Exhibit B
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F5 NETWORKS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This Common Stock and Warrant Purchase Agreement (the "Agreement") is made as of
June 26, 2001, by and between F5 NETWORKS, INC., a Washington corporation (the
"Company"), and NOKIA FINANCE INTERNATIONAL BV, a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid organized under
the laws of the Netherlands (the "Investor"), and a subsidiary of Nokia
Corporation, a Finnish corporation.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK AND WARRANT.
1.1 SALE AND ISSUANCE OF COMMON STOCK AND WARRANT. Subject to the terms and
conditions of this Agreement, the Investor agrees to purchase at the Closing and
the Company agrees to sell and issue to the Investor at the Closing, (i) a
Common Stock purchase warrant in the form attached hereto as Exhibit B (the
"Warrant") and (ii) 2,466,421 shares of common stock, without par value, of the
Company (the "Common Stock") being that number of shares equal to ten percent of
the Company's outstanding Common Stock, as measured on the close of business on
June 25, 2001, less one share, for the per share purchase price equal to $14.871
per share, being the average of the last reported sales price of the Common
Stock on the Nasdaq National Market for the ten (10) consecutive trading days
ending on and including June 26, 2001.
1.2 CLOSING. The purchase and sale of the Common Stock and Warrant shall
take place at the offices of the Company, on or before 10:00 A.M. Pacific time,
on June 28, 2001, or at such other time and place as the Company and the
Investor mutually agree upon in writing (which time and place are designated as
the "Closing"). At the Closing, the Company shall deliver to the Investor: (i) a
certificate representing the Common Stock that the Investor is purchasing
against payment of the purchase price therefor by wire transfer; (ii) the
Warrant and (iii) the other documents referred to in Section 4 of this
Agreement..
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to the Investor that, except as set forth on a Schedule of
Exceptions (the "Schedule of Exceptions") furnished to the Investor on or prior
to entering into this Agreement, which exceptions shall qualify the
representation and warranty that has the corresponding number as the numbered
paragraph in the Schedule of Exceptions, and shall be deemed to be
representations and warranties as if made hereunder, as of the date hereof and
as of the date of Closing:
2.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized and validly existing under the laws of the State of Washington and is
qualified to do business in every jurisdiction in which it is required to be
qualified, except where the failure to so qualify has not had and would not
reasonably be expected to have a
material adverse effect on the current or prospective business, financial
condition or results of operations of the Company and its subsidiaries taken as
a whole or prejudice the Company's ability to enter into or perform its
obligations under any of the Transaction Documents (as defined below) (a
"Material Adverse Effect"). The Company possesses all requisite corporate power
and authority and all licenses, permits and authorizations necessary to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, subject to such exceptions as would not have a
Material Adverse Effect. The Company has delivered to Investor correct and
complete copies of the Company's articles of incorporation and bylaws reflecting
all amendments made thereto at any time prior to the date of this Agreement.
2.2 CAPITALIZATION; VOTING RIGHTS; PREEMPTIVE RIGHTS; SUBSIDIARIES.
(a) The authorized capital of the Company consists of: 100,000,000
shares of Common Stock of which 22,197,803 shares are issued and outstanding as
of the date hereof, and 10,000,000 shares of Preferred Stock, without par value
(the "Preferred Stock"), none of which has been designated or is outstanding as
of the date hereof. Such issued and outstanding shares of Common Stock have been
duly authorized and are validly issued, fully-paid and nonassessable.
