EXHIBIT 99.1
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PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT ("Agreement") is made as of the 24th day of
October, 2001 by and among ON Technology Corporation, a Delaware corporation
(the "Company"), and the Investors set forth on the signature pages affixed
hereto (each an "Investor" and collectively the "Investors").
RECITALS
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended; and
B. The Investors wish to purchase from the Company, and the Company
wishes to sell and issue to the Investors, upon the terms and conditions stated
in this Agreement, an aggregate of 6,024,096 shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock"); and
C. Contemporaneous with the sale of the Common Stock, the parties
hereto will execute and deliver a Registration Rights Agreement, in the form
attached hereto as Exhibit A (the "Registration Rights Agreement"), pursuant to
which the Company will agree to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, and applicable state securities laws.
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in
this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings here set forth:
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly Controls, is controlled by, or is under common control
with, such Person.
"Agreement" has the meaning ascribed thereto in the preamble hereof.
"Agreements" means this Agreement and the Registration Rights
Agreement.
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.
"Closing" has the meaning ascribed thereto in Section 3 hereof.
"Closing Date" has the meaning ascribed thereto in Section 3 hereof.
"Common Stock" has the meaning ascribed thereto in the recitals hereof.
"Company" has the meaning ascribed thereto in the preamble hereof.
"Company's Knowledge" means the actual knowledge of the officers of the
Company, after due inquiry.
"Control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Disclosure Schedules" has the meaning ascribed thereto in Section 4
hereof.
"Environmental Laws" has the meaning ascribed thereto in Section 4.16
hereof.
"Indemnified Person" has the meaning ascribed thereto in Section 8.3
hereof.
"Infringe" has the meaning ascribed thereto in Section 4.15(e) hereof.
"Intellectual Property" means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; (v) trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information); and (vi) proprietary
computer software (including but not limited to data, data bases and
documentation).
"Investment Representations" has the meaning ascribed thereto in
Section 6.2(a) hereof.
"Investor(s)" has the meaning ascribed thereto in the preamble hereof.
"Investor Director" has the meaning ascribed thereto in Section 7.2
hereof.
"License Agreement" has the meaning ascribed thereto in Section 4.15(b)
hereof.
"Losses" has the meaning ascribed thereto in Section 8.2 hereof.
"Material Adverse Effect" means a material adverse effect on the
assets, liabilities, results of operations, condition (financial or otherwise),
business, or prospects of the Company and its subsidiaries taken as a whole.
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"Nasdaq" means the NASDAQ Stock Market, Inc. National Market System.
"Person" means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
"Purchase Price" means Five Million Dollars ($5,000,000.00).
"Registration Rights Agreement" has the meaning ascribed thereto in the
recitals hereof.
"Regulation D" has the meaning ascribed thereto in the recitals hereof.
"Required Investors" has the meaning ascribed thereto in Section 6.1
hereof.
"SEC" has the meaning ascribed thereto in the recitals hereof.
"SEC Filings" has the meaning set forth in Section 4.6 hereof.
"Shares" means the shares of Common Stock being purchased by the
Investors hereunder.
"SSF" has the meaning ascribed thereto in Section 9.7 hereof.
"Subsidiary" has the meaning set forth in Section 4.1 hereof.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"2000 10-K" has the meaning ascribed thereto in Section 4.6 hereof.
2. Purchase and Sale of the Shares. Subject to the terms and conditions of
this Agreement, on the Closing Date, each of the Investors shall severally, and
not jointly, purchase, and the Company shall sell and issue to the Investors,
the Shares in the respective amounts set forth opposite the Investors' names on
the signature pages attached hereto in exchange for the Purchase Price as
specified in Section 3 below.
3. Closing. Upon confirmation that the conditions to closing specified
herein have been satisfied, the Company shall deliver to Xxxxxxxxxx Xxxxxxx PC,
in trust, a certificate or certificates, registered in such name or names as the
Investors may designate, representing the Shares, with instructions that such
certificates are to be held for release to the Investors only upon payment of
the Purchase Price to the Company. Upon receipt by Xxxxxxxxxx Xxxxxxx PC
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of the certificates, each Investor shall promptly cause a wire transfer in same
day funds to be sent to the account of the Company as instructed in writing by
the Company, in an amount representing such Investor's pro rata portion of the
Purchase Price. On the date (the "Closing Date") the Company receives such
funds, the certificates evidencing the Shares shall be released to the Investors
(the "Closing"). The purchase and sale of the Shares shall take place at the
offices of Xxxxxxxxxx Xxxxxxx PC, 1330 Avenue of the Americas, 21st Floor, New
York, New York, or at such other location and on such other date as the Company
and the Investors shall mutually agree.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investors that, except as set forth in the
disclosure schedules delivered by the Company to the Investors herewith
(collectively, the "Disclosure Schedules"):
4.1 Organization, Good Standing and Qualification. Each of the Company
and its Subsidiaries (as defined below) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to carry on
its business as now conducted and to own its properties. Each of the Company and
its Subsidiaries is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property makes such qualification or leasing
necessary unless the failure to so qualify has not and could not reasonably be
expected to have a Material Adverse Effect. The Company's subsidiaries are
reflected on Schedule 4.1 hereto (the "Subsidiaries").
