EXHIBIT 4.37
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PREFERRED STOCK PURCHASE AGREEMENT
BY AND BETWEEN
WAM!NET INC.
AND
BUYERS LISTED ON SCHEDULE 1.1
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Dated as of February 18, 2000
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PREFERRED STOCK PURCHASE AGREEMENT
Preferred Stock Purchase Agreement, dated as of February 17, 2000 (this
"Agreement"), by and between WAM!NET INC., a Minnesota corporation (the
"Company"), and each several purchaser identified on Schedule 1 (individually, a
"Buyer" and collectively "Buyers").
W I T N E S S E T H:
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WHEREAS, the Company has designated an additional series of its
preferred stock, consisting of 10,000 shares, par value $0.01 per share,
designated as its "Class G Convertible Preferred Stock" (the "Preferred
Shares"), and has caused a Certificate of Designation (the "Certificate of
Designation") to be filed with the Minnesota Secretary of State designating the
terms, limitations and relative rights and preferences of the Preferred Shares.
WHEREAS, the Certificate of Designation sets forth terms, limitations
and relative rights and preferences of the Preferred Shares (the "Statement of
Rights and Preferences") a copy of which is attached hereto as Exhibit I.
WHEREAS, the Preferred Shares are convertible into shares (the
"Conversion Shares") of the Company's common stock, par value $0.01 per share
(the "Common Stock") in accordance with the Statement of Rights and Preferences.
WHEREAS, Buyers desires to severally subscribe for and severally
purchase the Preferred Shares from the Company in the amounts set forth on
Schedule 1.1, and the Company desires to issue and sell the Preferred Shares to
Buyers, all in accordance with the terms and subject to conditions of this
Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE OF PREFERRED STOCK
Section 1.1. Purchase and Sale of the Preferred Stock. On the terms and
subject to the conditions set forth in this Agreement, on the Closing Date (as
defined herein), each Buyer shall severally subscribe for and purchase from the
Company, and the Company shall severally issue and sell to each Buyer that
number of the Preferred Shares set forth on Schedule 1.1 for the aggregate
purchase price set forth on Schedule 1.1 payable in cash (the "Purchase Price").
Each Buyer shall execute a separate signature page to this Agreement. A Buyer
shall not be obligated for the Purchase Price of the Preferred Shares beyond the
amount of the Buyer's several subscription.
Section 1.2. Duration, Rights and Preferences of the Preferred Stock.
The Preferred Shares shall have and enjoy the rights and preferences as are set
forth in the Statement of Rights and Preferences.
Section 1.3. Closing. (a) Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 5 hereof, the closing of the purchase and sale of the
Preferred Shares (the "Closing") shall be held at 10:00 a.m. (Central Standard
Time) on the third business day following the satisfaction or waiver of the
conditions set forth herein, at the offices of the Company, 655 Lone Oak Drive,
Eagan, Minnesota (or at such other time, date and place as each Buyer and the
Company may mutually agree). The date on which the Closing actually occurs for a
Buyer is hereinafter referred to as the "Closing Date."
(b) At the Closing, the Company shall deliver to each Buyer
stock certificates registered in the name of such Buyer representing
the Preferred Shares being purchased by such Buyer, against payment
and delivery by such Buyer to the Company of the Purchase Price by
wire transfer of immediately available funds to such bank account or
bank accounts designated by the Company.
(c) Following all Closing Dates, the Company shall furnish to
each Buyer a final and complete Schedule 1.1(the "Definitive Schedule
1.1") showing the name and number of shares purchased by each Buyer.
The Definitive Schedule 1.1 shall be made part of this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 2.1. The Company hereby represents, warrants and covenants to
Buyers that, as of the date hereof and as of the Closing Date:
(a) Corporate Organization and Power; Qualification. The
Company (i) is duly organized, validly existing and in good standing as
a corporation under the laws of the state of Minnesota, (ii) has all
corporate power and authority to own its properties and to carry on its
businesses as now being conducted and (iii) is duly qualified and in
good standing as a foreign corporation, and is authorized to do
business, in all jurisdictions in which the character of its properties
or the nature of its businesses requires such qualification or
authorization, except for qualifications and authorizations the lack of
which, individually or in the aggregate, would not reasonably be
expected to result in a material adverse effect on the business,
financial condition, results of operations, assets or liabilities of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(b) Subsidiaries. Set forth on Schedule 2.1(b) hereto is a
complete list of all of the subsidiaries of the Company. Except as set
forth on Schedule 2.1(b) hereto, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any
corporation, nor does the Company have any direct or indirect ownership
interest, including interests in partnerships and joint ventures, in
any other entity or business. Each of the subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws
of its respective jurisdiction of incorporation and is duly qualified
and in good standing as a foreign corporation, and is authorized to do
business, in all jurisdictions in which the character of
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its properties or the nature of its businesses requires such
qualification or authorization, except for qualifications and
authorizations the lack of which, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect. Each of the subsidiaries has the requisite power and authority
to own and hold its properties and to carry on its business as now
being conducted. Except as disclosed in the registration statements,
reports and proxy statements filed by the Company with the Securities
and Exchange Commission (the "SEC Reports"), disclosed in the Financial
Statements (as defined herein) or set forth on Schedule 2.1(b) hereto:
(i) all of the outstanding shares (other than director's qualifying
shares, if any) of capital stock of each of the subsidiaries are owned
beneficially and of record by the Company, one of its subsidiaries or
any combination thereof, in each case free and clear of any liens,
charges, restrictions, claims or encumbrances created or suffered by
the Company or any of its subsidiaries, other than restrictions on
transfer imposed by the Securities Act of 1933, as amended (the
"Securities Act"), or any other provision of applicable law; and (ii)
there are no outstanding subscriptions, warrants, options, convertible
securities or other rights (contingent or other) pursuant to which any
of the subsidiaries is or may become obligated to issue any shares of
its capital stock to any person other than the Company or a subsidiary.
