Preferred Stock Purchase Agreement
Exhibit
10.1
This
preferred stock purchase agreement (this “Agreement”)
is dated as of September 24, 2008 (the “Effective
Date”), by and between Astea International, Inc., a Delaware corporation
(the “Company”),
and ▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual (the “Purchaser”).
Whereas,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506 promulgated thereunder, the Company desires to issue
and sell to the Purchaser, and the Purchaser desires to purchase from the
Company, securities of the Company as more fully described in this
Agreement.
Now,
therefore, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as
follows:
Article
I
Definitions
Section
1.1 Certain
Definitions. In addition to the terms defined elsewhere in
this Agreement, for all purposes of this Agreement, the following terms have the
meanings set forth in this Section
1.1:
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“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule
144.
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“Business
Day” means any day except Saturday, Sunday, any day which shall be
a federal legal holiday in the United States or any day on which banking
institutions in the State of Delaware are authorized or required by law or
other governmental action to close.
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“Certificate
of Designation” means that certain Certificate of Designation of
Series A Convertible Preferred Stock of even date herewith that sets forth
the rights, preferences, powers, privileges, restrictions, qualifications
and limitations of the Preferred Stock.
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“Commission”
means the Securities and Exchange Commission.
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“Common
Stock” means the common stock of the Company, par value $0.01 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
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“Company
Counsel” means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, with offices located at 3000
Two ▇▇▇▇▇ Square, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
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“Conversion
Shares” means such shares of Common Stock which, from time to time,
have been issued, or may be issuable, pursuant to the exercise of the
conversion rights of the Preferred Stock.
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
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“Independent
Director” means an independent director as defined by Rule
4200(a)(15) of the NASDAQ Marketplace Rules.
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“NASDAQ”
means The NASDAQ Stock Market LLC.
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“Original
Purchase Price” means $3.63.
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“Person”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or
other entity of any kind.
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“Preferred
Stock” means the Series A Convertible Preferred Stock of the
Company, $0.01 par value, issued or issuable to the Purchaser pursuant to
this Agreement with such rights, preferences, powers, privileges,
restrictions, qualifications and limitations as are set forth in the
Certificate of Designation.
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“Related
Party Transaction” means any transaction with the Purchaser or an
Affiliate of the Purchaser.
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“Registrable
Securities” means all of the Common Stock issuable in connection
with any conversion of the Preferred Stock. Upon the sale,
pursuant to a registration statement declared effective by the Commission
or an exemption from registration under the Securities Act (such that all
transfer restrictions and restrictive legends with respect to such
securities being sold are removed upon the consummation of such sale), of
any of the securities described by the preceding sentence, such securities
sold shall no longer be Registrable Securities. The foregoing
notwithstanding, any shares of Common Stock which may be sold pursuant to
Rule 144 without regard to volume or other restrictions (aside from making
any filing required by Rule 144 resulting from the sale) shall not be
Registrable Securities.
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“Rule
144” means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such rule.
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“Securities”
means, as context requires, the Preferred Stock, the Conversion Shares or
both.
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“Trading
Day” means a day on which the Common Stock is, or is able to be,
traded on a Trading Market.
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“Trading
Market” means NASDAQ’s Capital Market.
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“Transfer
Agent” means American Stock Trust & Transfer Company, with a
mailing address of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and a facsimile number of (▇▇▇) ▇▇▇-▇▇▇▇, and any successor transfer agent
of the Company.
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Section
1.2 Interpretation. In
this Agreement, unless otherwise specified or where the context otherwise
requires:
(a) the
headings of particular provisions of this Agreement are inserted for convenience
only and will not be construed as a part of this Agreement or serve as a
limitation or expansion on the scope of any term or provision of this
Agreement;
(b) words
importing any gender shall include other genders;
(c) words
importing the singular only shall include the plural and vice
versa;
(d) the
words “include,” “includes” or “including” shall be deemed to be followed by the
words “without limitation” or “but not limited to;”
(e) the
words “hereof,” “herein” and “herewith” and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole and
not to any particular provision of this Agreement;
(f) references
to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be to Articles,
Exhibits, Sections or Schedules of or to this Agreement; and
(g) references
to any Person include the successors and permitted assigns of such
Person.
