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EXHIBIT 4.1
PROCOM TECHNOLOGY, INC.
COMMON SHARES SUBSCRIPTION AGREEMENT
MAY , 2001
TO EACH OF THE INVESTORS
WHO ARE SIGNATORIES HERETO
Ladies and Gentlemen:
Procom Technology, Inc., a California corporation (the "COMPANY"), hereby agrees
with each of you as follows:
1. AUTHORIZATION OF SALE OF THE SECURITIES.
The Company has authorized the sale and issuance of up to $35,000,000 of
its common stock, $.01 par value per share (the "COMMON SHARES"), as described
in the Prospectus dated May , 2001 (the "PROSPECTUS"). The shares of Common
Shares sold hereunder shall be referred to herein as the "SHARES."
2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
2.1 SALE OF SHARES. Subject to the terms of this Common Shares
Subscription Agreement (this "SUBSCRIPTION AGREEMENT"), at the Closing (as
defined in Section 3.1 hereof), the Company agrees to sell to each purchaser of
Shares that has executed a counterpart execution page to this Subscription
Agreement (each an "INVESTOR"), and each Investor agrees to purchase from the
Company, the aggregate number of Shares set forth above such Investor's
signature on the counterpart execution page hereof, at a purchase price of [$ ]
per Share.
2.2 SEPARATE AGREEMENT. Each Investor shall severally, and not jointly,
be liable for only the purchase of the Shares that appears above such Investor's
signature and that relates to such Investor. The Company's agreement with each
of the Investors is a separate agreement, and the sale of Shares to each of the
Investors is a separate sale. The obligations of each Investor hereunder are
expressly not conditioned on the purchase by any or all of the other Investors
of the Shares such other Investors have agreed to purchase.
2.3 ACCEPTANCE OF PROPOSED PURCHASE OF SHARES. Each Investor understands
and agrees that the Company, in its sole discretion, reserves the right to
accept or reject, in whole or in part, any proposed purchase of Shares. The
Company shall have no obligation hereunder with respect to any Investor until
the Company shall execute and deliver to such Investor an executed copy of this
Subscription Agreement. If this Subscription Agreement is not executed and
delivered by the Company or the offering is terminated, this Subscription
Agreement shall be of no further force and effect.
2.4 ESCROW OF PURCHASE PRICE. Each Investor understands and agrees that
upon such Investor's receipt of the Prospectus and execution and delivery
hereof, the Investor shall deposit the purchase price for all of the Shares
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being purchased by such Investor, via wire transfer in immediately available
funds, with the Escrow Agent under that certain Escrow Agreement entered by and
among the Company, California Bank and Trust and Merrill Lynch & Co. (the
"PLACEMENT AGENT"), a form of which is attached hereto as Appendix I (the
"ESCROW AGREEMENT"). Wire instructions for the Escrow Agent are set forth on
Exhibit 2.4 hereto.
3. CLOSING AND DELIVERY.
3.1 CLOSING. The closing of the purchase and sale of the Shares pursuant
to this Subscription Agreement (the "CLOSING") shall be held as soon as
practicable after the satisfaction or waiver of all conditions to Closing set
forth in Sections 6 and 7 hereof, at 10:00 a.m. (Pacific Time) at the offices of
O'Melveny & Myers LLP, located at 610 Newport Center Drive, Newport Beach,
California, or on such other date and place as may be agreed to by the Company
and the Investors. Prior to the Closing, each Investor shall execute any related
agreements or other documents required to be executed hereunder.
