EXHIBIT 4.2
YES! ENTERTAINMENT CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
AUGUST 29, 1997
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY
ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR
DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE
AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTS
PAGE
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES....................... 1
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES................. 1
2.1 Sale of Shares............................................ 1
SECTION 3. CLOSING AND DELIVERY...................................... 1
3.1 Closing................................................... 1
3.2 Delivery of the Common Stock and Receipt of Cancellation
of Indebtedness at the Closing............................ 2
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.. 2
4.1 Organization and Qualification............................ 2
4.2 Due Execution, Delivery and Performance of the Agreements. 2
4.3 Issuance, Sale and Delivery of the Shares................. 2
4.4 Additional Information.................................... 3
4.5 No Material Change........................................ 3
4.6 SEC Reports............................................... 3
4.7 Listing of Shares......................................... 4
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER 4
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.... 5
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING........ 5
7.1 Receipt of Payment........................................ 5
7.2 Representations and Warranties Correct.................... 5
7.3 Covenants Performed....................................... 5
SECTION 8. CONDITIONS TO THE PURCHASER'S OBLIGATIONS AT THE CLOSING.. 5
8.1 Representations and Warranties Correct.................... 5
8.2 Covenants Performed....................................... 6
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT....................................................... 6
9.1 Registration Procedures and Expenses...................... 6
.......................................................... 6
9.2 Transfer of Shares After Registration..................... 6
9.3 Indemnification........................................... 7
9.4 Termination of Conditions and Obligations................. 8
9.5 Information Available..................................... 8
9.6 Changes in Purchaser Information.......................... 9
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 10. BROKER'S FEE.............................................. 9
SECTION 11. NOTICES................................................... 9
SECTION 12. MISCELLANEOUS............................................. 10
12.1 Waivers and Amendments.................................... 10
12.2 Headings.................................................. 10
12.3 Severability.............................................. 10
12.4 Governing Law............................................. 10
12.5 Counterparts.............................................. 10
12.6 Successors and Assigns.................................... 10
12.7 Entire Agreement.......................................... 10
ATTACHMENTS:
Appendix I - Stock Certificate and Warrant Questionnaire
Appendix II - Registration Statement Questionnaire
Appendix III - Purchaser's Certificate of Subsequent Sale
ii.
COMMON STOCK
PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 29th day of August, 1997 by
and among YES! ENTERTAINMENT CORPORATION, a Delaware corporation with its
principal place of business at 3875 Hopyard Road, Suite 375, Pleasanton,
California 94588 (the "Company") and MACHINA, INC. (the "Purchaser").
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Purchaser hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has or before the Closing (as defined
below) will have authorized the sale and issuance of two hundred thousand
(200,000) shares of its Common Stock, par value $0.001 per share (the "Common
Stock").
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
2.1 SALE OF SHARES. At the Closing (as defined in Section 3), the Company
will sell to Purchaser, and Purchaser will purchase from the Company, at a
purchase price of three dollars and seventy-five cents ($3.75) per share of
Common Stock, two hundred thousand (200,000) shares of Common Stock. The shares
of Common Stock sold hereunder may be referred to herein as the "Shares."
2.2 SEPARATE AGREEMENT. Concurrently with the execution and delivery of
this Agreement, the Company is entering into other agreements identical with
this Agreement (except as to the identity of the purchaser and the number of
shares of Common Stock to be purchased) with other purchasers. The Company's
agreements with you and with each of such other purchasers are separate
agreements, and the sales of shares of Common Stock to you and to each such
other purchasers are separate sales. The aggregate number of shares of Common
Stock to be issued in this and such other agreements shall not exceed a total of
eight hundred and thirty-one thousand (831,000).
SECTION 3. CLOSING AND DELIVERY.
3.1 CLOSING. The Closing of the purchase and sale of the Shares pursuant
to this Agreement (the "Closing") shall be held on August 29, 1997 at the
offices of Cooley Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo
Alto, California, or on such other date and place as may be agreed to by the
Company and the Purchaser.
1.
The Company shall give at least three (3) business days prior written
notice to the Purchaser, in a manner provided for in Section 11 hereof, of the
date, time and location of the Closing. At or prior to the Closing, Purchaser
shall execute any related agreements or other documents required to be executed
hereunder, dated as of the date of the Closing (the "Closing Date").