(b) Except for (A) the rights provided in the Transaction Agreements
(as defined in Section 2.3 below) and (B) currently outstanding options to
purchase 7,099,278 shares of Common Stock granted to employees and other service
providers pursuant to the Company's 1996, 1998, 2000 and Non-Employee Directors
Stock Option Plans, there are not outstanding any stock or securities
convertible or exchangeable for any shares of capital stock of the Company or
any of its subsidiaries, nor does the Company or any of its subsidiaries have
outstanding any rights, options or warrants to subscribe for or to purchase its
capital stock or any stock or securities convertible into or exchangeable for
its capital stock or any stock appreciation rights or phantom stock plans, nor
has it reserved any shares of capital stock for issuance upon exercise or
conversion of any rights, options or warrants to subscribe for or to purchase
its capital stock or any stock or securities convertible into or exchangeable
for its capital stock. Neither the Company nor any of its subsidiaries is
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital stock or any warrants, options or
other rights to acquire its capital stock. Neither the Company nor any of its
subsidiaries is a party or subject to any agreement or understanding, and, to
the best of the Company's knowledge, there is no agreement or understanding
between any persons and/or entities, which affects or relates to the voting or
giving of written consents with respect to any security or by a director of the
Company.
(c) Except for the rights provided in the Transaction Agreements, there
are no statutory shareholders preemptive rights or similar contractual rights to
which the Company is subject or rights of refusal to which the Company is
subject with respect to the issuance of capital stock of the Company.
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(d) Each of the Company's subsidiaries is wholly owned by the Company
and is duly organized, validly existing and in good standing under the laws of
the state of its incorporation, possesses all requisite corporate power and
authority and, except for such exceptions as would not have a Material Adverse
Effect, has all licenses, permits and authorizations necessary to own its
properties and to carry on its businesses as now being conducted and is
qualified to do business in each jurisdiction in which it is required to be
qualified, except where the failure to so qualify would not have a Material
Adverse Effect. All of the outstanding shares of capital stock of each
subsidiary are duly authorized, validly issued, fully paid and nonassessable,
and all such shares are owned by the Company free and clear any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof).
2.3 AUTHORIZATION; NO CONFLICTS.
(a) All corporate action on the part of the Company, and its officers,
directors and shareholders that is necessary for the authorization, execution
and delivery of this Agreement, the Investor's Rights Agreement in the form
attached hereto as Exhibit A (the "Investor's Rights Agreement"), the Warrant,
the OEM Agreement in the form attached hereto as Exhibit C (the "OEM
Agreement"), and the Technology Development Agreement in the form attached
hereto as Exhibit D (the "Technology Agreement") (this Agreement, the Investor's
Rights Agreement, the Warrant, the OEM Agreement and the Technology Agreement
are collectively referred to as the "Transaction Agreements"), the performance
of all obligations of the Company hereunder and thereunder, and the
authorization, issuance (or reservation for issuance), sale and delivery of the
Common Stock being sold hereunder and the Common Stock issuable upon exercise of
the Warrant has been taken or will be taken prior to the Closing, and the
Transaction Agreements constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investor's Rights
Agreement may be limited by applicable federal or state securities laws.
(b) The execution, delivery and performance of this Agreement or any
other Transaction Documents do not, and the consummation of the transactions
contemplated hereby and thereby will not, constitute or result in a breach or
violation of, or a default under (A) the Articles of Incorporation or Bylaws of
the Company, (B) any agreement, lease, license, contract, note, mortgage,
indenture, arrangement or other obligation ("Contracts") binding upon the
Company or any federal, state, local or foreign law, statute, ordinance, rule,
regulation, judgment, order, injunction, decree, arbitration award, agency
requirement, license or permit (collectively, "Laws") of any governmental or
regulatory authority, agency, commission, body or other governmental entity
("Governmental Entity") to which the Company is subject, except in the case of
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Contracts, for those breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
2.4 VALID ISSUANCE OF COMMON STOCK. The Common Stock that is 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 authorized, validly issued, fully paid and nonassessable,
and will be free of restrictions on transfer other than restrictions on transfer
under the Transaction Agreements and under applicable state and federal
securities laws. The shares of Common Stock issuable upon exercise of the
Warrant have been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Company's Articles of Incorporation, will be
duly authorized, validly issued, fully paid and nonassessable and will be free
of restrictions on transfer other than restrictions on transfer under the
Transaction Agreements and under applicable state and federal securities laws.
