EXHIBIT 4.10
GENESYS TELECOMMUNICATIONS LABORATORIES, INC.
STOCK EXCHANGE AGREEMENT
FEBRUARY 26, 1997
TABLE OF CONTENTS
Page
1. Purchase and Sale of Stock.................................. 1
1.1 Sale and Exchange of Common Stock..................... 1
1.2 Closing............................................... 1
2. Representations and Warranties of the Company............... 1
2.1 Organization, Good Standing and Qualification......... 1
2.2 Capitalization and Voting Rights...................... 1
2.3 Authorization......................................... 2
2.4 Valid Issuance of Common Stock........................ 2
2.5 Stock Options......................................... 2
2.6 Permits............................................... 3
2.7 Compliance with Other Instruments..................... 3
2.8 Financial Statements.................................. 3
2.9 Tax Returns, Payments and Elections................... 3
2.10 Patents and Trademarks............................... 4
2.11 Material Contracts and Other Commitments............. 4
2.12 MCI Communications Corporation....................... 4
3. Representations and Warranties of the Investor.............. 4
3.1 Authorization......................................... 4
3.2 Purchase Entirely for Own Account..................... 4
3.3 Disclosure of Information............................. 5
3.4 Investment Experience................................. 5
3.5 Accredited Investor................................... 5
3.6 Legends............................................... 5
3.7 Title to Stock........................................ 5
3.8 Foreign Investor...................................... 6
3.9 Resales Subject to U.S. Securities Law................ 6
3.10 Offshore Execution................................... 6
4. Additional Agreements....................................... 6
4.1 Investor's Call Option................................ 6
4.2 Investor's Put Option................................. 7
4.3 Unanimous Shareholders Agreement...................... 7
4.4 Revival of Agreements................................. 8
4.5 Participation Right................................... 8
4.6 Further Limitations on Disposition.................... 9
5. California Commissioner of Corporations...................... 9
5.1 Corporate Securities Law............................... 9
i.
6. Conditions of Investor's Obligations at Closing............ 9
6.1 Representations and Warranties....................... 10
6.2 Performance.......................................... 10
6.3 Qualifications....................................... 10
6.4 Joint Venture Agreement.............................. 10
6.5 Co-Sale Agreement.................................... 10
6.6 Agreement with MCI Communications Corporation........ 10
7. Conditions of the Company's Obligations at Closing......... 10
7.1 Representations and Warranties....................... 10
7.2 Payment of Purchase Price............................ 10
7.3 Qualifications....................................... 10
7.4 Joint Venture Agreement.............................. 11
8. Miscellaneous.............................................. 11
8.1 Termination of Warranties............................ 11
8.2 Successors and Assigns............................... 11
8.3 Governing Law........................................ 11
8.4 Counterparts......................................... 11
8.5 Titles and Subtitles................................. 11
8.6 Notices.............................................. 11
8.7 Expenses............................................. 11
8.8 Amendments and Waivers............................... 12
8.9 Severability......................................... 12
8.10 Entire Agreement..................................... 12
EXHIBIT A - Unanimous Shareholders Agreement
EXHIBIT B - Joint Venture Agreement
EXHIBIT C - Co-Sale Agreement
ii.
STOCK EXCHANGE AGREEMENT
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THIS STOCK EXCHANGE AGREEMENT is made as of the 26 day of February
1997, by and among Genesys Telecommunications Laboratories, Inc., a California
corporation (the "Company"), and Bruncor Inc., a New Brunswick business
corporation (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Exchange of Common Stock. Subject to the terms and
--------------------------------
conditions of this Agreement, the Company agrees to sell to Investor and
Investor agrees to purchase 675,000 shares of Common Stock of the Company (as
adjusted for stock splits, stock dividends, recapitalizations or similar events)
(the "Company Shares") in exchange for all outstanding common shares of Genesys
Laboratories Canada Inc. ("GenCan") presently owned by Investor, which consists
of 49 common shares (the "Exchanged Shares").
