CENTURA SOFTWARE CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
FEBRUARY 27, 1998
TABLE OF CONTENTS
PAGE
1. Purchase and Sale of Common Stock and Warrants. . . . . . . . . . . . . . . 1
1.1 Sale and Issuance of Common Stock and Warrants. . . . . . . . . . . . 1
1.2 Closing; Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Representations and Warranties of the Company . . . . . . . . . . . . . . . 2
2.1 Organization, Good Standing and Qualification . . . . . . . . . . . . 2
2.2 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Valid Issuance of Securities. . . . . . . . . . . . . . . . . . . . . 3
2.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Compliance with Other Instruments . . . . . . . . . . . . . . . . . . 3
2.7 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Representations and Warranties of the Purchasers. . . . . . . . . . . . . . 4
3.1 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Purchase Entirely for Own Account . . . . . . . . . . . . . . . . . . 4
3.3 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Restricted Securities . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.6 Accredited Investor . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Registration of Securities. . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Resale Restrictions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Conditions of the Purchasers' Obligations at Closing. . . . . . . . . . . . 9
6.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . . 9
6.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Compliance Certificate. . . . . . . . . . . . . . . . . . . . . . . .10
6.4 Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.5 Opinion of Company Counsel. . . . . . . . . . . . . . . . . . . . . .10
7. Conditions of the Company's Obligations at Closing. . . . . . . . . . . . .10
7.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . .10
7.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
7.3 Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8.1 Survival of Warranties. . . . . . . . . . . . . . . . . . . . . . . .10
8.2 Transfer; Successors and Assigns. . . . . . . . . . . . . . . . . . .10
8.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
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TABLE OF CONTENTS
PAGE
8.5 Titles and Subtitles. . . . . . . . . . . . . . . . . . . . . . . . .11
8.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8.7 Company Advisor / Payment of Fees . . . . . . . . . . . . . . . . . .11
8.8 Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8.9 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . .12
8.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
8.11 Delays or Omissions. . . . . . . . . . . . . . . . . . . . . . . . .12
8.12 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .12
8.13 Corporate Securities Law . . . . . . . . . . . . . . . . . . . . . .12
8.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . .13
8.15 Exculpation Among Purchasers . . . . . . . . . . . . . . . . . . . .13
8.16 Advice of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . .13
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CENTURA SOFTWARE CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This Common Stock and Warrant Purchase Agreement (the "AGREEMENT") is made
as of the 27th day of February, 1998 by and between Centura Software
Corporation, a California corporation (the "COMPANY") and the investors listed
on EXHIBIT A attached hereto (each a "PURCHASER" and together the "PURCHASERS").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK AND WARRANTS.
1.1 SALE AND ISSUANCE OF COMMON STOCK AND WARRANTS. Subject to the
terms and conditions of this Agreement, each Purchaser agrees to purchase at the
Closing and the Company agrees to sell and issue to each Purchaser at the
Closing that number of shares of Common Stock indicated with respect to such
Purchaser on EXHIBIT A attached hereto at a purchase price of $1.06 per share
and a warrant in the form attached hereto as EXHIBIT B to purchase that number
of shares of Common Stock indicated with respect to such Purchaser on EXHIBIT A
at a purchase price of $1.25 per share of Common Stock issuable upon exercise of
the warrant. The shares of Common Stock and the warrants issued to the
Purchaser pursuant to this Agreement shall be hereinafter referred to as the
"STOCK" and the "WARRANTS," respectively, and the shares of Common Stock
issuable upon exercise of the Warrants shall be hereinafter referred to as the
"WARRANT STOCK." The Stock, the Warrants and the Warrant Stock shall be
hereinafter referred to as the "SECURITIES."
1.2 CLOSING; DELIVERY.
(a) The purchase and sale of the Stock and the Warrants shall
take place on February __, 1998, or at such other time as the Company and the
Purchasers mutually agree upon, orally or in writing (which time is designated
as the "CLOSING").