3.2 DELIVERY OF THE COMMON STOCK AND RECEIPT OF CANCELLATION OF
INDEBTEDNESS AT THE CLOSING. At the Closing, the Company shall deliver to
Purchaser stock certificates registered in the name of Purchaser, or in such
nominee name(s) as designated by Purchaser, representing the number of shares of
Common Stock to be purchased by Purchaser at the Closing and the Purchaser shall
deliver confirmation of cancellation of indebtedness in the full amount of the
purchase price for the Shares. The name(s) in which the stock certificates are
to be issued to the Purchaser are set forth in the Stock Certificate
Questionnaire in the form attached hereto as Appendix I, as completed by
Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents and warrants to, and covenants with, the
Purchaser as follows:
4.1 ORGANIZATION 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 conduct its
business as it is currently being conducted.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company's execution, delivery and performance of this Agreement have been duly
authorized by all requisite corporate action by the Company, and will not
violate any law or the Company's Certificate of Incorporation or Bylaws of the
Company or any provision of any material indenture, mortgage, agreement,
contract or other material instrument to which the Company is a party or by
which the Company or any of its properties or assets is bound as of the date
hereof, or result in a breach of or constitute (upon notice or lapse of time or
both) a default under any such indenture, mortgage, agreement, contract or other
material instrument or result in the creation or imposition of any lien,
security interest, mortgage, pledge, charge or other encumbrance, of any
material nature whatsoever, upon any properties or assets of the Company. Upon
the execution and delivery by the Company, and assuming the valid execution and
delivery of this Agreement by the Purchaser, this Agreement will constitute a
valid and binding obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Company in Section 9.3 hereof may be
legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. When issued and paid for
in accordance with this Agreement, the Shares will be validly issued and
outstanding, fully paid
2.
and non-assessable, and will be issued in compliance with all applicable federal
and state securities laws.
4.4 ADDITIONAL INFORMATION. The information contained in the following
documents, which the Company has furnished to the Purchaser, or will furnish if
requested by the Purchaser prior to the Closing, were true and correct in all
material respects as of their respective filing dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (without exhibits unless specifically requested);
(b) the Company's Quarterly Reports on Form 10-Q required to be filed
with the SEC for the three-month periods ended March 31, 1997 and June 30, 1997
(without exhibits unless specifically requested);
(c) the Company's Current Reports on Form 8-K filed with the SEC since
December 31, 1996, if any; and
(d) Notice of Annual Meeting and Proxy Statement for the Company's
1997 Annual Meeting of Stockholders.
4.5 NO MATERIAL CHANGE. As of the date hereof, there has been no material
adverse change in the financial condition or results of operations of the
Company since June 30, 1997.
4.6 SEC REPORTS.
(a) The Company has filed with the Securities and Exchange Commission
(the "SEC" or the "Commission") all reports ("SEC Reports") required to be filed
by it under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). All of the SEC Reports filed by the Company comply in all material
respects with the requirements of the Exchange Act. None of the SEC Reports
contains, as of the respective dates thereof, any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All financial statements contained in
the SEC Reports have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the period indicated
("GAAP"). Each balance sheet presents fairly in accordance with GAAP the
financial position of the Company as of the date of such balance sheet, and each
statement of operations, of stockholders' equity and of cash flows presents
fairly in accordance with GAAP the results of operations, the stockholders'
equity and the cash flows of the Company for the periods then ended.
(b) No event has occurred since June 30, 1997 requiring the filing of
an SEC Report that has not heretofore been filed and furnished to the Purchaser.
3.
4.7 LISTING OF SHARES. The Company shall, within a reasonable time after
the Closing Date, file with the Nasdaq National Market an additional shares
listing application covering such Shares that shall have not been previously
covered by a Nasdaq additional shares listing. For so long as the Company is
obligated to keep in effect the Registration Statement provided under Section 9
hereof, the Company will use commercially reasonable efforts to maintain the
listing of Shares on the Nasdaq National Market or a national securities
exchange, as defined in the Exchange Act.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
The Purchaser represents and warrants to and covenants with the Company
that:
(a) the Purchaser, taking into account the personnel and resources it
can practically bring to bear on the purchase of the Shares contemplated hereby,
is knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company, and has requested, received, reviewed and
considered, all information the Purchaser deems relevant in making an informed
decision to purchase the Shares.