4.2 Authorization. The Company has the requisite power and authority
and has taken all requisite action on the part of the Company, its officers,
directors and shareholders necessary for (i) the authorization, execution and
delivery of the Agreements, (ii) authorization of the performance of all
obligations of the Company hereunder or thereunder, and (iii) the authorization,
issuance and delivery of the Shares. The Agreements constitute the legal, valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability,
relating to or affecting creditors' rights generally, and to the exercise of
judicial discretion as to the availability of equitable remedies such as
specific performance in injunction and subject, as to enforcement of
indemnification provisions, to limitations under applicable securities laws.
4.3 Capitalization. Schedule 4.3 sets forth (a) the authorized capital
stock of the Company on the date hereof; (b) the number of shares of capital
stock issued and outstanding (other than the Shares); (c) the number of shares
of capital stock issuable pursuant to the Company's stock plans; and (d) the
number of shares of capital stock issuable and reserved for issuance pursuant to
securities exercisable for, or convertible into or exchangeable for any shares
of capital stock of the Company. All of the issued and outstanding shares of the
Company's capital stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of pre-emptive rights and were issued in full
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compliance with applicable law. All of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly issued
and are fully paid, nonassessable and free of pre-emptive rights, were issued in
full compliance with applicable law and are owned by the Company, beneficially
and of record, subject to no lien, encumbrance or other adverse claim. No Person
is entitled to pre-emptive or similar statutory or contractual rights with
respect to any securities of the Company. Except as described on Schedule 4.3,
there are no outstanding warrants, options, convertible securities or other
rights, agreements or arrangements of any character under which the Company or
any of its Subsidiaries is or may be obligated to issue any equity securities of
any kind and except as contemplated by this Agreement, neither the Company nor
any of its Subsidiaries is currently in negotiations for the issuance of any
equity securities of any kind. Except as described on Schedule 4.3 and except
for the Registration Rights Agreement, there are no voting agreements, buy-sell
agreements, option or right of first purchase agreements or other agreements of
any kind among the Company and any of the securityholders of the Company
relating to the securities of the Company held by them. Except as described on
Schedule 4.3, the Company has not granted any Person the right to require the
Company to register any securities of the Company under the 1933 Act, whether on
a demand basis or in connection with the registration of securities of the
Company for its own account or for the account of any other Person.
Schedule 4.3 contains a true and complete table setting forth the pro
forma capitalization of the Company on a fully diluted basis giving effect to
(i) the issuance of the Shares, (ii) any adjustments in other securities
resulting from such issuance, and (iii) the exercise or conversion of all
outstanding securities.
4.4 Valid Issuance. The Shares have been duly and validly authorized
and, when issued and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable free and clear of all encumbrances and
restrictions, except for restrictions on transfer set forth in this Agreement or
imposed by applicable securities laws.
4.5 Consents. The execution, delivery and performance by the Company of
the Agreements and the offer, issuance and sale of the Shares require no consent
of, action by or in respect of, or filing with, any Person, governmental body,
agency, or official other than filings that have been made pursuant to
applicable state securities laws and post-sale filings pursuant to applicable
state and federal securities laws which the Company undertakes to file within
the applicable time periods (including, without limitation, the filing of a
registration statement with the SEC as contemplated by the Registration Rights
Agreement and the filing of an application to list additional shares with Nasdaq
as contemplated by Section 7.7 hereof). The Company has taken all action
necessary to exempt (i) the sale of the Shares and (ii) the other transactions
contemplated by this Agreement from the provisions of any anti-takeover or
business combination law or statute binding on the Company or to which the
Company or any of its assets and properties may be subject.
4.6 Delivery of SEC Filings; Business. The Company has provided the
Investors with copies of the Company's most recent Annual Report on Form 10-K
for the fiscal year ended December 31, 2000 (the "2000 10-K"), and all other
reports filed by the Company pursuant to the 1934 Act since the filing of the
2000 10-K and prior to the date hereof (collectively, the "SEC Filings"). The
SEC Filings are the only filings required of the Company pursuant to the 1934
Act for such period. The Company and its Subsidiaries are engaged only in the
business described in the SEC Filings.
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4.7 Use of Proceeds. The proceeds of the sale of the Shares hereunder
shall be used by the Company for working capital and general corporate purposes.
