COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
October 13, 2000, between XXXXX.XXX, INC., a Delaware corporation (the
"Company"), and the person executing this Agreement on the signature page hereof
(the "Signature Page") as Purchaser (the "Purchaser"):
R E C I T A L S :
- - - - - - - -
WHEREAS, the Company has authorized the issuance and sale pursuant to the
terms and conditions hereof of up to 18,500,000 shares of its Common Stock (the
"Common Stock"); and
WHEREAS, the Purchaser desires to purchase and the Company desires to sell
the Common Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and agreements herein contained and other valuable consideration, the receipt
and adequacy of which the parties hereto acknowledge, the parties agree as
follows:
1. Purchase and Sale of the Shares.
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The Company agrees to sell to the Purchaser, and upon the basis of the
representations and warranties, and subject to the terms and conditions, set
forth in this Agreement, the Purchaser agrees to purchase from the Company that
number of shares of Common Stock set forth on the Signature Page hereof (the
"Shares") in consideration for a purchase price (the "Purchase Price") of
US$0.40 per share.
2. Closing Date; Delivery.
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The closing of the purchase and sale of the Shares shall be held at the
offices of the Company, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx on
October 13, 2000 or at such other time and place as the parties may agree upon.
At the closing, subject to the terms of this Agreement, the Purchaser shall
deliver the purchase price in immediately available funds by transfer to the
account of the Company. Within fourteen (14) days following the Closing, the
Company will deliver to the Purchaser, pursuant to Purchaser's delivery
instructions, certificates representing the Shares to be purchased by the
Purchaser from the Company.
3. Representations and Warranties of the Company.
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The Company represents and warrants to, and agrees with, the Purchaser
that:
(a) Organization and Standing, Articles and Bylaws. The Company is a
corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Delaware and is in good standing under such laws. The
Company has the requisite corporate power to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted. The Company is qualified, licensed or domesticated as a foreign
corporation in all jurisdictions where the nature of its activities or of its
properties owned or leased makes such qualification, licensing or domestication
necessary at this time.
(b) Corporate Power. The Company has now, or will have at the Closing
Date, all requisite legal and corporate power to enter into this Agreement, to
sell the Shares hereunder, and to carry out and perform its obligations under
the terms of this Agreement.
(c) Authorization.
(i) All corporate action on the part of the Company, its
officers, directors, and stockholders necessary for the sale and issuance of the
Shares pursuant hereto and the performance of the Company's obligations
hereunder has been taken or will be taken prior to the Closing. This Agreement
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting enforcement of creditors' rights, and except as limited by application
of legal principles affecting the availability of equitable remedies.
(ii) The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will be
free of any liens or encumbrances; provided, however, that such shares may be
subject to restrictions on transfer under state and/or federal securities laws
as set forth herein and as may be required by future changes in such laws.
(iii) No shareholder of the Company has any right of first
refusal or any preemptive rights in connection with the issuance of the Shares
or of Common Stock by the Company.
(d) Financial Statements. The Company's audited balance sheet as of
April 30, 1999, audited statement of operations for the fiscal year ended April
30, 1999, unaudited balance sheet and statement of operations for the six months
ended June 30, 2000 (hereinafter collectively referred to as the "Financial
Statements") have been supplied by the Company to the Purchaser and such
Financial Statements are true and correct, have been prepared in accordance with
generally accepted accounting principles consistently applied (except as
disclosed therein and except that the unaudited Financial Statements do not
contain the footnotes required by generally accepted accounting principles), and
fairly present the financial condition of the Company as of the date indicated
and the results of the operations of the Company for the period ended, as
indicated.
(e) Public Reporting. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934 (the "1934 Act"); the Company's (a) Annual Report on Form 10-K and 10-K/A
for the fiscal year ended Xxxxx 00, 0000, (x) Annual Proxy Statement on Form 14A
for the fiscal year ended April 30, 1999, (c) Current Reports on Form 8-K dated
June 24, 1999, July 12, 1999, August 27, 1999, November 24, 1999, December 30,
1999, January 19, 2000, March 21, 2000 and May 3, 2000, (d) Quarterly Reports on
Forms 10-Q and 10-Q/A for the quarterly periods ended July 31, 1999, October 31,
1999, March 31, 2000 and June 30, 2000 (collectively, the "Public Disclosure")
filed by the Company with the U.S. Securities and Exchange Commission (the
"SEC") include all reports and other information required to be filed or
furnished by the Company under the 1934 Act and the Company has provided copies
of all such Public Disclosure to the Purchaser.
