Exhibit 10.25
STOCK PURCHASE AGREEMENT
by and among
TELLIUM, INC.
and
CERTAIN INVESTORS
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SERIES E CONVERTIBLE
PREFERRED STOCK
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Dated as of September 19, 2000
TABLE OF CONTENTS
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Page
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SECTION 1. Definitions.........................................................1
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1.1. Affiliate..............................................................1
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1.2. Person.................................................................1
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SECTION 2. Certificate of Incorporation........................................1
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SECTION 3. Issuance and Sale of Preferred Shares and Reservation of Reserved
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Shares; Closing.....................................................1
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3.1. Issuance of Preferred Shares and Reservation of Reserved Shares........1
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3.2. Agreement to Sell and Purchase Preferred Shares........................1
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3.3. The Closing............................................................2
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3.4. Conveyances at Closing.................................................2
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SECTION 4. Representations and Warranties of the Corporation...................2
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4.1. Corporate Organization.................................................2
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4.2. Capitalization; Issuance of Preferred Shares...........................2
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4.3. Subsidiaries...........................................................4
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4.4. Authority..............................................................4
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4.5. No Violation; No Consent or Approval Required..........................5
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4.6. Financial Information..................................................5
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4.7. Conduct of Business....................................................6
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4.8. Litigation.............................................................6
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4.9. Labor Agreements and Actions...........................................6
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4.10. Absence of Certain Changes or Events..................................7
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4.11. Title to Properties; Absence of Liens and Encumbrances................7
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4.12. Intellectual Property.................................................8
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4.13. Material Contracts...................................................10
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4.14. Certain Agreements and Employee Benefit Plans........................11
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4.15. Taxes................................................................12
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4.16. Preferred Stock Offering.............................................13
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4.17. Insurance............................................................13
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4.18. Disclosure...........................................................13
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4.19. Brokers..............................................................14
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4.20. Suppliers and Customers..............................................14
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4.21. Affiliate Matters....................................................14
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4.22. Use of Proceeds.....................................................14
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SECTION 5. Representations and Warranties of the Investors....................14
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5.1. Power and Authority...................................................14
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5.2. No Consent or Approval Required.......................................14
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5.3. Investment Representations............................................15
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SECTION 6. Conditions to the Closing..........................................15
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6.1. Corporate Proceedings.................................................16
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6.2. No Action.............................................................16
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6.3. Filing of Certificate of Incorporation................................16
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6.4. Stockholders Agreement................................................16
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6.5. Certificates, Instruments and Documents...............................16
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6.6. Opinion of Counsel....................................................16
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SECTION 7. Post-Closing Covenants.............................................16
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7.1. Access to Records and Management......................................16
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7.2. Financial Reports.....................................................17
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7.3. Qualified IPO.........................................................19
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SECTION 8. Restriction on Transfer............................................19
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SECTION 9. Transfer Taxes.....................................................21
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SECTION 10. Exchanges; Lost, Stolen or Mutilated Certificates.................21
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SECTION 11. Survival of Representations, Warranties and Agreements, Etc.......22
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SECTION 12. Indemnification........... .......................................22
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SECTION 13. Remedies..........................................................22
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SECTION 14. Successors and Assigns............................................22
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SECTION 15. Entire Agreement..................................................23
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SECTION 16. Notices...........................................................23
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SECTION 17. Changes...........................................................23
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SECTION 18. Counterparts......................................................24
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SECTION 19. Headings..........................................................24
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SECTION 20. Nouns and Pronouns................................................24
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SECTION 21. Governing Law.....................................................24
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SECTION 22. Expenses..........................................................24
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ATTACHMENTS
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SCHEDULES
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Corporation Disclosure Schedule
Schedule I - Investors
EXHIBITS
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Exhibit A - Form of Amended and Restated Certificate of Incorporation
Exhibit B - Form of Amended and Restated Stockholders' Agreement
Exhibit C - Form of Opinion
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of September
19, 2000, is entered into by and among Tellium, Inc., a Delaware corporation
(the "Corporation"), and the investors listed on Schedule I attached hereto (the
"Investors").
SECTION 1. Definitions. As used herein, the terms below shall have the
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following meanings. Any of such terms, unless the context otherwise requires,
may be used in the singular or the plural, depending upon the reference.
1.1. Affiliate. The term "Affiliate" shall mean with respect to any
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person or entity, any other person or entity directly or indirectly controlling,
controlled by or under common control with such first person or entity (for
purposes of this definition, "control" as used with respect to a person or
entity, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of such person or
entity, whether by ownership of voting securities, by contract or otherwise).
1.2. Person. The term "Person" shall mean any individual, firm,
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corporation, partnership, limited liability company, trust, joint venture,
Governmental Entity or other entity.
SECTION 2. Certificate of Incorporation. Prior to the execution and
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delivery of this Agreement, the Corporation shall have filed with the Secretary
of State of the State of Delaware an Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation"), a true and complete copy of
which is attached hereto as Exhibit A. Article Four thereof, among other things,
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(i) authorizes 26,661,150 shares of Preferred Stock, $0.001 par value (the
"Preferred Stock"), and designates 7,500,000 shares as Series E Preferred Stock
(the "Series E Preferred Stock") and (ii) sets forth the terms, designations,
powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations and restrictions, of the Series E
Preferred Stock.
SECTION 3. Issuance and Sale of Preferred Shares and Reservation of
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Reserved Shares; Closing.
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3.1. Issuance of Preferred Shares and Reservation of Reserved Shares.
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Subject to the terms and conditions hereof, the Corporation has authorized the
issuance on the Closing Date (as defined in Section 3.3 hereof) of an aggregate
of up to 7,500,000 shares of Series E Preferred Stock (such shares of Series E
Preferred Stock being sometimes hereinafter referred to as the "Preferred
Shares"), and the reservation of up to 7,500,000 shares of common stock, $0.001
par value (the "Common Stock"), of the Corporation for issuance upon conversion
of the Preferred Shares (such reserved Common Stock being sometimes hereinafter
referred to as the "Reserved Shares").
3.2. Agreement to Sell and Purchase Preferred Shares. Subject to the
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terms and conditions hereof, the Corporation shall issue to each Investor and
each Investor, severally and
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not jointly, shall acquire from the Corporation at the Initial Closing (as
defined in Section 3.3 hereof) the number of Preferred Shares set forth opposite
the name of such Investor on Schedule I hereto free and clear of all liens,
encumbrances and restrictions of any kind (except for those imposed by the
Certificate of Incorporation, the Stockholders Agreement, this Agreement or
applicable securities laws). The per share purchase price to be paid by such
Investor shall be $30.00 (the "Purchase Price"). Any expenses of the Investors
in connection with the transactions contemplated hereby which are borne by the
Corporation shall be treated as a purchase price adjustment.
3.3. The Closing. The closing (the "Closing") hereunder with respect to
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the transactions contemplated hereby is taking place on the date hereof at the
offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (the date hereof sometimes being
referred to herein as the "Closing Date").
3.4. Conveyances at Closing. At the Closing, the Corporation shall
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deliver to each Investor a certificate or certificates, registered in the name
of such Investor, representing that number of Preferred Shares being purchased
by such Investor against receipt by the Corporation of a check payable to the
Corporation or a wire transfer to an account designated by the Corporation in
the full amount of the aggregate Purchase Price for the Preferred Shares being
purchased by such Investor at the Closing.
SECTION 4. Representations and Warranties of the Corporation. As of the
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date hereof, the Corporation hereby represents and warrants to each Investor,
except as and to the extent set forth in a disclosure schedule (the "Corporation
Disclosure Schedule") attached hereto setting forth exceptions specified therein
to the representations and warranties contained in this Section 4, as follows:
4.1. Corporate Organization. The Corporation is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority and all necessary
governmental franchises, licenses, permits, authorizations and approvals to own
or lease and operate its properties and assets and to carry on its business as
it is now being conducted, and is duly qualified or licensed as a foreign
corporation to do business and in good standing in each jurisdiction in which
the conduct or nature of the business conducted by it or the character or
location of the properties owned or leased by it makes such qualification or
licensing necessary, except where the failure to be so qualified or licensed
would not have a Material Adverse Effect. As used herein the term "Material
Adverse Effect" means any change or effect that, individually or in the
aggregate, is or is reasonably likely to be materially adverse to the business,
assets, prospects, results of operations or condition (financial or otherwise)
of the Corporation taken as a whole or on the ability of the Corporation to
consummate the transactions contemplated hereby.
