SCHEDULE OF PURCHASERS
PURCHASER SHARES PURCHASED WARRANTS PURCHASED
- -------------------------------------------- ---------------- ------------------
Special Situations Fund III QP, L.P. 2000000 500000
Special Situations Technology Fund, 189200 47300
Special Situations Technology Fund II, L.P. 1010800 252700
Special Situations Private Equity Fund, L.P. 800000 200000
Fort Mason Master, LP 3756400 939100
Fort Mason Partners, LP 243600 60900
LB I Group Inc. 2400000 600000
Prism Partners I, L.P. 120000 30000
Prism Partners II Offshore Fund 88000 22000
Prism Partners III Leveraged L.P. 296000 74000
Prism Partners IV Leveraged Offshore Fund 280000 70000
Prism Partners Offshore Fund 16000 4000
---------------- ------------------
Total 11200000 2800000
================ ==================
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of the
15th day of May 2007 by and among Concurrent Computer Corporation (the
"Company"), a Delaware corporation, with its principal offices at 4375 River
Green Parkway, Suite 100, Duluth, GA 30096 and the purchasers whose names and
addresses are set forth on the signatures page hereto (each, a "Purchaser" and
together, the "Purchasers").
IN CONSIDERATION of the mutual covenants contained in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Purchasers hereby agree as follows:
Section 1. Purchase and Sale of Securities.
-------------------------------
Subject to the terms and conditions of this Agreement, on the Closing Date
(as defined herein), each Purchaser agrees to purchase severally and not
jointly, and the Company agrees to issue and sell to such Purchaser severally
and not jointly (i) that number of whole shares (the "Shares") of the Company's
common stock, $0.01 par value (the "Common Stock"), and (ii) warrants to
purchase shares of Common Stock (the "Warrants," together with the Shares, the
"Securities"), as shown below such Purchaser's name on the signature pages
hereto, at a purchase price that is equal to $1.25 per Security, of which $0.12
is allocated as consideration for the Warrants.
Section 2. Closing.
-------
2.1 The Closing.
-----------
(a) The purchase and sale of the Securities upon the terms and
conditions hereof will take place at a closing (the "Closing") to be held at the
offices of Morrison & Foerster LLP, 1290 Avenue of the Americas, New York, NY
10104, within three business days following the execution of this Agreement, or
on such later date or at such different location as the parties shall agree in
writing, but not prior to the date that the conditions for the Closing set forth
below have been satisfied or waived by the appropriate party (the "Closing
Date").
(b) The Company shall provide wire transfer instructions for the
payment of the Purchase Price (as defined below) prior to the Closing.
(c) At the Closing, each Purchaser and the Company shall satisfy
all of the conditions set forth in Sections 2.2(a) and (b), respectively.
2.2 Conditions to Closing.
---------------------
(a) The Company's obligation to complete the purchase and sale of
the Securities and deliver such stock certificate(s) and Warrants to each
Purchaser is subject to:
(i) receipt by the Company of immediately available funds in
the full amount of the purchase price for the Securities being purchased
hereunder as set forth opposite each Purchaser's name on each Purchaser's
signature page hereto (the "Purchase Price"), in accordance with the wire
transfer instructions delivered by the Company pursuant to Section 2.1(b);
and
(ii) the accuracy in all material respects of the
representations and warranties made by such Purchaser in Section 4 below as
of the Closing Date and the fulfillment in all material respects of those
undertakings of such Purchaser in this Agreement to be fulfilled on or
prior to the Closing Date.
(b) Each Purchaser's obligation to complete the purchase and sale
of the Securities is subject to:
(i) the accuracy in all material respects of the
representations and warranties made by the Company in Section 3 below as of
the Closing Date and the fulfillment in all material respects of those
undertakings of the Company in this Agreement to be fulfilled on or prior
to the Closing Date;
(ii) confirmation that the notification to list the Shares
and the shares of Common Stock underlying the warrants (the "Warrant
Shares") on the NASDAQ Global Market has been appropriately filed;
(iii) delivery by the Company to the Placement Agent of an
opinion, dated as of the Closing Date, from King & Spalding LLP, counsel to
the Company addressed to the Purchasers, in the form attached as Appendix A
hereto;
(iv) unless the Company and the Purchaser have agreed to an
alternative arrangement for the delivery of Securities, the Company's
delivery to its transfer agent of irrevocable instructions to issue to such
Purchaser or in such nominee name(s) as designated by such Purchaser in the
Share Certificate Questionnaire attached hereto as Appendix I such number
of Securities set forth on such Purchaser's signature page hereto on
Appendix A or, if requested by the Purchaser, one or more certificates
representing such Securities registered in such name(s) or nominee name(s)
requested by such Purchaser; and
(v) delivery by Deloitte & Touche LLP to the Placement Agent
of a letter, in form and substance reasonably satisfactory to the Placement
Agent, confirming that Deloitte & Touche LLP are independent accountants
within the meaning of the Securities Act as defined herein and the Exchange
Act (as defined herein) and the applicable rules and regulations
thereunder, containing statements and information of the type ordinarily
included in an accountant's "comfort letters" to placement agents,
delivered according to Statement of Auditing Standards Nos. 72 and 76 (or
any successor bulletins), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Memorandum (as defined below);
(vi) no judgement, writ, order, injunction, award or decree
of or by any court, or judge, justice or magistrate, including any
bankruptcy court or judge, or any order of or by any governmental
authority, shall have been issued, and no action or proceeding shall have
been instituted by any governmental authority, enjoining or
2
preventing the consummation of the transactions contemplated hereby or in
the other Transaction Documents;
(vii) the Company shall have delivered a Certificate,
executed on behalf of the Company by its Chief Executive Officer or its
Chief Financial Officer, dated as of the Closing Date, certifying to the
fulfilment of the conditions specified in subsections (i), (ii), (iv), (vi)
and (ix) of this Section 2.2(b);
(viii) the Company shall have delivered a Certificate,
executed on behalf of the Company by its Secretary, dated as of the Closing
Date, certifying the resolutions adopted by the Board of Directors of the
Company approving the transactions contemplated by this Agreement and the
other Transaction Documents and the issuance of the Securities, certifying
the current versions of the Certificate of Incorporation and Bylaws of the
Company and certifying as to the signatures and authority of persons
signing the Transaction Documents and related documents on behalf of the
Company; and
(ix) there shall be no current stop order or ongoing
suspension of trading by Nasdaq, the SEC or any other governmental or
regulatory body with respect to public trading in the Common Stock.
Section 3. Representations, Warranties and Covenants of the Company. Except
--------------------------------------------------------
as specifically contemplated by this Agreement, the Company hereby represents
and warrants to, and covenants with, each Purchaser as of the Closing Date (or
such other date specified below) as follows:
3.1 No Material Misstatement. The Confidential Private Placement
------------------------
Memorandum, dated May 7, 2007, relating to the offering of the Securities,
including all exhibits, documents incorporated by reference and annexes thereof,
as the same may be amended or supplemented, (the "Memorandum") did not, as of
its date, does not as of the date hereof, and will not as of the Closing Date,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.2 SEC Filings.
-----------
(a) The Company has made available to the Purchasers through the
EDGAR system, true and complete copies of the Company's most recent Annual
Report on Form 10-K for the fiscal year ended June 30, 2006 (the "10-K"), and
all other reports filed (but not furnished) by the Company pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
filing of the 10-K and prior to the date hereof (collectively, the "SEC
Documents"). The SEC Documents are the only filings required of the Company
pursuant to the 1934 Act for such period. The Company and its Subsidiaries are
engaged in all material respects only in the business described in the SEC
Documents and the SEC Documents contain a complete and accurate description in
all material respects of the business of the Company and its Subsidiaries, taken
as a whole. At the time they became effective or were filed with the Securities
and Exchange Commission (the "Commission"), as the case may be, the SEC
3
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder (the
"Rules"), and none of the SEC Documents as of such time contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
3.3 Financial Statements. The audited and unaudited financial
--------------------
statements of the Company (including all notes and schedules thereto) included
in the SEC Documents present fairly the financial position of the Company and
its consolidated Subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated Subsidiaries for the periods specified; and such financial
statements and related schedules and notes thereto, have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis (except as may be disclosed therein or in the notes thereto, and, in the
case of quarterly financial statements, as permitted by Form 10-Q under the 1934
Act). The summary financial data included in the Memorandum presents fairly the
information shown therein as at the respective dates and for the respective
periods specified and have been presented on a basis consistent with the
consolidated financial statements incorporated by reference in the Memorandum.
3.4 Independent Accountants. Deloitte & Touche LLP (the "Auditor")
-----------------------
whose report was filed with the Commission with the Company's Annual Report on
Form 10-K for the year ended June 30, 2006 and is incorporated by reference in
the Memorandum, are and, during the periods covered by their report, were
independent registered public accountants as required by the Securities Act and
the Rules.