(c) Power and Authority; Authorization; Enforceability. The
Company has all requisite corporate power and authority necessary to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of
the Company and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Company and constitutes the valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, except as enforceability against the Company may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to the rights of
creditors generally and other general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at
law) and except as any rights to indemnity and contribution
contemplated by Section 6.2 may be limited by applicable federal and
state securities laws and public policy considerations.
(d) No Violations; Consents and Approvals. The execution and
delivery by the Company of this Agreement, the performance by the
Company of its obligations hereunder, and the consummation by the
Company of the transactions contemplated hereby will not (i) violate,
conflict with, result in a breach of, constitute a default under, or
result in or require the creation of any lien upon any assets of the
Company under its Articles of Incorporation, as amended (the
"Charter"), By-laws or any material contract to which the Company is a
party or by which the Company or any of its properties may be bound or
(ii) require any consent or approval other than such consents and
approvals to be obtained before the Closing and those that have been
obtained which are final and not subject to review on appeal or to
collateral attack and are in full force and effect, except for such
violations, conflicts, breaches, defaults or liens which, or consents
or approvals which, if not obtained, would not reasonably be expected
to, individually or in the aggregate, result in a Material Adverse
Effect.
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(e) Litigation; Compliance with Laws. Except as disclosed in
the SEC Reports, disclosed in the Financial Statements or set forth on
Schedule 2.1(e), there are no (i) actions, suits, claims, proceedings
or investigations instituted and pending or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (ii) arbitration
proceedings relating to the Company instituted and pending under
collective bargaining agreements or otherwise or (iii) governmental
inquiries instituted and pending or, to the knowledge of the Company,
threatened, against or affecting the Company, any of which would
reasonably be expected to result in a Material Adverse Effect. Except
for any defaults which would not reasonably be expected to result in a
Material Adverse Effect, neither the Company nor any of its
subsidiaries is in default with respect to any order, writ, injunction
or decree known to or served upon the Company of any court or of any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign. Except
where the failure to do so would not reasonably be expected to result
in a Material Adverse Effect, neither the Company nor any of its
subsidiaries has failed to comply with any laws, rules, regulations and
orders applicable to its respective business, operations, properties,
assets, products and services, the Company and each of its subsidiaries
has all necessary permits, licenses and other authorizations required
to conduct its business as presently conducted and the Company and each
of its subsidiaries has operated its respective business pursuant to
and in compliance with the terms of all such permits, licenses and
other authorizations.
(f) Taxes. The Company has filed (or obtained extensions of
the time by which it is required to file) all United States federal,
state and local income tax returns and all other material tax returns
required to be filed by it, and has paid all taxes shown due on the
returns so filed as well as the other taxes, assessments and
governmental charges which have become due, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves
have been provided. The Company will continue to make all such filings
in a timely manner and pay all such taxes, assessments and other
governmental charges required of it.
(g) Capitalization. (i) As of the date hereof, the authorized
capital stock of the Company consists of 500,000,000 shares, the
designations and classes of which are set forth on Schedule 2.1(g)
hereto. The Company does not hold any of its shares in treasury.
(ii) As of the date hereof, 9,297,427 shares of
Common Stock, par value $0.01 per share, 115,206 shares of the
Company's 1999 Class A Preferred Stock, par value $10.00 per
share (the "Class A Preferred Stock"), 5,710,425 shares of the
Company's Class B Convertible Preferred Stock, par value $0.01
per share (the "Class B Preferred Stock"), 878,527 shares of
the Company's Class C Convertible Preferred Stock, par value
$0.01 per share (the "Class C Preferred Stock"), 2,196,317
shares of the Company's Class D Convertible Preferred Stock,
par value $0.01 per share (the "Class D Preferred Stock")
[64,900] shares of the Company's Class E Convertible Preferred
Stock, par value $.01 per share (the "Class E Preferred
Stock") and 10,000 shares of the Company's Class F Convertible
Preferred Stock, per value $.01 per share (the "Class F
Preferred Stock") are issued and outstanding and have been
validly issued and are fully paid and nonassessable. The Class
A Preferred Stock, the Class B Preferred Stock,
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the Class C Preferred Stock, the Class D Preferred Stock and
the Class F Preferred Stock are not subject to preemptive
rights. The Class E Preferred stock is subject to preemptive
rights for the balance of the authorized and unissued shares
of Class E Preferred Stock.
(iii) Except as contemplated by this Agreement,
disclosed in the SEC Reports, disclosed in the Financial
Statements or set forth on Schedule 2.1(g) hereto, as of the
date hereof there are no outstanding subscriptions, options,
warrants or other rights of any kind to acquire any additional
shares of capital stock of the Company or other instruments or
securities convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to acquire,
any such additional shares of capital stock, nor is the
Company committed to issue any such option, warrant, right or
security. Except as provided for in the Charter, disclosed in
the SEC Reports or set forth on Schedule 2.1(g) hereto, the
Company has no obligation (contingent or other) to purchase,
redeem or otherwise acquire any of its equity securities or
any interest therein or to pay any dividend or make any other
distribution in respect thereof.
(iv) All of the outstanding securities of the Company
were issued in compliance with the registration requirements
under applicable federal and state securities laws (or
pursuant to applicable exemptions therefrom).