4.2. Capitalization; Issuance of Preferred Shares.
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(a) As of the date hereof, the authorized capital stock of the
Corporation consists of the following:
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(i) 26,661,150 shares of Preferred Stock, of which (A)
10,322,917 shares are designated as Series A Preferred Stock, 10,089,584 of
which are issued and outstanding, and 233,333 of which are reserved for issuance
upon conversion of the Series B Preferred Stock, (B) 233,333 shares are
designated Series B Preferred Stock, all of which are issued and outstanding,
(C) 2,593,974 shares are designated Series C Preferred Stock, of which 2,564,465
are outstanding and 29,509 are reserved for issuance upon exercise of warrants
issued or issuable to Comdisco, Inc. pursuant to the Comdisco Warrants (as
defined in the Stockholders Agreement), (D) 6,010,926 shares are designated
Series D Preferred Stock, all of which are issued and outstanding and (E)
7,500,000 shares are designated as Series E Preferred Stock, of which the number
of shares set forth on Schedule I hereto will be issued and outstanding after
giving effect to the Closing. Such shares of outstanding Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock have been duly authorized and validly issued, are nonassessable and fully
paid and are convertible into an aggregate of 56,694,924 shares of Common Stock
and are free of restrictions on transfer other than restrictions on transfer
under the purchase agreements under which such shares were purchased and under
the Amended and Restated Stockholders Agreement dated as of the date hereof
among the Corporation, the Investors and the other stockholders party thereto in
the form of Exhibit B hereto (the "Stockholders Agreement") and under applicable
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state and federal securities laws. None of the outstanding shares of Preferred
Stock were issued, offered or sold by the Corporation in violation of any
applicable federal or state securities laws. The Preferred Shares 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 authorized and validly issued, nonassessable and fully paid
and will be convertible into shares of Common Stock in accordance with the
Certificate of Incorporation free and clear of all liens, encumbrances and
restrictions of any kind (except for those imposed by the Certificate of
Incorporation, the Stockholders Agreement, this Agreement or applicable
securities laws).
(ii) 250,000,000 shares of Common Stock, 24,718,122 shares of
which are outstanding and are duly authorized and validly issued, nonassessable
and fully paid. None of the outstanding shares of Common Stock were issued,
offered or sold by the Corporation in violation of any applicable federal or
state securities laws.
(b) Section 4.2 of the Corporation Disclosure Schedule contains
capitalization tables for the Corporation showing the current ownership of the
Common Stock and Preferred Stock, without giving effect to the transactions
contemplated by this Agreement. There are no treasury shares held by the
Corporation.
(c) Section 4.2 of the Corporation Disclosure Schedule sets forth
a summary of all outstanding stock options and warrants of the Corporation,
indicating the number of shares and type of capital stock issuable upon exercise
thereof. As of the date hereof, 24,648,734 shares of Common Stock have been
reserved for issuance upon exercise of such stock options and warrants (or upon
conversion of shares of Series C Preferred Stock issuable upon exercise of such
warrants). Section 4.2 of the Corporation Disclosure Schedule sets forth true
and complete forms of warrant and forms of employee option agreement and there
are no outstanding warrants or employee options other than in the forms set
forth in Section 4.2 of the Corporation Disclosure Schedule or as expressly
described therein. Except as noted in Section 4.2 of the Corporation
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Disclosure Schedule, all holders of such stock options and warrants have agreed
to restrictions attached to such Section 4.2.
(d) The Common Stock issuable upon conversion of the issued and
outstanding Preferred Stock and the Preferred Stock to be issued hereunder has
been duly and validly reserved for issuance and, when and if issued upon such
conversion in accordance with the terms of the Certificate of Incorporation,
will be validly issued, fully paid and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under the purchase
agreements pursuant to which the Preferred Stock was issued, this Agreement and
the Stockholders Agreement and under applicable state and federal securities
laws. The Corporation has reserved sufficient authorized, but unissued, Common
Stock for issuance upon conversion of the Preferred Stock.
(e) Except for (i) the conversion privileges of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock, (ii) outstanding options ("Stock
Options") to purchase that number of shares of Common Stock set forth in Section
4.2 of the Corporation Disclosure Schedule pursuant to the Corporation's Amended
and Restated 1997 Stock Option Plan (the "Stock Option Plan"), (iii) the Extant
Warrants and the Comdisco Warrants (each as defined in the Stockholders
Agreement) and (iv) the rights provided in the Stockholders Agreement, there are
no preemptive rights or options, warrants, conversion privileges or other rights
(or agreements, arrangements, commitments or understandings for any such rights)
outstanding to purchase or otherwise obtain from the Corporation any of the
Corporation's Common Stock (all such rights, options, warrants, conversion
privileges or other rights, collectively, "Common Stock Equivalents"), or other
securities. There are no outstanding or authorized stock appreciation, phantom
stock or similar rights with respect to the Corporation.
(f) Except for the Certificate of Incorporation and the
Stockholders Agreement, there are no voting trusts or other agreements or
understandings to which the Corporation or, to the knowledge of the Corporation,
any shareholder is a party with respect to the voting of the capital stock of
the Corporation or relating to dividends or dispositions or providing for
registration rights of any kind.
4.3. Subsidiaries. Except as set forth in Section 4.3 of the
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Corporation Disclosure Schedule, the Corporation does not own, directly or
indirectly, any equity or similar interest in, or any interest convertible into
or exchangeable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
4.4. Authority. The Corporation has the full power and authority to
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enter into this Agreement and the Stockholders Agreement, to issue and sell the
Series E Preferred Stock to be sold hereunder, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. All necessary
action has been taken by the Corporation with respect to the execution and
delivery of this Agreement and the Stockholders Agreement and the consummation
of the transactions contemplated hereby. Each of this Agreement and the
Stockholders Agreement has been duly executed and delivered by, and, assuming
the due authorization, execution and delivery thereof by each of the Investors,
constitutes a valid and
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binding obligation of, the Corporation, enforceable against the Corporation in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability affecting creditors' rights
and to general equity principles.
4.5. No Violation; No Consent or Approval Required.
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(a) Neither the execution and delivery of this Agreement or the
Stockholders Agreement by the Corporation nor the consummation by the
Corporation of the transactions contemplated hereby will (i) conflict with or
result in any breach or violation of any provision of the Certificate of
Incorporation or Bylaws of the Corporation, or (ii) violate or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or give rise to a right of termination,
cancellation or acceleration of any obligation contained in, or result in the
creation of any lien or other encumbrance upon any of the properties or assets
of the Corporation under or require any notice, consent or waiver under, any of
the terms, conditions or provisions of (x) any Material Contract (as defined in
Section 4.13), note, bond, mortgage, indenture, deed of trust, lease, agreement
or other instrument or obligation to which the Corporation is a party or by
which any of its properties or assets are bound or (y) any permit, concession,
grant, franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Corporation or to which it or any of its
properties or assets may be subject.
(b) No consent, approval or authorization of, or declaration to or
filing with, any court, administrative agency, commission or other governmental
or regulatory authority or instrumentality, domestic or foreign (a "Governmental
Entity"), or other third party is required to be made by or obtained for
consummation of the transactions contemplated hereby, other than (i) the filing
of the Certificate of Incorporation with the Secretary of State of the State of
Delaware, which has been accomplished, and (ii) those consents, approvals,
authorizations, declarations or filings which have been or will timely be
obtained or made, as the case may be, and which are identified on Section 4.5 of
the Corporation Disclosure Schedule. The Corporation has obtained all requisite
consents to amend the Certificate of Incorporation into the form attached hereto
as Exhibit A. The Certificate of Incorporation has been duly filed and is in
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full force and effect.
4.6. Financial Information. Section 4.6 of the Corporation Disclosure
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Schedule consists of the following financial statements of the Corporation: (i)
audited financial statements for the year ended December 31, 1999; and (ii) an
unaudited internally prepared balance sheet, operating statement and cash flow
statement as of and for the six months ended June 30, 2000. The audited
financial statements referred to in clause (i) of this Section 4.6 and the
unaudited financial statements referred to in clause (ii) of this Section 4.6,
together with the footnotes and supporting schedules in respect of such
financial statements, are collectively referred to as the "Financial
Statements."
(a) The Financial Statements have been prepared in accordance with
United States generally accepted accounting principles ("GAAP") applied on a
consistent basis (except as may be indicated therein or in the notes thereto)
and fairly present in all material respects the financial position of the
Corporation as of the respective dates thereof and the results
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of operations and cash flows for the respective periods then ended, subject to
normal year-end adjustments with respect to the interim financial statements and
are materially consistent with the books and records of the Corporation.
(b) The Financial Statements set forth all the liabilities of the
Corporation (whether direct or indirect, absolute or contingent, liquidated or
unliquidated, due or to become due or accrued or unaccrued) of whatever nature
at the date thereof, whether arising out of contract, tort, statute or
otherwise, except liabilities and obligations under contracts, commitments,
agreements set forth on the Corporation Disclosure Schedule (but not liabilities
for breaches thereof), and except for contractual liabilities and obligations
(but not liabilities for breaches thereof) which are not required under GAAP to
be set forth on the Financial Statements and which in the aggregate are not
material.