(b) At the Closing, each Purchaser shall cause the purchase
price of the Stock and the Warrants being purchased to be delivered to the
escrow agent as provided in the Escrow Agreement attached hereto as Exhibit E
(the "ESCROW AGREEMENT"), and the Company shall cause a certificate representing
the Stock being purchased by each Purchaser and a Warrant for each Purchaser
exercisable for the applicable number of shares of Common Stock of the Company
for such Purchaser to be delivered to the escrow agent as provided in the Escrow
Agreement. Upon the satisfaction of all the conditions set forth in Sections 6
and 7 hereof, the escrow agent shall be instructed to release the purchase price
to the Company, and the certificate representing the Stock and the Warrants to
each Purchaser all in accordance with the terms of the Escrow Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions
attached hereto as EXHIBIT C, which exceptions shall be
deemed to be representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to carry on its business.
2.2 CAPITALIZATION. The authorized capital of the Company consists,
or will consist, immediately prior to the Closing, of 60,000,000 shares of
Common Stock, $0.01 par value per share, of which 15,780,886 shares were issued
and outstanding as of February 9, 1998, and 2,000,000 shares of Preferred Stock,
$0.01 par value per share, none of which are issued or outstanding. All such
shares have been duly authorized, and all such issued and outstanding shares
have been validly issued, are fully paid and nonassessable, are not subject to
any preemptive rights or rights of first refusal (other than rights of first
refusal held by the Company) under applicable law, the Articles of Incorporation
or Bylaws of the Company, or any agreement to which the Company is a party or by
which it is bound and are free of any liens or encumbrances other than any liens
or encumbrances created by or imposed upon the holders thereof. The Company is
concurrently with the Closing of the issuance and sale of the Securities
hereunder closing an agreement providing for the conversion of approximately
$12.2 million of outstanding indebtedness into shares of Common Stock of the
Company at a conversion price of $1.06 per share. The Company has also reserved
(i) an aggregate of 2,000,000 shares of Common Stock issuable to employees and
consultants pursuant to the Company's 1995 Stock Option Plan, of which 1,164,947
shares are issuable upon exercise of outstanding options under such plan, (ii)
an aggregate of 2,657,399 shares of Common Stock issuable to employees and
consultants pursuant to the Company's 1986 Stock Option Plan, of which 2,657,399
shares are issuable upon exercise of outstanding options under such plan,
(iii) an aggregate of 400,000 shares of Common Stock issuable to employees
pursuant to the Company's 1992 Employee Stock Purchase Plan, of which no shares
are available for future issuance under such plan, (iv) 500,000 shares of Common
Stock issuable to non-employee directors pursuant to Company's 1996 Directors'
Stock Option Plan, of which 300,000 shares are issuable upon exercise of
outstanding options under such plan, (v) non-plan options issued to the
Company's Chief Executive Officer, Chief Financial Officer and Vice President of
Marketing to purchase up to an aggregate of 1,500,000 shares of Common Stock,
(vi) up to 450,000 shares of Common Stock issuable upon exercise of warrants
granted or to be granted to certain third parties, including vendors, suppliers
and financial and investment advisors of the Company, prior to inclusion of the
shares of Common Stock issuable upon exercise of the Warrants being purchased
and sold hereunder and a Warrant being issued to Computer Associates
International, Inc. concurrently on the date of the Closing.
2.3 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the Warrants (collectively, the
"TRANSACTION AGREEMENTS"), the performance of all obligations of the Company
hereunder and thereunder and the authorization, issuance and delivery of the
Securities has been taken or will be taken prior to the Closing, and the
Transaction Agreements, when executed and delivered by the Company, shall
constitute valid
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and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors' rights generally, as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies, or (ii) to
the extent the indemnification provisions contained in Section 4(g) herein below
may be limited by applicable federal or state securities laws.