3.2 DELIVERY OF THE SHARES AT THE CLOSING. At the Closing, the Company
shall deliver to each Investor stock certificates registered in the name of such
Investor, or in such nominee name(s) as designated by such Investor,
representing the Shares to be purchased by such Investor at the Closing, against
payment of the purchase price for such Shares. The name(s) in which the stock
certificates are to be issued to each Investor are set forth in the Investor's
counterpart execution page hereto, as completed by each Investor.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents and warrants as of the date hereof to, and
covenants with, the Investors as follows:
4.1 ORGANIZATION AND STANDING. The Company and each of its subsidiaries
is duly incorporated and validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation with corporate power and
corporate authority to own, lease and operate its properties and conduct its
current business as described in the Prospectus; the Company is duly qualified
to do business as a foreign corporation and in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, except where the failure to be so
qualified or be in good standing is not reasonably likely to have a material
adverse effect on the condition (financial or otherwise), operations, business
or business prospects of the Company (hereinafter, a "MATERIAL ADVERSE EFFECT");
no proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification; except as described in the Prospectus, the Company is in
possession of and operating in compliance with all authorizations, licenses,
certificates, consents, orders and permits from federal, state and other
regulatory authorities except where the failure to possess or be in compliance
with any of the foregoing is not reasonably likely to have a Material Adverse
Effect, all of which are valid and in full force and effect. Except as set forth
on Schedule 4.1, The Company does not own or control, directly or indirectly,
any corporation, association or other entity.
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4.2 CORPORATE POWER; AUTHORIZATION. The Company has full legal right,
power and authority to enter into this Subscription Agreement and to perform the
transactions contemplated hereby and thereby. This Subscription Agreement has
been duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by each of the other parties hereto,
constitutes a valid and binding agreement on the part of the Company,
enforceable in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles. The making, execution and performance of this Subscription Agreement
by the Company and the consummation of the transactions herein contemplated 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) any bond, debenture, note or
other evidence of indebtedness, or under any lease, contract, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company is a party or by which its properties may be
bound, (ii) the Articles of Incorporation or bylaws of the Company or (iii) any
law, order, rule, regulation, writ, injunction, judgment or decree of any court,
administrative agency, regulatory body, government or governmental agency or
body, domestic or foreign, having jurisdiction over the Company or its
properties, except for any conflict, breach, violation or default which is not
reasonably likely to have a Material Adverse Effect.
4.3 PROSPECTUS; FINANCIAL STATEMENTS. The Prospectus did not contain any
untrue statement of a material fact or omit to state material facts required to
be stated therein or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading. The consolidated
financial statements of the Company included in the documents filed by the
Company with the Securities and Exchange Commission ("SEC") and referenced in,
or contained in documents incorporated by reference in, the Prospectus (the
"FINANCIAL STATEMENTS") comply in all respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto. The Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied ("GAAP") and
fairly present the financial position of the Company at the dates thereof and
the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring adjustments
and the absence of complete footnotes). Except as and to the extent reflected in
the Financial Statements, the Company did not have, as of the date of the
Financial Statements, any liabilities or obligations (other than obligations of
continued performance under contracts and other commitments and arrangements
entered into in the ordinary course of business) which GAAP would require the
Company to reflect in the Financial Statements. Except as otherwise disclosed in
the Prospectus, there have not been any changes in the assets, liabilities,
financial condition or operations of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business that
have not had a Material Adverse Effect.
4.4 PROPERTIES. Except as set forth in the Prospectus, (i) the Company
has good title to all properties and assets described in the Prospectus as owned
by it, free and clear of any pledge, lien, security interest, encumbrance, claim
or equitable interest, other than as would not have a Material Adverse Effect,
(ii) the agreements to which the Company is a party described in the Prospectus
are valid agreements, enforceable by the Company, except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable
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principles and, to the Company's knowledge, the other contracting party or
parties thereto are not in material breach or material default under any of such
agreements, and (iii) the Company has valid and enforceable leases for all
properties described in the Prospectus as leased by it, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. Except as set
forth in the Prospectus, the Company owns or leases all such properties as are
necessary to the Company's operations as now conducted.
