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EXHIBIT 10.4
ASIA ONLINE, LTD.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
PAGE
1. AGREEMENT TO SELL AND PURCHASE...........................................................................1
1.1 Authorization of Shares.........................................................................1
1.2 Sale and Purchase...............................................................................1
2. CLOSING, DELIVERY AND PAYMENT............................................................................1
2.1 Closing.........................................................................................1
2.2 Delivery........................................................................................2
2.3 Subsequent Closings.............................................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................2
3.1 Organization, Good Standing and Qualification...................................................2
3.2 Subsidiaries....................................................................................3
3.3 Capitalization; Voting Rights...................................................................3
3.4 Authorization; Binding Obligations..............................................................4
3.5 Financial Statements............................................................................4
3.6 Liabilities.....................................................................................5
3.7 Agreements; Action..............................................................................6
3.8 Obligations to Related Parties..................................................................6
3.9 Changes.........................................................................................7
3.10 Title to Properties and Assets; Liens, Etc......................................................8
3.11 Intellectual Property...........................................................................8
3.12 Compliance with Other Instruments...............................................................9
3.13 Litigation.....................................................................................10
3.14 Tax Returns and Payments.......................................................................10
3.15 Employees......................................................................................11
3.16 Contracts......................................................................................11
3.17 Insurance......................................................................................12
3.18 Proprietary Information and Inventions Agreements..............................................12
3.19 Registration Rights............................................................................12
3.20 Compliance with Laws; Permits..................................................................12
3.21 Environmental and Safety Laws..................................................................13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
3.22 Year 2000 Compliance...........................................................................13
3.23 Offering Valid.................................................................................13
3.24 United States Real Property Holding Corporation................................................13
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS........................................................14
4.1 Requisite Power and Authority..................................................................14
4.2 Investment Representations.....................................................................14
5. CONDITIONS TO CLOSING...................................................................................15
5.1 Conditions to Purchasers' Obligations at the Closing...........................................15
5.2 Conditions to Obligations of the Company.......................................................17
6. MISCELLANEOUS...........................................................................................17
6.1 Governing Law..................................................................................17
6.2 Survival.......................................................................................18
6.3 Successors and Assigns.........................................................................18
6.4 Entire Agreement...............................................................................19
6.5 Severability...................................................................................19
6.6 Amendment and Waiver...........................................................................19
6.7 Delays or Omissions............................................................................19
6.8 Waiver of Conflicts............................................................................20
6.9 Notices........................................................................................20
6.10 Expenses.......................................................................................20
6.11 Attorneys' Fees................................................................................20
6.12 Titles and Subtitles...........................................................................20
6.13 Counterparts...................................................................................20
6.14 Broker's Fees..................................................................................21
6.15 Exculpation Among Purchasers...................................................................21
6.16 Confidentiality................................................................................21
6.17 Pronouns.......................................................................................21
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ASIA ONLINE, LTD.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
entered into as of March 24, 2000, by and among ASIA ONLINE, LTD., a Delaware
corporation (the "Company") and each of those persons and entities, severally
and not jointly, whose names are set forth on the Schedule of Purchasers
attached hereto as Exhibit A (which persons and entities are hereinafter
collectively referred to as "Purchasers" and each individually as a
"Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of eleven million four hundred one thousand seven hundred (11,401,700)
shares of its Series C Preferred Stock (the "Shares");
WHEREAS, Purchasers desire to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the First Closing (as
defined in Section 2 below), the Company shall have authorized (a) the sale and
issuance to Purchasers of the Shares and (b) the issuance of such shares of
Class A Voting Common Stock to be issued upon conversion of the Shares (the
"Conversion Shares"). The Shares and the Conversion Shares shall have the
rights, preferences, privileges and restrictions set forth in the Restated
Certificate of Incorporation of the Company, in the form attached hereto as
Exhibit B (the "Restated Certificate").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof,
at each Closing (as hereinafter defined) the Company hereby agrees to issue and
sell to each Purchaser, severally and not jointly, and each Purchaser agrees to
purchase from the Company, severally and not jointly, the type and number of
Shares set forth opposite such Purchaser's name on Exhibit A, at a purchase
price of $8.770653 per share.
2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING. The initial closing of the sale and purchase of the
Shares under this Agreement (the "First Closing") shall take place at 12:00 p.m.
on the date hereof, at the offices of Cooley Godward LLP, 2595 Canyon Boulevard,
Suite 250, Boulder, Colorado 80302 or at such other time or place as the Company
and Purchasers may mutually agree (the "First Closing Date"). The
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closing(s) of the sale and purchase of the Shares as set forth in Section 2.3
below shall take place at such time and place as the Company and Purchasers
participating therein shall mutually agree at any time until April 30, 2000
(each a "Subsequent Closing") (the First Closing and any Subsequent Closing
shall collectively be referred to herein as a "Closing" and each such date is
referred to as a "Closing Date").
2.2 DELIVERY. At each Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchasers certificates representing the
type and number of Shares to be purchased at such Closing by each Purchaser,
against payment of the purchase price therefor, by certified check or wire
transfer made payable to the order of the Company, or by cancellation of
indebtedness.
2.3 SUBSEQUENT CLOSINGS. At any time on or before April 30, 2000,
the Company may sell, in one or more closings, any or all of the Shares not sold
at the First Closing hereunder to such purchasers as may be approved by the
Board of Directors of the Company (the "Subsequent Purchasers"). At each
Subsequent Closing, (i) each Subsequent Purchaser shall execute a counterpart
signature page hereto whereupon such Subsequent Purchaser shall become a
"Purchaser" hereunder and the Shares purchased by such Subsequent Purchaser
shall be deemed to be Shares hereunder and (ii) each Subsequent Purchaser shall
execute a counterpart signature page to the Investor Rights Agreement (as
defined below), whereupon such Subsequent Purchaser shall become an "Investor"
and "Holder" thereunder and the shares of Series C Preferred Stock held by such
Subsequent Purchaser shall be deemed "Shares" thereunder. All such sales shall
be made on the terms and conditions of this Agreement, including satisfaction of
the closing conditions set forth in Section 5.1 and the Subsequent Purchasers'
making of the representations and warranties set forth in Section 4 hereof.
Notwithstanding the foregoing, the Company shall be under no obligation to
update or supplement its representations and warranties set forth in Section 3
hereof or the Schedule of Exceptions in connection with any such Subsequent
Closing nor to deliver the legal opinion as provided in section 5.1(i) hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on a Schedule of Exceptions (the "Schedule of
Exceptions") delivered by the Company to the Purchasers at the First Closing,
the Company hereby represents and warrants to each Purchaser as of the date of
this Agreement as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Each of the
Company and the Subsidiaries (as defined below) is a corporation or other
similar organization duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation. The Company and the Subsidiaries
have all requisite corporate power and authority to own and operate their
properties and assets and to carry on their businesses as presently conducted
and as presently proposed to be conducted. The Company has all requisite
corporate power and authority to execute and deliver this Agreement, the letter
agreement with J.P. Morgan International Capital Corp. (the "JPMICC Letter") and
the Second Amended and Restated Investor Rights Agreement in the form attached
hereto as Exhibit C (the "Investor Rights Agreement"), to issue and sell the
Shares and the Conversion Shares, and to carry out the provisions of this
Agreement, the JPMICC Letter, the Investor Rights Agreement and the Restated
Certificate. The Company and the Subsidiaries are duly qualified and are
authorized to do business and are in good standing as foreign corporations in
all
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jurisdictions in which the nature of their activities and of their properties
(both owned and leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so could not have a material adverse effect
on the Company or any Subsidiary or their respective businesses.
