EXHIBIT 1
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
XIRCOM, INC.
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
This Common Stock and Warrant Purchase Agreement (this
"Agreement") is made and entered into as of January 13, 1997, by
and between Xircom, Inc., a California corporation (the
"Company"), and Intel Corporation, a Delaware corporation (the
"Investor").
R E C I T A L
WHEREAS, the Company desires to sell to the Investor, and the
Investor desires to purchase from the Company, shares of the
Company's Common Stock and a Warrant to purchase additional
shares of the Company's Common Stock on the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recital, the
mutual promises hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 Authorization. As of the Closing (as defined below),
the Company's Board of Directors will have authorized the
issuance, pursuant to the terms and conditions of this Agreement,
of up to the number of shares of the Company's Common Stock equal
to twelve and one-half percent (12.5%) of the number of shares of
the Company's Common Stock and other voting securities
outstanding on the day immediately preceding the date of Closing
minus 100 shares ("Purchased Shares") PLUS the number of shares
of the Company's Common Stock equal to seven and one-half percent
(7.5%) of the number of shares of the Company's Common Stock and
other voting securities outstanding on the day immediately
preceding the date of Closing ("Warrant Shares") shares of the
Company's Common Stock, $0.001 par value (the "Common Stock").
1.2 Agreement to Purchase and Sell Common Stock. The
Company hereby agrees to sell to the Investor at the Closing, and
the Investor agrees to purchase from the Company at the Closing,
the Purchased Shares at a price per share equal to the Per Share
Purchase Price.
1.3 Per Share Purchase Price. The "Per Share Purchase
Price" shall be $20.775.
1.4 Agreement to Purchase and Sell Warrant. The Company
hereby agrees to issue to the Investor at the Closing a Warrant
(the "Warrant") to purchase the Warrant Shares in the form
attached hereto as Exhibit A.
1.5 Compliance with HSR Requirements. Promptly after the
execution hereof, the Company and the Investor shall each
complete and file their respective premerger notification
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report forms under the HSR Act (as defined in Section 3.6).
After the filing thereof, the Company and the Investor shall use
all reasonable efforts to comply with the HSR Requirements;
provided, however, that neither the Company nor the Investor
shall be under any obligation to comply with any request or
requirement imposed by the Federal Trade Commission (the "FTC"),
the Department of Justice (the "DofJ") or any other governmental
authority in connection with the compliance with the HSR
Requirements if the Company or the Investor, in the exercise of
such entity's sole discretion, elects not to do so. Without
limiting the generality of the foregoing, neither the Company nor
the Investor shall be obligated to comply with any request by, or
any requirement of, the FTC, the DofJ or any other governmental
authority: (i) to disclose information the Company or the
Investor, as the case may be, desires to keep confidential; (ii)
to dispose of any assets or operations; or (iii) to comply with
any restriction on the manner in which they conduct their
respective operations.
2. CLOSING
2.1 The Closing. The purchase and sale of the Purchased
Shares and the Warrant will take place at the offices of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
at 10:00 a.m. California time, within three (3) business days
after the conditions set forth in Articles 5 and 6 have been
satisfied, or at such other time and place as the Company and the
Investor mutually agree upon (which time and place are referred
to in this Agreement as the "Closing"). At the Closing, the
Company will deliver to the Investor the Warrant and a
certificate representing the Purchased Shares, all against
delivery to the Company by the Investor of the full purchase
price of the Purchased Shares, paid by wire transfer of funds to
the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Investor that the
statements in this Section 3 are true and correct, except as set
forth in the Disclosure Letter from the Company dated January 13,
1997 (the "Disclosure Letter").
3.1 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 corporate power and authority required to (a) carry on its
business as presently conducted, and (b) enter into this
Agreement, the Investor Rights Agreement (as defined in Section
5.8) and the Warrant, and to consummate the transactions
contemplated hereby and thereby. The Company is qualified to do
business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect.
