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Exhibit 4.17
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of this 10th day of June,
1996 between The Cerplex Group, Inc., a Delaware corporation (the "Company") and
the investors listed on Schedule A attached hereto (individually an "Investor"
and collectively the "Investors").
WHEREAS, the Company intends to sell to the Investors, and the
Investors desire to purchase from the Company, shares of Series B Preferred
Stock convertible into Common Stock; and
WHEREAS, concurrently with the execution of this Agreement, the Company
and the Investors have entered into an agreement in the form attached hereto as
Exhibit A granting certain registration rights to the Investors (the
"Registration Rights Agreement"), such agreement being entered into by the
parties hereto and concurrently herewith.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, and in reliance on the representations and
warranties herein provided, the parties intending to be legally bound agree as
follows:
1. Purchase and Sale.
(a) The Purchase. Subject to the terms and conditions of this
Agreement, each Investor agrees, severally, to purchase at the Closing, and the
Company agrees to sell and issue to each Investor at the Closing, at a price per
share of $1,000.00, that number of shares of the Company's Series B Preferred
Stock (the "Preferred Stock"), set forth opposite each Investor's name on
Schedule A hereto for the aggregate purchase price set forth therein. The
Company intends to sell a maximum of 8,000 shares of the Preferred Stock for an
aggregate maximum purchase price equal to $8,000,000.
(b) The Closing. The purchase and sale of the Preferred Stock
shall take place at the offices of Stradling, Yocca, Carlson & Rauth, 660
Newport Center Drive, Suite 1600, Newport Beach, California, at 11:00 a.m. on
June 10, 1996, or at such other time and place as the Company and Investors
acquiring in the aggregate more than half the shares of the Preferred Stock sold
pursuant hereto mutually agree upon orally or in writing (which time and place
are designated as the "Closing"). At the Closing, the Company shall deliver to
each Investor a certificate registered in such Investor's name, representing the
Preferred Stock which such Investor is purchasing against delivery to the
Company by such Investor of a check or wire transfer in the amount of the
purchase price therefor payable to the Company's order.
2. Conditions to Obligations.
(a) Conditions to the Investors' Obligations. The obligation
of the Investors to purchase and pay for the Preferred Stock contemplated by
Section 1 at the Closing shall be subject to the satisfaction of each of the
following conditions precedent, the waiver of which shall not be effective
against any Investor who does not consent in writing thereto:
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(i) Representations and Warranties. Each of the
representations and warranties of the Company set forth in Section 3 shall be
true and correct as if made at the Closing.
(ii) Performance. The Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(iii) Certificate of Designation of Preferences. The
Certificate of Designation of Preferences of Series B Preferred Stock
substantially in the form of Exhibit B attached hereto (the "Certificate of
Designation") shall have been duly adopted by the Board of Directors of the
Company and filed with the Delaware Secretary of State.
(iv) Compliance Certificate. The Chief Executive Officer,
Chief Operating Officer or Chief Financial Officer of the Company shall deliver
to each Investor at the Closing a certificate certifying that the conditions
specified in subsections (i) and (ii) of this section 2(a) have been fulfilled.
(v) Opinion of Counsel to the Company. Each Investor shall
have received from Brobeck, Phleger & Harrison, counsel for the Company, an
opinion dated as of the Closing, substantially in the form set forth in Exhibit
C attached hereto.
(vi) Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Preferred Stock to the Investors pursuant to this Agreement
shall have been duly obtained and shall be effective on and as of the Closing,
except for any post-sale filings that may be required under federal and state
securities laws.
(vii) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor and the Investors' counsel, and they shall have
received all such counterpart original and certified or other copies of such
documents as they may reasonably request.
(viii) Registration Rights Agreement. The Company and each
Investor shall have entered into a Registration Rights Agreement in the form
attached hereto as Exhibit A and all third party consents to the execution and
delivery of the Registration Rights Agreement shall have been obtained.