3.2 SUBSIDIARIES. Schedule A sets forth a complete and accurate
organizational chart as of the date hereof, indicating the name of each entity
in which the company holds a direct or indirect equity interest (each, a
"Subsidiary"), the percentage of the equity of each Subsidiary owned directly
and indirectly by the Company and the jurisdiction of incorporation of each
Subsidiary. The Company does not own or control, directly or indirectly, any
equity security or other interest of any other corporation, limited partnership
or other business entity other than the Subsidiaries. The only Subsidiaries of
the Company with any active operations are listed and identified in Schedule A
(the "Operating Subsidiaries"). Neither the Company nor any of the Subsidiaries
is a participant in any joint venture, partnership or similar arrangement. The
capitalization of each of the Subsidiaries is as set forth on Schedule B.
3.3 CAPITALIZATION; VOTING RIGHTS. The authorized capital stock of
the Company, immediately prior to the Closing, will consist of one hundred
million (100,000,000) shares of Class A Voting Common Stock (par value $.001 per
share), two million six hundred forty-eight thousand three hundred ninety
(2,648,390) shares of which are issued and outstanding and three million four
hundred fourteen thousand one hundred twenty (3,414,120) shares of which remain
reserved for future issuance to employees, officers, directors and consultants
pursuant to the Company's 1999 Equity Incentive Plan (after issuance of the one
hundred forty thousand (140,000) shares of Voting Common Stock thereunder as
described below), twenty-five million (25,000,000) shares of Class B Non-Voting
Common Stock, none of which are issued and outstanding, thirty million
(30,000,000) shares of Class C Non-Voting Common Stock, seventy seven thousand
nine hundred forty-nine (77,949) shares of which are issued and outstanding, and
forty-four million one hundred thousand (44,100,000) shares of Preferred Stock
(par value $.001 per share), eight million six hundred thousand (8,600,000) of
which are designated Series A Preferred Stock, eight million thirty thousand six
hundred eighty-nine (8,030,689) of which are issued and outstanding, twelve
million (12,000,000) of which are designated Series B-1 Voting Preferred Stock,
eight million six hundred sixty-nine thousand nine hundred ten (8,669,910) of
which are issued and outstanding, twelve million (12,000,000) of which are
designated Series B-2 Non-Voting Preferred Stock, two million three hundred
forty-nine thousand one hundred thirty-nine (2,349,139) of which are issued and
outstanding, and eleven million five hundred (11,500,000) of which are
designated Series C Preferred Stock, none of which are issued and outstanding.
All issued and outstanding shares of the Company's Common Stock (a) have been
duly authorized and validly issued, (b) are fully paid and nonassessable, and
(c) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. The rights, preferences, privileges and
restrictions of the Shares are as stated in the Restated Certificate. Each
series of Preferred Stock is initially convertible into Common Stock on a
one-for-one basis, subject to adjustment as provided in the Restated
Certificate. The Conversion Shares have been duly and validly reserved for
issuance. Other than the three million five hundred fifty-four thousand one
hundred twenty (3,554,120) shares initially reserved for issuance under the
Company's 1999 Equity Incentive Plan (of which options for one million five
hundred sixty-four thousand five hundred (1,564,500) shares of Class A Voting
Common Stock have been granted, and of such options granted, one hundred forty
thousand (140,000) shares of Class A Voting Common Stock of which have
previously been issued upon
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exercise thereof), three million three hundred thirteen thousand nine hundred
fifty-one (3,313,951) shares of Class C Non-Voting Common Stock reserved for
issuance in connection with the consummation of the transactions contemplated by
various acquisition agreements entered into by and among the Company and various
other parties, the various other parties and put and call rights with respect to
shares of Class C Non-Voting Common Stock granted in connection with the
consummation of the transactions contemplated by various acquisition agreements
entered into by and among the Company and various other parties described in
Section 3.7 of the Schedule of Exceptions hereto, and except as may be granted
pursuant to this Agreement and the Investor Rights Agreement, there are no
outstanding options, warrants, rights (including conversion or preemptive rights
and rights of first refusal), proxy or shareholder agreements, or agreements of
any kind for the purchase or acquisition from the Company or any Subsidiary of
any of its securities. With the exception of the Company's right to repurchase
shares of the Company's Common Stock issued to employees of the Company, or as
will be set forth in the Restated Certificate, there are no outstanding
contractual or other rights or obligations to or of the Company or any other
Person to repurchase, redeem or otherwise acquire any securities of the Company
or any Subsidiary. When issued in compliance with the provisions of this
Agreement and the Restated Certificate, the Shares and the Conversion Shares
will be validly issued, fully paid and nonassessable, and will be free of any
liens or encumbrances; provided, however, that the Shares and the Conversion
Shares may be subject to restrictions on transfer under state and/or federal
securities laws as set forth herein or as otherwise required by such laws at the
time a transfer is proposed.
3.4 AUTHORIZATION; BINDING OBLIGATIONS.
(a) All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization of this Agreement,
the performance of all obligations of the Company hereunder and the
authorization, sale issuance and delivery of the Shares pursuant hereto has been
taken. All corporate action on the part of the Company, its officers, directors
and shareholders necessary for the authorization of the Investor Rights
Agreement and the JPMICC Letter, the performance of all obligations of the
Company thereunder and the authorization, sale, issuance and delivery of the
Conversion Shares pursuant to the Restated Certificate will be taken on or prior
to the Closing.
(b) The Company has duly executed and delivered this Agreement, and
will, on or prior to the Closing, duly execute and deliver the Investor Rights
Agreement and the JPMICC Letter. This Agreement constitutes, and each of the
Investor Rights Agreement and the JPMICC Letter will, when so executed and
delivered, constitute, the valid and binding obligation of the Company,
enforceable in accordance with its terms.
(c) The sale of the Shares and the subsequent conversion of the
Shares into Conversion Shares are not and will not be subject to any preemptive
rights or rights of first refusal.
3.5 FINANCIAL STATEMENTS.
(a) The Company has made available to each Purchaser the
consolidated audited balance sheet of the Company and its subsidiaries as at
December 31, 1999 (the "Statement Date") and the audited consolidated statements
of operations, changes in shareholders'
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equity and cash flows for the period from July 1, 1999 to December 31, 1999 (the
"Company Audited Financial Statements"). The Company Audited Financial
Statements, copies of which are attached hereto as Exhibit D-1, have been
prepared in accordance with United States generally accepted accounting
principles ("US GAAP") applied on a consistent basis throughout the periods
indicated, except as disclosed therein, and present fairly the financial
condition, results of operations and position of the Company and its
subsidiaries on a consolidated basis as of the Statement Date.
(b) The Company has made available to each Purchaser (i) the
unaudited balance sheet of Macro Systems Limited ("Macro") as at January 17,
2000 and the unaudited profits and loss account of Macro for the period from
April 1, 1999 to January 17, 2000 (the "Macro Unaudited Financial Statements"),
(ii) the unaudited balance sheet of Helix Web Services Limited ("Helix") as at
January 31, 2000 and the unaudited income statement of Helix for the period from
January 1, 1999 to December 31, 1999 (the "Helix Unaudited Financial
Statements"), (iii) the unaudited balance sheet of Utusan Multimedia Sdn Bhd
("Utusan") as at January 31, 2000 and the unaudited profits and loss statement
of Utusan for the period from January 1, 1999 to December 31, 1999 (the "Utusan
Unaudited Financial Statements"), and (iv) the unaudited balance sheet of Fast
Access Network Pty Ltd. ("Fast Access") as at February 29, 2000 and the
unaudited profits and loss statement of Fast Access for the period from July 1,
1999 to February 29, 2000 (the "Fast Access Unaudited Financial Statements").