(f) Validity of Material Contracts and Commitments. All the material
contracts, commitments, agreements, and instruments to which the Company is a
party are legal, valid, binding, and in full force and effect in all material
respects and enforceable by the Company in accordance with their terms except as
limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws
of general application affecting enforcement of creditors' rights, and except as
limited by application of legal principles affecting the availability of
equitable remedies. Except as disclosed to Purchaser, the Company is not in
material default under any of such contracts.
(g) Compliance with Other Instruments, None Burdensome, etc. Neither
the Company nor any subsidiary is in violation of any term of its respective
Articles of Incorporation or Bylaws, or, except as disclosed to Purchaser, in
any material respect of any mortgage, indenture, contract, agreement,
instrument, or, to the best knowledge of the Company, any judgment, decree,
order, statute, rule, or regulation applicable to it. The execution, delivery,
and performance by the Company of this Agreement, and the issuance and sale of
the Shares pursuant hereto, will not result in any such violation or be in
conflict with or constitute a default under any such term, or cause the
acceleration of maturity of any loan or material obligation to which the Company
or the subsidiaries are a party or by which any of them are bound or with
respect to which any of them is an obligor or guarantor, or result in the
creation or imposition of any material lien, claim, charge, restriction, equity
or encumbrance of any kind whatsoever upon, or, to the best knowledge of the
Company after due inquiry, give to any other person any interest or right
(including any right of termination or cancellation) in or with respect to any
of the material properties, assets, business or agreements of the Company or the
subsidiaries. To the best knowledge of the Company after due inquiry, no such
term or condition materially adversely affects or in the future (so far as can
reasonably be foreseen by the Company at the date of this Agreement) may
materially adversely affect the business, property, prospects, condition,
affairs, or operations of the Company and the subsidiary.
(h) Litigation, etc. Other than as described in the Financial
Statements or the Public Disclosure, there are no actions, proceedings or
investigations pending (or to the best of the Company's knowledge, any basis
therefor or threat thereof), which, either in any case or in the aggregate,
might result in any adverse change in the business, prospects, conditions,
affairs, or operations of the Company, or in any of its properties or assets, or
in any impairment of the right or ability of the Company to carry on its
business as proposed to be conducted, or in any material liability on the part
of the Company, or which question the validity of this Agreement or any action
taken or to be taken in connection herewith.
(i) Governmental Consent etc. No consent, approval, or authorization
of, or designation, declaration, or filing with, any governmental unit is
required on the part of the Company in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby (except qualification
or exemption under the California Corporate Securities Law, which exemption or
qualification will be available or obtained and will be effective on the Closing
Date).
(j) Offering. The offer, sale and issuance of the Shares in conformity
with the terms of this Agreement (the "Offering") will not violate the
Securities Act of 1933, as amended ("Securities Act").
(k) Title to and Condition of Properties. The Company and its
subsidiaries have good and marketable title to all their respective tangible and
intangible property and assets, including those reflected in the Public
Disclosure and the Financial Statements (except such property or assets as have
since June 30, 2000, been sold or otherwise disposed of in the ordinary course
of business). Such property and assets are subject to no mortgage or security
interests, conditional sales contract, charge, lien or encumbrance (except for
the lien of current taxes not yet due and payable and such imperfections of
title, easements and encumbrances, if any, as are not substantial in character,
amount or extent and do not materially detract from the value of, or interfere
with the present use of the properties subject thereto or affected thereby, or
otherwise materially impair the business operations of the Company and any
subsidiary). Subsequent to June 30, 2000, neither the Company nor any subsidiary
has sold or disposed of any of its property and assets or obligated itself to do
so except in the ordinary course of business. Except for such minor defects as
are not substantial in character and which do not have a materially adverse
effect upon the validity thereof, all material real and personal property leases
to which the Company or the subsidiaries are a party are in good standing, valid
and effective, and there is not under any such lease any existing material
default or event which with notice or lapse of time or both would constitute a
material default and in respect of which the Company or the subsidiaries have
not taken reasonable steps to prevent such a default from occurring.
