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EXHIBIT 4.5
ACCELGRAPHICS, INC.
CONVERTIBLE NOTE
PURCHASE AGREEMENT
December 22, 1994
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TABLE OF CONTENTS
Page
1. Purchase and Sale of Promissory Note.......................................... 1
1.1 Sale and Issuance of Subordinated Convertible Promissory Note....... 1
2. Representations and Warranties of the Company................................. 1
2.1 Organization, Good Standing and Qualification........................ 1
2.2 Capitalization....................................................... 2
2.3 Subsidiaries......................................................... 2
2.4 Authorization........................................................ 2
2.5 Valid Issuance of Securities......................................... 3
2.6 Governmental Consents................................................ 3
2.7 Litigation........................................................... 3
2.8 Patents and Trademarks............................................... 3
2.9 Compliance with Other Instruments.................................... 5
2.10 Agreements; Action................................................... 5
2.11 Disclosure........................................................... 6
2.12 Rights of Registration and First Offer............................... 6
2.13 Corporate Documents.................................................. 6
2.14 Title to Property and Assets......................................... 6
2.15 No Financial Statements.............................................. 6
2.16 Employee Benefit Plans............................................... 6
2.17 Tax Returns and Payments............................................. 7
2.18 Insurance............................................................ 7
2.19 Labor Agreements and Actions......................................... 7
3. Representations and Warranties of the Purchaser............................... 7
3.1 Authorization........................................................ 7
3.2 Purchase Entirely for Own Account.................................... 8
3.3 Disclosure of Information............................................ 8
3.4 Investment Experience................................................ 8
3.5 Restricted Securities................................................ 8
3.6 Further Limitations on Disposition................................... 9
3.7 Legends.............................................................. 9
3.8 Accredited Investor.................................................. 10
4. California Commissioner of Corporations....................................... 10
4.1 Corporate Securities Law............................................. 10
5. Conditions of Purchaser' Obligations at Closing............................... 10
5.1 Representations and Warranties....................................... 10
5.2 Performance.......................................................... 10
5.3 Compliance Certificate............................................... 10
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5.4 Qualifications....................................................... 10
5.5 Proceedings and Documents............................................ 10
5.6 Opinion of Company Counsel........................................... 11
5.7 Rights Agreement..................................................... 11
5.8 Asset Purchase Agreement............................................. 11
5.9 Board of Directors................................................... 11
6. Conditions of the Company's Obligations at Closing............................ 11
6.1 Representations and Warranties....................................... 11
6.2 California Qualification............................................. 11
6.3 Asset Purchase Agreement............................................. 11
7. Miscellaneous................................................................. 11
7.1 Survival of Warranties............................................... 11
7.2 Transfer; Successors and Assigns..................................... 12
7.3 Governing Law........................................................ 12
7.4 Counterparts......................................................... 12
7.5 Titles and Subtitles................................................. 12
7.6 Notices.............................................................. 12
7.7 Finder's Fee......................................................... 13
7.8 Expenses............................................................. 13
7.9 Amendments and Waivers............................................... 13
7.10 Severability......................................................... 13
7.11 Entire Agreement..................................................... 14
EXHIBITS TO PURCHASE AGREEMENT
Exhibit A - Form of Amended and Restated Articles of Incorporation
Exhibit B - Form of Subordinated Convertible Promissory Note
Exhibit C - Schedule of Exceptions to Representations and Warranties
Exhibit D - Form of Rights Agreement
Exhibit E - Form of Asset Acquisition Agreement
Exhibit F - Form of Legal Opinion of Venture Law Group
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CONVERTIBLE NOTE PURCHASE AGREEMENT
THIS CONVERTIBLE NOTE PURCHASE AGREEMENT (the "AGREEMENT") is made and
is effective as of December 22, 1994 by and between AccelGraphics, Inc., a
California corporation (the "COMPANY") and Kubota Corporation, a Japanese
corporation (the "PURCHASER").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Promissory Note.
1.1 Sale and Issuance of Subordinated Convertible Promissory
Note.