The Macro Unaudited Financial Statements, the Helix Unaudited Financial
Statements, the Utusan Unaudited Financial Statements and the Fast Access
Unaudited Financial Statements are collectively referred to as the "Additional
Subsidiary Financial Statements," copies of which are attached hereto as Exhibit
D-2. The Additional Subsidiary Financial Statements (i) have been prepared in
accordance with (w) the disclosure requirements of the Companies Ordinance for
the Macro Unaudited Financial Statements and the Helix Financial Statements, (x)
in accordance with Malaysian GAAP for the Utusan Unaudited Financial Statements,
and (y) in accordance with Australian GAAP for the Fast Access Unaudited
Financial Statements, in each case applied on a consistent basis throughout the
period indicated, except as disclosed therein, and (iii) present fairly the
financial position and results of operations of the relevant entities to which
such Additional Subsidiary Financial Statements relate as of the respective
dates of such Additional Subsidiary Financial Statements; provided however that
the Macro Unaudited Financial Statements, the Helix Unaudited Financial
Statements, the Utusan Unaudited Financial Statements and the Fast Access
Unaudited Financial Statements are subject to normal recurring year-end audit
adjustments (which are not expected to be material), and may not contain all
footnotes required under generally accepted accounting principles.
3.6 LIABILITIES. Neither the Company nor any Subsidiary has any
liabilities or obligations (whether or not contingent) not otherwise disclosed
in writing to the Purchasers on or prior to the date hereof or set forth in
either the Company Audited Financial Statements or the Additional Subsidiary
Financial Statements (such statements, collectively, the "Financial
Statements"), except current liabilities incurred in the ordinary course of
business of operating internet service providers (but not including the business
of acquiring internet service providers) ("Ordinary Course of Business") which
could not reasonably be expected to be, either in any individual case or in the
aggregate, materially adverse to the assets, liabilities, financial condition,
operation or prospects of the Company or any Subsidiary.
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3.7 AGREEMENTS; ACTION.
(a) Except for this Agreement and the Investor Rights Agreement and
employment agreements between the Company and its employees providing for, among
other things, the sale of the Company's Common Stock, there are no agreements,
understandings or proposed transactions between the Company and any of its
shareholders, officers, directors, affiliates or any affiliate thereof.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company or any Subsidiary is a party or by which either the Company or the
Subsidiaries are bound which may involve (i) obligations (contingent or
otherwise) of, or payments to, the Company or the Subsidiaries in excess of
$500,000, or (ii) the transfer or license of any Intellectual Property (as
hereinafter defined) to or from the Company or the Subsidiaries (other than
licenses arising from the purchase of "off the shelf" or other standard
products), or (iii) provisions restricting the development, manufacture or
distribution of the Company's or the Subsidiaries' products or services, or (iv)
indemnification by the Company or the Subsidiaries with respect to infringements
of Intellectual Property (other than indemnification obligations arising from
purchase or sale or license agreements entered into in the Ordinary Course of
Business).
(c) Neither the Company nor the Subsidiaries have (i) declared or
paid any dividends, or authorized or made any distribution upon or with respect
to any class or series of its capital stock, (ii) incurred any indebtedness for
money borrowed or any other liabilities (other than with respect to dividend
obligations, distributions, indebtedness and other obligations incurred in the
ordinary course of business or as disclosed in the Financial Statements) in
excess of $500,000 individually or $1,000,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances for travel
expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
3.8 OBLIGATIONS TO RELATED PARTIES. There are no obligations of the
Company or the Subsidiaries to officers, directors, shareholders, or employees
of the Company or the Subsidiaries (or any affiliates thereof) other than (a)
for payment of salary for services rendered, (b) reimbursement for reasonable
expenses incurred on behalf of the Company or the Subsidiaries and (c) for other
standard employee benefits made generally available to all employees (including
stock option agreements outstanding under any stock option plan approved by the
Board of Directors of the Company). Except as may be disclosed in the Financial
Statements, neither the Company nor any of the Subsidiaries is a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
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3.9 CHANGES. Since the Statement Date and, with respect to Macro,
Helix, Utusan and Fast Access, since the date of each of the respective balance
sheets for the Additional Subsidiary Financial Statements referred to in Section
3.5 above, there has not been:
(a) Any change in the assets, liabilities, financial condition or
operations of the Company or the Subsidiaries from that reflected in the
Financial Statements, other than changes in the Ordinary Course of Business,
none of which individually or in the aggregate has had or could have a material
adverse effect on such assets, liabilities, financial condition, operations or
prospects of the Company or any Subsidiary;
(b) Any resignation or termination of any officer or key employee
of the Company or of either of the Operating Subsidiaries; and the Company, to
the best of its knowledge, does not know of the impending resignation or
termination of employment of any such officer or key employee;
(c) Any material change in the contingent obligations of the
Company or any Subsidiary by way of guaranty, endorsement, indemnity, warranty
or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, which could materially and adversely affect the properties, business
or prospects or financial condition of the Company or any Subsidiary;
(e) Any waiver, forgiveness, cancellation or release by the Company
or any Subsidiary of a valuable right or of a material debt owed to it;
(f) Any direct or indirect loans made by the Company or any
Subsidiary to any shareholder, employee, officer or director of the Company or
any Subsidiary;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or shareholder, including the
payment of any bonus;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the Company or any Subsidiary;
(i) To the Company's knowledge, any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company or any Subsidiary, except those for immaterial amounts
and for current liabilities incurred in the Ordinary Course of Business;
(k) Any sale, assignment, transfer or license of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(l) Any change in, or amendment or waiver of, any material
agreement (including without limitation, credit agreements and bank loans) to
which the Company or any Subsidiary is a party or by which it is bound;
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(m) Any mortgage, pledge, encumbrance or lien on any property or
assets, whether tangible or intangible, of the Company or any Subsidiary;
(n) Any employment, consulting, retention, change-in-control,
collective bargaining or other incentive compensation, profit-sharing, health or
other welfare, stock option or other equity, pension, retirement, vacation,
severance, deferred compensation or other employment, compensation or benefit
plan, policy, agreement, trust, fund or arrangement for the benefit of any
officer, director, employee, sales representative, agent, consultant or
shareholder of the Company or any Subsidiary;
(o) Any loss of any supplier, service provider, customer or
employee that, individually or in the aggregate, could have or result in a
material adverse effect on the Company or any Subsidiary;
(p) Any amendment, supplement, waiver or modification of the
organizational documents of the Company or any Subsidiary, except as
contemplated by this Agreement;
(q) Any change in any respect of the accounting practices, policies
or principles of the Company or any Subsidiary;
(r) The sale of assets of the Company and the Subsidiaries
amounting, in the aggregate, to more than $50,000;
(s) Any other event or condition of any character that, either
individually or cumulatively, could materially and adversely affect, or has
materially and adversely affected, the business, assets, liabilities, financial
condition, operations or prospects of the Company or the Operating Subsidiaries;
or
(t) Any arrangement or commitment by the Company or any Subsidiary
to do any of the acts described in subsections (a) through (s) above, or any
failure to act that results in the occurrence of the acts described in
subsections (a) through (s) above.
3.10 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company and each
of the Subsidiaries has good and marketable title to their respective properties
and assets, and good title to their respective leasehold estates, in each case
subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than
(a) those resulting from taxes which have not yet become delinquent, (b) minor
liens and encumbrances which do not materially detract from the value of the
property subject thereto or materially impair the operations of the Company or
the Operating Subsidiaries, and (c) those that have otherwise arisen in the
ordinary course of business. The Company and the Subsidiaries are in compliance
with all material terms of each lease to which they are a party or is otherwise
bound.
