INVESTOR SECURITIES PURCHASE AGREEMENT
by and among
PARADIGM TECHNOLOGY, INC.
and certain Investors in NEWLOGIC CORP.
dated as of
May __, 1996
TABLE OF CONTENTS
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Page
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ARTICLE I PURCHASE AND SALE OF SECURITIES......................................................1
1.1 Purchase and Sale of Securities......................................................1
1.2 Purchase Price.......................................................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF INVESTOR...........................................2
2.1 Authority............................................................................2
2.2 Title to Securities..................................................................2
2.3 Consents.............................................................................2
ARTICLE III COVENANTS OF INVESTOR................................................................2
3.1 Necessary Consents...................................................................2
3.2 No Transfer..........................................................................2
ARTICLE IV CONDITIONS PRECEDENT TO OBLIGATIONS OF
PARADIGM.............................................................................3
4.1 Certificates for Securities..........................................................3
4.2 Tax Forms............................................................................3
4.3 Securities Purchase Agreement........................................................3
ARTICLE V CONDITION PRECEDENT TO OBLIGATIONS OF THE
INVESTOR.............................................................................3
5.1 Securities Purchase Agreement........................................................3
ARTICLE VI CLOSING..............................................................................3
6.1 Time and Place.......................................................................3
6.2 Deliveries of Investor...............................................................3
6.3 Deliveries of Paradigm...............................................................4
ARTICLE VII COVENANTS OF SETTLEMENT AND GENERAL
RELEASES.............................................................................4
7.1 Settlement and General Release by Investor
of Paradigm..........................................................................4
7.2 Settlement and General Release by Paradigm
of Investor..........................................................................5
ARTICLE VIII INDEMNIFICATION......................................................................6
8.1 Indeminification.....................................................................6
ARTICLE IX MISCELLANEOUS PROVISIONS.............................................................7
9.1 Notice...............................................................................7
9.2 Entire Agreement.....................................................................7
9.3 Binding Effect; Assignment...........................................................7
9.4 Expenses of Transaction..............................................................7
9.5 Waiver; Consent......................................................................8
9.6 Counterparts.........................................................................8
9.7 Severability.........................................................................8
9.8 Governing Law........................................................................8
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Schedules
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Schedule A List of Investor together with equity
ownership and addresses of Investor
Schedule 1.2 Cash Payment Schedule to Investor
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INVESTOR SECURITIES PURCHASE AGREEMENT
THIS INVESTOR SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of May __, 1996, by and among PARADIGM TECHNOLOGY, INC., a Delaware
corporation ("Paradigm") and certain investors of NEWLOGIC CORP., a Delaware
corporation ("NewLogic") listed on Schedule A to this Agreement (collectively,
the "Investor"),
W I T N E S S E T H:
WHEREAS, Paradigm desires to acquire all of the rights of equity
ownership of NewLogic through the purchase by Paradigm of all of the issued and
outstanding shares of capital stock together with payment for the surrender of
all outstanding options and other rights to purchase such shares of capital
stock of NewLogic, including all of the rights of equity ownership of NewLogic
held by Investor; and
WHEREAS, Paradigm will enter into a securities purchase agreement (the
"Securities Purchase Agreement") with all other securityholders of NewLogic (the
"Securityholders") whereby pursuant to this Agreement and the Securities
Purchase Agreement, Paradigm will pay to the Investor and the Securityholders
consideration for their NewLogic securities and/or the surrender of all rights
to purchase any NewLogic securities, and will purchase all outstanding NewLogic
securities;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. On the terms and conditions of
this Agreement, the Investor shall sell to Paradigm and Paradigm shall purchase
from the Investor all of the shares of capital stock of NewLogic held by the
Investor (collectively, the "Securities") at the Closing (as defined).
1.2 Purchase Price. At the Closing, Paradigm shall pay to the Investor
by check the aggregate of the amounts set forth next to each Investor's name on
Schedule 1.2. (collectively, the "Cash Consideration").
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Each Investor represents and warrants to Paradigm that the
representations and warranties set forth in this Article are true and correct as
of the date hereof and shall be true and correct on the date of the Closing. The
representations and warranties of each Investor set forth in this Article are
made by and on behalf of that Investor alone, and are not made by or on behalf
of any other Investor.
