EXHIBIT 10.1
PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is made and
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entered into as of November 28, 2001 by and between Sanshin Electronics Co.,
Ltd., a corporation organized under the laws of Japan ("Purchaser"), and Sonic
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Solutions, a California corporation (the Company").
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Background
A. The Board of Directors of the Company has adopted the Certificate of
Determination (the "Certificate") in the form attached hereto as Exhibit A
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which, among other matters, establishes the rights, preferences, and privileges
of the Company's Series E Preferred Stock (the "Series E Preferred Stock").
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B. The Company desires to sell up to 250,000 shares of Preferred Stock
to the Purchaser, and the Purchaser desires to purchase up to 250,000 shares of
Series E Preferred Stock from the Company, subject to the terms and conditions
set forth in this Agreement.
Agreement
1. PURCHASE AND SALE OF PREFERRED STOCK
1.1. Issuance of Preferred Stock. Subject to the terms and conditions of
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this Agreement, the Company shall issue and sell to the Purchaser
and the Purchaser shall purchase from the Company, at the purchase
price of $4.00 per share, a total of 250,000 shares of Series E
Preferred Stock (the "Shares").
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1.2. Closing. The closing of the purchase and sale of the Shares shall
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take place at the offices of Heller Ehrman White & McAuliffe LLP,
275 Middlefield Road, Menlo Park, California 94025-3506, on
December 3, 2001, at 9 a.m. (the "Closing") or at such other place
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and time as the Company and the Purchaser mutually agree. The date
of the Closing shall constitute the "Closing Date." At the Closing,
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the Company will deliver to the Purchaser a certificate
representing the Shares which the Purchaser is obtaining and an
executed counterpart of the Transactional
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Agreements. At the Closing, the Purchaser will deliver to the
Company an executed counterpart of the Transactional Agreements
and the purchase price of the Shares by wire transfer or by a
check payable to the Company.
2. DEFINITIONS. For the purposes of this Agreement, the definitions below
shall be applicable.
2.1. "Act" shall be as defined in Section 3.6.
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2.2. "Agreement" shall be as defined in the opening paragraph of this
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Agreement.
2.3. "Purchaser" shall be as defined in the opening paragraph of this
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Agreement.
2.4. "Certificate" shall be as defined in the Background section of
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this Agreement.
2.5. "Company" shall be as defined in the opening paragraph to this
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Agreement.
2.6. "Company's Damages" shall be as defined in Section 5.1.
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2.7. "SEC Reports" shall be as defined in Section 4.6.
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2.8. "Series E Preferred" shall be as defined in the Background
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section of this Agreement.
2.9. "Shares" shall be as defined in Section 1.1.
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2.10. "Closing" shall be as defined in Section 1.2.
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2.11. "Closing Date" shall be as defined in Section 1.2.
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2.12. "Damages" shall be as defined in Section 5.2.
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2.13. "Established Damages" shall be as defined in Section 5.3.
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2.14. "Exchange Act" shall be as defined in Section 4.6.
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2.15. "Indemnitee" shall be as defined in Section 5.3.
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2.16. "Indemnitor" shall be as defined in Section 5.3.
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2.17. "Liquidation Event" shall be as defined in the Certificate.
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2.18. "Notice of Claim" shall be as defined in Section 5.3.
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2.19. "Resolution Period" shall be as defined in Section 5.4.
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2.20. "SEC" shall be as defined in Section 4.6.
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2.21. "Purchaser's Damages" shall be as defined in Section 5.2.
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2.22. "Third Party Claims" shall be as defined in Section 5.4.
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2.23. "Transactional Agreements" shall mean this Agreement and the
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Registration Rights Agreement between the Company and the
Purchaser dated as of the Closing Date.
2.24. All references to currency herein are to lawful money of the
United States of America, unless otherwise specified.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company that:
3.1. Organization and Authority. The Purchaser (i) is a corporation
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duly organized, validly existing under the laws of Japan; (ii)
has all necessary corporate power to own and lease its
properties, to carry on its business as now being conducted and
to enter into and perform the Transactional Agreements; and
(iii) is qualified to do business in all jurisdictions in which
the failure to so qualify would have a material adverse effect
on its business.