As used in this Agreement, "Material Adverse Effect" means a
material adverse effect on, or a material adverse change in, or a
group of such effects on or changes in, the business, operations,
financial condition, results of operations, prospects, assets or
liabilities of the Company.
3.2 Capitalization. As of the date of this Agreement the
capitalization of the Company is as follows:
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(a) Preferred Stock. A total of 2,000,000 authorized
shares of Preferred Stock, $0.01 par value per share (the
"Preferred Stock"), none of which is issued or outstanding.
(b) Common Stock. A total of 50,000,000 authorized
shares of Common Stock, $0.001 par value, of which 20,001,304
shares are issued and outstanding. All of such outstanding
shares are validly issued, fully paid and non-assessable. No
such outstanding shares were issued in violation of any
preemptive right.
(c) Options, Warrants, Reserved Shares. Except for
the Xircom Stock Option Plan, 1992 Directors Stock Option Plan,
1994 Employee Stock Purchase Plan, and the 1995 Stock Option
Plan, each as amended (the "Plans"), there are not outstanding
any options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock or any securities
convertible into or ultimately exchangeable or exercisable for
any shares of the Company's capital stock. Except for any stock
repurchase rights of the Company under the Plans, no shares of
the Company's outstanding capital stock, or stock issuable upon
exercise, conversion or exchange of any outstanding options,
warrants or rights, or other stock issuable by the Company, are
subject to any rights of first refusal or other rights to
purchase such stock (whether in favor of the Company or any other
person), pursuant to any agreement, commitment or other
obligation of the Company.
3.3 Subsidiaries. The Company does not presently own or
control, directly or indirectly, any interest in any other
corporation, partnership, trust, joint venture, association or
other entity.
3.4 Due Authorization. All corporate action on the part of
the Company, its officers, directors and shareholders necessary
for the authorization, execution, delivery of, and the
performance of all obligations of the Company under, this
Agreement, the Investor Rights Agreement (as defined below), and
the Warrant, and the authorization, issuance, reservation for
issuance and delivery of all of the Purchased Shares being sold
under this Agreement and of the Warrant Shares has been taken or
will be taken prior to the Closing, and this Agreement
constitutes, and the Investor Rights Agreement and the Warrant
when executed, will constitute, valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization or
others laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) the effect of
rules of law governing the availability of equitable remedies.
3.5 Valid Issuance of Stock.
(a) The Purchased Shares, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly
issued, fully paid and nonassessable. The Warrant Shares have
been duly and validly reserved for issuance and, upon issuance,
sale and delivery in accordance with the terms of
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the Warrant for the consideration provided for therein, will be
duly and validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the
investors in Section 4 hereof, the Purchased Shares, the Warrant
and (assuming no change in applicable law and no unlawful
distribution of Purchased Shares or the Warrant by the Investor
or other parties) the Warrant Shares will be issued in full
compliance with the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the "1933
Act"), or in compliance with applicable exemptions therefrom, and
the registration and qualification requirements of all applicable
securities laws of the states of the United States.
3.6 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 compliance with the HSR
Requirements (as defined below) and the filing of such
qualifications or filings under the 1933 Act and the regulations
thereunder and all applicable state securities laws as may be
required in connection with the transactions contemplated by this
Agreement. All such qualifications and filings will, in the case
of qualifications, be effective on the Closing and will, in the
case of filings, be made within the time prescribed by law. As
used herein, the "HSR Requirements" means compliance with the
filing and other requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Acts of 1976, as amended (the "HSR Act").
3.7 Non-Contravention. The execution, delivery and
performance of this Agreement, the Investor Rights Agreement and
the Warrant by the Company, and the consummation by the Company
of the transactions contemplated hereby and thereby, do not and
will not (i) contravene or conflict with the Articles of
Incorporation or Bylaws of the Company; (ii) constitute a
material violation of any provision of any federal, state, local
or foreign law binding upon or applicable to the Company; or
(iii) constitute a default or require any consent under, give
rise to any right of termination, cancellation or acceleration
of, or to a loss of any benefit to which the Company is entitled
under, or result in the creation or imposition of any lien, claim
or encumbrance on any assets of the Company under, any contract
to which the Company is a party or any permit, license or similar
right relating to the Company or by which the Company may be
bound or affected in such a manner as would have Material Adverse
Effect.