2.1 Authority. Such Investor has all requisite power and authority to
enter into this Agreement, to execute, deliver and perform its obligations
hereunder, and to consummate the transactions contemplated hereby. This
Agreement is a legal, valid and binding obligation of such Investor, enforceable
against such Investor in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights generally, and except that the availability of
equitable remedies is subject to the discretion of the court before which any
proceeding therefor may be brought.
2.2 Title to Securities. Good and marketable and unencumbered title to
all of the Securities held by such Investor shall pass to Paradigm upon
consummation of the transactions set forth in this Agreement. Such Investor does
not own any other shares of capital stock or rights to acquire shares of capital
stock of NewLogic, with the exception of any rights to acquire shares of capital
stock of NewLogic that will be waived at the time of Closing.
2.3 Consents. No consent or approval is needed from any third party or
governmental or regulatory agency in order to effect the sale of the Securities
held by such Investor.
ARTICLE III
COVENANTS OF INVESTOR
3.1 Necessary Consents. Prior to the Closing, each Investor will obtain
such written consents and take such other actions as may be necessary or
appropriate to allow the consummation of the transactions contemplated by this
Agreement.
3.2 No Transfer. Each Investor agrees not to sell, offer for sale,
assign, transfer or otherwise encumber any of the Securities to any third party
except as contemplated by this Agreement. Each Investor also waives any rights
of first offer or refusal or similar rights, including any rights to acquire
capital stock of NewLogic, that it has with respect to the transfer of any
NewLogic security. Such waiver will only be effective from and after the time of
Closing.
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ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARADIGM
The obligations of Paradigm to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, at or before the Closing, of
all the following conditions, unless waived in writing by Paradigm:
4.1 Certificates for Securities. Paradigm shall have received all
written certificates and other documents evidencing the Securities.
4.2 Tax Forms. The Investor shall have provided to Paradigm an executed
Form W-8 or Form W-9 properly reporting the transactions set forth in this
Agreement.
4.3 Securities Purchase Agreement. Concurrently herewith, Paradigm,
NewLogic and the Securityholders shall have entered into the Securities Purchase
Agreement and all closing conditions pursuant to such agreement shall have been
met or waived by the parties thereto.
ARTICLE V
CONDITION PRECEDENT TO OBLIGATIONS OF THE INVESTOR
The obligations of the Investor to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at or before the
Closing, of the following condition, unless waived in writing by the Investor:
5.1 Securities Purchase Agreement. Concurrently herewith, Paradigm,
NewLogic and the Securityholders shall have entered into the Securities Purchase
Agreement and all closing conditions pursuant to such agreement shall have been
met or waived by the parties thereto.
ARTICLE VI
CLOSING
6.1 Time and Place. The purchase and sale of the Securities (the
"Closing") shall occur at 4:00 p.m. PST on May 23, 1996 at the Menlo Park,
California offices of Pillsbury Madison & Sutro LLP or at such other time and
date to which the parties may agree in writing (the "Closing Date" or the
"Closing").
6.2 Deliveries of Investor. At the Closing, the Investor will execute
and deliver or cause to be executed and delivered to Paradigm (a) certificates
representing the Securities endorsed over to Paradigm or accompanied by duly
executed stock powers or similar instruments of transfer, and (b) such other
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documents and instruments as Paradigm or its counsel reasonably shall deem
necessary to consummate the transactions contemplated hereby.
6.3 Deliveries of Paradigm. At the Closing, Paradigm will execute and
deliver or cause to be executed and delivered to the Investor, simultaneously
with delivery of the items referred to in Section above, the consideration set
forth in Article . In addition, all documents delivered to the Investor shall be
in form and substance satisfactory to the Investor.
ARTICLE VII
COVENANTS OF SETTLEMENT AND GENERAL RELEASES
The covenants contained in this Article shall be effective from and
after the time of Closing.
7.1 Settlement and General Release by Investor of Paradigm.
(a) For the consideration set forth herein and for other due and valid
consideration, the receipt and sufficiency of which is hereby acknowledged and
received, each of the Investors, for and on behalf of themselves and on behalf
of their respective affiliates, successors, assigns, agents and representatives
waive and finally release and forever discharge Paradigm and each of Paradigm's
officers, directors, stockholders, affiliates, agents, subsidiaries, including
NewLogic, including officers and directors of subsidiaries, representatives,
employees, successors and assigns (collectively, the "Paradigm Released
Parties") from any and all claims, causes of action, suits, debts, demands,
costs, expenses, attorneys' fees, contracts, agreements, payments, compensation,
liabilities or obligations, contingent or fixed, liquidated or unliquidated,
matured or unmatured, of every name and nature, known or unknown, arising or
which may have existed from the beginning of the world against any such person,
excluding therefrom only the obligations specifically set forth in subparagraph
hereof (hereinafter collectively referred to as the "Investor's Released
Claims").