3.11 INTELLECTUAL PROPERTY. The Company and the Subsidiaries own or
possess sufficient legal rights to all trademarks, service marks, trade names,
trade dress, copyrights, and similar rights (including registrations and
applications to register or renew the registration of any of the foregoing), and
letters patent and patent applications, and inventions, processes, designs,
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formulae, trade secrets, know-how, confidential information, computer software,
data and documentation, and all similar intellectual property rights, tangible
embodiments of any of the foregoing (in any medium including electronic media),
and licenses of any of the foregoing (collectively, "Intellectual Property")
necessary for their business as now conducted and as presently proposed to be
conducted, without (except with respect to letters patent and patent
applications) any infringement of the rights of others and, with respect to
letters patent and patent applications, without any known infringement of the
rights of others. There are no outstanding options, licenses or agreements of
any kind relating to the foregoing, nor are the Company or the Subsidiaries
bound by or a party to any options, licenses or agreements of any kind with
respect to the Intellectual Property of any other person or entity other than
such licenses or agreements arising from the purchase of "off the shelf" or
standard products. The Company and each Subsidiary is in compliance with all
material terms of any licenses by which any of them use any Intellectual
Property, and each such license is in full force and effect. To the knowledge of
the Company, each licensor thereof is in compliance with all material terms of
the respective license. Neither the Company nor any Subsidiary is aware of the
existence of any fact or circumstance that would give the licensor thereof
grounds under the terms of such license to cancel, terminate or suspend such
license. The Company expects that all such licenses material to the operation of
the Company or any Subsidiary will be renewed in the ordinary course of business
on terms commercially reasonable to the Company or such Subsidiary. Neither the
Company nor any of the Subsidiaries has received any communications alleging
that the Company or the Subsidiaries have violated or, by conducting their
businesses as presently proposed, would violate any of the Intellectual Property
of any other person or entity. The Company is not aware that any of its
employees or employees of the Subsidiaries is obligated under any contract
(including licenses, covenants or commitments of any nature) or other agreement,
or subject to any judgment, decree or order of any court or administrative
agency, that would interfere with their duties to the Company or the
Subsidiaries, respectively, or that would conflict with the Company's or the
Subsidiaries' business as presently proposed to be conducted. Neither the
execution nor delivery of this Agreement or the Investor Rights Agreement or the
JPMICC Letter, nor the carrying on of the Company's or the Subsidiaries business
by the respective employees of the Company and the Subsidiaries, nor the conduct
of the Company's and the Subsidiaries' business as presently proposed, will, to
the Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. The Company
does not believe it is or will be necessary for the Company or the Operating
Subsidiaries to utilize any Intellectual Property of their respective employees
made prior to their employment by the Company or the Operating Subsidiaries,
except for the Intellectual Property that has been assigned to the Company or
the Subsidiaries.
3.12 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the Company nor any
Subsidiary is in violation or default of any term of its organizational
documents, or of any provision of any mortgage, indenture, contract, agreement,
instrument or contract to which it is a party or by which it is bound or of any
judgment, decree, order or writ (each an "Order"). None of the Company or any
Subsidiary has received any notice of, or has knowledge of any claim alleging,
any violation or default of any such term, provision or Order. The execution,
delivery, and performance of and compliance with this Agreement, the Investor
Rights Agreement and the JPMICC Letter, and the issuance and sale of the Shares
pursuant hereto and of the Conversion Shares pursuant to the Restated
Certificate, will not, with or without the passage of time or giving of notice,
result in any such material violation, or be in conflict with or constitute a
default under any such term, provision
9.
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or Order, or result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company or any Subsidiary
or the suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to the Company or any
Subsidiary, or their respective businesses or operations or any of their
respective assets or properties.
3.13 LITIGATION. There is no action, suit, proceeding or investigation
pending or currently threatened in writing, or, to the Company's knowledge,
otherwise threatened against the Company or any Subsidiary that (a) questions
the validity of this Agreement, the Investor Rights Agreement or the JPMICC
Letter, or the right of the Company to enter into any of such agreements, or to
consummate the transactions contemplated hereby or thereby, or (b) might result,
either individually or in the aggregate, in any adverse change in the assets,
condition, affairs or prospects of the Company or the Subsidiaries, financially
or otherwise, or any change in the current equity ownership of the Company or
the Subsidiaries, nor is the Company aware that there is any basis for any of
the foregoing. The foregoing includes, without limitation, actions pending or
threatened (or any basis therefor known to the Company) involving the prior
employment of any of the Company's or the Subsidiaries' employees, their use in
connection with the Company's or the Subsidiaries' business of any information
or techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers. Neither the Company nor
any Subsidiary is a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company or a Subsidiary currently pending or which the Company or a Subsidiary
intends to initiate.
3.14 TAX RETURNS AND PAYMENTS. The Company and each Subsidiary has
timely filed all tax returns and forms required to be filed by them. All taxes
shown to be due and payable on such returns, any assessments imposed, and all
other taxes due and payable by the Company or any Subsidiary on or before the
Closing, have been paid or will be paid prior to the time they become
delinquent. Neither the Company nor any Subsidiary has been advised (a) that any
of its returns have been or are being audited as of the date hereof, or (b) of
any deficiency in assessment or proposed judgment to its taxes. Neither the
Company nor any Subsidiary is currently the beneficiary of any extension of time
within which to file any tax return. The Company and each Subsidiary has duly
and timely withheld all taxes required to be withheld in connection with the
business of any of them and such withheld taxes have been either duly and timely
paid to the proper governmental authorities or properly set aside in accounts
for such purpose. The balance sheets contained in the Financial Statements
reflect an adequate reserve for all taxes payable or asserted to be payable by
the Company or any Subsidiary for all taxable periods or portions thereof
through the Closing. There has been no claim or issue (other than a claim or
issue that has been paid in full or for which adequate provision has been made
in the balance sheets contained in the Financial Statements) concerning any
liability for taxes of the Company or any Subsidiary asserted, raised or
threatened by any taxing authority and, to the knowledge of the Company, no
circumstances exist to form the basis for such a claim or issue. There are no
outstanding adjustments for income tax purposes applicable to the Company or any
Subsidiary required as a result of changes in methods of accounting effected on
or before the Closing Date and no material elections for income tax purposes
have been made by the Company or any Subsidiary that are currently in force or
by which the Company or any Subsidiary is bound. Neither the Company nor any
Subsidiary is a party to or bound by or has any obligation under any tax
allocation, sharing, indemnity or similar agreement or arrangement.
10.
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3.15 EMPLOYEES. Neither the Company nor any Subsidiary has any
collective bargaining agreements with any of its employees. There is no labor
union organizing activity pending or, to the Company's knowledge, threatened
with respect to the Company or a Subsidiary. No employee has any agreement or
contract, written or verbal, regarding his employment other than the Company's
Form of Proprietary Information and Inventions Agreement. Other than the
Company's 1999 Equity Incentive Plan and the Key Employment Agreements for Kevin
Randolph and Ed Roberto, neither the Company nor any Subsidiary is a party to or
bound by any currently effective employment contract, deferred compensation
arrangement, bonus plan, incentive plan, profit sharing plan, retirement
agreement or other employee compensation plan or agreement. To the Company's
knowledge, no employee of the Company or a Subsidiary, nor any consultant with
whom the Company or a Subsidiary has contracted, is in violation of any term of
any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company because of the nature of the business to be conducted
by the Company or a Subsidiary; and to the Company's knowledge the continued
employment by the Company and each of the Subsidiaries of their respective
present employees, and the performance of the Company's and each of the
Subsidiaries' contracts with their respective independent contractors, will not
result in any such violation. The Company has not received any notice alleging
that any such violation has occurred. No employee of the Company or a Subsidiary
has been granted the right to continued employment by the Company or a
Subsidiary or to any material compensation following termination of employment
with the Company or a Subsidiary. The Company is not aware that any officer or
key employee, or that any group of key employees, intends to terminate his, her
or their employment with the Company or a Subsidiary, nor does the Company or a
Subsidiary have a present intention to terminate the employment of any officer,
key employee or group of key employees. The Company and each Subsidiary has
complied with all applicable laws, rules and regulations pertaining to the
employment or termination of employment of their respective employees, including
all such laws, rules and regulations relating to labor relations, equal
employment opportunities, fair employment practices, prohibited discrimination
or distinction and other similar employment activities.