4.5 CAPITALIZATION. All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all applicable federal and
state securities laws, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities. The
capital stock of the Company conforms to the description thereof contained in
the Prospectus. The Shares have been duly authorized for issuance and sale to
the Investors pursuant to this Subscription Agreement, and, when issued and
delivered by the Company against payment therefor in accordance with the terms
of this Subscription Agreement, will be duly and validly issued and fully paid
and nonassessable, and will be sold free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest. Except as disclosed in the
Prospectus, no preemptive right, co-sale right, registration right, right of
first refusal or other similar right of shareholders exists with respect to any
of the Shares or the issuance and sale thereof other than those that have been
satisfied or expressly waived prior to the date hereof and those that will
automatically expire upon and will not apply to the consummation of the
transactions contemplated on or before the Closing. No further approval or
authorization of any shareholder or the Board of Directors of the Company is
required for the issuance and sale or transfer of the Shares. Except as
disclosed in the Prospectus, any document incorporated by reference in the
Prospectus, and the Financial Statements and the related notes thereto
incorporated by reference in the Prospectus, and subject to the applicable
anti-dilution provisions of securities described in the Prospectus, the Company
has no outstanding options to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible into,
or any contracts or commitments to issue or sell, shares of its capital stock or
any such options, rights, convertible securities or obligations.
4.6 LITIGATION. There is not pending or, to the Company's knowledge,
threatened, any action, suit, claim or proceeding against the Company or any of
its respective officers, properties, assets or rights before any court,
administrative agency, regulatory body, government or governmental agency or
body, domestic or foreign, having jurisdiction over the Company or any of its
respective officers, properties, or otherwise which (i) is reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect or is
reasonably likely to materially and adversely affect the Company's properties,
assets or rights or (ii) is reasonably likely to prevent consummation of the
transactions contemplated hereby, and, in each case, is not so disclosed in the
Prospectus. Neither the Company nor any of its subsidiaries is a party or
subject to the provisions of any injunction, judgment, decree or order of any
court, regulatory body, administrative agency, government or governmental agency
or body domestic or foreign, that could reasonably be expected to have a
Material Adverse Effect. The Company and each of its subsidiaries has conducted
and is conducting its business in compliance with all applicable federal, state,
local and foreign statutes, laws, rules, regulations, ordinances, codes,
decisions, decrees, directives and orders, except where the failure to do so
would not reasonably be likely, singly or in the aggregate, to have a Material
Adverse Effect.
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4.7 LISTED SHARES. The Common Shares are registered pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
and are approved for quotation on The Nasdaq National Market (the "NNM"). The
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Shares under the Exchange Act or
delisting the Common Shares from the NNM.
4.8 INTELLECTUAL PROPERTY. The Company owns or possesses rights to use
all patents, patent rights, inventions, trademarks, service marks, trade names
and copyrights and possesses all of the trade secrets and know-how which are
material and necessary to conduct its business as now conducted and as described
in the Prospectus. Except as disclosed in the Prospectus, the Company has not
received any written notice of, nor has it any actual knowledge of, any
infringement of or conflict with asserted rights of the Company by others with
respect to any patent, patent rights, inventions, trade secrets, know-how,
trademarks, service marks, trade names or copyrights that are reasonably likely
to have a Material Adverse Effect that would prevent the Company from carrying
out its business substantially as described in the Prospectus. Except as
disclosed in the Prospectus, the Company has not received any written notice of,
nor has it any knowledge of, any infringement of or conflict with asserted
rights of others with respect to any patent, patent rights, inventions, trade
secrets, know-how, trademarks, service marks, trade names or copyrights which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, is reasonably likely to have a Material Adverse Effect that would
prevent the Company from carrying out its business substantially as described in
the Prospectus.