1.2 Closing. The purchase and sale of the Common Stock shall take
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place simultaneously at the offices of Brobeck, Phleger & Harrison, Two
Embarcadero Place, 2200 Geng Road, Palo Alto, California, and the offices of
Clark, Drummie & Company, 40 Wellington Row, Saint John, New Brunswick, Canada,
at 10:00 a.m. California time (2:00 p.m. New Brunswick time) on February ___,
1997 or at such other time and place as the Company and the Investor mutually
agree upon orally or in writing (which time and places are designated as the
"Closing"). At the Closing the Company shall deliver to the Investor a
certificate representing the Company Shares against payment of the purchase
price by a certificate representing the Exchanged Shares.
2. Representations and Warranties of the Company. Except as set
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forth on the Schedule of Exceptions attached hereto, the Company hereby
represents and warrants to the Investor that:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to carry on its business as now conducted.
2.2 Capitalization and Voting Rights. The authorized capital of the
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Company consists, or will consist immediately prior to the Closing, of:
1.
(i) Preferred Stock. 4,146,870 shares of Preferred Stock, of which
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(A) 900,000 shares have been designated Series A Preferred Stock (the "Series A
Preferred Stock"), of which 900,000 shares are outstanding, (B) 1,897,878 shares
have been designated Series B Preferred Stock (the "Series B Preferred Stock"),
of which 1,897,878 shares are outstanding, and (C) 1,348,992 shares have been
designated Series C Preferred Stock (the "Series C Preferred Stock"), all of
which shares are expected to be either issued or subject to warrants outstanding
on or about the date hereof.
(ii) Common Stock. 120,000,000 shares of Common Stock (the
------------
"Common Stock"), of which 12,069,086 are outstanding.
(iii) Options and Warrants. (A) 5,171,940 shares of Common Stock
--------------------
subject to options granted under the Company's 1995 Stock Option Plan (with a
total of 834,272 shares available for future grants), (B) 420,282 shares of
Common Stock subject to outstanding warrants, and (C) warrants to purchase
Series C Preferred Stock as described in Section 2.2(i) above.
2.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder, and the authorization, issuance, sale and delivery of the
Common Stock being sold hereunder has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
of general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.4 Valid Issuance of Common Stock. The Common Stock that is being
------------------------------
purchased by the Investor hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement and under applicable state and federal securities laws.
2.5 Stock Options. Except as set forth in the Schedule of
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Exceptions, options outstanding under the Company's 1995 Stock Option Plan are
subject to the following vesting schedule: four-year vesting, with 25% vesting
after one year of completion of service and the remaining 75% in 36 equal
monthly installments thereafter. The number of stock options to be granted over
the next twelve months is not currently expected to represent greater than 15%
of the total capitalization of the Company.
2.
2.6 Permits. The Company has all franchises, permits, licenses, and
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any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Company.
2.7 Compliance with Other Instruments. The Company is not in
---------------------------------
violation or default in any material respect of any provision of its Articles of
Incorporation or Bylaws, or in any material respect of any material instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, or, to the best of its knowledge, of any provision of any federal or
state statute, rule or regulation applicable to the Company. The execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree or contract or an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any material permit,
license, authorization, or approval applicable to the Company, its business or
operations or any of its assets or properties.
2.8 Financial Statements. The Company has delivered to the Investor
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its audited financial statements (balance sheets and profit and loss statements)
for the fiscal years ending June 30, 1994 and 1995 as well as the unaudited
financial statements for the fiscal year ending June 30, 1996 and the 6-month
period ending December 31, 1996 (the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated and
with each other, except that the Financial Statements may not contain all
footnotes required by generally accepted accounting principles. Except as set
forth in the Financial Statements, the Company has no material liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to December 31, 1996 and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in the
Financial Statements, which, in both cases, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
2.9 Tax Returns, Payments and Elections. The Company has filed all
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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 that are listed in
the Schedule of Exceptions. Since the date of the Financial Statements, the
Company has made adequate provisions on its books of account for all taxes,
assessments and governmental charges with respect to its business, properties
and operations for such period. The Company has withheld or collected from each
payment made to each of its employees,
3.
the amount of all taxes (including, but not limited to, federal income taxes,
Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom, and has paid the same to the
proper tax receiving officers or authorized depositaries.