3.5 Organization; Good Standing. Each of the Company's Subsidiaries is
---------------------------
listed on Schedule I attached hereto (for purposes of this Agreement, the term
"Subsidiaries" includes only the significant subsidiaries of the Company, as
such terms is defined in Rule 1-02(w) of Regulation S-X). The Company and each
of its Subsidiaries, including each entity (corporation, partnership, joint
venture, association or other business organization) controlled directly or
indirectly by the Company, is duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation or
organization. The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted by it or location of the assets or
properties owned, leased or licensed by it requires such qualification, except
for such jurisdictions where the failure to so qualify individually or in the
aggregate would not reasonably be expected to have a material adverse effect on
the business, properties, condition (financial or otherwise), results of
operations or prospects of the Company and its Subsidiaries considered as a
whole (a "Material Adverse Effect"); and to the Company's knowledge, no
proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
3.6 Permits. The Company and each of its Subsidiaries has all
-------
requisite corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity (collectively,
the "Permits"), to own, lease and license its assets and properties
4
and conduct its business, all of which are valid and in full force and effect,
except where failure to have such power or authority or the lack of such
Permits, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect. Except as may be required under the Securities
Act and state and foreign Blue Sky laws, no other Permits are required to enter
into, deliver and perform this Agreement and to issue and sell the Securities.
3.7 Intellectual Property. Except as disclosed in the Memorandum, the
---------------------
Company and each of its Subsidiaries owns or possesses legally enforceable
rights to use all patents, patent rights, inventions, trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, know-how and other similar rights and proprietary knowledge
(collectively, "Intangibles") necessary for the conduct of its business as
currently conducted , except where the lack of such Intangibles, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Except as disclosed in the Memorandum, neither the Company nor any of
its Subsidiaries has received any notice of, or is aware of, any infringement of
or conflict with asserted rights of others with respect to any Intangibles that
would have a Material Adverse Effect. The consummation of the transactions
contemplated hereby and by the other Transaction Documents will not result in
the alteration, loss, impairment of or restriction on the Company's or any of
its Subsidiaries' ownership or right to use any of the Intangibles which is
necessary for the conduct of Company's and each of its Subsidiaries' respective
businesses as currently conducted or as currently proposed to be conducted.
3.8 Real and Personal Property. The Company and each of its
--------------------------
Subsidiaries has good and marketable title in fee simple to all real property,
and good and marketable title to all other property owned by it, in each case
free and clear of all liens, encumbrances, claims, security interests and
defects, except such as do not materially affect the value of such property and
do not materially interfere with the use made or proposed to be made of such
property by the Company and its Subsidiaries and except those, if any, reflected
in the Company's consolidated financial statements. All property held under
lease by the Company and its Subsidiaries is held by them under valid, existing
and enforceable leases, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are not material and do not
materially interfere with the use made or proposed to be made of such property
by the Company and its Subsidiaries and except those, if any, reflected in the
Company's consolidated financial statements.
3.9 No Material Adverse Change. Since March 31, 2007 and except as
--------------------------
otherwise discussed in the Memorandum (i) there has not been any event which
caused a Material Adverse Effect; (ii) neither the Company nor any of its
Subsidiaries has sustained any loss or interference with its assets, businesses
or properties (whether owned or leased) from fire, explosion, earthquake, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree which would have a Material Adverse Effect; and (iii) since the date of
the latest balance sheet included in the Memorandum, neither the Company nor its
subsidiaries has (A) issued any securities or incurred any material liability or
obligation, direct or contingent, for borrowed money, except such liabilities or
obligations incurred in the ordinary course of business (other than the sale of
Securities hereunder and shares or options issued pursuant to equity incentive
plans or purchase plans as in effect on the date hereof), (B) entered into any
material transaction not in the ordinary course of business or (C) declared or
paid any dividend or made any distribution on any shares of
5
its stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its capital stock.
3.10 Material Contracts. Each description of any contract, document or
------------------
other agreement in the Memorandum accurately reflects in all respects the terms
of the underlying contract, document or other agreement. Each such contract,
document or other agreement is in full force and effect and is valid and
enforceable by and against the Company or its subsidiary, as the case may be, in
accordance with its terms. No default exists, and no event has occurred which
with notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the Company or
its Subsidiaries, if a Subsidiary is a party thereto, of any agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which Company or its property or business or a Subsidiary or its properties or
business may be bound or affected which default or event, individually or in the
aggregate, would have a Material Adverse Effect.
3.11 No Violation. Neither the Company nor any of its Subsidiaries is
------------
in violation of any term or provision of its charter or by-laws or other
organizational documents or of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such violation,
individually or in the aggregate, would have a Material Adverse Effect.
3.12 Due Authorization. Each of this Agreement and the Warrants has
-----------------
been duly authorized, executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except to the extent enforcement of the indemnification provisions set forth
in Section 8 of this Agreement may be limited by federal or state securities law
or the public policy underlying such laws. All necessary corporate action has
been duly and validly taken by the Company to authorize the execution, delivery
and performance of this Agreement, the Warrants, the issuance and sale of the
Securities and the reservation for issuance and the issuance of the Warrant
Shares by the Company. The Shares have been duly authorized, validly issued and
are fully paid and nonassessable. The Warrant Shares have been duly authorized
and reserved for issuance and, upon exercise of the Warrants in accordance with
their terms, the Warrant Shares will be duly and validly issued and will be
fully paid and nonassessable. Subject to the accuracy of the representations
and warranties of each Purchaser set forth in Section 4 hereof, the Company
represents and warrants that (i) the issuance and sale of the Securities, (ii)
the issuance of the Warrant Shares upon due exercise of the Warrants, and (iii)
the other transactions contemplated by the Transaction Documents will not
trigger the provisions of any stockholder rights plan or other "poison pill"
arrangement, any anti-takeover, business combination or control share law or
statute binding on the Company or to which the Company or any of its assets and
properties may be subject and any provision of the Company's Certificate of
Incorporation or Bylaws that is or could reasonably be expected to become
applicable to the Purchasers as a result of the transactions contemplated
hereby, including without limitation, the issuance of the Securities and
6
the ownership, disposition or voting of the Securities by the Purchasers or the
exercise of any right granted to the Purchasers pursuant to this Agreement or
the other Transaction Documents.
3.13 No Default or Consents. Neither the execution, delivery and
----------------------
performance of this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the issuance
and sale by the Company of the Securities) will (i) give rise to a right to
terminate or accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute a default (or
an event which with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets of
the Company or its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which either the Company or its
Subsidiaries or any of their properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company or any of its Subsidiaries except for such consents or
waivers which have already been obtained and are in full force and effect or
which would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or (ii) violate any provision of the charter or
by-laws of the Company or any of its Subsidiaries.
3.14 Capitalization. The Company has authorized and outstanding
--------------
capital stock as set forth under the caption "Capitalization" in the Memorandum.
The certificates evidencing the Securities are in due and proper legal form and
have been duly authorized for issuance by the Company. All of the issued and
outstanding shares of Common Stock have been duly and validly issued and are
fully paid and nonassessable. There are no statutory preemptive or other
similar rights to subscribe for or to purchase or acquire any shares of Common
Stock of the Company or any of its Subsidiaries or any such rights pursuant to
its Certificate of Incorporation or by-laws or any agreement or instrument to or
by which the Company or any of its Subsidiaries is a party or bound. The
Securities, when issued, delivered and paid as provided herein, will be fully
paid and nonassessable and will be issued free and clear of any security
interests, liens, encumbrances, equities or claims. Except as disclosed in the
Memorandum there is no outstanding option, warrant or other right calling for
the issuance of, and there is no commitment, plan or arrangement to issue, any
share of stock of the Company or any of its Subsidiaries or any security
convertible into, or exercisable or exchangeable for, such stock. All
outstanding shares of capital stock of each of the Company's Subsidiaries have
been duly authorized and validly issued, and are fully paid and nonassessable
and are owned directly by the Company or by another wholly-owned subsidiary of
the Company free and clear of any security interests, liens, encumbrances,
equities or claims. The issuance and sale of the Securities hereunder will not
obligate the Company to issue shares of Common Stock or other securities to any
other Person (other than the Purchasers) and will not result in the adjustment
of the exercise, conversion, exchange or reset price of any outstanding
security.
3.15 No Registration Rights. Except as described in Section 6 hereof,
----------------------
no holder of any security of the Company has any right, which has not been
waived, to have any security owned by such holder included in the offering of
Securities contemplated by the Memorandum or by reason of the filing of the
Registration Statement with the Commission or to demand registration of any
security owned by such holder.
7
3.16 Legal Proceedings. Except as disclosed in the Memorandum, there
-----------------
are no legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property of the Company or any of
its Subsidiaries is the subject which, if determined adversely to the Company or
any of its Subsidiaries would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and to the knowledge of the Company,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
3.17 Employees. Neither the Company nor any of its Subsidiaries is
---------
involved in any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened, which dispute would have a Material Adverse Effect.
3.18 Market Stabilization. The Company has not taken, nor will it
--------------------
take, directly or indirectly, any action designed to or which might reasonably
be expected to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the Common Stock or any security of the Company to facilitate the sale
or resale of any of the Shares or Warrant Shares.