3.8 Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation ("Action") pending: (a)
against the Company, its activities, properties or assets or, to
the best of the Company's knowledge, against any officer,
director or employee of the Company in connection with such
officer's, director's or employee's relationship with, or actions
taken on behalf of, the Company, (b) that seeks to prevent,
enjoin, alter or delay the transactions contemplated by this
Agreement, the Investor Rights Agreement or the Warrant. There
is no Action pending or, to the best of the Company's knowledge,
threatened, or any basis therefor, relating to the current or
prior employment of any of the Company's current or former
employees or consultants, their use in connection with the
Company's business of any information, technology or techniques
allegedly proprietary to any of their former employers, clients
or other parties, or their obligations under any agreements with
prior employers, clients or other parties.
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The Company is not a party to or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. No Action by the Company
is currently pending nor does the Company intend to initiate any
Action which is reasonably likely to have a Material Adverse
Effect.
3.9 Invention Assignment and Confidentiality Agreement. To
the best knowledge of the Company, each employee and consultant
or independent contractor of the Company whose duties include the
development of products or Intellectual Property (as defined
below), and each former employee and consultant or independent
contractor whose duties included the development of products or
Intellectual Property, has entered into and executed an invention
assignment and confidentiality agreement in customary form or an
employment or consulting agreement containing substantially
similar terms.
3.10 Intellectual Property.
(a) Ownership or Right to Use. The Company has sole
title to and owns, or is licensed or otherwise possesses legally
enforceable rights to use, all patents or patent applications,
software, know-how, registered or unregistered trademarks and
service marks and any applications therefor, registered or
unregistered copyrights, trade names, and any applications
therefor, trade secrets or other confidential or proprietary
information ("Intellectual Property") necessary to enable the
Company to carry on its business as currently conducted, except
where any deficiency therein would not have a Material Adverse
Effect. The Company represents and warrants that it will, where
the Company, in the exercise of reasonable judgment deems it
appropriate, use reasonable business efforts to seek copyright
and patent registration, and other appropriate intellectual
property protection, for Intellectual Property of the Company.
(b) Licenses; Other Agreements. The Company is not
currently subject to any exclusive licenses (whether such
exclusivity is temporary or permanent) to any material portion of
the Intellectual Property of the Company. To the best of the
Company's knowledge, there are not outstanding any licenses or
agreements of any kind relating to any Intellectual Property of
the Company, except for agreements with OEM's and other customers
of the Company entered into in the ordinary course of the
Company's business. The Company is not obligated to pay any
royalties or other payments to third parties with respect to the
marketing, sale, distribution, manufacture, license or use of any
Intellectual Property, except as the Company may be so obligated
in the ordinary course of its business or as disclosed in the
Company's SEC Documents (as defined below).
(c) No Infringement. The Company has not violated or
infringed and is not currently violating or infringing, and the
Company has not received any communications alleging that the
Company (or any of its employees or consultants) has violated or
infringed, any Intellectual Property of any other person or
entity, to the extent that any such violation or infringement,
either individually or together with all other such violations
and infringements, would have a Material Adverse Effect.
(d) Employees and Consultants. To the best of the
Company's knowledge, no employee of or consultant to the Company
is in default under any term of any
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employment contract, agreement or arrangement relating to
Intellectual Property of the Company or any non-competition
arrangement, other contract, or any restrictive covenant relating
to the Intellectual Property of the Company. The Intellectual
Property of the Company (other than any Intellectual Property
duly acquired or licensed from third parties) was developed
entirely by the employees of or consultants to the Company during
the time they were employed or retained by the Company, and to
the best knowledge of the Company, at no time during conception
or reduction to practice of such Intellectual Property of the
Company were any such employees or consultants operating under
any grant from a government entity or agency or subject to any
employment agreement or invention assignment or non-disclosure
agreement or any other obligation with a third party that would
materially and adversely affect the Company's rights in the
Intellectual Property of the Company. Such Intellectual Property
of the Company does not, to the best knowledge of the Company,
include any invention or other intellectual property of such
employees or consultants made prior to the time such employees or
consultants were employed or retained by the Company nor any
intellectual property of any previous employer of such employees
or consultants nor the intellectual property of any other person
or entity.