2.4 VALID ISSUANCE OF SECURITIES. The Stock and the Warrants that
are being issued to the Purchasers hereunder, when issued and paid for in
accordance with this Agreement, and the shares of Common Stock issuable upon
exercise of the Warrants, when issued and paid for in accordance with the
Warrants, will be validly issued, fully paid, and nonassessable, and not subject
to any preemptive rights or rights of first refusal under applicable law, the
Articles of Incorporation or Bylaws of the Company, or any agreement to which
the Company is a party or by which the Company is bound, and are free of any
liens or encumbrances other than liens or encumbrances created by or imposed
upon the holders thereof; provided, however, that the Warrants (and the shares
of Common Stock issuable upon exercise thereof) may be subject to restrictions
on transfer as set forth in this Agreement, the Warrants, the Registration
Statement on Form S-3 to be filed with the Securities and Exchange Commission
pursuant to Section 4 hereunder, (the "RIGHTS AGREEMENT"), or the Articles of
Incorporation or Bylaws of the Company. Based in part upon the representations
of the Purchasers in this Agreement, the Stock and the Warrants will be issued
in compliance with all applicable federal and state securities laws.
2.5 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its subsidiaries that is not disclosed in the
Reports (as defined in Section 2.6 below) and that would have a material adverse
effect on the Company or that questions the validity of the Transaction
Agreements or the right of the Company to enter into them, or to consummate the
transactions contemplated thereby.
2.6 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of the Transaction Agreements and the consummation of the
transactions contemplated thereby will not result in any violation or default of
any provisions of the Articles of Incorporation or Bylaws of the Company or of
any instrument, judgment, order, writ, decree or contract to which the Company
is a party or by which the Company is bound or, to the Company's knowledge, of
any provision of federal or state statute, rule or regulation applicable to the
Company, or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any lien, charge or encumbrance upon any assets of the
Company.
2.7 SEC REPORTS. The Company has filed with the Securities and
Exchange Commission (the "COMMISSION") via Edgar its Annual Report on Form 10-K
for the year ended December 31, 1996 and its Quarterly Reports on Form 10-Q for
the first three quarters of the
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year ended December 31, 1997 (the "REPORTS"), and such Reports are available
to Purchaser through Edgar in electronic format. As of their respective
filing dates, the Reports complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended, and none of
the Reports contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were
made, not misleading, except to the extent corrected by a document
subsequently filed with the Commission and provided to Purchaser prior to the
date hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company that:
3.1 AUTHORIZATION. Such Purchaser has full power and authority to
enter into this Agreement. The Transaction Agreements, when executed and
delivered by the Purchaser, will constitute valid and legally binding
obligations of the Purchaser, enforceable in accordance with their terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application affecting
enforcement of creditors' rights generally, and as limited by laws relating to
the availability of a specific performance, injunctive relief, or other
equitable remedies, or (b) to the extent the indemnification provisions
contained in Section 4(g) herein below may be limited by applicable federal or
state securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
3.3 DISCLOSURE OF INFORMATION. The Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock and the Warrants with the Company's
management and has had an opportunity to review the Company's facilities. The
Purchaser understands that such discussions, and any other written information
delivered by the Company to the Purchaser, were intended to describe the aspects
of the Company's business which it believes to be material.
3.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities are characterized as "restricted securities" under applicable U.S.
federal and state securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that, pursuant to
these laws and applicable regulations, the Purchaser must hold the
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Securities indefinitely unless they are registered with the Securities and
Exchange Commission and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. The Purchaser
further acknowledges that if an exemption from registration or qualification
is available, it may be conditioned on various requirements including, but
not limited to, the time and manner of sale, the holding period for the
Securities, and on requirements relating to the Company which are outside of
the Purchaser's control, and which the Company is under no obligation and may
not be able to satisfy. In this connection, Purchaser represents that it is
familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act of 1933, as
amended (the "SECURITIES ACT").
