE, LTD.
By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
GALLEON NEW MEDIA PARTNERS, L.P.
By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
GALLEON NEW MEDIA OFFSHORE, LTD.
By: /S/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: CHIEF OPERATING OFFICER
2
XXXXXX VOYAGER FUND II
XXXXXX FUNDS TRUST - XXXXXX NEW
CENTURY GROWTH FUND
XXXXXX INVESTMENT FUNDS - XXXXXX
WORLDWIDE EQUITY FUND
XXXXXX OTC AND EMERGING GROWTH FUND
XXXXXX VARIABLE TRUST - XXXXXX VT OTC
AND EMERGING GROWTH FUND
XXXXXX NEW OPPORTUNITIES FUND
XXXXXX VARIABLE TRUST - XXXXXX VT NEW
OPPORTUNITIES FUND
BY XXXXXX INVESTMENT MANAGEMENT, INC.
By: /S/ XXXX X. XXXXXX
-------------------------------------------------
Name: XXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
XXXXXX WORLD TRUST II-XXXXXX EMERGING
INFORMATION SCIENCES TRUST
CISALPINA/XXXXXX USA OPPORTUNITIES FUND
XXXXXX WORLD TRUST II-XXXXXX NEW OPPORTUNITIES
(U.S. AGGRESSIVE GROWTH EQUITY FUND)
BY THE XXXXXX ADVISORY COMPANY, INC.
By: /S/ XXXX X. XXXXXX
-------------------------------------------------
Name: XXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
DWS INVESTMENTS
By: /S/ XXXXXXX XXXXX
-------------------------------------------------
Name: XXXXXXX XXXXX
Title: SENIOR FUND MANAGER
3
XXXXXXX INVESTMENTS
By: /S/ XXXXX XXXXXXXX
-------------------------------------------------
Name: XXXXX XXXXXXXX
Title: DIRECTOR
4