4.9 NO CHANGE. Subsequent to the respective dates as of which
information is given in the Prospectus, there has not been (i) any material
adverse change in the condition (financial or otherwise), earnings, operations,
business or business prospects of the Company (not including reductions in the
cash position of the Company in the ordinary course consistent with past
practices since the date of the Prospectus), (ii) any transaction that is
material to the Company, (iii) any obligation, direct or contingent, incurred by
the Company, except obligations incurred in the ordinary course of business,
(iv) any change in the capital stock or outstanding indebtedness of the Company,
except the incurrence of trade debt and obligations incurred in the ordinary
course consistent with past practices, (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company, (vi) any
default in the payment of principal of or interest on any outstanding debt
obligations, or (vii) any loss or damage (whether or not insured) to the
property of the Company which has been sustained or will have been sustained
which has a Material Adverse Effect.
4.10 NO DEFAULTS. The Company is not (a) in violation of its Articles of
Incorporation or bylaws or (b) in default (upon notice or lapse of time or both)
in the performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note or other evidence of
indebtedness, or in any lease, contract, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to which it is a
party or by which its properties may be bound, or (c) in violation of any law,
order, rule, regulation, writ, injunction, judgment or decree of any court,
government or governmental agency or body, domestic or foreign, having
jurisdiction over the Company or its properties except in the case of (b) or (c)
for any default or violation not reasonably likely to have a Material Adverse
Effect.
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4.11 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Subscription Agreement ("CONSENTS") except for (a) such Consents which are
not material, (b) compliance with the securities and Blue Sky laws in the states
and other jurisdictions in which Shares are offered and/or sold, which
compliance will be effected in accordance with such laws and (c) consents
required by the NNM, the National Association of Securities Dealers, Inc., and
the SEC. The Company has not been advised, and has no reason to believe, that
either it or any of its subsidiaries is not conducting business in compliance in
all material respects with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including but not limited to,
all applicable federal, state and local environmental laws and regulations,
except for any failure to comply which is not reasonably likely to have a
Material Adverse Effect.
4.12 LABOR; EMPLOYEES. No labor disturbance by the employees of the
Company exists or, to the Company's knowledge, is imminent. The Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its principal suppliers, subcontractors, authorized dealers or international
distributors that is reasonably likely to result in a Material Adverse Effect.
No collective bargaining agreement exists with any of the Company's employees
and, to the Company's knowledge, no such agreement is imminent.
4.13 TAXES. The Company has timely filed all necessary federal, state
and foreign income and franchise tax returns and has paid all taxes shown
thereon as due, and there is no tax deficiency that has been or, to the
Company's knowledge, that might be asserted against the Company that is
reasonably likely to have a Material Adverse Effect. All tax liabilities are
adequately provided for on the books of the Company.
4.14 INVESTMENT COMPANY ACT. The Company has been advised concerning the
Investment Company Act of 1940, as amended (the "1940 ACT"), and the rules and
regulations thereunder, and is not, and intends in the future to conduct its and
its subsidiaries' affairs in such a manner as to ensure that it is not and will
not become, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act and such rules and regulations.
4.15 TRANSACTIONS WITH AFFILIATES. There are no outstanding loans,
advances (except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company or any of its subsidiaries or
any shareholder who owns beneficially more than five percent (5%) of the Common
Shares of the Company or any of the members of the families of any of them,
except as disclosed in the Prospectus.
4.16 ENVIRONMENTAL MATTERS. (i) The Company is in compliance with all
rules, laws and regulations relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment ("ENVIRONMENTAL
LAWS") which are applicable to its business, except where the failure to comply
would not reasonably be likely to have a Material Adverse Effect, (ii) the
Company has not received any written notice from any governmental authority or
third party of an asserted claim under Environmental Laws, which claim would be
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required to be disclosed in its filings with SEC under the Exchange Act, (iii)
to the Company's knowledge, the Company will not be required to make future
material capital expenditures to comply with Environmental Laws and (iv) no
property which is, or has been, owned, leased or occupied by the Company has, to
the Company's knowledge, been designated as a Superfund site pursuant to the
Comprehensive Response, Compensation, and Liability Act of 1980, as amended, or
otherwise designated as a contaminated site under applicable state or local law.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTORS.