(a) The Company shall adopt and file with the
Secretary of State of the State of California on or before the Closing (as
defined below) the Amended and Restated Articles of Incorporation in the form
attached hereto as Exhibit A (the "ARTICLES").
(b) Subject to the terms and conditions of this
Agreement, the Purchaser agrees to purchase at the Closing and the Company
agrees to sell and issue to the Purchaser at the Closing a subordinated
convertible promissory note in substantially the form attached hereto as Exhibit
B, carrying an initial aggregate principal amount of $3,300,000 (the "NOTE").
(c) The purchase and sale of the Note shall take
place at the offices of Venture Law Group, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, at 10:00 a.m., on December 22, 1994, or at such other time and place
as the Company and the Purchaser mutually agree upon, orally or in writing
(which time and place are designated as the "CLOSING"). At the Closing, the
Company shall deliver to the Purchaser an executed Note against delivery to the
Company by the Purchaser of the aggregate purchase price therefor ($3,300,000),
by wire transfer to the Company's designated bank account.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that, except as set forth on a Schedule
of Exceptions attached hereto as Exhibit C, specifically identifying the
relevant subsection hereof, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California and has all requisite corporate power and
authority to carry on its busi ness as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
2.2 Capitalization. The authorized capital of the Company
consists, or will consist, immediately prior to the Closing, of:
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(i) Preferred Stock. 8,000,000 shares of Preferred
Stock, of which 3,700,000 shares have been designated Series A Preferred Stock,
none of which are issued and outstanding prior to the Closing. The rights,
privileges and preferences of the Series A Preferred Stock are as stated in the
Articles.
(ii) Common Stock. 12,000,000 shares of Common Stock,
1,213,750 shares of which are issued and outstanding immediately prior to the
Closing.
(iii) Except for the conversion privileges of the
Series A Preferred Stock, the Note or as stated below, there are no outstanding
options, warrants, rights (including conversion or preemptive rights) or
agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock. The Company has reserved 1,336,250
shares of Common Stock for issuance, at the discretion of the Board of
Directors, to officers, directors, employees and consultants pursuant to equity
incentive plans adopted by the Board of Directors and approved by the Company's
shareholders.
2.3 Subsidiaries. The Company does not currently own or
control, directly or indirectly, any interest in any other corporation,
association, or other business entity.
2.4 Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the Rights Agreement in
the form attached hereto as Exhibit D (the "RIGHTS AGREEMENT"), and the Asset
Purchase Agreement in the form attached hereto as Exhibit E (the "ASSET PURCHASE
AGREEMENT" and collectively with the Agreement and the Rights Agreement, the
"AGREEMENTS"), the performance of all obligations of the Company hereunder and
thereunder and the authorization, issuance and delivery of the Note, Series A
Preferred Stock issuable upon conversion of the Note and the Common Stock
issuable upon conversion of such Preferred Stock (the Note, the Series A
Preferred Stock issuable upon conversion thereof, the Common Stock issuable upon
conversion of such Preferred Stock and any other securities issuable upon
conversion of the Note or any securities issuable upon conversion of such
securities are collectively referred to as the "SECURITIES") has been taken or
will be taken prior to the Closing (or has been or will be taken prior to
conversion in the case of the Note), and the Agreements, when executed and
delivered by the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms
except (1) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and other laws of general application
affecting enforcement of creditor's rights generally, as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, or (ii) to the extent the indemnification provisions
contained in the Rights Agreement may be limited by applicable federal or state
securities laws.
2.5 Valid Issuance of Securities. The Note that is being
issued to the Purchaser hereunder, when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly issued and free of restrictions on transfer other than restrictions on
transfer under this Agreement, the terms of the Note, the Rights
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Agreement and applicable state and federal securities laws. Based in part upon
the representations of the Purchaser in this Agreement and subject to the
provisions of Section 2.6 below, the Note will be issued in compliance with all
applicable federal and state securities laws. The Series A Preferred Stock
issuable upon conversion of the Note and the Common Stock issuable upon
conversion of such Preferred Stock has been duly and validly reserved for
issuance, and upon issuance in accordance with the terms of the Note and the
Articles, shall be duly and validly issued, fully paid and nonassessable and
free of restrictions on transfer other than restrictions on transfer under this
Agreement, the Note, the Rights Agreement and applicable state and federal
securities laws and will be issued in compliance with all applicable federal and
state securities laws.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for the filings pursuant to Section
25102(f) of the California Corporate Securities Law of 1968, as amended, and the
rules thereunder.
