EXHIBIT 10.15
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT is dated as of July 10, 2003 by and
between NEOWARE SYSTEMS, INC., a Delaware corporation with its principal office
at 400 Feheley Drive, King of Prussia, Pennsylvania 19406 (the "Company"), and
the persons listed as the Purchasers on the signature pages hereto (the
"Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers shares
("Shares") of the Company's authorized but unissued common stock, $0.001 par
value per share (the "Common Stock"), in connection with an offering (the
"Offering") of a minimum of 1,000,000 Shares and a maximum of 1,500,000 Shares
of Common Stock; and
WHEREAS, each Purchaser wishes to purchase the Shares on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Affiliate" of a party, means any corporation or other
business entity controlled by, controlling or under common control with such
party. For this purpose "control" shall mean direct or indirect beneficial
ownership of fifty percent (50%) or more of the voting or income interest in
such corporation or other business entity.
(b) "Closing Date" means, with respect to any Purchaser, the date
of the Closing of such Purchaser's purchase of Shares hereunder.
(c) "EGE" means Emerging Growth Equities, Ltd., a Pennsylvania
limited partnership.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated there under.
(e) "Placement Agents" means EGE and C.E. Unterberg, Towbin
(f) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(g) "SEC" shall mean the Securities and Exchange Commission.
(h) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated there under.
(i) "Unterberg" means C.E. Unterberg, Towbin, a California limited
partnership.
2. Purchase and Sale of the Shares.
2.1 Purchase and Sale. Subject to and upon the terms and conditions set
forth in this Agreement, the Company agrees to issue and sell to the Purchasers
severally and not jointly, and each Purchaser hereby agrees to purchase from the
Company severally and not jointly, at the Closing, at a purchase price per Share
of $17.50 (the "Purchase Price"), the number of Shares obtained by dividing (a)
the amount set forth on such Purchaser's signature page hereto under the heading
"Aggregate Subscription Amount" by (b) the Purchase Price. In the event that,
with respect to any Purchaser, a fraction results from such calculation, the
Company shall issue and sell to such Purchaser the greatest number of whole
Shares obtained from such calculation and shall return to the Purchaser the
difference between such Purchaser's Aggregate Subscription Amount and the actual
aggregate Purchase Price for the Shares so purchased by such Purchaser.
2.2 Closing. Subject to the satisfaction or waiver of the conditions
set forth in Section 5 of this Agreement, the purchase and sale of the Shares
shall take place at an initial closing (the "Initial Closing") and, if
necessary, one or more additional closings subsequent to the Initial Closing
(each a "Subsequent Closing," and together with the Initial Closing, each a
"Closing") at the offices of the Company's counsel, McCausland, Keen & Buckman,
Radnor Court, Suite 160, 259 Radnor-Chester Road, Radnor, Pennsylvania, 19087,
upon the acceptance by the Company of each Purchaser's purchase of the Shares;
provided, however, that, at the Initial Closing, the Company shall be required
to receive gross proceeds of a minimum of $17,500,000 from sales of the Shares
to all Purchasers in connection with the Offering. On or prior to the applicable
Closing, each Purchaser shall (a) execute this Agreement and the Registration
Rights Agreement, together with such other documents relating to the purchase of
the Shares as the Company may reasonably request, and deliver the same to EGE to
be held in escrow pending the Closing, and (b) deliver, by wire transfer or
other form of payment in same day funds the amount of such Purchaser's Aggregate
Subscription Amount, to the escrow account established by EGE at Wachovia Bank
as escrow agent (the "Escrow Agent") pursuant to the terms of that certain
Escrow Agreement (the "Escrow Agreement"), dated as of July 9, 2003, by and
among the Company, the Escrow Agent and the Placement Agents in the form
attached as Exhibit A hereto. Upon each Closing, (i) the Company shall execute
this Agreement and the Registration Rights Agreement, together with such other
documents relating to the purchase of the Shares as the Purchasers may
reasonably request, and deliver the same to each Purchaser in such Closing, (ii)
Placement Agents shall release each such Purchaser's executed Agreement,
Registration Rights Agreement and other documents to the Company and (iii) the
Escrow Agent shall release the funds in the escrow account to the Company.
