EXHIBIT 10.26
PERSISTENCE SOFTWARE, INC.
COMMON STOCK PURCHASE AGREEMENT
NOVEMBER 25, 2003
PERSISTENCE SOFTWARE, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is entered into
as of this 25th day of November, 2003 (the "Effective Date") by and between
Persistence Software, Inc., a Delaware corporation (the "Company"), and the
individuals and entities listed on SCHEDULE A hereto (each a "Purchaser" and
collectively the "Purchasers").
SECTION 1
SALE OF COMMON STOCK AND WARRANTS
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1.1 SALE OF COMMON STOCK. Subject to the terms and conditions hereof,
on the Closing Date (as defined below), the Company will issue and sell to each
Purchaser, and each Purchaser will purchase from the Company, that portion of
the Purchased Shares (as defined below) set forth opposite each such Purchaser's
name on SCHEDULE A attached hereto at the Stock Purchase Price (as defined
below). The term "Purchased Shares" shall mean 300,000 shares of Common Stock,
par value $0.001 per share, of the Company. The aggregate stock purchase price
(the "Stock Purchase Price") is One Million One Hundred Nineteen Thousand Sixty
($1,119,000). The Stock Purchase Price per Purchased Share issued is $3.73 per
share, which is the average closing sale price of the Company's Common Stock, as
reported by the Nasdaq SmallCap Market, over the 5 trading day period ending on
the date of this Agreement.
1.2 ISSUANCE OF WARRANTS. Subject to the terms and conditions hereof,
on the Closing Date, the Company will issue a warrant to purchase that portion
of the Warrant Shares (as defined below) of the Company (the "Warrant"), in
substantially the form attached as Exhibit A hereto, to each Purchaser as set
forth opposite each such Purchaser's name on SCHEDULE A attached hereto at the
Stock Purchase Price (as defined below). The exercise price per Warrant Share
shall be $4.48 (subject to adjustment for stock splits, stock dividends and the
like), which is the Stock Purchase Price multiplied by 1.2. The purchase price
of the Warrants shall be $0.001 per share (the "Warrant Purchase Price" and
together with the Stock Purchase Price, the "Purchase Price"). The Purchased
Shares and the Warrant Shares are sometimes referred to herein as the
"Securities." The aggregate number of Warrant Shares is 60,000 shares of Common
Stock of the Company (subject to adjustment for stock splits, stock dividends
and the like), which is equal to twenty percent (20%) of the Purchased Shares.
1.3 CLOSING DATE.
(a) The closing (the "Closing") of the purchase and sale of
the Purchased Shares and the Warrants shall be held at the offices of Heller,
Ehrman, White & McAuliffe, 2775 Sand Hill Road, Menlo Park, California at 1:45
p.m. on Monday, December 1st, or at such other time and place upon which the
Company and the Purchasers shall mutually agree. The date the Closing is
hereinafter referred to as the "Closing Date".
1.4 DELIVERY. At the Closing, the Company will deliver to each
Purchaser (i) a binding and irrevocable instruction letter to the Company's
transfer agent (U.S. Stock Transfer Corporation) instructing the transfer agent
to issue a stock certificate to such Purchaser representing the Purchased Shares
and (ii) the Warrant, against payment of the Purchase Price, by wire transfer of
immediately available funds.
1.5 LEGEND. The certificate or certificates for the Securities (and any
securities issued in respect of or exchange for the Securities) shall be subject
to a legend or legends restricting transfer under the Securities Act of 1933, as
amended (the "Securities Act") and referring to restrictions on transfer herein,
such legends to be substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH
RULE 144 OR RULE 701 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE COMPANY STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT.