(ix) Irrevocable Proxies/Voting Agreements. The Investors
shall have received from stockholders holding more than fifty percent (50%) of
the outstanding voting capital stock of the Company Irrevocable Proxies/Voting
Agreements substantially in the form of Exhibit D attached hereto with respect
to the proposal to be considered to authorize the issuance of Preferred Stock as
provided in Section 5(f) below.
(b) Conditions to the Company's Obligations. The obligations
of the Company to each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor, any one or more of which may be waived by the Company:
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(i) Representations and Warranties. Each of the
representations and warranties of the Investor set forth in Section 4 shall be
true and correct as if made at the Closing.
(ii) Payment of Purchase Price. The Investor shall have
delivered payment of the aggregate purchase price of the Preferred Stock to be
purchased by such Investor.
(iii) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and the Company's counsel, and they shall have received
all such counterpart original and certified or other copies of such documents as
they may reasonably request.
(iv) Performance. The Investor shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(v) Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Preferred Stock to the Investors pursuant to this Agreement
shall have been duly obtained and shall be effective on and as of the Closing,
except for any post-sale filings that may be required under federal and state
securities laws.
3. Representations and Warranties of the Company. Except as set
forth on the Schedule of Exceptions attached hereto as Schedule B, specifically
identifying the relevant subparagraph hereof, which exceptions shall be deemed
to be representations and warranties as if made hereunder, the Company hereby
represents and warrants to each Investor that:
(a) Corporate Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business as a foreign corporation in each
jurisdiction where failure to qualify would have a materially adverse effect on
the financial condition, assets, liabilities, prospects, business or properties
of the Company (a "Material Adverse Effect"). The Company has full power and
authority to own its properties, to carry on its business as presently conducted
and to carry out the transactions contemplated hereby.
(b) Authorization. The Company has full power to execute,
deliver and perform this Agreement and the Registration Rights Agreement, and
this Agreement and the Registration Rights Agreement have been duly executed and
delivered by the Company and are the legal, valid and, assuming due execution by
the other parties hereto, binding obligations of the Company, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting creditors'
rights generally, and to general equitable principles. The execution, delivery
and performance of this Agreement and the Registration Rights Agreement,
including the sale, issuance and delivery of the Preferred Stock, have been duly
authorized by all necessary corporate actions of the Company and its
stockholders.
(c) Valid Issuance of Preferred and Common Stock. The shares
of Preferred Stock being purchased by the Investors hereunder, when issued, sold
and delivered in accordance with the terms hereof for the consideration
expressed herein, will be duly and validly issued, and, based in part upon the
representations of the Investors in this Agreement, will be issued in
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compliance with the registration and qualification requirements of all
applicable federal and state securities laws and such shares of Preferred Stock
will be fully paid and non-assessable. The rights, privileges and preferences of
the Preferred Stock will be as stated in the Company's Certificate of
Designation, attached hereto as Exhibit B. The shares of Common Stock issuable
upon conversion of the Preferred Stock purchased under this Agreement have been
duly and validly reserved for issuance and, upon issuance in accordance with the
terms of the Certificate of Designation, shall be duly and validly issued, fully
paid and nonassessable, and issued in compliance with the registration and
qualification requirements of all applicable securities laws, as presently in
effect, of the United States and each of the states whose securities laws govern
the issuance of any of the Preferred Stock hereunder.
(d) Governmental Approvals. Based in part on the
representations made by the Investors in Section 4, no authorization, consent,
approval, license, exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, under any applicable laws, rules or regulations presently
in effect, is or will be necessary for, or in connection with, the offer,
issuance, sale, execution and delivery by the Company of the Preferred Stock or
for the performance by the Company of its obligations under this Agreement,
except for filings under applicable securities laws which will be made by the
Company within the prescribed periods.
(e) Litigation. There is no litigation or governmental
proceeding or investigation pending or, to the best knowledge of the Company,
threatened against the Company which would have a Material Adverse Effect or
which would materially and adversely affect the execution and delivery of this
Agreement or the performance by the Company of its obligations hereunder.
