EXHIBIT 4.8
GENESYS TELECOMMUNICATIONS LABORATORIES, INC.
SERIES C PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
This Agreement is made as of February 26, 1997 among Genesys
Telecommunications Laboratories, Inc., a California corporation (the "Company"),
and Intel Corporation, a California corporation (the "Purchaser").
SECTION 1 Authorization and Sale of Preferred Stock and Warrants
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1.1 Sale and Issuance of Series C Preferred Stock and Series C
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Warrants.
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(a) The Company shall adopt and file with the Secretary of State of
California on or before the Closing (as defined below) the Amended and Restated
Articles of Incorporation in the form attached hereto as Exhibit A (the
"Articles"):
(b) Subject to the terms and conditions of this Agreement, the
Purchaser agrees to purchase at the Closing and the Company agrees to sell and
issue to Purchaser for an aggregate purchase price of $2,000,121.04 at the
Closing the following: (i) 179,867 shares of the Company's Series C Preferred
Stock at $11.12 per share and (ii) a warrant for the purchase of 44,965 shares
of the Company's Series C Preferred Stock.
(c) The shares of the Company's Series C Preferred Stock to be sold
hereunder are sometimes referred to herein as the "Shares". The warrants to be
sold hereunder are referred to herein collectively as the "Warrants" and
individually as a "Warrant". The shares of the Company's Series C Preferred
Stock underlying the Warrants are referred to herein as the "Warrant Shares".
(d) Simultaneously with this Closing, the Company is expected to sell
and issue to MCI Telecommunications Corporation the following: (i) 674,496
shares of the Company's Series C Preferred Stock at $11.12 per share and (ii) a
warrant for the purchase of 449,664 shares of the Company's Series C Preferred
Stock (the "MCI Transaction").
SECTION 2 Closing Dates; Delivery
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2.1 Closing Date. The closing of the purchase and sale of the Shares
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and Warrants hereunder shall be held at the offices of Brobeck, Phleger &
Harrison, 2 Embarcadero Place, 2200 Geng Road, Palo Alto, California 94303 at
10:00 A.M., local time, on February 26, 1997 (the "Closing") or at such other
time and place as shall be mutually agreed upon by the Company and Purchaser who
propose to purchase a
majority of the Shares proposed to be sold at the Closing (the date of the
Closing is hereinafter referred to as the "Closing Date"). At the Closing, the
Company shall deliver to Purchaser (i) a certificate representing the Shares and
(ii) a Warrant in the form attached hereto as Exhibit B, which Purchaser is
purchasing against delivery to the Company by Purchaser of the purchase price
therefor, by check, wire or cancellation of indebtedness.
SECTION 3 Representations and Warranties of the Company
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Except as set forth on the Schedule of Exceptions attached hereto as
Exhibit C, the Company represents and warrants to Purchaser, as of the Closing
Date as follows:
3.1 Organization and Standing; Articles and Bylaws. The Company is a
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corporation duly organized and existing under, and by virtue of, the laws of the
State of California and is in good standing under such laws. The Company has
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted and as proposed to
be conducted. The Company is presently qualified to do business as a foreign
corporation in any jurisdiction, in which the failure to be so qualified would
have a material adverse effect on the Company's operations or conditions,
financial or otherwise. The Company has furnished the Purchaser with true,
correct and complete copies of its Articles and Bylaws (the "Bylaws"), as
presently in effect.
3.2 Corporate Power. The Company has or will have at the Closing
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Date all requisite legal and corporate power and authority to execute and
deliver this Agreement, to sell and issue the Shares and Warrants hereunder, to
issue the Common Stock issuable upon conversion of the Series C Preferred and to
carry out and perform its obligations under the terms of this Agreement.
3.3 Subsidiaries. The Company has no subsidiaries or affiliated
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companies and does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business entity.