4.8 No Material Adverse Change. Except as set forth on Schedule 4.8,
since December 31, 2000, except as identified and described in the SEC Filings,
there has not been:
(i) any change in the consolidated assets, liabilities, financial
condition or operating results of the Company from that reflected in the
financial statements included in the 2000 10-K, except for changes in the
ordinary course of business which have not or would not have a Material Adverse
Effect, individually or in the aggregate;
(ii) any declaration or payment of any dividend, or any
authorization or payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss, whether or not
covered by insurance to any assets or properties of the Company or its
Subsidiaries;
(iv) any waiver, not in the ordinary course of business, by the
Company or any Subsidiary of a material right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or a Subsidiary, except
in the ordinary course of business and which is not material to the assets,
properties, financial condition, operating results or business of the Company
and its Subsidiaries taken as a whole (as such business is presently conducted);
(vi) any change or amendment to the Company's Certificate of
Incorporation or Bylaws, or material change to any material contract or
arrangement by which the Company or any Subsidiary is bound or to which any of
their respective assets or properties is subject;
(vii) any material labor difficulties or labor union organizing
activities with respect to employees of the Company or any Subsidiary;
(viii) any transaction entered into by the Company or a Subsidiary
other than in the ordinary course of business;
(ix) the loss of the services of any key employee, or material
change in the composition or duties of the senior management of the Company or
any Subsidiary;
(x) the loss or, to the Company's Knowledge, threatened loss of
any customer which has had or would have a Material Adverse Effect; or
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(xi) any other event or condition of any character that has had or
would have a Material Adverse Effect.
4.9 SEC Filings; S-3 Eligibility.
(a) At the time of filing thereof, the SEC Filings complied as to
form in all material respects with the requirements of the 1934 Act and did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(b) During the preceding two years, each registration statement
and any amendment thereto filed by the Company pursuant to the 1933 Act and the
rules and regulations thereunder, as of the date such statement or amendment
became effective, complied as to form in all material respects with the 1933 Act
and did not contain any untrue statement of a material fact or omit to state any
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 misleading; and each prospectus filed pursuant to Rule 424(b) under
the 1933 Act, as of its issue date and as of the closing of any sale of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Company meets the registrant requirements for use of Form
S-3 set forth in General Instruction I.A. of Form S-3. As of the Closing, the
sale by the Investors of the Registrable Securities (as such term is defined in
the Registration Rights Agreement) meets the transaction requirements for use of
Form S-3 set forth in General Instruction I.B.3. of Form S-3.
4.10 No Conflict, Breach, Violation or Default. The execution, delivery
and performance of the Agreements by the Company and the issuance and sale of
the Shares will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under (i) the Company's
Certificate of Incorporation or the Company's Bylaws, both as in effect on the
date hereof (copies of which have been provided to the Investors before the date
hereof), or (ii) except where it would not have a Material Adverse Effect, (a)
any statute, rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company, any Subsidiary
or any of their respective assets or properties, or (b) any agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or a Subsidiary is bound or to which any of their respective assets or
properties is subject.
4.11 Tax Matters. Except as described on Schedule 4.11, each of the
Company and each Subsidiary has timely prepared and filed all tax returns
required to have been filed by the Company or such Subsidiary with all
appropriate governmental agencies and timely paid all taxes shown thereon or
otherwise owed by it. The charges, accruals and reserves on the books of the
Company in respect of taxes for all fiscal periods are adequate in all material
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respects, and there are no material unpaid assessments against the Company or
any Subsidiary nor, to the Company's Knowledge, any basis for the assessment of
any additional taxes, penalties or interest for any fiscal period or audits by
any federal, state or local taxing authority except for any assessment which is
not material to the Company and its Subsidiaries, taken as a whole. All taxes
and other assessments and levies that the Company or any Subsidiary is required
to withhold or to collect for payment have been duly withheld and collected and
paid to the proper governmental entity or third party when due. There are no tax
liens or claims pending or, to the Company's Knowledge, threatened against the
Company or any Subsidiary or any of their respective assets or property. Except
as described on Schedule 4.11, there are no outstanding tax sharing agreements
or other such arrangements between the Company and any Subsidiary or other
corporation or entity.
4.12 Title to Properties. Except as disclosed in the SEC Filings, the
Company and each Subsidiary has good and marketable title to all real properties
and all other properties and assets owned by it, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or currently planned to be made thereof
by them; and except as disclosed in the SEC Filings, the Company and each
Subsidiary holds any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use currently made thereof by them.
4.13 Certificates, Authorities and Permits. The Company and each
Subsidiary possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by it, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
such Subsidiary, would have a Material Adverse Effect, individually or in the
aggregate.
4.14 No Labor Disputes. No material labor dispute with the employees of
the Company or any Subsidiary exists or, to the Company's Knowledge, is
threatened.
4.15 Intellectual Property.
(a) Each patent, trademark, service xxxx, copyright, registered
trade name and Internet domain name, and all applications therefor, included
within the Intellectual Property of the Company and its Subsidiaries is
currently in compliance with all legal requirements (including timely filings,
proofs and payments of fees), except where the failure to be in such compliance
would not have a Material Adverse Effect, and is valid and enforceable. No
patent of the Company or its Subsidiaries has been or is now involved in any
interference, reissue, re-examination or opposition proceeding.