3.2. Authority Relating to the Transactional Agreements; No Violation
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of Other Instruments.
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(a) The execution and delivery of the Transactional
Agreements and the performance of the Transactional
Agreements by Purchaser have been duly authorized by all
necessary corporate action on the part of Purchaser and,
assuming execution of the Transactional Agreements by the
Company, the Transactional Agreements will constitute
legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with
their terms, subject as to enforcement: (i) to
bankruptcy, insolvency, reorganization, arrangement,
moratorium and other laws of general applicability
relating to or affecting creditors' rights; and (ii) to
general principles of equity, whether such enforcement is
considered in a proceeding in equity or at law.
(b) Neither the execution of the Transactional Agreements nor
the performance of the transactions contemplated thereby
by Purchaser will: (i) conflict with or result in any
breach or violation of the terms of any decree, judgment,
order, law or regulation of any court or other
governmental body now in effect applicable to the
Purchaser or any
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federal, state or local law, rule or regulation now in
effect applicable to the Purchaser (including without
limitation any law for the protection of employees); (ii)
violate or conflict with any provision of Purchaser's
Articles of Incorporation or Bylaws or constituent
documents.
(c) No consent from any third party and no consent, approval
or authorization of, or declaration, filing or
registration with, any government or regulatory authority
is required to be made or obtained by Purchaser in order
to permit the execution, delivery or performance of the
Transactional Agreements by Purchaser, or the
consummation of the transactions contemplated by the
Transactional Agreements, except such consents,
approvals, authorizations, declarations, filings or
registrations the failure of which to obtain or make
could not reasonably be expected to have a material
adverse effect on the transactions contemplated by this
Agreement.
3.3. Compliance with Law. Purchaser is not in violation of any
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decree, judgment, order, law or regulation of any court or other
governmental body (including without limitation, applicable
environmental protection legislation and regulations, equal
employment and civil rights regulations, legislation related to
wages, hours and the payment of social security taxes and
occupational health and safety legislation), which violation
could reasonably be expected to have a material adverse effect
on the assets or business of the Purchaser.
3.4. Brokers and Finders. The Purchaser shall pay or satisfy any
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commission, fee or payment required to be made to any broker or
finder retained by the Purchaser in connection with the
transactions contemplated by the Transactional Agreements. The
Purchaser will indemnify and hold the Company harmless against
all claims for brokers' or finders' fees made or asserted by any
party claiming to have been employed by the Purchaser or any
shareholder, director, officer, employee or agent of the
Purchaser and all costs and expenses (including the reasonable
fees of counsel) of investigating and defending such claims.
3.5. Investment. This Agreement is made with the Purchaser in
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reliance upon its representation to the Company, hereby
confirmed by the execution of this Agreement by the Purchaser,
that the Shares will be acquired for investment for the
Purchaser's own account, not as a nominee or agent, and not with
a view to the sale or distribution of any part thereof, and that
the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing any of the Shares.
By executing this Agreement, the Purchaser further represents
that it has no contract, undertaking, agreement, or arrangement
with any person to sell, transfer, or grant participation to
such person or to any third person, with respect to any of the
Shares.
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3.6. Unregistered Securities. The Purchaser must bear the economic
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risk of investment for an indefinite period of time because the
Shares have not been registered under the Securities Act of
1933, as amended (the "Act") and therefore cannot and will not
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be sold unless they are subsequently registered under the Act or
an exemption from such registration is available, if applicable.
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 securities purchased hereunder except in compliance with
the Act, applicable blue sky laws, and the rules and regulations
promulgated thereunder.