(v) Except as contemplated by this Agreement,
disclosed in the SEC Reports or disclosed in the Financial
Statements, as of the date hereof, there are no agreements
relating to voting, purchase or sale of capital stock between
the Company and any of its stockholders or affiliates, and to
the best of the Company's knowledge, there are no such
agreements among any of its stockholders.
(vi) The Preferred Shares are duly authorized and,
when issued and paid for pursuant to the terms of this
Agreement, will be validly issued, fully paid and
nonassessable, will have the rights, preferences and
privileges specified in the Statement of Rights and
Preferences. The Conversion Shares are duly authorized and
have been reserved for issuance and, when issued upon
conversion in accordance with the terms of Statement of Rights
and Preferences, will be validly issued, fully paid and
nonassessable, and will be free and clear of all liens,
encumbrances and restrictions (other than those contemplated
hereby , restrictions on transfer imposed by the Securities
Act or any other applicable federal or state securities laws,
and the rules and regulations promulgated thereunder). Neither
the issuance, sale or delivery of the Preferred Shares nor the
contemplated issuance or delivery of the Conversion Shares is
subject to any currently existing preemptive right of
stockholders of the Company, any right of first refusal or
other right in favor of any person, in each case except for
rights that have been waived.
(h) Financial Statements. The Company has delivered to Buyers
copies of its financial statements (including balance sheets, income
statements, changes in stockholders equity, statements of cash flow and
any related notes) for the year ended December 31, 1998, and for the
fiscal quarters ended March 31, June 30 and September 30, 1999 (the
"Financial Statements"). The Financial Statements (i) fairly present,
in all material respects, the financial condition, assets and
liabilities of the Company as of the date thereof and the results of
its operations and changes in its cash flows for the periods covered
thereby, (ii) were prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the
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periods involved, except as may be noted therein, and (iii) were
prepared from the books and records of the Company, which books and
records are complete and correct and fairly reflect all material
transactions of the Company's business.
(i) Absence of Certain Changes. Except as contemplated by this
Agreement, disclosed in the SEC Reports or set forth on Schedule 2.1(i)
hereto, since September 30, 1999, (i) there has been no change in the
assets, liabilities or financial condition of the Company and its
subsidiaries (on a consolidated basis) from that reflected in the
balance sheet of the Company and its subsidiaries as of September 30,
1999, except for changes (A) in the ordinary course of business or (B)
which in the aggregate have not resulted in and would not reasonably be
expected to result in a Material Adverse Effect and (ii) there has not
been any event or change that would reasonably be expected to result in
a Material Adverse Effect, individually or in the aggregate, whether or
not insured against (excluding general economic or industry changes).
(j) No Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Company, except Merrill Lynch
& Co.
(k) Proprietary Information of Third Parties. Except for such
claims that would not reasonably be expected to result in a Material
Adverse Effect, to the knowledge of the Company, no third party has
claimed or has reason to claim that the Company or any of its
subsidiaries has (a) violated or may be violating any of the terms or
conditions of any non-competition or non-disclosure agreement with such
third party, (b) disclosed or may be disclosing or utilized or may be
utilizing any trade secret or proprietary information or documentation
of such third party or (c) interfered or may be interfering in the
employment relationship between such third party and any of its present
or former employees. Neither the Company nor any of its subsidiaries
has utilized and does not propose to utilize any trade secret or any
information or documentation proprietary to any other person in
violation of existing arrangements with such person, and to the
knowledge of the Company, neither the Company nor any of its
subsidiaries has violated any confidential relationship which any such
person may have had with any third party, in connection with the
development, manufacture or sale of any product or the development or
sale of any service of the Company.
(l) Patents, Trademarks, Etc. Set forth on Schedule 2.1(l)
hereto is a list of all domestic and foreign trademarks, trademark
applications, patents, registered copyrights (except copyrighted
software licensed to the Company in its ordinary course of business)
and patent applications owned by, registered in the name of or licensed
to or from the Company and its subsidiaries as of the date hereof.
Except where the failure to do so would not reasonably be expected to
result in a Material Adverse Effect, the Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names (including those necessary for the use and
protection of the names and/or marks "WAM!NET", "WAM!BASE" and
"WAM!PROOF") or other intellectual property (collectively,
"Intellectual Property") necessary to carry on its business as
presently conducted. Except as set
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forth on Schedule 2.1(l) hereto, neither the Company nor any subsidiary
has received any notice of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company
or any of its subsidiaries, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.
(m) Title to Properties. Except as disclosed in the SEC
Reports, the Company and its subsidiaries have good and valid title to
all real and personal property which they own and which are reflected
on the Financial Statements (except for assets and properties sold,
consumed or otherwise disposed of by them in the ordinary course of
business since December 31, 1998), and such assets and properties are
owned free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (i)
those securing indebtedness reflected on the Financial Statements or
indebtedness incurred in the ordinary course of business and consistent
with past practice after the date thereof, (ii) mechanics',
materialmens' and other liens which have arisen in the ordinary course
of business or (iii) mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances which, individually or in the
aggregate, would not be reasonably likely to impair, in any material
respect, the continued use of such asset or property.
