Exhibit 10.12
SOCKET COMMUNICATIONS, INC.
SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
November __, 1998
TABLE OF CONTENTS
Page
1. Purchase and Sale of Stock and Warrant 1
1.1 Issuance of Series D Convertible Preferred Stock and Warrant 1
1.2 Closing Date 1
1.3 Delivery 1
2. Representations and Warranties of the Company 2
2.1 Organization, Good Standing and Qualification 2
2.2 Capitalization 2
2.3 Subsidiaries 2
2.4 Authorization 2
2.5 Valid Issuance of Preferred and Common Stock 3
2.6 Governmental Consents 3
2.7 Litigation 4
2.8 Patents and Trademarks 4
2.9 Compliance with Other Instruments 4
2.10 Permits 5
2.11 Disclosure 5
2.12 Title to Property and Assets 5
2.13 Company Financial Statements 5
2.14 Taxes and Tax Returns 5
2.15 Brokers or Finders 6
3. Representations and Warranties of the Investor 6
3.1 Experience 6
3.2 Investment 6
3.3 Rule 144 6
3.4 Access to Data 6
3.5 Authorization 7
3.6 Accreditted Investor 7
3.7 High Degree of Risk 7
4. Conditions of Investor's Obligations at Closing 7
4.1 Representations and Warranties 7
4.2 Performance 7
4.3 Blue Sky 8
4.4 Issuance of Warrant 8
5. Conditions of the Company's Obligations at Closing 8
5.1 Representations and Warranties 8
5.2 Payment of Purchase Price 8
5.3 Blue Sky 8
5.4 Proceedings and Documents 8
6. Registration Rights; Restrictions on Transfer 8
6.1 Certain Definitions 8
6.2 Restrictions on Transferability 10
6.3 Restrictive Legend 10
6.4 Notice of Proposed Transfers 10
6.5 Company Registration 11
6.6 Registration on Form S-3 12
6.7 Expenses of Registration 13
6.8 Indemnification 13
6.9 Information by Holder 15
6.10 Transfer or Assignment of Rights 15
6.11 "Lock-Up" Agreement 16
7. Preemptive Rights 16
10. Miscellaneous 18
10.1 Governing Law 18
10.2 Survival 18
10.3 Successors and Assigns 18
10.4 Entire Agreement; Amendment 18
10.5 Notices, etc 18
10.6 Delays or Omissions 18
10.7 California Corporate Securities Law 19
10.8 Expenses 19
10.9 Finder's Fee 19
10.10 Counterparts 19
10.11 Severability 19
SOCKET COMMUNICATIONS, INC.
SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This Series D Convertible Preferred Stock Purchase Agreement is made
as of November 23, 1998, by and between Socket Communications, Inc., a
Delaware corporation (the "Company") and the Bass Trust (the
"Investor").
The parties hereby agree as follows:
1. Purchase and Sale of Stock and Warrant.
1.1 Issuance of Series D Convertible Preferred Stock and Warrant.
(a) Subject to the terms and conditions of this
Agreement, the Investor agrees to purchase from the Company at the
Closing, and the Company agrees to sell and issue to the Investor at the
Closing, 17,429 shares of Series D Convertible Preferred Stock (the
"Shares") and a warrant to purchase 58,097 shares of Common Stock in the
form attached hereto as Exhibit B (the "Warrant") for an aggregate
purchase price of $100,000.
1.2 Closing Date. The closing of the purchase
and sale of the Shares hereunder (the "Closing") shall be held at 10:00
a.m. (California time) on such date that the Company and the Investor
mutually agree but no later than November 23, 1998 (the date of such
Closing being referred to as the "Closing Date"). The place of the
Closing (including the place of delivery to the Investor by the Company of
the certificate evidencing the Shares and the Warrant being purchased and
the place of payment to the Company by the Investor of the purchase price
therefor) shall be at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
location as the Company and the Investor may agree.
1.3 Delivery . At the Closing, the
Company will deliver to the Investor a certificate representing the Shares
and the Warrant against payment of the purchase price therefor, by check
or wire transfer in immediately available funds, in the amount of
$100,000.
2. Representations and Warranties of the Company. Except as set
forth in (i) the Company's Form 10-K for the year ended December 31, 1997
and Form 10-Q for the quarter ended September 30, 1998, copies of which have
been provided to the Investor, or (ii) the Schedule of Exceptions attached
hereto as Exhibit B, the Company hereby represents and warrants to the
Investor as follows:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as currently conducted. The Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or properties. True and accurate copies of
the Company's Amended and Restated Certificate of Incorporation and Bylaws,
each as amended and in effect at the Closing, have been delivered to the
Investor.