3.16 CONTRACTS. The Company has listed on Schedule C all contracts
material to the business of the Company and the Subsidiaries, taken as a whole
(collectively, the "Contracts"). All Contracts and all agreements, contracts,
instruments, obligations, offers, commitments, arrangements and understandings,
written or oral to which either the Company or any Subsidiary is a party ("Other
Contracts") are legal, valid, binding, in full force and effect and enforceable
against each party thereto, except to the extent that any failure to be
enforceable, individually and in the aggregate, could not have or result in a
material adverse effect on the business, operations or prospects of the Company
and the Subsidiaries, taken as a whole, or materially impair the ability of the
Company to perform its respective obligations hereunder and under the Investor
Rights Agreement or the JPMICC Letter. There does not exist under any Contract
or under any Other Contract any violation, breach or event of default, or event
or condition that, after notice or lapse of time or both, would constitute a
violation, breach or event of default thereunder, on the part of the Company or
any Subsidiary or, to the knowledge of the Company, any other Person, that would
have or result in a material adverse effect on the business, operations or
prospects of the Company and the Subsidiaries, taken as a whole, or materially
impair the ability of the Company to perform its respective obligations
hereunder and under the Investor Rights Agreement or the JPMICC Letter. The
enforceability of no Contract will be affected in any manner by the execution,
delivery or performance of this Agreement, the Investor Rights Agreement or the
JPMICC Letter, and no
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Contract contains any change in control or other terms or conditions that will
become applicable or inapplicable as a result of the consummation of the
transactions contemplated by this Agreement, the Investor Rights Agreement or
the JPMICC Letter.
3.17 INSURANCE. All insurance policies maintained at present by or on
behalf of the Company or any Subsidiary are in full force and effect, and all
premiums due thereon have been paid. The Company and each Subsidiary, as the
case may be, has complied in all material respects with the terms and provisions
of such policies. The insurance coverage provided by such policies is adequate
and suitable for the respective businesses of the Company and the Subsidiaries,
and is on such terms (including as to deductibles and self-insured retentions),
covers such risks, contains such deductibles and retentions, and is in such
amounts, as the insurance customarily carried by comparable companies of
established reputation similarly situated and carrying on the same or similar
business.
3.18 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each current
employee, officer and consultant of the Company and of each Operating Subsidiary
has executed a form of Proprietary Information and Inventions Agreement.
3.19 REGISTRATION RIGHTS. Except as required pursuant to the Investor
Rights Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register (as defined in Section 1.1 of the Investor
Rights Agreement) any of the Company's presently outstanding securities or any
of its securities that may hereafter be issued.
3.20 COMPLIANCE WITH LAWS; PERMITS. Neither the Company nor any
Subsidiary is in violation of any applicable statute, rule, regulation, order or
restriction of any government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties which
violation could, individually or in the aggregate, materially and adversely
affect the business, assets, liabilities, financial condition, operations or
prospects of the Company or any Subsidiary, and neither the Company nor any
Subsidiary has received any notice alleging any such violation. No governmental
orders, permissions, consents, approvals or authorizations are required to be
obtained and no registrations or declarations are required to be filed in
connection with the execution and delivery of this Agreement and the issuance of
the Shares or the Conversion Shares, except such as may be required by United
States federal or state securities laws, as will be filed in a timely manner.
The Company and each Subsidiary has all franchises, permits, licenses and any
similar authority (collectively, "Approvals") necessary for the conduct of their
businesses as now being conducted by them, the lack of which could, individually
or in the aggregate, materially and adversely affect the business, properties,
prospects or financial condition of the Company or the Subsidiary and the
Company believes it or each Subsidiary can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted. All Approvals have been duly obtained and are held by the Company or
a Subsidiary, and are in full force and effect. The Company and each Subsidiary
is in compliance with all Approvals held by it. There is no claim, litigation or
action pending or, to the knowledge of the Company, threatened, that could
result in the revocation, cancellation, suspension or modification or nonrenewal
of any such Approval; none of the Company or any Subsidiary has been notified
that any such Approval will be modified, suspended or cancelled; and there is no
reasonable basis for any such revocation, cancellation, suspension, modification
or nonrenewal. The execution, delivery and performance of this Agreement, the
Investor Rights Agreement and the JPMICC Letter and the consummation of the
12.
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transactions contemplated hereby and thereby do not and will not violate any
such Approval, or result in any revocation, cancellation, suspension,
modification or nonrenewal thereof. Each registration, report, statement, notice
or other filing required to be filed by the Company or any Subsidiary with any
governmental authority under any applicable law, rule, regulation or order has
been timely filed, and when filed complied and continues to comply with such
applicable law, rule, regulation or order in all material respects.
3.21 ENVIRONMENTAL AND SAFETY LAWS. To its knowledge, neither the
Company nor any Subsidiary is in violation of any applicable statute, law or
regulation relating to the environment or occupational health and safety, and to
the Company's knowledge, no material expenditures are or will be required in
order to comply with any such existing statute, law or regulation.
3.22 YEAR 2000 COMPLIANCE.
(a) Neither the Company nor any Subsidiary has experienced, and
the Company has no reason to believe that either the Company or any Subsidiary
will experience, any event material to the Company as a whole, condition or
occurrence as a result of the Company's or any Subsidiary's failure or any of
their respective suppliers, vendors or service providers' failure to be Year
2000 Compliant on a timely basis.
(b) "Year 2000 Compliant" means, with regard to any entity, that
all software, embedded microchips and other data, word processing and
telecommunications capabilities used by and material to the business, operations
or financial condition of such entity are able to interpret and manipulate data
involving all calendar dates correctly and without causing any abnormal ending
scenario, including but not limited to complications related to January 1, 2000
and February 29, 2000.
3.23 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4.2 hereof, the offer, sale
and issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and will have been registered or qualified (or are exempt
from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws. Neither the
Company nor any agent on its behalf has solicited or will solicit any offers to
sell or has offered to sell or will offer to sell all or any part of the Shares
to any person or persons so as to bring the sale of such Shares by the Company
within the registration provisions of the Securities Act or any state securities
laws.
3.24 UNITED STATES REAL PROPERTY HOLDING CORPORATION. The Company is
not as of the Closing Date a United States Real Property Holding Corporation as
such term is defined in Section 897(c)(2) of the Internal Revenue Code of 1986,
as amended.
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4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents and warrants, severally and not
jointly, to the Company as follows (such representations and warranties do not
lessen or obviate the representations and warranties of the Company set forth in
this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement and the Investor Rights Agreement and to carry out their provisions.
All action on Purchaser's part required for the lawful execution and delivery of
this Agreement and the Investor Rights Agreement have been or will be
effectively taken prior to the Closing. Upon their execution and delivery, this
Agreement and the Investor Rights Agreement will be valid and binding
obligations of Purchaser, enforceable in accordance with their terms, except (a)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights,
(b) general principles of equity that restrict the availability of equitable
remedies, and (c) to the extent that the enforceability of the indemnification
provisions of Section 2.9 of the Investor Rights Agreement may be limited by
applicable laws.
4.2 INVESTMENT REPRESENTATIONS. Purchaser understands that neither
the Shares nor the Conversion Shares have been registered under the Securities
Act. Purchaser also understands that the Shares are being offered and sold
pursuant to an exemption from registration contained in the Securities Act based
in part upon Purchaser's representations contained in the Agreement. Purchaser
hereby represents and warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares (or the Conversion Shares) are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser understands that the Company has no present intention of
registering the Shares, the Conversion Shares or any shares of its Common Stock.
Purchaser also understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow Purchaser to transfer all or any portion
of the Shares or the Conversion Shares under the circumstances, in the amounts
or at the times Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Shares and the Conversion Shares for Purchaser's own account for investment
only, and not with a view towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement, and the Investor Rights Agreement.
Further, Purchaser has not published any advertisement in connection with the
transactions contemplated in the Agreement.
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(d) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) COMPANY INFORMATION. Purchaser has received and read the
Financial Statements and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(f) RULE 144. Purchaser acknowledges and agrees that the Shares,
and, if issued, the Conversion Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act as in effect from
time to time, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things: the availability of certain current public information about the
Company, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any three-month period not
exceeding specified limitations.