4.7. Conduct of Business.
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(a) The business of the Corporation, as presently conducted, is
not being conducted in default or violation of any term, condition or provision
of (i) the Certificate of Incorporation or Bylaws of the Corporation, or (ii)
any Material Contract, note, bond, mortgage, indenture, deed of trust, lease,
agreement, or other instrument or obligation to which the Corporation is a party
or by which the Corporation or any of its properties or assets may be bound, or
(iii) any federal, state, local or foreign statute, law, ordinance, rule,
regulation, judgment, decree, order, concession, grant, franchise, permit or
license or other governmental authorization or approval applicable to the
Corporation, excluding from the foregoing clauses (ii) and (iii) defaults or
violations that would not be material.
(b) The Corporation is in compliance in all material respects with
all federal, state, local and foreign laws, ordinances, regulations and orders
applicable to it, its business and the ownership of its assets. The Corporation
has all certificates, authorizations, licenses, permits, orders or approvals of,
and has made all required registrations with, any Governmental Entity that are
material to the conduct of the business of the Corporation (collectively,
"Permits"). (i) All Permits are in full force and effect, (ii) no material
violations are or have been recorded in respect of any Permit, and (iii) no
proceeding is pending or, to the knowledge of the Corporation, threatened to
revoke or limit any Permit.
4.8. Litigation. There is no private or governmental action, suit,
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proceeding, claim, arbitration or investigation before any agency, court or
tribunal, foreign or domestic, pending or, to the knowledge of the Corporation,
threatened against the Corporation or any of its properties or pending or
threatened against any of its respective officers or directors (in their
capacities as such). There is no judgment, decree or order against the
Corporation, or, to the knowledge of the Corporation, any of its directors or
officers (in their capacities as such), that could prevent, enjoin, or
materially alter or delay any of the transactions contemplated by this Agreement
or the Stockholders Agreement, or that could reasonably be expected to have a
Material Adverse Effect. Section 4.8 lists all litigation that the Corporation
has commenced and is pending against other parties.
4.9. Labor Agreements and Actions.
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(a) The Corporation is not bound by or subject to any written
contract, commitment or arrangement with any labor union, and no labor union has
requested or, to the knowledge of the Corporation, has sought to represent any
of the employees, representatives or agents of the Corporation. There is no
strike or other labor dispute involving the Corporation pending, or to the
knowledge of the Corporation, threatened, nor is the Corporation aware of any
labor organization activity involving its employees.
(b) Except as set forth in Section 4.9 of the Corporation
Disclosure Schedule, the employment of each officer and employee of the
Corporation is terminable at the will of the Corporation, and the Corporation
has not entered into any oral or written agreements with any of its officers or
employees that provide for severance or termination pay or acceleration of
vesting on stock options or restricted stock.
(c) The Corporation has complied in all material respects with all
applicable state and federal equal employment opportunity laws and with other
laws related to employment. The Corporation has withheld all amounts required by
law or agreement to be withheld from the wages, salaries or other payments made
to any individual and has paid all required amounts over to the appropriate
governmental authority.
4.10. Absence of Certain Changes or Events. Since June 30, 2000, except
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as set forth in Section 4.10 of the Corporation Disclosure Schedule, and except
for the transactions contemplated by this Agreement, the Corporation has
conducted its business only in the ordinary course consistent with past
practice, and there has not been (i) any material damage, destruction or loss,
whether covered by insurance or not, (ii) any declaration, setting aside or
payment of any dividend (whether in cash, stock or property) with respect to
Preferred Stock or Common Stock or Common Stock Equivalent or any redemption,
purchase or other acquisition by the Corporation of any of its securities, (iii)
any change in the business, operations, properties, prospects, condition
(financial or otherwise) or assets of the Corporation having a Material Adverse
Effect, (iv) any labor dispute, other than routine matters, none of which is
material to the Corporation, (v) any entry into any commitment or transaction
(including, without limitation, any borrowing or capital expenditure) other than
in the ordinary course of business consistent with past practice, (vi) any
material change by the Corporation in its accounting methods, principles or
practices, (vii) any revaluation by the Corporation of any asset (including,
without limitation, any writing down of the value of inventory or writing off of
notes or accounts receivable), or (viii) any increase in or establishment of any
bonus, insurance, severance, deferred compensation, pension, retirement, profit
sharing, stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards, or restricted stock
awards), stock purchase or other employee benefit plan, or any other increase in
the compensation payable or to become payable to any officers or key employees
of the Corporation.
4.11. Title to Properties; Absence of Liens and Encumbrances.
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(a) The Corporation does not own any real property.
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(b) Section 4.11 of the Corporation Disclosure Schedule sets
forth a complete and accurate list of all real property leased by the
Corporation. Such leases are valid and enforceable by the Corporation in
accordance with their terms. The Corporation has not received any notice of any
event that, with the passage of time or the giving of notice or both, would
constitute a default under any such leases and such property or assets are in
good operating condition and repair (subject to normal wear and tear) and are
suitable for the purposes for which they are presently used.
(c) The Corporation owns or has valid leasehold interests in all
of its tangible properties and assets (real, personal and mixed) used in its
business, free and clear of any liens (other than liens for taxes that are not
yet delinquent), charges, pledges, security interests or other encumbrances,
except for such imperfections of title and encumbrances, if any, that do not
materially detract from the value, or interfere with the use of, the property
subject thereto or affected thereby and such property or assets are in good
operating condition and repair (subject to normal wear and tear) and are
suitable for the purposes for which they are presently used.
4.12. Intellectual Property.
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(a) The Corporation either owns, has a valid license, sublicense,
agreement or permission, has filed a valid application with respect to, (i) all
inventions (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereon, and all patents, patent applications and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (ii)
all trademarks, service marks, trade dress, logos, trade names, domain names,
and corporate names, together with all translations, adaptations, derivations
and combinations thereof and including all goodwill associated therewith, and
all applications, registrations and renewals in connection therewith, (iii) all
copyrights and all applications, registrations and renewals in connection
therewith, (iv) all mask works and all applications, registrations and renewals
in connection therewith, (v) all trade secrets and confidential business
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, methods,
schematics, technology, technical data, designs, drawings, flowcharts, block
diagrams, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (vi) all computer
software (including data and related documentation), and (vii) all other
proprietary rights (collectively defined herein as "Intellectual Property")
necessary for the operation or conduct of its business as presently conducted or
as currently proposed to be conducted (such intellectual property and the rights
thereto are collectively referred to herein as the "Corporation Intellectual
Property Rights") and has taken, through the date hereof, all action which is
reasonably required to preserve, renew and extend all such Intellectual Property
rights which in the Corporation's reasonable business judgment is necessary for
the operation or conduct of its business as presently conducted or as currently
proposed to be conducted. The Corporation has not licensed any of the
Corporation Intellectual Property Rights in source code form owned by the
Corporation to any third party or entered into any exclusive agreement relating
to the Corporation Intellectual Property Rights owned by the Corporation with
any third party. Nothing in this Section 4.12(a) is intended to constitute a
representation with respect to any of the matters addressed by Section
4.12(c)(ii), and
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to the extent that there is a conflict between this Section
4.12(a) and Section 4.12(c)(ii), Section 4.12(c)(ii) shall control.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not constitute a
breach of any instrument or agreement to which the Corporation or any of its
employees is a party governing any Corporation Intellectual Property Rights,
including but not limited to any patent, copyright, trademark, trade secret or
other Intellectual Property Rights licensed by, or to, the Corporation, will not
cause the forfeiture or termination or give rise to a right of forfeiture or
termination of any Corporation Intellectual Property Rights or materially impair
the right of the Corporation in or to use, sell, enforce, license or otherwise
exploit any Corporation Intellectual Property Rights or portion thereof.
(c) Except as set forth in Section 4.12 of the Corporation
Disclosure Schedule, neither the operation of the Corporation's business, nor
the manufacture, marketing, license, sale or offer for sale or use or intended
use of any product, service or technology currently licensed, manufactured,
distributed, used, sold, offered for sale or under development by the
Corporation (i) knowingly (after reasonable inquiry into the matter) violates in
any material respect any intellectual property license or intellectual property
agreement between the Corporation and any third party or (ii) to the
Corporation's knowledge, infringes any patents, copyright, trademark, trade
secret or other intellectual property right of any third party. There is no
pending or, to the knowledge of the Corporation, threatened claim or litigation
involving the Corporation contesting the validity, ownership or right to use,
sell, enforce, license or dispose of any Corporation Intellectual Property
Rights nor is any Corporation Intellectual Property Right subject to any
outstanding injunction, judgment, order, decree ruling or charge. Except as set
forth in Section 4.12 of the Corporation Disclosure Schedule, the Corporation
has not received any notice asserting that any Corporation Intellectual Property
Rights or the proposed use, sale, license or disposition thereof conflicts with
the rights of any other party. To the knowledge of the Corporation, no third
party is infringing on any of the Corporation Intellectual Property Rights.