(n) Agreements. Except as set forth in Schedule 2.1(o) hereto
or disclosed in the Financial Statements, all material agreements,
contracts or instruments required to be filed as exhibits to the SEC
Reports have been so filed. Neither the Company nor any of its
subsidiaries is in breach or default of any agreement, contract,
instrument or other commitment, except for such breaches and defaults
which would not reasonably be expected to result in a Material Adverse
Effect. To the knowledge of Company, no other party to any of such
agreements, contracts, instruments or other commitments is, as of the
date of this Agreement, in breach or default (and no event has occurred
which with notice or the lapse of time or both would constitute a
default or violation) thereunder, except for such breaches and defaults
which would not reasonably be expected to result in a Material Adverse
Effect. The Company is in full compliance with all of the terms and
provisions of its Charter and By-laws, except where the failure to so
comply would not reasonably be expected to result in a Material Adverse
Effect.
(o) Offering of the Preferred Shares. The Company has not,
directly or indirectly, solicited any other offer to buy or offered to
sell, and will not, directly or indirectly, solicit any other offer to
buy or offer to sell, any security which is or would be integrated with
the sale of the Preferred Shares in a manner that would require the
Preferred Shares to be registered under the Securities Act.
(p) Transactions With Affiliates. Except as disclosed in the
SEC Reports or disclosed in the Financial Statements, neither the
Company nor any subsidiary is a party to any transaction of the type
required to be disclosed pursuant to Item 404 of Regulation S-K under
the Securities Act.
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(q) Disclosure. Neither this Agreement (including the
Schedules hereto) nor the SEC Reports (as of the date filed with the
Securities and Exchange Commission) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. None of the
statements, documents, certificates or other items prepared by the
Company and supplied to Buyers or their respective counsel in
connection with the transactions contemplated hereby (other than those
relating to (i) projected financial information, (ii) plans and
objectives regarding the Company's future operations, (iii) future
economic performance and (iv) assumptions underlying any of the matters
described in (i) through (iii), each as to which no representation or
warranty is given) contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BUYERS
Section 3.1. Each Buyer hereby represents, warrants and covenants to
the Company that:
(a) Corporate Organization and Power; Qualification. Buyer (i)
is duly organized, validly existing and in good standing as a
corporation under the laws of the state of its incorporation or
organization and has all corporate power and authority to own its
properties and to carry on its businesses as now being conducted, or
(ii) Buyer is an individual with legal capacity to enter into this
Agreement.
(b) Power and Authority; Authorization; Enforceability. Buyer
has all requisite corporate or other power and authority necessary to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action or other
action on the part of Buyer and no other corporate proceedings or other
action on the part of Buyer are necessary to authorize this Agreement
and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Buyer and constitutes the valid
and binding obligation of Buyer, enforceable against it in accordance
with its terms, except as enforceability against Buyer may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to the rights of
creditors generally and other general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at
law) and except as any rights to indemnity and contribution
contemplated by Section 6.2 may be limited by applicable federal and
state securities laws and public policy considerations.
(c) Consents and Approvals. The execution and delivery by
Buyer of this Agreement , the performance by Buyer of its obligations
hereunder, and the consummation by Buyer of the transactions
contemplated hereby will not require any consent or approval other than
such consents and approvals to be made and obtained before the Closing
and those that have been obtained which are final and not subject to
review on appeal or to collateral attack and are
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in full force and effect, except for such consents or approvals which,
if not obtained would not reasonably be expected to, individually or in
the aggregate, result in a material adverse effect on the business,
financial condition, results of operations, assets or liabilities of
Buyer.
(d) Due Diligence. Buyer has sufficient knowledge and
experience in investing in companies similar to the Company in terms of
the Company's stage of development and is capable of evaluating the
merits and risks of its investment in the Company as contemplated by
this Agreement and is able to bear the economic risk of such investment
for an indefinite period of time. Buyer has been given access to full
and complete information regarding the Company and has utilized such
access to its satisfaction for the purpose of obtaining information
Buyer desires or deems relevant to its decision to purchase the
Preferred Shares. Buyer has had the opportunity to ask questions of and
receive answers from representatives of the Company concerning the
terms and conditions of this Agreement, to discuss the Company's
business, management and financial affairs with the Company's
management and to obtain any additional information Buyer desires or
deems relevant. Buyer has obtained, to the extent it has deemed
necessary, professional advice with respect to the risks inherent in
the investment in the Preferred Shares and the Company, including,
without limitation, the matters relating to the Company's business and
financial condition set forth in the SEC Reports.
(e) Investment Intent. Buyer is acquiring the Preferred Shares
for its own account for investment and not with a view towards the
resale, transfer or distribution thereof, nor with any present
intention of distributing the Preferred Shares in violation of the
Securities Act or any other applicable federal or state securities
laws, and the rules and regulations promulgated thereunder. Buyer
understands that no public market currently exists for the Preferred
Shares or the Common Stock, and that no such public market may ever
exist. Buyer further understands and agrees that the Preferred Shares
have not been (and the Conversion Shares, upon issuance, will not be)
registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities
Act, that the Preferred Shares and the Conversion Shares will bear a
legend (and the Company will make a notation on its transfer books) to
such effect and the Preferred Shares (and, upon issuance, the
Conversion Shares) must be held indefinitely unless subsequently
disposed of pursuant to an effective registration statement under the
Securities Act or in a transaction exempt from, or not subject to, the
registration requirements thereof. Buyer agrees that if it sells any
Conversion Shares pursuant to Rule 144A under the Securities Act, it
will take all necessary steps in order to perfect the exemption from
registration provided thereby, including, without limitation, obtaining
on behalf of the Company information to enable the Company to establish
a reasonable belief that the purchaser is a "qualified institutional
buyer" (within the meaning of Rule 144A) and advising such purchaser
that Rule 144A is being relied upon with respect to such resale. Buyer
was not organized for the specific purpose of acquiring the Preferred
Shares and is an "accredited investor" within the meaning of Rule
501(a) of the Securities Act.