(g) RESIDENCE. If the Purchaser is an individual, then the
Purchaser resides in the state or province identified in the address of the
Purchaser set forth on Exhibit A; if the Purchaser is a partnership,
corporation, limited liability company or other entity, then the office or
offices of the Purchaser in which its investment decision was made is located at
the address or addresses of the Purchaser set forth on Exhibit A.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Each
Purchaser's obligation to purchase the Shares to be purchased by such Purchaser
at the Closing are subject to the satisfaction, at or prior to the Closing Date,
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the First
Closing Date with the same force and effect as if they had been made as of the
First Closing Date. The Company shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing.
(b) LEGAL INVESTMENT. On the Closing Date, the sale and issuance
of the Shares and the proposed issuance of the Conversion Shares shall be
legally permitted by all laws and regulations to which Purchasers and the
Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investor
Rights Agreement, the JPMICC Letter and the Restated Certificate (except for
such as may be properly obtained subsequent to the Closing).
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(d) FILING OF RESTATED CERTIFICATE. The Restated Certificate
shall have been filed with the Secretary of State of the State of Delaware and
shall continue to be in full force and effect as of the Closing Date.
(e) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
(f) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(g) COMPLIANCE CERTIFICATE. The Company shall have delivered to
Purchasers a Compliance Certificate, executed by the President of the Company,
dated the Closing Date, to the effect that the conditions specified in
subsections (a), (c), (d) and (f) of this Section 5.1 have been satisfied.
(h) OTHER AGREEMENTS. An Investor Rights Agreement substantially
in the form attached hereto as Exhibit C shall have been executed and delivered
by the parties thereto and the JPMICC Letter shall have been executed and
delivered by the Company.
(i) LEGAL OPINION. The Purchasers shall have received from legal
counsel to the Company an opinion addressed to them, dated as of the First
Closing Date, in form and substance reasonably satisfactory to them.
(j) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated hereunder and under
the Investor Rights Agreement, the JPMICC Letter and Restated Certificate and
all documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers and their special counsel,
and the Purchasers and their special counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
(k) COMPLIANCE WITH SECURITIES LAWS. All federal and state
securities filings required in connection with the transactions contemplated by
this Agreement, the Investor Rights Agreement and the Restated Certificate shall
have been made or obtained except those filings which may properly be made or
obtained after Closing.
(l) DUE DILIGENCE. The Purchasers shall (i) have completed their
due diligence review of the Company and the Subsidiaries, and (ii) be satisfied,
in their sole discretion, with the results of such due diligence review.
(m) APPROVALS. All approvals, consents, permissions,
authorizations or waivers required to be made or obtained by such Purchaser from
any investment committee, board of directors or shareholder, or creditor or
other third party, or any governmental or regulatory authority, in connection
with the execution and delivery of this Agreement, the Investor Rights Agreement
and the JPMICC Letter, or the consummation of the transactions contemplated
hereby or thereby, shall have been made or obtained.
16.
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(n) SCHEDULE OF EXCEPTIONS. The Schedule of Exceptions to be
delivered by the Company to Purchasers on or prior to the First Closing shall be
satisfactory to such Purchaser in its sole discretion.
(o) INJUNCTIONS. No writ, order, decree or injunction of a court
of competent jurisdiction or governmental entity shall have been entered against
the Company or any Subsidiary that prohibits or restricts the consummation of
the transactions contemplated by this Agreement, the Investor Rights Agreement,
the JPMICC Letter or the Restated Certificate, or limits or restricts the
operations of the business of the Company and its Subsidiaries (as they are
concurrently conducted) in a matter that could reasonably be expected to result
in a material adverse change in the business, financial condition, results of
operations or prospects of the Company or any Subsidiary.
(p) MATERIAL ADVERSE CHANGE. There shall not have occurred or
been threatened since the Statement Date, any event, occurrence, fact,
condition, change, development or effect that is or may be materially adverse to
the business, financial condition, results of operations or prospects of the
Company or any Subsidiary, except as set forth in the Schedule of Exceptions.
(q) CONCURRENT PURCHASES. The Purchasers purchasing Shares from
the Company at the First Closing shall have purchased Shares for an amount at
least equal to US$50,000,000.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligation to issue and sell the Shares at each Closing is subject to the
satisfaction, on or prior to such Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties in Section 4 made by the Purchasers in Section 4 hereof shall be true
and correct in all material respects at the date of the Closing, with the same
force and effect as if they had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have performed
and complied with all agreements and conditions herein required to be performed
or complied with by such Purchasers on or before each Closing.
(c) FILING OF RESTATED CERTIFICATE. The Restated Certificate
shall have been filed with the Secretary of State of the State of Delaware.
(d) INVESTOR RIGHTS AGREEMENT. An Investor Rights Agreement
substantially in the form attached hereto as Exhibit C shall have been executed
and delivered by the Purchasers.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in California,
except as to matters of corporate law which shall
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be governed by the General Corporation Law of Delaware. Any legal action or
other legal proceeding commenced among the parties hereto with respect to this
Agreement shall be commenced and maintained exclusively in a state or federal
court located in the County of Santa Clara, California. Each party hereto
expressly and irrevocably consents and submits to the exclusive jurisdiction of
the applicable state and federal courts located in the County of Santa Clara,
State of California and each appellate court located in the State of California,
in connection with any such proceeding. Each party agrees that such courts shall
be deemed to be a convenient forum in any such legal proceeding, and agrees not
to assert (by way of motion, as a defense or otherwise) any claim that such
party is not subject personally to the jurisdiction of any such courts, that
such legal proceeding has been brought in an inconvenient forum, that the venue
of such legal proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by any such courts. Personal service may
be effected by written notice served upon either party as provided by this
Agreement, or as otherwise permitted or provided by law in the State of
California.
6.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
6.3 SUCCESSORS AND ASSIGNS.
(a) 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
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of the Shares from time to time. Each member of the JPM Group, of the
Paribas Group, of the ABN-AMRO Group and of the Hikari Group (collectively the
"Groups") shall have the right to assign any of its rights hereunder in whole or
in part (including the right to subscribe for Shares at the First Closing) to
any member of such Group, provided that such successor, assignee, heir, executor
or administrator (i) becomes a party hereto and (ii) shall be an "accredited
investor" as such term is defined in Regulation D of the Securities Act of 1933,
as amended.
(b) For the purposes of Section 6.3(a), "JPM Group" means (i)
JPMICC and Sixty Wall Street Fund, L.P. (the "Fund"), (ii) each entity
controlled by JPMICC or the Fund or any affiliate of either of them, constitute
a majority of the general partners or (iii) an investment fund or unit trust
managed by JPMICC or the Fund, or any affiliate of either of them, or the fund
manager of JPMICC or the Fund, or an affiliate of either of them. For the
purposes of Section 6.3(a), "Paribas Group" means (i) Paribas and any successor
thereof ("Paribas"), (ii) Societe Centrale d'Investissements, (iii) each entity
that directly or indirectly controls, is under common control with, or is
controlled by Paribas, (iv) a partnership in which Paribas and/or any entity
described under (ii) or (iii) above constitute a majority of the general
partners or (v) an investment fund or unit trust where Paribas or any entity
described under (i), (ii), (iii) or (iv) above serves as the manager of the
investment fund or unit trust or is responsible for designating the manager of
the investment fund or unit trust. For the purposes of Section 6.3(a),
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"ABN-AMRO Group" means (i) ABN AMRO Holding N.V. ("AA Holding"), (ii) each
entity that directly or indirectly controls, is under common control with, or is
controlled by AA Holding, (iii) a partnership in which AA Holding and/or any
entity described under (ii) above constitute a majority of the general partners
or (iv) an investment fund or unit trust where AA Holding or any entity
described under (i), (ii) or (iii) above serves as the manager of the investment
fund or unit trust or is responsible for designating the manager of the
investment fund or unit trust. For the purposes of Section 6.3(a), "Hikari
Group" shall mean Hikari Tsushin Partners, L.P., Hikari Tsushin Inc, Hikari
Capital Inc. and any of their respective affiliates or subsidiaries, including,
but not limited to, Golden Power International Holdings Limited.