Article
II
Purchase
and Sale of Preferred Stock
Section
2.1 Purchase and Sale of
Preferred Stock. On the date hereof, upon the terms and
subject to the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the Company
agrees to sell, and the Purchaser, agrees to purchase 826,446 shares of
Preferred Stock at the Original Purchase Price per share.
Section
2.2 Delivery of Funds and
Shares. No later than the Business Day following the date
hereof, the Purchaser shall deliver to the Company, via wire transfer,
immediately available funds equal to the number of shares of Preferred Stock
multiplied by the Original Purchase Price and the Company shall record the
purchase of the Preferred Stock on the books of the
Company. Certificates evidencing the Preferred Stock shall be
delivered in accordance with Section
4.3.
Section
2.3 Filing of the Certificate of
Designation. No later than the Business Day following the date
hereof, the Company shall file with the Secretary of State of the State of
Delaware the Certificate of Designation.
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Article
III
Representations
and Warranties of the Company
The
Company hereby represents and warrants as of the date hereof to the Purchaser as
follows:
Section
3.1 Organization and
Qualification. The Company is an entity duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
with the requisite power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Company is
not in violation or default of any of the provisions of its certificate of
incorporation, bylaws or other organizational or charter documents.
Section
3.2 Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, its board of directors or its stockholders in connection therewith
other than in connection with the Required Filings. This Agreement
has been duly executed by the Company and constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except (a) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally and (b) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
Section
3.3 No
Conflicts. The execution, delivery and performance of this
Agreement by the Company, the issuance and sale of the Preferred Stock and the
consummation by the Company of the other transactions contemplated hereby and
thereby do not and will not conflict with or violate any provision of the
Company’s certificate of incorporation, bylaws or other organizational or
charter documents.
Section
3.4 Filings, Consents and
Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement, other than (a)
disclosure filings required pursuant to the Exchange Act, (b) application(s) and
notification(s) to the Trading Market for the listing of the Securities for
trading thereon in the time and manner required thereby and (c) the filing of
Form D with the Commission and such filings as are required to be made under
applicable state securities laws (collectively, the “Required
Filings”).
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Section
3.5 Issuance of the
Securities. The Preferred Stock is duly authorized and, when
issued and paid for in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all liens and
encumbrances other than liens and encumbrances created by or imposed on the
Purchaser and restrictions on transfer provided for in this
Agreement. The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable upon the conversion
of the Preferred Stock, and when issued in accordance with this Agreement and
the Certificate of Designation, the Conversion Shares will be duly and validly
issued, fully paid and nonassessable, free and clear of all liens and
encumbrances other than liens and encumbrances created by or imposed on the
Purchaser and restrictions on transfer provided for in this
Agreement.
Article
IV
Representations
and Warranties of the Purchaser
The
Purchaser hereby represents and warrants as of the date hereof to the Company as
follows:
Section
4.1 Own
Account. The Purchaser understands that the Securities are
“restricted securities” and have not been registered under the Securities Act or
any applicable state or other securities law and is acquiring the Securities as
principal for his own account and not with a view to or for distributing or
reselling such Securities or any part thereof in violation of the Securities Act
or any applicable state or other securities law, has no present intention of
distributing any of such Securities in violation of the Securities Act or any
applicable state or other securities law and has no direct or indirect
arrangement or understandings with any other persons to distribute or regarding
the distribution of any Securities (this representation and warranty not
limiting the Purchaser’s right to sell the Securities pursuant to a registration
statement or otherwise in compliance with applicable federal and state
securities laws) in violation of the Securities Act or any applicable state or
other securities law.
Section
4.2 Purchaser
Status. At the time the Purchaser was offered the Securities,
he was, and at the date hereof he is, an “accredited investor” as defined in
Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act.
Section
4.3 Experience of Such
Purchaser. The Purchaser, either alone or together with his
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment. The Purchaser is able to bear the
economic risk of an investment in the Securities.