3.19 Taxes. The Company and each of its Subsidiaries has filed all
-----
Federal, state, local and foreign tax returns which are required to be filed
through the date hereof, which returns are true and correct in all material
respects, or has received timely extensions thereof, and has paid all taxes
shown on such returns and all assessments received by it to the extent that the
same are material and have become due. There are no tax audits or
investigations pending, which if adversely determined would have a Material
Adverse Effect; nor, to the Company's knowledge, are there any material proposed
additional tax assessments against the Company or any of its Subsidiaries.
3.20 Company Lock-up. Commencing on the offering pursuant to the
---------------
Memorandum by the Company's entry into the Securities Purchase Agreement and
ending after the close of trading on the NASDAQ Global Market on the date which
is the later of (i) the effective date of the Registration Statement or (ii) the
ninetieth day following the Closing Date (the "Lock-Up Period"), the Company
will not, without prior written consent of the Placement Agent, sell, contract
to sell or otherwise dispose of or issue any new securities of the Company,
except pursuant to previously issued options, any agreements providing for
anti-dilution or other stock purchase or share issuance rights in existence on
the date hereof, any employee benefit or similar plan of the Company in
existence on the date hereof.
3.21 Listing Compliance. The Company is in compliance with the
------------------
requirements of the NASDAQ Global Market for continued quotation of the Common
Stock thereon in all material respects. The Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or the listing of the Common Stock on
the NASDAQ Global Market, nor has the Company received any notification that the
Commission or the NASDAQ Global Market is contemplating terminating such
registration or listing. The transaction contemplated by this Agreement will
not contravene the rules and regulations of the NASDAQ Global Market. The
Company will use commercially reasonable efforts to continue the listing and
trading of its Common Stock on the NASDAQ Global Market and to comply in all
material respects with the Company's reporting,
8
filing and other obligations under the rules of the NASDAQ Global Market. The
Shares and Warrant Shares have been duly authorized for listing on the NASDAQ
Global Market.
3.22 Internal Controls. The Company and each of its Subsidiaries
-----------------
maintains a system of internal controls over financial reporting (as such term
is defined in Rule 13a-15(b) under the Exchange Act) to provide reasonable
assurances regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally
accepted accounting principles.
3.23 Disclosure Controls. The Company has established and maintains
-------------------
disclosure controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act), which: (i) are designed to ensure that material
information relating to the Company is made known to the Company's principal
executive officer and its principal financial officer by others within the
Company, particularly during the periods in which the periodic reports required
under the Exchange Act are required to be prepared; (ii) provide for the
periodic evaluation of the effectiveness of such disclosure controls and
procedures at the end of the periods in which the periodic reports are required
to be prepared; and (iii) are effective in all material respects to perform the
functions for which they were established.
3.24 No Deficiencies or Fraud. Based on the evaluation of its
------------------------
disclosure controls and procedures as of March 31, 2007, the Company is not
aware of (i) any material weaknesses in internal controls; or (ii) any fraud
that involves management or other employees who have a role in the Company's
internal controls, except such fraud that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.25 Insurance. The Company and its Subsidiaries are insured by
---------
insurers of recognized financial responsibility against such losses and risks
and in such amounts as the Company reasonably believes is adequate for its
businesses and all such policies of insurance and fidelity or surety bonds are
in full force and effect.
3.26 Prohibited Activities. Deloitte & Touche LLP has not been engaged
---------------------
by the Company to perform any "prohibited activities" (as defined in Section 10A
of the Exchange Act).
3.27 Off-Balance Sheet Arrangements. There are no material off-balance
------------------------------
sheet arrangements (as defined in Item 303 of Regulation S-K) that have or are
reasonably likely to have a material current or future effect on the Company's
financial condition, revenues, or expenses, changes in financial condition,
results of operations, liquidity, capital expenditures or capital resources.
3.28 Sarbanes-Oxley Act. The Company and, to its knowledge, its
------------------
directors and officers, in their capacities as such, are in compliance in all
material respects with all applicable provisions of the Sarbanes-Oxley Act,
including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications.
3.29 Consents and Approvals. Each approval, consent, order,
----------------------
authorization, designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection with the
execution and delivery by the Company of
9
this Agreement and the consummation of the transactions herein contemplated
required to be obtained or performed by the Company has been obtained or
performed.
3.30 Environmental Laws. Each of the Company and its Subsidiaries is
------------------
(i) in compliance with applicable federal, state and local laws, regulations and
ordinances relating to the protection of the environment, natural resources,
petroleum or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws") and (ii) have not received notice of nor do they
otherwise have knowledge of any actual or potential liability for the
investigation or remediation of any disposal or release of petroleum, hazardous
or toxic substances or wastes, pollutants or contaminants, except in the case of
clause (i) or (ii) where such non-compliance with or liability under
Environmental Laws would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any of
its Subsidiaries has been named a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, or any other similar Environmental Law, except with respect to any
matters that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
3.31 Investment Company. The Company is not and, after giving effect
------------------
to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Memorandum, will not be an "investment company" or
an entity "controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Investment Company Act").
3.32 Foreign Corrupt Practices Act. Neither the Company nor, to the
-----------------------------
knowledge of the Company, any other person associated with or acting on behalf
of the Company including, without limitation, any director, officer, agent or
employee of the Company or its Subsidiaries, has, directly or indirectly, while
acting on behalf of the Company or its Subsidiaries (i) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds; or (iii) violated any provision of
the Foreign Corrupt Practices Act of 1977, as amended.
3.33 Foreign Transactions Reporting Act. The operations of the Company
----------------------------------
and its Subsidiaries are in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations hereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws"), except where the failure to so
comply would not reasonably be expected to have a Material Adverse Effect, and
no formal action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of it
Subsidiaries with respect to the Money Laundering Laws is pending, or to the
best knowledge of the Company, threatened that would have a Material Adverse
Effect.
3.34 OFAC. Neither the Company nor any of its Subsidiaries nor, to the
----
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of
10
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and the
Company will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
3.35 Prior Offerings. The Company has not sold or issued any shares of
---------------
Common Stock during the six-month period preceding the date of the Memorandum,
including any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee benefit plans,
qualified stock options plans or other employee compensation plans or pursuant
to outstanding options, rights or warrants.
3.36 Offering Materials. Neither the Company nor its directors and
------------------
officers have distributed or will distribute prior to the Closing Date, any
offering material in connection with the offering and sale of the Securities
other than the Memorandum or any amendment or supplement thereto. The Company
has not in the past nor will it hereafter take any action independent of the
Placement Agent to sell, offer for sale or solicit offers to buy any securities
of the Company which would result in the initial sale of the Securities not
being exempt from the registration requirements of Section 5 of the Securities
Act.
3.37 Brokers or Finders. No broker, investment banker, financial
------------------
advisor or other individual, corporation, general or limited partnership,
limited liability company, firm, joint venture, association, enterprise, joint
securities company, trust, unincorporated organization or other entity (each a
"Person"), other than the Placement Agent, the fees and expenses of which will
be paid by the Company, is entitled to any broker's, finder's, financial
advisor's financial advisor's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company.
3.38 Use of Proceeds. The Company intends to use the net proceeds from
---------------
the sale of the Securities as described in the Memorandum.
3.39 Solicitation; Other Issuances of Securities. Neither the Company
-------------------------------------------
nor its Subsidiaries or any affiliates, nor any Person acting on its or their
behalf, (i) has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of the Securities, (ii) has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under any circumstances that would require registration of the
Securities under the Securities Act or (iii) has issued any shares of Common
Stock or shares of any series of preferred stock or other securities or
instruments convertible into, exchangeable for or otherwise entitling the holder
thereof to acquire shares of Common Stock which would be integrated with the
sale of the Securities to such Purchaser for purposes of the Securities Act or
of any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of the NASDAQ Global Market or any
other exchange or automated quotation system on which any of the securities of
the Company are listed or designated, nor will the Company or any of its
Subsidiaries or affiliates take any action or steps that would require
registration of any of the Securities under the Securities Act or cause the
offering of the Securities to be integrated with other offerings. Assuming the
accuracy of the representations and warranties of Purchasers
11
contained herein, the offer and sale of the Securities by the Company to the
Purchasers pursuant to this Agreement will be exempt from the registration
requirements of the Securities Act.
3.40 Non-Public Information. The Company has not disclosed to the
----------------------
Purchasers, whether in the Memorandum or otherwise, information that would
constitute material non-public information as of the Closing Date other than the
existence and terms of the transaction contemplated by this Agreement. The
Company shall issue a press release describing the material terms of the
transactions contemplated by this Agreement prior to 8:30 AM on the business day
immediately following the execution and delivery by all Purchasers of the
Agreement.
3.41 Registration Statement - S-3 Eligibility. The Company meets, and
----------------------------------------
will use its commercially reasonable efforts to meet upon filing and
effectiveness of the Registration Statement, the requirements for use of Form
S-3 under the Securities Act for secondary offerings.
Section 4. Representations, Warranties and Covenants Of Each Purchaser.