2.5 COMPANY REPORTS; FINANCIAL STATEMENTS. The Company has delivered or
made available to the Investor (i) each registration statement, report, proxy
statement or information statement filed with the Securities and Exchange
Commission (the "SEC") since September 30, 2000, including the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 2000, the Company's
Quarterly Reports on Form 10-Q for the quarters ended December 31, 2000 and
March 31, 2001 and the Company's proxy statement dated March 7, 2001 with
respect to its annual meeting in each case in the form (including exhibits,
annexes and any amendments thereto) filed with the SEC (collectively, the
"Company Reports"). As of their respective dates, the Company Reports complied
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of 1934, as
amended and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading. Each of the balance sheets included in or incorporated by
reference into the Company Reports (including the related notes and schedules)
fairly presents in all material respects the financial position of the Company
as of its date and each of the statements of operations, stockholders equity and
cash flows included in or incorporated by reference into the Company Reports
(including any related notes and schedules) fairly presents in all material
respects the results of operations, net losses and cash flows, as the case may
be, of the Company for the periods set forth therein (subject, in the case of
unaudited statements, to the absence of notes and normal year-end audit
adjustments), in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may be
noted therein (the date of the most recently filed balance sheet of the Company
is hereinafter referred to as the "Balance Sheet Date").
2.6 NO MATERIAL ADVERSE CHANGE. Since the Balance Sheet Date, there has
been no material adverse change in the financial condition, operating results,
assets, operations, employee relations or customer or supplier relations of the
Company and its subsidiaries, taken as a whole.
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2.7 GOVERNMENTAL FILINGS; NO VIOLATIONS. No notices, reports or other
filings are required to be made by the Company with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
the Company from any Governmental Entity, in connection with the execution and
delivery of this Agreement or any other Transaction Documents by the Company and
the consummation of the transactions contemplated hereby and thereby, except for
those that the failure to make or obtain would not have a Material Adverse
Effect.
2.8 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation or
default in any material respect of any provision of its Articles of
Incorporation or Bylaws, each as currently in effect, or in any material respect
of any instrument, judgment, order, writ, decree or Contract to which it is a
party or by which it is bound, or, to the best of its knowledge, of any
provision of any Law applicable to the Company.
2.9 INTELLECTUAL PROPERTY RIGHTS. Except as disclosed in the Company
Reports, each of the Company and its subsidiaries (i) owns or possesses adequate
licenses or other rights to use all patents, trademarks, service marks, trade
names, copyrights, technology, software, know-how and trade secrets
(collectively, "Intellectual Property") necessary (a) to conduct the business
now conducted by the Company and its subsidiaries and (b) to commercially
exploit their respective products, technology and other assets; and (ii) either
owns or possesses, or can acquire on commercially reasonable terms, adequate
licenses or other rights to use all Intellectual Property necessary (a) to
conduct the business proposed to be conducted by the Company and its
subsidiaries and (b) to commercially exploit their respective products,
technology and other assets in connection with such proposed business. Except as
disclosed in the Company Reports, neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with and
knows of no such infringement of or conflict with, asserted rights of others
with respect to any Intellectual Property; and, to the Company's knowledge, the
discoveries, inventions, products, services or processes used in the business of
the Company and its subsidiaries do not infringe or conflict with any right or
patent of any third party, or any discovery, invention, product or process which
is the subject of a patent application filed by any third party. To the
Company's knowledge, neither the Company nor any of its subsidiaries
incorporates open source software in any of its products
2.10 LITIGATION, ETC. Except as set forth in the Company Reports, there are
no actions, suits, proceedings, orders, investigations or claims pending (other
than any such actions, suits, proceedings, orders, investigations and claims
which may be pending but of which none of the Company, any of its subsidiaries
and their respective representatives have received notice) or, to the Company's
knowledge, threatened against the Company or any of its subsidiaries (or to the
Company's knowledge, pending or threatened against any of the officers or
directors of the Company or any of its subsidiaries) at law or in equity, or
before or by any Governmental Entity which if determined adversely to the
Company would have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries is subject to any judgment, order or decree of any court or other
Governmental Entity that requires or prohibits any conduct on the part of the
Company or
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any of its subsidiaries that affects the business of the Company in a manner
that would have a Material Adverse Effect.