2.10 Patents and Trademarks. To the best of its knowledge (but
----------------------
without having conducted any special investigation or patent search), the
Company has sufficient title and ownership of 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. The Company has not received any
communications alleging, nor does the Company have any reason to believe 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.
2.11 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 entered into in the ordinary
course of business, including without limitations, sales contracts and license
agreements; and (ii) contracts terminable at will by the Company on no more than
sixty (60) days notice without cost or liability to the Company.
2.12 MCI Communications Corporation. The Company is currently
-------------------------------
negotiating the sale of not less than 674,475 shares of Series C Preferred Stock
of the Company at a per share price of $11.12 to MCI Communications Corporation
("MCI"). Based upon current negotiations, upon issuance of such stock and
absent the occurrence of any events that would result in an adjustment in the
conversion price of such stock (as determined by the Company's Articles of
Incorporation), each share of such series of Preferred Stock is expected to be
convertible into one share of Common Stock of the Company.
2.13 Litigation; Claims. There are no (a) claims, actions, suits,
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proceedings or investigations pending or (to the knowledge of the Company)
threatened by or against the Company in relation to the Company or its business,
or (b) judgments, decrees, arbitration awards, agreements or orders binding upon
the Company in relation to the Company or its business. No material claims,
including without limitation, product liability claims, have been asserted
against the Company in relation to the Company or its business during the past
ten (10) years, and, to the knowledge of the Company, there is no reasonable
basis for any material action, proceeding or investigation involving the Company
in relation to the Company or its business.
3. Representations and Warranties of the Investor. Except as set
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forth on the Schedule of Exceptions attached hereto, Investor hereby represents
and warrants that:
4.
3.1 Authorization. Such Investor has full power and authority to
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enter into this Agreement, and this Agreement constitutes its valid and legally
binding obligation, enforceable in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made with
---------------------------------
such Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Company Shares to be received by such Investor (the
"Securities") will be acquired for investment for such Investor's own account,
not as a nominee or agent, and not with a view to the distribution of any part
thereof, and that such Investor has no present intention of selling, granting
any participation in, or otherwise distributing the same. By executing this
Agreement, such Investor further represents that such Investor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Securities.
3.3 Disclosure of Information. Such Investor believes it has
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received all the information it considers necessary or appropriate for deciding
whether to purchase the Company Shares. Such 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 Company Shares and the
business, properties, prospects and financial condition of the Company. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Investor to
rely thereon.
3.4 Investment Experience. Such Investor is an investor in
---------------------
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Company
Shares.
3.5 Accredited Investor. Such Investor is an "accredited investor"
-------------------
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
3.6 Legends. It is understood that the certificates evidencing the
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Securities will bear a legend substantially similar to the legend as set forth
in the Registration Rights Agreement, dated as of even date herewith, by and
among the Company and certain other parties named therein (the "Rights
Agreement").
3.7 Title to Stock. The Investor has good title to the Exchanged
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Shares to be transferred by such Investor to the Company under this Agreement,
free and clear of any lien, pledge, security interest or other encumbrance
(other than restrictions on transfer arising under applicable securities laws)
and, upon delivery of the Company
5.
Shares at the Closing as provided for in this Agreement, and assuming the
Company receives the Exchanged Shares in good faith and without notice of any
adverse claim, the Company will receive good title thereto, free and clear of
any lien, pledge, security interest or encumbrance (other than restrictions on
transfer arising under applicable securities laws.)