Section
4.4 Provision of
Information. The Purchaser has been afforded (i) the opportunity to ask
such questions as he has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
Securities and the finances, operations and business of the Company; and (ii)
the opportunity to request such additional information which the Company
possesses or can acquire without unreasonable effort or expense.
Section
4.5 Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by the Purchaser to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by this Agreement.
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Article
V
Other
Agreements of the Parties
Section
5.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other
than pursuant to an effective registration statement or Rule 144, or to the
Company, the Company may require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
a Purchaser under this Agreement.
(b) The
Purchaser agrees to the imprinting, so long as is required by this Section 5.1, of a
legend on any of the Securities in the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
(c) Certificates
evidencing any Securities shall not contain any legend (including the legend set
forth in Section
5.1(b)), (i) while a registration statement covering the resale of such
security is effective under the Securities Act, (ii) following any sale of such
Securities pursuant to Rule 144, (iii) if such Securities are eligible for sale
under Rule 144(b)(1), or (iv) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission). The Company
shall cause its counsel to issue promptly a legal opinion to the Transfer Agent
if required by the Transfer Agent to effect the removal of the legend
hereunder. If all or any portion of the Preferred Stock is converted
to Common Stock at a time when there is an effective registration statement to
cover the resale of the Conversion Shares, certificates representing such
Conversion Shares shall be issued free of all legends. The Company
agrees that at such time as such legend is no longer required under this Section 5.1(c), it
will, upon the written request of the Purchaser, no later than 5 Trading Days
following the delivery to the Company or the Transfer Agent of a certificate
representing Preferred Stock or Conversion Shares, as the case may be, issued
with a restrictive legend, deliver or cause to be delivered to such Purchaser a
certificate representing such shares that is free from all restrictive and other
legends. Notwithstanding the foregoing, the Company shall not be
required to remove any legends until all Securities represented by a single
certificate are no longer subject to restrictions. If only a portion
of the Securities represented by any single certificate are subject to
restrictions, the holder of the certificate may request, or the Company may
require, that such certificate be cancelled and two new certificates be
issued. One certificate shall represent, and be in the amount of,
Securities not subject to restrictions and shall bear no legend and the second
certificate shall represent, and be in the amount of, Securities subject to
restrictions and shall bear an appropriate legend. The Company may
not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this
Section.
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(d) The
Purchaser agrees that the removal of the restrictive legend from certificates
representing Securities as set forth in this Section 5.1 is
predicated upon the Company’s reliance that the Purchaser will sell any
Securities pursuant to either the registration requirements of the Securities
Act, including any applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a registration statement,
they will be sold in compliance with the plan of distribution set forth
therein.
Section
4.2 Reservation of Common
Stock. As of the date hereof, the Company has reserved and the Company
shall continue to reserve and keep available at all times, free of preemptive
and similar rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to issue and deliver Conversion Shares pursuant
to any conversion of the Securities.
Section
4.3 Delivery of
Certificates. The Company shall deliver, or cause to be
delivered, the certificates representing the Preferred Stock to the Purchaser
within 5 Trading Days of the date hereof.
Section
4.4 Form D; Blue Sky
Filings. The Company agrees to timely file a Form D with
respect to the Securities as required under Regulation D and to provide a copy
thereof, promptly upon request of the Purchaser. The Company shall take such
action as the Company shall reasonably determine is necessary in order to obtain
an exemption for, or to qualify the Securities for, sale to the Purchaser
pursuant to this Agreement under applicable securities or “Blue Sky” laws of the
states of the United States, and shall provide evidence of such actions promptly
upon request of the Purchaser. The Purchaser shall take all
commercially reasonable actions that are reasonably requested by the Company
related to, or to effectuate, the filing of a Form D or any filing required
pursuant to the “Blue Sky” laws of the states of the United States which, for
purposes of clarity, shall not include the payment of any fees by the
Purchaser.
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Section
4.5 Listing of the
Securities. The Company shall file such application(s) and
notification(s) to the Trading Market for the listing of the Securities for
trading thereon in the time and manner required thereby.