-----------------------------------------------------------
Each Purchaser, for itself and no other Purchaser, hereby represents and
warrants to, and covenants with, the Company as of the Closing Date (or such
other date specified below) as follows:
4.1 Organization. Such Purchaser is an entity duly organized and
------------
validly existing in good standing (to the extent such concepts are applicable)
under the laws of its jurisdiction of organization. Such Purchaser has all
requisite corporate power and authority and all necessary governmental approvals
to carry on its business as now being conducted, except as would not result in a
Material Adverse Effect on such Purchaser's ability to consummate the
transactions contemplated by this Agreement. Such Purchaser's principal
executive offices are in the jurisdiction set forth immediately below the
Purchaser's name on the signature pages hereto.
4.2 Authorization, Enforcement, and Validity. Such Purchaser has the
----------------------------------------
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. Such Purchaser has taken all necessary action
to authorize the execution, delivery and performance of this Agreement. Upon
the execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except to
the extent enforcement of the indemnification provisions set forth in Section 8
of this Agreement may be limited by federal or state securities law or the
public policy underlying such laws.
4.3 Consents and Approvals; No Violation. The execution, delivery and
------------------------------------
performance of this Agreement by such Purchaser and the consummation by such
Purchaser of the transactions contemplated hereby will not (i) result in a
violation of such Purchaser's organizational documents; (ii) conflict with, or
constitute a default or give to others any rights of
12
termination, amendment, acceleration or cancellation of, any material agreement,
indenture or instrument to which such Purchaser is a party (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, result in a Material
Adverse Effect on such Purchaser's ability to consummate the transactions
contemplated by this Agreement); or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree applicable to such Purchaser or its
Subsidiaries, except for such violations as would not, individually or in the
aggregate, result in a Material Adverse Effect on such Purchaser's ability to
consummate the transactions contemplated by this Agreement. Such Purchaser is
not required to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency or any regulatory
or self-regulatory agency in order for it to execute, deliver or perform any of
its obligations under or contemplated by this Agreement, except where the
failure to obtain such consents, authorizations or orders or to make such
filings or registrations would not, individually or in the aggregate, result in
a Material Adverse Effect on such Purchaser's ability to consummate the
transactions contemplated by this Agreement.
4.4 Investment Experience. Such Purchaser is an accredited investor
---------------------
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act, is knowledgeable, sophisticated and experienced in making, and is qualified
to make, decisions with respect to investments in shares representing an
investment decision like that involved in the purchase of the Securities.
4.5 Investment Intent and Limitation on Dispositions. Such Purchaser
------------------------------------------------
(a) is acquiring Securities for its own account for investment only and has no
intention of selling or distributing any of such Securities or any arrangement
or understanding with any other Persons regarding the sale or distribution of
such Securities except in accordance with the provisions of Section 6 or except
as would not result in a violation of the Securities Act; (b) such Purchaser
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Securities except in accordance with the provisions of
Section 6 or pursuant to and in accordance with the Securities Act; and (c) such
Purchaser has completed or caused to be completed the Registration Statement
Questionnaire attached hereto as part of Appendix I for use in preparation of
the Registration Statement, and the answers thereto are true and correct as of
the date hereof and will be true and correct as of the effective date of the
Registration Statement and such Purchaser will notify the Company immediately of
any material change in any such information provided in the Registration
Statement Questionnaire (except any information provided relating to the
Purchaser's share ownership in the Company) until such time as such Purchaser
has sold all of its Securities or until the Company is no longer required to
keep the Registration Statement effective.
4.6 Information And Risk.
--------------------
(a) Such Purchaser has received and reviewed the Memorandum and
has requested, received, reviewed and considered all other information such
Purchaser deems relevant in making an informed decision to purchase the
Securities. Such Purchaser has had an opportunity to discuss the Company's
business, management and financial
13
affairs with its management and also had an opportunity to ask questions of
officers of the Company that were answered to such Purchaser's satisfaction.
(b) Such Purchaser recognizes that an investment in the Securities
involves a high degree of risk, including a risk of total loss of such
Purchaser's investment. Such Purchaser is able to bear the economic risk of
holding the Securities for an indefinite period, and has knowledge and
experience in the financial and business matters such that it is capable of
evaluating the risks of the investment in the Securities.
(c) Such Purchaser has, in connection with such Purchaser's
decision to purchase Securities, not relied upon (i) any representations or
warranties other than as set forth in the representations and warranties of the
Company contained herein or (ii) any information (whether oral or written) other
than information contained in the Memorandum, the SEC Documents and the other
information described in Section 4.6(a), and such Purchaser has, with respect to
all matters relating to this Agreement and the offer and sale of the Securities,
relied solely upon the advice of such Purchaser's own counsel and has not relied
upon or consulted any counsel to the Placement Agent or counsel to the Company.
4.7 Disclosures to the Company. Such Purchaser understands that the
--------------------------
Company is relying on the statements contained herein to establish an exemption
from registration under federal and state securities laws.
4.8 [Reserved]
----------
4.9 Ownership. Such Purchaser (including any Person controlling,
---------
controlled by, or under common control with such Purchaser, as the term
"control" is defined pursuant to the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and its implementing regulations (the "HSR Act")) does
not, and upon the consummation of the transactions contemplated by this
Agreement will not, hold voting securities of the Company exceeding an aggregate
fair market value as of the Closing Date of fifty million dollars ($50,000,000),
calculated pursuant to the HSR Act.
4.10 Brokers or Finders. No broker, investment banker, financial
------------------
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Purchaser.
4.11 Acknowledgement. Such Purchaser acknowledges and agrees that the
---------------
Company does not make and has not made any representations or warranties with
respect to the transactions contemplated by this Agreement other than those
specifically set forth in Section 3.
4.12 Confidential Treatment. The Purchasers shall hold in strict
----------------------
confidence all information concerning this Agreement and the offering of the
Securities until the earlier of such time as the Company has made a public
announcement concerning this Agreement or the offering of the Securities.
14
4.13 Prohibited Transactions.
-----------------------
(a) During the last thirty (30) days prior to the date hereof,
neither such Purchaser nor any affiliate of such Purchaser, foreign or domestic,
has, directly or indirectly, effected or agreed to effect any "short sale" (as
defined in Rule 200 under Regulation SHO), whether or not against the box,
established any "put equivalent position" (as defined in Rule 16a-1(h) under the
Securities Exchange Act of 1934) with respect to the Common Stock, borrowed or
pre-borrowed any shares of Common Stock, or granted any other right (including,
without limitation, any put or call option) with respect to the Common Stock or
with respect to any security that includes, relates to or derived any
significant part of its value from the Common Stock or otherwise sought to hedge
its position in the Securities (each, a "Prohibited Transaction").
(b) Prior to the earliest to occur of (i) the termination of this
Agreement, (ii) the effective date of the Registration Statement or (iii) the
Effectiveness Deadline, such Purchaser shall not, and shall cause its affiliates
not to, engage, directly or indirectly, in (a) a Prohibited Transaction nor (b)
any sale, assignment, pledge, hypothecation, put, call, or other transfer of any
of the shares of Common Stock, warrants or other securities of the Company
acquired hereunder.
4.14 No Advice. The Purchaser understands that nothing in this
---------
Agreement or any other materials presented to the Purchaser in connection with
the purchase and sale of the Securities constitutes legal, tax or investment
advice. The Purchaser has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of the Securities.
4.15 No Action Outside United States. The Purchaser acknowledges that
-------------------------------
the Company has represented that no action has been or will be taken in any
jurisdiction outside the United States by the Company that would permit an
offering of the Securities, or possession or distribution of offering materials
in connection with the issue of the Securities, in any jurisdiction outside the
United States where action for that purpose is required. If the Purchaser is
located or domiciled outside the United States it agrees to comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Securities or has in its possession or
distributes any offering material, in all cases at its own expense.
4.16 Restricted Securities. Without limiting the registration rights
---------------------
granted to the Purchasers under Section 6 hereto, such Purchaser understands
that the Shares and Warrant Shares upon issuance will be "restricted securities"
as such term is defined in Rule 144 promulgated under the Securities Act and
must be held indefinitely unless the Shares and Warrant Shares are subsequently
registered or qualified under applicable state and federal securities laws or an
exemption from such registration or qualification is available.
Section 5. Survival of Representations and Warranties.
------------------------------------------
Notwithstanding any investigation made by any party to this Agreement or by
the Placement Agent, all representations and warranties as to each respective
Closing made by the
15
Company and the Purchasers herein shall survive for a period of one (1) year
following the Closing Date.
Section 6. Registration of the Shares and Warrant Shares; Compliance with
--------------------------------------------------------------
the Securities Act.