(d) Section 4.12 of the Corporation Disclosure Schedule lists all
patents, patent applications, federally registered trademarks and service marks,
pending or abandoned applications for federal trademark or service ▇▇▇▇
registration, material unregistered trademarks, service marks, corporate names
and trade names, domain names, copyright registrations, copyright applications,
mask work registrations, mask work applications, licenses, sublicense agreements
and permissions included in the Corporation Intellectual Property Rights, in
each case pending or issued, including, in the case of patents and patent
applications, the jurisdictions in which each such Corporation Intellectual
Property Rights has been issued or registered or in which any application for
such issuance and registration has been filed.
(e) The Corporation is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use such
employee's best efforts to promote the interest of the Corporation or
-9-
that would conflict with the Corporation's business as presently conducted or as
presently proposed to be conducted or the Corporation Intellectual Property
Rights.
(f) The Corporation does not and will not need, in order to
conduct the Corporation's business as presently conducted and as presently
proposed to be conducted, to utilize any inventions of any of its employees,
former employees (or persons it currently intends to hire) made while not
employed by the Corporation and rights to which have not been provided to the
Corporation.
(g) The Corporation has obtained valid and effective assignments,
or has the right pursuant to a written agreement to obtain an assignment, from
all of its employees, former employees, independent contractors, and former
independent contractors (collectively defined herein as "Inventors") of all of
such Inventors' rights in any Intellectual Property developed by such Inventors
while employed by or under contract with the Corporation.
(h) For each item of Corporation Intellectual Property Rights
which is an application, including but not limited to patent applications,
trademark applications, service ▇▇▇▇ applications, copyright applications, or
mask work applications, the Corporation has the right to require the applicant
to transfer ownership to the Corporation of the application and of the
registration once it issues.
(i) The Corporation has taken all reasonable precautions to
protect the secrecy, confidentiality, and value of its trade secrets, and has
entered into confidential information/non-disclosure agreements in the form
attached to Section 4.12 of the Corporation Disclosure Schedule with each of its
officers, employees, and independent contractors.
4.13. Material Contracts. Except for grants under the Stock Option Plan
------------------
and except as identified in Section 4.13 of the Corporation Disclosure Schedule,
there are no agreements, understandings or proposed transactions between the
Corporation and any of its officers, directors, affiliates, or any affiliate
thereof. Except for the contracts identified in Section 4.13 of the Corporation
Disclosure Schedule (the "Material Contracts"), there are no agreements,
understandings, instruments, contracts or proposed transactions to which the
Corporation is a party or by which it is bound, that involve (i) obligations
(contingent or otherwise) of, or payments to, the Corporation in excess of two
hundred fifty thousand ($250,000) dollars, other than purchase orders in
individual amounts of less than five hundred thousand ($500,000) dollars
received in the ordinary course of business, (ii) the license of any patent,
copyright, trade secret or other proprietary right to or from the Corporation,
(iii) the grant of rights to manufacture, produce, assemble, license, market, or
sell the Corporation's products to any third person, (iv) any agreement (other
than in the ordinary cause) relating to the acquisition or disposition of any
assets; (v) any agreement granting a lien or encumbrance on the Corporation's
assets or properties; (vi) any indenture, mortgage, note, bond or other evidence
of indebtedness, any credit or similar agreement (including any capitalized
lease obligations) under which the Corporation has borrowed any money, and any
guarantee of or agreement to acquire any such obligation, of any other Person;
(vii) any written arrangement requiring the Corporation to perform research and
development activities with respect to any product or proposed product or to
develop or market any product or proposed product; or (viii) any arrangement
under which the consequences
-10-
of a default or termination could have a Material Adverse Effect or could result
in the granting to any third party of any rights in or to any material assets of
the Corporation. Each Material Contract is in full force and effect except as
the same may have expired in accordance with its terms, the Corporation has not
received any written assertion of default under any Material Contract, and the
Corporation has not received any notice related to any termination or material
change to, nor is there any right or consent under, any of the Material
Contracts as a result of the transactions contemplated by this Agreement or
otherwise. The Corporation is not (with or without the lapse of time or the
giving of notice, or both) in breach or default in any material respect of any
of the Material Contracts (provided, however, that nothing in this sentence is
intended to constitute a representation with respect to any of the matters
addressed by Section 4.12(c)(i), and to the extent that there is a conflict
between this sentence and Section 4.12(c)(i), Section 4.12(c)(i) shall control).
The Corporation has not received any notice of the intention of any party to the
Material Contracts to terminate any such contract. The Corporation is not a
party to, nor has it any obligation under, any contract or agreement, written or
oral, which contains any covenants limiting in any material respect the freedom
of the Corporation to engage in its business as currently conducted anywhere in
the world or to compete in its business with any entity anywhere in the world or
to enter into any new line of business.
4.14. Certain Agreements and Employee Benefit Plans.
---------------------------------------------
(a) Except as set forth in Section 4.14 of the Corporation
Disclosure Schedule, the Corporation is not a party to any (i) employment,
severance, collective bargaining or consulting agreement not terminable on 60
days' or less notice without material liability to the Corporation, (ii)
agreement with any executive officer or other key employee of the Corporation
(A) the benefits of which are contingent, or the terms of which are materially
altered, upon the occurrence of a transaction involving the Corporation of the
nature of any of the transactions contemplated by this Agreement, (B) providing
any term of employment or compensation guarantee extending for a period longer
than one year, or (C) providing severance benefits or other benefits after the
termination of employment of such executive officer or key employee regardless
of the reason for such termination of employment, (iii) agreement, plan or
arrangement under which any person may receive payments subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or (iv) any stock option plan, stock appreciation right plan,
restricted stock plan or stock purchase plan or other plan or agreement, the
benefits of which would be increased, or the vesting of benefits of which will
be accelerated, by the occurrence of any of the transactions contemplated by
this Agreement or the value of any of the benefits of which will be calculated
on the basis of any of the transactions contemplated by this Agreement.
(b) Section 4.14 of the Corporation Disclosure Schedule contains
a true and complete summary or list of, or otherwise describes, (i) all employee
benefit plans (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) and all bonus, stock option,
stock purchase, restricted stock incentive, deferred compensation, retiree
medical or life insurance, supplemental retirement, severance or other benefit
plans, programs or arrangements, and all employment, termination, severance or
other contracts or agreements to which the Corporation is a party, with respect
to which the Corporation has any obligations which are material in amount and
which are maintained,
-11-
contributed to or sponsored by the Corporation for the benefit of any current or
former employee, officer or director of the Corporation and (ii) each employee
benefit plan for which the Corporation could incur liability under Section 4069
of ERISA, in the event such plan were terminated, or under Section 4212(c) of
ERISA, or in respect of which the Corporation remains secondarily liable under
Section 4204 of ERISA (collectively, the "Material Plans"). The Corporation has
no commitment (i) to create, incur liability with respect to or cause to exist
any other employee benefit plan, program or arrangement, other than the Material
Plans, (ii) to enter into any contract or agreement to provide compensation or
benefits to any individual, or (iii) to modify, change or terminate any Material
Plan, other than with respect to a modification, change or termination required
by ERISA or the Code. To the extent applicable, the Material Plans comply with
the requirements of ERISA and the Code, and any Material Plan intended to be
qualified under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified and nothing has occurred with respect to such
Material Plan which could be reasonably expected to cause the loss of such
qualification. The Corporation has no liability (contingent or otherwise) with
respect to any employee benefit plan covered by Title IV of ERISA whether or not
such plan is maintained, contributed to or sponsored by the Corporation. Neither
the Corporation nor, to the Corporation's knowledge, any officer or director of
the Corporation or any fiduciary of any Material Plan has incurred any liability
or penalty under Sections 4975 through 4980 of the Code or Title I of ERISA.
Each Material Plan has been maintained and administered in all material respects
in compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations, including but not limited to ERISA and
the Code, which are applicable to such Material Plans. There are no pending or,
to the Corporation's knowledge, threatened claims which have been asserted or
instituted against or otherwise involving any of the Material Plans and no suit,
action or other litigation (excluding claims for benefits incurred in the
ordinary course of Material Plan activities) has been brought or, to the
knowledge of the Corporation, is threatened against or with respect to any such
Material Plan. No Material Plan is under audit or investigation by any
governmental agency or authority. All material contributions, reserves or
premium payments required to be made or accrued as of the date hereof to the
Material Plans have been made or accrued.
(c) Operating Company. Immediately following each Closing, the
-----------------
Corporation will be primarily engaged in the production or sale of a product or
service other than the investment of capital within the meaning of Department of
Labor Regulation Sections 2510.3-101(c), (d) or (e).
(d) The Corporation has entered into an agreement with each of
its employees substantially in the form attached to Section 4.14 of the
Corporation Disclosure Schedule.