Section
4.6 Rule
144. The Company agrees to make and keep available current
public information, as that term is used in Rule 144, at all times while
Registrable Securities remain outstanding, with a view to making available to
the holders of the Registrable Securities the benefits of Rule 144.
Section
4.7 Other Covenants of the
Purchaser. Until the fifth anniversary of the date hereof, the
Purchaser shall:
(a) use
his commercially reasonable efforts to nominate and elect at all times at least
two Independent Directors as members of the board of directors of the Company
(the “Board”);
and
(b) not
engage in any Related Party Transaction unless such Related Party Transaction is
approved by at least a majority of the Independent Directors.
Article
VI
Registration
Rights
Section
6.1 Registration
Rights. If at any time after the date hereof and as long as
Registrable Securities remain outstanding, the Company shall file with the
Commission a registration statement of the Company under the Securities Act (a
“Registration
Statement”), relating to an offering for its own account or the account
of others under the Securities Act of any of its equity securities (a “Registration”),
the Company shall send to the Purchaser a written notice of such determination
and, if within 15 days after the giving of such notice, the Purchaser shall so
request in writing, the Company shall include in such Registration Statement all
of the Registrable Shares of the Purchaser, except that if, in connection with
any underwritten Registration for the account of the Company, the managing
underwriter(s) thereof shall impose a limitation on the number of shares of
Common Stock which may be included in a Registration Statement because, in such
underwriter(s)’ judgment, marketing or other factors dictate such limitation is
necessary to facilitate public distribution, then the Company shall be obligated
to include in such Registration Statement only such limited portion of the
Registrable Shares as the underwriter(s) shall permit, if any. If a
Registration in connection with which the Purchaser is entitled to registration
under this Section
6.1 is an underwritten Registration, then the Purchaser shall, unless
otherwise agreed by the Company, offer and sell such Registrable Shares in an
underwritten offering using the same underwriter(s) and, subject to the
provisions of this Article VI, on the
same terms and conditions as other shares of Common Stock included in such
underwritten offering.
(b) Notwithstanding
any other provision of this Agreement, this Article VI shall not
apply to, and the Purchaser’s right to participate in a Registration shall not
be triggered by, the filing of a Registration Statement (i) covering shares of
Common Stock issued pursuant to an employee benefit plan, (ii) on Form S-4 (or
successor form) under the Securities Act for the purpose of offering such
securities to another business entity or the shareholders of such entity in
connection with the acquisition of assets or shares of capital stock,
respectively, of such entity, or (iii) in connection with a resale shelf
registration filed in connection with an acquisition, reorganization,
recapitalization, merger, consolidation or similar transaction involving the
Company.
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(c) If
any Registration was initiated by the Company to effect, in whole or in part, a
primary public offering of its securities and, if at any time after giving
written notice of its intention to so register securities and before the
effectiveness of the Registration Statement filed in connection with such
Registration, the Company determines for any reason either not to effect such
Registration or to delay such Registration, the Company may, at its election, by
prior written notice to the Purchaser: (i) in the case of a determination not to
effect such Registration, relieve itself of its obligation set forth this Section 6.1 to
register the Registrable Shares in connection with such Registration; or (ii) in
the case of a determination to postpone such Registration, delay the
Registration of the Registrable Shares for the same period as the Registration
of the Company’s securities is postponed.
(d) Notwithstanding
any other provision of this Article VI, the
Company shall not be required to effect a Registration pursuant to this Section 6.1, or file
any post-effective amendment to such a Registration: (i) if a
Registration, or any post-effective amendment to such Registration, requires,
under applicable statutes and rules, a special audit (other than a normal fiscal
year-end audit) of the financial statements of the Company, unless the Purchaser
agrees to pay the fees and expenses of accountants incurred in connection with
the special audit and which would otherwise not be incurred but for the
participation of the Purchaser in such Registration; (ii) the Company has not
received from the Purchaser all information the Company has requested pursuant
to Section
6.3.