- ------------------
6.1 Registration Procedures and Expenses.
------------------------------------
(a) The Company will:
(i) as soon as practicable, but in no event later than five
(5) business days following the Closing Date (the "Filing Deadline"), use
its commercially reasonable efforts to prepare and file with the Commission
a registration statement on Form S-3 (or, if Form S-3 is not then available
to the Company, on such form of registration statement as is then available
to effect a registration for resale of the Registrable Securities) (the
"Registration Statement") covering the resale of the Shares and the
Warrants Shares (each of the Shares and Warrant Shares, together with any
shares of capital stock issued or issuable, from time to time, upon any
reclassification, share combination, share subdivision, stock split, share
dividend or similar transaction or event or otherwise as a distribution on,
in exchange for or with respect to any of the foregoing, in each case held
at the relevant time by a Purchaser, the "Registrable Securities") by each
Purchaser. Such Registration Statement shall include a plan of distribution
in a form materially similar to the plan of distribution contained in the
form of resale registration statement incorporated by reference in the
Memorandum;
(ii) use its commercially reasonable efforts to cause the
Registration Statement, as amended, to become effective under the
Securities Act as soon as practicable but in any event no later than sixty
(60) days after the Closing Date (the "Effectiveness Deadline") provided,
however, that in the event the Registration Statement receives any review
by the Commission, the Effectiveness Deadline will be ninety (90) days
after the Registration Statement is filed by the Company. The Company shall
notify the Purchasers by facsimile or e-mail as promptly as practicable,
and in any event, within twenty-four (24) hours, after any Registration
Statement is declared effective and shall simultaneously provide the
Purchasers with copies of any related Prospectus to be used in connection
with the sale or other disposition of the securities covered thereby;
(iii) use its commercially reasonable efforts to promptly
prepare and file with the Commission such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective until the
earliest of (i) two years after the effective date of the Registration
Statement, or (ii) such time as the Registrable Securities become eligible
for resale by non-affiliates pursuant to Rule 144(k) under the Securities
Act of 1933, as amended (the "Effectiveness Period") and shall notify the
Purchasers in writing promptly following the termination of the
Effectiveness Period;
(iv) so long as the Registration Statement is effective, to
use its commercially reasonable efforts to furnish to each Purchaser with
respect to the
16
Registrable Securities registered under the Registration Statement (and to
each underwriter, if any, of such Registrable Securities) such reasonable
number of copies of prospectuses and such other documents as such Purchaser
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Registrable Securities by such Purchaser;
provided, however, that the obligation of the Company to deliver copies of
the documents to the Purchaser shall be subject to the receipt by the
Company of reasonable assurances from the Purchaser that the Purchaser will
comply with the applicable provisions of the Securities Act and of such
other securities or Blue Sky laws as may be applicable in connection with
any use of such documents;
(v) in consultation with its counsel, use commercially
reasonable efforts to file documents required of the Company for normal
Blue Sky clearance in states specified in writing by the Purchasers;
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process generally in any jurisdiction in
which the Company is not now so qualified or has not so consented;
(vi) file a Form D with respect to the Registrable Securities
as required under Regulation D and to provide a copy thereof to the
Purchasers promptly after filing;
(vii) bear all expenses in connection with the procedures in
paragraphs (i) through (vi) of this Section 6.1 and the registration of the
Registrable Securities pursuant to the Registration Statement, other than
fees and expenses, if any, of counsel or other advisers to the Purchasers
or underwriting discounts, brokerage fees and commissions incurred by the
Purchasers, if any in connection with an underwritten offering of the
Registrable Securities;
(viii) notify each Purchaser of the issuance by the SEC or
any state securities authority of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or the
initiation of any proceedings for that purpose and, if any such order is
issued, obtain the withdrawal of such order at the earliest possible time;
(ix) furnish to each Purchaser, on the date that such
Registration Statement becomes effective, in the case of an underwriting,
(A) an opinion addressed to such Purchaser, dated such date, of outside
counsel representing the Company, in such form and substance as is required
to be given to the underwriters and (B) a letter addressed to such
Purchaser, dated such date, from the Company's independent certified public
accountants, in such form and substance as is required to be given by the
Company's independent certified public accountants to such underwriter;
(x) provide to each Purchaser and its representatives, if
requested, the opportunity to conduct a reasonable inquiry of the Company's
financial and other records during normal business hours and make available
its officers, directors and employees for questions regarding information
which such Purchaser may reasonably request in order to fulfill any due
diligence obligation on its part;
(xi) permit counsel for the Purchasers to review the
Registration Statement and all amendments and supplements thereto, and any
comments
17
made by the staff of the Commission and the Company's responses thereto,
within a reasonable period of time prior to the filing thereof with the
Commission (or, in the case of comments made by the staff of the
Commission, within a reasonable period of time following the receipt
thereof by the Company);
(xii) provided that, in the case of clause (x) and (xi)
above, the Company shall not be required to provide, and shall not provide,
any Purchaser with material, non-public information unless such Purchaser
agrees to receive such information and enters into a written
confidentiality agreement with the Company;
(xiii) subject to Section 6.1(b) below, immediately notify
the Purchasers, at any time prior to the end of the Effectiveness Period,
upon discovery that, or upon the happening of any event as a result of
which, the Prospectus includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
then existing, and promptly prepare, file with the Commission and furnish
to such holder a supplement to or an amendment of such Prospectus as may be
necessary so that 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 in light
of the circumstances then existing; and
(xiv) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission under the
Securities Act and the Exchange Act, including, without limitation, Rule
172 under the Securities Act, file any final Prospectus, including any
supplement or amendment thereof, with the Commission pursuant to Rule 424
under the Securities Act, promptly inform the Purchasers in writing if, at
any time during the Effectiveness Period, the Company does not satisfy the
conditions specified in Rule 172 and, as a result thereof, the Purchasers
are required to deliver a Prospectus in connection with any disposition of
Registrable Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities
hereunder; and make available to its security holders, as soon as
reasonably practicable, but not later than the Availability Date (as
defined below), an earnings statement covering a period of at least twelve
(12) months, beginning after the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, including Rule 158 promulgated thereunder (for
the purpose of this subsection (xiv), "Availability Date" means the 45th
day following the end of the fourth fiscal quarter that includes the
effective date of such Registration Statement, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter).
(b) The Company may delay the disclosure or material non-public
information concerning the Company, by suspending the use of any Prospectus
included in any registration contemplated by this Section 6 containing such
information, for one or more periods (each such period, a "Suspension") to the
extent that the Board of Directors of the Company concludes in good faith that
it is in possession of material, non-public information that it deems advisable
not to disclose. No Suspension shall be for a period of longer than 60
18
consecutive days, and no Suspensions, together, shall be for a period of an
aggregate in any 365-day period of longer than 90 days. The Company shall
promptly (a) notify the Purchasers in writing of the existence of (but in no
event, without the prior written consent of a Purchaser, shall the Company
disclose to such Investor any of the facts or circumstances regarding) material
non-public information giving rise to a Suspension, (b) advise the Purchasers in
writing to cease all sales under the Registration Statement until the end of the
Suspension and (c) use commercially reasonable efforts to terminate a Suspension
as promptly as practicable.
(c) With a view to making available to the Purchasers the benefits
of Rule 144 (or its successor rule) and any other rule or regulation of the
Commission that may at any time permit the Purchaser to sell Registrable
Securities to the public without registration, the Company covenants and agrees
to: (i) use its commercially reasonable efforts to make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) six months following the date the Registrable
Securities may be sold by the Purchasers under Rule 144 without regard to manner
of sale requirements or volume limitations or (B) such date as all of the
Purchasers' Registrable Securities shall have been resold; and (ii) file with
the Commission in a timely manner all reports and other documents required of
the Company under the Exchange Act; and (iii) furnish to the Purchaser upon
request, as long as the Purchaser owns any Registrable Securities, (A) a written
statement by the Company that it has complied with the reporting requirements of
the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form
10-K or Quarterly Report on Form 10-Q and (C) such other information as may be
reasonably requested in order to avail the Purchaser of any rule or regulation
of the Commission that permits the selling of any such Registrable Securities
without registration.
6.2 Delay in Filing or Effectiveness of Registration Statement. If the
----------------------------------------------------------
Registration Statement is not filed by the Company with the Commission on or
prior to the Filing Deadline, then for each day following the Filing Deadline,
until but excluding the date the Registration Statement is filed, or if the
Registration Statement is not declared effective by the Commission by the
Effective Deadline, then for each day following the Effective Deadline, until
but excluding the date the Commission declares the Registration Statement
effective, the Company shall, for each such day, pay the Purchaser with respect
to any such failure, as liquidated damages and not as a penalty, an amount
(calculated on a pro rata basis for any period short than 30 days (i.e., the
amount of liquidated damages per day is equal to 0.033333)) per 30-day period
equal to 1.00% of the purchase price paid by such Purchaser for its Securities
pursuant to this Agreement; and for any such 30-day period, such payment shall
be made no later than three business days following such 30-day period. If the
Purchaser shall be prohibited from selling the Registrable Securities under the
Registration Statement for any reason (other than as a result of a Suspension of
more than sixty (60) days or Suspensions on more than one (1) occasion of more
than ninety (90) days in the aggregate in any 12-month period), then for each
day on which the Purchaser is so prohibited, but not including any day on which
the prohibition is lifted, the Company shall pay the Purchaser, as liquidated
damages and not as a penalty, an amount (calculated on a pro rata basis for any
period short than 30 days (i.e., the amount of liquidated damages per day is
equal to 0.033333)) per 30-day period equal to 1.00% of the purchase price paid
by such Purchaser for its Securities pursuant to this Agreement, and such
payment shall be made no later than three business days following any such
30-day period. Any payments made pursuant to this Section 6.2 shall constitute
the Purchaser's exclusive monetary
19
remedy for such events, but shall not affect the right of the Purchasers to seek
equitable relief. Notwithstanding the foregoing provisions, in no event shall
the Company be obligated to pay any liquidated damages pursuant to this Section
6.2, (i) to more than one Purchaser in respect of the same Securities for the
same period of time or (ii) in an aggregate amount that exceeds 15% of the
purchase price paid by the Purchasers for the Securities pursuant to this
Agreement. Such payments shall be made to the Purchasers in cash.