(l) Disclosure. This Agreement, the Public Disclosure, the Financial
Statements, and all certificates delivered to Purchaser pursuant to this
Agreement, when read together, do not contain any untrue statement of a material
fact and do not omit to state a material fact necessary in order to make the
statements contained therein or herein not misleading, it being understood that
the information provided to the Purchaser regarding the Company contains
estimates and projections which constitute forward looking statements and which
have been made in good faith by the Company and no warranty of such projections
is expressed or implied hereby. There is, to the best of the Company's
knowledge, no fact which materially adversely affects the business, prospects,
condition, affairs or operations of the Company or any of its properties or
assets which has not been set forth in this Agreement, the Public Disclosure,
the Financial Statements or the other information provided to Purchaser.
(m) The Shares:
(i) are free and clear of any security interests, liens, claims,
or other encumbrances;
(ii) have been duly and validly authorized and issued and are,
and on the Closing Date will be, fully paid and non-assessable;
(iii) will not have been, individually and collectively, issued
or sold in violation of any pre-emptive or other similar rights of the holders
of any securities of the Company; and
(iv) will not subject the holders thereof to personal liability
by reason of being such holders.
(n) Furnishing of Financial Statements and Information. The Company
will deliver to the Purchaser:
(i) as soon as practicable, but in any event within 90 days after
the end of each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries, as of the end of such fiscal year, together with the related
consolidated statements of operations, shareholders' equity and cash flow for
such fiscal year, setting forth in comparative form figures for the previous
fiscal year, all in reasonable detail and duly certified by the Company's
independent public accountants, which accountants shall have given the Company
an opinion, unqualified as to the scope of the audit, regarding such statements.
(ii) with reasonable promptness, such other financial data
relating to the business, affairs and financial condition of the Company and any
Subsidiaries as is available to the Company and as from time to time the
Purchasers may reasonably request.
(o) Inspection. The Company will permit each Purchaser and any of its
partners, officers or employees, or any outside representatives designated by
such Purchaser, to visit and inspect at such Purchaser's expense any of the
properties of the Company or its Subsidiaries, including their books and records
(and to make photocopies thereof or make extracts therefrom), and to discuss
their affairs, finances, and accounts with their officers, lawyers and
accountants, except with respect to trade secrets and similar confidential
information, all to such reasonable extent and at such reasonable times and
intervals as such Purchaser may reasonably request. Except as otherwise required
by laws or regulations applicable to a Purchaser, the Purchasers shall maintain,
and shall require their representatives to maintain, all information obtained
pursuant to Sections 3(m) and 3(n) hereof on a confidential basis.
4. Representations and Warranties of the Purchaser.
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The Purchaser represents and warrants to, and agrees with, the Company:
(a) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Purchaser is required for execution of this Agreement, including, without
limitation, the purchase of the Shares or the performance of the Purchaser's
obligations hereunder.
(b) The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Shares.
(c) The Company has given the Purchaser the opportunity to have
answered all of the Purchaser's questions concerning the Company and its
business and has made available to the Purchaser all information requested by
the Purchaser which is reasonably necessary to verify the accuracy of other
information furnished by the Company. The Purchaser has received and evaluated
all information about the Company and its business which the Purchaser deems
necessary to formulate an investment decision and does not desire any further
information.
(d) The Purchaser understands that the Shares are being offered and
sold to it in reliance on specific exemptions or non-application from the
registration requirements of federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of the Purchaser set
forth herein in order to determine the applicability of such exemptions or
non-applications and the suitability of the Purchaser to acquire the Shares.
(e) The Purchaser is aware that the Shares have not been registered
under the Securities Act of 1933 by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) and Regulation D thereof and that they
must be held by the Purchaser indefinitely, and the Purchaser must therefore
bear the economic risk of such investment indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration. The Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including
among other things the existence of a public market for the Shares, the
availability of certain current public information about the Company, the resale
occurring not less than two years after a party has purchased and paid for the
security to be sold, the sale being through a "broker's transaction" or in
transactions directly with a "market maker" (as provided by Rule 144(f)), and
the number of shares being sold during any three-month period not exceeding
specified limitations. The Purchaser is also aware that while many of the
restrictions of Rule 144 do not apply to the resale of shares by a person who
owned those shares for at least one year prior to their resale and who is not an
"affiliate" (within the meaning of Rule 144(a)) of the issuer and has not been
an affiliate of the issuer for at least three months prior to the date of resale
of the restricted securities, the Company does not warrant or represent that the
Purchaser is not an affiliate as of the date of this Agreement or that the
Purchaser will not be an affiliate at any relevant times in the future.