(f) Subsidiaries; Charter Documents. Except as set forth in
the Schedule of Exceptions, the Company has no active subsidiaries and does not
otherwise directly or indirectly control any other business entity. The Company
has furnished the Investors with copies of its Certificate of Incorporation and
Bylaws, as currently in effect, together with any amendments or Certificates of
Designation thereto as of the date hereof. The documents so furnished are true,
correct and complete copies of the existing original documents, and contain all
modifications, amendments, deletions and revocations.
(g) Financial Statements. The Company has delivered to the
Investors copies of the Company's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1996 and the Annual Report on Form 10-K for the year ended
December 31, 1995, containing audited consolidated balance sheets, statements of
income and changes in financial position for the Company for the fiscal year
ended December 31, 1995 (the "Financial Statements"). The Financial Statements
are complete and correct in all material respects, have been prepared in
accordance with generally accepted accounting principles, consistently applied,
and fairly present the financial position of the Company as of each such date
and the results of operations for each such periods then ended.
(h) Absence of Certain Developments. Since March 31, 1996,
there has been no (i) material adverse change in the condition, financial or
otherwise, of the Company or its assets, liabilities, properties, business,
operations or prospects generally, (ii) declaration, setting aside or payment of
any dividend or other distribution with respect to the capital stock of the
Company, (iii) loss, destruction or damage to any property of the Company,
whether or not insured, or the occurrence of any other event, which has or is
likely to have a Material Adverse Effect, (iv) material
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change in the compensation to officers or directors, (v) any material
transactions with any insiders or affiliates of the Company or (vi) the entering
into or termination of any material agreements by the Company. The Company has
not failed to disclose to the Investors any material facts, or omitted to state
any material facts necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
(i) Absence of Undisclosed Liabilities. Except for liabilities
arising in the ordinary course of its business, since March 31, 1996 the Company
has no material accrued or contingent liability which is reasonably likely to
occur arising out of any transaction or state of facts existing prior to the
date hereof.
(j) Business. The Company has all necessary franchises,
permits, governmental licenses and other governmental rights and privileges
necessary to permit it to own its properties and to conduct its present
business, except where the failure to do so would not have a Material Adverse
Effect. The Company is not in violation of any law, regulation, authorization or
order of any public authority relevant to the ownership of its properties or the
carrying on of its present business, except where such violation would not have
a Material Adverse Effect.
(k) Non-Contravention. The execution, delivery and performance
by the Company of this Agreement and the Registration Rights Agreement does not
and will not (i) contravene or conflict with the Certificate of Incorporation,
as amended, or Bylaws of the Company, or (ii) contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to the Company, or (iii)
any contract, agreement or instrument to which the Company is a party or by
which any of its properties or assets is subject, in any manner which would
materially and adversely affect the Investors' rights or their ability to
realize the intended benefits under this Agreement or the Registration Rights
Agreement, or which would have a Material Adverse Effect.
(l) Filings. The Company has filed all reports required to be
filed with the Commission under the Securities Exchange Act of 1934 (the "1934
Act"), including (i) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, (ii) its Quarterly Reports on Form 10-Q for its
fiscal quarters ending March 31, 1995, June 30, 1995, September 30, 1995 and
March 31, 1996, and (iii) all of its other reports (including without limitation
reports on Form 8-K, statements, schedules and registration statements filed
with the Commission since December 31, 1994). As of its filing date, no such
report or statement filed pursuant to the 1934 Act contained any untrue
statement of a material fact or omitted 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.
(m) Registration Rights Agreement. The Company has entered
into the Registration Rights Agreement with each Investor as provided in Section
2(a)(ix), and, other than the registration rights described in the Schedule of
Exceptions, no other registration rights currently exist.
(n) Indemnification. The Company maintains provisions in its
Certificate of Incorporation or Bylaws, as amended, for the indemnification of
its officers and directors to the fullest extent permitted by law.