3.4 Capitalization. The authorized capital stock of the Company
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consists or, upon the filing of the Articles with the California Secretary of
State will consist, of 120,000,000 shares of Common Stock (the "Common Stock"),
of which shares 12,744,086 are issued and outstanding as of the Closing Date
(including 675,000 shares of Common Stock issued to Bruncor Inc. pursuant to
that certain Stock Exchange Agreement) and 4,146,870 shares of Preferred Stock,
900,000 shares of which have been designated "Series A Preferred", all of which
are issued and outstanding, and 1,897,878 shares of which have been designated
"Series B Preferred", all of which are issued and outstanding and 1,348,992
shares of which have been designated "Series C Preferred," none of which is
issued and outstanding prior to Closing. The outstanding shares have
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been duly authorized and validly issued, and are fully paid and nonassessable.
The Company has reserved 900,000 shares of Common Stock for issuance upon
conversion of the Series A Preferred, 1,897,878 shares of Common Stock for
issuance upon conversion of the Series B Preferred, 1,348,992 shares of Common
Stock for issuance upon conversion of the Series C Preferred (including shares
of Series C Preferred issuable upon exercise of the Warrants), and 6,292,834
shares of Common Stock for issuance by the Board of Directors to employees,
consultants, or directors pursuant to the Company's 1995 Stock Option Plan, of
which stock options to purchase 5,171,940 shares are outstanding as of the
Closing Date. The Company also has outstanding a warrant to purchase 420,282
shares of Common Stock at a exercise price of $5.9483 per share (subject to
adjustment upon occurrence of certain events) which is exercisable upon the
earlier of April 26, 1997 or the filing of the Company's initial public offering
with proceeds of not less than $10,000,000. In addition, concurrently with this
Closing, the Company expects to close the MCI Transaction. Except as set forth
above, there are no options, warrants or other rights to purchase any of the
Company's authorized and unissued capital stock.
3.5 Authorization. All corporate action on the part of the Company,
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its directors and shareholders necessary for the authorization, execution,
delivery and performance of this Agreement by the Company, the authorization,
sale, issuance and delivery of the Shares and Warrants (and the Common Stock
issuable upon conversion of the Shares and Warrant Shares) and the performance
of all of the Company's obligations hereunder has been taken or will be taken
prior to the Closing. This Agreement, when executed and delivered by the
Company, shall constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies and limitations of public policy. The Shares, when issued in
compliance with the provisions of this Agreement and upon the filing of the
Articles with the office of the California Secretary of State, will be validly
issued, will be fully paid and nonassessable, and will have the rights,
preferences and privileges described in the Articles; the Common Stock issuable
upon conversion of the Shares and Warrant Shares has been duly and validly
reserved and, when issued in compliance with the provisions of this Agreement
and the Articles, will be validly issued, and will be fully paid and
nonassessable; and the Shares, the Warrant Shares and such Common Stock will be
free of any liens or encumbrances, assuming the Purchaser take the Shares and
Warrant Shares with no notice thereof, other than any liens or encumbrances
created by or imposed upon the Purchaser; provided, however, that the Shares and
Warrant Shares (and the Common Stock issuable upon conversion thereof) may be
subject to restrictions on transfer under state and/or federal securities laws
as set forth herein. The Shares are not subject to any preemptive rights or
rights of first refusal.
3.6 Financial Statements. The Company has delivered to Purchaser its
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unaudited financial statements as of and for the years ended June 30, 1996 and
the six
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month period ended December 31, 1996 (the "Financial Statements"). The
Financial Statements are complete and correct in all material respects and
accurately set out and describe the financial condition and operating results of
the Company as of the dates, and during the periods, indicated therein. Since
December 31, 1996 there has not been any change 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 which
have not been, either individually or in the aggregate, materially adverse.