(f) No Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Buyer.
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ARTICLE IV.
CONDITIONS
Section 4.1. Conditions of Each Party. All proceedings to be taken by a
party in connection with this Agreement and the transactions contemplated hereby
and all documents incident hereto and thereto shall be reasonably satisfactory
in form and substance to such party and its counsel, and each party and its
counsel shall have received all such counterpart originals or certified or other
copies of such documents as they may reasonably request.
Section 4.2. Conditions of the Company. The obligations of the Company
to consummate the transactions contemplated hereby with each Buyer are subject
to the fulfillment, at or prior to the Closing, of each of the following
conditions by such Buyer, any or all of which may be waived in whole or in part
by the Company to the extent permitted by applicable law:
(a) Buyer shall have performed and complied with, in all
material respects, all of its respective obligations hereunder required
to be performed by it at or prior to the Closing;
(b) Each of the representations and warranties of Buyer
contained in this Agreement and in any certificate or other writing
delivered by Buyer pursuant hereto qualified as to materiality shall be
true and correct, and those not so qualified shall be true and correct,
in all material respects in each case at and as of the Closing Date as
if made at and as of such time (except to the extent it relates to a
particular date);
(c) The Company shall have received a certificate from each
Buyer, signed by an executive officer of such Buyer, to the effect set
forth in clauses (a) and (b) of this Section 4.2;
Section 4.3. Conditions of Buyer. The obligation of each Buyer to
consummate the transactions contemplated by this Agreement is subject to the
fulfillment, at or prior to the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by such Buyer to the
extent permitted by applicable law:
(a) The Company shall have performed and complied with, in all
material respects, all of its obligations hereunder required to be
performed by it at or prior to the Closing;
(b) Each of the representations and warranties of the Company
contained in this Agreement and in any certificate or other writing
delivered by the Company pursuant hereto qualified as to materiality
shall be true and correct, and those not so qualified shall be true and
correct, in all material respects at and as of the Closing Date as if
made at and as of such time (except to the extent it relates to a
particular date);
(c) Buyers shall have received a certificate from the Company,
signed by an executive officer of the Company, to the effect set forth
in clauses (a) and (b) of this Section 4.3;
(d) The Company shall have delivered copies of the following
documents: (i) (A) The Charter, certified as of a recent date by the
Secretary of State of the State of Minnesota and (B) a certificate of
said Secretary dated as of a recent date as to the due incorporation
and
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good standing of the Company; and (ii) a certificate of the Secretary
or an Assistant Secretary of the Company dated the Closing Date and
certifying: (A) that attached thereto is a true and complete copy of
the By-laws of the Company as in effect on the date of such
certification; (B) that attached thereto is a true and complete copy of
all resolutions adopted by the Board of Directors or the stockholders
of the Company authorizing the execution, delivery and performance of
this Agreement, the issuance, sale and delivery of the Preferred Shares
and the reservation, issuance and delivery of the Conversion Shares,
and that all such resolutions are in full force and effect and are all
the resolutions adopted in connection with the transactions
contemplated by this Agreement; and (C) that the Charter has not been
amended since the date of the last amendment referred to in the
certificate delivered pursuant to Section 4.3(f)(i)(B).
(e) Buyers shall have received from Willkie Farr & Gallagher
an opinion, dated the Closing Date, covering the matters set forth in
Exhibit II hereto, subject to customary qualifications, limitations and
assumptions for opinions given in transactions of the kind contemplated
hereby.
Section 4.4. Materiality of Conditions. Notwithstanding anything
contained herein, no condition involving the performance of obligations by the
Company or the truth and accuracy of representations and warranties made by the
Company as of the Closing Date shall be deemed not fulfilled, and Buyers shall
not be entitled to fail to consummate the transactions contemplated hereby or
terminate this Agreement on such basis, if the respects in which such conditions
have not been performed or such representations and warranties are untrue
(assuming for this purpose that the representations and warranties are not
qualified by materiality), in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
ARTICLE V.
TERMINATION
Section 5.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by joint written agreement of the Company and Buyers;
(b) by the Company, if a Buyer has breached any
representation, warranty, covenant or agreement contained in this
Agreement and has not cured such breach within ten (10) business days
after written notice to such Buyer (provided that the Company is not
then in material breach of the terms of this Agreement; and provided
further that no cure period shall be required for a breach which by its
nature cannot be cured) such that the conditions set forth in Section
4.1 or 4.2 hereof, as the case may be, will not be satisfied;
(c) by a Buyer, if the Company has breached any
representation, warranty, covenant or agreement contained in this
Agreement and has not cured such breach within ten (10) business days
after written notice to the Company (provided that such Buyer is not
then in material breach of the terms of this Agreement; and provided
further that no cure period shall be
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required for a breach which by its nature cannot be cured) such that
the conditions set forth in Section 4.1 or 4.3 hereof, as the case may
be, will not be satisfied; or
(d) by any party if the Closing applicable to such party has
not occurred on or before February 24, 2000; provided, however, that a
party may not terminate this Agreement pursuant to this Section 5.1(d)
if the failure of such party to fulfill any of its obligations
hereunder shall have been the reason that the Closing shall not have
occurred on or before said date.
Section 5.2. Effect of Termination. In the event of termination of this
Agreement pursuant to this Article V, this Agreement shall forthwith terminate
and (except in the event of the willful breach of this Agreement by any party)
there shall be no liability on the part of any party; provided, however, that
Sections 2.1(j), 3.1(f), 5.2, 6.2, 7.1, 7.2, 7.4, 7.7 and 7.10 shall survive the
termination of this Agreement.
