XIOX CORPORATION
STOCK PURCHASE AGREEMENT
December 28, 1995
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock......................................... 1
1.1 Sale and Issuance of Common Stock..................... 1
1.2 Closing Date; Delivery................................ 1
2. Representations and Warranties of the Company...................... 1
2.1 Organization Good Standing and Qualification.......... 1
2.2 Authorization......................................... 2
2.3 Valid Issuance of Common Stock........................ 2
2.4 Compliance with Other Instruments..................... 2
2.5 SEC Filings........................................... 2
3. Representations and Warranties of the Investors.................... 2
3.1 Authorization......................................... 3
3.2 Purchase Entirely for Own Account..................... 3
3.3 Disclosure of Information............................. 3
3.4 Investment Experience................................. 3
3.5 Restricted Securities................................. 3
3.6 Further Limitations on Disposition.................... 3
3.7 Legends............................................... 4
4. California Commissioner of Corporations............................ 4
4.1 Corporate Securities Law.............................. 4
5. Conditions of Investor's Obligations at Closing.................... 4
5.1 Representations and Warranties........................ 4
5.2 Performance........................................... 5
5.3 Compliance Certificate................................ 5
5.4 Proceedings and Documents............................. 5
5.5 Registration Rights Agreement......................... 5
6. Conditions of the Company's Obligations at Closing................. 5
6.1 Representations and Warranties........................ 5
6.2 Payment of Purchase Price............................. 5
6.3 Qualification......................................... 5
7. Covenants of the Company........................................... 6
7.1 Maintain Listed Status................................ 6
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TABLE OF CONTENTS
(continued)
Page
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8. Miscellaneous...................................................... 6
8.1 Survival of Warranties................................ 6
8.2 Successors and Assigns................................ 6
8.3 Governing Law......................................... 6
8.4 Counterparts.......................................... 7
8.5 Titles and Subtitles.................................. 7
8.6 Notices............................................... 7
8.7 Finder's Fee.......................................... 7
8.8 Amendments and Waivers................................ 7
8.9 Severability.......................................... 7
Exhibits:
Exhibit A - Schedule of Investors
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XIOX CORPORATION
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 28th day of December,
1995, by and between Xiox Corporation, a Delaware corporation (the "Company")
and the investors listed on Exhibit A hereto, each of which is herein referred
to as an "Investor" and collectively referred to as the "Investors".
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. Subject to the terms
and conditions of this Agreement, each Investor agrees, severally and not
jointly, to purchase and the Company agrees to sell and issue to each Investor
at the Closing, as defined below, that number of shares of the Company's Common
Stock at the Closing set forth opposite each Investor's name on Exhibit A hereto
(the "Shares") for the purchase price set forth thereon.
1.2 Closing Date; Delivery.
(a) Closing Date. The closing of the purchase and
sale of the Common Stock designated for purchase by the Investors at the Closing
shall take place, subject to the satisfaction of the conditions set forth in
Sections 5 and 6, at the offices of Wilson, Sonsini, Goodrich & Rosati, 650 Page
Mill Road, Palo Alto, California, at eleven o'clock a.m., on December 28, 1995,
or at such other time and place as the Company and the Investors participating
in the Initial Closing shall agree (the "Closing Date").
(b) Delivery. At the Closing the Company shall
deliver to each Investor a certificate or certificates representing the Shares
which such Investor is purchasing against delivery to the Company by such
Investor of a check or wire transfer payable to the Company's order, or
cancellation of indebtedness, in the amount of the purchase price therefor set
forth opposite the Investor's name in Exhibit A hereto with respect to each such
Closing, respectively.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor that, effective as of the Closing.
2.1 Organization Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its financial condition, business or properties.
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2.2 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of the Company hereunder and the authorization, issuance and
delivery of the Shares being sold hereunder has been taken or will be taken
prior to the Closing at which such action is required, and this Agreement and
the Registration Rights Agreement to be entered into between the Company and the
Investors constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms.
2.3 Valid Issuance of Common Stock. The Shares which are being
purchased by the Investors hereunder, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, and will be fully paid and nonassess able and, based in
part upon the representations of the Investors in this Agreement, the Shares
will be issued in compliance with all applicable federal and state securities
laws.
2.4 Compliance with Other Instruments. The Company is not in
violation or default of any provisions of its Certificate of Incorporation, as
amended, or Bylaws, as amended, or in any material respect of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound or, to its knowledge, of any provision of any federal or state statute,
rule or regulation applicable to the Company, except that the Company is
currently operating under an exception to the capital and surplus requirements
promulgated by the National Association of Securities Dealers ("NASD") for
listing on the NASD's automated quotation system in the NASD's Small-Cap Market.
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 which results in the
creation of any lien, charge or encumbrance upon any assets of the Company.
2.5 SEC Filings. The Company has previously furnished to the
Investors true and complete copies of (i) its Annual Reports on Form 10-K filed
with the SEC for the fiscal year ended December 31, 1994, (ii) its Quarterly
Reports on Form 10-Q for the three months ended March 31, 1995, June 30, 1995,
and September 30, 1995 as filed with the SEC and (iii) definitive proxy
statements filed by the Company with the SEC for its annual shareholders'
meetings held in 1995. None of the documents referred to in this Section 2.5
contained as of its date any untrue statement of a material fact or omitted as
of its date to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Since December 31, 1992, the Company has made all
public filings required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended, and such filings were made on a
timely basis. The Company will use its best efforts to make available the
information necessary under Rule 144(c) under the Securities Act to enable sales
to be made under Rule 145(d) under the Securities Act.