3.8 Foreign Investor. The Investor certifies that it is not a U.S.
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person and that it is not acquiring the Securities for the account or benefit of
any U.S. person, as those terms are defined in Regulation S under the Act.
3.9 Resales Subject to U.S. Securities Law. The Investor
--------------------------------------
acknowledges that the Securities have not been registered under the Act, and
agrees to resell the Securities only in accordance with the provisions of
Regulation S under the Act, pursuant to registration under the Act, or pursuant
to an available exemption from such registration.
3.10 Offshore Execution. The document effecting this purchase and
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transfer will be executed by the Investor outside the United States.
4. Additional Agreements.
---------------------
4.1 Investor's Call Option.
----------------------
(a) Subject to the provisions set forth below and compliance with
applicable federal and state securities laws of the United States and other
applicable laws, Investor shall have the right, at its election, for a period of
six months commencing January 1, 1999, to exchange all, but not less than all,
of the Company Shares received by Investor as specified in Section 1.1 above
into common shares in the capital of GenCan carrying 49% of the Actual Voting
Power of GenCan. "Actual Voting Power" shall mean the total number of votes
that may be cast in the election of directors of GenCan at any meeting of
stockholders of GenCan if all shares of Common Stock and other securities of
GenCan entitled to vote generally in the election of Directors were present and
voted at such meeting. This right will terminate at the IPO Filing or upon the
execution of an agreement for the acquisition of the Company (which shall
include a merger or a purchase of substantially all of the assets of the
Company). "IPO Filing" shall mean the initial filing of a Registration
Statement under the Securities Act of 1933, as amended, with the Securities and
Exchange Commission for the sale of equity securities of the Company.
(b) The option set forth in Section 4.1(a) (the "Call Option") shall
be exercisable by delivering written notice to the Company (the "Call Notice")
together with a certificate or certificates representing the Company Shares
received by Investor pursuant to Section 1.1 above (the "Certificate") to the
Company.
6.
(c) Within 30 days of receipt of the Call Notice and the Certificate,
the Company will deliver to Investor a certificate representing common shares in
the capital of GenCan carrying 49% of the Actual Voting Power of GenCan.
4.2 Investor's Put Option.
---------------------
(a) Subject to the provisions set forth below and compliance with
applicable federal and state securities laws of the United States and other
applicable laws, in the event the Company:
(i) consummates the sale of substantially all of the assets of
the Company to a party other than Bruncor (the "Sale of Assets") and
(ii) the Board of Directors of the Company does not within 180
days either:
(A) adopt a plan to liquidate the Company within a
reasonable time period; or
(B) adopt a plan to invest the proceeds from the Sale of
Assets in a business activity that contemplates
engaging in the business opportunities set forth in
Sections 1.1 and 1.2 of that certain Joint Venture
Agreement to be entered into by the parties on or prior
to the Closing Date,
then the Investor shall have the right, at its election, during the period of 30
days thereafter to require the Company to purchase all, but not less than all,
of the Company Shares received by Investor as specified in Section 1.1 above for
such amount as the holder of such shares of Common Stock would have been
entitled to receive under the Company's Articles of Incorporation if Board of
Directors of the Company had elected to liquidate the Company. This right will
terminate at the IPO Filing or upon the execution of an agreement for the
acquisition of the Company (which shall include a merger or a purchase of
substantially all of the assets of the Company in which the foregoing right does
not apply or has expired).
(b) The option set forth in Section 4.2(a) (the "Put Option") shall be
exercisable by delivering written notice to the Company (the "Put Notice")
together with the Certificate endorsed to the Company.
(c) After receipt of the Put Notice, the Company will promptly deliver
to Investor the payment set forth above; provided that to the extent the Sale of
Assets proceeds is subject to payment in installments or other manner, then the
timing of the payment provided for hereunder shall be adjusted in a manner
consistent with the timing of the receipt of the Sale of Assets proceeds.