The legends set forth above shall be removed and the Company shall
issue a certificate without such legends to the holder of any of the Securities
upon which it is stamped, if (a) the sale of such Security is registered under
the Securities Act, or (b) in connection with the resale of such Security, such
holder provides the Company with an opinion of counsel reasonably acceptable to
the Company, in form, substance and scope customary for opinions of counsel in
comparable transactions, to the effect that a public sale or transfer of such
Security may be made without registration under the Securities Act, or (c) the
Security can be sold to the public pursuant to Rule 144 under the Securities Act
("Rule 144") and a registered broker-dealer provides to the Company a customary
broker's Rule 144 letter, or (d) such holder provides the Company with
reasonable assurances that such Security can be sold under Rule 144(k) of the
Securities Act. Each Purchaser agrees to sell all Securities, including those
represented by a certificate(s) from which the legends have been removed,
pursuant to an effective registration statement or under an exemption from the
registration requirements of the Securities Act.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to each Purchaser that as of
the Effective Date:
2.1 ORGANIZATION. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware and is in good standing
under such laws. The Company has the requisite corporate power and authority to
own, lease and operate its properties and assets, and to carry on its business
as presently conducted and as proposed to be conducted. The Company is qualified
to do business as a foreign corporation in each jurisdiction in which the
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ownership of its property or the nature of its business requires such
qualification, except where failure to so qualify would not have a materially
adverse effect on the Company. The Company has no subsidiaries or equity
interest in any other entity other than Persistence Software Limited, a United
Kingdom Corporation, Persistence Software GmbH, a German corporation, and
Persistence Software Asia/Pacific Limited, a Hong Kong corporation, each of
which is duly organized and validly existing under the laws of the jurisdiction
of its incorporation, except where such failure does not have a materially
adverse effect on the Company.
2.2 CAPITALIZATION. The authorized capital stock of the Company
consists of 75,000,000 shares of Common Stock, $0.001 par value, of which at
October 31, 2003, 2,410,618 shares were issued and outstanding, and 5,000,000
shares of Preferred Stock, $0.001 par value, of which no shares of Preferred
Stock were issued and outstanding. All such issued and outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable. In
addition, as of October 31, 2003, (i) 133,513 shares of Common Stock were
issuable upon exercise of outstanding warrants, (ii) under the Company's 1997
Stock Plan, options to purchase 314,254 shares of Common Stock were outstanding
and 364,356 shares were available for future issuance (plus up to an additional
3,864 shares of Common Stock that may be transferred to the 1997 Stock Plan from
the Company's 1994 Stock Purchase Plan), and (iii) under the Company's 1999
Directors' Stock Option Plan, options to purchase 21,800 shares of Common Stock
were outstanding and 28,200 shares were available for future issuance. Except as
set forth in the preceding sentence, there are no other options, warrants,
conversion privileges or other contractual rights presently outstanding to
purchase or otherwise acquire any shares of the Company's capital stock or other
securities other than pursuant to the Company's 1994 Stock Purchase Plan and
1999 Employee Stock Purchase Plan. There are no preemptive rights or rights of
first refusal or similar rights with respect to the issuance and sale of the
Securities.
2.3 AUTHORIZATION. The Company has all corporate right, power and
authority to enter into this Agreement, the Warrants and the Registration Rights
Agreement substantially in the form attached hereto as Exhibit B (the
"Registration Rights Agreement," and collectively with this Agreement and the
Warrants (the "Transaction Documents") and to consummate the transactions
contemplated hereby and thereby. All corporate action on the part of the
Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance of the Transaction Documents by the Company,
and the authorization, sale, issuance and delivery of the Purchased Shares and
the Warrants have been taken. The Transaction Documents have been duly executed
and delivered by the Company and constitute legal, valid and binding obligations
of the Company enforceable in accordance with their respective terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies, and to limitations of public policy as they may apply
to the indemnification and contribution obligations pursuant to Section 1.7 of
the Registration Rights Agreement.
2.4 VALID ISSUANCE. The Purchased Shares, Warrants and Warrant Shares
are duly authorized, and when issued, sold and delivered in accordance with the
terms of the Transaction Documents, (i) will be duly and validly issued, fully
paid and nonassessable and free and clear of any taxes, liens, claims,
preemptive or similar rights or encumbrances imposed by or through the Company,
(ii) based in part upon the representations of the Purchasers in this Agreement,
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will be issued, sold and delivered in compliance with all applicable federal and
state securities laws, and (iii) the Purchased Shares (and upon payment of the
aggregate Exercise Price (as defined in the Warrants), the Warrant Shares) will
be entitled to all the rights, preferences and privileges of the shares of
Common Stock as set forth in the Company's Certificate of Incorporation. The
Warrant Shares have been duly reserved for issuance.