3.5 LEGENDS. The Purchaser understands that the Securities, and any
securities issued in respect thereof or exchange therefor, may bear one or all
of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Transaction Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
3.6 ACCREDITED INVESTOR. The Purchaser is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4. REGISTRATION OF SECURITIES.
(a) As soon as possible after the Closing, the Company shall use its
reasonable best efforts to prepare and file a registration statement on Form S-3
(the "REGISTRATION STATEMENT") with the Commission under the Act to register the
resale of the Stock and the Warrant Stock (collectively, the "REGISTRABLE
SECURITIES") and thereafter shall use its best efforts to secure the
effectiveness of such Registration Statement.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Purchaser or any transferee of the Registrable Securities (each,
a "HOLDER") shall pay all Selling Expenses (as defined below) and other expenses
that are not Registration Expenses relating to the Registrable Securities resold
by Holder. "Registration Expenses" shall mean all expenses, except for Selling
Expenses, incurred by the Company in complying with the registration provisions
herein
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described, including, without limitation, all registration, qualification
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration. "Selling Expenses" shall mean
all selling commissions, brokerage or underwriting fees and stock transfer taxes
applicable to the Registrable Securities and all fees and disbursements of
counsel for Holder.
(c) In the case of any registration effected by the Company pursuant
to these registration provisions, and subject to the limitations on registration
set forth in Section 4(d) below, the Company will use commercially reasonable
efforts to: (i) keep such registration effective until the earlier of (A) two
(2) years after the date of the Closing or (B) such date as the Company shall be
satisfied that then-current Holders may sell all of their Registrable Securities
then outstanding within a three (3) month period; (ii) prepare and file with the
Commission such amendments and supplements to such Registration Statement and
the prospectus used in connection with such Registration Statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement; (iii)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as a Holder from
time to time may reasonably request; (iv) register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions; (v) cause all such
Registrable Securities registered as described herein to be listed on each
securities exchange and quoted on each quotation service on which similar
securities issued by the Company are then listed or quoted; and (vi) otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission.
(d) The Company may, by written notice to Holder, delay the filing or
effectiveness of, or suspend, the Registration Statement, and require that
Holder immediately cease sales of shares pursuant to such Registration Statement
in any period during which the Company is engaged in any activity or transaction
or preparations or negotiations for any activity or transaction ("COMPANY
ACTIVITY") that the Company desires to keep confidential for business reasons,
if the Company determines in good faith that the public disclosure requirements
imposed on the Company under the Act in connection with the Registration
Statement would require disclosure of the Company Activity; provided, however,
that (A) the Company shall use commercially reasonable efforts to minimize the
length of any such period of delay or suspension, (B) any such delay or
suspension shall be applied in the same manner to any other resale registration
statement then in effect, (C) no such suspension period shall extend longer than
forty-five (45) consecutive calendar days, (D) no such suspension period may be
imposed within forty-five (45) days following the completion of a prior
suspension period, and (E) the Company shall not impose suspension periods
which, in the aggregate, exceed ninety (90) days in any twelve (12) month
period. If the Company delays or suspends the Registration Statement or
requires Holder to cease sales of shares pursuant to this Section 4(d), the
Company shall, as promptly as practicable following the termination of the
circumstance which entitled the
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Company to do so, take such actions as may be necessary to file or reinstate
the effectiveness of the Registration Statement and/or give written notice to
Holder authorizing it to resume sales pursuant to such Registration
Statement. If as a result thereof the prospectus included in the
Registration Statement has been amended to comply with the requirements of
the Act, the Company shall enclose such revised prospectus with the notice to
Holders given pursuant to this Section 4(d), and Holder shall make no offers
or sales of shares pursuant to the Registration Statement other than by means
of such revised prospectus.