2.11 BROKERAGE. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated by
the Transaction Agreements for which the Investor will have any liability or
responsibility based on any arrangement or agreement binding upon the Company or
any of its subsidiaries.
2.12 DISCLOSURE. To the best of the Company's knowledge, neither this
Agreement nor the Investor's Rights Agreement or the Warrant contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading.
2.13 REGISTRATION RIGHTS. Except as provided in the Investor's Rights
Agreement, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person.
2.14 USE OF PROCEEDS. The Company shall use the proceeds from this offering
for general corporate purposes.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants that:
3.1 AUTHORIZATION. The Investor has full power and authority to enter into
the Transaction Agreements, and each such agreement constitutes its valid and
legally binding obligation, enforceable in accordance with its terms except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investor's Rights
Agreement may be limited by applicable federal or state securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with the
Investor in reliance upon the Investor's representation to the Company, which by
the Investor's execution of this Agreement the Investor hereby confirms, that
the Common Stock and Warrant to be received by the Investor (collectively, the
"Securities") will be acquired for investment for the Investor's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that the Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same other than in
a transaction registered under the Securities Act or exempt from, or not subject
to, such registration. By executing this Agreement, the Investor further
represents that the Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities.
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3.3 DISCLOSURE OF INFORMATION. The Investor has been afforded access to
such information as it has requested regarding the Company and its subsidiaries
and their respective financial condition, operating results, properties,
liabilities, operations and management .
3.4 RESTRICTED SECURITIES. The Investor understands that the Securities it
is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act, only in certain limited circumstances. In this connection,
the Investor represents that it is familiar with Rule 144 under the Securities
Act, as presently in effect ("Rule 144"), and understands the resale limitations
imposed thereby and by the Securities Act.
3.5 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and the Investor's Rights Agreement provided and to the extent
this Section and such agreement are then applicable, and:
(a) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such Registration Statement; or
(b) The Investor shall have notified the Company of the proposed
disposition, and, if reasonably requested by the Company, the Investor shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration of such
shares under the Securities Act. It is agreed that the Company will not require
opinions of counsel for transactions made pursuant to Rule 144.
3.6 LEGENDS. It is understood that the certificates evidencing the
Securities may bear one or all of the following legend(s):
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or
unless sold pursuant to Rule 144 of such Act."
3.7 REPRESENTATIONS AS A FOREIGN INVESTOR. The Investor has satisfied
itself as to the full observance of the laws of its jurisdiction of organization
in connection with any invitation to subscribe for the Securities or to enter
into this Agreement, including (i) the legal requirements within such
jurisdiction for the purchase of the Securities, (ii) any foreign exchange
restrictions of such jurisdiction applicable to such purchase, (iii) any
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governmental or other consents that may need to be obtained in such
jurisdiction, and (iv) the income tax and other tax consequences, if any, that
may be relevant to the purchase, holding, redemption, sale, or transfer of the
Securities in such jurisdiction. The Investor's subscription and payment for,
and its continued beneficial ownership of the Securities, will not violate any
applicable securities or other laws of its jurisdiction.
4. CONDITIONS OF THE INVESTOR TO EFFECT THE CLOSING. The obligations of the
Investor to effect the Closing are subject to the fulfillment on or before the
Closing of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in Section 2 shall be true and correct as of the date
hereof and as of the date 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 COMPLIANCE CERTIFICATE. The President of the Company shall have
delivered to the Investor at the Closing a certificate stating that the
conditions specified in Sections 4.1 and 4.2 have been fulfilled and stating
that there shall have been no adverse change in the business, affairs,
operations, properties, assets, prospects or condition of the Company and its
subsidiaries taken as a whole since the date of this Agreement. In addition, the
Compliance Certificate shall state the number of shares of the outstanding
Common Stock of the Company immediately prior to the Closing.
