EXHIBIT 10.3
GENUS, INC.
COMMON STOCK PURCHASE AGREEMENT
WITH
CONSECO CAPITAL MANAGEMENT
FEBRUARY 8, 1995
GENUS, INC.
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made as of February
8, 1995, by and among Genus, Inc. (the "Company"), a California corporation, and
each person executing a signature page hereto (the "Purchasers").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchasers agree as follows:
SECTION 1. AGREEMENT TO SELL AND PURCHASE THE COMMON STOCK.
(a) At the Closing (as defined in Section 2), the Company shall sell
to the Purchasers, and the Purchasers shall purchase from the Company, severally
and not jointly, upon the terms and conditions hereinafter set forth, a number
of shares (the "Shares") of the Company's Common Stock (the "Common Stock")
determined by dividing the Aggregate Purchase Price set forth on the signature
page of this Agreement by the Per Share Purchase Price (as hereinafter defined).
The "Per Share Purchase Price" shall be determined by multiplying 85% by the
average of the last sale prices, regular way, of the Common Stock, as reported
by The NASDAQ National Market for the period of five consecutive Trading Days
prior to the February 10, 1995 (the "Pricing Date"). "Trading Day" means a day
on which there is one or more sales, regular way, of the Common Stock reported
by The NASDAQ National Market, whether or not trading is interrupted for any
portion of such day.
(b) The Company shall have no obligation hereunder with respect to
the Purchasers until the Company shall execute and deliver to the Purchasers an
executed copy of this Agreement. If this Agreement is not executed and
delivered by the Company or the offering is terminated, this Agreement shall be
of no further force or effect.
(c) This Agreement and the respective obligations of the Purchasers
and the Company hereunder shall terminate if the Closing (as hereinafter
defined) has not occurred by February 28, 1995 for any reason; provided,
however, that such termination shall not excuse a material breach of this
Agreement by either party prior to such termination.
SECTION 2. DELIVERY OF THE COMMON STOCK AT THE CLOSING. The completion
of the purchase and sale of the Shares (the "Closing") shall occur at the law
offices of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation, 650
Page Mill Road, Palo Alto, California 94304-1050 (Telephone No. 415.493.9300;
Facsimile No. 415.493.6811) at 10:00 a.m. on February 17, 1995 (the "Closing
Date"), or such later date prior to February 28, 1995 as the Company and the
Purchasers may agree, subject to the satisfaction (or waiver) of the conditions
hereinafter set forth. At the Closing, each Purchaser shall make payment of the
full purchase price of the Shares being purchased by the Purchaser at the
Closing. At the Closing, the Company shall deliver to each Purchaser one or
more stock certificates registered in the name of the Purchaser,
or in such name or names as may be designated by the Purchaser, representing the
number of Shares purchased by the Purchaser in accordance with Section 1. The
name(s) in which the stock certificates are to be registered are set forth on
the signature page to this Agreement. The Purchasers shall provide written
instructions to the Company at least one day prior to the Closing specifying the
names and addresses of the persons who are to accept delivery of the Shares on
behalf of the Purchasers.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchasers as of the Closing Date as follows:
3.1 ORGANIZATION. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of California.
The Company has all requisite corporate power and authority to own, lease and
operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on the condition (financial or
otherwise), assets, business or results of operations of the Company and its
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
3.2 SUBSIDIARIES. All of the Company's subsidiaries (the
"Subsidiaries") are listed on Exhibit 21 to the Company's Annual Report on Form
10-K for the Year Ended December 31, 1993 (the "Form 10-K"). Each of the
Company's Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, has
full corporate power and authority to own and lease its properties, and to carry
on its business as presently conducted, is duly qualified, registered or
licensed as a foreign corporation to do business and is in good standing in each
jurisdiction in which the ownership or leasing of its properties or the
character of its present operations make such qualification, registration or
licensing necessary, except where the failure so to qualify or be in good
standing would not have a Material Adverse Effect. The Company owns, directly
or indirectly, all of the outstanding shares of capital stock of each of its
Subsidiaries free of any lien, restriction (other than restrictions generally
applicable to securities under federal, provincial or state securities laws) or
encumbrance, and said shares have been duly issued and are validly outstanding.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable. The issuance and delivery of the Shares is not subject
to preemptive or any other similar rights of the stockholders of the Company or
any liens or encumbrances.