3.11 Compliance with Law and Charter Documents. The Company
is not in violation or default of any provisions of its
Certificate of Incorporation or Bylaws, both as amended, and
except for any violations that would not, either individually or
in the aggregate, have a Material Adverse Effect. The Company
has complied and is in compliance with all applicable statutes,
laws, and regulations and executive orders of the United States
of America and all states, foreign countries and other
governmental bodies and agencies having jurisdiction over the
Company's business or properties.
3.12 Registration Rights. Except as provided in the
Investor Rights Agreement effective upon the Closing, the Company
is not currently subject to any grant or agreement to grant to
any person or entity any rights (including piggyback registration
rights) to have any securities of the Company registered with the
United States Securities and Exchange Commission ("SEC") or any
other governmental authority.
3.13 Title to Property and Assets. The properties and
assets of the Company are owned by the Company free and clear of
all mortgages, deeds of trust, liens, charges, encumbrances and
security interests except for statutory liens for the payment of
current taxes that are not yet delinquent and liens, encumbrances
and security interests that arise in the ordinary course of
business and do not affect material properties and assets of the
Company. With respect to the property and assets it leases, the
Company is in compliance with such leases in all material
respects.
3.14 SEC Documents.
(a) The Company has furnished to the Investor prior to
the date hereof copies of its Annual Report on Form 10-K for the
fiscal year ended September 30, 1996 ("Form 10-K"), and all other
registration statements, reports and proxy statements filed by
the Company with the Securities and Exchange Commission
("Commission") on or after September 30, 1996 (the Form 10-K and
such registration statements, reports and proxy statements, are
collectively referred to herein as the "SEC Documents"). Each of
the SEC Documents, as of the
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respective date thereof, did not, and each of the registration
statements, reports and proxy statements filed by the Company
with the Commission after the date hereof and prior to the
Closing will not, as of the date thereof, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading,
except as may have been corrected in a subsequent SEC Document.
The Company is not a party to any material contract, agreement or
other arrangement which was required to have been filed as an
exhibit to the SEC Documents that is not so filed.
(b) The Company has provided the Investor with its
audited financial statements (the "Audited Financial Statements")
for the fiscal year ended September 30, 1996 (the "Balance Sheet
Date"). Since September 30, 1996, the Company has duly filed
with the Commission all registration statements, reports and
proxy statements required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
1933 Act. The audited and unaudited consolidated financial
statements of the Company included in the SEC Documents filed
prior to the date hereof fairly present, in conformity with
generally accepted accounting principles ("GAAP") (except as
permitted by Form 10-Q) applied on a consistent basis (except as
may be indicated in the notes thereto), the consolidated
financial position of the Company and its consolidated
subsidiaries as at the date thereof and the consolidated results
of their operations and cash flows for the periods then ended
(subject to normal year and audit adjustments in the case of
unaudited interim financial statements).
(c) Except as and to the extent reflected or reserved
against in the Company's Audited Financial Statements (including
the notes thereto), the Company has no material liabilities
(whether accrued or unaccrued, liquidated or unliquidated,
secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined or determinable) other
than: (i) liabilities incurred in the ordinary course of
business since the Balance Sheet Date that are consistent with
the Company's past practices, (ii) liabilities with respect to
agreements to which the Investor is a party, and (iii) other
Liabilities that either individually or in the aggregate, would
not result in a Material Adverse Effect.