3.7. Experience. The Purchaser represents that: (i) it has such
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knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of its prospective
investment in the Shares; (ii) it believes it has received all
the information it has requested from the Company and considers
necessary or appropriate for deciding whether to obtain the
Shares; (iii) it has had the opportunity to discuss the
Company's business, management, and financial affairs with the
Company's management, (iv) it has the ability to bear the
economic risks of its prospective investment; and (v) it is
able, without materially impairing its financial condition, to
hold the Shares for an indefinite period of time and to suffer a
complete loss on its investment.
3.8. Accredited Investor. The Purchaser presently qualifies as an
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"accredited investor" within the meaning of Regulation D of the
rules and regulations promulgated under the Act.
3.9. Legend. The Purchaser acknowledges that the Shares shall bear
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the following legend and any other legend deemed reasonably
necessary by the Company:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH
SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL FOR THE COMPANY, REGISTRATION UNDER THE
ACT IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT.
3.10. Accuracy of Documents and Information. The copies of
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instruments, agreements and other documents set forth or
referenced in Schedules or Exhibits to the Transactional
Agreements furnished by the Purchaser to the Company and the
copies of instruments, agreements and other documentation
specifically required to be furnished by the Purchaser to the
Company pursuant to the Transactional
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Agreements are and will conform to the original of such
instruments, agreements and documents in all material respects.
No representations or warranties made by Purchaser in the
Transactional Agreements, nor any Schedule or Exhibit attached
thereto nor any document or certificate required to be provided
by the Purchaser directly to the Company hereunder, contains any
untrue statement of a material fact, or omits to state a
material fact necessary to make the statements or facts
contained herein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the disclosure schedules attached hereto as
Schedule 4 and incorporated herein by this reference, the Company hereby
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represents and warrants to the Purchaser that:
4.1. Organization and Authority. The Company: (i) is a corporation
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duly organized, validly existing and in good standing under the
laws of the State of California; (ii) has all necessary
corporate power to own and lease its properties, to carry on its
business as described in the SEC Reports (the "Company's
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Business") and to enter into and perform the Transactional
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Agreements; and (iii) is qualified to do business in all
jurisdictions in which the failure to so qualify would have a
material adverse effect on the Company's Business.
4.2. Authority Relating to the Transactional Agreements; No Violation
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of Other Instruments.
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(a) The execution and delivery of the Transactional
Agreements and the performance of the Transactional
Agreements by the Company has been duly authorized by all
necessary corporate action on the part of the Company
and, assuming execution of the Transactional Agreements
by the Purchaser, the Transactional Agreements will
constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in
accordance with their terms, subject as to enforcement:
(i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights;
and (ii) to general principles of equity, whether such
enforcement is considered in a proceeding in equity or at
law.
(b) Neither the execution of the Transactional Agreements nor
the performance of the transactions contemplated thereby
by the Company will: (i) conflict with or result in any
breach or violation of the terms of any decree, judgment,
order, law or regulation now in effect applicable to the
Company or any federal, state or local law, rule or
regulation now in effect applicable to the Company, (ii)
materially conflict with, or result in,
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with or without the passage of time or the giving of
notice, any material breach of any of the terms,
conditions and provisions of, or constitute a material
default under, or result in the creation of any material
lien, charge, or encumbrance upon any of its assets
pursuant to, any indenture, mortgage, lease, agreement or
other instrument to which the Company is a party or by
which it or any of the assets are bound; (iii) permit the
acceleration of the maturity of any material indebtedness
of the Company or of any other person secured by its
assets or other property; or (iv) violate or conflict
with any provision of the Articles of Incorporation or
Bylaws of the Company.
(c) No consent from any third party and no consent, approval
or authorization of, or declaration, filing or
registration with, any governmental or regulatory
authority is required to be made or obtained by the
Company in order to permit the execution, delivery or
performance of the Transactional Agreements by the
Company, or the consummation of the transactions
contemplated by the Transactional Agreements, except such
consents, approvals, authorizations, declarations,
filings or registrations the failure of which to obtain
or make could not reasonably be expected to have a
material adverse effect on the transactions contemplated
by this Agreement.