3.4 PRIVATE PLACEMENT OFFERING MEMORANDUM; SEC DOCUMENTS; FINANCIAL
STATEMENT. The Company has filed in a timely manner all documents that the
Company was required to file with the Securities and Exchange Commission (the
"SEC") under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), during the twelve (12)
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months preceding the date of this Agreement. As of their respective filing
dates, all documents filed by the Company with the SEC (the "SEC Documents")
complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the "Securities Act"), as applicable.
Neither the Company's Private Placement Offering Memorandum dated December 1994
(the "Memorandum") nor any of the SEC Documents as of their respective dates
contained any untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents (the "Financial Statements") comply as to form in all material
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 and fairly present the consolidated financial position of
the Company and any Subsidiaries at the dates thereof and the consolidated
results of their operations and consolidated cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal, recurring
adjustments).
3.5 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 Agreement except for (a) compliance with the securities and
blue sky laws in the states in which Shares are offered and/or sold, which
compliance will be effected in accordance with such laws, (b) the filing of the
Registration Statement (as hereinafter defined) all amendments thereto with the
SEC as contemplated by Section 6 of this Agreement and (c) the filing of The
NASDAQ National Market Notification Form with The NASDAQ National Market and
Form 10-C with the SEC.
3.6 NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed herein,
since September 30, 1994, there have not been any changes in the assets,
liabilities, financial condition, business prospects or operations of the
Company from that reflected in the Financial Statements except changes in the
ordinary course of business which have not been, either individually or in the
aggregate, materially adverse.
3.7 INTELLECTUAL PROPERTY. To the Company's knowledge, each of the
Company and its Subsidiaries owns or possesses adequate rights to use all
material patents, patent rights, inventions, trade secrets and know-how
described or referred to in the Memorandum as owned or used by it or that are
necessary for the conduct of its business as described in the Memorandum;
neither the Company nor any of its subsidiaries has received any notice of, or
has any knowledge of, any infringement of or conflict with asserted rights of
others with respect to any patent, patent right, invention, trade secret or
know-how that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected to have a
Material Adverse Effect.
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3.8 AUTHORIZED CAPITAL STOCK. The authorized capital stock of the
Company consists of 20,000,000 shares of Common Stock, no par value, and
2,000,000 shares of Preferred stock, no par value, of which, 12,833,495 shares
of Common Stock and no shares of Preferred Stock were outstanding at February 2,
1995.
3.9 LITIGATION. There are no actions, suits proceedings or
investigations pending or, to the best of the Company's knowledge, threatened
against the Company or any of its properties before or by any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood (in the judgment of the Company) of an adverse decision
that (a) could have a Material Adverse Effect or (b) could impair the ability of
the Company to perform in any material respect its obligations under this
Agreement.
3.10 USE OF PROCEEDS. The Company will apply the net proceeds from the
sale of the shares in the manner set forth in the Memorandum.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
Each Purchaser represents and warrants, severally and not jointly, to the
Company as follows:
4.1 ACCREDITED INVESTOR. The Purchaser is an "accredited investor"
within the meaning of Rule 501(a) of the Securities Act.
4.2 INVESTMENT REPRESENTATIONS. The Purchaser is aware that the Shares
have not been registered under the Securities Act or any applicable state
securities laws, and agrees that the Shares will not be offered or sold in the
absence of registration under the Securities Act and any applicable state
securities laws or an exemption from the registration requirements of the
Securities Act and any applicable state securities laws.
The Purchaser understands that the offering and sale of the Shares is
intended to be exempt from registration under the Securities Act, by virtue of
Section 4(2) and/or Section 4(6) of the Securities Act and the provisions of
Regulation D promulgated thereunder, based, in part, upon the representations,
warranties and agreements contained in this Agreement and the Company may rely
on such representations, warranties and agreements in connection therewith. The
Purchaser will not transfer the Shares in violation of the provisions of any
applicable federal or state securities laws.
The Purchaser is acquiring the Shares for its own account and for
investment, and not with a view to the distribution thereof or with any present
intention of distributing or selling any of the Shares except in compliance with
the Securities Act. The Purchaser represents that by reason of its business and
financial experience, and the business and financial experience of those
persons, if any, retained by it to advise it with respect to its investment in
the Shares, such Purchaser together with such advisers have such knowledge,
sophistication and experience in business and financial matters as to be capable
of evaluating the merits and risk of the
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prospective investment. The Purchaser's financial condition and investments are
such that it is in a financial position to hold the Shares for an indefinite
period of time and to bear the economic risk of, and withstand a complete loss
of, its investment in the Shares.