(b) All of the licenses and sublicenses and consent, royalty or
other agreements concerning Intellectual Property which are necessary for the
conduct of Company's and each of its Subsidiaries' respective businesses as
currently conducted or as currently proposed to be conducted to which the
Company or any Subsidiary is a party or by which any of their assets are bound
(other than generally commercially available, non-custom, off-the-shelf software
application programs having a retail acquisition price of less than $10,000 per
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license) (collectively, "License Agreements") are valid and binding obligations
of the Company or its Subsidiaries that are parties thereto and, to the
Company's Knowledge, the other parties thereto, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally and
to the exercise of judicial discretion as to the enforceability of remedies such
as specific performance in injunction.
(c) The Company and its Subsidiaries own or have the valid right
to use all of the Intellectual Property necessary for the conduct of the
Company's and each of its Subsidiaries' businesses substantially as currently
conducted and for the ownership, maintenance and operation of the Company's and
its Subsidiaries' properties and assets.
(d) The Intellectual Property owned by the Company or its
Subsidiaries and that is necessary for the conduct of Company's and each of its
Subsidiaries' respective businesses as currently conducted, is owned free and
clear of all liens, encumbrances, adverse claims or obligations to license all
such owned Intellectual Property, other than licenses entered into in the
ordinary course of the Company's and its Subsidiaries' businesses.
(e) The Company and each of its Subsidiaries have taken reasonable
steps to maintain, police and protect the Intellectual Property which it owns
and which is necessary for the conduct of Company's and each of its
Subsidiaries' respective businesses as currently conducted or as currently
proposed to be conducted, including the execution of confidentiality agreements
and intellectual property and work product assignments and releases. The conduct
of the Company's and its Subsidiaries' businesses as currently conducted does
not infringe or otherwise impair or conflict with (collectively, "Infringe") any
Intellectual Property rights of any third party, and, to the Company's
Knowledge, the Intellectual Property rights of the Company and its Subsidiaries
which are necessary for the conduct of Company's and each of its Subsidiaries'
respective businesses as currently conducted are not being Infringed by any
third party. There is no litigation or order pending or outstanding or, to the
Company's Knowledge, threatened, that seeks to limit or challenge or that
concerns the ownership, use, validity or enforceability of any Intellectual
Property of the Company and its Subsidiaries and the Company's and its
Subsidiaries' use of any Intellectual Property owned by a third party.
(f) The consummation of the transactions contemplated hereby will
not result in the alteration, loss, impairment of or restriction on the
Company's or any of its Subsidiaries' ownership or right to use any of the
Intellectual Property which is necessary for the conduct of Company's and each
of its Subsidiaries' respective businesses as currently conducted.
(g) All software that has been developed by the Company or any of
its Subsidiaries, and, to the Company's Knowledge, all software that has been
developed by third-parties, that the Company or any of its Subsidiaries sells or
licenses to third parties is free from any material defect, bug, virus, or
programming, design or documentation error (other than media defects) and
conforms in all material respects to the specifications and purposes thereof.
(h) The Company and its Subsidiaries have taken reasonable steps
to protect the Company's and its Subsidiaries' rights in their confidential
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information and trade secrets. Each employee, consultant and contractor who has
had access to proprietary Intellectual Property which is necessary for the
conduct of Company's and each of its Subsidiaries' respective businesses as
currently conducted has executed an agreement to maintain the confidentiality of
such Intellectual Property and has executed appropriate agreements that are
substantially consistent with the Company's standard forms thereof. Except under
confidentiality obligations, there has been no material disclosure of any of the
Company's or its Subsidiaries' confidential information or trade secrets to any
third party.
4.16 Environmental Matters. Neither the Company nor any Subsidiary is
in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "Environmental Laws"), owns or operates any real
property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, and is subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim has had or would have a
Material Adverse Effect, individually or in the aggregate; and there is no
pending or, to the Company's Knowledge, threatened investigation of any claim
relating to any Environmental Laws.
4.17 Litigation. Except as described on Schedule 4.17, there are no
pending actions, suits or proceedings against or affecting the Company, its
Subsidiaries or any of its or their properties; and to the Company's Knowledge,
no such actions, suits or proceedings are threatened.
4.18 Financial Statements. Except as set forth in Schedule 4.18, the
financial statements included in each SEC Filing present fairly (as required by
United States generally accepted accounting principles), in all material
respects, the consolidated financial position of the Company as of the dates
shown and its consolidated results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a consistent
basis (except as may be disclosed therein or in the notes thereto, and, in the
case of quarterly financial statements, as permitted by Form 10-Q under the 1934
Act). Except as set forth in the financial statements of the Company included in
the SEC Filings filed prior to the date hereof or as described on Schedule 4.18,
neither the Company nor any of its Subsidiaries has incurred any liabilities,
contingent or otherwise, except those incurred in the ordinary course of
business, consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or in the
aggregate, have had or would have a Material Adverse Effect.