4.15. Taxes.
-----
(a) The Corporation has timely filed (taking into account any
extension of time within which to file) all federal income Tax Returns and all
other material Tax Returns that are required to be filed by it and all such Tax
Returns are true and correct in all material respects. The Corporation has paid,
or adequately provided for on its Financial Statements, all Taxes that are due
from the Corporation. No material tax liens have been filed and no material
deficiencies or claims are being proposed or asserted in writing with respect to
any Taxes. All Taxes which
-12-
the Corporation is obligated to withhold from amounts owing to any employee,
creditor or third party have been withheld and timely paid over to the
appropriate taxing authority.
(b) The income Tax Returns of the Corporation have not been
examined by the Internal Revenue Service ("IRS") or any other taxing authority,
and no such examination is pending or, to the knowledge of the Corporation,
threatened. No waivers, extensions or comparable consents of the time to assess
any Income Taxes of the Corporation are currently outstanding.
(c) The Corporation has never been a member of an affiliated
group filing consolidated returns for federal income Tax purposes. The
Corporation is not a party to any Tax allocation, Tax indemnity or Tax sharing
agreement and is not liable for the Taxes of any other Person by operation of
law.
(d) For purposes of this Agreement: (i) "Tax" or "Taxes" means
any and all taxes, fees, levies, duties, tariffs, imposts and other charges of
any kind (together with any interest, penalties, additions to tax or additional
amounts imposed by any taxing authority with respect thereto), imposed by any
government or taxing authority, including, without limitation, taxes or other
charges on or with respect to income, franchises, windfall or other profits,
gross receipts, property, sales, use, capital stock, payroll, employment, social
security, workers' compensation, unemployment compensation, or net worth; taxes
or other charges in the nature of excise, withholding, ad valorem, escheat,
stamp, transfer, value added or gains taxes, license, registration and
documentation fees; and customs' duties, tariffs and similar charges; (ii)
"Income Tax" means federal income Tax and state and local income and franchise
Taxes imposed on or measured by net income; and (iii) "Tax Return" means all
returns, declarations, reports, estimates, information returns and statements
required to be filed in respect of any Taxes.
4.16. Preferred Stock Offering. Subject to the truth and accuracy of
------------------------
the representations and warranties of the Investors set forth in Section 5, the
offer, sale and issuance of the Preferred Shares as contemplated by this
Agreement are exempt from the registration requirements of any applicable state
and federal securities laws, subject to any post-Closing filings required by
state "blue sky" laws.
4.17. Insurance. All the insurable properties of the Corporation are
---------
insured for the benefit of the Corporation in such amounts, with such
deductibles and against such risks and losses as are reasonably deemed adequate
by the Corporation with respect to risks usually insured against by persons
operating similar properties in the localities in which such properties are
located under policies in effect and issued by insurers of recognized
responsibility.
4.18. Disclosure. Except as set forth in Section 4.18 of the
----------
Corporation Disclosure Schedule, neither this Agreement nor any certificate,
instrument or written statement furnished or made to the Investors by or on
behalf of the Corporation in connection with this Agreement contains any untrue
statement of a material fact or, taken as a whole with all other statements,
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading, in light of the circumstances under
which they were made.
-13-
4.19. Brokers. Such person has not nor have any of its officers,
-------
directors, employees or stockholders employed any broker, finder or placement
agent, other than ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC (the
"Placement Agents"), in connection with the transactions contemplated by this
Agreement.
4.20. Suppliers and Customers. The Corporation has no knowledge of any
-----------------------
termination, cancellation or threatened termination or cancellation or
limitation of, or any material modification or change in, or expressed material
dissatisfaction with the business relationship between the Corporation and any
supplier, vendor, customer or client of the Corporation, in each case, in which
termination, cancellation or material adverse modification would have a material
adverse effect on any material business relationship.
4.21. Affiliate Matters. Except as set forth in Section 4.21 of the
-----------------
Corporation Disclosure Schedule, no Affiliate of the Corporation (a) owns or has
any interest in any property or right, tangible or intangible, which is used by
or pertains to the business of the Corporation, (b) to the Corporation's
knowledge, has any claim or cause of action against the Corporation, (c) owes
any money to the Corporation, or (d) is a party to, or, to the knowledge of the
Corporation, has a direct or indirect ownership or economic interest in any
Person who is a party to, any contract or other arrangement (written or oral) or
business relationship with the Corporation (the agreements, arrangements and
relationships described in this sentence are hereinafter referred to as "Related
Party Transactions"). Section 4.21 of the Corporation Disclosure Schedule
summarizes any Related Party Transactions between the Corporation and any such
Affiliate which are currently in effect or reflected in the Financial
Statements.
4.22. Use of Proceeds. The net proceeds from the sale of Preferred
---------------
Shares will be used for general corporate purposes.
SECTION 5. Representations and Warranties of the Investors. Each
--------- -----------------------------------------------
Investor hereby, severally as to itself only, represents and warrants to the
Corporation as follows:
5.1. Power and Authority. Such Investor has full power and authority to
-------------------
enter into this Agreement, to purchase Preferred Shares to be sold by the
Corporation hereunder, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. All necessary action has been taken by
such Investor with respect to the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by, and, assuming the due authorization,
execution and delivery thereof by the Corporation and the other Investors,
constitutes a valid and binding obligation of, such Investor, enforceable
against such Investor in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
affecting creditors' rights and to general equity principles.
5.2. No Consent or Approval Required. No consent, approval or
-------------------------------
authorization of, or declaration to or filing with, any Governmental Entity or
other third party is required for consummation of the transactions contemplated
hereby.
-14-
5.3. Investment Representations.
--------------------------
(a) Such Investor is and will be acquiring the Preferred Shares to
be purchased by such Investor hereunder and, in the event that such Investor
should acquire any Reserved Shares, that such Investor will be acquiring such
Reserved Shares, for its own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act") except that such Investor may make certain
transfers as provided herein and under the Stockholders Agreement.
(b) Such Investor understands that (i) the Preferred Shares have
not been, and that the Reserved Shares will not be, registered under the
Securities Act, by reason of their issuance by the Corporation in transactions
exempt from the registration requirements of the Securities Act and the
Corporation's reliance on such exemption is predicated upon such Investor's
representations set forth herein and (ii) the Preferred Shares and the Reserved
Shares must be held by such Investor indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
registration.
(c) Such Investor further understands that, with respect to the
Reserved Shares, the exemption from registration afforded by Rule 144 (the
provisions of which are known to such Investor) promulgated under the Securities
Act depends on the satisfaction of various conditions, and that, if applicable,
Rule 144 may afford a basis for sales only in limited amounts.
(d) Such Investor is a "qualified institutional buyer" as such
term is defined in Rule 144A promulgated under the Securities Act, or an
"accredited investor" as such term is defined in Rules 501(a)(1), 501(a)(2),
501(a)(3) and 501(a)(7) promulgated under the Securities Act, with its principal
executive office located at the address set forth under such Investor's name on
Schedule I.
(e) Such Investor agrees that the Corporation may place a legend
on the certificates delivered hereunder stating that (i) the Preferred Shares
and any Reserved Shares have not been registered under the Securities Act, and,
therefore cannot be offered, sold or transferred unless they are registered
under the Securities Act or an exemption from such registration is available,
and that the Corporation may place stop transfer orders on the transfer books of
the Corporation and (ii) the securities represented by such certificate are
subject to certain restrictions on transfer, voting provisions, and other
provisions set forth in the Stockholders Agreement, as amended from time to
time, and that a copy of the Stockholders Agreement may be obtained from the
Corporation upon request.
(f) Such Investor is not relying on any representation or warranty
made by the Placement Agents in connection with the transactions contemplated
hereby.
SECTION 6. Conditions to the Closing. The several obligations of each
--------- -------------------------
Investor to purchase and pay for Preferred Shares at the Closing are subject to
satisfaction of the following conditions, any of which may be waived by each
Investor, as to itself only:
-15-
6.1. Corporate Proceedings. All corporate and other proceedings to be taken
---------------------
and all waivers and consents, approvals, qualifications and/or registrations
required to be obtained or effected in connection with the execution, delivery
and performance of the transactions contemplated thereby, including, but not
limited to, the issuance, sale and delivery of the Preferred Shares and the
reservation of the Reserved Shares, shall have been taken, obtained or effected
(except for the filing of any notice subsequent to such Closing which may be
required under applicable federal and state securities or "blue sky" laws which,
if required, shall be filed on a timely basis as may be so required), and all
documents incident thereto shall be satisfactory in form and substance to the
Investor and to its counsel. The Investor shall have received all such originals
or certified or other copies of such documents as have been reasonably
requested.