7.
4.3 Unanimous Shareholders Agreement. Effective upon the Closing the
--------------------------------
Unanimous Shareholders Agreement attached hereto as Exhibit A shall terminate in
its entirety.
4.4 Revival of Agreements. In the event that Investor notifies the
---------------------
Company of its intention to exercise its rights in Section 4.1(a) above to
reacquire an interest in GenCan, the parties agree that they will in good faith
negotiate and enter into a new Unanimous Shareholders Agreement and Joint
Venture Agreement with the understanding that the parties will be placed in
substantially the same position as they were prior to the Closing Date; however,
the parties shall consider the transactions effected herein and other new
transactions that may be entered into by the parties.
4.5 Participation Right. Subject to the terms and conditions
-------------------
specified in this paragraph 4.5, the Company hereby grants to Investor a
participation right with respect to future sales by the Company of its Shares
(as hereinafter defined). Each time the Company proposes to issue any shares
of, or securities convertible into or exercisable for any shares of, any class
of its capital stock ("Shares"), the Company shall first make an offering of
such Shares to Investor in accordance with the following provisions:
(a) the Company shall deliver a notice by certified mail ("Notice") to
Investor stating (i) its bona fide intention to offer such Shares, (ii) the
number of such Shares to be offered, and (iii) the price and terms, if any, upon
which it proposes to offer such Shares.
(b) By written notification received by the Company within 10 calendar
days after giving of the Notice, Investor may elect to purchase or obtain, at
the price and on the terms specified in the Notice, that portion of the Shares
which equals Investor's percentage ownership of the Company's capital stock on a
fully-diluted basis. If Investor fails to exercise its rights to purchase its
pro-rata portion of the Shares, the Company may enter into an agreement for the
sale thereof on terms substantially the same as those described in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within 60 days from the date of the Notice, the right provided hereunder shall
be deemed to be revived and such Shares shall not be offered unless first
reoffered to Investor in accordance herewith.
(c) The participation right in this paragraph 4.5 shall not be
applicable (i) to the issuance or sale of shares of common stock (or options
therefor) to employees for the primary purpose of soliciting or retaining their
employment, (ii) to or after consummation of a bona fide, firmly underwritten
public offering of shares of common stock of the Company, registered under the
Securities Act of 1933, as amended, pursuant to a registration statement on Form
S-1, (iii) the issuance of securities pursuant to the conversion or exercise of
convertible or exercisable securities, (iv) the issuance of securities in
connection with a bona fide business acquisition of or by the Company, whether
by merger, consolidation, sale of assets, sale or exchange of stock or otherwise
8.
or (v) the issuance of stock, warrants or other securities or rights to persons
or entities with which the Company has business relationships provided such
issuances are for other than primarily equity financing purposes.
(d) The participation right set forth in this Section 4.5 may not be
assigned or transferred.
(e) The participation right set forth in this Section 4.5 shall
terminate upon the filing of a Registration Statement under the Securities Act
of 1933 with the Securities and Exchange Commission.
(f) The participation right set forth in this Section 4.5 is in lieu
of the right of first refusal as set forth in the Rights Agreement.
4.6 Transferability of Securities. Notwithstanding Sections 3 and 4
-----------------------------
of the Rights Agreement, the parties agree that they will use their good faith,
commercially reasonable efforts to remove the restrictions on the disposition of
the Securities as early as permissible under Rule 144 or Regulation S of the
Securities Act.
4.7 Financial Reporting. The Company hereby covenants and agrees
-------------------
with Investor that from and after the Closing, so long as any shares of Series C
Preferred Stock is outstanding, the Company will deliver to Investor (i) within
thirty (30) days after the end of each quarter, quarterly unaudited financial
statements; (ii) within one hundred twenty (120) days after the end of each
fiscal year, audited financial statements for such period; and (iii) within
ninety (90) days after the end of the fiscal year, an annual financial plan for
the Company.