(e) If Holder shall propose to sell any Registrable Securities
pursuant to the Registration Statement, it shall notify the Company of its
intent to do so at least three (3) full business days prior to such sale, and
the provision of such notice to the Company shall conclusively be deemed to
establish an agreement by Holder to comply with the registration provisions
herein described. Such notice shall be deemed to constitute a representation
that any information required to be included in the Registration Statement and
previously supplied by Holder is accurate as of the date of such notice. When
Holder is entitled to sell and gives notice of its intent to sell in compliance
with the foregoing, the Company shall promptly, furnish to Holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the Holders of such shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing. Holder agrees that the Company may impose a legend
setting forth the provisions of Sections 4(d) and 4(e) on the Registrable
Securities.
(f) With a view to making available to the holders the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
Commission that may at any time permit Holder to sell Registrable Securities to
the public without registration or pursuant to a registration on Form S-3, the
Company hereby covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, at all times
after the closing; and (ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Act and Exchange
Act.
(g) Indemnification.
(i) To the extent permitted by law, the Company will
indemnify and hold harmless Holder, any underwriter (as defined in the Act) for
Holder, its officers, directors, shareholders or partners and each person, if
any, who controls Holder or underwriter within the meaning of the Act or the
Exchange Act, against any losses, claims, damages, or liabilities to which they
may become subject under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"): (A) any untrue statement
or alleged untrue statement of a material fact contained in such Registration
Statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or (B) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading; and the Company will
pay to each such Holder,
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underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 4(g)(i) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person; further provided, however, that the
foregoing indemnity with respect to any untrue statement in or omission from
any preliminary prospectus shall not inure to the benefit of any Holder from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Registrable Securities if a copy of the final prospectus or any
amendment thereto had not been sent or given to such person at or prior to
the written confirmation of the sale of such Registrable Securities to such
person if required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
final prospectus or amendment and such final prospectus or amendment was
distributed to the Holder prior to such sale of Registrable Securities.
(ii) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such Registration Statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities to which any of the foregoing persons may become
subject, under the Act, the Exchange Act or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 4(g)(ii), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
subsection 4(g)(ii) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 4(g)(ii)
exceed the net proceeds from the offering received by such Holder, except in the
case of willful fraud by such Holder.
(iii) Promptly after receipt by an indemnified party
under this Section 4(g) of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 4(g),
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly
-8-
noticed, to assume the defense thereof with counsel mutually satisfactory to
the parties; provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 4(g).
5. RESALE RESTRICTIONS. Holder agrees that it will not sell any
Registrable Securities issued hereunder until the effectiveness of the
Registration Statement to be filed pursuant to Section 4 above.
Notwithstanding the foregoing, the Company may suspend resales by the Holder
if an underwriter reasonably determines that such resales would adversely
affect the Company's ability to raise additional capital in a public offering
of the Company's equity securities and such underwriter issues a written
opinion to the Company to that effect. Any such suspension of resales by the
Holder pursuant to the foregoing sentence will not exceed 120 calendar days
commencing on the date of the secondary offering. The volume and resale
restrictions set forth in this Section 5 shall be set forth in any and all
Registration Statements brought effective pursuant to Section 4 above, and
the Company shall instruct its transfer agent, broker dealers and market
makers to enforce the volume restrictions set forth herein.
6. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligations
of each Purchaser to the Company under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
6.2 PERFORMANCE. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
6.3 COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 6.1 and 6.2 have been fulfilled.
6.4 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock and the Warrants pursuant to this Agreement shall be obtained and
effective as of the Closing.
-9-
6.5 OPINION OF COMPANY COUNSEL. The Purchasers shall have received
from Venture Law Group, counsel for the Company, an opinion, dated as of the
Closing, in substantially the form of EXHIBIT D.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to each Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
7.2 PERFORMANCE. All covenants, agreements and conditions contained
in this Agreement to be performed by the Purchasers on or prior to the Closing
shall have been performed or complied with in all material respects.
7.3 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock and the Warrants pursuant to this Agreement shall be obtained and
effective as of the Closing.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties, representations and covenants of the Company and the
Purchasers contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing for a period of one (1)
year following the Closing.