(b) Without limiting the generality of the foregoing, it is
specifically agreed that the Investor's Released Claims include all claims
arising out of, or related to, the approval of this Agreement by the Investor,
all of the transactions contemplated herein or in any other document or
agreement referred to herein and acceptance of the consideration for the
purchase of the Securities set forth herein. The Investor hereby acknowledge and
agree that from and after the Closing, they shall cease to have any further
right, title or interest in and to any of the Securities purchased by Paradigm
and they shall accordingly cease to have any equity interest in NewLogic
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(nor shall they acquire any equity interest in Paradigm) as a result of the
transactions set forth in this Agreement.
(c) Each of the Investors for and on behalf of themselves and on behalf
of their respective affiliates, successors, assigns, agents and representatives
covenants not to ▇▇▇ or otherwise institute or cause to be instituted or in any
way participate in any legal, administrative or other proceeding or action
against any of the Paradigm Released Parties with respect to any matter of any
kind arising out of the Investor's Released Claims.
(d) The Investor acknowledge that this waiver and release extends to
all claims of every nature and kind, known or unknown, suspected or unsuspected,
past, present or future, arising from the Investor's Released Claims, and any
and all rights granted to such Investor under section 1542 of the California
Civil Code or any analogous state law or federal law or regulation are hereby
expressly waived. Said section 1542 of the Civil Code of the State of California
reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
(e) This Section shall constitute a complete defense to any claim
released herein and shall survive indefinitely, without restriction,
qualification or limitation, notwithstanding anything in this Agreement to the
contrary.
(f) The Investor's Released Claims shall not include the right of any
Investor to indemnity or contribution from NewLogic pursuant to NewLogic's
Articles of Incorporation or Bylaws in effect at the time of Closing, or
pursuant to any indemnification statute or common law.
7.2 Settlement and General Release by Paradigm of Investor.
(a) Except as set forth below, for the consideration set forth herein
and for other due and valid consideration, the receipt and sufficiency of which
is hereby acknowledged and received, Paradigm, for and on behalf of itself,
NewLogic, and on behalf of each of their successors, assigns, agents and
representatives waives and finally releases and forever discharges each of the
Investors and each of the Investor's officers, directors, stockholders,
affiliates, agents, subsidiaries, including officers and directors of
subsidiaries, representatives, employees, successors and assigns (collectively,
the "Investor Released Parties") from any and all claims, causes of action,
suits, debts, demands, costs, expenses, attorneys' fees, contracts, agreements,
payments, compensation, liabilities or
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obligations, contingent or fixed, liquidated or unliquidated, matured or
unmatured, of every name and nature, known or unknown, arising or which may have
existed from the beginning of the world against any such person, excluding
therefrom only the obligations specifically set forth in subparagraph 72(b),
(hereinafter collectively referred to as "Paradigm's Released Claims").
(b) Paradigm's Released Claims shall not include (i) any claims or
damages resulting to Paradigm, for breach of any representations or warranties
made by the Investor in Section of this Agreement, or (ii) the rights to
indemnification under the terms of Article of this Agreement.
(c) Paradigm for and on behalf of itself and the Paradigm Released
Parties covenants not to ▇▇▇ or otherwise institute or cause to be instituted or
in any way participate in any legal, administrative or other proceeding or
action against any of the Investor's Released Parties with respect to any matter
of any kind arising out of Paradigm's Released Claims.
(d) Paradigm acknowledges that this waiver and release extends to all
claims of every nature and kind, known or unknown, suspected or unsuspected,
past, present or future, arising from Paradigm's Released Claims, and any and
all rights granted to Paradigm under section 1542 of the California Civil Code
or any analogous state law or federal law or regulation are hereby expressly
waived. Said section 1542 of the Civil Code of the State of California reads as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
(e) This Section shall constitute a complete defense to any claim
released herein and shall survive indefinitely, without restriction,
qualification or limitation, notwithstanding anything in this Agreement to the
contrary.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification.