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Company that questions
the validity of the Agreements or the right of the Company to enter into them,
or to consummate the transactions contemplated hereby or thereby, or that might
result, either individually or in the aggregate, in any material adverse changes
in the assets, condition or affairs of the Company, financially or otherwise, or
any change in the current equity ownership of the Company, nor is the Company
aware that there is any basis for the foregoing. The Company is not a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
2.8 Patents and Trademarks. Immediately following the Closing,
the Company will have sufficient title and ownership of all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for its business as now conducted and as proposed
to be conducted without any conflict with or infringement of the rights of
others. There are no outstanding options, licenses, or agreements of any kind
relating to the foregoing, nor is the Company bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity. The
Company has not received any communications alleging that the Company has
violated or, by conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity.
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2.9 Compliance with Other Instruments.
(a) The Company is not in violation or default of any
provisions of its Articles or Bylaws or of any instrument, judgment, order,
writ, decree or contract to which it is a party or by which it is bound or, to
its knowledge, of any provision of federal or state statute, rule or regulation
applicable to the Company. The execution, delivery and performance of the
Agreements and the consummation of the transactions contemplated hereby or
thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
(b) The Company has avoided every condition, and has
not performed any act, the occurrence of which would result in the Company's
loss of any right granted under any license, distribution or other agreement.
2.10 Agreements; Action.
(a) There are no agreements, understandings or
proposed trans actions between the Company and any of its officers, directors,
affiliates, or any affiliate thereof.
(b) Except for agreements explicitly contemplated by
the Agreements, there are no agreements, understandings, instruments, contracts
or proposed transactions to which the Company is a party or by which it is bound
that involve (i) obligations (contingent or otherwise) of, or payments to the
Company in excess of, $10,000, or (ii) the license of any patent, copyright,
trade secret or other proprietary right to or from the Company.
(c) The Company has not (i) declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock, (ii) incurred any indebtedness for money
borrowed or incurred any other liabilities individually in excess of $10,000 or
in excess of $50,000 in the aggregate, (iii) made any loans or advances to any
person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than the
sale of its inventory in the ordinary course of business.
(d) The Company is not a party to and is not bound by
any contract, agreement or instrument, or subject to any restriction under its
Articles or Bylaws, that adversely affects its business as now conducted or as
proposed to be conducted, its properties or its financial condition.
(e) The Company has not engaged in the past three (3)
months in any discussion (i) with any representative of any corporation or
corporations regarding the merger of the Company with or into any such
corporation or corporations, (ii) with any corporation, partnership, association
or other business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company or a
transaction or series of
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related transactions in which more than fifty percent (50%) of the voting power
of the Company is disposed of, or (iii) regarding any other form of liquidation,
dissolution or winding up of the Company.
2.11 Disclosure. The Company has fully provided the Purchaser
with all the information which the Purchaser has requested for deciding whether
to acquire the Securities and all information which the Company believes is
reasonably necessary to enable such party to make such decision. No
representation or warranty of the Company contained in this Agreement, the
Exhibits attached hereto or any certificate furnished or to be furnished to the
Purchaser at the Closing (when read together) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made.
2.12 Rights of Registration and First Offer. Except as
contemplated herein, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity. At the
Closing, the Company will enter into the Rights Agreement between the Company
and the Purchaser.
2.13 Corporate Documents. The Articles and Bylaws of the
Company are in the form provided to counsel for the Purchaser.
2.14 Title to Property and Assets. The Company owns its
property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens which arise in the ordinary
course of business and do not materially impair the Company's ownership or use
of such property or assets. With respect to the property and assets it leases,
the Company is in compliance with such leases and, to the best of its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances.