5. California Commissioner of Corporations.
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5.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT 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 FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM 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.
6. Conditions of Investor's Obligations at Closing. The obligations
-----------------------------------------------
of the Investor under Section 1.1 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
9.
6.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
6.2 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.
6.3 Qualifications. All authorizations, approvals, or permits, if
--------------
any, of any governmental authority or regulatory body of the United States,
Canada or of any state or province that are required in connection with the
lawful issuance and sale of the Securities and the transfer of the Exchanged
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
6.4 Joint Venture Agreement. The Company shall have entered into the
-----------------------
Joint Venture Agreement with Investor, substantially in the form attached hereto
as Exhibit B, on or prior to the Closing.
6.5 Co-Sale Agreement. Greg Shenkman and Alec Miloslavsky shall have
-----------------
entered into the Co-Sale Agreement with the Investor, substantially in the form
attached hereto as Exhibit C, on or prior to the Closing.
6.6 Agreement with MCI Communications Corporation. The Company shall
---------------------------------------------
have closed on or prior to the Closing Date the purchase by MCI Communications
Corporation of an aggregate of at least 674,475 shares of Series C Preferred
Stock of the Company at a per share price of $11.12 each of which shares is, as
of the Closing Date, convertible into common stock on a one-to-one basis.
7. Conditions of the Company's Obligations at Closing. The
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obligations of the Company to the Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
such Investor:
7.1 Representations and Warranties. The representations and
------------------------------
warranties of the Investor contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
7.2 Payment of Purchase Price. The Investor shall have delivered the
-------------------------
consideration specified in Section 1.1.
7.3 Qualifications. All authorizations, approvals, or permits, if
--------------
any, of any governmental authority or regulatory body of the United States,
Canada or of any state or province that are required in connection with the
lawful issuance and sale of the
10.
Securities and the transfer of the Exchanged Shares pursuant to this Agreement
shall be duly obtained and effective as of the Closing.
7.4 Joint Venture Agreement. The Investor shall have entered into
-----------------------
the Joint Venture Agreement with the Company, substantially in the form attached
hereto as Exhibit B, on or prior to the Closing.
8. Miscellaneous.
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8.1 Termination of Warranties. Notwithstanding any investigation
-------------------------
conducted at any time with regard thereto by or on behalf of any party, all of
the warranties and representations of the Company and the Investor contained in
Section 2 and 3 shall survive the execution, delivery and performance of this
Agreement and shall survive until the second anniversary of the date of this
Agreement.
8.2 Successors and Assigns. Except as otherwise provided 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 Securities). 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.
8.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
8.7 Expenses. Irrespective of whether the Closing is effected, each
--------
party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution,
11.
delivery and performance of this Agreement. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
8.8 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at the
time outstanding, each future holder of all such securities, and the Company.
8.9 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.10 Entire Agreement. This Agreement and the documents referred to
----------------
herein (including the Joint Venture Agreement and all documents referred to
therein) constitute the full and entire understanding and agreement among the
parties with regard to the subjects hereof and thereof, and supersede any and
all prior agreements and understandings among the parties.
12.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GENESYS TELECOMMUNICATIONS
LABORATORIES, INC.
By: /s/ Gregory Shenkman
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Print: Gregory Shenkman
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Title: President and Chief Executive Officer
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1155 Market Street, 11th Floor
San Francisco, CA 94103
BRUNCOR, INC.:
By: /s/ G. L. Pond
--------------------------------------
Print: G. L. Pond
--------------------------------------
Title: President
--------------------------------------
By: /s/ G. R. Parker
--------------------------------------
Print: G. R. Parker
--------------------------------------
Title: Treasurer
--------------------------------------
One Brunswick Square
Saint John, New Brunswick
Canada E2L 41A
[signature page to Stock Exchange Agreement]
13.