3.7 Material Contracts and Other Commitments. The Company does not
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have any contract, agreement, lease, or other commitment, written or oral,
absolute or contingent, other than (i) contracts for the purchase of supplies
and services that were entered into in the ordinary course of business and that
do not, as of the date hereof, involve more than $25,000 each; (ii) sales
contracts entered into in the ordinary course of business; (iii) license
agreements entered into in the ordinary course of business; and (iv) contracts
terminable at will by the Company on no more than sixty (60) days notice without
cost or liability to the Company. For purposes of this Section 3.7, employment
contracts and contracts with labor unions and agreements pursuant to which the
Company licenses any of its Proprietary Information (as defined herein) to third
parties shall not be considered to be contracts entered into in the usual and
ordinary course of business.
3.8 Title to Properties and Assets; Liens, etc. The Company has good
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and marketable title to its properties and assets, and has good title to all its
leasehold interests, in each case subject to no mortgage, pledge, lien or
encumbrance, other than (i) the lien of current taxes not yet due and payable,
and (ii) possible minor liens and encumbrances which do not in any case
materially detract from the value of the property subject thereto or materially
impair the operations of the Company, and which have not arisen otherwise than
in the ordinary course of business.
3.9 Compliance with Other Instruments, None Burdensome, etc. The
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Company is not in violation of any term of its Articles or Bylaws, or in any
material respect of any term or provision of any material mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment or decree,
and to the best of its knowledge is not in violation of any order, statute, rule
or regulation applicable to the Company where such violation would materially
and adversely affect the Company. The execution, delivery and performance of
and compliance with this Agreement, and the issuance of the Shares and Warrants
and the Common Stock issuable upon conversion of the Shares and Warrants, have
not resulted and will not result in any material violation of, or conflict with,
or constitute a material default under, the Company's Articles or Bylaws or any
of its material agreements or result in the creation of, any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Company;
and there is no such violation or default which materially and adversely affects
the business of the Company or any of its properties or assets.
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3.10 Litigation, etc. There are no actions, suits, proceedings or
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investigations pending against the Company or its properties before any court or
governmental agency (nor, to the best of the Company's knowledge, is there any
reasonable basis therefor or threat thereof).
3.11 Employees. To the best of the Company's knowledge, no employee
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of the Company is in violation of any term of any employment contract, patent
disclosure agreement or any other contract or agreement relating to the
relationship of such employee with the Company or any other party because of the
nature of the business conducted or to be conducted by the Company. There is,
to the Company's knowledge, no pending nor threatened action, suit, proceeding
or claim, or to its knowledge any basis therefor or threat thereof with respect
to any contract, agreement, covenant or obligation referred to in the preceding
sentence. The Company and each employee of the Company and any subsidiary of
the Company employed in any technical capacity or with access to confidential
information of the Company has entered into a Confidential Information and
Invention Assignment Agreement substantially in the form of Exhibit D hereto.
3.12 Franchises, Licenses, Trademarks, Patents and Other Rights. The
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Company has all franchises, permits, licenses and other similar authority
necessary for the conduct of its business, the lack of which could materially
and adversely affect the operations or condition, financial or otherwise, of the
Company, and it is not in default in any material respect under any of such
franchises, permits, liens or other similar authority. To the best of the
Company's knowledge, the Company possesses all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights and copyrights
necessary to conduct its business without conflict with or infringement upon any
valid rights of others and the lack of which could materially and adversely
affect the operations or condition, financial or otherwise, of the Company, and
the Company has not received any notice of infringement upon or conflict with
the asserted rights of others. The Company has a body of trade secrets,
including know-how, concepts, computer programs and other technical data (the
"Proprietary Information") for the development, manufacture and sale of its
products. To the Company's knowledge, the Company has the right to use the
Proprietary Information, free and clear of any rights, liens, encumbrances or
claims of others, except that the possibility exists that other persons may have
independently developed trade secrets or technical information similar or
identical to those of the Company. Reasonable security measures have been taken
by the Company to protect the secrecy, confidentiality and value of the
Proprietary Information referred to in this Section 3.12.