(b) the Purchaser is acquiring the Shares being acquired by the
Purchaser pursuant to this Agreement in the ordinary course of its business and
for its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution of such Shares, except in compliance
with Section 5(c).
(c) the Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act of 1933, as amended (the "Securities Act"), applicable
blue sky laws, and the rules and regulations promulgated thereunder.
(d) the Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire and the Registration Questionnaire, attached hereto as
Appendix I and Appendix II, respectively, for use in preparation of the
Registration Statement to be filed by the Company, and the answers thereto are
true and correct to the best knowledge of the Purchaser as of the date hereof
and will be true and correct as of the effective date of the Registration
Statement (provided that the Purchaser shall be entitled to update such
information by providing notice thereof to the Company prior to the effective
date of such Registration Statement).
(e) the Purchaser has, in connection with its decision to purchase the
Shares, relied with respect to the Company and its affairs solely upon the
information delivered to Purchaser as described in Sections 4.4 and 5(a) above
and the representations and warranties of the Company contained herein.
4.
(f) the Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
(g) the Purchaser has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of this
Agreement by the Purchaser, this Agreement shall constitute a valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Purchaser in Section 9.3 hereof may be legally unenforceable.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein and in the certificates for the Shares shall survive the
execution of this Agreement, the delivery to the Purchaser of the Shares and the
payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING. The
Company's obligation to complete the sale and issuance of the Shares and deliver
shares of Common Stock to the Purchaser shall be subject to the following
conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment in the
form of cancellation of indebtedness confirmed by Purchaser, in the full amount
of the purchase price for the Shares.
7.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
7.3 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by the Purchaser on or prior to the Closing
Date shall have been performed or complied with in all material respects.
SECTION 8. CONDITIONS TO THE PURCHASER'S OBLIGATIONS AT THE CLOSING. The
Purchaser's obligation to accept delivery of and to pay for the Shares shall be
subject to the following conditions to the extent not waived by the Purchaser:
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
5.
8.2 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by the Company shall have been performed or
complied with in all material respects.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) As soon as practicable following the Closing Date, the Company
shall prepare and file with the Commission a registration statement in order to
register with the Commission the sale by Purchaser, from time to time, of the
Shares (a "Registration Statement") and shall use commercially reasonable
efforts to have such Registration Statement declared effective. The Company
shall use commercially reasonable efforts to keep such Registration Statement
continuously effective under the Securities Act until the date which is three
years after the date that such Registration Statement is declared effective by
the Commission or such earlier date when all the Shares covered by such
Registration Statement have been sold pursuant to Rule 144 without volume
restrictions as determined by counsel to the Company pursuant to a written
opinion letter addressed to the Purchaser, to such effect.
(b) In order to facilitate the sale or other disposition of all or any
of the shares by the Purchaser, the Company shall furnish to the Purchaser with
respect to the Shares registered under the Registration Statement such number of
copies of prospectuses and preliminary prospectuses as the Purchaser reasonably
requests in conformity with the requirements of the Securities Act.
(c) The Company shall file documents required of the Company for
normal blue sky clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented.
(d) Other than fees and expenses, if any, of counsel or other advisers
to the Purchaser, which fees and expenses shall be borne by the Purchaser, the
Company shall bear all expenses (exclusive of underwriting discounts and
commissions) in connection with the procedures in paragraphs (a) through (c) of
this Section 9.1.
9.2 TRANSFER OF SHARES AFTER REGISTRATION. The Purchaser agrees that the
Purchaser will not effect any disposition of the Shares that would constitute a
sale within the meaning of the Securities Act, except:
(a) pursuant to the Registration Statement, in which case the
Purchaser shall submit the certificates evidencing the Shares to the transfer
agent accompanied by a separate
6.