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(o) Insurance. The Company has in full force and effect fire
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed. The Company has in full force and effect
products liability insurance in amounts customary for companies similarly
situated.
(p) Tax Returns, Payments and Elections. The Company has filed
all tax returns and reports as required by law. These returns and reports are
true and correct in all material respects. The Company has paid all taxes and
other assessments due, except those contested by it in good faith which are
listed in the Schedule of Exceptions. The Company has not elected pursuant to
the Internal Revenue Code of 1986, as amended ("Code"), to be treated as a
collapsible corporation pursuant to Section 341(f) or Section 1362(a) of the
Code, nor has it made any other elections pursuant to the Code (other than
elections which relate solely to methods of accounting, depreciation or
amortization) which would have a Material Adverse Effect.
(q) Environmental and Safety Laws. The Company is not in
violation of any applicable statute, law, or regulation relating to the
environment or occupational health and safety, which could have a Material
Adverse Effect and, based on the Company's business as currently conducted, no
material expenditures are or will be required in order to comply with any such
existing statute, law, or regulation.
(r) Patents and Trademarks. To the best of its knowledge, the
Company has sufficient title and ownership of, or has obtained licenses on terms
which will not result in any Material Adverse Effect, all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for its business as now conducted without any
conflict with or infringement of the rights of others. There are no outstanding
material options, licenses, or agreements of any kind relating to the foregoing
other than in the ordinary course of business, nor is the Company bound by or a
party to any material options, licenses or agreements of any kind with respect
to the patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, information, proprietary rights and processes of any other
person or entity other than in the ordinary course of business. All material
agreements pursuant to which the Company is either the licensor or licensee of
any patent, patent application, copyright, trademark, service mark, trade secret
or other intellectual property are identified on the Schedule of Exceptions. All
third party licenses referred to above are in full force and effect and neither
the Company nor any other party thereto are in material breach or default under
any provisions of any such license. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity, the infringement or violation of which would have a
Material Adverse Effect. The Company is not aware that any of its employees are
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of their
respective best efforts to promote the interests of the Company or that would
conflict with the Company's business as proposed to be conducted. The Company
does not believe it is or will be necessary to utilize any inventions of any of
its employees (or people it currently intends to hire) made prior to their
employment by the Company.
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(s) Capitalization. The authorized, issued and outstanding
Capital Stock of the Company is as set forth on the Schedule of Exceptions.
Except as set forth on the Schedule of Exceptions, there are no outstanding
rights of first refusal, preemptive rights, or other rights, options, warrants,
conversion rights, or other agreements either directly or indirectly for the
purchase or acquisition from the Company of any shares of its Capital Stock.
(t) Employee Benefit Plans. The Schedule of Exceptions
contains a true and complete list of all of the defined benefit plans of the
Company. Each defined benefit plan of the Company is in compliance with the
applicable provisions of the Employee Retirement Income Security Act ("ERISA"),
except where the noncompliance would not have a Material Adverse Effect. Each of
the Company defined benefit plans which is intended to constitute a qualified
plan within the meaning of Section 401 of the Internal Revenue Code of 1986, as
amended, is so qualified and has been determined by the Internal Revenue Service
to be so qualified. All contributions due and payable to or under the Company's
defined benefit plans have been made.
(u) Labor Relations. None of the employees of the Company is
represented by a labor union and no petition has been filed or proceedings
instituted by any employee or group of employees with any labor relations board
seeking recognition of a bargaining representative. There are no controversies
or disputes pending between the Company and its employees, except for
controversies and disputes with individual employees arising in the ordinary
course of business which have not had and will not have, individually or in the
aggregate a Material Adverse Effect.
(v) Material Contracts and Agreements. Except as set forth in
the Schedule of Exceptions, the Company does not have any material contract,
agreement, lease or other commitment, written or oral, absolute or contingent.
All material contracts, agreements and instruments to which the Company is a
party are valid, binding and in full force and effect in all material respects
without any material breach by any party thereto.