4.3 AUTHORITY. The Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby. Upon the execution and delivery of this Agreement by the
Purchaser and by the Company, this Agreement shall constitute a valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.4 PURCHASER REVIEW. The Purchaser has carefully examined the
Memorandum and the SEC Documents. The Purchaser acknowledges that the Company
has made available to the Purchaser all documents and information that it has
requested relating to the Company and has provided answers to all of its
questions concerning the Company and the Shares. In evaluating the suitability
of the acquisition of the Shares hereunder, the Purchaser has not relied upon
any representations or other information (whether oral or written) other than as
set forth in the SEC Documents, the Memorandum or as contained herein.
SECTION 5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive the execution of this Agreement, the delivery
to the Purchaser of the Shares being purchased and the payment therefor.
SECTION 6. AFFIRMATIVE COVENANTS OF THE COMPANY.
6.1 REGISTRATION REQUIREMENTS.
(a) No later than thirty (30) days after the date hereof, the Company
shall prepare and file a registration statement on Form S-3 with the SEC under
the Securities Act to register the resale of the Shares by the Purchasers (the
"Registration Statement").
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and each Purchaser shall pay all Selling Expenses (as defined below)
and other expenses that are not Registration Expenses relating to the Shares
resold by such Purchaser. "Registration Expenses" shall mean all expenses,
except for Selling Expenses, incurred by the Company in complying with the
registration provisions herein described, including, without limitation, all
registration,
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qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration.
"Selling Expenses" shall mean all selling commissions, underwriting fees and
stock transfer taxes applicable to the Shares and all fees and disbursements of
counsel for any Purchaser.
(c) In the case of the registration effected by the Company pursuant
to these registration provisions, the Company will use its best efforts to: (i)
keep such registration effective until the earlier of (A) the third anniversary
of the Closing Date hereof, (B) such date as all of the Shares have been resold
by the Purchasers or (C) such time as all of the Shares held by the Purchasers
can be sold within a given three-month period without compliance with the
registration requirements of the Securities Act pursuant to Rule 144 promulgated
thereunder ("Rule 144"); (ii) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement; (iii) furnish such number of
prospectuses and other documents incident thereto, including any amendment of or
supplement to the prospectus, as a Purchaser from time to time may reasonably
request; (iv) cause all Shares registered as described herein to be listed on
each securities exchange and quoted on each quotation service on which similar
securities issued by the Company are then listed or quoted; (v) provide a
transfer agent and registrar for all Shares registered pursuant to the
Registration Statement and a CUSIP number for all such Shares; (vi) otherwise
use its best efforts to comply with all applicable rules and regulations of the
SEC; and (vii) file the documents required of the Company and otherwise use its
best efforts to maintain requisite blue sky clearance in (A) all jurisdictions
in which any of the Shares are originally sold and (B) all other states
specified in writing by a Purchaser, provided as to Clause (B), however, that
the Company shall not be required to qualify to do business or consent to
service of process in any state in which it is not now so qualified or has not
so consented.
(d) The Company shall furnish to each Purchaser upon request a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary in order to facilitate the public sale or other
disposition of all or any of the Shares held by the Purchaser.
(e) With a view to making available to the Purchasers the benefits of
Rule 144 and any other rule or regulation of the SEC that may at any time permit
a Purchaser to sell Shares to the public without registration or pursuant to a
registration statement on Form S-3, the Company covenants and agrees to: (i)
make and keep public information available as those terms are understood and
defined in Rule 144, until the earlier of (A) the third anniversary of the
Closing Date or (B) such date as all of the Shares shall have been resold by the
Purchasers; (ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and (iii) furnish to any Purchaser upon request, as long as the Purchaser owns
any Shares, (A) a written statement by the Company that it has
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complied with the reporting requirements of the Securities Act and the Exchange
Act, (B) a copy of the most recent annual or quarterly report of the Company,
and (C) such other information as may be reasonably requested in order to avail
any Purchaser of any rule or regulation of the SEC that permits the selling of
any such Shares without registration or pursuant to a registration statement on
Form S-3.