(f) Each instrument representing the Shares is to be endorsed with the
following legends:
(i) THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(ii) Any other legend required by California or other state
securities laws.
The Company need not register a transfer of legended Shares and may
instruct its transfer agent not to register the transfer of the Shares unless
one of the conditions specified in the foregoing legends is satisfied.
(g) Any legend endorsed on an instrument pursuant to Section 4(f)
hereof and the stop transfer instructions with respect to such Shares shall be
removed, and the Company shall issue an instrument without such legend to the
holder of such Shares if such Shares are registered under the Securities Act and
a prospectus meeting the requirements of Section 10 of the Securities Act is
available or if such holder provides the Company with an opinion of counsel for
such holder of the Shares, reasonably satisfactory to the Company, to the effect
that a public sale, transfer or assignment of such Shares may be made without
registration.
(h) The Purchaser is either (i) acquiring the Shares for the
Purchaser's own account; or (ii) for the account of another for which the
Purchaser acts as a fiduciary, in which case the Purchaser will so advise the
Company. If acting as a fiduciary, the Purchaser makes the representations,
warranties, and covenants as set forth herein on its own behalf and as agent for
and on behalf of such other party. The Purchaser is acquiring the Shares for
investment and without any present intention to engage in a distribution
thereof.
(i) The Purchaser has the knowledge and experience in financial and
business matters to evaluate the merits and risks of the proposed investment.
(j) The Purchaser is an "Accredited Investor" as that term is defined
under Rule 501 adopted pursuant to the Securities Act.
5. Conditions Precedent to the Purchaser's Obligations.
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The obligations of the Purchaser hereunder are subject to the performance
by the Company of its obligations hereunder and to the satisfaction of the
following conditions precedent on or before the Closing Date:
(a) The representations and warranties made by the Company in this
Agreement shall, unless waived by the Purchaser, be true and correct as of the
date hereof and at the Closing Date, with the same force and effect as if they
had been made on and as of the Closing Date.
(b) After the date hereof until the Closing Date, there shall not have
occurred:
(i) any change, or any development involving a prospective
change, in either (A) the condition, financial or otherwise, or in the earnings,
business or operations, or in or affecting the properties of the Company, or (B)
the financial or market conditions or circumstances in the United States, in
either case which, in the Purchaser's judgment, is material and adverse and
makes it impractical or inadvisable to proceed with the offering, sale, or
delivery of the Shares;
(ii) an imposition of a new legal or regulatory restriction not
in effect on the date hereof, or any change in the interpretation of existing
legal or regulatory restrictions, that materially and adversely affects the
offering, sale, or delivery of the Shares; or
(iii) a suspension or material limitation of trading (A)
generally on or by the New York Stock Exchange or NASDAQ or (B) of any
securities of the Company on any exchange or in any over-the-counter market.
(c) The Purchasers shall have received from Xxxxx Xxxxxxx Xxxx Xxxxxx
& Xxxxxxx LLP, San Francisco, California, counsel for the Company, a favorable
opinion dated as of the Closing Date.
6. Conditions Precedent to the Company's Obligations.
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The obligations of the Company hereunder are subject to the Company
receiving any necessary shareholder approval for the sale and issuance of the
Shares, the performance by the Purchaser of its obligations hereunder, and the
satisfaction of the condition that the representations and warranties made by
the Purchaser in this Agreement shall, unless waived by the Company, be true and
correct at the Closing Date, with the same force and effect as if they had been
made on and as of, the Closing Date.