4.19 Insurance Coverage. The Company and each Subsidiary maintain in
full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted and properties owned or
leased by the Company and each Subsidiary, and the Company reasonably believes
such insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
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4.20 Compliance with Nasdaq Continued Listing Requirements. Except as
described on Schedule 4.20, the Company is in compliance with applicable Nasdaq
National Market continued listing requirements as currently enforced by the
Nasdaq National Market. Except as described on Schedule 4.20, there are no
proceedings pending or, to the Company's Knowledge, threatened against the
Company relating to the continued listing of the Company's Common Stock on the
Nasdaq National Market and the Company has not received any notice of, nor to
the Company's Knowledge is there any basis for, the delisting of the Common
Stock from the Nasdaq National Market.
4.21 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company.
4.22 No Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the Shares.
4.23 No Integrated Offering. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any
offers to buy any security, under circumstances that would adversely affect
reliance by the Company on Section 4(2) of the 1933 Act for the exemption from
registration for the transactions contemplated hereby or would require
registration of the Shares under the 1933 Act.
4.24 Questionable Payments. Except as set forth on Schedule 4.24,
neither the Company nor any of its Subsidiaries nor, to the Company's Knowledge,
any of their respective current or former shareholders, directors, officers,
employees, agents or other Persons acting on behalf of the Company or any
Subsidiary, has on behalf of the Company or any Subsidiary or in connection with
their respective businesses: (a) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (b) made any direct or indirect unlawful payments to any
governmental officials or employees from corporate funds; (c) established or
maintained any unlawful or unrecorded fund of corporate monies or other assets;
(d) made any false or fictitious entries on the books and records of the Company
or any Subsidiary; or (e) made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment of any nature.
4.25 Disclosures. No representation or warranty contained in the
Agreement contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. None of
the matters described on the Disclosure Schedules have had, or would have, a
Material Adverse Effect, individually or in the aggregate.
5. Representations and Warranties of the Investor. Each of the Investors
hereby severally, and not jointly, represents and warrants to the Company that:
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5.1 Organization and Existence. The Investor is a validly existing
corporation, limited partnership or limited liability company and has all
requisite corporate, partnership or limited liability company power and
authority to invest in the Shares pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by the
Investor of the Agreements have been duly authorized and the Agreements will
each constitute the valid and legally binding obligation of the Investor,
enforceable against the Investor in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors'
rights generally, and to the exercise of judicial discretion as to the
availability of equitable remedies such as specific performance in injunction
and subject, as to enforcement of indemnification provisions, to limitations
under applicable securities laws.
5.3 Purchase Entirely for Own Account. The Shares to be received by the
Investor hereunder will be acquired for the Investor's own account, not as
nominee or agent, and not with a view to the resale or distribution of any part
thereof in violation of the 1933 Act, and the Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same in
violation of the 1933 Act. The Investor is not a registered broker dealer or an
entity engaged in the business of being a broker dealer.
5.4 Investment Experience. The Investor acknowledges that it can bear
the economic risk and complete loss of its investment in the Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment contemplated hereby.
5.5 Disclosure of Information. The Investor has had an opportunity to
receive all additional information related to the Company requested by it and to
ask questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the Shares. The
Investor acknowledges receipt of copies of the SEC Filings. Neither such
inquiries nor any other due diligence investigation conducted by the Investor
shall modify, amend or affect the Investor's right to rely on the Company's
representations and warranties contained in this Agreement.
5.6 Restricted Securities. The Investor understands that the Shares are
characterized as "restricted securities" under the U.S. federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances.
5.7 Legends. It is understood that, until the earlier of (i)
registration for resale pursuant to the Registration Rights Agreement or (ii)
the time when such Shares may be sold pursuant to Rule 144(k), certificates
evidencing such Shares may bear the following or any substantially similar
legend:
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(a) "The securities represented hereby may not be transferred
unless (i) such securities have been registered for sale pursuant to the
Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to
Rule 144(k), or (iii) the Company has received an opinion of counsel
satisfactory to it that such transfer may lawfully be made without registration
under the Securities Act of 1933 or qualification under applicable state
securities laws."
(b) If required by the authorities of any state in connection
with the issuance of sale of the Shares, the legend required by such state
authority.
Upon the earlier of (i) registration for resale pursuant to the
Registration Rights Agreement and receipt by the Company of the Investor's
written confirmation that such Shares will not be disposed of except in
compliance with the prospectus delivery requirements of the 1933 Act or (ii)
Rule 144(k) becoming available the Company shall, upon an Investor's written
request, promptly cause certificates evidencing the Shares to be replaced with
certificates which do not bear such restrictive legends. When the Company is
required to cause unlegended certificates to replace previously issued legended
certificates, if unlegended certificates are not delivered to an Investor within
seven (7) Business Days of submission by that Investor of legended
certificate(s) to the Company's transfer agent together with a representation
letter in customary form, the Company shall be liable to the Investor for a
penalty equal to 2% of the aggregate purchase price of the Shares evidenced by
such certificate(s) for each 30-day period (or portion thereof) beyond such
seven (7) Business Days that the unlegended certificates have not been so
delivered.