4.3. Validity of Shares. The Shares, when issued, sold and delivered
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in accordance with the terms and for the consideration expressed
in this Agreement, will be duly and validly authorized and
issued (including, without limitation, issued in compliance with
applicable federal and state securities laws) and fully paid and
non-assessable; provided, however, that such Shares shall be
subject to restrictions on transfer under state and/or federal
securities laws. The Shares are not subject to any preemptive
rights or rights of first refusal, except as otherwise
specifically agreed to by the holders thereof.
4.4. Authorized and Issued Capital of the Company. Schedule 4.4 sets
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forth all outstanding agreements of the Company to allot or
issue securities entered into by the Company on or after
September 30, 2001 and all allotments and issuances of
securities of the Company which have occurred since September
30, 2001.
4.5. Other Registration Rights. Except as described in Schedule 4.5,
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there are no contracts, agreements or understandings between the
Company and any person granting such person the right (other
than rights which have been waived or satisfied) to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to simultaneously
register such securities or include such securities in the
securities to be registered pursuant to
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the Registration Rights Agreement or with or in any securities
being registered pursuant to any other registration statement
filed by the Company under the Act.
4.6. SEC Reports. The Company has filed with the Securities and
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Exchange Commission (the "SEC") all required forms, reports,
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registration statements and documents required to be filed by it
with the SEC (collectively, all such forms, reports,
registration statements and documents filed since January 1,
1999 are referred to herein as the "SEC Reports"). All of the
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SEC Reports complied as to form, when filed (or, if amended or
superseded by filing prior to the date hereof, then on the date
of such filing), in all material respects with the applicable
provisions of the Act and the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The SEC Reports
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(including all exhibits and schedules thereto and documents
incorporated by reference therein) did not, at the time they
were filed (or, if amended or superseded by filing prior to the
date hereof, then on the date of such filing), contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
4.7. No Material Adverse Change. (i) Neither the Company nor any of
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its subsidiaries has sustained, since September 30, 2001, any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree and (ii) since September 30, 2001,
except as disclosed in the SEC Reports, there has not been any
material change in the share capital or long-term debt of the
Company or any of its subsidiaries or any material adverse
change, or any development which is not public knowledge that in
the Company's reasonable judgment as of this date is reasonably
likely to give rise to a material adverse change in or affecting
the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries and (iii) there is no Liquidation Event in
respect of the Company pending or threatened and, to the
knowledge of the Company, no basis for such Liquidation Event
exists.
4.8. Compliance with Law. The Company is not in violation of any
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decree, judgment, order, law or regulation of any court or other
governmental body (including without limitation, applicable
environmental protection legislation and regulations, equal
employment and civil rights regulations, legislation related to
wages, hours and the payment of social security taxes and
occupational health and safety legislation), which violation
could reasonably be expected to have a material adverse effect
on its assets or business.
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4.9. Litigation. None of the Company, its subsidiaries or, to the
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Company's knowledge, any officer, director, shareholder,
employee or agent of the Company and its subsidiaries are a
party to any pending or, to the Company's knowledge, threatened,
action, suit, proceeding or investigation, at law or in equity
or otherwise in, for or by any court or other governmental body
which could reasonably be expected to have a material adverse
impact on the Company's or its subsidiaries assets or business
or the transactions contemplated by the Transactional Agreements
nor, to the Company's knowledge, does any basis exist for any
such action, suit, proceeding or investigation. The Company is
not subject to any decree, judgment or, order of any court or
other governmental body which could reasonably be expected to
have a material adverse impact on the Company's assets or
business.
4.10. Brokers and Finders. Neither the Company nor any shareholder,
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director, officer, employee or agent of the Company has retained
any broker or finder in connection with the transactions
contemplated by the Transactional Agreements. The Company will
indemnify and hold the Purchaser harmless against all claims for
brokers' or finders' fees made or asserted by any party claiming
to have been employed by the Company or any shareholder,
director, officer, employee or agent of the Company and all
costs and expenses (including the reasonable fees of counsel) of
investigating and defending such claims.