2.5 NO CONFLICT. The execution and delivery of the Transaction
Documents do not, and the consummation of the transactions contemplated hereby
and thereby will not, conflict with, or result in any violation of, breach or
default (with or without notice or lapse of time, or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or to a
loss of a material benefit, under, any provision of the Certificate of
Incorporation or Bylaws of the Company or any material agreement attached as an
exhibit to the Company's SEC Documents (as defined below), or any judgment,
order, decree, statute, law, ordinance, rule, listing requirement or regulation
applicable to the Company, its properties or assets, which conflict, violation,
default or right would have a material adverse effect on the business,
properties, prospects, financial condition or operations of the Company.
2.6 SEC DOCUMENTS. The Company has filed with the Securities and
Exchange Commission (the "SEC"): (i) the Company's Annual Report on Form 10-K
for the year ended December 31, 2002, (ii) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003, (iii)
the Company's Proxy Statement for the 2003 Annual Meeting of Stockholders, and
(iv) all Current Reports on Form 8-K required to be filed by the Company with
the Commission since December 31, 2002, copies of which have been made available
to the Purchasers (the "SEC Documents"). The SEC Documents have been duly and
timely filed, were in substantial compliance with the requirements of their
respective forms when filed, were complete and correct in all material respects
as of the dates at which the information was furnished, and contained (as of
such dates) no untrue statement of a material fact nor omitted to state a
material fact necessary in order to make the statements made therein in light of
the circumstances in which made not misleading; provided however that any
information set forth in any SEC Document that is a forward-looking statement as
defined in Rule 175(c) promulgated by the SEC under the Securities Act shall not
be deemed to contain an untrue statement of material fact as long as such
forward-looking statement was made at the time with a reasonable basis and in
good faith. Any statements made in any such SEC Documents that are or were
required to be updated or amended under applicable law have been so updated or
amended. The Company is not aware of any event occurring on or prior to the
Closing (other than the transactions effected hereby) that would require the
filing of, or with respect to which the Company intends to file, a Form 8-K
after the Closing.
2.7 GOVERNMENTAL CONSENTS, ETC. No consent, approval or authorization
of or designation, declaration or filing with any governmental authority or self
regulatory organization on the part of the Company is required in connection
with the valid execution and delivery of the Transaction Documents, or the
consummation of any other transaction contemplated hereby and thereby, except
such filings as may be required to be made with the SEC, Nasdaq, the National
Association of Securities Dealers, Inc. and with governmental authorities for
purposes of effecting compliance with the securities and blue sky laws in the
states in which the Securities are offered and/or sold (which compliance will be
effected in accordance with such laws).
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2.8 LITIGATION. Other than as set forth in the SEC Documents, there is
no action, suit, proceeding, claim, arbitration or investigation pending or as
to which the Company has received any notice of assertion against the Company,
which could reasonably be expected to result in a material adverse effect on the
business, properties, prospects, financial condition or operations of the
Company.
2.9 NO MATERIAL CHANGE. Subsequent to the date of the Quarterly Report
on Form 10-Q for the quarter ended September 30, 2003, the Company has not
incurred any material liabilities or obligations, direct or contingent, nor has
the Company purchased any of its outstanding capital stock, nor paid or declared
any dividends or entered into any transactions not in the ordinary course of
business; and there has been no change in the capital stock or consolidated long
term debt or short term obligations (other than in the ordinary course) of the
Company or a material adverse change in the business, properties, prospects,
financial condition or operations of the Company; provided, however that changes
in the ordinary course of business consistent with past practices, including but
not limited to the use of cash, variances in revenue and increases in
liabilities in the ordinary course of business consistent with past practices,
shall not be deemed to be a material adverse change.
2.10 NO MATERIAL DEFAULT. The Company is not in violation of or default
in any material respect under any provision of (a) its Certificate of
Incorporation or Bylaws, (b) any federal or state judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company, or (c)
any material agreement attached as an exhibit to the SEC Documents, except such
violations or defaults as would not alone or in the aggregate have a material
adverse effect on the business, properties, prospects, financial condition or
operations of the Company.