Within three business days after the Closing, the Company shall deliver to each
Purchaser a stock certificate registered in the name of the Purchaser,
representing the number of Shares purchased by the Purchaser, as computed
pursuant to Section 2.1 hereof.
3. Representations and Warranties of the Company. The Company hereby represents
and warrants to the Purchasers as of the Closing Date as follows:
3.1 Incorporation. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
qualified to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect upon
the Company taken as a whole. The Company has all requisite corporate power and
authority to carry on its business as now conducted.
3.2 Capitalization. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, of which 13,911,447 shares are
outstanding on the date hereof, and 1,000,000 shares of Preferred Stock, $0.001
par value per share, of which no shares are outstanding on the date hereof.
Except as set forth in Schedule 3.2 hereto, there are no existing options,
warrants, calls, preemptive (or similar) rights, subscriptions or other rights,
agreements, arrangements or commitments of any character obligating the Company
to issue, transfer or sell, or cause to be issued, transferred or sold, any
shares of the capital stock of the Company or other equity interests in the
Company or any securities convertible into or exchangeable for such shares of
capital stock or other equity interests, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of its capital stock or other equity interests.
3.3 Authorization. All corporate action on the part of the Company and
its officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated herein
and therein has been taken. When executed and delivered by the Company, each of
this Agreement and the Registration Rights Agreement shall constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally
and by general equitable principles. The Company has all requisite corporate
power to enter into this Agreement and the Registration Rights Agreement and to
carry out and perform its obligations under the terms of this Agreement, and the
Registration Rights Agreement.
3.4 Valid Issuance of the Shares. The Shares being purchased hereunder
will, upon issuance pursuant to the terms hereof, be duly authorized and validly
issued, fully paid and nonassessable.
3.5 Offering. No form of general solicitation or general advertising
was used by the Company or its representatives in connection with the offer,
sale or issuance of the Shares. In reliance on, and assuming the accuracy of,
the representations and warranties of the Purchasers in Section 4 hereof, the
offer, sale and issuance of the Shares in conformity with the terms of this
Agreement will not result in a violation of the requirements of Section 5 of the
Securities Act.
3.6 Financial Statements. The Company has furnished or otherwise made
available to each Purchaser its audited Statements of Operations, Stockholders'
Equity and Cash Flows for the fiscal year ended June 30, 2002, its audited
Balance Sheet as of June 30, 2002, and its unaudited Statements of Operations,
Stockholders' Equity and Cash Flows for the nine months ended March 31, 2003 and
its unaudited Balance Sheet as of March 31, 2003. All such financial statements
are hereinafter referred to collectively as the "Financial Statements." The
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved,
and fairly present, in all material respects, the financial position of the
Company and the results of its operations as of the date and for the periods
indicated thereon, except that the unaudited financial statements may not be in
accordance with generally accepted accounting principles because of the absence
of footnotes normally contained therein and are subject to normal year-end audit
adjustments which, individually, and in the aggregate, will not be material.
Since March 31, 2003, to the Company's knowledge, there has been no material
adverse change (actual or threatened) in the assets, liabilities (contingent or
other), affairs, operations, prospects or condition (financial or other) of the
Company. Notwithstanding anything to the contrary in this Agreement, the
Company's current financial performance may vary materially from expectations
disclosed in the Company's SEC Documents (as such term is defined below) and
other publicly released information by the Company due to corporate response to
recent market volatility, the timing of the receipt of customer orders, customer
seasonality and uncertainty in global markets and the Company's markets, and
such other factors as are set forth in the SEC Documents and other publicly
released information by the Company.
3.7 SEC Documents. The Company has furnished or otherwise made
available to each Purchaser a true and complete copy of the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 2002, the Company's
Quarterly Reports on Form 10-Q for the quarters ended September 30, 2002,
December 31, 2002, and March 31, 2003 and any other statement, report,
registration statement (other than registration statements on Form S-8) or
definitive proxy statement filed by the Company with the SEC during the period
commencing June 30, 2002, and ending on the date hereof (all such materials
being called, collectively, the "SEC Documents"). As of their respective filing
dates, the SEC Documents complied as to form in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and none
of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, as of their respective filing dates,
except to the extent corrected by a subsequently filed SEC Document.