6.2. No Action. No action or proceeding shall have been instituted before a
---------
court or other governmental body or by any governmental agency or public
authority to restrain or prohibit the transactions contemplated by this
Agreement or to obtain an amount of damages or other material relief in
connection with the execution of this Agreement or the consummation of the
transactions contemplated hereby; and no governmental agency shall have given
notice to any party hereto to the effect that consummation of the transactions
contemplated by this Agreement would constitute a violation of any law or that
it intends to commence proceedings to restrain consummation of such
transactions.
6.3. Filing of Certificate of Incorporation. The Certificate of
--------------------------------------
Incorporation shall have been filed with and accepted by the Secretary of State
of the State of Delaware, and a copy of the Certificate of Incorporation,
certified by the Secretary of State of the State of Delaware, shall have been
delivered to the Investor.
6.4. Stockholders Agreement. The Existing Stockholders Agreement (as
----------------------
defined in the Stockholders Agreement) shall have been amended and restated by
the parties thereto in accordance with its terms and the Stockholders Agreement
shall have been executed and delivered by the Corporation, the Investors and the
other stockholders party thereto. In addition, the Corporation and such parties
shall have complied with all of the terms and conditions of the Stockholders
Agreement, including, among other things, the placement of the legends required
to be placed on securities owned by such parties.
6.5. Certificates, Instruments and Documents. The Corporation and the
---------------------------------------
Investor shall have delivered the certificates and instruments referred to in
Section 3.4 hereof.
6.6. Opinion of Counsel. The Corporation shall have delivered to the
------------------
Investor an opinion of counsel dated the Closing Date in form and substance
reasonably satisfactory to the Investor, in the form attached hereto as
Exhibit C.
---------
SECTION 7. Post-Closing Covenants.
--------- ----------------------
7.1. Access to Records and Management. The Corporation shall afford to each
--------------------------------
Investor which, alone or together with its Affiliates, holds at least 10% of the
issued shares of Series E Preferred Stock (as of the date hereof, including the
Preferred Shares), or Common
-16-
Stock issued upon conversion of such Preferred Shares, and their authorized
representatives free and full access during normal business hours, upon
reasonable advance notice, to all of the books, records and properties of the
Corporation and to all executive officers of the Corporation, for any reasonable
business purpose whatsoever. Such Investors shall be entitled as often as is
reasonably necessary to consult with and advise management of the Corporation on
significant business issues, including management's proposed annual operating
plans, and management will meet with representatives of such Investors (the
"Representatives") at the Corporation's facilities at mutually agreeable times
for such consultation and advice, including to review progress in achieving said
plans. The Corporation shall give such Investors reasonable advance written
notice of any significant new initiatives or material changes to existing
operating plans and shall afford Investors adequate time to meet with management
to consult on such initiatives or changes prior to implementation. The
Corporation agrees to give due consideration to the advice given and any
proposals made by such Investors. Each Investor shall use reasonable efforts to
maintain the confidentiality of any confidential and proprietary information so
obtained by it; provided, however, that the foregoing shall in no way limit or
-------- -------
otherwise restrict the ability of any Investor or such Representatives to
disclose any such information concerning the Corporation which (i) was
previously known to be free of any obligation to keep confidential, (ii) has
become generally known to the public, provided that such public knowledge was
not the result of any act attributable to the Investor or its Representatives,
or (iii) is required by law and notice thereof (if practicable) is given to the
Corporation prior to such disclosure so it may seek to obtain a protective
order.
7.2. Financial Reports. The Corporation agrees to furnish each Investor
-----------------
which, alone or together with its Affiliates, holds at least 10% of the issued
shares of Series E Preferred Stock (as of the date hereof, including the
Preferred Shares) or Common Stock issued upon conversion of such Preferred
Shares, with the following:
(a) Quarterly Reports. As soon as available, but not later than 45
-----------------
days after the end of each quarterly accounting period, (x) an unaudited
consolidated financial report of the Corporation, prepared in accordance with
generally accepted accounting principles consistently applied, and which shall
include the following:
(i) a consolidated profit and loss statement for such quarterly
accounting period, together with a cumulative profit and loss
statement from the first day of the current year to the last day of
such quarterly accounting period;
(ii) a consolidated balance sheet as at the last day of such
quarterly accounting period;
(iii) a consolidated cash flow analysis for such quarterly
accounting period on a cumulative basis for the fiscal year to date;
(iv) a schedule showing all expenditures of a capital nature in
excess of $100,000 individually during such quarterly accounting
period; and
-17-
(v) a comparison between the actual figures for such quarterly
accounting period and the comparable figures for the prior year (if
any) for such quarterly accounting period, with an explanation of any
material differences between them;
certified by the chief executive officer and chief financial officer of the
Corporation as being prepared in accordance with GAAP (except that such
financial statements shall not include footnotes and shall be subject to normal
year-end audit adjustments, including, with respect to such quarterly accounting
period, the statements and comparisons referred to in Section 7.2(a)(x)(v)), and
(y) a report by management of the Corporation of the operating and financial
highlights of the Corporation for such quarterly accounting period which shall
include (A) a comparison between operating and financial results and the Budget
and (B) an analysis of the operations of the Corporation for the prior quarterly
accounting period.
(b) Annual Audit. As soon as available, but not later than 90 days
------------
after the end of each fiscal year of the Corporation, audited consolidated
financial statements of the Corporation, which shall include a consolidated
statement of cash flows and consolidated statement of operations for such fiscal
year and a consolidated balance sheet as at the last day thereof; each prepared
in accordance with generally accepted accounting principles, consistently
applied, and accompanied by the report of and any final management letter issued
by a firm of independent certified public accountants of recognized standing
selected by the Board of Directors of the Corporation. The Corporation shall
maintain a system of accounting sufficient to enable its independent certified
public accountants to render the report referred to in this Section 7.2(b).
(c) Subsidiaries. If for any period the Corporation shall have any
------------
subsidiary or subsidiaries whose accounts are consolidated with those of the
Corporation, then in respect of such period the financial statements delivered
pursuant to the foregoing Sections 7.2(a) and (b) shall be the consolidated
(and, in the case of the cash flow statement delivered pursuant to Section
7.2(b), consolidating if normally prepared by the Corporation) financial
statements of the Corporation and all such consolidated subsidiaries.
(d) Miscellaneous. Promptly upon becoming available:
-------------
(i) upon request, copies of all financial statements, reports,
press releases, notices, proxy statements and other documents sent by
the Corporation to its stockholders generally or released to the
public;
(ii) reports of the Board and committees thereof; and
(iii) upon request, copies of (A) all reports prepared for or
delivered to the management of the Corporation by its independent
public accountants and (B) all reports, material notices and other
material documents sent by the Corporation to its lenders.
(e) Notice of Certain Events. Written notice to the Investors
------------------------
promptly following its receipt of notice of the commencement of any action,
suit, claim, legal or
-18-
administrative or arbitration proceeding or investigation and notice of any
default, any of which could reasonably be expected, on the basis of current
economic conditions and other facts and circumstances known to the Corporation
at the time, to have a Material Adverse Effect. In making such determination,
the Corporation may rely on the advise of its counsel regarding the likelihood
and extent of an adverse decision in any litigation, administrative or
arbitration proceeding or investigation against the Corporation.
(f) Key Man Insurance; D&O. The Corporation shall maintain, with
----------------------
financially sound and reputable insurers, "key man" term life insurance on the
life of the CEO in the amount of $5,000,000, in form reasonably satisfactory to
TWCP. Such "key man" term life insurance policy shall be owned by the
Corporation and the Corporation shall be named as the payee of all benefits
thereunder. The Corporation shall cause to be maintained, provided the same is
available at reasonable cost, directors' and officers' liability insurance
covering all directors and officers of the Corporation and covering the
Non-Voting Observer providing coverage in an amount of at least $10 million.
(g) Disclosure of Investment. The Corporation agrees that it will
------------------------
not (i) except as may be required by law or required to be included in any
registration statement or other public filing filed by the Corporation, publicly
disclose or issue any press release with respect to the transactions
contemplated hereby or any of the terms thereof without the prior written
consent of the Investors who, together with their Affiliates, hold at least 10%
or more of the then outstanding Series E Preferred Stock (or shares of Common
Stock issued upon conversion thereof), which consent shall not be unreasonably
withheld, or (ii) use in advertising or publicity the name of any party hereto,
or any partner or employee of such party hereto or any of its respective
Affiliates, or any trade name, trademark, trade device, service ▇▇▇▇, symbol or
any abbreviation, contraction or simulation thereof owned by any party hereto or
any of its Affiliates, in any case without the prior written consent of such
party.
7.3. Qualified IPO. Notwithstanding Sections 7.1 and 7.2 above, the
-------------
rights of the Investors and the obligations of the Corporation under such
Sections, shall terminate upon the consummation of a firm commitment
underwritten public offering of the Corporation's Common Stock under the
Securities Act, which results in gross proceeds to the Corporation of not less
than Fifty Million Dollars ($50,000,000) at an offering price per share of not
less than $7.63 (as adjusted for stock splits, reverse splits, and similar
recapitalizations).