Section
6.2 Company
Obligations. In connection with the Company’s obligation to
effect a Registration (and only to the extent such Registration includes any
Registrable Shares), it shall:
(a) Promptly
prepare and file with the Commission a Registration Statement with respect to
the shares to be included in such Registration (the “Registered
Shares”) and use its commercially reasonable efforts to cause the
Registration Statement to become and remain effective as soon as reasonably
practicable thereafter;
(b) Prepare
and file such amendments to the Registration Statement and supplements to the
prospectus contained therein as may be necessary to keep the Registration
Statement effective as required herein;
(c) Furnish
to the Purchaser and any underwriters of the Registered Shares such reasonable
number of copies of the Registration Statement and any amendments thereto, any
related prospectus and supplements thereto, all correspondence to and from the
Commission, including comment letters and responses thereto, and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of the Registered Shares;
(d) Register
or qualify the Registered Shares under such state securities or “blue sky” laws
of such jurisdictions as the Purchaser may reasonably (in light of a reasonable
plan of distribution) request as soon as reasonably practicable, but in any
event within 20 days following the original filing of the Registration
Statement; provided,
that the Company shall not be required to take any action in any jurisdiction
which would require it to qualify to do business in such jurisdiction or
otherwise subject it to service of process, except with respect to the offering
and sale of the Registered Shares;
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(e) Notify
the Purchaser promptly after it shall receive notice thereof of the time when
the Registration Statement has become effective or a supplement to any
prospectus forming a part of the Registration Statement has been
filed;
(f) Notify
the Purchaser promptly of any request by the Commission or applicable state
securities agency for the amending or supplementing of the Registration
Statement or prospectus or for additional information;
(g) Prepare
and promptly file with the Commission and promptly notify the Purchaser of the
filing of such amendment or supplement to the Registration Statement or
prospectus as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to the Registered Shares is required to be
delivered under the Securities Act, any event shall have occurred, the result of
which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading;
(h) In
case the Purchaser or any underwriter(s) are required to deliver a prospectus at
a time when the prospectus then in circulation is not in compliance with the
Securities Act, the Company will prepare and file such supplements or amendments
to the Registration Statement and such prospectus or prospectuses as may be
necessary to permit compliance with the requirements of the Securities Act as
soon as reasonably practicable thereafter;
(i) Advise
the Purchaser, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued;
and
(j) Permit
the Purchaser a reasonable amount of time (not to exceed 7 days) to review the
Registration Statement, any amendments thereto, and any related prospectus(es)
and supplement(s) thereto prior to their filing with the Commission, and will
not file any such document in a form to which the Purchaser shall reasonably
have objected in writing on the grounds that such document does not comply in
all material respects with the requirements of the Securities Act or the rules
and regulations thereunder.
(k) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering.
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Section
6.3 Purchaser
Obligations. In connection with a Registration of the
Registrable Shares, the Purchaser shall have the following
obligations:
(a) It
shall be a condition precedent to the obligations of the Company to include in a
Registration any Registrable Securities pursuant to this Section VI that the
Purchaser shall furnish to the Company such information regarding himself, the
Registrable Shares and the intended method or manner of disposition of the
Registrable Shares as shall be reasonably required to effect a Registration of
such Registrable Shares and shall execute such documents in connection with such
Registration as the Company may request. At least 10 business days
prior to the first anticipated filing date of a Registration Statement (which is
intended to include Registrable Securities), the Company shall notify the
Purchaser of the information the Company requires;
(b) The
Purchaser agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement (which is intended to include Registrable Securities);
(c) The
Purchaser agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6.2(g), the
Purchaser will immediately discontinue disposition of Registrable Shares
pursuant to the Registration Statement covering such Registrable Shares until
the Purchaser’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 6.2(g) and,
if so directed by the Company, the Purchaser shall deliver to the Company or
destroy (and deliver to the Company a certificate of destruction) all copies in
the Purchaser’s possession, of the prospectus covering such Registrable Shares
current at the time of receipt of such notice;
(d) The
Purchaser may not participate in any underwritten Registration hereunder unless
the Purchaser (i) agrees to sell his Registrable Shares on the basis provided in
any underwriting arrangements entered into by the Company; (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; and (iii) agrees to pay its pro rata share of all
underwriting discounts and commissions applicable to the sale of the Registrable
Securities; and
(e) The
Purchaser agrees to comply with all applicable laws and regulations in
connection with any sale, transfer or other disposition of Registrable
Shares.