2.2 Capitalization. The authorized capital stock of the
Company consists of 15,000,000 shares of Common Stock, $0.001 par value
("Common Stock"), of which 7,365,914 shares are issued and outstanding
as of November 18, 1998, and 3,000,000 shares of Preferred Stock
("Preferred Stock"), of which 37,500 shares are designated Series B
Convertible Preferred Stock, 12,500 of which are issued and outstanding,
8,850 shares are designated Series B-1 Convertible Preferred Stock, all of
which are issued and outstanding, 8,715 shares are designated Series B-2
Convertible Preferred Stock, all of which are issued and outstanding,
95,037 shares are designated Series C Convertible Preferred Stock, all of
which are issued and outstanding, 51,574 shares are designated Series C-1
Convertible Preferred Stock, all of which are issued and outstanding, and
16,857 shares are designated Series C-2 Convertible Preferred Stock, all
of which are issued and outstanding. All such issued and outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. An aggregate of 1,918,508 shares of Common Stock are
reserved for issuance under the Company's 1993 Stock Option Plan/Stock
Issuance Plan and the Company's 1995 Stock Plan. Except as set forth on
Schedule 2.2 of Exhibit B, there are no outstanding rights, options,
warrants, preemptive rights, rights of first refusal or similar rights for
the purchase or acquisition from the Company of any securities of the
Company.
2.3 Subsidiaries . The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
association, or other business entity. The Company is not a participant in
any joint venture, partnership, or similar arrangement.
2.4 Authorization . Except as set forth in Schedule 2.4 of
Exhibit B, all corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the
Company hereunder and thereunder, and the authorization, issuance (or
reservation for issuance), sale and delivery of the Shares, the Warrant
being sold hereunder, and the Common Stock issuable upon conversion of the
Shares and upon exercise of the Warrant, has been taken or will be taken
prior to the Closing, and this Agreement constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject to: (i) judicial principles limiting the availability of
specific performance, injunctive relief, and other equitable remedies; and
(ii) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect generally relating to or affecting
creditors' rights.
2.5 Valid Issuance of Preferred and Common Stock. The Shares
and the Warrant being purchased by the Investor hereunder, when issued,
sold and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully
paid, and nonassessable, and will be free of restrictions on transfer other
than restrictions on transfer under this Agreement, such Warrant and
applicable state and federal securities laws. Except as set forth in
Schedule 2.5 of Exhibit B, the Common Stock issuable upon conversion of the
Series D Convertible Preferred Stock and the Common Stock issuable upon
exercise of the Warrant has been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Certificate of
Designations of Preferences and Rights of Series D Convertible Preferred
Stock attached hereto as Exhibit C (the "Certificate of Designations") and
the Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") or upon issuance in accordance with the terms of such
Warrant, as the case may be, will be duly and validly issued, fully paid,
and nonassessable and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement, such Warrant and applicable
state and federal securities laws. So long as the number of shares of
Common Stock of the Company outstanding on a fully-diluted, as-converted
basis exceeds the number of authorized Common Stock of the Company, at the
1999 Annual Meeting of Stockholders (which shall be held prior to June 30,
1999) the Company shall seek stockholder approval of an amendment to its
Certificate of Incorporation to increase its authorized Common Stock so
that the number of authorized shares of Common Stock will thereafter exceed
the number of shares outstanding on a fully-diluted, as-converted basis,
and the Company shall use its reasonable best efforts to obtain such
stockholder approval.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state or local governmental authority on the
part of the Company is required in connection with the offer, sale or
issuance of the Shares (and the Common Stock issuable upon conversion of
the Shares) or the Warrant (and the Common Stock issuable upon exercise of
the Warrant) (together with the Shares and the Common Stock issuable upon
conversion thereof, the "Securities") or the consummation of any other
transaction contemplated hereby, except for the following: (i) the filing
of such notices as may be required under the Securities Act of 1933, as
amended (the "Securities Act"); and (ii) the filing of any notices required
under applicable state securities laws (the "Applicable Blue Sky Law").
Based in part on the representations of the Investor set forth in Section 3
below, the offer, sale and issuance of the Shares and the Warrant in
conformity with the terms of this Agreement are exempt from the
registration requirements of Section 5 of the Securities Act and from the
qualification requirements of Applicable Blue Sky Law.
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or, to the best of the Company's knowledge, currently
threatened before any court, administrative agency or other governmental
body against the Company which questions the validity of this Agreement and
the Investor Rights Agreement or the right of the Company to enter into it,
or to consummate the transactions contemplated hereby or thereby, or which
could result, either individually or in the aggregate, in any material
adverse change in the condition (financial or otherwise), business,
property, assets or liabilities of the Company. The foregoing includes,
without limitation, actions, suits, proceedings or investigations pending
or threatened (or any basis therefor known to the Company) involving the
prior employment of any of the Company's employees, their use in connection
with the Company's business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under
any agreements with prior employers. The Company is not a party or subject
to, and none of its assets is bound by, the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality.