SECTION 8. Restriction on Transfer.
---------- -----------------------
(a) Preferred Shares held by an Investor and/or any Reserved
Shares issued upon conversion of Preferred Shares held by an Investor shall not
be sold, transferred, assigned, pledged, encumbered or otherwise disposed of
(each, a "Transfer") except upon the conditions specified in this Section 8,
which conditions are intended to ensure compliance with the provisions of the
Securities Act.
(b) Each certificate for shares of the capital stock of the
Corporation held by an Investor and each certificate for any
-19-
such securities issued to subsequent transferees of any such certificate shall
(unless otherwise permitted by the provisions of Sections 8(c) and 8(d)) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. ADDITIONALLY, THE TRANSFER OF THESE
SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN SECTION 8 OF
A STOCK PURCHASE AGREEMENT AMONG TELLIUM, INC. AND THE OTHER
PARTIES THERETO, AND NO TRANSFER OF THESE SECURITIES SHALL BE
VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED.
UPON THE FULFILLMENT OF CERTAIN SUCH CONDITIONS, THE SECRETARY OF
TELLIUM, INC. HAS AGREED TO DELIVER TO THE HOLDER HEREOF A NEW
CERTIFICATE, NOT BEARING THIS LEGEND, FOR THE SECURITIES
REPRESENTED HEREBY REGISTERED IN THE NAME OF THE HOLDER HEREOF.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF TELLIUM, INC.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER, VOTING PROVISIONS, AND OTHER
PROVISIONS SET FORTH IN AN AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT, AS AMENDED FROM TIME TO TIME. A COPY OF SUCH AGREEMENT
MAY BE OBTAINED FROM THE COMPANY UPON REQUEST"
(c) Each Investor agrees, prior to any Transfer of such shares, to
give written notice to the Corporation of such Investor's intention to effect
such Transfer and to comply in all other respects with the provisions of this
Section 8. Each such notice shall describe the manner and circumstances of the
proposed Transfer and shall be accompanied by the written opinion, addressed to
the Corporation, of counsel for the holder of such shares, stating that in the
opinion of such counsel (which opinion and counsel shall be reasonably
satisfactory to the Corporation) such proposed Transfer does not involve a
transaction requiring registration or qualification of such shares under the
Securities Act or the securities "blue sky" laws of any relevant state of the
United States; provided, however, that no such opinion of counsel shall be
-------- -------
necessary for a Transfer by an Investor to an Affiliate or by an Investor that
is a partnership to a liquidating trust for the benefit of its partners or to a
partner of such Investor, or a retired partner of such Investor who retires
after the date hereof, or the estate of any such partner or retired partner if
the transferee agrees in writing to be subject to the terms of this Section 8 to
the same extent as if such transferee were originally a signatory to this
Agreement. Such Investor shall thereupon be
-20-
entitled to Transfer such shares in accordance with the terms of the notice
delivered by it to the Corporation. Each certificate or other instrument
evidencing the securities issued upon the Transfer of any such shares (and each
certificate or other instrument evidencing any untransferred balance of such
shares) shall bear the legend set forth in Section 8(b) unless (x) in such
opinion of counsel registration of any future Transfer is not required by the
applicable provisions of the Securities Act or (y) the Corporation shall have
waived the requirement of such legends; provided, however, that such legend
-------- -------
shall not be required on any certificate or other instrument evidencing the
securities issued upon such Transfer in the event such Transfer shall be made in
compliance with the requirements of Rule 144 and the transferee is not an
affiliate of the Corporation. No Investor shall Transfer any shares until such
opinion of counsel has been given (unless waived by the Corporation or unless
such opinion is not required in accordance with the provisions of this Section
8(c)).
(d) Notwithstanding the foregoing provisions of this Section 8, the
restrictions imposed by this Section 8 upon the transferability of any shares of
the capital stock of the Corporation held by an Investor shall cease and
terminate when (i) any such shares are sold or otherwise disposed of pursuant to
an effective registration statement under the Securities Act or as otherwise
contemplated by Section 8(c) and, pursuant to Section 8(c), the securities so
transferred are not required to bear the legend set forth in Section 8(b) or
(ii) the holder of such shares has met the requirements for Transfer of such
shares pursuant to paragraph (k) of Rule 144. Whenever the restrictions imposed
by this Section 8 shall terminate, as herein provided, each Investor holding
shares as to which such restrictions have terminated shall be entitled to
receive from the Corporation, without expense, a new certificate not bearing the
restrictive legend set forth in Section 8(b) and not containing any other
reference to the restrictions imposed by this Section 8.
SECTION 9. Transfer Taxes. The Corporation agrees that it will pay, and
--------- --------------
will hold the Investors harmless from, any and all liability with respect to any
stamp, transfer or similar taxes which may be determined to be payable in
connection with the execution, delivery and performance of this Agreement, or
any modification, amendment or alteration of the terms or provisions of this
Agreement, and that it will similarly pay and hold the Investors harmless from
all issue taxes in respect of the issuance of the Reserved Shares to the
Investors.
SECTION 10. Exchanges; Lost, Stolen or Mutilated Certificates. Upon
---------- -------------------------------------------------
surrender by any Investor to the Corporation of any certificate representing
Preferred Shares or Reserved Shares, the Corporation at its expense will issue
in exchange therefor, and deliver to such Investor, a new certificate or
certificates representing such shares, in such denominations as may be requested
by such Investor. Upon receipt of evidence satisfactory to the Corporation of
the loss, theft, destruction or mutilation of any certificate representing any
Preferred Shares or Reserved Shares purchased or acquired by an Investor upon
conversion of the Preferred Shares, and in case of any such loss, theft or
destruction, upon delivery of any indemnity agreement satisfactory to the
Corporation, or in case of any such mutilation, upon surrender and cancellation
of such certificate, the Corporation at its expense will issue and deliver to
such Investor a new certificate for such shares of like tenor, in lieu of such
lost, stolen or mutilated certificate.
-21-
SECTION 11. Survival of Representations, Warranties and Agreements, Etc.
---------- -----------------------------------------------------------
All representations and warranties hereunder shall survive the Closing and
expire on the date that is two years after the Closing Date, and all agreements
contained herein shall survive indefinitely until, by their respective terms,
they are no longer operative.
SECTION 12. Indemnification.
----------- ---------------
(a) The Corporation shall defend, indemnify and hold each Investor
and its Affiliates harmless from all damages, costs (including reasonable
attorney's fees), liabilities and penalties (collectively, "Losses") incurred by
or awarded against such Investor or its Affiliates arising out of or incident to
any breach of the representations and warranties made by the Corporation in or
pursuant to Section 4 of this Agreement, but only to the extent that the Losses
incurred by each such Investor in connection with all such breaches exceed
$250,000 in the aggregate (in which case the Corporation's liability shall
extend to all such Losses); provided, however, that the Corporation's liability
to any Investor for Losses which are limited to the diminution in the value of
the Preferred Shares purchased by the Investor hereunder shall in no event
exceed the product of $30.00 multiplied by number of Preferred Shares purchased
by such Investor hereunder; provided further that the Losses of affiliated
Investors shall be aggregated for purposes of the $250,000 threshold.
(b) Each Investor shall severally defend, indemnify and hold the
Corporation and its Affiliates harmless from all damages, costs (including
reasonable attorney's fees), liabilities and penalties incurred by or awarded
against the Corporation or its Affiliates arising out of or incident to any
breach of the representations and warranties made by such Investor in or
pursuant to Section 5 of this Agreement.
SECTION 13. Remedies. In case any one or more of the covenants and/or
---------- --------
agreements set forth in this Agreement shall have been breached by a party
hereto, the other parties may proceed to protect and enforce its or their rights
either by suit in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Agreement.
SECTION 14. Successors and Assigns. This Agreement shall bind and inure to
---------- ----------------------
the benefit of the Corporation, the Investors and the respective successors and
assigns of the Corporation and the Investors. The rights and duties of an
Investor as set forth herein may not be assigned, in whole or in part, by the
Investor without the prior written consent of the Corporation; provided,
however, that an Investor may assign its rights and duties hereunder to its
Affiliate without the consent of the Corporation, provided that any such
assignment shall not release such Investor from any of its obligations
hereunder, including, without limitation, pursuant to Section 12(b). Any
transferee (other than an Investor) to whom rights under Section 7.1 or 7.2 are
transferred shall, as a condition to such transfer, deliver to the Corporation a
written instrument by which such transferee identifies itself, gives the
Corporation notice of the transfer of such rights, identifies any securities of
the Corporation owned or acquired by it and agrees to be bound by the
obligations imposed hereunder and under the Stockholders Agreement upon
Stockholders (as defined therein) to the same extent as if such transferee were
an Investor hereunder and a Stockholder thereunder. A transferee to whom rights
are transferred pursuant to
-22-
this Section 14 may not again transfer such rights to any other person or
entity, other than as provided in this Section 14.