6.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the Investor Rights Agreement, the JPMICC Letter and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and no party
shall be liable or bound to any other in any manner by any representations,
warranties, covenants and agreements except as specifically set forth herein and
therein.
6.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.6 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and holders of at least eighty-five percent (85%)
of the Shares (treated as if converted and including any Conversion Shares into
which the Shares have been converted that have not been sold to the public).
(b) The obligations of the Company and the rights of the holders
of the Shares and the Conversion Shares under the Agreement may be waived only
with the written consent of the holders of at least eighty-five percent (85%) of
the Shares (treated as if converted and including any Conversion Shares into
which the Shares have been converted that have not been sold to the public).
6.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Investor
Rights Agreement, the JPMICC Letter or the Restated Certificate, shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Purchaser's part of any breach, default or noncompliance under this
Agreement, the Investor Rights Agreement, the JPMICC Letter or under the
Restated Certificate or any waiver on such party's part of any provisions or
conditions of the Agreement, the Investor Rights Agreement, the JPMICC Letter or
the Restated Certificate must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this
Agreement, the Investor Rights Agreement, the JPMICC Letter, the Restated
Certificate, by law, or otherwise afforded to any party, shall be cumulative and
not alternative.
19.
23
6.8 WAIVER OF CONFLICTS. Each party to this Agreement acknowledges
that legal counsel for the Company, Cooley Godward LLP ("Cooley Godward"), has
in the past performed and may continue in the future to perform legal services
for one or more of the Purchasers or their affiliates in matters unrelated to
the transactions contemplated by this Agreement, including, but not limited to,
the representation of the Purchasers in matters of a similar nature to the
transactions contemplated herein. Each party to this Agreement hereby (a)
acknowledges that they have had an opportunity to ask for and have obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation; (b)
acknowledges that with respect to the transactions contemplated herein, Cooley
Godward has represented the Company and not any individual Purchaser or any
individual shareholder, director or employee of the Company; and (c) gives its
informed consent to Cooley Godward's representation of the Company in the
transactions contemplated by this Agreement and Cooley Godward's previous or
continuing representation of one or more of the Purchasers or their affiliates
in matters unrelated to such transactions.
6.9 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) eight (8) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) three (3) days after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
Company at the address as set forth on the signature page hereof and to
Purchaser at the address set forth on Exhibit A attached hereto or at such other
address as the Company or Purchaser may designate by ten (10) days advance
written notice to the other parties hereto.
6.10 EXPENSES. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement. The Company shall, at the First Closing, reimburse the reasonable
fees of and expenses of one special counsel for the Purchasers, not to exceed
$50,000, and shall reimburse such special counsel for reasonable expenses
incurred in connection with the negotiation, execution, delivery and performance
of this Agreement.
6.11 ATTORNEYS' FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
6.12 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
6.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
20.
24
6.14 BROKER'S FEES. Each party hereto represents and warrants that
no agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 6.14 being untrue.
6.15 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that
it is not relying upon any person, firm, or corporation, other than the Company
and its officers and directors, in making its investment or decision to invest
in the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
Shares and Conversion Shares.
6.16 CONFIDENTIALITY. Each party hereto agrees that, except with the
prior written consent of the delivering party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
Confidential Information, provided that such party may deliver or disclose
Confidential Information to (a) such party's representatives and advisors who
agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 6.16, (b) any other party hereto, (c)
any person or entity to which such party sells or offers to sell any Shares (if
such person or entity has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 6.16),
(d) any governmental authority having jurisdiction over such Party in response
to any subpoena or other legal process or as may be required by applicable laws
or regulations, or (e) any other person or entity to which such delivery or
disclosure may be necessary or appropriate in response to any subpoena or other
legal or regulatory process. The provisions of this Section 6.16 shall be in
addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto. "Confidential
Information" shall mean information delivered by a party to another party hereto
in connection with the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature; provided that such term does not
include information that (a) was publicly known or otherwise known to such
receiving party prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by such receiving party or any person
or entity acting on such party's behalf, or (c) otherwise becomes known to such
receiving party other than through disclosure by the delivering party or any
person or entity with a duty to keep such information confidential.
6.17 PRONOUNS. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
21.
25
IN WITNESS WHEREOF, the parties hereto have executed the SERIES C
PREFERRED STOCK PURCHASE AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY:
ASIA ONLINE, LTD.
By: /s/ KEVIN H. RANDOLPH
-----------------------------
Kevin H. Randolph, President
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
26
PURCHASER:
The undersigned hereby executes and delivers this SERIES C PREFERRED
STOCK PURCHASE AGREEMENT as one of the PURCHASERS referred to herein, as of the
date set forth in the first paragraph hereof, for the purpose of purchasing from
the Company the number of shares of Series C Preferred Stock set forth opposite
the name of such Purchaser on the Schedule of Purchasers.
DELL USA L.P.
By: Dell Gen. P. Corp.,
Its General Partner
By: /s/ THOMAS H. WELCH, JR.
------------------------------------
Name: Thomas H. Welch, Jr.
----------------------------------
Title: Vice President, Deputy General
Counsel
---------------------------------
SOCIETE CENTRALE D'INVESTISSEMENTS
By: /s/ EDWINA LEE
------------------------------------
Name: Edwina Lee
----------------------------------
Title: Authorised Representative
----------------------------------
PAINE WEBBER PARTNERS 1998 L.P.
By: /s/ DHANANJAY PAI
------------------------------------
Name: Dhananjay Pai
----------------------------------
Title: Vice President
---------------------------------
PAINE WEBBER EXE, L.P.
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
27
PW CAPITAL INC.
By: /s/ DHANANJAY PAI
------------------------------------
Name: Dhananjay Pai
----------------------------------
Title: President
---------------------------------
ABN-AMRO CAPITAL INVESTMENT ASIA LIMITED
By: /s/ MARC STAAL
------------------------------------
Name: Marc Staal
----------------------------------
Title: CEO
---------------------------------
CIBC WMC INC.
By: /s/ [ILLEGIBLE]
------------------------------------
Name: [ILLEGIBLE]
----------------------------------
Title: Managing Director
---------------------------------
THE MANUFACTURERS LIFE INSURANCE
COMPANY (USA)
By: /s/ MYLES P. GILBERT/
/s/ STEPHEN M. BRACKETT
------------------------------------
Name: Myles P. Gilbert/
Stephen M. Brackett
----------------------------------
Title: Managing Director/
Managing Director
----------------------------------
SB CHINA HOLDINGS PTE LIMITED
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
28
SB CHINA HOLDINGS PTE LIMITED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SYSTEX CAPITAL GROUP, INC.
By: /s/ T.J. HUANG
-------------------------------------
Name: T.J. Huang
-----------------------------------
Title: Director
----------------------------------
PEQUOT PRIVATE EQUITY FUND II, L.P.
By: Pequot Capital Management, Inc. as
Investment Manager
-------------------------------------
Name: /s/ DAVID J. MALAT
-----------------------------------
David J. Malat
Title: CFO
----------------------------------
HIKARI TSUSHIN PARTNERS, L.P.
By: /s/ RYOJI KABAYA
-------------------------------------
Name: Ryoji Kabaya
-----------------------------------
Title: President
----------------------------------
CONCENTRIC NETWORK CORPORATION
By: /s/ JAMES L. ISAACS
-------------------------------------
Name: James L. Isaacs
-----------------------------------
Title: V.P. Business Development
----------------------------------
J.P. MORGAN INTERNATIONAL CAPITAL CORP.
By: /s/ J. EDMUND COLLOTON
-------------------------------------
Name: J. Edmund Colloton
-----------------------------------
Title: Vice President
----------------------------------
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
29
HIKARI TSUSHIN INTERNATIONAL LIMITED
By: /s/ MASAHIDE SAITO
-------------------------------------
Name: Masahide Saito
-----------------------------------
Title: Director
----------------------------------
GE EQUITY INVESTMENTS, INC.