(f) The undersigned acknowledges that there may occasionally be times
when the Company may be required to suspend the use of the prospectus forming
part of the Registration Statement until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the Commission, until the prospectus is supplemented or amended to comply with
the Securities Act, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The undersigned hereby
covenants that it will not sell any Shares pursuant to said prospectus during
the period commencing at the time at which the Company gives the undersigned
notice of the suspension of the use of said prospectus and ending at the time
the Company gives the undersigned notice that the undersigned may thereafter
effect sales pursuant to said prospectus, as the same may have been supplemented
or amended. In the event of any suspension of use of a Registration Statement
pursuant to this paragraph, the time period during which the Company is
obligated to maintain the effectiveness of such Registration Statement pursuant
to this Agreement shall be tolled for the duration of the period during which
use of the Registration Statement was suspended.
6.2 FINANCIAL INFORMATION. The Company will mail the following reports
to each Purchaser until such Purchaser transfers, assigns or sells the Shares
purchased by such Purchaser pursuant to this Agreement.
(a) Within one hundred (100) days after the end of each fiscal year,
a copy of its Annual Report on Form 10-K.
(b) Within fifty-five (55) days after the end of the first, second
and third quarterly accounting periods of each fiscal year of the Company, a
copy of its quarterly Report on Form 10-Q.
(c) Within ten (10) days after the Company files any Current Report
on Form 8-K with the SEC, such Current Report on Form 8-K.
6.3 INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless each Purchaser
from and against all losses, claims, damages, liabilities and expenses (or
actions or proceedings in respect thereof) to which such Purchaser may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon any untrue statement of a material fact contained
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in the Registration Statement, on the effective date thereof, or arise out of
any failure by the Company to fulfill any undertaking included in the
Registration Statement, and the Company will, as incurred, reimburse such
Purchaser for any legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon (i)
an untrue statement made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Purchaser specifically for use in preparation of the Registration
Statement, (ii) the failure of such Purchaser to comply with the covenants and
agreements contained in Section 7.3 hereof, or (iii) any untrue statement in any
prospectus that is corrected in any subsequent prospectus that was delivered to
the Purchaser prior the pertinent sale or sales by the Purchaser.
(b) Each Purchaser, severally and not jointly, agrees to indemnify
and hold harmless the Company from and against any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) to which the Company
may become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon (i) an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement, provided,
however, that no Purchaser shall be liable in any such case for any untrue
statement included in any prospectus which statement has been corrected, in
writing, by such Purchaser and delivered to the Company before the sale from
which such loss occurred, (ii) the failure of such Purchaser to comply with the
covenants and agreements contained in Section 7.3 hereof, or (iii) any untrue
statement in any prospectus that is corrected in any subsequent prospectus that
was delivered to the Purchaser prior to the pertinent sale or sales by the
Purchaser, and each Purchaser, severally and not jointly, will, as incurred,
reimburse the Company for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim.
(c) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 6.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and the indemnifying person shall have been notified thereof,
the indemnifying person shall be entitled to participate therein, and, to the
extent that it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to the indemnified person. After notice from the
indemnifying person to such indemnified person of the indemnifying person's
election to assume the defense thereof, the indemnifying person shall not be
liable to such indemnified person for any legal expenses subsequently incurred
by such indemnified person in connection with the defense thereof; provided,
however, that if there exists or shall exist a conflict of interest that would
make it inappropriate in the reasonable judgment of the indemnified person for
the same counsel
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to represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person.
(d) If the indemnification provided for in this Section 6.3 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceeding in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Purchaser
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or a Purchaser on the other hand, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Purchaser agree that it would not be just and
equitable if any contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Purchasers were treated as one entity for such
purposes) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the net amount received by the
Purchaser from the sale of the Shares to which such loss relates exceeds the
amount of any damages which such Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective sales of Shares to which such loss relates, and
not joint.
(e) The obligations of the Company and the Purchasers under this
Section 6.3 shall be in addition to any liability which the Company and any
respective Purchaser may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company or any
Purchaser within the meaning of the Securities Act.
SECTION 7. RESTRICTIONS ON TRANSFERABILITY OF SHARES; COMPLIANCE WITH
SECURITIES ACT.