Each of the Investors hereby represents and warrants as of the date
hereof to the Company as follows:
5.1 Such Investor has full legal right, power and authority to enter
into this Subscription Agreement and to perform the transactions contemplated
hereby. This Subscription Agreement has been duly authorized, executed and
delivered by such Investor and, assuming due authorization, execution and
delivery by the Company, constitutes a valid and binding agreement on the part
of such Investor, enforceable in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles. The making, execution and performance of this
Subscription Agreement by the Investor and the consummation of the transactions
herein contemplated 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
charter or other organizational documents of such Investor, as applicable or
(ii) any law, order, rule, regulation, writ, injunction, judgment or decree of
any court, administrative agency, regulatory body, government or governmental
agency or body, domestic or foreign, having jurisdiction over such Investor or
its properties, except for any conflict, breach, violation or default which is
not reasonably likely to have a material adverse effect on such Investor's
performance of its obligations hereunder or the consummation of the transactions
contemplated hereby.
5.2 Such Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Shares and is an accredited investor, as that term is defined
in Regulation D promulgated under the Securities Act of 1933, as amended.
5.3 Such Investor acknowledges and agrees that the Placement Agent may
rely on the representations of such Investor stated in this Subscription
Agreement.
6. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligations to complete the sale and issuance of the
Shares and to deliver Shares to each Investor, individually, as set forth in the
Schedule of Investors shall be subject to the following conditions (to the
extent not waived by the Company):
6.1 ESCROW AGREEMENT. The Escrow Agreement shall have been executed and
delivered by the Escrow Agent and the Placement Agent.
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6.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by such Investor in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing.
6.3 DELIVERY OF PURCHASE PRICE. The purchase price for the Shares being
purchased shall have been delivered by all of the Investors.
7. CONDITIONS TO INVESTORS' OBLIGATIONS AT THE CLOSING.
Each Investor's obligation to accept delivery of the Shares and to pay
for the Shares shall be subject to the following conditions (to the extent not
waived by such Investor):
7.1 ESCROW AGREEMENT. The Escrow Agreement shall have been executed and
delivered by all of the parties thereto.
7.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 shall be true and correct when made
and as of the Closing and each Investor shall have received a certificate signed
by the chief executive officer and chief financial officer of the Company, or
such other officers of the Company as agreed upon by the parties hereto, that
each of such representations and warranties, as appropriate, is true and correct
in all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made or given on and as of the
Closing (except for any representations and warranties given as of a specified
date), and that such party has performed and complied in all material respects
with all of its obligations under this Subscription Agreement which are to be
performed or complied with on or prior to the Closing.
8. ARBITRATION.
8.1 SCOPE. Resolution of any and all disputes arising from or in
connection with this Subscription Agreement, whether based on contract, tort,
common law, equity, statute, regulation, order or otherwise ("DISPUTES"), shall
be exclusively governed by and settled in accordance with the provisions of this
Section 8; provided, that the foregoing shall not preclude equitable or other
judicial relief to enforce the provisions hereof or to preserve the status quo
pending resolution of Disputes hereunder.
8.2 BINDING ARBITRATION. The parties hereby agree to submit all Disputes
to arbitration for final and binding resolution. Either party may initiate such
arbitration by delivery of a demand therefor (the "ARBITRATION DEMAND") to the
other party. The arbitration shall be conducted in Los Angeles, California by a
sole arbitrator selected by agreement of the parties not later than 10 days
after delivery of the Arbitration Demand, or, failing such agreement, appointed
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association, as amended from time to time (the "AAA RULES"). If the arbitrator
becomes unable to serve, his successor(s) shall be similarly selected or
appointed.