6.3 Restrictions on Transferability.
-------------------------------
(a) Each Purchaser agrees that it will not effect any disposition
of the Securities or the Warrant Shares or its right to purchase the Securities
that would constitute a sale within the meaning of the Securities Act or
pursuant to any applicable state securities or Blue Sky laws of any state,
except (i) as contemplated in the Registration Statement referred to in Section
6.1 above, (ii) pursuant to the requirements of Rule 144 (in which case such
Purchaser will provide the Company with reasonable evidence of such Purchaser's
compliance therewith) or (iii) pursuant to a written opinion of legal counsel
reasonably satisfactory to the Company and addressed to the Company to the
effect that registration is not required in connection with the proposed
transfer; whereupon the holder of such securities shall be entitled to transfer
such securities and will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding such Purchaser or
its plan of distribution. Each certificate evidencing the securities
transferred as above provided shall bear the appropriate restrictive legends as
may be required by Section 7.
(b) Each Purchaser acknowledges that there may occasionally be
times when the Company must suspend the use of the prospectus forming a part of
the Registration Statement until such time as an amendment or supplement to the
Registration Statement has been filed by the Company and declared effective, or
until such time as the Company has filed an appropriate report with the
Commission pursuant to the Exchange Act. Each Purchaser hereby covenants that
such Purchaser will not sell any Registrable Securities pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchasers written notice of the Suspension of the use of said prospectus
and ending at the time the Company gives the Purchasers written notice that the
Purchasers may thereafter effect sales pursuant to said prospectus. The Company
agrees to file such amendment, supplement or report as soon as practicable
following such notice of Suspension.
(c) Neither the Securities nor the Warrant Shares shall be
transferable except upon the conditions specified in this Section 6, and in the
case of the Warrants, in the Warrant, which are intended to ensure compliance
with the provisions of the Securities Act. Each Purchaser will cause any
proposed transferee of the Securities or Warrant Shares held by such Purchaser
to agree to take and hold such Securities or Warrant Shares subject to the
provisions and upon the conditions specified in this Section 6 if and to the
extent that such Securities or Warrant Shares continue to be restricted
securities in the hands of the transferee.
(d) Each Purchaser acknowledges and agrees that Registrable
Securities sold pursuant to the Registration Statement are not transferable on
the books of the Company unless the stock certificate submitted to the transfer
agent evidencing such Registrable Securities is accompanied by a separate
Purchaser's Certificate of Subsequent Sale: (i) in the
20
form of Appendix II hereto, (ii) executed by an officer of, or other authorized
person designated by, such Purchaser, and (iii) to the effect that (A) the
Registrable Securities have been sold in accordance with such Registration
Statement, the Securities Act and applicable state securities or Blue Sky laws
and (B) the requirement of delivering a current prospectus has been satisfied.
6.4 Termination Of Conditions And Obligations.
-----------------------------------------
(a) The conditions precedent imposed by Section 6.3 above
regarding the transferability of the Shares or Warrant Shares shall cease and
terminate as to any particular number of the Shares or Warrant Shares upon the
passage of two years from the effective date of the Registration Statement
covering such Securities or Warrant Shares or at such time as an opinion of
counsel satisfactory in form and substance to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act.
(b) The expiration or termination of this Agreement for any reason
will have no effect on the rights of any of the parties under the provisions of
this Section 6.
Section 7. Legends.
-------
(a) Such Purchaser understands and agrees that each certificate or
other document evidencing any of the Securities or Warrant Shares shall be
endorsed with the legend in the form set forth below, and such Purchaser
covenants that such Purchaser will not transfer the Shares or the Warrants
represented by any such certificate without complying with the restrictions on
transfer described in the legend endorsed on such certificate (unless there is
in effect a registration statement under the Securities Act covering such
proposed transfer, such securities have been sold under Rule 144 promulgated
under the Securities Act ("Rule 144") or as otherwise permitted by the
provisions of Section 6.2 above) and understands that the Company will refuse to
register a transfer of any Securities or Warrant Shares unless the conditions
specified in the following legend are satisfied:
"NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE
OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL,
IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SECURITIES."
(b) Upon the earlier of (i) one business day following the
effectiveness date of the Registration Statement or (ii) Rule 144(k) becoming
available the Company shall (A) deliver to the transfer agent for the Common
Stock (the "Transfer Agent")
21
irrevocable instructions that the Transfer Agent shall reissue a certificate
representing shares of Common Stock without legends upon receipt by such
Transfer Agent of the legended certificates for such shares, together with
either (1) a customary representation by the Purchaser that Rule 144(k) applies
to the shares of Common Stock represented thereby or (2) a statement by the
Purchaser that such Purchaser has sold or will sell the shares of Common Stock
represented thereby in accordance with the Plan of Distribution contained in the
Registration Statement, and (B) cause its counsel to deliver to the Transfer
Agent one or more blanket opinions to the effect that the removal of such
legends in such circumstances may be effected under the Securities Act. Nothing
in this Section shall prevent the Company from suspending the effectiveness of
the instructions to the Transfer Agent if sales under the Register Statement are
not permissible for any reason. From and after the earlier of such dates, upon
a Purchaser's written request, the Company shall promptly cause certificates
evidencing the Purchaser's Securities to be replaced with certificates which do
not bear such restrictive legends, and Warrant Shares subsequently issued upon
due exercise of the Warrants shall not bear such restrictive legends provided
the provisions of either clause (i) or clause (ii) above, as applicable, are
satisfied with respect to such Warrant Shares. When the Company is required to
cause an unlegended certificate to replace a previously issued legended
certificate, if: (1) the unlegended certificate is not delivered to a Purchaser
within three (3) Business Days of submission by that Purchaser of a legended
certificate and supporting documentation to the Transfer Agent as provided above
and (2) prior to the time such unlegended certificate is received by the
Purchaser, the Purchaser, or any third party on behalf of such Purchaser or for
the Purchaser's account, purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Purchaser of
shares represented by such certificate (a "Buy-In"), then the Company shall pay
in cash to the Purchaser (for costs incurred either directly by such Purchaser
or on behalf of a third party) the amount by which the total purchase price paid
for Common Stock as a result of the Buy-In (including brokerage commissions, if
any) exceeds the proceeds received by such Purchaser as a result of the sale to
which such Buy-In relates. The Purchaser shall provide the Company written
notice indicating the amounts payable to the Purchaser in respect of the Buy-In.
(c) Such Purchaser covenants that such Purchaser will not transfer
the Registrable Securities represented by any such certificate without complying
with any applicable requirements under the Securities Act to deliver the final
prospectus included in the effective Registration Statement to any offeree of
such Registrable Securities.
Section 8. Indemnification.
---------------
(a) For purposes of this Section 8:
(i) the term "Purchaser" shall include the Purchaser and any
affiliate (as such term is defined pursuant to Rule 12b-2 promulgated under
the Exchange Act) of such Purchaser;
(ii) the term "Prospectus" shall mean the prospectus and any
amendment or supplement thereto in the form first filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act or, if no Rule
424(b) filing
22
is required, filed as part of the Registration Statement at the time of
effectiveness, as supplemented or amended from time to time; and
(iii) the term "Registration Statement" shall include any
final prospectus, exhibit, supplement or amendment included in or relating
to the Registration Statement.
(b) The Company agrees to indemnify and hold harmless each of the
Purchasers, their respective officers, directors, employees and representatives,
and each Person, if any, who controls any Purchaser within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Purchasers or such controlling Person may become
subject, under the Securities Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or arise out
of or are based in whole or in part on any breach of the representations and
warranties of the Company contained in this Agreement, or any failure of the
Company to perform its obligations hereunder, and will reimburse each Purchaser
and each such controlling Person for any legal and other expenses reasonably
incurred as such expenses are reasonably incurred by such Purchaser or such
controlling Person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, liability or expense arises out
of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement or Prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Purchaser expressly for use therein, (ii) the
failure of such Purchaser to comply with the covenants and agreements contained
in Section 6.2 above respecting sale of the Securities or (iii) any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to the Purchaser a reasonable time prior to the pertinent sale or
sales by the Purchaser, and provided that the Purchaser has been notified by the
Company in writing that (i) the Company does not meet the conditions of Rule 172
and, accordingly, the Purchaser is required to deliver the Prospectus in
connection with any sale of Registrable Securities, and (ii) such earlier
Prospectus should no longer be delivered by the Purchaser; and provided, further
that delivery of such updated Prospectus would have avoided such loss, claim,
damage, liability or expense.