3.13 Governmental Consent, etc. No consent, approval or
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authorization of or designation, declaration or filing with any governmental
authority on the part of the Company is required in connection with the valid
execution and delivery of this Agreement, or the offer, sale or issuance of the
Shares and Warrants (and the Common Stock issuable upon conversion of the Shares
and Warrant Shares), or the consummation
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of any other transaction contemplated hereby, except (a) filing of the Articles
with the office of the California Secretary of State (b) qualification (or
taking such action as may be necessary to secure an exemption from
qualification, if available) of the offer and sale of Shares and Warrants (and
the Common Stock issuable upon conversion of the Shares and Warrant Shares)
under the California Corporate Securities Law of 1968, as amended and other
applicable Blue Sky laws, which filings and qualifications, if required, will be
accomplished in a timely manner.
3.14 Offering. Subject to the accuracy of the Purchaser's
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representations in Section 4 hereof, the offer, sale and issuance of the Shares
and Warrants to be issued in conformity with the terms of this Agreement, and
the issuance of the Common Stock to be issued upon conversion of the Shares and
Warrant Shares, constitute transactions exempt from the registration
requirements of the Securities Act.
3.15 Brokers or Finders; Other Offers. The Company has not incurred,
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and will not incur, directly or indirectly, as a result of any action taken by
the Company, any liability for brokerage or finders' fees or agents' commissions
or any similar charges in connection with this Agreement.
3.16 Shareholders, Directors and Officers; Indebtedness. The Company
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is not indebted, directly or indirectly, to any of its officers, directors or
shareholders or any of their respective relatives or affiliates. No officer,
director or shareholder of the Company, or any of their relatives or affiliates,
is indebted to the Company for an amount individually or in the aggregate in
excess of $50,000. To the knowledge of the Company, none of the officers or
directors or significant employees or advisors of the Company, or their
respective spouses, or relatives, (i) owns directly or indirectly, individually
or collectively, a material interest in any entity which is a competitor,
customer or supplier of the Company or (ii) has any existing contractual
relationship with the Company involving an amount in excess of $50,000.
3.17 Disclosure. Neither this Agreement nor any of the documents
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furnished to the Purchaser by the Company in connection with the transactions
contemplated hereby contains or will contain any untrue statement of material
fact, or omits or will omit to state any material fact necessary in order to
make the statements contained herein or therein, in light of the circumstances
under which they are made, not misleading.
SECTION 4 Representations and Warranties of the Purchaser
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Purchaser hereby represents and warrants to the Company with respect
to the purchase of the Shares as follows:
4.1 Experience. By reason of its business or financial experience,
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or that of its professional advisor, Purchaser has the capacity to protect its
own interests in
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connection with the purchase of the Shares and Warrants hereunder and has the
ability to bear the economic risk (including the risk of total loss) of his
investment.
4.2 Investment. Purchaser is acquiring the Shares and Warrants and
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the Common Stock underlying the Shares and Warrant Shares for investment for its
own account, not as a nominee or agent, and not with the view to, or for resale
in connection with, any distribution thereof. Purchaser understands that the
Shares and Warrants to be purchased (and the Common Stock issuable upon
conversion of the Shares and Warrant Shares) have not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of Purchaser's representations as expressed herein.
4.3 Rule 144. Purchaser acknowledges that the Shares and Warrants
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(and the Common Stock issuable upon conversion of the Shares and Warrant Shares)
must be held indefinitely unless subsequently registered under the Securities
Act or unless an exemption from such registration is available. Purchaser is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than two years
after a party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" and the number of shares being sold during any three-month period
not exceeding specified limitations.
4.4 No Public Market. Purchaser understands that no public market
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now exists for any of the securities issued by the Company and that the Company
has made no assurances that a public market will ever exist for the Company's
securities.