4. Representations, Warranties and Covenants of the Investor.
Each Investor hereby represents, warrants and covenants to the Company as
follows:
(a) Investment Experience. The Investor is an "accredited
investor" within the meaning of Rule 501 under the Securities Act of 1933, as
amended (the "1933 Act"), and, in the case of any Investor which is a
partnership or other legal entity, was not organized for the specific purpose of
acquiring the Preferred Stock. Such Investor has sufficient knowledge and
experience in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks and merits
of its investment in the Company and it is able financially to bear the risks
thereof.
(b) Purchase for Own Account. The Investor is acquiring the
Preferred Stock for investment for its own account and not with the view to, or
for resale in connection with, any distribution thereof. Such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Such Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer, or grant
participations to such person or to any third person, with respect to any of the
Preferred Stock. The Investor understands that the shares of Preferred Stock
have not been registered under the 1933 Act by reason of an exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of its investment intent as expressed herein.
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(c) Restricted Securities. The Investor understands that the
Preferred Stock, and any Common Stock issuable upon conversion thereof, may not
be sold, transferred, or otherwise disposed of without registration under the
1933 Act, or an exemption therefrom, and that in the absence of an effective
registration statement covering the Preferred Stock, and Common Stock issuable
upon conversion thereof, or an available exemption from registration under the
1933 Act, the Preferred Stock, and any Common Stock issuable upon conversion
thereof, must be held indefinitely. In the absence of an effective registration
statement covering the Preferred Stock or any Common Stock issuable upon
conversion thereof, the Investor will sell, transfer, or otherwise dispose of
the Preferred Stock, and any Common Stock issuable upon conversion thereof, only
in a manner consistent with its representations and agreements set forth herein.
(d) Information. The Investor believes it has received all of
the information it considers necessary or appropriate for deciding whether to
purchase the Preferred Stock. The Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Preferred Stock. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in Section 3 of this Agreement or the right of the Investor to rely
thereon.
(e) Legend. It is understood that the certificates evidencing
the Preferred Stock, and any Common Stock issued upon conversion thereof, may
bear substantially the following legends:
(i) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
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(ii) Any legend required by the laws of the State of
California or any other applicable jurisdiction.
(f) Voting. The Investor hereby agrees to vote his, her or its
voting capital stock of the Company for any proposal to authorize the issuance
and authorization of the Preferred Stock and the conversion thereof into shares
of Common Stock.
5. Covenants of the Company. Without limiting any other
covenants and provisions hereof, the Company covenants and agrees that:
(a) The Company will provide each Investor with copies of the
Company's Quarterly Reports on Form 10-Q, Annual Reports on Form 10-K and Annual
Reports to Stockholders within twenty (20) days of the filing of such documents
with the Commission; provided, however, that such obligation shall terminate as
to any Investor upon the earlier of (i) the sale, disposition or conversion into
Common Stock of all of such Investor's Preferred Stock or (ii) such time as such
Investor holds less than 500 shares of Preferred Stock and/or an equivalent
number of shares of Common Stock which are issuable upon conversion of 500
shares of Preferred Stock.
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(b) The Company will permit each Investor who holds at least
500 shares of Preferred Stock and/or an equivalent number of shares of Common
Stock which are issuable upon conversion of 500 shares of Preferred Stock, at
such Investor's expense, to visit and inspect the Company's properties, to
examine its books, accounts and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by the Investor; provided, however, that the Company shall not be
obligated pursuant to this Section 5(b) to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information and, provided further, that all obligations under this Section 5(b)
shall terminate as to any Investor upon the earlier of (i) the sale, disposition
or conversion into Common Stock of all of such Investor's Preferred Stock or
(ii) such time as such Investor holds less than 500 shares of Preferred Stock.
(c) The Company will maintain provisions in its Certificate of
Incorporation or Bylaws for the indemnification of its officers and directors to
the fullest extent permitted by law for so long as any representative of any of
the Investors serves on the Company's Board of Directors.