(c) Each Purchaser will severally, and not jointly, indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each Person, if any, who controls the
Company within the meaning of the Securities Act, against any losses, claims,
damages, liabilities or expenses to which the Company, each of its directors,
each of its officers who signed the Registration Statement or controlling Person
may become subject, under the Securities Act, the Exchange Act, or any other
23
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Purchaser) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon (i) any failure by such Purchaser to comply with
the covenants and agreements contained in Section 6.2 above respecting the sale
of the Securities and the Warrant Shares or (ii) any untrue or alleged untrue
statement of any material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement or Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser expressly
for use therein, and will reimburse the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling Person for any
legal and other expense reasonably incurred, as such expenses are reasonably
incurred by the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling Person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the aggregate
liability of any Purchaser hereunder shall not exceed the net proceeds received
by the Purchaser in respect of the sale of Registrable Securities giving rise to
such loss, claim, damage, liability, expense or action. No Purchaser shall be
liable for the indemnification obligations of any other Purchaser.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8, promptly notify the indemnifying party
in writing thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
hereunder or otherwise to the extent it is not prejudiced as a result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in accordance
with the proviso to the preceding sentence (it being understood, however,
24
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel, reasonably satisfactory to the indemnifying party,
representing the indemnified parties who are parties to such action) or (ii) the
indemnified party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the reasonable
fees and expenses of counsel shall be at the expense of the indemnifying party.
The indemnifying party shall not be liable for any settlement effected without
its written consent.
(e) If for any reason the indemnification provided for in the
preceding paragraphs (b) and (c) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation.
In no event shall the contribution obligation of a holder of Registrable
Securities be greater in amount than the dollar amount of the proceeds (net of
all expenses paid by such holder in connection with any claim relating to this
Section 8 and the amount of any damages such holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission) received by it upon the sale of the Registrable Securities
giving rise to such contribution obligation.
Section 9. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be as addressed as follows:
if to the Company, to:
Concurrent Computer Corporation.
4375 River Green Parkway
Duluth, GA 30096
Attention: Kirk Somers, Esq.
Vice President, Investor
Relations & General Counsel
Telephone No.: (678) 258-4237
Telecopy No.: (678) 258-4301
with a copy to:
King & Spalding LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Attention: Jack Capers, Esq.
Telephone No.: (404) 572-4658
Telecopy No.: (404) 572-5132
25
and if to any Purchaser, at its address as set forth in Appendix A hereto, or at
such other address or addresses as may have been previously furnished to the
Company in writing in accordance with this Section 9.
(b) Such notices or other communications shall be deemed delivered
upon receipt, in the case of overnight delivery, personal delivery, facsimile
transmission (as evidenced by the confirmation thereof), or mail.
Section 10. Miscellaneous.
-------------
10.1 Amendments. Any term of this Agreement may be amended and the
----------
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and each Purchaser. Any amendment or waiver
effected in accordance with this Section 10.1 shall be binding upon each holder
of any securities purchased under this Agreement at the time outstanding
(including securities into which such securities are convertible), each future
holder of all such securities, and the Company.
10.2 Headings. The headings of the various sections of this Agreement
--------
are for convenience of reference only and shall not be deemed to be part of this
Agreement.
10.3 Severability. In the event that any provision in this Agreement
------------
is held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
10.4 Governing Law And Forum; Waiver of Jury Trial. This Agreement
---------------------------------------------
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be fully performed therein. The
parties hereto agree to submit to the exclusive jurisdiction of the federal and
state courts of the State of New York with respect to the interpretation of this
Agreement or for the purposes of any action arising out of or related to this
Agreement. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY
JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT
COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
10.5 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument. In the event that any
signature is delivered via facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original hereof.
10.6 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties with respect to the matters covered herein,
supersede all prior agreements and understandings with respect to such matters
and executed by and among the Company and any of the Purchasers, and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters.
26
10.7 Independent Nature Of Purchasers' Obligations And Rights. The
--------------------------------------------------------
obligations of each Purchaser under this Agreement are several and not joint
with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under this Agreement. Nothing contained herein and no action taken by
any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group, or are deemed affiliates (as such term is defined under the Exchange
Act) with respect to such obligations or the transactions contemplated by this
Agreement. Each Purchaser shall be entitled to independently protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.
10.8 Expenses. Each party hereto shall pay all costs and expenses
--------
incurred by it in connection with the execution and delivery of this Agreement,
and all the transactions contemplated thereby, including fees of legal counsel.
10.9 Parties. This Agreement is made solely for the benefit of and is
-------
binding upon the Purchasers and the Company and to the extent provided in
Section 8, any person controlling the Company or the Purchaser, the officers and
directors of the Company, and their respective executors, administrators,
successors and assigns and subject to the provisions of Section 8, no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successor and assigns" shall not include any subsequent purchaser, as
such purchaser, of the Securities sold to the Purchaser pursuant to this
Agreement.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized representatives as of the day and year
first above written.
Concurrent Computer Corporation
By:
-----------------------------------
Name:
Title:
28
[Investor Signature Page]
PURCHASER:
Print or Type:
Name of Purchaser
(Individual or Institution):
----------------------------------------
Name of Individual representing
Purchaser (if an Institution):
----------------------------------------
Title of Individual representing
Purchaser (if an Institution):
----------------------------------------
Signature by:
Individual Purchaser or Individual
representing Purchaser:
----------------------------------------
Address:
---------------------------
---------------------------
Telephone:
---------------------------
Telecopier:
---------------------------
E-mail:
---------------------------
Warrants Price Per
Shares to be to be Security in Aggregate
Purchased Purchased Dollars Price
------------ --------- ------------ ----------
$ 1.25 $
29
SCHEDULE OF PURCHASERS
- -------------------------------------------------------------------------------
AGGREGATE
NUMBER
AGGREGATE OF PURCHASE AGGREGATE
PURCHASER TAXPAYER NUMBER WARRANT PRICE PER PURCHASE
PURCHASER NAME ADDRESS ID OF SHARES SHARES SECURITY PRICE
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------- --------- -------- --------- --------- --------- ---------
- -------------------------------------------------------------------------------
30
SUMMARY INSTRUCTION SHEET FOR PURCHASER
---------------------------------------
(to be read in conjunction with the entire
Purchase Agreement which this follows)
A. Complete the following items on the Securities Purchase Agreement
(Please sign two originals):
---
1. Investor Signature Page:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an Institution)
(iii) Title of Individual representing Purchaser (if an
Institution)
(iv) Signature of Individual Purchaser or Individual representing
Purchaser
(v) Amount and Purchase Price of Securities to be Purchased
2. Appendix I - Securities Certificate Questionnaire/Registration
Statement Questionnaire:
Provide the information requested by the Securities Certificate
Questionnaire and the Registration Statement Questionnaire.
3. BY 1:00 P.M. NEW YORK TIME ON TUESDAY, MAY 15, 2007, return one
copy of the properly completed and signed Securities Purchase
Agreement including the properly completed Appendix I (initially by
facsimile with hard copy by overnight delivery) to each of:
CIBC World Markets Corp.
300 Madison Avenue, 5th Floor
New York, New York 10017
Attention: Ashley Myles
Phone: (212) 667-7258
Telecopy: (212) 667-6140
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104-0050
Attention: Ze'-ev Eiger, Esq.
Phone: (212) 468-8222
Telecopy: (212) 468-7900
Please complete all of the information on the signature page of the
Securities Purchase Agreement to facilitate the Closing and the
physical delivery of the Securities.
31
A copy of the Securities Purchase Agreement signed by the Company will
be delivered to the Purchaser at a later date.
B. BY 1:00 P.M. NEW YORK TIME ON FRIDAY, MAY 18, 2007, the Purchaser
shall wire the purchase price for the Securities to the Company's
account specified in and pursuant to the enclosed Wire Instructions.
C. Upon the resale of the Shares or the Warrant Shares by the
Purchasers after the Registration Statement covering the Shares and
the Warrant Shares is effective, as described in the Securities
Purchase Agreement, the Purchaser:
(i) must, if notified in writing by the Company that the Company
does not meet the conditions for use of Rule 172 and that,
accordingly, the Purchaser must deliver a prospectus in
connection with any sale of the securities, deliver a current
prospectus of the Company to the buyer (prospectuses must be
obtained from the Company at the Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the Company
so that the Shares or Warrant Shares may be properly transferred.
32
WIRE INSTRUCTIONS
-----------------
SILICON VALLEY BANK
3353 Peachtree Road, Suite M-10
Atlanta, Georgia 30326
ABA # 121 140 399
Account Name: Concurrent Computer Corporation
ACCOUNT NO.: 3300 446 962
IMPORTANT: Please clearly indicate on the wire (i) the name of the originator
- ---------
(i.e., the Investor) and (ii) the beneficiary, Concurrent Computer Corporation.
Please also coordinate with your financial institution to ensure that
transaction fees are NOT INADVERTENTLY DEDUCTED from the wired funds prior to
their receipt by Silicon Valley Bank.