2.11 LISTING. The Company's Common Stock is currently traded on the
Nasdaq SmallCap Market; however, the Company has received a letter dated October
20, 2003 from the Nasdaq staff regarding the possible delisting of the Company's
Common Stock, a copy of which letter has been provided to the Purchasers.
2.12 DISCLOSURE. No representation or warranty of the Company contained
in this Agreement, the exhibits attached hereto or the SEC Documents, as updated
by the disclosure letter dated concurrently herewith (when read together and
taken as a whole), contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein in light of the circumstances under which they were made not
misleading.
2.13 SOLICITATION. Neither the Company nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, (i) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Securities or (ii)
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under any circumstances that would
require registration of the Securities under the Securities Act.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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Each Purchaser hereby represents and warrants to the Company as follows
as of the Effective Date:
3.1 INVESTMENT. The Purchaser is acquiring the Securities and the
Warrant for its own account, not as a nominee or agent and with no present
intention of selling or otherwise distributing any of the Securities. Purchaser
understands that, except as provided in the Registration Rights Agreement, the
Securities purchased by the Purchaser from the Company pursuant to this
Agreement have not been, and will not be, registered under the Securities Act by
reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent and the accuracy of the Purchaser's
representations as expressed herein.
3.2 ACCREDITED INVESTOR. The Purchaser is an "accredited investor" as
defined by Rule 501(a) of the Securities Act. The SEC Documents have been made
available to the Purchaser. The Purchaser has such business and financial
experience as is required to give it the capacity to protect its own interests
in connection with the purchase of the Securities.
3.3 AUTHORITY. The Transaction Documents have been duly executed and
delivered by the Purchaser and constitute legal, valid and binding obligations
of the Purchaser, enforceable in accordance with their respective terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies, and to limitations of public policy. The execution and
delivery of the Transaction Documents do not, and the consummation of the
transactions contemplated hereby and thereby will not, conflict with or result
in any violation of any obligation under any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Purchaser.
3.4 GOVERNMENT CONSENTS, ETC. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of the Purchaser is required in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Securities, or
the consummation of any other transaction contemplated hereby other than those
filings required the Exchange Act.
3.5 INVESTIGATION. The Purchaser has had a reasonable opportunity to
discuss the Company's business, management and financial affairs with the
Company's management.
3.6 STOCK OWNERSHIP. Neither the Purchaser nor any group of which it is
a member or to which it is related or with which it is affiliated, beneficially
owns (including the right to acquire or vote) any securities of the Company as
of the date hereof.
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SECTION 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
-------------------------------------------
The obligations of each Purchaser to the Company under this Agreement
are subject to the fulfillment, on or before the Closing, of each of the
following conditions, unless otherwise waived by such Purchaser:
4.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 2 shall be true and correct in all
material respects when made and 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 Closing Date.
4.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
4.3 NO ACTION, ETC. PENDING. There shall not at Closing be in effect
any action, order, or other proceeding, preventing, enjoining or otherwise
restraining the transactions contemplated by this Agreement.
4.4 NO LAW PROHIBITING OR RESTRICTING SALE. There shall not be in
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person to issue the Securities which
shall not have been obtained (except as otherwise referenced in this Agreement).
4.5 COMPLIANCE CERTIFICATE. The Company shall have delivered to the
Purchasers a certificate substantially in the form attached hereto as Exhibit C
executed by a duly authorized officer, dated the Closing Date, certifying to the
fulfillment of the conditions specified in Sections 4.1 and 4.2 and certifying
that, since the date of the Company's most recent filing with the SEC, there has
not been any material adverse change in the business, properties, prospects,
financial condition or operations of the Company; provided, however that changes
in the ordinary course of business consistent with past practices, including but
not limited to the use of cash, variance in revenues, and increases in
liabilities in the ordinary course of business consistent with past practices,
shall not be deemed to be a material adverse change.
4.6 RELATED AGREEMENTS. On or before the Closing, the Company and the
Purchasers shall have executed and delivered counterparts of the Registration
Rights Agreement in the form attached hereto as Exhibit B.
4.7 LEGAL OPINION. The Purchasers shall have received a legal opinion
from Heller Ehrman White & McAuliffe LLP, counsel to the Company, in a form
reasonably acceptable to the Purchasers.