3.15 Absence of Certain Changes Since Balance Sheet Date.
Since the Balance Sheet Date, the business and operations of the
Company have been conducted in the ordinary course consistent
with past practice, and there has not been:
(a) any declaration, setting aside or payment of any
dividend or other distribution of the assets of the Company with
respect to any shares of capital stock of the Company, or any
repurchase, redemption or other acquisition by the Company or any
subsidiary of the Company of any outstanding shares of the
Company's capital stock;
(b) any damage, destruction or loss, whether or not
covered by insurance, except for such occurrences that have not
resulted, and are not expected to result, in a Material Adverse
Effect;
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(c) any waiver by the Company of a valuable right or
of a material debt owed to it, except for such waivers that have
not resulted, and are not expected to result, in a Material
Adverse Effect;
(d) any material change or amendment to, or any waiver
of any material rights under, a material contract or arrangement
by which the Company or any of its assets or properties is bound
or subject, except for changes, amendments, or waivers that are
expressly provided for or disclosed in this Agreement or that
have not resulted, and are not expected to result, in a Material
Adverse Effect;
(e) any change by the Company in its accounting
principles, methods or practices or in the manner it keeps its
accounting books and records, except any such change required by
a change in GAAP; and
(f) any other event or condition of any character,
except for such events and conditions that have not resulted, and
are not expected to result, in a Material Adverse Effect.
3.16 Employee Benefits.
(a) As used in this Section 3.16, the following terms
have the following meanings: (1) "Benefit Arrangement" means any
material benefit arrangement that is not an Employee Benefit
Plan, including (i) each material employment or consulting
agreement, (ii) each material arrangement providing for insurance
coverage or workers' compensation benefits, (iii) each material
bonus or deferred bonus arrangement, (iv) each material
arrangement providing any termination allowance, severance or
similar benefits, (v) each equity compensation plan, (vi) each
deferred compensation plan and (vii) each material compensation
policy and practice maintained by the Company covering the
employees, former employees, officers, former officers, directors
and former directors of the Company, and the beneficiaries of any
of them; (2) "Benefit Plan" means an Employee Benefit Plan or
Benefit Arrangement; (3)"COBRA" means the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, as set forth in
Section 4980B of the Code and Part 6 of Title I of ERISA; (4)
"Employee Benefit Plan" means any employee benefit plan, as
defined in Section 3(3) of ERISA, that is sponsored or
contributed to by the Company or any ERISA Affiliate covering
employees or former employees of the Company; (5) "Employee
Pension Benefit Plan" means any employee pension benefit plan, as
defined in Section 3(2) of ERISA that is regulated under Title IV
of ERISA, other than a Multiemployer Plan; (6) "ERISA" means the
Employee Retirement Income Security Act of 1974, as amended; (7)
"ERISA Affiliate" of the Company means any other person or entity
that, together with the Company as of the relevant measuring date
under ERISA, was or is required to be treated as a single
employer under Section 414 of the Code; (8)"Group Health Plan"
means any group health plan, as defined in Section 5000(b)(l) of
the Code; (9) "Multiemployer Plan" means a multiemployer plan, as
defined in Section 3(37) and 4001(a)(3) of ERISA; and (10)
"Prohibited Transaction" means a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not
exempt under Section 4975 of the Code or Section 408 of ERISA,
respectively.
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(b) Neither the Company nor any of its ERISA
Affiliates sponsors or has sponsored, maintained, contributed to,
or incurred an obligation to contribute to, any Employee Pension
Benefit Plan (whether or not terminated). Neither the Company
nor any of its ERISA Affiliates sponsors or has sponsored,
maintained, contributed to, or incurred an obligation to
contribute to, any Multiemployer Plan (whether or not
terminated).
(c) No Employee Benefit Plan has participated in,
engaged in or been a party to any Prohibited Transaction, and
neither the Company nor any of its ERISA Affiliates has had
asserted against it any claim for any material tax or material
penalty imposed under ERISA or the Code with respect to any
Employee Benefit Plan nor, to the best of the Company's
knowledge, is there a basis for any such claim. To the best
knowledge of the Company, no officer, director or employee of the
Company has committed a material breach of any responsibility or
obligation imposed upon fiduciaries by Title I of ERISA with
respect to any Employee Benefit Plan, with respect to which
breach the Company is directly or indirectly liable.