8.3 PROCEDURE. The arbitration shall be conducted pursuant to the
Federal Arbitration Act and such procedures as the parties may agree or, in the
absence of or failing such agreement, pursuant to the AAA Rules. Notwithstanding
the foregoing, (a) each party shall have the right to conduct limited discovery
of information relevant to the Dispute; (b) each party shall provide to
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the other, reasonably in advance of any hearing, copies of all documents that a
party intends to present in such hearing; (c) all hearings shall be conducted on
an expedited schedule; and (d) all proceedings shall be confidential, except
that either party may at its expense make a stenographic record thereof.
8.4 TIMING. The arbitrator shall use best efforts to complete all
hearings not later than 90 days after his or her selection or appointment, and
shall use best efforts to make a final award not later than 30 days thereafter.
The arbitrator shall apportion all costs and expenses of the arbitration,
including the arbitrator's fees and expenses, and fees and expenses of experts
("ARBITRATION COSTS") between the prevailing and non-prevailing party as the
arbitrator shall deem fair and reasonable. In circumstances where a Dispute has
been asserted or defended against on grounds that the arbitrator deems
manifestly unreasonable, the arbitrator may assess all Arbitration Costs against
the non-prevailing party and may include in the award the prevailing party's
attorney's fees and expenses in connection with any and all proceedings under
this Section 8. Notwithstanding the foregoing, in no event may the arbitrator
award multiple or punitive damages.
9. MISCELLANEOUS.
9.1 WAIVERS AND AMENDMENTS. Neither this Subscription Agreement nor any
provision hereof may be changed, waived, discharged, terminated, modified or
amended except upon the written consent of the Company and holders of at least a
majority of the Shares, or, in the case of non-material or ministerial
amendments, upon the written consent of the Company and the Placement Agent.
9.2 HEADINGS. The headings of the various sections of this Subscription
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Subscription Agreement.
9.3 BROKER'S FEE. The Company and each Investor (i) (severally and not
jointly) hereby represent that, except for amounts to be paid to the Placement
Agent by the Company, there are no brokers or finders entitled to compensation
in connection with the sale of the Shares, and (ii) shall indemnify each other
for any such fees for which they are responsible.
9.4 SEVERABILITY. In case any provision contained in this Subscription
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
9.5 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (c) upon receipt when sent by first-class registered or
certified mail, return receipt requested, postage prepaid, or (d) upon receipt
after deposit with a nationally recognized overnight express courier, postage
prepaid, specifying next day delivery with written verification of receipt. All
communications shall be sent to the party to be notified at the address as set
forth below or at such other address as such party may designate
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by ten (10) days' advance written notice to the Company. All communications
shall be addressed as follows:
(a) if to the Company, to:
PROCOM TECHNOLOGY, INC.
58 Discovery
Irvine, California 92618
Telephone: (949) 852-1000
Facsimile: (949) 261-5481
Attention: Chief Executive Officer
with a copy so mailed to:
O'MELVENY & MYERS LLP
610 Newport Center Drive
Newport Beach, California 92660
Telephone: (949) 823-6930
Facsimile: (949) 823-6994
Attention: Terrence Allen
(b) if to an Investor, at the address as set forth on the
Counterpart Execution Page of this Subscription Agreement.
9.6 GOVERNING LAW. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied to
contracts entered into and performed entirely in California by California
residents, without regard to conflicts of law principles.
9.7 COUNTERPARTS. This Subscription Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
9.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Subscription
Agreement, all covenants, agreements, representations and warranties made by the
Company and each Investor herein shall survive the execution of this
Subscription Agreement, the delivery to the Investors of the Shares and the
payment therefor until 90 days after the Closing.
9.9 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto. Neither the terms "successors" nor "assigns" as used herein
shall include any entity or person who purchases Shares from any Investor after
the Closing and is not an affiliate of an Investor.