4.11. Nasdaq Listing. The Company shall have filed any necessary
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application or notice with the NASDAQ National Market to have
the common stock issuable upon conversion of the Series E
Preferred approved for listing.
5. INDEMNITY.
5.1. Indemnity of the Company. The Purchaser shall hold harmless the
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Company from and against any and all losses, costs, expenses,
liabilities, obligations, claims, demands, causes of action,
suits, settlements and judgments of every nature, suffered and
incurred by the Company, including the costs and expenses
associated therewith and reasonable attorneys' and witness fees
incurred ("Company's Damages") which arise out of or are related
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to: (i) the breach by the Purchaser of this Agreement, or any
third-party allegation thereof; and (ii) the non-performance,
partial or total, of any covenant in this Agreement.
5.2. Indemnity of the Purchaser. The Company shall indemnify and hold
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harmless the Purchaser from and against any and all losses,
costs, expenses, liabilities, obligations, claims, demands,
causes of action, suits, settlements and judgments of every
nature, suffered and incurred by the Purchaser, including the
costs and expenses associated therewith and reasonable
attorneys' and witness fees incurred (the "Purchaser's Damages"
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and when used together with or in the alternative to
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the Company's Damages, "Damages"), which arise out of or are
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related to: (i) the breach by the Company of any of this
Agreement or any third-party allegation thereof; or (ii) the
non-performance, partial or total, of any covenant made by the
Company pursuant to this Agreement.
5.3. Notice. In the event that any party suffers Damages, the party
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making a claim for indemnification ("Indemnitee") shall within
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sixty (60) days of discovering or incurring such Damage give the
indemnifying party ("Indemnitor") written notice thereof
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("Notice of Claim"). The Notice of Claim shall state in
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reasonable detail the nature of the claim, the specific
provisions in this Agreement alleged to have been breached (if
applicable), and the amount of the claim for indemnification.
Such amount shall represent the Indemnitee's good faith estimate
of the Damages. The Indemnitor shall have thirty (30) days from
receipt of the Notice of Claim to accept or reject the claim for
indemnification. The Indemnitee shall be deemed to have waived
its right to indemnification for any Damages for which notice is
not given in a timely manner as set forth herein if and to the
extent that the Indemnitor can show that such failure to give
timely notice has materially prejudiced the Indemnitor's ability
to defend or otherwise respond to such claim. Any claim for
Damages accepted by the Indemnitor or any claim determined as
valid under the claim procedure set forth below, shall be deemed
"Established Damages" for the purposes of this Agreement.
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5.4. Claims. If a Notice of Claim is given pursuant to Section 5.3
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above, and no rejection is received within the thirty (30) day
period specified above, then the Indemnitor shall be deemed to
have accepted such claim. If the Indemnitor rejects a claim
within such thirty (30) day period, the parties shall, in good
faith, attempt to negotiate a resolution of such claim within
sixty (60) days thereafter (the "Resolution Period"). If the
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parties do not reach resolution during the Resolution Period,
then the Indemnitee may, within thirty (30) days after the end
of the Resolution Period proceed to submit the controversy to
mediation by providing notice to the Indemnitor. Such mediation
shall be governed by the rules of the Center for Public
Resources. Promptly thereafter, a mutually acceptable mediator
shall be chosen by the parties, who shall share the cost of
mediation services equally. If the dispute has not been resolved
by mediation within 60 days after the date of written notice
requesting mediation, then either party may initiate litigation
and pursue all and any remedies at law or at equity that such
party is entitled to. If the Indemnitor acknowledges in writing
its obligation to indemnify the Indemnitee against any Damages
that may result from claims of third parties ("Third Party
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Claims"), then the Indemnitor shall be entitled to assume and
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control the defense of such Third Party Claim at its expense and
through counsel of its choice if it gives notice of its
intention to do so to the Indemnitee within five days of the
receipt of such notice from the Indemnitee; provided, however,
that if there exists or is reasonably likely to exist a conflict
of interest that would make it
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inappropriate in the judgment of the Indemnitee for the same counsel
to represent both the Indemnitee and the Indemnitor, then the
Indemnitee shall be entitled to retain its own counsel. In the event
the Indemnitor exercises the right to undertake any such defense
against any such Third Party Claim as provided above, the Indemnitee
shall cooperate with the Indemnitor in such defense and make
available to the Indemnitor, at the Indemnitor's expense, all
witnesses, pertinent records, materials and information in the
Indemnitee's possession or under the Indemnitee's control relating
thereto as is reasonably required by the Indemnitor. Similarly, in
the event the Indemnitee is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnitor shall
cooperate with the Indemnitee in such defense and make available to
the Indemnitee, at the Indemnitee's expense, all such witnesses,
records, materials and information in the Indemnitor's possession or
under the Indemnitor's control relating thereto as is reasonably
required by the Indemnitee. No such Third Party Claim may be settled
by the Indemnitee without the written consent of the Indemnitor.