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SECTION 5
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement are subject to the
fulfillment on or prior to the Closing of each of the following conditions,
unless otherwise waived by the Company:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Purchasers in Section 3 hereof shall be true and correct
in all material respects when made and 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 Closing Date.
5.2 PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.3 NO ACTION, ETC. PENDING. There shall not at Closing be in effect
any action, order or other proceeding, preventing, enjoining or otherwise
restraining the transactions contemplated by this Agreement.
5.4 NO LAW PROHIBITING OR RESTRICTING SUCH SALE. There shall not be in
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person which shall not have been
obtained to issue the Securities (except as otherwise provided in this
Agreement).
5.5 MINIMUM INVESTMENT. Unless otherwise waived by the Company, the
Purchasers shall have purchased Purchased Shares with an aggregate Stock
Purchase Price of at least $1,500,000.
SECTION 6
POST-CLOSING COVENANTS OF THE COMPANY
-------------------------------------
6.1 CURRENT REPORT. As soon as reasonably practicable, the Company
shall file with the SEC on Form 8-K, a pro forma balance sheet (reflecting the
effect of this Agreement and the transactions contemplated hereby) for the
period ended September 30, 2003, that shows compliance with the Nasdaq SmallCap
Market stockholders equity maintenance listing requirements.
SECTION 7
MISCELLANEOUS
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7.1 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
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7.2 FILINGS. The parties shall consult and fully cooperate with and
provide assistance to each other in preparing and filing as soon as practicable
all consents, approvals and authorizations reasonably necessary or advisable to
be made or obtained from any third-party or governmental agency in order to
consummate the transactions contemplated hereby.
7.3 SURVIVAL. The representations and warranties of the Company and the
Purchasers contained in or made pursuant to this Agreement shall terminate six
(6) months following the Closing. The covenants in Section 6 shall survive for
the terms stated therein.
7.4 SUCCESSORS AND ASSIGNS. Neither party may assign its rights or
obligations under this Agreement, except with the prior written consent of the
other party. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their permitted successors and assigns.
7.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Warrants, the
Registration Rights Agreement and the other documents delivered pursuant hereto
or contemplated hereby constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede all prior agreements and understandings among the parties
relating to the subject matter hereof. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the Purchasers
holding a majority of the Purchased Shares. Any amendment or waiver effected in
accordance with this Section 7.5 shall be binding upon the Purchasers and each
transferee of the Securities, each future holder of all such Securities, and the
Company.
7.6 NOTICES AND DATES. Unless otherwise provided herein, any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier and
addressed to the party to be notified at such party's address as set forth
below, or to the Company at its address specified on its signature page hereto,
or as subsequently modified by written notice. In the event that any date
provided for in this Agreement falls on a Saturday, Sunday or legal holiday,
such date shall be deemed extended to the next business day.
If to the Company: Persistence Software, Inc.
1720 S. Amphlett Blvd, 3rd Floor
San Mateo, CA 94402
Attn: Chief Executive Officer
With a copy to counsel for the Company:
Heller Ehrman White &McAuliffe LLP
Venture Law Group
2775 Sand Hill Road
Menlo Park, CA 94025
Attn: Laurel Finch
Fax: 650.324.0638
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If to Purchasers: to the address listed on Schedule A for each
Purchaser
With a copy to counsel for the Purchasers:
David Greenberg
60 E. Sir Francis Drake Blvd., Suite 206
Larkspur, CA 94939
fax: 415-925-8875
7.7 BROKERS.
(a) Other than Security Research Associates, Inc. ("SRA")
pursuant to an engagement letter dated November 12, 2003, the Company has not
engaged, consented to or authorized any broker, finder or intermediary to act on
its behalf, directly or indirectly, as a broker, finder or intermediary in
connection with the transactions contemplated by this Agreement. The Company
hereby agrees to indemnify and hold harmless the Purchasers from and against all
fees, commissions or other payments owing to any party acting on behalf of the
Company hereunder other than SRA.
(b) No Purchaser has engaged, consented to or authorized any
broker, finder or intermediary to act on its behalf, directly or indirectly, as
a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. Each Purchaser hereby agrees to indemnify and
hold harmless the Company from and against all fees, commissions or other
payments owing to any party acting on behalf of the Purchaser hereunder.