PLEASE NOTE: If you will be initiating a wire transfer from overseas, please
- -----------
call Simone Lyken, to obtain the Swift code number. Funds may be wired in U.S.
dollars only.
CONTACT:
- -------
Attention: Simone Lyken
Tel No.: 212.623.5118
33
Appendix I
(Page 1 of 3)
CONCURRENT COMPUTER CORPORATION
SECURITIES CERTIFICATE QUESTIONNAIRE
------------------------------------
Pursuant to Section 4.5 of the Agreement, please provide us with the following
information:
1. The exact name that your Securities are to be
registered in (this is the name that will appear on
your stock certificate(s)). You may use a
nominee name if appropriate:
----------------------
2. The relationship between the Purchaser of the
Securities and the Registered Holder listed in
response to item 1 above:
----------------------
3. The mailing address of the Registered Holder
listed in response to item 1 above: ----------------------
----------------------
----------------------
----------------------
4. The Social Security Number or Tax Identification
Number of the Registered Holder listed in
response to item 1 above:
----------------------
Appendix I
(Page 2 of 3)
CONCURRENT COMPUTER CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement, please provide
us with the following information:
Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
Please provide the number of shares that you or your organization will
own immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares purchased by
you or your organization through other transactions:
Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
Yes No
----- -----
If yes, please indicate the nature of any such relationships below:
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
Are you (i) an NASD Member (see definition), (ii) a Controlling (see
definition) shareholder of an NASD Member, (iii) a Person Associated with a
Member of the NASD (see definition), or (iv) an Underwriter or a Related Person
(see definition) with respect to the proposed offering; or (b) do you own any
shares or other securities of any NASD Member not purchased in the open market;
or (c) have you made any outstanding subordinated loans to any NASD Member?
Answer: [ ] Yes [ ] No If "yes," please describe below
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
Appendix I
(Page 3 of 3)
NASD Member. The term "NASD member" means either any broker or dealer admitted
- -----------
to membership in the National Association of Securities Dealers, Inc. ("NASD").
(NASD Manual, By-laws Article I, Definitions)
Control. The term "control" (including the terms "controlling," "controlled by"
- -------
and "under common control with") means the possession, direct or indirect, of
the power, either individually or with others, to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, by contract, or otherwise. (Rule 405 under the Securities
Act of 1933, as amended)
Person Associated with a member of the NASD. The term "person associated with a
- -------------------------------------------
member of the NASD" means every sole proprietor, partner, officer, director,
branch manager or executive representative of any NASD Member, or any natural
person occupying a similar status or performing similar functions, or any
natural person engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by a NASD Member, whether or
not such person is registered or exempt from registration with the NASD pursuant
to its bylaws. (NASD Manual, By-laws Article I, Definitions)
Underwriter or a Related Person. The term "underwriter or a related person"
- -------------------------------
means, with respect to a proposed offering, underwriters, underwriters' counsel,
financial consultants and advisors, finders, members of the selling or
distribution group, and any and all other persons associated with or related to
any of such persons. (NASD Interpretation)
APPENDIX II
[Transfer Agent]
[Address]
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
hereby certifies
- -------------------------------------------------------------
[fill in official name of individual or institution]
that he/she [said institution] is the Purchaser of the shares evidenced by the
attached certificate, and as such, sold such shares on in
---------------
[date]
accordance with the terms of the Purchase Agreement and in accordance with
Registration Statement number
- --------------------------------------------------------------------------------
[fill in the number of or otherwise identify Registration Statement]
or otherwise in accordance with the Securities Act of 1933, as amended.
Print or Type:
Name of Purchaser
(Individual or
Institution):
----------------------
Name of Individual
representing Purchaser (if an
Institution)
----------------------
Title of Individual
representing
Purchaser (if an
Institution):
----------------------
Signature by:
Individual Purchaser
or Individual representing Purchaser:
----------------------
SCHEDULE I
STATE OR OTHER JURISDICTION OF
NAME OF SUBSIDIARY INCORPORATION/ORGANIZATION
------------------ ------------------------------
Concurrent Computer GmbH Germany
Everstream, Inc. Delaware
EXHIBIT A
FORM OF COMPANY COUNSEL OPINION
The Placement Agent shall receive on the Closing Date from counsel for the
Company, an opinion (containing the customary exceptions and assumptions),
addressed to the Placement Agent and the Purchasers and dated such Closing Date,
and stating in effect that:
(a) Each of the Company and its Significant Subsidiaries (as
defined in Rule 1.02(w) of Regulation S-X) organized or incorporated in the
United States of America (the "Subsidiaries") is validly existing as a
corporation in good standing under the laws of their respective jurisdictions of
incorporation. The Company is duly qualified to transact business as a foreign
corporation in the jurisdictions set forth in Exhibit A.
---------
(b) Each of the Company and its Subsidiaries has all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as now being conducted and as described in the Memorandum
and with respect to the Company to enter into and perform its obligations under
this Agreement and to issue and sell the Securities and to issue the Warrant
Shares. As of March 31, 2007, the Company was authorized by its Restated
Certificate of Incorporation to issue capital stock as follows: (a) 100,000,000
shares of Common Stock, (b) 25,000,000 shares of Series Preferred Stock, par
value $0.01 per share ("Series Preferred Stock") and (c) 20,000 shares of Class
A Preferred Stock, par value $100 per share ("Class A Preferred Stock"). As of
March 31, 2007, 71,659,433 shares of Common Stock were outstanding, and no
shares of Series Preferred Stock or Class A Preferred Stock were outstanding.
To our knowledge, there have been no changes in the outstanding capital stock of
the Company since March 31, 2007, except to the extent that options to purchase
shares of Common Stock have been exercised.
(c) The Securities and the Warrant Shares to be issued and sold by
the Company pursuant to this Agreement and the Warrants have been duly
authorized for issuance and sale to the Purchasers pursuant to this Agreement.
The Shares when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued,
fully paid and nonassessable. The Warrant Shares when issued and paid for
pursuant to the terms of the Warrants, will be validly issued, fully paid and
nonassessable. The issuance and sale of the Shares and the issuance of the
Warrant Shares by the Company are not subject to any preemptive or other similar
rights of any securityholder of the Company. The Common Stock conforms in all
material respects to the descriptions thereof in the Form of Resale Registration
Statement, which is attached as an exhibit to the Memorandum and incorporated by
reference therein.
(d) The form of certificate used to evidence the Common Stock
complies in all material respects with the requirements of Delaware General
Corporation Law.
(e) The Company has full corporate power and authority to enter
into this Agreement, Placement Agency Agreement, the Engagement Letter and the
Warrants and to issue, sell and deliver the Securities and Warrant Shares to the
investors as provided herein. This Agreement, the Placement Agency Agreement,
Engagement Letter and
the Warrants have been duly and validly authorized, executed and delivered by
the Company and constitute the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms; except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity.
(f) The execution and delivery by the Company of this Agreement,
the Placement Agency Agreement and the Warrants and the performance by the
Company of its obligations hereunder and thereunder will not (a) violate any of
the terms of the Restated Certificate of Incorporation or the Amended and
Restated Bylaws of the Company, (b) result in any violation of, or conflict
with, or constitute a default (alone or with the passage of time or both) under,
any agreement, indenture, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties or assets is bound or subject, or any New York, Delaware
or federal statute, rule or regulation, that is made an exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 2006 (the "Form
10-K") or any Quarterly Report on Form 10-Q or Current Report on Form 8-K filed
by the Company subsequent to the filing of the Form 10-K, or (c) to our
knowledge, result in the creation or imposition of any lien, charge,
restriction, claim or encumbrance upon any of the properties or assets of the
Company under such agreements.
(g) No consent, approval, authorization, license, registration,
qualification or order of any court or governmental agency or regulatory
authority having jurisdiction over the Company or its Subsidiaries is required
for the offer, sale or issuance of the Securities, except for (and subject to)
the following: (a) such as may be required under the Securities Act and (b) the
qualification (or taking such action as may be necessary to secure an exemption
from qualification, if available) under applicable blue sky laws.
(h) The Shares and the Warrant Shares have been approved for
listing on the NASDAQ Global Market.
(i) The Company is not an "investment company" or an entity
controlled by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(j) Assuming the accuracy of the representations and warranties
of the Purchasers and the Company made in the Purchase Agreements, and the
compliance by the Placement Agent with the offering and solicitation procedures
outlined in its certificate attached hereto, the offer and sale of the
Securities is exempt from the registration requirements of the Act, subject to
the timely filing by the Company of a Form D pursuant to Regulation D
promulgated by the Securities and Exchange Commission under the Securities Act.
To the extent deemed advisable by such counsel, such counsel may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Placement Agent as to matters which are governed by laws other than the laws of
the State of New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States; provided that such counsel shall state
that in their opinion the Purchasers and the Placement Agent are justified in
relying on such other
opinions. Copies of any other opinions relied upon shall be furnished to the
Placement Agent and counsel for the Purchasers. Such counsel's opinion may also
include reasonable and customary assumptions.