5.5. Exclusivity of Indemnification Remedy. From and after the Closing,
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the exclusive remedy of (i) the Company for breaches by the Purchaser
and (ii) the Purchaser for breaches by the Company, of this
Agreement, shall be pursuant to the indemnification provisions set
forth in this Section 5.
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5.6. Survival of Representations and Warranties. The representations and
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warranties of the parties contained in this Agreement shall survive
the Closing solely for purposes of this Section 5 until the second
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anniversary of the Closing Date. If written notice of a claim has
been given prior to the expiration of the applicable representations
and warranties by a party to the other parties, then the relevant
representations and warranties shall survive as to such claim, until
such claim has been finally resolved.
5.7. Limit on Indemnities.
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(a) Notwithstanding anything to the contrary contained in this
Section 5, the liability of the Purchaser and the Company
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pursuant to this Section 5 will terminate two years after the
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Closing Date except in respect of any claim made by any
indemnified Party pursuant to this Section 5 in respect of
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which notice is given by the Company and the Purchaser prior to
such date.
(b) No indemnifying party shall be required to make any
indemnification payment pursuant to this Section 5 until such
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time as the total amount of all Damages suffered or incurred by
the indemnified party, or to the indemnified party shall have
otherwise become subject, exceeds $50,000 in the aggregate. If
the total amount of such Damages exceeds $50,000 in
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the aggregate, the indemnified party shall be entitled to be
indemnified against and compensated and reimbursed for the
entire amount of such Damages, and not merely the portion of
such Damages exceeding $50,000.
(c) The aggregate liability of the Purchaser to the Company, and
the aggregate liability of the Company to the Purchaser,
arising under this Section 5 shall not in any event exceed
$1,000,000.
6. Conditions of Investors' Obligations at Closing. The obligations of
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Purchaser under Section 1 of this Agreement are subject to the fulfillment at or
before the Closing of each of the following conditions, any of which may be
waived in writing by Purchaser:
6.1. Representations and Warranties. The representations and warranties of
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the Company contained in Section 4 shall be true in all material respects on and
as of the Closing with the same effect as if made on and as of the Closing.
6.2. Performance. The Company shall have performed or fulfilled in all
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material respects all agreements, obligations, and conditions contained herein
required to be performed or fulfilled by the Company before the Closing.
6.3. Registration Rights Agreement. The Company and the Purchaser shall
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have entered into the Registration Rights Agreement in substantially
the form attached as Exhibit 6.3 (the "Rights Agreement").
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6.4. Blue Sky Compliance. The Company shall have complied with and be
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effective under the federal securities laws of the United States
(including the Act) and the securities laws of the State of
California and any other applicable states as necessary to offer and
sell the Shares to the Purchaser.
6.5. Certificate of Determination. The Company shall have filed the
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Certificate of Determination for Series E Preferred Stock (the "Certificate of
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Determination" the Secretary of State of the State of California, which
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Certificate of Determination shall be in full force and effect on the Closing
Date.