7.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
7.9 COSTS AND EXPENSES. Each party hereto shall pay its own costs and
expenses incurred in connection herewith, including the fees of its counsel,
auditors and other representatives, whether or not the transactions contemplated
herein are consummated.
7.10 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall create or
be deemed to create any rights in any person or entity not a party to this
Agreement.
7.11 PUBLICITY. The Purchasers and the Company shall not issue any
public statement concerning the transactions contemplated by this Agreement
without the reasonable prior written consent of the parties named in such public
statement; provided, however, that the parties may disclose the transaction or
the terms hereof or thereof from time to time without the approval of the party
whose name is disclosed if (i) such approval has been requested and not received
and such party concludes (after consulting with counsel) that it is required by
law to disclose the transaction or the terms thereof or (ii) to the extent that
similar disclosure has been previously approved pursuant to this Section 7.11.
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7.12 CAPTIONS AND HEADINGS. The captions and headings used herein are
for convenience and ease of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
7.13 COUNTERPARTS. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed an original for all purposes.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be executed by their respective authorized officers as of
the date first written above.
PERSISTENCE SOFTWARE, INC.
By: /s/ Christopher T. Keene
--------------------------------------
Its: President and Chief Executive Officer
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be executed by their respective authorized officers as of
the date first written above.
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[Legal name of Purchaser -- print]
By:
------------------------------
Name:
Title:
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
SCHEDULE A
SCHEDULE OF PURCHASERS
- -------------------------------------- ---------- ------------ -----------
NAME OF PURCHASER PORTION OF AGGREGATE PORTION OF
PURCHASED PURCHASE WARRANT
SHARES PRICE SHARES
- -------------------------------------- ---------- ------------ -----------
Clarion Capital Corporation 105,000 $391,650 21,000
Ohio Savings Plaza, Suite 51D
1801 East Ninth Street
Cleveland, Ohio 44114
- -------------------------------------- ---------- ------------ -----------
Roy Rogers ttee UTD 9/28/89 33,000 $123,090 6,600
FBO Roy & Ruth Rogers Unit Trust
Roy Rogers ttee UTD 1/21/81 67,000 $249,910 13,400
FBO The Rogers Family Trust
27927 Briones Way
Los Altos Hills, CA 94022
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Gerald S Casilli & Jeanne L Casilli 40,000 $149,200 8,000
ttees UTD 10/15/96 FBO The Casilli
Revocable Trust
2905 Woodside Road
Woodside, CA 94062
- -------------------------------------- ---------- ------------ -----------
John Lee 40,000 $149,200 8,000
555 Montgomery Street
San Francisco, CA 94111
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Howard Miller & Barbara Miller ttees 15,000 $55,950 3,000
UTD 9/30/87 FBO The Miller Trust
13 Edgewater Road
Belvedere, CA 94920
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TOTAL 300,000 $1,119,000 60,000
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EXHIBIT A
WARRANT
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
PERSISTENCE SOFTWARE, INC.
COMPLIANCE CERTIFICATE
The undersigned, Christopher T. Keene, hereby certifies as follows:
1. The undersigned is the duly elected President and Chief Executive
Officer of Persistence Software, Inc., a Delaware corporation (the "Company").
2. The representations and warranties of the Company set forth in
Section 2 of the Common Stock Purchase Agreement dated November 25, 2003 (the
"Agreement") are true and correct in all material respects as though made on and
as of the date hereof.
3. The Company has performed and complied with all covenants,
agreements, obligations and conditions contained in the Agreement to be
performed by the Company on or prior to the Closing Date.
4. Since the date of the Company's most recent filing with the SEC,
there has not been any material adverse change in the assets, liabilities,
financial condition, or operations of the Company; provided, however that
changes in the ordinary course of business consistent with past practices,
including but not limited to the use of cash, variance in revenues, and
increases in liabilities in the ordinary course of business consistent with past
practices, shall not be deemed to be a material adverse change.
The undersigned has executed this Certificate this 1st day of December,
2003.
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Christopher T. Keene
President and Chief Executive Officer