2.8 Patents and Trademarks. The Company has sufficient title
and ownership of all patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, proprietary rights and processes
(collectively, "Intellectual Property") necessary for its business as now
conducted without any conflict with or infringement of the rights of
others. There are no outstanding options, licenses, or agreements of any
kind relating to the foregoing, nor is the Company bound by or a party to
any options, licenses or agreements of any kind with respect to the
Intellectual Property of any other person or entity. Except as set forth
in Schedule 2.8 of Exhibit B, the Company has not received any
communications alleging that any material Intellectual Property of the
Company has violated or would violate any of the Intellectual Property of
any other person or entity.
2.9 Compliance with Other Instruments. Except as set forth in
Schedule 2.9 of Exhibit B, the Company is not in violation or default of
any provision of its Certificate of Incorporation or Bylaws, each as
amended and in effect on and as of the Closing. Except as set forth in
Schedule 2.9 of Exhibit B, the Company is not in violation or default of
any material provision of any instrument, mortgage, deed of trust, loan,
contract, commitment, judgment, decree, order or obligation to which it is
a party or by which it or any of its properties or assets are bound or, to
the best of its knowledge, of any provision of any federal, state or local
statute, rule or governmental regulation, except for such violations or
defaults which would not materially adversely affect the Company's business
or properties. The execution, delivery and performance of and compliance
with this Agreement, and the issuance and sale of the Shares and the
Warrant, will not result in any such violation, be in conflict with or
constitute, with or without the passage of time or giving of notice, a
default under any such provision, require any consent or waiver under any
such provision (other than any consents or waivers that have been
obtained), or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such provision.
2.10 Permits. The Company has all franchises, permits,
licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which could materially
and adversely affect the Company's business or properties, and the Company
believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. The
Company is not in default in any material respect under any of such
franchises, permits, licenses, or other similar authority.
2.11 Disclosure. No representation, warranty or statement by
the Company in this Agreement, or in any written statement or certificate
furnished to the Investor pursuant to this Agreement or the transactions
contemplated hereby, contains any untrue statement of a material fact or,
when taken together, omits to state a material fact necessary to make the
statements made herein or therein, in light of the circumstances under
which they were made, not misleading.
2.12 Title to Property and Assets. Except as set forth in
Schedule 2.12 of Exhibit B, the Company has good and marketable title to
all of its properties and assets free and clear of all mortgages, liens and
encumbrances, except liens for current taxes and assessments not yet due
and possible minor liens and encumbrances which do not, in any case, in the
aggregate, materially detract from the value of the property subject
thereto or materially impair the operations of the Company. With respect
to the property and assets it leases, the Company is in compliance with
such leases and, to the best of its knowledge, holds a valid leasehold
interest free of all liens, claims or encumbrances.
2.13 Company Financial Statements. The Company's audited
balance sheets as of December 31, 1997, and the related audited statements
of income and cash flow for the twelve-month period ended December 31,
1997, included in the Company's Form 10-K for the year ended December 31,
1997, and the Company's unaudited balance sheets as of September 30, 1998
and the related unaudited statements of income and cash flow for the
nine-month period ended September 30, 1998 included in the Company's Form
10-Q for the quarter ended September 30, 1998 (collectively the "Company
Financials"), are correct in all material respects and have been prepared
in accordance with U.S. generally accepted accounting principles consistent
with the reporting practices and principles ("GAAP"), applied on a basis
consistent throughout the periods indicated and consistent with each other.
The Company Financials present fairly the financial condition, operating
results and cash flows of the Company as of the dates and during the
periods indicated therein.
2.14 Taxes and Tax Returns. The Company has accurately
prepared all United States income tax returns and all state and municipal
tax returns required to be filed by it, if any, has paid all taxes,
assessments, fees and charges when and as due under such returns and has
made adequate provision for the payment of all other taxes, assessments,
fees and charges shown on such returns or on assessments received by the
Company. To the best of the Company's knowledge, no deficiency assessment
or proposed adjustment of the Company's United States income tax or state
or municipal taxes is pending. The Company has withheld or collected from
each payment made to each of its employees, the amount of all taxes,
including, but not limited to, federal income taxes, Federal Insurance
Contribution Act taxes and Federal Unemployment Tax Act taxes, required to
be withheld or collected therefrom, and have paid the same to the proper
tax receiving officers or authorized depositaries.
2.15 Brokers or Finders. Except as specifically provided in
this Agreement, the Company has not agreed to incur, directly or
indirectly, any liability for brokerage or finders' fees, agents'
commissions or other similar charges in connection with this Agreement or
any of the transactions contemplated hereby.