7. Registration Rights.
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(a) Demand Registration Rights. Upon the written request of Purchaser
to the Company, but not earlier than the five (5) months from the Closing
("Demand Date"), the Company shall use its best efforts to file with the SEC as
promptly as practicable a registration statement on Form S-3 or any successor
thereto (the "Registration Statement"), signed, pursuant to Section 6(a) of the
Securities Act, by the officers of the Company, with respect to all of the
Shares. In connection with this Section 7, the Company shall:
(i) use its best efforts to cause the Registration Statement to
be declared effective within ninety (90) days of the Demand Date and to remain
effective through and including the earlier of (i) the time when all of the
Shares have been sold pursuant to the Registration Statement or (ii) the time
when all of the Purchasers of the Shares can sell all of the Shares pursuant to
Rule 144(k) (or any similar provision then in force, but not Rule 144A) under
the Securities Act without registration under the Securities Act;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement, signed, pursuant to Section 6(a) of
the Securities Act, by the officers and directors of the Company, and the
prospectus used in connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all the
Shares covered by the Registration Statement;
(iii) furnish to the Purchasers of the Shares such number of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus and any amendments or supplements
thereto) in conformity with the requirements of the Securities Act and such
other documents and information as they may reasonably request;
(iv) use its reasonable efforts to register or qualify the Shares
covered by the Registration Statement under such securities or blue sky laws of
such jurisdictions within the United States and Puerto Rico as required by law
for the distribution of the Shares covered by the Registration Statement;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business in or to file a
general consent to service of process in any jurisdiction wherein it would not
but for the requirements of this paragraph (d) be obligated to do so; and
provided, further, that the Company shall not be required to qualify such Shares
in any jurisdiction in which the securities regulatory authority requires that
any holder submit any number of its Shares to the terms, provisions and
restrictions of any escrow, lockup or similar agreement(s) for consent to sell
Shares in such jurisdiction unless such holder agrees to do so;
(v) enter into customary agreements and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of
the Shares to be so included in the Registration Statement; and
(vi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder, (ii)
any Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated herein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Registration
Statement, and any supplement to such prospectus does not include an 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.
(b) Registration of Underwritten Offering. If the offering of Common
Stock to be registered by the Company pursuant to the Registration Statement is
underwritten, each selling shareholder shall sell the Shares to or through the
underwriter(s) of the Common Stock being registered for the account of the
Company or others upon the same terms applicable to the Company or others. If
the managing underwriter(s) reasonably determine that all or any portion of the
Shares held by the selling shareholder should not be included in the
Registration Statement, then notwithstanding anything to the contrary in this
Section, the determination of such underwriter(s) shall be conclusive; provided,
however, that if such underwriter(s) determine that some but not all of the
Shares of the selling shareholder shall be included in the Registration
Statement, the number of Shares owned by each selling shareholder to be included
in the Registration Statement will be proportionately reduced in accordance with
the respective written requests given as provided above.
(c) Indemnification. In the event that Shares purchased pursuant to
this Agreement are included in a Registration Statement under this Section 7,
the Company will indemnify and hold harmless each selling shareholder and each
other person, if any, who controls such selling shareholder within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such selling shareholder or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of are based upon any untrue statement or alleged untrue statement of any
material fact contained, in the Registration Statement pursuant to which the
Shares were registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based upon the failure
by the Company to file any amendment or supplement thereto that was required to
be filed under the Securities Act, and will reimburse such selling shareholder
and each such controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. Notwithstanding the foregoing, the Company
will not be liable in any such case to a selling shareholder to the extent that
any such loss, claim, damage, or liability arises out of or is based upon an
untrue statement or omission made in such Registration Statement, preliminary
prospectus, final prospectus or amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of that selling shareholder
specifically for use in the preparation of such Registration Statement,
preliminary prospectus, final prospectus, or amendment or supplement. It shall
be a condition precedent to the obligation of the Company to take any action
pursuant to this Section that the Company shall have received an undertaking
satisfactory to it from each selling shareholder to indemnify and hold harmless
the Company (in the same manner and to the same extent as set forth in this
Section), each director of the Company, each officer who shall sign such
Registration Statement, and any persons who control the Company within the
meaning of the Securities Act, with respect to any statement or omission from
such Registration Statement, preliminary prospectus, or any final prospectus
contained therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by the indemnifying
party specifically for use in the preparation of such Registration Statement,
preliminary prospectus, final prospectus, or amendment or supplement. Promptly
following receipt by an indemnified party of notice of the commencement of any
action involving a claim referred to above in this Section 7(c), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided, however, that any failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 7 or Section 8 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Binding Provisions. The provisions of this Section 7 shall be
binding on the successors of the Company. No Shareholder may assign the
provisions of this Section 7 or all or any part of its or their rights or
obligations hereunder, except that in the event of a merger or consolidation in
which the Company or the Purchaser is not the survivor, the Company or the
Purchaser, as the case may be, shall assign and transfer, and successor shall
assume, the provisions of this Section 7.