3.8 Consents. All consents, approvals, orders and authorizations
required on the part of the Company in connection with the execution, delivery
or performance of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated herein, other than for Regulation
D and state blue sky filings with respect to the sale of Shares which will be
made post-closing in accordance with such laws, and therein have been obtained
and will be effective as of the Closing Date, provided that this representation
and warranty is made in reliance on, and assuming the accuracy of, the
representations and warranties of the Purchasers in Section 4 hereof to the
extent that the accuracy of such representations and warranties are relevant to
the determination of whether any such consent, approval, order or authorization
is required.
3.9 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or Bylaws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations applicable to the Company or its properties or
assets, except in the case of clause (ii) to the extent that such violations and
defaults would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its properties and assets.
3.10 Placement Agents. In consideration for services rendered by the
Placement Agents in placing the Shares, the Company has agreed to pay the
Placement Agents an aggregate cash commission equal to six percent (6%) of the
gross proceeds of the sale of the Shares sold under this Agreement. Other than
as set forth herein, the Company has no obligation to pay brokers' fees or
commissions by virtue of the sale of the Shares.
3.11 Absence of Litigation. There is no action, suit, proceeding or, to
the Company's knowledge, investigation, pending, or, to the Company's knowledge,
threatened by or before any governmental body against the Company and in which
an unfavorable outcome, ruling or finding in any said matter, or for all matters
taken as a whole, might have a material adverse effect on the Company. The
foregoing includes, without limitation, any such action, suit, proceeding or
investigation that questions this Agreement or the Registration Rights Agreement
or the right of the Company to execute, deliver and perform under same.
4. Representations and Warranties of the Purchasers. Each Purchaser, severally
and not jointly, represents and warrants to the Company as of the Closing Date
as follows:
4.1 Authorization. All action on the part of the Purchaser and, if
applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. The Purchaser has all requisite
power or corporate power, whichever is applicable, to enter into each of this
Agreement and the Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement and the Registration Rights
Agreement.
4.2 Purchase Entirely for Own Account. The Purchaser is acquiring the
Shares being purchased by it hereunder for investment, for its own account, and
not for resale or with a view to distribution thereof in violation of the
Securities Act.
4.3 Investor Status; Etc. The Purchaser is an "Accredited Investor" as
defined in Rule 501 of Regulation D promulgated under the Securities Act and was
not organized for the purpose of acquiring the Shares. The Purchaser's financial
condition is such that it is able to bear the risk of holding the Shares for an
indefinite period of time and the risk of loss of its entire investment. The
Purchaser has been afforded the opportunity to ask questions of and receive
answers from the management of the Company concerning this investment and has
sufficient knowledge and experience in investing in companies similar to the
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company. The Purchaser
has carefully read the SEC Documents and has relied solely on the information
contained therein and herein and on any additional information provided to the
Purchaser by the Company.
4.4 Shares Not Registered. The Purchaser understands that the Shares
have not been registered under the Securities Act or the securities laws of any
state, by reason of their issuance by the Company in a transaction exempt from
the registration requirements of the Securities Act and applicable state
securities laws, and that the Shares must continue to be held by the Purchaser
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration. The Purchaser understands that the
exemptions from registration afforded by Rule 144 (the provisions of which are
known to it) promulgated under the Securities Act depend on the satisfaction of
various conditions, and that, if applicable, Rule 144 may afford the basis for
sales only in limited amounts. The Purchaser further understands that, except as
provided in the Registration Rights Agreement, the Company is under no
obligation to register any of the Shares on the Purchaser's behalf or to assist
the Purchaser in complying with any exemption under the Securities Act or
applicable state securities laws.
4.5 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Purchaser and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default by the Purchaser (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under (i) any
provision of the organizational documents of the Purchaser or (ii) any agreement
or instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Purchaser or its respective
properties or assets.
4.6 Consents. All consents, approvals, orders and authorizations
required on the part of the Purchaser in connection with the execution, delivery
or performance of this Agreement and the consummation of the transactions
contemplated herein have been obtained and are effective as of the Closing Date.
4.7 Company Representations and Warranties. No representations or
warranties have been made to the Purchaser by the Company, or any officer,
employee, agent, affiliate or subsidiary of the Company, other than the
representations and warranties of the Company contained herein, and in
purchasing the Shares the Purchaser is not relying on any representations
relating to the Company other than those contained herein.