ARTICLE VI.
OTHER AGREEMENTS
Section 6.1. Registration Rights.
(a) Piggy-back Registration. If, commencing upon the later of
one (1) year after the date hereof and the date that is six months
after an IPO, the Company proposes to claim an exemption under Section
3(b) of the Securities Act for a public offering of any of its
securities or to register under the Securities Act (except pursuant to
a registration statement on Form S-4 or S-8 (or any substitute form
adopted by the Commission) or any other form that does not permit the
inclusion of shares by its security holders) its Common Stock, it will
give written notice to each Buyer of its intention to do so and, upon
the written request of a Buyer given within twenty (20) days after
receipt of any such notice (which request shall specify the number of
Conversion Shares intended to be sold or disposed of by such Buyer and
the nature of any proposed sale or other disposition thereof), the
Company will use its best efforts to cause all Conversion Shares that
such Buyer shall have requested the registration of to be included in
such notification or the registration statement proposed to be filed by
the Company; provided, however, that nothing herein shall prevent the
Company from, at any time, abandoning or delaying any such registration
initiated by it. If any such registration shall be underwritten in
whole or in part, the Company may require that the Conversion Shares
requested for inclusion pursuant to this Section 6.1 be included in the
underwriting on the same terms and conditions as the securities
otherwise being sold through the underwriters. If in the good faith
judgment of the managing underwriter, as expressed in writing delivered
to such Buyer, the inclusion of all of the Conversion Shares of Common
Stock originally covered by a request for registration would reduce the
number of Common Stock to be offered by the Company or interfere with
the successful marketing of the Common Stock offered by the Company,
the number of Conversion Shares otherwise to be included pursuant to
this Section 6.1 in the underwritten public offering may be reduced;
provided, however, that any such required reduction shall be pro rata
among all persons (other than the Company and any other persons
demanding registration pursuant to existing rights who are entitled to
be protected against any such reduction) who are participating in such
offering.
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Conversion Shares which are thus excluded from the underwritten public
offering shall be withheld from the market for a period, not to exceed
90 days, which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering. All
expenses of such offering, except the fees of special counsel to
Buyer(s) and brokers' commissions or underwriting discounts payable by
Buyer(s), shall be borne by the Company.
(b) Demand Registration. In addition, on one occasion only,
commencing upon the later of one (1) year after the date hereof and the
date that is nine months after an IPO, upon request to register the
Conversion Shares by the holders of a majority of voting rights
represented by the Class G Preferred Stock and the Conversion Shares,
the Company will promptly use its reasonable best efforts to register
the Conversion Shares under the Securities Act; provided that (i) such
request must be made within five (5) years from the date hereof and
(ii) the Company may delay the filing of any registration statement
requested pursuant to this Section 6.1(b) to a date not more than
ninety (90) days following the date of such request if in the opinion
of the Company's principal investment banker at the time of such
request such a delay is necessary in order not to adversely affect the
Company's financing efforts then underway or if in the opinion of the
Company such a delay is necessary or advisable to avoid disclosure of
material nonpublic information. The costs and expenses directly related
to any registration requested pursuant to this Section 6.1(b),
including, but not limited to, legal fees of the Company's counsel,
audit fees, printing expenses, filing fees of the Commission and the
National Association of Securities Dealers, Inc. and fees and expenses
relating to qualifications under state securities or blue sky laws
incurred by the Company shall be borne entirely by the Company;
provided, however, that the persons for whose account the securities
covered by such registration are sold shall bear the expenses of
brokers' commissions or underwriting discounts applicable to their
shares and fees of their legal counsel. If Buyers are the only persons
whose shares are included in the registration pursuant to this Section
6.1(b), Buyers shall bear on a pro rata basis the expense of inclusion
of any audited financial statements contained in the registration
statement which are not dated as of the Company's fiscal year-end or
are not otherwise prepared by the Company for its own business
purposes. The Company shall keep effective and maintain any
registration statement specified in this Section 6.1(b) for such period
as may be necessary for Buyers to dispose of the Conversion Shares so
registered, and from time to time shall amend or supplement, at Buyers'
expense, the prospectus used in connection therewith to the extent
necessary in order to comply with applicable law; provided that the
Company shall not be obligated to maintain any registration statement
for a period of more than nine (9) months. If, at the time any written
request for registration is received by the Company pursuant to this
Section 6.1(b), the Company had previously determined to proceed with
the preparation and filing of a registration statement under the
Securities Act in connection with the proposed offer and sale of Common
Stock, such written request shall be deemed to have been given pursuant
to Section 6.1(a) rather than this Section 6.1(b), and the rights of
Buyers shall be governed by Section 6.1(a) hereof
(c) Registration Procedures. If and whenever the Company is
required by the provisions of Sections 6.1(a) or 6.1(b) hereof to
effect the registration of Conversion Shares under the Securities Act,
the Company will:
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(i) prepare and file with the Commission a
registration statement with respect to such securities, and
use its reasonable best efforts to cause such registration
statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such
securities, not to exceed nine (9) months;
(ii) prepare and file with the Commission such
amendments to such registration statement and supplements to
the prospectus contained therein as may be necessary to keep
such registration statement effective for such period as may
be reasonably necessary to effect the sale of such securities,
not to exceed nine (9) months;
(iii) furnish to the security holders participating
in such registration and to the underwriters of the securities
being registered, such reasonable number of copies of the
registration statement, preliminary prospectus, final
prospectus and such other documents as such participating
security holders and underwriters may reasonably request in
order to facilitate the public offering of such securities;
(iv) use its reasonable best efforts to register or
qualify the securities covered by such registration statement
under such state securities or blue sky laws of such
jurisdictions as such participating security holders and
underwriters may reasonably request in writing within 30 days
following the original filing of such registration statement,