Subject to the terms and limitations of this Article , the Investor
hereby agrees to indemnify, defend and hold harmless each of the Paradigm
Released Parties (as defined in Section 12.1 of the Securities Purchase
Agreement) from and against any and all losses, liabilities, damages, demands,
claims, suits, actions, judgments or causes of action,
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assessments, costs and expenses, including, without limitation, interest,
penalties, attorneys' fees, any and all expenses incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever and any and all amounts paid in settlement of any claim or
litigation or otherwise (collectively, "Damages") asserted against, resulting
from, imposed upon or incurred or suffered by any Paradigm Released Party (other
than any Paradigm Released Party which is an Investor), directly or indirectly,
as a result of or arising from any inaccuracy in or breach or nonfulfillment of
or noncompliance with any of the representations and warranties made by Investor
herein (all of which shall be referred to as the "Indemnifiable Claims").
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Notice. All notices and other communications required under this
Agreement shall be in writing and shall be delivered to the parties at the
address set forth below, if an Investor, to the address set forth on Exhibit A
hereto, and, if to Paradigm, to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or at such other address that they designate by notice to all
other parties in accordance with this Section . Any party delivering notice to
Paradigm, shall also deliver a copy to: Pillsbury Madison & Sutro LLP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. del ▇▇▇▇▇, Esq.
9.2 Entire Agreement. This Agreement and the documents referred to
herein embody the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings, oral or written, relative to said
subject matter.
9.3 Binding Effect; Assignment. This Agreement and the various rights
and obligations arising hereunder shall inure to the benefit of and be binding
upon the Investor' Released Parties and upon the Paradigm Released Parties.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be transferred or assigned (by operation of law or otherwise) by any of
the parties hereto without the prior written consent of the other party;
provided, however, that Paradigm may, without such written consent, assign its
rights in connection with a merger of Paradigm with or into another entity, a
sale of all or substantially all of Paradigm's assets or a reorganization or
merger involving Paradigm.
9.4 Expenses of Transaction. The Investor shall pay in full all fees
and expenses incurred by the Investor in connection with this Agreement and the
transactions contemplated hereby. Paradigm shall pay all fees and expenses
incurred by
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Paradigm in connection with this Agreement and the transactions contemplated
hereby. The Investor shall pay all applicable sales, use, excise, transfer,
documentary and any other similar taxes arising out of the purchase and sale of
the Securities.
9.5 Waiver; Consent. This Agreement may not be changed, amended,
terminated, augmented, rescinded or discharged (other than by performance), in
whole or in part, except by a writing executed by the parties hereto; and no
waiver of any of the provisions or conditions of this Agreement or any of the
rights of a party hereto shall be effective or binding unless such waiver shall
be in writing and signed by the party claimed to have given or consented
thereto. Except to the extent that a party hereto may have otherwise agreed in
writing, no waiver by that party of any condition of this Agreement or breach by
the other party of any of its obligations or representations hereunder shall be
deemed to be a waiver of any other condition or subsequent or prior breach of
the same or any other obligation or representation by the other party, nor shall
any forbearance by the first party to seek a remedy for any noncompliance or
breach by the other party be deemed to be a waiver by the first party of its
rights and remedies with respect to such noncompliance or breach.
9.6 Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
9.7 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.
9.8 Governing Law. This Agreement shall in all respects be construed in
accordance with and governed by the laws of the State of California, as applied
to contracts entered into and to be performed solely within California solely
between residents of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PARADIGM TECHNOLOGY, INC.
By________________________________________
Title_____________________________________
INVESTOR
By________________________________________
Title_____________________________________
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SCHEDULE A
LIST OF INVESTORS
Name and Address Equity Ownership
---------------- ----------------
Nichimen Corporation 825,000 shares
Mita NM Building Series ▇-▇
▇-▇▇, ▇▇▇▇▇ ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,000 shares Common
Stock
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,000 shares Common
Stock
▇▇▇▇▇▇▇▇ ▇▇▇▇ 129,400 shares Common
Stock
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 24,000 shares Common
Stock
SCHEDULE 1.2
CASH PAYMENT SCHEDULE
Name Payment
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Nichimen Corporation US$660,000.00
▇▇▇▇▇ ▇▇▇▇▇▇▇ US$1,300.75
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US$1,300.75
▇▇▇▇▇▇▇▇ ▇▇▇▇ US$84,158.65
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ US$15,609.02