4.8 No Recommendation. The Purchaser understands that no federal or
state agency has made any findings or determination as to the fairness of the
offering of the Shares hereunder (or any part thereof) for public investment, or
any recommendation or endorsement of the Shares (or any part thereof).
5. Conditions Precedent.
5.1 Conditions to the Obligation of the Purchasers to Consummate the
Closing. The obligation of each Purchaser to consummate the Closing and to
purchase and pay for the Shares being purchased by it pursuant to this Agreement
is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Purchasers that, in the case of any representation
and warranty of the Company contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by the Company.
(c) The Company shall have performed all obligations and
conditions herein required to be performed or observed by the Company on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted before any court, arbitrator or
governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the Purchasers
shall not be prohibited by any law or governmental order or regulation. All
necessary consents, approvals, licenses, permits, orders and authorizations of,
or registrations, declarations and filings with, any governmental or
administrative agency or of any other person with respect to any of the
transactions contemplated hereby, other than for Regulation D and state blue sky
filings with respect to the sale of the Shares, shall have been duly obtained or
made and shall be in full force and effect.
(f) The Company shall have received gross proceeds of a minimum of
$17,500,000 from sales of the Shares to all Purchasers in connection with the
Offering.
(g) The Company shall have filed an application for listing of the
Shares on the NASDAQ National Market on or before the Closing.
(h) All instruments and corporate proceedings in connection with
the transactions contemplated by this Agreement to be consummated at the Closing
shall be satisfactory in form and substance to the Purchasers, and the
Purchasers shall have received copies (executed or certified, as may be
appropriate) of all documents which the Purchasers may have reasonably requested
in connection with such transactions.
5.2 Conditions to the Obligation of the Company to Consummate the
Closing. The obligation of the Company to consummate the Closing and to issue
and sell to the Purchasers the Shares to be purchased at the Closing is subject
to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of each
Purchaser shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of a Purchaser contained herein which is not hereinabove qualified by
application thereto of a materiality standard, such representation and warranty
need be true and correct only in all material respects in order to satisfy as to
such representation or warranty the condition precedent set forth in the
foregoing provisions of this Section 5.2(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by the Purchasers.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted before any court, arbitrator or
governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be prohibited
by any law or governmental order or regulation. All necessary consents,
approvals, licenses, permits, orders and authorizations of, or registrations,
declarations and filings with, any governmental or administrative agency or of
any other person with respect to any of the transactions contemplated hereby,
other than for Regulation D and state blue sky filings with respect to the sale
of the Shares, shall have been duly obtained or made and shall be in full force
and effect.
(f) All instruments and corporate proceedings in connection with
the transactions contemplated by this Agreement to be consummated at the Closing
shall be satisfactory in form and substance to the Company, and the Company
shall have received counterpart originals, or certified or other copies of all
documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. Transfer, Legends.
6.1 Securities Law Transfer Restrictions. No Purchaser shall sell,
assign, pledge, transfer or otherwise dispose or encumber any of the Shares
being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested by the Company, upon delivery by the Purchaser
of an opinion of counsel reasonably satisfactory to the Company and its counsel
to the effect that the proposed transfer is exempt from registration under the
Securities Act and applicable state securities laws. Any transfer or purported
transfer of the Shares in violation of this Section 6.1 shall be voidable by the
Company. The Company shall not register any transfer of the Shares in violation
of this Section 6.1. The Company may, and may instruct any transfer agent for
the Company, to place such stop transfer orders as may be required on the
transfer books of the Company in order to ensure compliance with the provisions
of this Section 6.1.
6.2 Legends. Each certificate representing any of the Shares shall be
endorsed with the legends set forth below, and each Purchaser covenants that,
except to the extent such restrictions are waived by the Company, it shall not
transfer the Shares represented by any such certificate without complying with
the restrictions on transfer described in this Agreement and the legends
endorsed on such certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT THE PROPOSED
TRANSFER IS EXEMPT FROM SAID ACT."