except that the Company shall not for any purpose be required
to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
(v) notify the participating security holders,
promptly after it shall receive notice thereof, of the time
when such registration statement has become effective or a
supplement to any prospectus forming a part of such
registration statement has been filed;
(vi) notify such participating security holders
promptly of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or
for additional information;
(vii) prepare and file with the Commission, promptly
upon the request of any such participating security holders,
any amendments or supplements to such registration statement
or prospectus which, in the opinion of counsel for such
holders (and concurred with by counsel for the Company), is
required under the Securities Act or the rules and regulations
promulgated thereunder in connection with the distribution of
such Conversion Shares by such holder;
(viii) prepare and promptly file with the Commission
and promptly notify such participating security holders of the
filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under
the Securities Act, any event shall have occurred as the
result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material
fact or omit to
-14-
state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were
made, not misleading;
(ix) advise such participating security holders,
promptly after it shall receive notice of the issuance of any
stop order by the Commission suspending the effectiveness of
such registration statement or the initiation or threatening
of any proceeding for that purpose, and promptly use its
reasonable best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be
issued; and
(x) furnish on the effective date of the registration
statement and, if such registration includes an underwritten
public offering, at the closing provided for in the
underwriting agreement: (A) opinions, dated such respective
dates, of counsel representing the Company for the purposes of
such registration, addressed to the underwriters, covering
such matters as such persons may reasonably request in
customary form as would be given to underwriters in connection
with underwritten offerings and (B) letters, dated such
respective dates, from the independent certified public
accountants of the Company addressed to the underwriters, in
customary form and concerning matters of the type customarily
covered in "comfort" letters in connection with underwritten
offerings, and such other matters as permitted by the
Statement on Accounting Standards No. 72.
(d) Indemnification. In connection with such registration, the
Company shall indemnify each Buyer, its officers, directors, employees
and agents, and any person who controls such Buyer within the meaning
of Section 15 of the Securities Act, against all losses, claims,
damages and liabilities caused by any untrue statement of a material
fact contained in any registration statement or prospectus, (and as
amended or supplemented, if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission contained in
information furnished in writing to the Company by a Buyer expressly
for use therein, and each Buyer agrees that it will indemnify and hold
harmless the Company and each of its officers who signs such
registration statement and each of its directors and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act with respect to losses, claims, damages or liabilities
which are caused by any untrue statement or omission contained in
information furnished in writing to the Company by such Buyer expressly
for use therein.
(e) Contribution. In addition, in connection with any such
registration, the Company and Buyers agree that if the indemnification
to be provided for pursuant to Section 6.1(d) is unavailable to an
indemnified party as provided herein in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then the Company
or a Buyer (as the case may be), in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the Company, on the one hand, and Buyers, on the
other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault
of the Company on the one hand, and of a Buyer, on
-15-
the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statements of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by a Buyer, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, without limitation, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim. The Company and Buyers agree that it
would not be just and equitable if contribution pursuant to this
Section 6.1(e) were determined by a pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in this Section 6.1(e). Notwithstanding the
provisions of this Section 6.1(e), a Buyer shall not be required to
contribute any amount in excess of the amount by which the total price
which the Buyer's securities were sold to the public. The parties agree
that in connection with any such registration, no person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) Termination. The registration rights provided in this
Section 6.1 shall terminate on the earliest to occur of: (i) the date
that is three (3) years from the date hereof and (ii) the date on which
all of the Conversion Shares then held by Buyer could be sold pursuant
to Rule 144(k) under the Securities Act (or any comparable or successor
provision).
Section 6.2. Confidentiality. (a) Without the consent of the other
party, neither Buyers nor the Company shall make any public comment, statement
or communication with respect to, or otherwise disclose or permit the disclosure
of the terms of this Agreement and the transactions contemplated hereby, and
each party shall cause its authorized officers, directors, partners, employees,
counsel, accountants, agents and other representatives (collectively,
"Representatives") to strictly comply with the foregoing.
(b) Each of the parties hereby covenants and agrees to use
due care to prevent the disclosure of the information and other
material furnished under or in connection with this Agreement to
persons other than its Representatives who have a need to know such
information or to have access to such material in connection with
Buyers' investment in the Company and who have agreed to keep such
information and material confidential. For purposes of this Section
6.2(b), "due care" means at least the same level of care that a person
would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination
of this Agreement.
(c) Notwithstanding Sections 6.2(a) and (b), either party may
disclose or deliver any information or other material disclosed to or
received by it (i) should such party be advised by its counsel that
such disclosure or delivery is required by law, regulation, legal
process or administrative order, if the disclosing party has first
provided the other party with prompt notice of the request to disclose
or deliver such information or other material a reasonable period of
time in advance of making such disclosure or delivery so as to enable
such other party to seek a protective order or other appropriate remedy
or (ii) in connection with a public or private financing effected by
the Company, to the extent required in any Registration
-16-
Statement, prospectus or other offering document, or to the extent
necessary to make any statements contained in any of the foregoing not
misleading.
(d) In the event of any termination of this Agreement prior to
the Closing Date, Buyers shall return to the Company all material
previously furnished to it or its Representatives in connection with
this transaction.