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7.1 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be
transferable in the absence of an effective registration statement under the
Securities Act or an exemption therefrom or in the absence of compliance with
any term of this Agreement. The Company shall be entitled to give stop transfer
instructions to its transfer agent with respect to the Shares in order to
enforce the foregoing restrictions.
7.2 RESTRICTIVE LEGEND. The certificate or certificates representing
the Shares shall bear the following legend restricting transfer:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE IS FURNISHED TO THE COMPANY
THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
IS AVAILABLE."
The certificate shall also include any legend required by any applicable state
securities laws.
7.3 TRANSFER OF SHARES AFTER REGISTRATION. Each Purchaser hereby
covenants with the Company not to make any sale of the Shares except either (i)
in accordance with the Registration Statement, in which case Purchaser covenants
to comply with the requirement of delivering a current prospectus, or (ii) in
accordance with Rule 144, in which case Purchaser covenants to comply with Rule
144. Purchaser further acknowledges and agrees that such Shares are not
transferable on the books of the Company unless the certificate submitted to the
Company's transfer agent evidencing such Shares is accompanied by a separate
certificate executed by an officer of, or other person duly authorized by, the
Purchaser in the form attached hereto as EXHIBIT A.
7.4 PURCHASER INFORMATION. Each Purchaser covenants that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding such Purchaser or such Purchaser's "Plan of
Distribution."
SECTION 8. CONDITIONS TO OBLIGATIONS OF PURCHASERS. The obligation of
the Purchaser to purchase the Shares set forth on the signature page hereof at
the Closing is subject to the fulfillment on or prior to the Closing Date of the
following conditions, any or all of which may be waived at the option of the
Purchaser:
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects when made,
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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.
8.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
8.3 MINIMUM AGGREGATE INVESTMENT. The Purchasers shall purchase Shares
at the Closing for an aggregate purchase price of not less than $10 million.
8.4 OPINION OF COMPANY'S COUNSEL. The Purchasers shall have received
at the Closing from Wilson, Sonsini, Goodrich & Rosati, Professional
Corporation, counsel to the Company, an opinion in form and substance reasonably
satisfactory to the Purchasers and their counsel.
8.5 NO PROHIBITION. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement or any
law, rule or regulation prohibiting or restricting such transactions, or
requiring any consent or approval of any person which shall not have been
obtained (except as otherwise provided in this Agreement).
8.6 PLACEMENT AGENT AGREEMENT. The Company shall have complied with
its obligations under its engagement letter agreement with the Placement Agent.
8.7 COMPLIANCE CERTIFICATE. The Company shall have delivered to each
of the Purchasers a certificate executed on behalf of the Company by its Chief
Executive Officer and dated the Closing Date, certifying to the fulfillment of
the conditions specified in Sections 8.1 and 8.2.
8.8 COMPLIANCE WITH SECURITIES LAWS. The offering, issuance and sale
of the Shares under this Agreement shall have complied with all applicable
requirements of federal securities laws and the Purchaser shall have received
evidence, if any, of such compliance in form and substance satisfactory to the
Purchaser.
8.9 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
contemplated by this Agreement shall be satisfactory to the Purchaser and such
Purchaser's counsel, and the Purchaser and such Purchaser's counsel shall have
received all such counterpart originals or certified or other copies of such
documents as the Purchaser or such Purchaser's counsel may reasonably request.
SECTION 9. CONDITIONS TO OBLIGATIONS OF COMPANY. The Company's
obligation to issue and sell the Shares to the Purchasers at the Closing is
subject to the fulfillment on or prior to the Closing Date of the following
conditions, any or all of which may be waived at the option of the Company:
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9.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Purchasers in Section 4 hereof 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.
9.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with in all material respects.
9.3 MINIMUM AGGREGATE INVESTMENT. The Purchasers shall purchase Shares
at the Closing for an aggregate purchase price not less than $10 million.
9.4 NO PROHIBITION. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement, or any
law, rule or regulation prohibiting or restricting such transactions, or
requiring any consent or approval of any person which shall not have been
obtained (except as otherwise provided in this Agreement).