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9.10 ENTIRE AGREEMENT. This Subscription Agreement and the other
documents delivered pursuant hereto, including the exhibits, constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
9.11 PAYMENT OF FEES AND EXPENSES. Each of the Company and the
Investors shall bear its own expenses and legal fees incurred on its behalf with
respect to this Subscription Agreement and the transactions contemplated hereby
(the "OFFERING"); provided, however, that the Company shall reimburse the
Placement Agent for certain fees and expenses incurred by the Placement Agent in
connection with the Offering, as set forth in the Placement Agency Agreement
with the Placement Agent dated February 28, 2001 (the "Placement Agency
Agreement"). Each Investor acknowledges that the Placement Agent will receive a
commission in the amount described in the Prospectus and hereby authorizes the
Placement Agent to deduct the amount of such commission, together with any
expenses to which the Placement Agent is entitled to reimbursement from the
Company pursuant to the Placement Agency Agreement, from the gross proceeds
payable to the Company from the sale of the Shares hereunder. If any action at
law or in equity is necessary to enforce or interpret the terms of this
Subscription Agreement, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
9.12 CONFIDENTIALITY. Each Investor acknowledges and agrees that any
information or data it has acquired from the Company, not otherwise properly in
the public domain, was received in confidence. Except to the extent authorized
by the Company and required by any federal or state law, rule or regulation or
any decision or order of any court or regulatory authority, Investor agrees that
it will refrain from disclosing any such information to any person other than to
any agent, attorneys, accountants, employees, officers and directors of Investor
who need to know such information in connection with Investors' purchase of the
Shares, and who agree to be bound by the confidentiality provisions of this
Subscription Agreement. In the event that Investor or its agents are required by
federal or state or other law, rule or regulation or any decision or order of
any court or regulatory authority to release such information, it shall give the
Company sufficient prior notice so that the Company may seek a stay or other
release or waiver from disclosing such information. Each Investor agrees not to
use to the detriment of the Company or for the benefit of any other person or
persons, or misuse in any way, any confidential information of the Company.
9.13 KNOWLEDGE. The phrases "knowledge," "to the Company's knowledge,"
"to our knowledge," "of which the Company is aware" and similar language as used
herein shall mean the actual knowledge and current awareness, or knowledge which
a reasonable person would have acquired following a reasonable investigation, of
Alex Razmjoo, Alex Aydin, Frank Alaghband, Nick Sharestany and Frederick Judd;
provided, however, that the term "actual knowledge of the Company" shall mean
the actual knowledge and current awareness of such persons.
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If this Subscription Agreement is satisfactory to you, please so
indicate by executing the counterpart execution page to this Subscription
Agreement and returning such page to the Company. Upon the Company's receipt of
your counterpart execution page and the Company's execution and delivery to you
of a counterpart signature page to this Subscription Agreement, this
Subscription Agreement will become binding between us in accordance with its
terms.
PROCOM TECHNOLOGY, INC.
a California corporation
By:
------------------------------
Name:
Title:
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COMMON SHARES SUBSCRIPTION AGREEMENT
COUNTERPART EXECUTION PAGE
By signing below, the undersigned agrees to the terms of the Procom Technology,
Inc. Common Shares Subscription Agreement and to purchase the number of Shares
set forth below.
Number of Shares being purchased:
------------------------------------
INVESTOR:
------------------------------------
By:
--------------------------------
Name:
Title:
Address:
Facsimile:
PLEASE COMPLETE THE FOLLOWING:
1. The exact name that your Shares -----------------------------
are to be registered in (this is
the name that will appear on your
Shares certificate(s)). You may use
a nominee name if appropriate:
2. The relationship between the purchaser of -----------------------------
the Shares and the Registered Holder
listed in response to item 1 above:
3. The mailing address and facsimile number of -----------------------------
the Registered Holder listed in response to -----------------------------
item 1 above (if different from above): Facsimile:
------------------
-----------------------------
4. (FOR UNITED STATES INVESTORS:) The Social
Security Number or Tax Identification Number
of the Registered Holder listed in the
response to item 1 above:
14
APPENDIX I
ESCROW AGREEMENT
15
EXHIBIT 2.4
WIRE INSTRUCTIONS
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