(e) Conflicts. To the extent that the Company's compliance with the
obligations set forth in Sections 8(a) through 8(d) above would conflict with or
otherwise cause a breach of or default under any of its existing obligations
pursuant to any agreements to which it currently is a party, the Company's
failure to comply with those obligations shall not be deemed a breach of this
Agreement.
(f) Transfer of Registration Rights. The rights to cause the Company
to register the Shares granted to the Purchaser by the Company under Section 7
may be assigned by the Purchaser to a transferee or assignee of any of the
Purchaser's Shares, provided that the Company is given written notice by the
Purchaser at the time of or within a reasonable time after said transfer,
stating the name and address of said transferee or assignee and indemnifying the
Shares with respect to which such registration rights are being assigned.
(g) Additional Shares. Provided Rule 144 is not available to Purchaser
for resale of the Shares and in the event that the Company shall fail to cause
the Registration Statement with respect to the Shares to be declared effective
by the SEC within ninety (90) days of the Demand Date as provided in Section
7(a), the Company shall pay to the Purchaser for each month or portion thereof
until such Registration Statement becomes effective an amount equal to one
percent (1%) of the greater of (i) the purchase price paid for the Shares
pursuant to this Agreement, or (ii) the value of the Shares measured by the
average closing bid price of a share of the Company's Common Stock on the five
trading days immediately preceding the date that is ninety (90) days following
the Demand Date. Such payments shall be paid by the delivery to the Purchaser of
shares of Common Stock valued in the same manner as in (ii) above. Provided that
the Company shall continue to use its reasonable best efforts to cause such
Registration Statement to become effective as promptly as practicable, the
delivery of such Common Stock shall be in full satisfaction of any liability on
the part of the Company for failing to register the Shares as provided herein;
provided further however, that such delivery shall not excuse the Company from
the obligation to register all of such Shares which obligation shall continue.
Any shares of Common Stock issued pursuant to this Section 7(g) shall be subject
to the same registration rights provided in this Section 7.
8. Contribution
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(a) If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the selling shareholder on the one
hand and the Company on the other hand from the offer and sale of the Shares
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the selling shareholder on the one hand and of the Company on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
(b) The relative fault of the Company on the one hand and the selling
shareholder on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the selling shareholder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(c) The Company and the selling shareholder agree that it would not be
just and equitable if a contribution pursuant to this Section 8 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
(d) 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.
(e) For purposes of this Section 8, each person, if any, who controls
the selling shareholder within the meaning of Section 15 of the Securities Act
or Section 20 of the 1934 Act shall have the same rights to contribution as such
selling shareholder, and each director of the Company, each officer of the
Company, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Company.
9. Fees and Expenses.
-----------------
The Purchaser and the Company each agrees to pay its own expenses incident
to the performance of its obligations hereunder, except that the Company agrees
to pay the fees, expenses and disbursements of the Purchaser's counsel.
10. Survival of the Representations, Warranties, etc.
----------------------------------------------------
The respective agreements, representations, warranties, indemnities, and
other statements made by or on behalf of the Company and Purchaser pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or any
officer, director, or employee, or person controlling or under common control
with, such party, and will survive delivery of any payment of the Shares.
11. Notices.
------
All communications hereunder shall be in writing and, if sent to the
Purchasers, shall be sufficient in all respects if delivered, sent by registered
mail, or by telecopy and confirmed to the Purchasers at the address set forth on
the Signature Page or, if sent to the Company, shall be delivered, sent by
registered mail, or by telecopy and confirmed to the Company at:
Xxxxx.Xxx, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
12. Miscellaneous.
-------------
(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and, with respect to Section 8
hereof, the officers, directors, and controlling persons thereof and each person
under common control therewith, and no other person shall have any right or
obligation hereunder.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
(d) The headings of the sections of this document have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
IN WITNESS HEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
COMPANY:
XXXXX.XXX, INC.,
a Delaware corporation
By:
--------------------------------
Xxxx Xxxxxxx
President and Chief Executive Officer
PURCHASER:
Shares: ___________
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Print Name
Total Purchase Price: ____________
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Signature
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Address
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Telephone Number