SECTION 10. PLACEMENT AGENT FEE. Each Purchaser acknowledges that the
Company has advised it that the Company intends to pay to the Placement Agent a
fee in respect of this transaction. In addition to and not in limitation of any
other rights hereunder, the Company and the Subsidiaries agree that they will
indemnify and hold harmless each Purchaser from and against any and all claims,
demands or liabilities for broker's, finder's, placement agent's or other
similar fees or commissions and any and all liabilities with respect to any
taxes (including interest and penalties) payable or incurred or alleged to have
been incurred by the Company or any of its Subsidiaries or any person acting or
alleged to have been acting on the Company's or such Subsidiary's behalf, in
connection with this Agreement or the issuance or sale of the Shares; but this
obligation shall not extend to any fees and commissions of any person (other
than the Placement Agent) whose services have been procured by the Purchaser
unless the Company separately acknowledges such obligation in writing.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed given when sent
both by telecopier/facsimile (unless the addressee has not provided a valid
telecopier/facsimile number for such purpose) and either first class mail,
postage prepaid, or next-day delivery service:
(a) if to the Company, to Genus, Inc., 1139 Karlstad Avenue,
Sunnyvale, CA 94089, Attention: Todd S. Myhre, President, telecopy/facsimile
number (408) 747.7198 with a copy to Wilson, Sonsini, Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, CA 94304-1050,
Attention: Steven L. Berson, telecopy/facsimile number (415) 496-4088, or to
such other person at such other place as the Company shall designate to the
Purchaser in writing;
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(b) if to the Purchaser, at its telecopy/facsimile number and address
as set forth on the signature page to this Agreement, or at such other
telecopy/facsimile number and address as may have been furnished to the Company
in writing; or
(c) if to any transferee or transferees of the Purchaser, at such
telecopy/facsimile number and address as shall have been furnished by such
transferee or transferees to the Company in writing.
SECTION 12. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
SECTION 13. AMENDMENTS. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the Company and by
the Purchasers.
SECTION 14. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 15. SEVERABILITY. In case any provision contained in this
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.
SECTION 16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California (without regard
to conflict of laws principles) and the United States of America.
SECTION 17. COUNTERPARTS. This 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 party.
SECTION 18. EXPENSES. Each of the parties shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in
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connection with this Agreement and the transactions contemplated hereby whether
or not the transactions contemplated hereby are consummated.
SECTION 19. PUBLICITY. No Purchaser shall issue any press releases
or otherwise make any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of the Company,
except as may be required by applicable law or regulation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives the day and year first above
written.
GENUS, INC.
By /s/ Todd S. Myhre
------------------------------------
Its President & Chief Operating Officer
-----------------------------------
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PURCHASER
Print or Type:
Name of Purchaser (Institution): CONSECO CAPITAL MANAGEMENT
AS INVESTMENT ADVISER
Name of Individual representing
Purchaser: TOM MEYERS
Title of Individual representing
Purchaser: DIRECTOR OF RESEARCH, SVP
Signature by:
Individual representing
Purchaser: /s/ Tom Meyers
-------------------------------
Address: 11825 PENNSYLVANIA STREET 820
CARMEL, IN 46032
Telephone: 317-817-6247
Facsimile: 317-817-2763
Telex:
-------------------------------
AGGREGATE PURCHASE PRICE: $1,500,005.07
NAME IN WHICH SHARES ARE
TO BE REGISTERED: SALKELD & CO.
14 Wall Street
4th Floor
Window #62
c/o Brad Smith
New York, NY 10005
Signature Page to Genus, Inc.
Common Stock Purchase Agreement
Dated February 8, 1995
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EXHIBIT A
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
To: [Transfer Agent]
The undersigned, the Purchaser or an officer of, or other person duly
authorized by the Purchaser, hereby certifies that
- -------------------------------------------------------------------------------
[Fill in name of Purchaser]
institution was the Purchaser of the shares evidenced by the attached
certificate, and as such, proposes to transfer such shares on or about
_________________ either (i) in accordance with the registration statement, file
number ___ in which case the Purchaser certifies that the requirement of
delivering a current prospectus has been complied with or will be complied with
in connection with such sale, or (ii) in accordance with Rule 144 under the
Securities Act of 1933 ("Rule 144"), in which case the Purchaser certifies that
it has complied with or will comply with the requirements of Rule 144.
Print or type:
Name of Purchaser:
-----------------------------
Name of Individual
representing
Purchaser (if an
Institution):
-----------------------------
Title of Individual
representing
Purchaser (if an
Institution):
-----------------------------
Signature by:
Purchaser or
Individual repre-
senting Purchaser:
-----------------------------
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