(d) The Company will use its best efforts to obtain and keep
directors' and officers' liability insurance in the amount of at least
$3,000,000 if such coverage is available at commercially reasonable rates. Such
coverage will be kept in place for so long as any representative of any of the
Investors serves on the Company's Board of Directors.
(e) The Company will use the proceeds from the sale of the
Preferred Stock for repayment of existing indebtedness in the approximate amount
of twenty-five percent (25%) of the proceeds, and the remainder for general
corporate purposes.
(f) The Company shall include in its proxy materials for its
next scheduled annual meeting of stockholders, a proposal to authorize the
issuance of the Preferred Stock, and the conversion thereof into shares of
Common Stock to satisfy the requirements of the Bylaws of the National
Association of Securities Dealers, Inc.
6. Miscellaneous.
(a) No Waiver: Cumulative Remedies. No failure or delay on the
part of the Investors or the Company in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(b) Amendments, Waivers and Consents. Except as otherwise
expressly provided in this Agreement, changes in or additions to this Agreement
may be made, and compliance with any covenant or provision herein or therein set
forth may be omitted or waived (either generally or in a particular instance and
either retroactively or prospectively), so long as the Company and the holders
of at least a majority of the then outstanding shares of Preferred Stock issued
hereunder and/or an equivalent number of then outstanding shares of Common Stock
which have been issued upon conversion of shares of Preferred Stock which are
held by the Investors and/or transferees of an Investor other than pursuant to a
public sale, so agree in writing. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each Investor and their transferees.
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Any waiver or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only to the extent
expressly set forth therein.
(c) Addresses for Notices. All notices, requests, demands and
other communications provided for hereunder to be sent to the Investors shall be
in writing (including telegraphic communication) and mailed, telecopied or
delivered to the applicable party at the addresses indicated on Schedule A
hereto. Any such notices, requests, demands or other communications to the
Company shall be sent to:
The Cerplex Group, Inc.
1382 Bell Avenue
Tustin, California 92680
Attention: Bruce D. Nye
with a copy to:
Brobeck, Phleger & Harrison
4675 MacArthur Court, Suite 1000
Newport Beach, California 92660-1836
Attention: Frederic A. Randall, Jr., Esq.
Any party to this Agreement may change its address by written notice to the
other party complying as to delivery with the terms of this Section. All such
notices, requests, demands and other communications shall, when delivered by
courier, mailed or telecopied, respectively, be effective when delivered to the
courier, deposited in the mails or sent on the telecopier, respectively,
addressed as aforesaid.
(d) Fees, Costs and Expenses. Irrespective of whether the
Closing is effected, the Company shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement. If the Closing is effected, the Company shall, at the Closing,
reimburse the reasonable fees of Stradling, Yocca, Carlson & Rauth, special
counsel for the Investors, not to exceed an aggregate of $25,000, and shall upon
receipt of a bill therefor, reimburse the out of pocket expenses of such
counsel. If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement or the Certificate of Designation, 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.
(e) Binding Effect, Assignment. Except as otherwise
specifically provided for herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any of the shares sold
hereunder). 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.
(f) Survival of Representations and Warranties. All
representations and warranties made in this Agreement shall survive the
execution and delivery hereof, the Closing
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hereunder, and any examination made by the Investors for a period of eighteen
(18) months following the Closing.
(g) Prior Agreements. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings or
agreements concerning the subject matter hereof.
(h) Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
(i) Public Disclosure. The Company shall consult with the
holders of a majority of the outstanding Preferred Stock prior to making the
initial public disclosure concerning the transactions contemplated hereby.
(j) Governing Law. This Agreement shall be governed by and
construed in accordance with, the laws of the State of California without giving
effect to principles of conflict of laws.
(k) Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall
not-constitute a part of this Agreement for any other purpose.
(l) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
11
12
IN WITNESS WHEREOF, the Company and the Investors have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE CERPLEX GROUP, INC.