Section 6.3. Information Rights. From and after the Closing Date until
the earlier to occur of (i) the issuance of shares of Common Stock to the public
in an underwritten offering pursuant to a registration statement filed under the
Securities Act covering the offer and sale of Common Stock (an "IPO") and (ii)
the date on which a Buyer no longer owns any Preferred Shares, within 45 days
following the end of each of its first three fiscal quarters and within 90 days
following the end of its fourth fiscal quarter, the Company shall furnish Buyer
with a copy of its financial statements, (including balance sheets, income
statements, changes in stockholders equity and statements of cash flow) for each
of such quarters and fiscal year, respectively. In addition, during such period,
the Company will furnish each Buyer with such additional financial and business
information, including monthly or other periodic financial statements as the
Company may prepare from time to time, upon the reasonable request of a Buyer
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Amendments, Waivers and Consents. No provision in this
Agreement may be altered or amended, and compliance with any covenant or
provision set forth herein may not be omitted or waived for a Buyer or for the
Company, except by an instrument in writing duly executed by such Buyer and the
Company. Any waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 7.2. Notices. All notices required or permitted by this
Agreement shall be in writing, and shall be hand delivered, sent by facsimile or
nationally recognized overnight delivery service, addressed as follows:
(a) If to a Buyer, to the name and address for notice
appearing on the Signature Page to this Agreement for such Buyer
(b) If to the Company:
WAM!NET INC.
655 Lone Oak Drive
Eagan, MN 55121
Attention: Edward J. Driscoll, III, President
Telephone: 651-256-5100
Facsimile: 651-994-9591
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with a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
Attention: Daniel D. Rubino, Esq.
Telephone: 212-728-8000
Facsimile: 212-728-8111
or to such other person or address as a party shall specify by notice
in writing to the other party. All such notices and other
communications shall be effective when received.
Section 7.3. Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the Company and Buyers. No assignment
of rights or delegation of duties arising under this Agreement may be made by
any party hereto without the prior written consent of the other party.
Section 7.4. Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the parties hereto and such permitted assigns, any legal or equitable
rights hereunder.
Section 7.5. Entire Agreement. This Agreement (including all Schedules
and Exhibits hereto) constitutes the entire agreement between the parties hereto
with respect to the subject matter contained herein and supersedes all other
prior understandings or agreements, both written and oral, between the parties
with respect to the matters contained herein.
Section 7.6. Severability. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement; but this Agreement shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
Section 7.7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Minnesota without regard
to its principles of conflicts of laws.
Section 7.8. Headings. Article, Section and sub-Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
Section 7.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
taken together shall
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constitute one and the same instrument, and any of the parties hereto may
execute this Agreement by signing any such counterpart by original or facsimile
signature.
Section 7.10. Expenses. Each party shall pay the fees and expenses of
its respective counsel, accountants and other experts (including any broker,
finder, advisor or intermediary), and shall pay all other expenses incurred by
it in connection with the negotiation, preparation and execution of this
Agreement and the consummation of the transactions contemplated hereby.
Section 7.11. Exhibits and Schedules. The following Exhibits and
Schedules are attached and made part of this Agreement.
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EXHIBITS
I. Rights and Preferences of Class G Convertible Preferred Stock
II. Opinion of Willkie Farr & Gallagher
SCHEDULES
1.1 Buyers and Purchase Price
2.1(b) WAM!NET Inc. Subsidiaries
2.1(e) Litigation, Compliance with Laws
2.1(g) Capital Structure as of January 31, 2000
2.1(i) None
2.1(l) Trademarks
2.1(o) - 1 Master Agreement by and between Winstar Wireless, Inc.
2.1(o) - 2 Securities Purchase Agreement dated as of December 31, 1999, among
WAM!NET Inc., Winstar Communications, Inc. and Winstar Credit
Corp.
2.1(o) - 3 Certificate of Designation of Rights and Preferences of Class E
Convertible Preferred Stock of WAM!NET Inc.
2.1(o) - 4 Securities Purchase Agreement dated as of February 3, 2000, among
WAM!NET Inc. and Silicon Graphics, Inc.
2.1(o) - 5 Certificate of Designation of Rights and Preferences of Class F
Convertible Preferred Stock of WAM!NET Inc.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
WAM!NET INC.
------------------------------------
By:
Its: Assistant Secretary and General Counsel
Buyer
---------------------------------
(printed name)
By:
------------------------------
---------------------------------
(printed name)
Its:
-----------------------------
Address for Notice
------------------------------------------
------------------------------------------
------------------------------------------
Attention:
-----------------------------------
Telephone
-----------------------------------
Facsimile:
-----------------------------------
with a copy to:
------------------------------------------
------------------------------------------
------------------------------------------
Attention:
-----------------------------------
Telephone
-----------------------------------
Facsimile:
-----------------------------------
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Schedule 1.1
Buyers and Purchase Price
Number of Shares
Buyer Severally Purchased Purchase Price
- ----- ------------------- --------------
Sumitomo Corporation 5,000 $ 5,000,000
NEC Corporation 1,000 $ 1,000,000
Dentsu Tec Inc. 500 $ 500,000
Dainippon Ink & Chemicals, Inc. 500 $ 500,000
KDD Technology Corp. 100 $ 100,000
KDD Corp. 500 $ 500,000
Kyoritsu Printing Co., Ltd. 300 $ 300,000
Creek & River Co., Ltd. 200 $ 200,000
Craig W. Funk 250 $ 250,000
Others* 1,650 $ 1,650,000
----------- -------------
Totals: 10,000 $ 10,000,000
*Estimated Maximum