4.4 QUALIFICATIONS. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall have been duly obtained and
effective as of the Closing.
4.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor's counsel, and they shall have received all such counterpart original
and certified or other copies of such documents as they may reasonably request.
4.6 BOARD OF DIRECTORS. The directors of the Company shall be ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, and there shall be one vacant Class III director's position on the Board
of Directors, which shall be filled with the nominee of the Investor immediately
upon Closing, which nominee shall be reasonably acceptable to the Board of
Directors of the Company. The initial nominee of the Investor shall be ▇▇▇
▇▇▇▇▇▇▇▇, which nominee is acceptable to the Board of Directors of the Company.
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4.7 INVESTOR'S RIGHTS AGREEMENT. The Company shall have executed the
Investor's Rights Agreement.
4.8 WARRANT. The Company shall have executed the Warrant.
4.9 OEM AGREEMENT. The Company shall have executed the OEM Agreement.
4.10 TECHNOLOGY AGREEMENT. The Company shall have executed the Technology
Development Agreement.
4.11 OPINION OF COMPANY COUNSEL. The Investor shall have received from
▇▇▇▇▇▇ & ▇▇▇▇ PC, counsel for the Company, an opinion, dated as of the Closing,
substantially in the form attached hereto as Exhibit E.
5. CONDITIONS OF THE COMPANY TO EFFECT THE CLOSING. The obligations of the
Company to effect the Closing are subject to the fulfillment on or before the
Closing of each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Investor contained in Section 3 shall be true and correct as of the date
hereof and as of the date of 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 1.2.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
5.4 OEM AGREEMENT. The Investor shall have executed the OEM Agreement.
5.5 TECHNOLOGY AGREEMENT. The Investor shall have executed the Technology
Development Agreement.
5.6 OPINION OF INVESTOR'S COUNSEL. The Company shall have received from
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Investor, an opinion, dated as of the
Closing, substantially in the form attached hereto as Exhibit F.
6. MISCELLANEOUS.
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS. The
representations, warranties and other agreements of each of the Company and the
Investor, respectively, included or provided for in the Transaction Agreements
shall
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survive the execution and delivery of this Agreement, the other Transaction
Agreements and the Closing and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of the Company or the
Investor.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any Securities). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
6.3 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of New York as applied to agreements among New York
residents entered into and to be performed entirely within New York.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.6 NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
6.7 EXPENSES. Irrespective of whether the Closing is effected, each party
shall pay all of the costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of the Transaction Agreements.
6.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Investor. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
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6.9 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable Law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.10 PUBLICITY. No party hereto shall issue any press release or otherwise
make any statements to any third party with respect to this Agreement or the
transactions contemplated hereby until the issuance by the parties of a joint
press release announcing this Agreement and the transactions contemplated
hereby.
6.11 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Common Stock and Warrant
Purchase Agreement as of the date first above written.
COMPANY F5 NETWORKS, INC.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INVESTOR NOKIA FINANCE
INTERNATIONAL BV
BY: /s/ Mika Vehvilainen
--------------------------------------
Mika Vehvilainen, Attorney-in-fact
Address: Strawinskylaan 3111, 1077 ZX
Amsterdam, The Netherlands
With copies to
Nokia Corporation
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇
▇▇▇▇▇ GROUP
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇-▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President,
General Counsel
and
Nokia Internet Communications
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice
President and General Manager
Nokia Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President,
Legal Services
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EXHIBIT A
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FORM OF INVESTOR'S RIGHTS AGREEMENT
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A-1
EXHIBIT B
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FORM OF WARRANT
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B-1
EXHIBIT C
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FORM OF OEM AGREEMENT
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C-1
EXHIBIT D
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FORM OF TECHNOLOGY DEVELOPMENT AGREEMENT
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D-1
EXHIBIT E
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FORM OF COMPANY COUNSEL OPINION
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E-1
EXHIBIT F
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FORM OF INVESTOR'S COUNSEL OPINION
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