30 Representations and Warranties of the Investor. The Investor
hereby represents and warrants that:
3.1 Experience. Such Investor is experienced in evaluating
companies such as the Company, is able to fend for itself in transactions
such as the one contemplated by this Agreement, has such knowledge and
experience in financial and business matters that Investor is capable of
evaluating the merits and risks of Investor's prospective investment in the
Company, and has the ability to bear the economic risks of the investment.
3.2 Investment. Such Investor is acquiring the Securities
for investment for such Investor's own account and not with the view to, or
for resale in connection with, any distribution thereof. Such Investor
understands that the Securities have not been registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things,
the bona fide nature of the investment intent as expressed herein. Such
Investor further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant participation to any third person with respect to any of the
Securities. Such Investor understands and acknowledges that the offering
of the Securities pursuant to this Agreement will not, and any issuance of
Common Stock on conversion may not, be registered under the Securities Act
on the ground that the sale provided for in this Agreement and the issuance
of securities hereunder is exempt from the registration requirements of the
Securities Act.
3.3 Rule 144. Such Investor acknowledges that the Securities
must be held for at least one (1) year pursuant to Rule 144 promulgated
under the Securities Act unless subsequently registered under the
Securities Act or an exemption from such registration is available. Such
Investor is aware of the provisions of Rule 144, which permit limited
resale of shares purchased in a private placement subject to the
satisfaction of certain conditions. Such Investor covenants that, in the
absence of an effective registration statement covering the stock in
question, such Investor will sell, transfer, or otherwise dispose of the
Securities only in a manner consistent with such Investor's representations
and covenants set forth in this Section 3. In connection therewith, such
Investor acknowledges that the Company will make a notation on its stock
books regarding the restrictions on transfers set forth in this Section 3
and will transfer securities on the books of the Company only to the extent
not inconsistent therewith.
3.4 Access to Data. Such Investor has received and reviewed
information about the Company and has had an opportunity to discuss the
Company's business, management and financial affairs with its management
and to review the Company's facilities. Such Investor understands that
such discussions, as well as any written information issued by the Company,
were intended to describe the aspects of the Company's business and
prospects which the Company believes to be material, but were not
necessarily a thorough or exhaustive description. The foregoing, however,
does not limit or modify the representations and warranties of the Company
in Section 2 of this Agreement or the right of the Investor to rely thereon.
3.5 Authorization. This Agreement when executed and
delivered by such Investor will constitute a valid and legally binding
obligation of such Investor, enforceable in accordance with its terms,
subject to: (i) judicial principles respecting election of remedies or
limiting the availability of specific performance, injunctive relief, and
other equitable remedies; and (ii) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect generally
relating to or affecting creditors' rights.
3.6 Accredited Investor. Such Investor acknowledges that it
is an "accredited investor" as defined in Rule 501 of Regulation D as
promulgated by the Securities and Exchange Commission under the Securities
Act and shall submit to the Company such further assurances of such status
as may be reasonably requested by the Company. For state securities law
purposes, the principal address of such Investor is ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
3.7 High Degree of Risk. Such Investor is aware that the
securities offered hereby involve a high degree of risk and that Investor
may suffer a total loss of its investment. The Investor has been provided
with, among other things, the Company's periodic reports filed with the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, including the Company's most recently filed Annual Report
on Form 10-K and Quarterly Report on Form 10-Q. Such Investor has read the
information in such reports, including the information under the caption
"Risk Factors" included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section. Such Investor is
further aware that following the investment contemplated herein, the
Company may need to raise additional capital to maintain continued listing
of its Common Stock on the Pacific Exchange. Should the Company's Common
Stock be delisted from the Pacific Exchange, such Investor understands that
it would find it more difficult to dispose of, or obtain accurate
quotations as to the price of, the Company's securities, and that the
ability or willingness of broker-dealers to sell or make a market in the
Company's Common Stock, and therefore such Investor understands that its
ability to sell the Company's Common Stock in the secondary market would be
materially adversely affected.
40 Conditions of Investor's Obligations at Closing. The
obligations of the Investor under subsection 1.1(b) of this Agreement are
subject to the fulfillment on or before each Closing of each of the
following conditions, the waiver of which shall not be effective against
any Investor who does not consent in writing thereto:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of
the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing.
4.2 Performance. The Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or
before the Closing.
4.3 Blue Sky. The Company shall have obtained all necessary
permits and qualifications, if any, or secured an exemption therefrom,
required by any state or country prior to the offer and sale of the Shares.
4.4 Issuance of Warrant. Upon the Closing, the Company shall
have delivered to the Investor the Warrant.