2.15 No Financial Statements. The Company has not prepared any
balance sheet, income statement, statement of operations, statement of changes
in financial position and shareholders' equity or other financial statement. The
Company has no material assets other than its rights under this Agreement or as
contemplated hereby. The Company has not engaged in any business, generated any
revenues, entered into or become bound by any contracts, agreements or
commitments of any kind (other than this Agreement and the commitments expressly
provided for in this Agreement), in any case involving obligations of the
Company in excess of $50,000 or any licenses or agreements regarding the trade
secrets, copyrights, patents, technology or intellectual property owned by the
Company or any third party.
2.16 Employee Benefit Plans. The Company does not have any
Employee Benefit Plan as defined in the Employee Retirement Income Security Act
of 1974.
2.17 Tax Returns and Payments. The Company has filed all tax
returns and reports as required by law. These returns and reports are true and
correct in all material respects. The Company has paid all taxes and other
assessments due.
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2.18 Insurance. The Company has in full force and effect fire
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
2.19 Labor Agreements and Actions. The Company is not bound by
or subject to (and none of its assets or properties is bound by or subject to)
any written or oral, express or implied, contract, commitment or arrangement
with any labor union, and no labor union has requested or, to the knowledge of
the Company, has sought to represent any of the employees, representatives or
agents of the Company. There is no strike or other labor dispute involving the
Company pending, or to the knowledge of the Company threatened, which could have
a material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company (as such business is presently
conducted and as it is proposed to be conducted), nor is the Company aware of
any labor organization activity involving its employees. The Company is not
aware that any officer or key employee, or that any group of key employees,
intends to terminate their employment with the Company, nor does the Company
have a present intention to terminate the employment of any of the foregoing.
The employment of each officer and employee of the Company is terminable at the
will of the Company. To the best of its knowledge, the Company has complied in
all material respects with all applicable state and federal equal employment
opportunity laws and with other laws related to employment.
2.21 Permits. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company and believes that it can obtain, without undue burden or expense, any
similar authority for the conduct of its business as planned to be conducted.
The Company is not in default in any material respect under any of such
franchises, permits, licenses or other similar authority.
3. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company that:
3.1 Authorization.
(a) This Agreement constitutes its valid and legally
binding obligation, enforceable against the Purchaser in accordance with its
terms.
(b) That all corporate action on the part of the
Purchaser, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the performance of
all obligations of the Purchaser hereunder has been taken or will be taken prior
to the Closing. The Purchaser further represents that the execution, delivery
and performance of this Agreement and the other agreements contemplated hereby
will not result in any violation of, be in conflict with or constitute a default
under, any provisions of its charter documents or of any instrument, judgment,
order, writ, decree or contract to which the Purchaser is a party or by which it
is bound or, to the Purchaser's knowledge, of any provision of any federal or
state statute, rule or regulation applicable to the Purchaser.
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3.2 Purchase Entirely for Own Account. This Agreement is made
with the Purchaser in reliance upon the Purchaser's representation to the
Company, which by the Purchaser's execution of this Agreement the Purchaser
hereby confirms, that the Securities to be acquired by the Purchaser will be
acquired for investment for the Purchaser's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Purchaser further represents that the Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Securities. The Purchaser represents that it
has full power and authority to enter into this Agreement.
3.3 Disclosure of Information. The Purchaser believes it has
received all the information it considers necessary or appropriate for deciding
whether to acquire the Securities. The Purchaser further represents that it has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Securities. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Purchaser to
rely thereon.
3.4 Investment Experience. The Purchaser has substantial
experience in evaluating and investing in private placement transactions so that
Purchaser is capable of evaluating the merits and risks of the Purchaser's
investment in the Company. The Purchaser, by reason of its business or financial
experience or the business or financial experience of its professional advisors
who are unaffiliated with and who are not compensated by the Company or any
affiliate or selling agent of the Company, directly or indirectly, has the
capacity to protect its own interests in connection with the purchase of the
Securities hereunder.
