Exhibit B
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
December 9. 1998
TABLE OF CONTENTS
Page
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1. Purchase and Sale of the Common Shares and the Warrants .....................1
1.1 Sale and Issuance of Common Shares and the Warrants ...............1
1.2 Closing ...........................................................2
2. Representations and Warranties of the Company ...............................2
2.1 Authorization .....................................................2
2.2 Valid Issuance of Common Shares and Warrants ......................2
2.3 Offering ..........................................................2
2.4 Additional Information ............................................2
3. Representations and Warranties of the Investors .............................3
3.1 Authorization .....................................................3
3.2 Purchase Entirely for Own Account. ................................3
3.3 Disclosure of Information .........................................3
3.4 Investment Experience .............................................3
3.5 Accredited Investor ...............................................4
3.6 Restricted Securities .............................................4
3.7 Further Limitations on Disposition ................................4
3.8 Legends ...........................................................4
4. Conditions of Investors' Obligations at Closing .............................5
4.1 Representations and Warranties ....................................5
4.2 Performance .......................................................5
4.3 Qualifications ....................................................5
4.4 Proceedings and Documents .........................................5
4.5 Registration Rights Agreement .....................................5
5. Conditions of the Company's Obligations at Closing ..........................5
5.1 Representations and Warranties ....................................5
5.2 Payment of Purchase Price .........................................6
5.3 Qualifications ....................................................6
6. Miscellaneous ...............................................................6
6.1 Survival of Warranties ............................................6
6.2 Successors and Assigns ............................................6
6.3 Governing Law .....................................................6
6.4 Counterparts ......................................................6
6.5 Titles and Subtitles ..............................................6
6.6 Notices ...........................................................6
6.7 Finder's Fee ......................................................6
6.8 Expenses ..........................................................7
6.9 Amendments and Waivers ............................................7
6.10 Severability .....................................................7
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DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT is made as of
the 9th day of December, 1998, by and among Digital Generation Systems, Inc., a
California corporation (the "Company"), and the investors, severally and not
jointly, listed on Schedule A hereto, each of which is herein referred to as an
"Investor."
WHEREAS, the Company desires to sell, and the Investors desire to
purchase, shares of the Company's Common Stock (the "Common Shares") with an
aggregate purchase price of three million three dollars and fifty cents
($3,000,003.50) and at a price per share equal to three dollars and twenty-five
cents ($3.25) (the "Purchase Price"); and
WHEREAS, the Company desires to sell, and the Investors desire
to purchase for an aggregate purchase price of three thousand dollars ($3,000),
warrants, in the form attached hereto as Exhibit A (the "Warrants"), to purchase
shares of the Company's Common Stock in an amount equal to fifty percent (50%)
of the number of Common Shares purchased by each Investor pursuant to this
Agreement (the "Warrant Shares") and with an exercise price equal to the
Purchase Price of the Common Shares.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of the Common Shares and the Warrants.
1.1 Sale and Issuance of the Common Shares and the Warrants.
(a) On or prior to the Closing (as defined below), the
Company shall have authorized (i) the sale and issuance to the Investors of the
Common Shares, (ii) the sale and issuance to the Investors of the Warrants and
(iii) the issuance of the Warrant Shares to be issued upon exercise of the
Warrants.
(b) Subject to the teens and conditions of this Agreement,
each Investor agrees, severally and not jointly, to purchase at the Closing, and
the Company agrees to sell and issue to each Investor at the Closing, that
number of Common Shares set forth opposite such Investor's name on Schedule A
hereto for the purchase price set forth opposite such Investor's name on
Schedule A hereto.
(c) Subject to the terms and conditions of this Agreement,
each Investor agrees, severally and not jointly, to purchase at the Closing, and
the Company agrees to sell and issue to each Investor at the Closing, a Warrant
to purchase that number of shares of the Company's Common Stock equal to fifty
percent (50%) of the number of Common Shares purchased by such Investor, for the
purchase price set forth opposite such Investor's name on Schedule A hereto. The
Company and each Investor agrees, severally and not jointly, that as of the date
hereof the purchase price of the Warrants is equal to the fair market value of
such warrants.