50 Conditions of the Company's Obligations at Closing. The
obligations of the Company to the Investor under this Agreement are subject
to the fulfillment on or before each Closing of each of the following
conditions by that Investor:
5.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 3 shall be true on and as
of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
5.2 Payment of Purchase Price. The Investor shall have
delivered the purchase price specified in Section 1.1 against delivery of
the Shares.
5.3 Blue Sky . The Company shall have obtained all necessary
permits and qualifications, if any, or secured an exemption therefrom,
required by any state or country for the offer and sale of the Shares.
5.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby, and all documents and instruments incident to these transactions,
shall be reasonably satisfactory in substance to the Company and its
counsel.
60 Registration Rights; Restrictions on Transfer.
6.1 Certain Definitions. As used in Sections 6 and 7 hereof,
the following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act
"Common Stock" shall mean all shares of Common Stock of the
Company.
"Conversion Stock" shall mean the Common Stock issued or
issuable upon conversion of shares of Series D Preferred.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean the Investor and any holder of Registrable
Securities to whom the registration rights conferred by this Agreement have
been transferred in compliance with Sections 6.2 and 6.10 hereof.
"Preferred Stock" shall mean all shares of all Series of
Preferred Stock of the Company.
"Registrable Securities" shall mean (i) Common Stock held by
the Investor or issued or issuable upon conversion of the Series D Preferred,
(ii) the Warrant Stock or (iii) any Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in replacement of
the stock referenced in (i) or (ii) above.
The terms "register", "registered" and "registration" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness
of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in compliance with Sections 6.5 and 6.6 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company which shall include any fees and
disbursements for legal services provided by counsel for the Company on
behalf of the Holders up to a maximum of $10,000 of fees and disbursements,
blue sky fees and expenses for state qualifications or registrations.
"Restricted Securities" shall mean the securities of the
Company required to bear or bearing the legend set forth in Section 3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and expense allowances applicable to the sale of
Registrable Securities and all fees and disbursements of counsel for any
Holder (other than the fees and disbursements of the Company's counsel
included in Registration Expenses).
"Warrant Stock" shall mean the Common Stock issued or issuable
upon exercise of the Warrant.
6.2 Restrictions on Transferability. The Series D Preferred,
the Conversion Stock, the Warrant Stock and any other securities issued in
respect of the foregoing upon any stock split, stock dividend,
recapitalization, merger, consolidation, or similar event, shall not be
transferred except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. Any transferee of such securities shall take and hold such
securities subject to the provisions and upon the conditions specified in
this Agreement.
6.3 Restrictive Legend. Each certificate representing the
Series D Preferred, the Conversion Stock, the Warrant Stock and any other
securities issued in respect of the foregoing upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped
or otherwise imprinted with a legend substantially in the following form
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES
LAWS. SUCH SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO,
AND MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH, THAT CERTAIN
STOCK PURCHASE AGREEMENT AMONG THE HOLDER OF THESE SECURITIES
AND CERTAIN OTHER HOLDERS OF THE COMPANY'S STOCK, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.
Upon request of a holder of such a certificate, the Company
shall remove the foregoing legend from the certificate or issue to such
holder a new certificate therefor free of any transfer legend, if, with such
request, the Company shall have received either the opinion referred to in
Section 6.4(i) or the "no-action" letter referred to in Section 6.4(ii) to
the effect that any transfer by such holder of the securities evidenced by
such certificate will not violate the Securities Act and applicable state
securities laws, unless any such transfer legend may be removed pursuant to
Rule 144(k) or any successor rule, in which case no such opinion or "no-
action" letter shall be required.
6.4 Notice of Proposed Transfers. The holder of each
certificate representing Restricted Securities by acceptance thereof agrees
to comply in all respects with the provisions of this Section 6.4. Prior
to any proposed transfer of any Restricted Securities (other than under
circumstances described in Section 6.5 and 6.6 hereof), the holder thereof
shall give written notice to the Company of such holder's intention to
effect such transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied by either (i) if required, a written opinion of legal counsel
to the holder who shall be reasonably satisfactory to the Company,
addressed to the Company, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the
Securities Act or (ii) a "no-action" letter from the Commission to the
effect that the distribution of such securities without registration will
not result in a recommendation by the staff of the Commission that action
be taken with respect thereto, whereupon the holder of such Restricted
Securities shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by such holder to the
Company. The Company will not require such a legal opinion or "no action"
letter (i) in any transaction in compliance with Rule 144 promulgated under
the Securities Act, (ii) in any transaction in which the Investor
distributes Restricted Securities solely to its stockholders on a pro rata
basis for no consideration, or (iii) in any transaction in which a holder
which is a partnership distributes Restricted Securities solely to partners
thereof on a pro rata basis for no consideration; provided that each
transferee agrees in writing to be subject to the terms of the section 4.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear the restrictive legend set forth in Section 3 above.