Section
6.4. Assignment of Registration
Rights. The registration
rights provided by this Article VI may be assigned by the Purchaser to a
transferee or assignee of Registrable Securities (for so long as such shares
remain Registrable Securities).
-11-
Article
VII
Miscellaneous
Section
7.1 Fees and
Expenses. Except as expressly set forth in this Agreement to
the contrary, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. The foregoing notwithstanding, the
Company shall pay up to $35,000 of fees and expenses incurred by the Purchaser
for legal counsel in relation to the negotiation and execution of this Agreement
and the purchase of the Preferred Stock. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchaser. The Company
shall pay, and shall indemnify the Purchaser against any liability for, any
brokerage or finder’s fees or commissions payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the purchase of the Preferred Stock
pursuant to this Agreement.
Section
7.2 Entire
Agreement. This Agreement together with any exhibits and
schedules thereto, contain the entire understanding of the parties with respect
to the subject matter hereof and thereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
7.3 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile prior to 5:30 p.m. (New York City time)
on a Business Day, (b) the next Business Day after the date of transmission, if
such notice or communication is delivered via facsimile on a day that is not a
Business Day or later than 5:30 p.m. (New York City time) on any Business Day,
(c) the second Business Day following the date of mailing, if sent by nationally
recognized overnight courier service, or (d) upon actual receipt by the party to
whom such notice is required to be given. The address or facsimile
number for such notices and communications shall as follows:
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If to the
Company:
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Astea
International, Inc.
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▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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with a copy
to:
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP
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3000
Two ▇▇▇▇▇ Square
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▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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-12-
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If
to the Purchaser:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇.▇.
▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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with
a copy to:
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▇▇▇▇▇▇▇▇▇▇
Keen & ▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Road
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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Section
7.4 Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right.
Section
7.5 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Purchaser may not assign its rights hereunder without
the written consent of the Company.
Section
7.6 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
Section
7.7 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law
thereof.
Section
7.8 Execution. This
Agreement may be executed in more than one counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
Section
7.9 Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
-13-
Section
7.10 Replacement of
Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof (in the case of mutilation), or in lieu of and substitution therefor, a
new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction. The
applicant for a new certificate or instrument under such circumstances shall
also pay any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement Securities.
Section
7.11 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, the parties will be entitled to specific
performance under this Agreement. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any
breach of obligations contained in this Agreement and hereby agrees to waive and
not to assert in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
Section
7.12 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise this Agreement and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments hereto.
Section
7.13 No
Conflict. Each of the parties (a) hereby confirms that no
engagement that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP has undertaken or may undertake on behalf of
the Company or the Purchaser or any of their respective current or former
Affiliates will be asserted by any of the Company or the Purchaser either as a
conflict of interest with respect to, or as a basis to preclude, challenge or
otherwise disqualify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP from, any current or future
representation of the Company, the Purchaser or any of their respective current
or former Affiliates (except, with regard to the Purchaser, representation
related to the purchase of the Preferred Stock pursuant to this Agreement), and
(b) hereby waives any conflict of interest that exists on or prior to the
Effective Date, or that might be asserted to exist after the Effective Date, and
any other basis that might be asserted to preclude, challenge or otherwise
disqualify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in any representation of the Company, the
Purchaser or any of their respective current or former Affiliates with respect
to any such matter (except, with regard to the Purchaser, representation related
to the purchase of the Preferred Stock pursuant to this Agreement).
[signature
pages follow]
-14-
The
parties hereto have caused this Preferred Stock Purchase Agreement to be duly
executed as of the Effective Date.
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The
Company:
Astea
International, Inc.
By: /s/ ▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: President
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The
Purchaser:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇
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[signature
page to the Preferred Stock Purchase Agreement]