5.8 Accredited Investor. The Investor is an accredited investor as
defined in Rule 501(a) of Regulation D.
5.9 No General Solicitation. The Investor did not learn of the
investment in the Shares as a result of any public advertising or general
solicitation.
5.10 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Investors.
5.11 State of Residence. The state in which the Investor's principal
office is located is the state set forth in the Investor's address as set forth
on the signature pages hereto.
6. Conditions to the Closings.
6.1 Conditions to the Investors' Obligations. The obligation of the
Investors to purchase the Shares at the Closing is subject to the fulfillment to
the Investors' satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived by the Investors agreeing hereunder to
purchase a majority of the Shares (the "Required Investors"):
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(a) The representations and warranties made by the Company in
Section 4 hereof qualified as to materiality shall be true and correct at all
times prior to the Closing Date, except to the extent any such representation or
warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct as of such earlier date,
and, the representations and warranties made by the Company in Section 4 hereof
not qualified as to materiality shall be true and correct in all material
respects at all times prior to the Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which case
such representation or warranty shall be true and correct in all material
respects as of such earlier date. The Company shall have performed in all
material respects all obligations and conditions herein required to be performed
or observed by it on or prior to the Closing Date.
(b) The Company shall have obtained in a timely fashion any and
all consents, permits, approvals, registrations and waivers necessary or
appropriate for consummation of the purchase and sale of the Shares.
(c) The Company shall have executed and delivered to the
Investors the Registration Rights Agreement.
(d) The Company shall have filed an Additional Listing
Application for the inclusion of the Shares on Nasdaq.
(e) No judgment, writ, order, injunction, award or decree of or
by any court, or judge, justice or magistrate, including any bankruptcy court or
judge, or any order of or by any governmental authority, shall have been issued,
and no action or proceeding shall have been instituted by any governmental
authority, enjoining or preventing the consummation of the transactions
contemplated hereby or in the other Agreements.
(f) The Company shall have delivered a Certificate, executed on
behalf of the Company by its Chief Executive Officer or its Chief Financial
Officer, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in subsections (a), (b) and (d) of this Section 6.1.
(g) The Company shall have delivered a Certificate, executed on
behalf of the Company by its Secretary, dated as of the Closing Date, certifying
the resolutions adopted by the Board of Directors of the Company approving the
transactions contemplated by this Agreement and the other Agreements and the
issuance of the Shares, certifying the current versions of the Certificate of
Incorporation and Bylaws of the Company and certifying as to the signatures and
authority of persons signing the Agreements and related documents on behalf of
the Company.
(h) The Investors shall have received an opinion from Xxxxxxx
Xxxxxx & Green P.C., the Company's counsel, dated as of the Closing Date, in
form and substance reasonably acceptable to the Investors and addressing such
legal matters as the Investors may reasonably request.
-14-
6.2 Conditions to Obligations of the Company. The Company's obligation
to sell and issue the Shares at the Closing is subject to the fulfillment to the
satisfaction of the Company on or prior to the Closing Date of the following
conditions, any of which may be waived by the Company:
(a) The representations and warranties made by the Investors in
Section 5 hereof, other than the representations and warranties contained in
Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the "Investment
Representations"), shall be true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date with
the same force and effect as if they had been made on and as of said date. The
Investment Representations shall be true and correct in all respects when made,
and shall be true and correct in all respects on the Closing Date with the same
force and effect as if they had been made on and as of said date. The Investors
shall have performed in all material respects all obligations and conditions
herein required to be performed or observed by them on or prior to the Closing
Date.
(b) The Investors shall have executed and delivered to the
Company the Registration Rights Agreement.
(c) The Investors shall have delivered one or more Certificates,
executed on behalf of each Investor by an authorized signatory, dated as of the
Closing Date, certifying to the fulfillment of the conditions specified in
subsection (a) with respect to such Investor.
6.3 Termination of Obligations to Effect Closing; Effects.
(a) The obligations of the Company, on the one hand, and the
Investors, on the other hand, to effect the Closing shall terminate as follows:
(i) Upon the mutual written consent of the Company and the
Required Investors;
(ii) By the Company if any of the conditions set forth in
Section 6.2 shall have become incapable of fulfillment, and shall not have been
waived by the Company;
(iii) By the Required Investors if any of the conditions set
forth in Section 6.1 shall have become incapable of fulfillment, and shall not
have been waived by the Required Investors; or
(iv) By either the Company or the Required Investors if the
Closing has not occurred on or prior to November 15, 2001;
provided, however, that, except in the case of clause (i) above, the party
seeking to terminate its obligation to effect the Closing shall not then be in
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement or the other Agreements if such breach has resulted
-15-
in the circumstances giving rise to such party's seeking to terminate its
obligation to effect the Closing.
(b) In the event of termination by the Company or the Required
Investors of their obligations to effect the Closing pursuant to this Section
6.3, written notice thereof shall forthwith be given to the other parties hereto
and the obligation of all parties to effect the Closing shall be terminated,
without further action by any party. Nothing in this Section 6.3 shall be deemed
to release any party from any liability for any breach by such party of the
terms and provisions of this Agreement or the other Agreements or to impair the
right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Agreements.