6.5 Company Registration.
(i) If at any time, the Company shall determine to
register any of its securities either for its own account or the account
of a holder or holders of its securities (other than Holders of
Registrable Securities) exercising their respective demand registration
rights, other than (i) a registration relating solely to employee benefit
plans, (ii) a registration relating solely to a Commission Rule 145
transaction, the Company will:
(1) promptly give to each Holder written notice
thereof; and
(2) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all of the Registrable Securities specified
in a written request or requests made by any Holder within 30 days after
receipt of the written notice from the Company, except as set forth in
Section 6.5(ii) below. Such written request may specify all or a part of
a Holder's Registrable Securities. tc \l4 "(2) include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all of the
Registrable Securities specified in a written request or requests made by
any Holder within 30 days after receipt of the written notice from the
Company, except as set forth in Section 6.5(ii) below. Such written
request may specify all or a part of a Holder's Registrable Securities.
(ii) If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6.5(i)(1). In such event the right of any Holder
registration pursuant to this Section 6.5 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected
by the Company. Notwithstanding any other provision of this Section 6.5,
if the managing underwriters of the offering advise the Company in writing
that marketing factors require a limitation on the number of shares to be
underwritten, the Company may limit the number of Registrable Securities
to be included in the registration and underwriting. In such event, the
Company shall so advise all Holders requesting registration and the number
of Registrable Securities that are entitled to be included in the
registration and underwriting shall be reduced to the extent required by
the underwriters' limitation, in proportion, as nearly as practicable, to
the number of Registrable Securities held by each Holder. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
6.6 Registration on Form S-3.
(i) The Company shall file a Registration Statement on
Form S-3 or other appropriate registration document under the Securities
Act of 1933, as amended, for resale of the Registrable Securities and
shall maintain the shelf registration effective for as long as a
registration statement is required for resale of the Common Stock (it
being agreed that such a registration statement shall be required so long
as a Holder is subject to the volume limitations of Rule 144(e) under the
Securities Act). The Company shall use reasonable efforts to file such
Registration Statement within ninety (90) days of a request by a Holder.
(ii) Notwithstanding the foregoing, the Company shall
not be obligated to take any action pursuant to this Section 6.6:
(1) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance unless
the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;
(2) if the Company, within ten (10) days of the
receipt of the request of a Holder, gives notice of its bona fide
intention to effect the filing of a registration statement with the
Commission within sixty (60) days of receipt of such request (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan);
(3) during the period starting with the date of
filing of, and ending on the date 90 days immediately following the
effective date of, any registration statement pertaining to securities of
the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that
the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(4) if the Company shall furnish to each Holder
a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for registration statements
to be filed in the near future, in which case the Company's obligation to
use its best efforts to file a registration statement shall be deferred
for a period not to exceed ninety (90) days from the receipt of the
request to file such registration by such Holder, provided that the
Company may not exercise this deferral right more than once per
twelve-month period.
(iii) In the event that the Company fails to perform any
of its obligations under this Section 6.6 and such failure to perform
remains uncured, the Company shall not have the right to call the Warrant,
notwithstanding any provision in such warrant to the contrary, for so long
as such failure to perform remains uncured.
6.7 Expenses of Registration. The Company shall bear all
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Agreement and all underwriting
discounts, selling commissions and expense allowances applicable to the
sale of any securities by the Company for its own account in any
registration. All Selling Expenses shall be borne by the Holders, if any,
whose securities are included in such registration pro rata on the basis of
the number of their Registrable Securities so registered.
6.8 Indemnification.
(i) The Company will indemnify each Holder, each of
its officers, directors, agents, employees and partners, and each person
controlling such Holder, with respect to each registration, qualification
or compliance effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter, and their respective
counsel against all claims, losses, damages and liabilities (or actions,
proceedings or settlements in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document prepared
by the Company (including any related registration statement, notification
or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of
the Securities Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and
will reimburse each such Holder, each of its officers, directors, agents,
employees and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses as they are reasonably incurred in connection
with investigating and defending any such claim, loss, damage, liability
or action, provided that the Company will not be liable in any such case
to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement (or alleged untrue
statement) or omission (or alleged omissions) based upon written
information furnished to the Company by such Holder or underwriter and
stated to be specifically for use therein.