4.5 Access to Data. Purchaser has had an opportunity to discuss the
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Company's business, management and financial affairs with its management and the
opportunity to review the Company's facilities. Purchaser has also had an
opportunity to ask questions of officers of the Company, which questions were
answered to his satisfaction. Purchaser understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain aspects of the Company's business and prospects but were not a thorough
or exhaustive description.
4.6 Authorization. This Agreement when executed and delivered by
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Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, except as subject to laws
of general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies and limitations of public policy.
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4.7 Brokers or Finders. The Company has not, and will not, incur,
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directly or indirectly, as a result of any action taken by Purchaser, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
4.8 Investor Counsel. Purchaser acknowledges that it has had the
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opportunity to review this Agreement, the exhibits and the schedules attached
hereto and the transactions contemplated by this Agreement with its own legal
counsel. Purchaser is relying solely on such counsel and not on any statements
or representations of the Company or any of its agents for legal advice with
respect to this investment or the transactions contemplated by this Agreement.
4.9 Tax Liability. Purchaser has reviewed with its own tax advisors
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the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by this Agreement. Purchaser relies solely on
such advisors and not on any statements or representations of the Company or any
of its agents. Purchaser understands that it (and not the Company) shall be
responsible for its own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
SECTION 5 Conditions to Closing of Purchaser
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The Purchaser's obligations to purchase the Shares and Warrants at the
Closing are, at the option of the Purchaser, subject to the fulfillment of the
following conditions:
5.1 Representations and Warranties Correct. The representations and
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warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects as of the Closing Date.
5.2 Covenants. All covenants, agreements and conditions contained in
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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.
5.3 Compliance Certificate. The Company shall have delivered to the
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Purchaser a certificate of the Company reasonably satisfactory to Purchaser,
executed by the President of the Company, dated the Closing Date, and
certifying, among other things, to the fulfillment of the conditions specified
in Sections 5.1 and 5.2 of this Agreement.
5.4 Blue Sky. The Company shall have obtained all necessary Blue Sky
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law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares and
Warrants and the Common Stock issuable upon conversion of the Shares and Warrant
Shares.
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5.5 Amended and Restated Articles of Incorporation. The Articles
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shall have been filed with the California Secretary of State.
5.6 Legal Matters. All material matters of a legal nature which
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pertain to this Agreement and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Purchaser.
5.7 Registration Rights Agreement. The Company and the Purchaser
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shall have entered into the Registration Rights Agreement attached hereto as
Exhibit E (the "Registration Rights Agreement").
SECTION 6 Conditions to Closing of Company
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The Company's obligation to sell and issue the Shares and Warrants at
the Closing Date is, at the option of the Company, subject to the fulfillment as
of the Closing Date of the following conditions:
6.1 Representations. The representations made by the Purchaser in
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Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
6.2 Blue Sky. The Company shall have obtained all necessary Blue Sky
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law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares and
Warrants and the Common Stock issuable upon conversion of the Shares and Warrant
Shares.
6.3 Amended and Restated Articles of Incorporation. The Articles
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shall have been filed with the California Secretary of State.
6.4 Legal Matters. All material matters of a legal nature which
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pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
6.5 Payment of Purchase Price. Purchaser (i) shall have delivered to
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the Company the purchase price for Purchaser's Shares and Warrants, or (ii)
shall have canceled indebtedness owed by the Company to Purchaser, in either
case in the amount set forth above.
6.6 Registration Rights Agreement. The Company and the Purchaser
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shall have entered into the Registration Rights Agreement.
SECTION 7 Covenants of the Company and the Purchaser
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The Company hereby covenants and agrees as follows:
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7.1 Financial Information. As soon as practicable after the end of
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each fiscal year, and in any event within 90 days thereafter, the Company will
deliver to Purchaser consolidated balance sheets of the Company and its
subsidiaries, if any, as of the end of such fiscal year, consolidated statements
of income and consolidated statements of changes in financial position of the
Company and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles and setting forth in each case in
comparative form the figures for the previous fiscal year (or, at the election
of the Company, setting forth in comparative form the budgeted figures for the
fiscal year then reported), all in reasonable detail and audited by independent
public accountants of national standing selected by the Company.