3.5 Restricted Securities. The Purchaser understands that the
Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without registration under
the Securities Act of 1933, as amended only in certain limited circumstances. In
this connection, the Purchaser represents that it is familiar with SEC Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the Securities Act.
3.6 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, the Purchaser further agrees not
to make any disposition of all or any portion of the Securities unless and
until:
(a) There is then in effect a Registration Statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such Registration Statement; or
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(b) (i) The Purchaser shall have notified the Company
of the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, the Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration under the Securities Act. It is
agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a)
and (b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by the Purchaser to a constituent stockholder or
constituent partner (including any constituent of a constituent) of the
Purchaser, if the transferee or transferees agree in writing to be subject to
the terms hereof to the same extent as if they were the Purchaser hereunder.
3.7 Legends. The Purchaser understands that the Securities,
and any securities issued in respect thereof or exchange therefor, may bear one
or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT."
(b) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations.
(c) Any legend required by the Blue Sky laws of any
other state to the extent such laws are applicable to the shares represented by
the certificate so legended.
3.8 Accredited Investor.. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the Act.
4. California Commissioner of Corporations.
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT
IS THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA, THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
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EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED UNLESS THE SALE IS
SO EXEMPT.
5. Conditions of Purchaser's Obligations at Closing. The obligations of
the Purchaser to the Company under this Agreement are subject to the
fulfillment, on or before each Closing, of each of the following conditions:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing.
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. The President of the Company shall
deliver to the Purchaser at the Closing a certificate certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.4 Qualifications. The Commissioner of Corporations of the
State of California shall have issued a permit qualifying the offer and sale of
the Securities to the Purchaser pursuant to this Agreement, or such offer and
sale shall be exempt from such qualification under the California Corporate
Securities Law of 1968, as amended.
5.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Purchaser, and they shall have received all such counterpart
original and certified or other copies of such documents as they may reasonably
request.
5.6 Opinion of Company Counsel. The Purchaser shall have
received from Venture Law Group, counsel for the Company, an opinion, dated as
of the Closing, in substantially the form of Exhibit F.
5.7 Rights Agreement. The Company and the Purchaser shall have
executed and delivered the Rights Agreement.
5.8 Asset Purchase Agreement. The Company and Kubota Graphics
Corporation shall have executed and delivered the Asset Purchase Agreement and
all conditions to closing in such Asset Purchase Agreement shall have been
satisfied or waived.
5.9 Board of Directors. The Board of Directors of the Company
as of the Closing shall be comprised of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, and a
designee of the Purchaser, with two vacancies.
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6. Conditions of the Company's Obligations at Closing. The obligations
of the Company to the Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions:
6.1 Representations and Warranties. The representations and
warranties of the Purchaser contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
6.2 California Qualification. The Commissioner of Corporations
of the State of California shall have issued a permit qualifying the offer and
sale to the Purchaser of the Securities or such offer and sale shall be exempt
from such qualification under the California Corporate Securities Law of 1968,
as amended.
6.3 Asset Purchase Agreement. The Company and Kubota Graphics
Corporation shall have executed and delivered the Asset Purchase Agreement and
all conditions to closing in such Asset Purchase Agreement shall have been
satisfied or waived.
7. Miscellaneous.
7.1 Survival of Warranties. The warranties, representations
and covenants of the Company and the Purchaser contained in or made pursuant to
this Agreement shall survive for a period of one year the execution and delivery
of this Agreement and the Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the
Purchaser or the Company.
7.2 Transfer; Successors and Assigns. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
7.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California in the United States of
America as applied to agreements among California residents entered into and to
be performed entirely within California.
7.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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7.6 Notices.
(a) All notices, requests, demands and other
communications under this Agreement or in connection herewith shall be given to
or made:
If to the Purchaser, to: Kubota Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Manager
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: AccelGraphics, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to: Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) All notices, requests, demands and other
communications given or made in accordance with the provisions of this Agreement
shall be in writing, and shall be sent by airmail, return receipt requested, or
by telex or telecopy (facsimile) with confirmation of receipt, and shall be
deemed to be given or made when receipt is so confirmed.