(ii) Each Holder whose Registrable Securities are
included in any registration, qualification or compliance effected
pursuant to this Agreement will indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other such
Holder and each of their officers, directors and partners, and each person
controlling such Holder, and their respective counsel against all claims,
losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse the Company and such Holders, directors, officers, partners,
persons, underwriters or control persons for any legal or any other
expenses as they are reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each
case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in
such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically for
use therein; provided, however, that the obligations of such Holders
hereunder shall be limited to an amount equal to the net proceeds to each
such Holder sold under such registration statement, prospectus, offering
circular or other document as contemplated herein.
(iii) Each party entitled to indemnification under this
Section 6.8 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or any litigation resulting therefrom, shall be
approved by the Indemnified Party (whose approval shall not unreasonably
be withheld), and the Indemnified Party may participate in such defense at
such party's expense; and provided further that if any Indemnified Party
reasonably concludes that there may be one or more legal defenses
available to it that are not available to the Indemnifying Party, or that
such claim or litigation involves or could have an effect on matters
beyond the scope of this Agreement, then the Indemnified Party may retain
its own counsel at the expense of the Indemnifying Party; and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement unless and only to the extent that such
failure to give notice results in material prejudice to the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this
Section 6.8 is held by a court of competent jurisdiction to be unavailable
to an Indemnified Party with respect to any loss, liability, claim, damage
or expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand
and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
6.9 Information by Holder. Each Holder of Registrable
Securities to be included in a registration referred to in this agreement
shall furnish to the Company such information regarding such Holder, the
securities to be offered and sold and the intended plan of distribution of
the securities by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement and
shall promptly advise the Company in writing of any material changes to
such information while the registration is in effect.
6.10 Transfer or Assignment. The rights to cause the Company
to register a Holder's securities granted by the Company under this
Agreement may be transferred or assigned by a Holder to a transferee or
assignee of any of the Restricted Securities, provided that the Company is
given written notice prior to the time that such right is exercised,
stating the name and address of said transferee or assignee and identifying
the securities with respect to which such registration rights are being
transferred or assigned; provided further that the transferee or assignee
of such rights assumes in writing the obligations of the Holder under this
Agreement.
6.11 Registration Procedures. In the case of each
registration effected by the Company pursuant to this Section 6, the
Company will keep each Holder who is entitled to registration rights
hereunder advised in writing as to the initiation of each registration and
as to the completion thereof. At its expense, the Company will:
(a Prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect
to the disposition of securities covered by such registration statement;
(b Furnish such number of prospectuses and other
documents incident thereto, including supplements and amendments, as a
Holder may reasonably request; and
(c Furnish to each selling Holder a copy of all
documents filed with and all correspondence from or to the Commission in
connection with any such offering other than nonsubstantive cover letters
and the like.
6.12 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may
permit the sale of the Restricted Securities to the public without
registration, the Company agrees to:
(a Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities
Act; and
(b Use its reasonable best efforts to file with
the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act.
6.13 "Lock-Up" Agreement. Each Holder agrees, if requested by
the Company in connection with a public offering of the company's
securities, not to sell or otherwise transfer or dispose of any securities
of the Company held by such Holder during a period of time determined by
the Company and its underwriters (not to exceed 90 days) following the
effective date of the registration statement of the Company filed under the
Securities Act relating to such public offering.
Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the Shares (or securities)
subject to the foregoing restriction until the end of said period.
7. Preemptive Rights. The Company hereby grants to the
Investor a right (the "Preemptive Right") to purchase all or any part of
the Investor's pro rata share of any "New Securities" (as defined in this
section 7) that the Company may, from time to time, propose to sell and
issue solely for cash. Such pro rata share, for purposes of this
Preemptive Right, is the ratio of (x) the sum of the number of shares of
Common Stock then held by the Investor immediately prior to the issuance of
the New Securities, assuming the full conversion of any Series D Preferred
and full exercise of the Warrant, to (y) the total number of shares of
Common Stock held by all stockholders of the Company immediately prior to
the issuance of the New Securities (after giving effect to the exercise
and/or conversion, as the case may be, of all shares of Preferred Stock and
of all outstanding options and warrants to purchase Common Stock or any
other securities convertible into Common Stock). This Preemptive Right
shall be subject to the following provisions:
(1) "New Securities" shall mean any Common Stock
or Preferred Stock of the Company, whether or not authorized on the date
hereof, and rights, options or warrants to purchase Common Stock or Preferred
Stock and securities of any type whatsoever that are, or may become,
convertible into Common Stock or Preferred Stock; provided, however, that
"New Securities" does not include the following:
(a) shares of capital stock of the Company
issuable upon conversion or exercise of any currently outstanding securities
or any New Securities issued in accordance with this Agreement;
(b) shares, options or warrants granted to
officers, directors and employees of, and consultants to, the Company which
are approved by the Board of Directors; or
(c) shares of Common Stock or Preferred
Stock issued in connection with any pro rata stock split, stock dividend or
recapitalization by the Company (in which case, all numbers of shares and per
share amounts referenced in this Section 7(1) will be adjusted accordingly);
or
(d) shares issued in a registered public
offering.