7.2 Additional Information. As long as Purchaser holds shares of
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Series C Preferred and/or Common Stock issued upon conversion of the Series C
Preferred, as adjusted for recapitalizations, stock splits, stock dividends and
the like, the Company will deliver or provide to Purchaser (i) as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company and in any event within 45 days
thereafter, a consolidated balance sheet of the Company and its subsidiaries, if
any, as of the end of each such quarterly period, and consolidated statements of
income and consolidated statements of changes in financial condition of the
Company and its subsidiaries for such period and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles
(other than for accompanying notes), subject to changes resulting from year-end
audit adjustments, all in reasonable detail and signed by the principal
financial or accounting officer of the Company, (ii) an annual budget for the
Company as soon as it is available, (iii) copies of all publicly filed documents
as filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, and (iv) the opportunity for a representative
of Purchaser who is approved by the Company to attend Board of Directors
meetings including the receipt of advance notice thereof; provided, however,
that the Company shall not be obligated to provide any information that it
considers in good faith to be a trade secret or to contain confidential or
classified information; and provided further, the Company may, at the discretion
of the Board of Directors, exclude any non-Board member from executive sessions
of its Board of Directors. The rights provided for in this subsection 7.2(iv)
are terminable by either party in the event such party makes a determination
that the strategic rationale for the relationship no longer exists.
7.3 Confidentiality. Purchaser agrees that any information obtained
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by Purchaser pursuant to this Section 7 which may be proprietary to the Company
or otherwise confidential will not be disclosed without the prior written
consent of the Company. If Purchaser requests in writing, the Company will
identify in writing all information obtained by Purchaser under this Section 7
which the Company considers confidential and which Purchaser may not disclose
without the Company's prior written consent. Purchaser further acknowledges and
understands that any information so obtained which may be considered "inside"
non-public information will not be utilized by
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Purchaser in connection with purchases and/or sales of the Company's securities
except in compliance with applicable state and federal anti-fraud statutes. The
provisions of this Section 7.3 shall not be in limitation of any rights which
Purchaser may have with respect to the books and records of the Company, or to
inspect its properties or discuss its affairs, finances and accounts, under the
laws of the jurisdictions in which it is incorporated.
Purchaser and the Company further agrees that the terms and conditions
of Purchaser's equity investment in the Company shall be deemed confidential
information and shall not be disclosed to any third party; provided, however,
that if any party determines, in its sole discretion, that it is required do so
under applicable law, including, without limitation, any disclosure with respect
to any governmental filing, including filings with the Securities and Exchange
Commission, then such disclosure or filing may be made; provided, further, that
the disclosing party shall consult with the other party regarding such
disclosure or filing and seek confidential treatment for such portions of the
disclosure or filing as may be reasonably requested by the other party. This
paragraph shall not apply to disclosures made by either party to its (1)
existing and potential customers that enter into a non-disclosure agreement
regarding the subject of this agreement and (2) potential investors.
7.4 Availability of Common Stock for Conversion. The Company will
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from time to time, in accordance with the laws of the State of California,
increase the authorized amount of Common Stock if at any time the number of
shares of Common Stock remaining unissued and available for issuance shall be
insufficient to permit conversion of all the then outstanding shares of the
Shares and Warrant Shares.
7.5 Confidential Information and Invention Assignment Agreement. The
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Company and each person now or hereafter employed in any technical capacity by
it or any subsidiary with access to confidential information will enter into a
Confidential Information and Invention Assignment Agreement in substantially the
form of Exhibit D hereto, and the Company shall use its best efforts to cause
any consultant retained by it that has access to confidential information to
enter into a form of Consulting Agreement with substantially similar
confidentiality and non-solicitation provisions.