7. Covenants and Agreements of the Company.
7.1 Limitation on Certain Actions. Commencing on the date hereof and
continuing until the of earlier of (a) the six month anniversary of the Closing,
and (b) the termination of this Agreement in accordance with its terms, the
Company shall not and shall not agree to issue or sell any shares of its capital
stock or warrants, rights, or options giving the holder thereof the right to
acquire shares of capital stock or any security convertible into or exercisable
for or exchangeable into shares of the Company's capital stock, except pursuant
to the exercise or conversion of securities outstanding prior to the date
hereof, in each case except (i) pursuant to any employee stock option, stock
purchase or restricted stock plan of the Company, so long as the issuance of
such stock or option is approved by a majority of the non-employee directors of
the Company or a majority of the members of a committee of non-employee
directors established for such purpose, (ii) pursuant to strategic investments
from industry participants, the primary purpose of each of which is not to raise
equity capital, or (iiii) to a seller or sellers of a business being acquired by
the Company in such transaction.
7.2 Nomination of Director. Effective upon the Closing Date and for so
long as the Investors continue to hold at least 5% of the outstanding shares of
Common Stock of the Company, the Investors as a group shall have the right, but
not the obligation, to designate a member for election to the Board of Directors
of the Company (the "Investor Director"). The Company will use its best efforts
to ensure that such Investor Director is duly elected to the Board of Directors
of the Company. The Investor Director shall also serve on the Audit and
Compensation Committee of the Board of Directors of the Company.
7.3 Reports. To the extent not available from the SEC's website, the
Company will furnish upon request by any Investors and/or their assignees all
reports filed by the Company pursuant to the 1934 Act after the date hereof.
7.4 No Conflicting Agreements. The Company will not take any action,
enter into any agreement or make any commitment that would conflict or interfere
in any material respect with the obligations to the Investors under the
Agreements.
7.5 Insurance. The Company shall not materially reduce the insurance
coverages described in Section 4.19 hereof.
-16-
7.6 Compliance with Laws. The Company will comply in all material
respects with all applicable laws, rules, regulations, orders and decrees of all
governmental authorities.
7.7 Listing of Shares and Related Matters. Promptly following the date
hereof, the Company shall take such action as may be required to cause the
Shares to be listed on Nasdaq. Further, if the Company applies to have its
Common Stock or other securities traded on any other principal stock exchange or
market, it shall include the Shares in such application and will take such other
action as is necessary to cause such Common Stock to be so listed. The Company
will use commercially reasonable efforts to continue the listing and trading of
its Common Stock on Nasdaq and, in accordance, therewith, will use commercially
reasonable efforts to comply in all respects with the Company's reporting,
filing and other obligations under the bylaws or rules of such exchange, as
applicable.
7.8 Termination of Covenants. The provisions of Sections 7.3 through
7.8 hereof shall terminate and be of no further force and effect upon the
earlier of (i) the mutual consent of the Company and the Required Investors, or
(ii) the date on which the Company's obligations under the Registration Rights
Agreement terminate.
8. Survival and Indemnification.
8.1 Survival. All representations, warranties, covenants and agreements
contained in this Agreement shall be deemed to be representations, warranties,
covenants and agreements as of the date hereof and shall survive the execution
and delivery of this Agreement for a period of two (2) years from the date of
this Agreement; provided, however, that the provisions contained in Section 7
hereof shall survive in accordance therewith.
8.2 Indemnification. The Company agrees to indemnify and hold harmless,
on an after-tax and after insurance recovery basis, each Investor and its
Affiliates and their respective directors, officers, employees and agents from
and against any and all losses, claims, damages, liabilities and expenses
(including without limitation reasonable attorney fees and disbursements and
other expenses incurred in connection with investigating, preparing or defending
any action, claim or proceeding, pending or threatened and the costs of
enforcement hereof) (collectively, "Losses") to which such Person may become
subject as a result of any breach of representation, warranty, covenant or
agreement made by or to be performed on the part of the Company under the
Agreements, and will reimburse any such Person for all such amounts as they are
incurred by such Person.
8.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any Person (the "Indemnified Person") of notice of any demand, claim or
circumstances which would or might give rise to a claim or the commencement of
any action, proceeding or investigation in respect of which indemnity may be
sought pursuant to Section 8.2 hereof, such Indemnified Person shall promptly
notify the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person, and shall assume the payment of all fees and expenses to the extent such
-17-
fees and expenses constitute Losses; provided, however, that the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of its
obligations hereunder except to the extent that the Company is materially
prejudiced by such failure to notify. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless: (i)
the Company and the Indemnified Person shall have mutually agreed to the
retention of such counsel; or (ii) in the reasonable judgment of counsel to such
Indemnified Person representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. The
Company shall not be liable for any settlement of any proceeding effected
without its written consent, which consent shall not be unreasonably withheld,
but if settled with such consent, or if there be a final judgment for the
plaintiff, the Company shall indemnify and hold harmless such Indemnified Person
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. Without the prior written consent of the
Indemnified Person, which consent shall not be unreasonably withheld, the
Company shall not effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability arising out of such proceeding.