(c) Any party may, by written notice to the other,
alter its address or respondent, and such notice shall be considered to have
been given twenty (20) days after the airmailing, or one (1) day after the
telexing or telecopying thereof.
7.7 Finder's Fee. Each party represents that it neither is nor
will be obligated for any finder's fee or commission in connection with this
transaction. The Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Purchaser or any of its officers, employees,
or representatives is responsible, except as set forth above.
The Company agrees to indemnify and hold harmless the
Purchaser from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and
-11-
15
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is responsible.
7.8 Expenses. Each of the Company and the Purchaser shall bear
their own expenses incurred with respect to this Agreement and the transactions
contemplated hereby. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
7.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each transferee of any Securities, each future holder of all such
Securities, and the Company.
7.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
7.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements existing between the parties
hereto are expressly canceled.
IN WITNESS WHEREOF, the parties have executed this Convertible Note
Purchase Agreement as of the date first above written.
COMPANY: PURCHASER:
ACCELGRAPHICS, INC. KUBOTA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Title: Executive Managing Director
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▇▇
▇▇▇▇▇▇▇ ▇,▇,▇,▇ & F
refer to Tab 5, 10, 11, 3 & 14
17
EXHIBIT C
SCHEDULE OF EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Set forth below are exceptions to the representations and warranties of
the Company made in Section 2 of the Convertible Note Purchase Agreement (the
"AGREEMENT") dated as of December 22, 1994. All disclosures and exceptions are
intended to modify all of the Company's representations and warranties, and the
Section headings used below are for convenience only. Capitalized terms have the
same meanings ascribed to them in the Agreement, unless otherwise specified.
1. Section 2.2(iii) - Capitalization. The Company's directors and
shareholders have authorized the reservation of up to 1,336,250 shares of Common
Stock for issuance to employees, officers, directors and consultants pursuant to
its 1994 Stock Plan (the "PLAN"). The Company intends to file a permit
application with the Department of Corporations of California for a permit
authorizing the issuance of 1,336,250 shares of Common Stock under the Plan.
2. Section 2.8. The Company is taking title to its patents, copyrights,
trade secrets and all other intangible assets and intellectual property rights
pursuant to and subject to the Asset Acquisition Agreement in which Kubota
Graphics Corporation has not given the Company any representation and warranty
regarding the quality of the title, rights and interest of any of the Purchased
Assets (as defined in the Asset Purchase Agreement) that the Company is
acquiring. Accordingly, the representation and warranty contained in Section 7.8
of the Agreement is made only based on the Company's knowledge.
3. Section 2.10(a) - Agreements. The Company has entered into Founder's
Stock Purchase Agreement's with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, member of the Company's Board
of Directors and President of the Company, ▇▇▇▇▇ ▇. ▇▇▇▇, member of the
Company's Board of Directors and Chief Financial Officer of the Company, and
▇▇▇▇ ▇▇▇▇▇▇▇▇, the Company's Vice President of Marketing, providing for the sale
of the Company's Common Stock to such persons. Under the terms of each
agreement, the Company has retained a right of first refusal to repurchase the
stock should the founder attempt to sell such stock to another party.
Furthermore, each Agreement contains a provision that the Company shall be
entitled to repurchase the unvested portion of such founder's stock should the
founder's employment or consulting relationship with the Company be terminated.
Copies of the agreements have been provided to counsel for the Purchasers.
4. Section 2.14 - Title to Property and Assets. Reference is made to
the exception set forth in Section 2.8 above regarding the acquisition of the
Company's assets pursuant to the Asset Acquisition Agreement. Accordingly, the
representation and warranty contained in Section 2.14 of the Agreement is made
only based on the Company's knowledge.
5. Section 2.18 - Insurance. The Company has not yet retained a fire
and casualty insurance policy. Promptly following Closing, the Company intends
to obtain such a policy with extended coverage, sufficient in amount (subject to
deductibles) to allow it to replace its properties that might be damaged or
destroyed.
C-1