7. Escrow Agreement. In connection with and in consideration of this Agreement,
each Purchaser severally and not jointly hereby adopts and agrees to be bound by
the terms and conditions of the Escrow Agreement, as if the Purchaser had
executed such Escrow Agreement.
8. Miscellaneous Provisions.
8.1 Public Statements or Releases. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its suppliers or customers, with respect to this
Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed, provided, that
nothing in this Section 8.1 shall prevent any of the parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations, but to the extent not inconsistent with such obligations, it
shall provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made. The parties hereto agree that
upon Closing the Company may issue a press release in substantially the forth
attached hereto as Exhibit B.
8.2 Further Assurances. Each party agrees to cooperate fully with the
other party and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
the other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes of
this Agreement.
8.3 Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
8.4 Pronouns. All pronouns or any variation thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
8.5 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
Neoware Systems, Inc.
400 Feheley Drive
King of Prussia, PA 19406
Attention: Keith D. Schneck, Executive Vice President & CFO
Telecopier: (610) 275-5739
with a copy to:
McCausland, Keen & Buckman
Radnor Court, Suite 160
259 North Radnor-Chester Road
Radnor, PA 19087
Attention: Nancy D. Weisberg, Esq.
Telecopier: (610) 341-1099
(c) All correspondence to the Purchasers shall be addressed to
each Purchaser at its address set forth on its signature page hereto.
(d) Any party may change the address to which correspondence to it
is to be addressed by notification as provided for herein.
8.6 Captions. The captions and paragraph headings of this Agreement are
solely for the convenience of reference and shall not affect its interpretation.
8.7 Severability. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provisions shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of Delaware and without regard
to any conflicts of laws concepts which concepts, which would apply the
substantive law of some other jurisdiction.
8.9 Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or be construed as, a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
8.10 Expenses. Each party will bear its own costs and expenses in
connection with this Agreement.
8.11 Assignment. The rights and obligations of the parties hereto shall
inure to the benefit of and shall be binding upon the authorized successors and
permitted assigns of each party. No Purchaser may assign its rights or
obligations under this Agreement or designate another person (i) to perform all
or part of its obligations under this Agreement or (ii) to have all or part of
its rights and benefits under this Agreement, in each case without the prior
written consent of the Company. The Company may not assign its rights or
obligations under this Agreement without the prior written consent of the
Purchasers holding a majority of the Shares then outstanding. In the event of
any assignment in accordance with the terms of this Agreement, the assignee
shall specifically assume and be bound by the provisions of the Agreement by
executing and agreeing to an assumption agreement reasonably acceptable to the
other party.
8.12 Survival. The respective representations and warranties given by
the parties hereto, and the other covenants and agreements contained herein,
shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of one year.
8.13 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and supersedes
all prior agreements, negotiations, understandings, representations and
statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the Company and the Purchasers.
8.14 Counterparts. This Agreement may be executed in a number of
counterparts, each of which together, shall for all purposes constitute one
Agreement, binding on all of the parties hereto, notwithstanding that all such
parties have not signed the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase Agreement as of the day and year first above written.
NEOWARE SYSTEMS, INC.
By:__________________________________
Name: Keith D. Schneck
Title: Executive Vice President & CFO
PURCHASER:
Print Name of Purchaser:
______________________________________
By:___________________________________
Name:
Title:
Purchaser's Address and Fax Number for Notice:
______________________________________
______________________________________
______________________________________
Aggregate Subscription Amount: ___________________________________
Email Address or Fax Number for
Notification of Purchase Price Calculation: ______________________
All funds should be delivered to the Escrow Agent for the benefit of the Company
by bank wire transfer or other form of payment in same day funds as follows:
Wachovia Bank
Charlotte, North Carolina
ABA# 053000219
WB# 5000000016439
Attn: CT1870 Jerry Arleth
FFC: Neoware Systems, Inc.
Escrow A/C# 1572008740
Notify: (215) 670-6305
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
Schedule 3.2
Capitalization
1. Options to purchase an aggregate of 1,760,625 shares of the Company's Common
Stock are outstanding under the Company's 1995 Stock Option Plan and the 2002
Non-Qualified Stock Option Plan as of the date of the Agreement.
2. Warrants to purchase 13,000 shares of the Company's Common Stock are
outstanding as of the date of the Agreement.