7.6 Use of Proceeds. The Company agrees to direct approximately
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fifty percent (50%) of the net proceeds of the investment by Purchaser (the
"Dedicated Funds") to fund development of an Intel technology-based Internet
Call Center Application. This project will be undertaken on a best efforts
basis (but in no event shall best efforts be deemed to require expenditures in
excess of the Dedicated Funds) by the Company; provided that the Company may
cancel this project and direct residual funds to other projects in the event
unforeseen technical obstacles or business challenges arise.
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7.7 Termination of Covenants. The covenants of the Company set forth
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in this Section 7 shall terminate in all respects on the date of the closing of
an initial firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act, covering the offer and sale of
the Company's Common Stock.
SECTION 8 Miscellaneous
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8.1 Governing Law. This Agreement shall be governed in all respects
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by the internal laws of the State of California. The parties expressly
stipulate that any litigation under this Agreement shall be brought in the state
courts of the Counties of Santa Clara, California and in the United States
District Court for the Northern District of California. The parties agree to
submit to the jurisdiction and venue of those courts.
8.2 Survival. The representations, warranties, covenants and
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agreements made herein shall survive any investigation made by Purchaser and the
closing of the transactions contemplated hereby.
8.3 Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided, however, that the rights of Purchaser to purchase the Shares and
Warrants shall not be assignable without the consent of the Company.
8.4 Entire Agreement; Amendment. This Agreement and the other
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documents delivered pursuant hereto at the Closing constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that holders of at least sixty (60) percent of the Shares (or
the Common Stock issued or issuable upon conversion of the Shares) may, with the
Company's prior written consent, waive, modify or amend on behalf of all
holders, any provisions hereof.
8.5 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid or (d) one
business day after the business day of facsimile transmission, if
12
delivered by facsimile transmission with copy by first class mail, postage
prepaid, and shall be addressed (i) if to the Purchaser, at the Purchaser's
address as set forth on the signature page and (ii) if to the Company, at the
address of its principal corporate offices (attention: Secretary), or at such
other address as a party may designate by ten days' advance written notice to
the other party pursuant to the provisions above.
8.6 Delays or Omissions. Except as expressly provided herein, no
-------------------
delay or omission to exercise any right, power or remedy accruing to any holder
of any Shares, upon any breach or default of the Company under this Agreement,
shall impair any such right, power or remedy of such holder nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
8.7 California Corporate Securities Law. THE SALE OF THE SECURITIES
-----------------------------------
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
8.8 Expenses. The Company and Purchaser shall bear its own expenses
--------
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
8.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
8.10 Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision;
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provided that no such severability shall be effective if it materially changes
the economic benefit of this Agreement to any party.
8.11 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
[intentionally blank]
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IN WITNESS WHEREOF, the parties have executed this Series C Preferred Stock
and Warrant Purchase Agreement as of the date first above written.
"COMPANY"
GENESYS TELECOMMUNICATIONS
LABORATORIES
a California corporation
By: /s/ Gregory Shenkman
-------------------------------------
Print: Gregory Shenkman
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
1155 Market Street, 11th Floor
San Francisco, CA 94103
"PURCHASER"
INTEL CORPORATION
By: /s/ Arvind Sodhani
-------------------------------------
Print: Arvind Sodhani
-------------------------------------
Title: Treasurer
-------------------------------------
2625 Walsh Avenue
Santa Clara, CA 95052
15
EXHIBIT A
---------
FORM OF ARTICLES OF INCORPORATION
16
EXHIBIT B
---------
FORM OF WARRANT
17
EXHIBIT C
---------
SCHEDULE OF EXCEPTIONS
18
EXHIBIT D
---------
FORM OF CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
19
EXHIBIT E
---------
FORM OF REGISTRATION RIGHTS AGREEMENT
20