8.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
8.3 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
-10-
8.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page or EXHIBIT A hereto, or as
subsequently modified by written notice, and if to the Company, with a copy to
Craig W. Johnson, Venture Law Group, 2800 Sand Hill Road, Menlo Park, CA 94025.
8.7 COMPANY ADVISOR / PAYMENT OF FEES. Purchaser represents that it
neither is nor will be obligated for any finder's fee or commissions to any
third party in connection with this transaction. The Company represents that it
has retained Rochon Capital Group, Ltd. ("ROCHON") as financial advisor in
connection with the transactions contemplated by the Transaction Agreements and
will be responsible for any fees payable to Rochon. The information provided to
Purchaser by the Company has not been subjected to independent verification by
Rochon, and no representation or warranty is made by Rochon as to the accuracy
or completeness of such information or the advisability of Purchaser entering
into this Agreement and consummating the transactions contemplated hereby.
Purchaser acknowledges that it has not relied on any statements made by Rochon
in connection with its decision to enter into and perform this Agreement and the
transactions contemplated hereby. The Company agrees to indemnify and to hold
harmless Purchaser from any liability for any compensation payable to Rochon
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company is responsible. Each party agrees to indemnify
and hold harmless Rochon and its officers, directors, principals, employees and
agents (and their respective heirs, successors and assigns) from and against any
liability arising from this Agreement (and the costs and expenses of defending
against such liability or asserted liability), including the consummation of or
the failure to consummate any or all of the transactions contemplated hereby.
8.8 ATTORNEY'S FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Transaction Agreements, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the holders
of at least a majority of the Common Stock issued or issuable upon conversion of
the Stock and the Warrant Stock. Any amendment or waiver effected in accordance
with this Section 8.9 shall be binding upon the Purchasers and each transferee
of the Securities, each future holder of all such Securities, and the Company.
-11-
8.10 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
8.11 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
8.12 ENTIRE AGREEMENT. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
8.13 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
8.14 CONFIDENTIALITY. Each party hereto agrees that, except with the
prior written permission of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock or Warrants purchased hereunder. The provisions of this
Section 6.15 shall be in addition to, and not in substitution for, the
provisions of any separate nondisclosure agreement executed by the parties
hereto with respect to the transactions contemplated hereby.
-12-
8.15 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
purchase of the Securities.
8.16 ADVICE OF COUNSEL. Each party to this Agreement acknowledges
that Venture Law Group represents and is legal counsel for the Company only, and
that Venture Law Group does not currently represent or render legal advice or
services to any of the Purchasers as individuals nor has it done so in the past.
Accordingly, each party to this Agreement hereby acknowledges that it has had an
opportunity to seek advice of independent legal counsel of its choosing, and has
read and understood all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting or
preparation hereof,
[Signature Pages Follow]
-13-
The parties have executed this Common Stock and Warrant Purchase Agreement
as of the date first written above.
COMPANY:
CENTURA SOFTWARE CORPORATION
By: /s/ John Bowman
-----------------------------
Name: John Bowman
-----------------------------
(print)
Title: CFO
----------------------------
By: /s/ Scott Broomfield
-------------------------------
Name: Scott Broomfield
-----------------------------
(print)
Title: CEO
----------------------------
Address: 975 Island Drive
Redwood Shores, CA 94065
FAX: 650-596-4376
PURCHASERS:
Alfred University
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
------------------------------
Investment Advisor for Alfred University
----------------------------------------
Address:
See Attached
SIGNATURE PAGE TO PURCHASE AGREEMENT
PURCHASERS
Core Technology Fund, Inc.
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
-------------------------------
Managing Director of Core
-------------------------------
Address:
See Attached
Executive Technology LP
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
-----------------------------
Which is the Gen'l Ptr. of Exec. Tech
-------------------------------------
Address:
See Attached
-2-
PURCHASERS:
Foundation Partners
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
-----------------------------
Investment Advisor for Foundation
---------------------------------
Address:
See Attached
The Matrix Technology Group N.V.