By: /s/ MICHAEL BENJAMIN GERIG
-------------------------------------
Name: Michael Benjamin Gerig
-----------------------------------
Title: Vice President
----------------------------------
NEXUS CAPITAL PARTNERS II, L.P.
By: /s/ ROB HORNING
-------------------------------------
Name: Rob Horning
-------------------------------------
Title: Principal, Nexus Group,
LLC - General Partner
----------------------------------
SIXTY WALL STREET FUND, L.P.
By: /s/ J. EDMUND COLLOTON
-------------------------------------
Name: J. Edmund Colloton
-----------------------------------
Title: Vice President
----------------------------------
SOFTBANK TECHNOLOGY VENTURES V, L.P.
By: /s/ EDWARD SCOTT RUSSELL
-------------------------------------
Name: Edward Scott Russell
-----------------------------------
Title: Managing Director
----------------------------------
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
30
SOFTBANK TECHNOLOGY VENTURES ADVISORS
FUND V, L.P.
By: /s/ EDWARD SCOTT RUSSELL
-------------------------------------
Name: Edward Scott Russell
-----------------------------------
Title: Managing Director
----------------------------------
SOFTBANK TECHNOLOGY VENTURES
ENTREPRENEURS FUND V, L.P.
By: /s/ EDWARD SCOTT RUSSELL
-------------------------------------
Name: Edward Scott Russell
-----------------------------------
Title: Managing Director
----------------------------------
31
LIST OF EXHIBITS
Schedule of Purchasers Exhibit A
Restated Certificate Exhibit B
Investor Rights Agreement Exhibit C
Financial Statements Exhibit D
Form of Legal Opinion Exhibit E
32
EXHIBIT A
SCHEDULE OF PURCHASERS
TOTAL SHARES
HELD POST
CLOSING (AS
AGGREGATE SERIES C CONVERTED TO
NAME AND ADDRESS PURCHASE PRICE PREFERRED SHARES COMMON)
SOFTBANK TECHNOLOGY VENTURES V, L.P. $19,146,002.21 2,182,962 2,182,962
GENERAL PARTNER: SBTV V LLC
200 W. Eveleyn Avenue, suite 200, Mountain
View, CA 94043
ATTN: GARY RIESCHEL
HELEN MACKENZIE
SOFTBANK TECHNOLOGY VENTURES ADVISORS FUND V, $509,995.93 58,148 58,148
L.P.
GENERAL PARTNER: SBTV V LLC
200 W. Eveleyn Avenue, suite 200, Mountain
View, CA 94043
ATTN: GARY RIESCHEL
HELEN MACKENZIE
SOFTBANK TECHNOLOGY VENTURES ENTREPRENEURS $344,002.55 39,222 39,222
FUND V, L.P.
GENERAL PARTNER: SBTV V LLC
200 W. Eveleyn Avenue, suite 200, Mountain
View, CA 94043
ATTN: GARY RIESCHEL
HELEN MACKENZIE
33
DELL USA L.P. 9,999,991.58 1,140,165 1,140,165
DELL VENTURES
ATTN: PAUL LEGRIS
c/o Dell Computer Corporation
Mail Stop 8066
One Dell Way
Round Rock, Texas 78682
CC:
KYLE K. FOX
VINSON & ELKINS LLP
600 Congress Avenue, Ste. 2700
Austin, TX 78701
THOMAS H. WELCH, JR.
Vice President and Deputy General Counsel
Legal Department
Dell Computer Corporation
Mail Stop 8033
One Dell Way
Round Rock, Texas 78682
SOCIETE CENTRALE D'INVESTISSEMENTS 9,999,991.58 1,140,165 1,140,165
c/o PHILIPPE AGUIGNIER
PARIBAS
Level 27, Two Pacific Place
88 Queensway
Hong Kong
CC:
DEBEVOISE & PLIMPTON
ATTN: ANDREW M. OSTROGNAI
13/F Entertainment Building
30 Queen's Road Central
Hong Kong
PW PARTNERS 1998, L.P. 2,499,995.70 285,041 285,041
ATTN: DHANANJAY PAI
TODD CLAPP
1285 Avenue of the Americas, 14th Floor
New York, NY 10019
P.W. EXE, L.P. 2,499,995.70 285,041 285,041
ATTN: DHANANJAY PAI
TODD CLAPP
1285 Avenue of the Americas, 14th Floor
New York, NY 10019
34
PW CAPITAL INC. 4,499,994.02 513,074 513,074
ATTN: DHANANJAY PAI
TODD CLAPP
1285 Avenue of the Americas, 14th Floor
New York, NY 10019
ABN-AMRO CAPITAL INVESTMENT ASIA LIMITED 4,999,991.40 570,082 570,082
MARC STAAL
31/F Edinburgh Tower
Landmark, Central
Hong Kong
CIBC WMC INC. 4,999,991.40 570,082 570,082
RICHARD WHITE
CIBC CAPITAL PARTNERS
425 Lexington Ave.
New York, NY 10017
THE MANUFACTURERS LIFE INSURANCE COMPANY (USA) 4,999,991.40 570,082 570,082
WILLIAM SHEEHAN
45 Milk Street, Ste. 600
Boston, MA 02109
CC:
EDWARDS & ANGELL, LLP
ATTN: RICHARD G. SMALL
2800 BankBoston Plaza
Providence, RI 02903
SYSTEX CAPITAL GROUP, INC. 6,499,992.33 741,107 741,107
ATTN: T.J. HUANG
16/F, No. 169, Section 4
Jen Ai Road
Taipei, Taiwan
PEQUOT PRIVATE EQUITY FUND II, L.P. 7,999,993.26 912,132 3,273,357
JERRY POCH
DAVID MALAT
Pequot Capital Management Inc
500 Nyala Farm Road
Westport CT 06880
35
HIKARI TSUSHIN PARTNERS, L.P. 3,999,996.63 456,066 456,066
RYOJI KABAYA
Hikari Tsushin Capital, Inc.
23F Ohtemachi Nomura Bldg.
2-1-1 Ohtemachi, Chiyoda-ku
Tokyo 100-0004 Japan
CC:
GRAHAM & JAMES LLP
ATTN: NORIYUKI SHIMODA
One Maritime Plaza, Ste. 300
San Francisco, CA 94111
CONCENTRIC NETWORK CORPORATION 4,999,991.40 570,082 1,199,742
Attn: Michael Anthofer
1400 Parkmoor Ave.
San Jose, CA 95126
J.P. MORGAN INTERNATIONAL CAPITAL CORPORATION 1,499,992.16 171,024 2,689,664
CAROL LEE
KARL FOOKS
One International Finance Centre, 32nd Floor
No. 1 Harbour View Street
Central, Hong Kong
HIKARI TSUSHIN INTERNATIONAL LIMITED 999,994.77 114,016 114,016
HIRONORI KOMAGA TA
Flat C, 20th Floor, Block 1
Tai Ping Industrial Center
57 Ting Ping Road, Tai Po
New Territories
Hong Kong
CC:
GRAHAM & JAMES LLP
ATTN: NORIYUKI SHIMODA
One Maritime Plaza, Ste. 300
San Francisco, CA 94111
GE EQUITY INVESTMENTS, INC. 999,994.77 114,016 114,016
BEN GERIG
GE Capital Asia Pacific
15/F, Three Exchange Square, Central
Hong Kong
36
NEXUS CAPITAL PARTNERS II, L.P. 8,000,458.11 912,185 2,014,090
WILLIAM WEATHERSBY
Nexus Capital Partners II
160 Spear Street ,Suite 1775
San Francisco, CA 94105
SIXTY WALL STREET FUND, L.P. 499,997.39 57,008 686,668
c/o J.P. MORGAN INTERNATIONAL CAPITAL
CORPORATION
ATTN: CAROL LEE
KARL FOOKS
One International Finance Centre, 32nd Floor
No. 1 Harbour View Street
Central, Hong Kong
Total