"Purchaser's Certificate" (A) in the form of Appendix III attached hereto, (B)
executed by the Purchaser or by an officer of, or other authorized person
designated by, the Purchaser, and (C) to the effect that (1) the Shares have
been sold in accordance with the Registration Statement and (2) the requirement
of delivering a current prospectus has been satisfied; or
(b) in a transaction exempt from registration under the Securities
Act, in which case the Purchaser shall, prior to effecting such disposition,
submit to the Company an opinion of counsel in form and substance reasonably
satisfactory to the Company to the effect that the proposed transaction is in
compliance with the Securities Act.
9.3 INDEMNIFICATION. As used in this Section 9.3 the following terms
shall have the following respective meanings:
(a) "Selling Stockholder" shall mean the Purchaser and any transferee
of the Purchaser who is entitled to resell Shares pursuant to the Registration
Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 9.1; and
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement on or after the effective date of the Registration Statement, or arise
out of any failure by the Company to fulfill any undertaking included in the
Registration Statement and the Company will reimburse such Selling Stockholder
for any reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim; provided,
however, that the Company shall not be liable to such Selling Stockholder in any
such case to the extent that such loss, claim, damage or liability arises out
of, or is based upon, an Untrue Statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in
preparation of the Registration Statement, or the failure of such Selling
Stockholder to comply with the covenants and agreements contained in Section 9.1
or 9.2 hereof respecting sale of the Shares or any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
the Selling Stockholder prior to the pertinent sale or sales by the Selling
Stockholder.
7.
Purchaser agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 9.1 or 9.2 hereof
respecting sale of the Shares, or any Untrue Statement contained in the
Registration Statement on or after the effective date thereof if such Untrue
Statement was made in reliance upon and in conformity with written information
furnished by or on behalf of the Purchaser specifically for use in preparation
of the Registration Statement, and the Purchaser will reimburse the Company (or
such officer, director or controlling person.)
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
9.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Section 5(c) or this Section 9 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares when such
Shares shall have been sold or otherwise disposed of in accordance with the
intended method of disposition set forth in the Registration Statement covering
such Shares or at such time as an opinion of counsel satisfactory to the Company
shall have been rendered to the effect that such conditions are not necessary in
order to comply with the Securities Act.
9.5 INFORMATION AVAILABLE. So long as the Registration Statement is
effective covering the resale of Shares owned by the Purchaser, the Company will
furnish to the Purchaser;
(a) such information as the Company supplies to its stockholders;
8.
(b) upon the written request of the Purchaser, such reports filed by
the Company pursuant to the Exchange Act not otherwise provided under Section
9.5(a); and
(c) upon the reasonable request of the Purchaser, an adequate number
of copies of the prospectuses to supply to any other party requiring such
prospectuses.
9.6 CHANGES IN PURCHASER INFORMATION. The Purchaser agrees to promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Purchaser or the Purchaser's plan of
distribution set forth in such Registration Statement.
SECTION 10. BROKER'S FEE. The Company and the Purchaser hereby
represent that there are no brokers or finders entitled to compensation in
connection with the sale of the shares of Common Stock, and shall indemnify each
other for any such fees for which they are responsible.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall be
deemed given when so sent in the case of facsimile transmission, or when so
received in the case of mail or courier, and addressed as follows:
(a) if to the Company, to:
YES! Entertainment Corporation
3875 Hopyard Road
Pleasanton, CA 94588
Attention: Donald Kingsborough, President and CEO
Facsimile: (510) 734-0997
with a copy so mailed to:
Cooley Godward LLP
Five Palo Alto Square, 4th Floor
Palo Alto, California 94306
Attention: Patrick Pohlen, Esq.
Facsimile: (650) 857-0663
or to such other person at such other place as the Company shall
designate to the Purchaser in writing; and
(b) if to the Purchaser, at the address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
9.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
12.2 HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12.3 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
12.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
12.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
12.7 ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
10.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY:
YES! ENTERTAINMENT CORPORATION
By: __________________________
Donald Kingsborough
Chief Executive Officer
Address: 3875 Hopyard Road
Pleasanton, CA 94588
Facsimile: (510) 734-0997
PURCHASER:
MACHINA, INC.
By: ______________________________
Name: _______________________
Title: ______________________
Address: _______________________
_______________________
Facsimile: _______________________
COMMON STOCK PURCHASE AGREEMENT