9. Miscellaneous.
9.1 Successors and Assigns. This Agreement may not be assigned by a
party hereto without the prior written consent of the Company or the Required
Investors, as applicable, provided, however, (i) an Investor may assign its
rights and delegate its duties hereunder in whole or in part to an Affiliate or
to a third party that is an institutional investor with experience in equity
investments (other than a direct competitor of the Company) acquiring some
portion or all of its Shares in a private transaction without the prior written
consent of the Company or the other Investors, after notice duly given by such
Investor to the Company and the other Investors, provided, that no such
assignment or obligation shall affect the obligations of such Investor
hereunder, and (ii) the Company may assign its rights and delegate its duties
hereunder to any surviving or successor corporation in connection with a merger
or consolidation of the Company with another corporation, or a sale, transfer or
other disposition of all or substantially all of the Company's assets to another
corporation, without the prior written consent of the Investors, after notice
duly given by the Company to the Investors. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. 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.
9.2 Counterparts; Faxes. 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. This Agreement may also
be executed via facsimile, which shall be deemed an original.
-18-
9.3 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.
9.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed to the party to be notified at the
address as follows, or at such other address as such party may designate by ten
days' advance written notice to the other party:
If to the Company:
ON Technology Corporation
000 Xxxxxx Xxxxxx, Xxxxxxxx 0
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, President and Chief Executive Officer
Fax: 000-000-0000
With a copy to:
Xxxxxxx Xxxxxx & Green P.C.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Fax: 000-000-0000
If to the Investors, to the addresses set forth on the signature pages
hereto.
9.5 Expenses. The parties hereto shall pay their own costs and expenses
in connection herewith, except that the Company shall pay the reasonable fees
and expenses of counsel to the Investors at the Closing, but not in excess of
$20,000. The Company shall reimburse the Investors upon demand for all
reasonable out-of-pocket expenses incurred by the Investors, including without
limitation reimbursement of attorneys' fees and disbursements, in connection
with any amendment, modification or waiver of this Agreement or the other
Agreements. In the event that legal proceedings are commenced by any party to
this Agreement against another party to this Agreement in connection with this
Agreement or the other Agreements, the party or parties which do not prevail in
such proceedings shall severally, but not
-19-
jointly, pay their pro rata share of the reasonable attorneys' fees and other
reasonable out-of-pocket costs and expenses incurred by the prevailing party in
such proceedings.
9.6 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 the Company and the Required Investors. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Shares purchased under this Agreement at the time
outstanding, each future holder of all such securities, and the Company.
9.7 Publicity. No public release or announcement concerning the
transactions contemplated hereby shall be issued by the Company or the Investors
without the prior consent of the Company (in the case of a release or
announcement by the Investors) or Special Situations Fund III, L.P. ("SSF") (in
the case of a release or announcement by the Company) (which consents shall not
be unreasonably withheld), except as such release or announcement may be
required by law or the applicable rules or regulations of any securities
exchange or securities market, in which case the Company or the Investors, as
the case may be, shall allow SSF or the Company, as applicable, to the extent
reasonably practicable in the circumstances, reasonable time to comment on such
release or announcement in advance of such issuance.
9.8 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof but shall be interpreted as if it were written so as
to be enforceable to the maximum extent permitted by applicable law, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
9.9 Entire Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Agreements, and amendments thereto,
constitute the entire agreement among the parties hereof with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
9.10 Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
9.11 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the choice of law principles thereof. Each of the
parties hereto irrevocably submits to the exclusive jurisdiction of the courts
of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
-20-
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
[signature page follows]
-21-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused their duly authorized officers to execute this Agreement as of the date
first above written.
The Company: ON TECHNOLOGY CORPORATION
By: ____________________________
Name:
Title:
The Investors: SPECIAL SITUATIONS FUND III, L.P.
By: ____________________________
Name:
Title:
Aggregate Purchase Price: $2,700,000
Number of Shares: 3,253,012
Address for Notice:
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone:000.000.0000
Facsimile:973.597.2400
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By:_________________________
Name:
Title:
Aggregate Purchase Price: $900,000
Number of Shares: 1,084,337
Address for Notice:
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone:000.000.0000
Facsimile:973.597.2400
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
By:____________________________________
Name:
Title:
Aggregate Purchase Price: $900,000
Number of Shares: 1,084,337
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone:000.000.0000
Facsimile:973.597.2400
SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.
By: _________________________________
Name:
Title:
Aggregate Purchase Price: $500,000
Number of Shares: 602,410
Address for Notice:
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone:000.000.0000
Facsimile:973.597.2400
EXHIBIT A
Registration Rights Agreement
-----------------------------