By:
------------------------------------
Title:
---------------------------------
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: General Managing Partner
By:
--------------------------------
Robert Finzi, Attorney-in-Fact
DLJ CAPITAL CORPORATION
By:
------------------------------------
SCORPION OFFSHORE INVESTMENT
FUND
By:
------------------------------------
Title:
---------------------------------
THE & TRUST
By:
------------------------------------
Title:
---------------------------------
12
13
CHESTNUT PACIFIC LTD. PARTNERS
By:
------------------------------------
Title:
---------------------------------
STANDARD GLOBAL EQUITY PARTNERS
L.P.
By:
------------------------------------
Title:
---------------------------------
STANDARD PACIFIC CAPITAL
OFFSHORE FUND LTD.
By:
------------------------------------
Title:
---------------------------------
COMMON FUND EQUITY FUND
By:
------------------------------------
Title:
---------------------------------
----------------------------------------
MALCOLM FAIRBAIRN
----------------------------------------
EMILY FAIRBAIRN
----------------------------------------
ANDREA MARTIN
----------------------------------------
NITIN T. MEHTA
13
14
PEAK INVESTMENT LIMITED
PARTNERSHIP
By:
------------------------------------
Title:
---------------------------------
PLEIADES INVESTMENT PARTNERS
By:
------------------------------------
Title:
---------------------------------
WHITMAN PARTNERS, L.P.
By:
------------------------------------
Title:
---------------------------------
MAHUMA N.V.
By:
------------------------------------
Title:
---------------------------------
14
15
SCHEDULE A
SCHEDULE OF INVESTORS
Shares of Series B Aggregate Purchase
Investor Preferred Stock Price
-------- ------------------ ------------------
Sprout Growth II, L.P.
3000 Sand Hill Road
Building 4, Suite 270
Menlo Park, CA 94025
Attn: Robert Finzi 2,269 $ 2,269,000
DLJ Capital Corporation
3000 Sand Hill Road
Building 4, Suite 270
Menlo Park, CA 94025
Attn: Robert Finzi 231 $ 231,000
Scorpion Offshore Investment Fund
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 1,575 $ 1,575,000
The & Trust
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 103 $ 103,000
Chestnut Pacific Ltd. Partners
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 183 $ 183,000
Standard Global Equity Partners L.P.
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 373 $ 373,000
Standard Pacific Capital Offshore Fund Ltd.
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 157 $ 157,000
15
16
Common Fund Equity Fund
c/o Standard Pacific Capital LLC
600 California Street, 18th Floor
San Francisco, CA 94108
Attn: Daniel S. Martin 109 $ 109,000
Malcolm and Emily Fairbairn
16117 Sunset Boulevard, Apt. 203
Pacific Palisades, CA 90272 100 $ 100,000
Andrea Martin
84 Willowbrook Road
Longmeadow, MA 01106 10 $ 10,000
Nitin T. Mehta
58 Greenoaks Drive
Atherton, CA 94027 200 $ 200,000
Peak Investment Limited Partnership
One Financial Center, Suite 1600
Boston, MA 02111
Attn: Peter H. Kamin 1,000 $ 1,000,000
Pleiades Investment Partners
c/o Peak Investment Limited Partnership
One Financial Center, Suite 1600
Boston, MA 02111
Attn: Peter H. Kamin 300 $ 300,000
Whitman Partners, L.P.
c/o Whitman Capital
One Sansome Street, 18th Floor
San Francisco, CA 94104
Attn: Douglas F. Whitman 1,332 $ 1,332,000
Mahuma N.V.
c/o Whitman Capital
One Sansome Street, 18th Floor
San Francisco, CA 94104
Attn: Douglas F. Whitman 58 $ 58,000
TOTALS: 8,000 $ 8,000,000
===== ===========
16
17
SCHEDULE B
SCHEDULE OF EXCEPTIONS
18
EXHIBIT A
(FOURTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT)
19
EXHIBIT B
(CERTIFICATE OF DESIGNATION)
20
EXHIBIT C
(LEGAL OPINION OF BROBECK, PHLEGER & HARRISON)