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1.2 Closing. The purchase and sale of the Common Shares and the
Warrants shall take place at the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at
10:00 A.M., on December 9, 1998, or at such other time and place as the Company
and Investors acquiring in the aggregate more than half of the Common Shares and
the Common Stock issuable or issued upon exercise of the Warrants mutually agree
upon orally or in writing (which time and place are designated as the
"Closing"). At the Closing the Company shall deliver to each Investor (a) a
certificate representing the Common Shares that such Investor is purchasing and
(b) a Warrant to purchase that number of shares of the Company's Common Stock as
set forth in Section 11 (c) above, against payment of the purchase price
therefor by check or wire transfer.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Investor that:
2.1 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Registration
Rights Agreement, in the form attached hereto as Exhibit B (the "Registration
Rights 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 Common Shares and the Warrants being sold hereunder and
the Warrant Shares Issuable upon conversion of the Warrants has been taken or
will be taken prior to the Closing, and this Agreement and the Registration
Rights Agreement 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 Registration Rights
Agreement may be limited by applicable federal or state securities laws.
2.2 Valid Issuance of Common Shares and Warrants. The Common
Shares and the Warrants that are being purchased by the Investors 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 and the Registration Rights
Agreement and under applicable state and federal securities laws. The Warrant
Shares issuable upon conversion of the Warrants purchased under this Agreement
have been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Company's Amended and Restated Articles of
Incorporation, 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 and the Registration Rights Agreement and under applicable
state and federal securities laws.
2.3 Offering . Subject in part to the truth and accuracy of each
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Common Shares and the Warrants as contemplated by this
Agreement are exempt from the registration requirements of any applicable state
and federal securities laws, and neither the
2
Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption.
2.4 Additional Information. The Company has filed in a timely
manner all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), during the twelve (12)
months preceding the date of this Warrant (the "SEC Filings"). The SEC Filings
complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the "Act"), as the case may be, as of
their respective filing or effective dates, and the information contained
therein was true and correct in all material respects as of the date or
effective date of such documents, and each of the SEC Filings, as of such date,
did not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
3. Representations and Warranties of the Investors. Each
Investor hereby represents and warrants that:
3.1 Authorization. Such Investor has full power and authority to
enter into this Agreement and the Registration Rights Agreement, 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 Registration Rights Agreement may be limited by applicable
federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made
with such Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Common Shares and the warrant to be received by such
Investor and the warrant Shares issuable upon exercise of the warrant to be
received by such Investor (collectively, the "Securities") will be acquired for
investment for such 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 such
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, such Investor
further represents that such 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.
3.3 Disclosure of Information. Such Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Common Shares and the Warrant. Such Investor further
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Common Shares and the Warrant and the business, properties, prospects and
financial condition of the Company.
3.4 Investment Experience. Such Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear
3
the economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Common Shares and the Warrant. If other than an
individual, Investor also represents it has not been organized for the purpose
of acquiring the Common Shares and the warrant.
3.5 Accredited Investor. Such Investor is an "accredited
investor" within the meaning of Securities and Exchange Commission ("SEC") Rule
501 of Regulation D, as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
Securities 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 Act only in certain limited circumstances. In this connection, such Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, such 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 Registration Rights Agreement provided and to the
extent this Section 3 and such agreement are then applicable, and:
(a) There is then in effect a Registration Statement under
the Act, covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii)
if reasonably requested by the Company, such 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 Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to SEC Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor that is a partnership to a partner of
such partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or the
transfer by gift, will or intestate succession of any partner to his or her
spouse or to the siblings, lineal descendants or ancestors of such partner or
his or her spouse, if the transferee agrees in waiting to be subject to the
terms hereof to the same extent as if he or she were an original Investor
hereunder.
3.8 Legends. It is understood that the certificates evidencing
the Securities may bear one or all of the following legends:
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(a) "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."
(b) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
(c) Any legend required by applicable blue sky law.
4. Conditions of Investors' Obligations at Closing. The
obligations of each Investor under Section 1 of this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions,
the waiver of which shall not be effective against any Investor who does not
consent thereto:
4.1 Representation 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 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.
4.4 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 Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.5 Registration Rights Agreement. The Company and each Investor
shall have entered into the Registration Rights Agreement.
5. Conditions of the Company's Obligations at Closing. The
obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor:
5.1 Representations and Warranties. The representations and
warranties of the Investors 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.