7. Conditions of the Company's Obligations at Closing. The obligations of the
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Company under Section 1 of this Agreement are subject to the fulfillment at or
before the Closing of each of the following conditions, any of which may be
waived in writing by the Company:
7.1. Representations and Warranties. The representations and warranties of
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the Purchaser contained in Section 3 shall be true in all material respects on
and as of the Closing with the same effect as though said representations and
warranties had been made on and as of the Closing.
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8. MISCELLANEOUS.
8.1. Confidentiality; Press Releases. Neither party shall issue a press
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release or otherwise publicize the transactions contemplated by
this Agreement or otherwise disclose the nature or contents of this
Agreement on or prior to the Closing Date except as otherwise
required by applicable law, regulation, or stock exchange
requirement. No information, documents or reports provided to or
obtained by either party, either orally or in writing, in
connection with the transactions contemplated by the Transactional
Agreements shall be disclosed to any non-party except as required
in carrying out the transactions contemplated hereby or as required
by applicable law, regulation or stock exchange requirement.
8.2. Assignment. This Agreement shall be binding upon and inure to the
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benefit of the successors and assigns of the parties. the Company
may assign, in whole or in part and to one or more third parties,
any of its benefits or rights but the obligations of the Company
under this Agreement shall not be assigned or assumed without the
consent of the Purchaser.
8.3. Expenses. Except as otherwise expressly provided herein, each party
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will pay its own costs and expenses, including legal and accounting
expenses, related to the transactions provided for herein,
irrespective of when incurred.
8.4. Notices. Any notice or other communication required or permitted
-------
hereunder shall be in writing and shall be deemed to have been duly
given on the date of service if served personally, by recognized
expedited delivery service, or by facsimile (with confirmation
copies of any facsimile notice to be provided by at least one other
method of delivery permitted hereunder), or five (5) days after the
date of mailing if mailed, by first class mail, registered or
certified, postage prepaid. Notices shall be addressed as follows:
To the Purchaser at:
Japan
Attn:
with a copy (which shall not constitute notice) to:
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To the Company at: Sonic Solutions
101 Rowland Way
Novato, California 94945
Attn: Chief Financial Officer
with a copy (which shall not constitute notice) to:
Heller Ehrman White & McAuliffe LLP
2500 Sand Hill Road, Suite 100
Menlo Park, California 94025
Attn: Kyle Guse
or to such other address as a party has designated by notice in
writing to the other party in the manner provided by this Section.
8.5. Entire Agreement and Modification. This Agreement together with the
---------------------------------
other Transactional Agreements constitute and contain the entire
agreement of the parties and supersedes any and all prior
negotiations, correspondence, understandings and agreements between
the parties respecting the subject matter hereof. This Agreement
may only be amended by written instrument signed by the parties.
8.6. Survival of Terms. All covenants contained in this Agreement and
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any certificate or other instrument delivered by or on behalf of
the parties pursuant to this Agreement which by their terms are to
be performed after the signing of this Agreement shall survive the
signing of this Agreement.
8.7. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed in the State of
California by California residents. The parties hereby waive trial
by jury in connection with any action or suit under this Agreement
or otherwise arising from the relationship between the parties
hereto.
8.8. Severability. If any provision of this Agreement is held to be
------------
invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest
extent possible.
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8.9. Headings. The headings appearing at the beginning of several
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sections contained herein have been inserted for the convenience of
the parties and shall not be used to determine the construction or
interpretation of this Agreement.
8.10. Counterparts. This Agreement may be executed in counterparts,
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including by facsimile, each of which shall be deemed an original,
but both of which when taken together shall constitute one and the
same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above set forth.
Sonic Solutions
a California corporation
By: /s/ Robert J. Doris
------------------------------------------
Name: Robert J. Doris
Title: President and Chief Executive Officer
Sanshin Electronics Co., Ltd.
a Japanese corporation
By: /s/ Mitsumasa Matsunaga
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Name: Mitsumasa Matsunaga
Title: Representative Director
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]