3. Representations and Warranties of the Investors. Each Investor
severally and not jointly hereby represents and warrants that effective
currently as of each Closing:
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3.1 Authorization. This Agreement constitutes his valid and
legally binding obligation, enforceable in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made
with each 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 Shares to be received by such Investor will be acquired
for investment for such Investor's own account, not as nominee or agent, and not
with a view to the resale or 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, each Investor
further represents that such Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares. Each Investor represents that he has full power and authority to enter
into this Agreement.
3.3 Disclosure of Information. He believes he has received all
the information he considers necessary or appropriate for deciding whether to
purchase the Shares. Each Investor further represents that he has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Shares. 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 Investors to rely thereon.
3.4 Investment Experience. Each Investor is experienced in
investing in companies similar to the Company, is able to fend for himself, can
bear the economic risk of his investment, and has such knowledge and experience
in financial or business matters that he is capable of evaluating the merits and
risks of the investment in the Shares.
3.5 Restricted Securities. Each Investor understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act of 1933, as amended (the "Act"), only in certain limited
circumstances. In this connection, each Investor represents that he is familiar
with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
3.6 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, each Investor further agrees not
to make any disposition of all or any portion of the Securities unless:
(a) There is then in effect a registration statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
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(b) (i) Such Investor shall have notified the Company
of the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, (ii) the
transferee has agreed in writing for the benefit of the Company to be bound by
the terms of this Agreement, and (iii) if reasonably requested by the Company,
such Investor shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the Act. It is agreed that the Company will
not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances.
3.7 Legends. It is understood that the certificates
evidencing the Securities may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT."
(b) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations.
4. California Commissioner of Corporations.
4.1 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 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.
5. Conditions of Investor's Obligations at Closing. The obligations of
each Investor to purchase that number Shares set forth on Exhibit A hereto at
the Closing are subject to the fulfillment on or before the Closing Date of each
of the following conditions:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the date
of the Closing.
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5.2 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.
5.3 Compliance Certificate. The President or Vice President of
the Company shall deliver to each Investor at the Closing a certificate
certifying that the conditions specified in Sections 5.1 and 5.2 have been
fulfilled.
5.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor.
5.5 Registration Rights Agreement. The Company and the
Investors shall have executed the Registration Rights Agreement.
6. Conditions of the Company's Obligations at Closing. The
obligations of the Company to issue and sell the Shares to each Investor at the
Closing are subject to the fulfillment on or before the Closing Date of each of
the following conditions by that Investor:
6.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 3 shall be true and correct in
all material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of the date
of such Closing.
6.2 Payment of Purchase Price. The Investors shall have
delivered the purchase price specified in Section 1.2(b).
6.3 Qualification. Consent or approval of all relevant Blue
Sky authorities shall have been obtained with respect to the offer and sale to
the Investors of the Shares or such offer and sale shall be exempt from such
consent or approval.
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7. Covenants of the Company.
7.1 Maintain Listed Status. Immediately after the Closing, the
Company shall promptly take all necessary actions to maintain the Company's
listed status on the NASD's Automated Quotation System.
7.2 Rule 144 Reporting. With a view to making available to the
Investors the benefits of certain rules and regulations of the SEC which may
permit the sale of the Common Stock purchased hereby to the public without
registration, the Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act;
(c) So long as an Investor owns any Common Stock purchased
hereby, to furnish to such Investor forthwith upon such Investor's request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144, and of the Securities Act and the Securities
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Investor may reasonably request in availing itself of any rule or regulation of
the SEC allowing such Investor to sell any such securities without registration.
8. Miscellaneous.
8.1 Survival of Warranties. The warranties, representations
and covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
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 succes sors and assigns of the parties
(including transferees of any Preferred Stock sold hereunder or any Common Stock
issued upon conversion thereof). 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.
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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
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, 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 Finder's Fee. Each party represents that it neither is nor
will be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless each
Investor from any liability for any commission or compensation in the nature of
a finders' fee (and the costs and expenses of defending against such liability
or asserted liability) for which the Company or any of its officers, employees
or representatives is responsible.
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 holders of a majority of
the Shares sold hereunder. 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 (including securities into which
such securities are convertible), each future holder of all such securities, and
the Company; provided, however, that no condition set forth in Section 5 or
Section 7 hereof may be waived with respect to any Investor who does not consent
thereto.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XIOX CORPORATION
By: MELANIE D. REID
----------------------------
Title: VP of Finance/CFO
----------------------------
Address: 577 Airport Boulevard, Suite 700
Burlingame, CA 94010
INVESTORS:
EDMUND AND MARY SHEA REAL PROPERTY
TRUST TR DTD 10-3-85
-------------------------------------
(signature)
-------------------------------------
(print name)*
DANIEL F. SULLIVAN
-------------------------------------
(signature)
-------------------------------------
(print name)*
MICHAEL F. GREENE
-------------------------------------
(signature)
-------------------------------------
(print name)*
DARRELL L. KRULCE
-------------------------------------
(signature)
-------------------------------------
(print name)*
ATAM LALCHANDANI
-------------------------------------
(signature)
-------------------------------------
(print name)*
ANTHONY DIIULIO
-------------------------------------
(signature)
-------------------------------------
(print name)*
* Please print name exactly as you would like it to appear on your stock
certificate.
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EXHIBIT A
SCHEDULE OF INVESTORS
NUMBER OF SHARES PURCHASE
INVESTOR OF COMMON STOCK PRICE
- ------------------------------------------ ----------------- ---------
EDMUND AND MARY SHEA TRUST ................... 233,334 $350,001
DANIEL F. SULLIVAN ........................... 10,000 $ 15,000
MICHAEL F. GREENE ............................ 10,000 $ 15,000
DARRELL L. KRULCE ............................ 8,000 $ 12,000
ATAM LALCHANDANI ............................. 8,000 $ 12,000
ANTHONY DIIULIO .............................. 3,000 $ 4,500
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TOTALS 272,334 $408,501