(2) In the event that the Company proposes to
undertake an issuance of New Securities for cash, it shall give the Investor
written notice (the "Notice") of its intention, describing the type of New
Securities, the price, and the general terms upon which the Company proposes
to issue the same. The Investor shall have twenty (20) business days after
receipt of such notice to agree to purchase all or any portion of their
respective pro rata shares of such New Securities at the price and upon the
terms specified in the notice by giving written notice to the Company and
stating therein the quantity of New Securities to be purchased.
(3) In the event that any New Securities subject
to the Preemptive Right are not purchased by the Investor within the twenty
(20) business day period specified above, the Company shall have ninety (90)
days thereafter to sell (or enter into an agreement pursuant to which the
sale of New Securities that had been subject to the Preemptive Right shall
be closed, if at all, within sixty (60) days from the date of said agreement)
the New Securities with respect to which the rights of the Investor were not
exercised at a price and upon terms, including manner of payment, no more
favorable to the purchasers thereof than specified in the Notice. In the
event the Company has not sold all offered New Securities within such ninety
(90) day period (or sold and issued New Securities in accordance with the
foregoing within sixty (60) days from the date of such agreement), the
Company shall not thereafter issue or sell any New Securities, without first
again offering such New Securities to the Investor in the manner provided
above.
(4) This Preemptive Right is nonassignable by the
Investor.
(5) This Preemptive Right shall terminate as to
the Investor at such time as such Investor ceases to own any Series D
Preferred, Registrable Securities or the Warrant.
(6) This Preemptive Right shall terminate, in any
case, after three years from the date hereof.
8. Confidentiality. Each party hereto agrees that, except
with the prior written permission of the other parties or as required by
applicable law, it shall at all times keep confidential and not divulge,
furnish or make accessible to anyone any confidential information, knowledge
or data concerning or relating to the business or financial affairs of the
other parties to which such party has been or shall become privy by reason
of this Agreement. The parties hereto further agree that there shall be no
press release or other public statement issued by either party relating to
this Agreement or the transactions contemplated hereby, unless the parties
otherwise agree in writing the applicable law requires.
9. Miscellaneous.
9.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware, without regard to any
provisions thereof relating to conflicts of laws among different
jurisdictions.
9.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Investor
and the closing of the transactions contemplated hereby. All statements as
to factual matters contained in any certificate or exhibit delivered by or
on behalf of the Company pursuant hereto shall be deemed to be the
representations and warranties of the Company hereunder as of such date of
such certificate or exhibit.
9.3 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
9.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and thereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
9.5 Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively
given upon delivery to the party to be notified in person or by courier
service or five days after deposit with the United States mail, by First
Class mail, postage prepaid, addressed (a) if to the Investor, at the
Investor's address or (b) if to any other holder of any securities, at such
address as such holder shall have furnished the other parties hereto in
writing, or, until any such holder so furnishes an address to the Company,
then to and at the address of the last holder of such Shares who has so
furnished an address to the Company, or (c) if to the Company, to Socket
Communications, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and addressed
to the attention of the President, or at such other address as the Company
shall have furnished to the Investor. If notice is provided by mail,
notice shall be deemed to be given three (3) business days after proper
deposit in the U.S. Mail.
9.6 Delays or Omissions. No delay or omission to exercise
any right, power or remedy accruing to any holder of any Shares upon any
breach or default of the Company under this Agreement shall impair any such
right, power or remedy of such holder, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent
or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any
holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such writing or as provided in this Agreement. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
9.7 California Corporate Securities Law. THE SALE OF THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE
SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL
PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION
BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
9.8 Expenses. The Company and the Investor shall bear their
own expenses and legal fees incurred on its behalf with respect to this
Agreement and the transactions contemplated hereby.
9.9 Finder's Fee. The Company and the Investor shall each
indemnify and hold the other harmless from any liability for any commission
or compensation in the nature of a finder's fee (including the costs,
expenses and legal fees of defending against such liability) for which the
Company or the Investor, or any of their respective partners, employees, or
representatives, as the case may be, is responsible.
9.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together
shall constitute one instrument.
9.11 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision; provided that no such severability shall
be effective if it materially changes the economic benefit of this
Agreement to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SOCKET COMMUNICATIONS, INC. BASS TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇, Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President, Finance Title: Trustee
and Administration, and
Chief Financial Officer
EXHIBIT A
WARRANT
EXHIBIT B
SCHEDULE OF EXCEPTIONS
EXHIBIT C
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF SERIES D CONVERTIBLE PREFERRED STOCK