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Managing Director of Matrix
---------------------------
Address:
See Attached
-3-
PURCHASERS:
Rochester Institute of Technology
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Investment Advisor for RIT
--------------------------
Address:
See Attached
Scitech Investment Ptrs L.P.
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Which is Gen'l Ptr. of Sci-tech
-------------------------------
Address:
See Attached
-4-
PURCHASERS:
SG Partners LP
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Which is Gen'l Ptr. of SG
--------------------------
Address:
See Attached
Tampsco II Partnership
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Investment Advisor for Tampsco
------------------------------
Address:
See Attached
-5-
PURCHASERS:
Yale University
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Investment Advisor for Yale
---------------------------
Address:
See Attached
SIGNATURE PAGE TO PURCHASE AGREEMENT
PURCHASERS:
Yale University Retirement Plan for Staff
Employees
----------------------------------
(Print name of Purchaser)
By: /s/ Seymour L. Goldblatt
-----------------------------
Name: Seymour L. Goldblatt
-----------------------------
(print)
Title: President of S(2) Technology
----------------------------
Investment Advisor for Yale
---------------------------
Address:
See Attached
Camelot Capital LP
----------------------------------
(Print name of Purchaser)
By: /s/ Scott Smith
-----------------------------
Name: Scott Smith
-----------------------------
(print)
Title: GP
----------------------------
Address:
Camelot Offshore Fund Ltd.
----------------------------------
(Print name of Purchaser)
By: /s/ Scott Smith
-----------------------------
Name: Scott Smith
-----------------------------
(print)
Title: Managing Director
----------------------------
Address:
-2-
PURCHASER:
Dean Witter Reynolds, Custodian For
John W. Bowman Ira Rollover-4-2-92
----------------------------------
(Print name of Purchaser)
By: /s/ John Bowman
-----------------------------
Name: John Bowman
-----------------------------
(print)
Title:
----------------------------
Address:
c/o Marian Lesnewski
Dean Witter Retirement Plan Maintenance
5 World Trade Center, 6th Floor
New York, NY 10048
Scott Broomfield
----------------------------------
(Print name of Purchaser)
By: /s/ Scott Broomfield
-------------------------------
Name: Scott Broomfield
-----------------------------
(print)
Title: CEO
----------------------------
Address:
1921 Adelaide Way
San Jose, CA 95125
-3-
PURCHASERS:
JOHN B. GRIFFIN
----------------------------------
(Print name of Purchaser)
By: /s/ John B. Griffin
-----------------------------
Name: John B. Griffin
-----------------------------
(print)
Title: MR
----------------------------
Address:
"Akenfield"
35 Greenhill Road
Otford
Kent TN14 5RR
UK
Larry Hill
----------------------------------
(Print name of Purchaser)
By: /s/ Larry Hill
-----------------------------
Name: Larry Hill
-----------------------------
(print)
Title:
----------------------------
Address:
816 Mountain View Drive
Lafayette, CA 94549
-4-
PURCHASERS:
Kenneth Kneis
----------------------------------
(Print name of Purchaser)
By: /s/ Kenneth Kneis
-----------------------------
Name: Kenneth Kneis
-----------------------------
(print)
Title:
----------------------------
Address:
560 Montwood Circle
Redwood City, CA 94061
William H. Lane III and Kathleen M. Lane
Trust DTD December 26, 1995
----------------------------------
(Print name of Purchaser)
By: /s/ W. H. Lane
------------------------------
Name: W. H. Lane
-----------------------------
(print)
Title: Trustee
----------------------------
Address:
10695 Magdalena
Los Altos Hills, CA 94024
-5-
EXHIBITS
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Warrant
Exhibit C - Schedule of Exceptions to Representations and Warranties
Exhibit D - Form of Legal Opinion of Venture Law Group
Exhibit E - Form of Escrow Agreement