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5.2 Payment of Purchase Price. The Investor shall have delivered
the purchase price specified in Section 1.1.
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.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement 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 Investors or the Company.
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 California as applied to agreements
among California residents entered into and to be performed entirely within
California.
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, deposit
with a nationally recognized overnight courier, confirmed facsimile 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 or
addresses 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 Finder's Fee. Each party represents that it neither is nor
will be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners.
employees, or representatives is responsible.
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The Company agrees to indemnify and hold harmless each Investor
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
6.8 Expenses. Irrespective of whether the Closing is effected,
each party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the Warrants or the Registration Rights Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
6.9 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 (a) the Company and (b) the
holders of two-thirds (2/3) of the Common Shares and the Common Stock issuable
or issued upon exercise of the Warrants. 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.
6.10 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.
6.11 Corporate Securities Law. THE SALE OF THE SECURITIES THAT
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 FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM 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.
6.12 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 Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
------------------------------------------
By:
-------------------------------------
Address:
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Integral Capital Partners IV, L.P.
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By Integral Capital Management, IV, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Manager
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Integral Capital Partners IV MS Side Fund,
L.P.
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By ICP MS Management IV, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Manager
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Pequot Private Equity Fund, LP
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By: /s/[signature illegible], C.O.O.
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▇▇▇▇▇▇-▇▇▇▇▇▇▇ Capital Management,
Inc. Investment Adviser
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Pequot Offshore Private Equity Fund
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By: /s/[signature illegible], C.O.O.
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▇▇▇▇▇▇-▇▇▇▇▇▇▇ Capital Management,
Inc. Investment Adviser
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Technology Crossover Ventures, L.P.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Technology Crossover Ventures, C.V.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
TCV II, V.O.F.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Technology Crossover Bentures II, L.P.
------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
TCV II (Q), L.P.
------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------
Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
TCV II Strategic Partners, L.P.
------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
Technology Crossover Ventures
------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------
Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Technology Crossover Bentures II, C.V.
------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Address:
Technology Crossover Ventures
------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
With a copy to:
Technology Crossover Ventures
------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------
Palo ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Lion Investments Limited
------------------------------------------
By: /s/[signature illegible]
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Address: Carlton House
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
------------------------------------------
SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DIGITAL GENERATION SYSTEMS, INC.
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR:
Westpool Investment Trust plc
------------------------------------------
By: /s/[signature illegible]
-------------------------------------
Address: Carlton House
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
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SIGNATURE PAGE TO DIGITAL GENERATION SYSTEMS, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
SCHEDULE A
----------
SCHEDULE OF INVESTORS
---------------------
Aggregate
---------
Purchase Price of Number of Purchase Price Number of
----------------- --------- -------------- ---------
Name and Address Common Shares Common Shares of Warrant Warrant Shares
---------------- ------------- ------------- ---------- --------------
Integral Capital Partners IV, L.P. $447,690.75 137,751 $447.69 68,876
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Integral Capital Partners IV MS Side $2,310.75 711 $2.31 356
Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Pequot Private Equity Fund, LP $1,198,281.50 368,702 $1,198.28 184,351
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pequot Offshore Private Equity $151,716.50 46,682 $151.72 23,341
Fund, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Technology Crossover Ventures, $231,653.50 71,278 $231.65 35,639
L.P.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Technology Crossover Ventures, $18,349.50 5,646 $18.35 2,823
C.V.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TCV II, V.O.F. $7,774.00 2,392 $7.77 1,196
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Technology Crossover Ventures II, $239,187.00 73,596 $239.19 36,798
L.P.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TCV II (Q), L.P. $183,891.50 56,582 $183.89 28,291
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TCV Strategic Partners, L.P. $32,630.00 10,040 $32.63 5,020
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Technology Crossover Ventures II, $36,517.00 11,236 $36.52 5,618
C.V.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lion Investments Limited $134,998.50 41,538 $135.00 20,769
Carlton House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Westpool Investment Trust plc $315,003.00 96,924 $315.00 48,462
Carlton House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
TOTAL $3,000,003.50 923,078 $3000.00 461,540
EXHIBIT A
Form of Warrant
EXHIBIT B
Registration Rights Agreement