SECTION 15. Entire Agreement. Subject to the following sentence, this
---------- ----------------
Agreement and the other writings referred to herein or delivered pursuant hereto
which form a part hereof contain the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
SECTION 16. Notices. All notices, requests, consents and other
---------- -------
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(a) if to the Corporation, to:
Tellium, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) if to the Investors, to their respective addresses set forth on
Schedule I hereto.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 17. Changes. The terms and provisions of this Agreement may not be
---------- -------
modified or amended, nor may any of the provisions hereof be waived, temporarily
or permanently, except pursuant to a written instrument executed by the
Corporation and Investors, if such parties are holding at least 66-2/3% of the
Preferred Shares (or shares issued upon conversion thereof) then outstanding and
then held by the Investors.
-23-
SECTION 18. Counterparts. This Agreement may be executed in any
---------- ------------
number of counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute but
one agreement.
SECTION 19. Headings. The headings of the sections of this Agreement
---------- --------
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
SECTION 20. Nouns and Pronouns. Whenever the context may require,
---------- ------------------
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 21. Governing Law. This Agreement shall be governed by and
---------- -------------
construed in accordance with the internal laws of the State of Delaware, without
regard to principles of conflict of laws.
SECTION 22. Expenses. The Corporation shall bear its own legal and
---------- --------
other costs and expenses with respect to the transactions contemplated hereby
and shall pay the reasonable fees and expenses of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP,
as special counsel to the Investors, at Closing.
(BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK)
-24-
[Tellium, Inc. Series E Stock Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the day and year first written above.
TELLIUM, INC.
By: /s/
-------------------------------
Name:
Title:
-25-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
ACAPPELLA VENTURES, LLC
By: /s/
------------------------------
Name:
Title:
-26-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
AIM EQUITY FUNDS, on behalf
of its portfolio, AIM EMERGING GROWTH FUND
By: /s/
------------------------------
Name:
Title:
AIM GROWTH SERIES, on behalf of
its portfolio, AIM SMALL CAP GROWTH FUND
By: /s/
------------------------------
Name:
Title:
AIM SPECIAL OPPORTUNITIES, on behalf
of its portfolio, AIM SMALL CAP OPPORTUNITIES FUND
By: /s/
------------------------------
Name:
Title:
AIM SPECIAL OPPORTUNITIES, on behalf
of its portfolio, AIM MID CAP OPPORTUNITIES FUND
By: /s/
------------------------------
Name:
Title:
AIM SPECIAL OPPORTUNITIES, on behalf
of its portfolio, AIM LARGE CAP OPPORTUNITIES FUND
By: /s/
------------------------------
Name:
Title
-27-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
ALLIANCE TECHNOLOGY PARTNERS, L.P.
By: Alliance Capital Global Derivatives Corporation,
General Partner
By: /s/
------------------------------
Secretary
ACM TECHNOLOGY HEDGE FUND
By: Alliance Capital Management L.P.,
its Investment Adviser
By: /s/
------------------------------
Authorized Officer
ACM STRATEGIC INVESTMENTS - TECHNOLOGY PORTFOLIO
By: Alliance Capital Management L.P.,
its Investment Adviser
By: /s/
------------------------------
Authorized Person
-28-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
WORLD TECHNOLOGIES PORTFOLIO,
a series of WORLD TRUST
By: /s/
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, World Trust
EQUITY PORTFOLIO
a series of IDS LIFE SERIES FUND, INC.
By: /s/
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, IDS Life Series Fund, Inc.
AXP STRATEGY AGGRESSIVE FUND
a series of AXP STRATEGY SERIES, INC.
By: /s/
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, AXP Strategy Series, Inc.
AXP VARIABLE PORTFOLIO - STRATEGY AGGRESSIVE FUND,
a series of AXP VARIABLE PORTFOLIO
INVESTMENT SERIES, INC.
By: /s/
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, AXP Variable
Portfolio Investment Series, Inc.
-29-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
AMERINDO TECHNOLOGY GROWTH FUND II, INC.
By: /s/
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
AMERINDO INTERNET FUND PLC
By: /s/
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
eMERGING TECHNOLOGY PORTFOLIO
By: /s/
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-fact
-30-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
BROADBAND HOLDINGS (BVI) LIMITED
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
-31-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
CORNING INCORPORATED
By: /s/
-----------------------------------------
Name:
Title:
-32-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
FIDELITY SELECT PORTFOLIOS:
COMPUTER PORTFOLIO
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY ADVISOR SERIES VII:
FIDELITY ADVISOR TECHNOLOGY FUND
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY SMALL CAP AMERICA FUND
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY FOCUS TECHNOLOGY FUND
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY MT. ▇▇▇▇▇▇ STREET TRUST:
FIDELITY AGGRESSIVE GROWTH FUND
By: /s/
-----------------------------------------
Name:
Title:
-33-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
FIDELITY HASTINGS STREET TRUST:
FIDELITY FUND
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY ADVISOR SERIES I:
FIDELITY ADVISOR VALUE STRATEGIES FUND
By: /s/
-----------------------------------------
Name:
Title:
FIDELITY SELECT PORTFOLIOS:
TECHNOLOGY PORTFOLIO
By: /s/
-----------------------------------------
Name:
Title:
PENSION RESERVES INVESTMENT MANAGEMENT BOARD
BY: FIDELITY MANAGEMENT TRUST COMPANY,
AS INVESTMENT MANAGER, UNDER POWER OF ATTORNEY
By: /s/
-----------------------------------------
Name:
Title:
-34-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/
-----------------------------------------
Name:
Title:
-35-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
INVESCO TECHNOLOGY FUND
By: /s/
-----------------------------------------
Name:
Title:
INVESCO TELECOMMUNICATIONS FUND
By: /s/
-----------------------------------------
Name:
Title:
-36-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
-37-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
MUNDER NETNET FUND, a
series of The Munder Funds, Inc.
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
-38-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
▇▇▇▇▇▇▇▇▇▇▇ VARIABLE ACCOUNT FUNDS
FOR THE ACCOUNT OF ▇▇▇▇▇▇▇▇▇▇▇
AGGRESSIVE GROWTH FUND
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇ MIDCAP FUND
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇ EMERGING TECHNOLOGIES FUND
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇ ENTERPRISE FUND
By: /s/
-----------------------------------------
Name:
Title:
-39-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
PALANTIR PARTNERS LP
By: /s/
-----------------------------------------
Name:
Title:
PALANTIR INVESTMENTS LDC
By: /s/
-----------------------------------------
Name:
Title:
-40-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
PEQUOT TECHNOLOGY PERENNIAL FUND, L.P.
By: Pequot Capital Management, Inc.
its Investment Manager
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: General Counsel
PEQUOT ENDOWMENT FUND, L.P.
By: Pequot Capital Management, Inc.
its Investment Manager
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: General Counsel
-41-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
▇▇▇▇▇▇▇▇▇ TECHNOLOGY PARTNERS, LP
By: /s/
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
-42-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
THE PAISLEY FUND, L.P.
By: /s/
-----------------------------------------
Name:
Title:
THE PAISLEY PACIFIC FUND, L.P.
By: /s/
-----------------------------------------
Name:
Title:
-43-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
TAILWIND INVESTMENT PARTNERS (QP), L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: /s/
-----------------------------------------
Name:
Title:
TAILWIND INVESTMENT PARTNERS (AI), L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: /s/
-----------------------------------------
Name:
Title:
TAILWIND INVESTMENT PARTNERS INTERNATIONAL, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: /s/
-----------------------------------------
Name:
Title:
TAILWIND INVESTMENT PARTNERS EMPLOYEE FUND, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS
By: /s/
-----------------------------------------
Name:
Title:
-44-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
▇▇▇ ▇▇▇▇▇▇▇ FUNDS
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇ CAPITAL PARTNERS, L.P.
By: /s/
-----------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇ CROSSOVER FUND, LP
By: /s/
-----------------------------------------
Name:
Title:
-45-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
QUISSET PARTNERS, L.P.
by Wellington Management Company, LLP,
Its Investment Advisor
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
QUISSET INVESTORS (BERMUDA) L.P.
by Wellington Management Company, LLP,
Its Investment Advisor
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
RAYTHEON MASTER PENSION TRUST,
by Wellington Management Company, LLP,
Its Investment Advisor
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-46-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
WIT SOUNDVIEW PHOTONICS FUND 2000, LLC
By: /s/
-----------------------------------------
Name:
Title:
WIT SOUNDVIEW FUND 2000, LLC
By: /s/
-----------------------------------------
Name:
Title:
-47-
Counterpart Signature Page to
Stock Purchase Agreement dated September __, 2000
by and among Tellium, Inc. and the investors named therein
SUAIMHNEAS LLC
By: /s/
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
-48-