(d) Other than routine claims for benefits, there is
no material claim pending involving any Benefit Plan by any
Person against such plan or the Company or any ERISA Affiliate,
nor, to the best of the Company's knowledge, is any such material
claim threatened. There is no pending, or to the best of the
Company's knowledge, threatened Proceeding involving any Employee
Benefit Plan before the IRS, the United States Department of
Labor or any other governmental authority.
(e) No material violation of any reporting or
disclosure requirement imposed by ERISA or the Code exists with
respect to any Employee Benefit Plan.
(f) Each Benefit Plan has been maintained in all
material respects, by its terms and in operation, in accordance
with ERISA (if applicable), the Code and all other applicable
federal, state, local and foreign laws. The Company and its
ERISA Affiliates have made full and timely payment of all amounts
required to be (i) contributed under the terms of each Benefit
Plan and such laws, or (ii) required to be paid as expenses under
such Benefit Plan. Each Employee Benefit Plan that is intended
to be qualified under Section 401(a) of the Code either has
received a favorable determination letter with respect to such
qualified status from the IRS or has filed a request for such a
determination letter with the IRS within the remedial amendment
period such that such determination of qualified status will
apply from and after the effective date of any such Employee
Benefit Plan.
(g) With respect to any Group Health Plans maintained
by the Company or its ERISA Affiliates, whether or not for the
benefit of the Company's employees, the Company and its ERISA
Affiliates have complied in all material respects with the
provisions of COBRA.
(h) Except pursuant to the provisions of COBRA,
neither the Company nor any ERISA Affiliate maintains any
Employee Benefit Plan that provides benefits described in Section
3(1) of ERISA for any former employees or retirees, or the
beneficiaries of any of them, of the Company or its ERISA
Affiliates.
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3.17 Tax Matters.
(a) All deficiencies asserted or assessments made as a
result of any examinations by the Internal Revenue Service or any
state, local or foreign taxing authority have been fully paid, or
are fully reflected as a liability in the Audited Financial
Statements. The Company has filed on a timely basis all Tax
Returns required to have been filed by it and has paid on a
timely basis all Taxes required to be shown thereon as due. All
such Tax Returns are true, complete and correct in all material
respects. The provisions for taxes in the Audited Financial
Statements have been determined in accordance with GAAP. No
liability for Taxes has been incurred by the Company since the
Balance Sheet Date other than in the ordinary course of its
business. No director, officer or employee of the Company having
responsibility for Tax matters has reason to believe that any
Taxing authority has valid grounds to claim or assess any
additional Tax with respect to the Company in excess of the
amounts shown in the Audited Financial Statements for the periods
covered thereby. As used in this Agreement, (l) "Taxes" means
(x) all federal, state, local and other net income, gross income,
gross receipts, sales use, ad valorem, value added, intangible,
unitary, capital gain, transfer, franchise, profits, license,
lease, service, service use, withholding, backup withholding,
payroll, employment, estimated, excise, severance, stamp,
occupation, premium, property, prohibited transactions, windfall
or excess profits, customs, duties or other taxes, fees,
assessments or charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional
amounts with respect thereto, (y) any liability for payment of
amounts described in clause (x) whether as a result of transferee
liability, of being a member of an affiliated, consolidated,
combined or unitary group for any period, or otherwise through
operation of law and (z) any liability for the payment of amounts
described in clauses (x) or (y) as a result of any tax sharing,
tax indemnity or tax allocation agreement or any other express or
implied agreement to indemnify any other person for Taxes; and
the term "Tax" means any one of the foregoing Taxes; and (2) "Tax
Returns" means all returns, reports, forms or other information
required to be filed with respect to any Tax.
(b) With respect to all amounts in respect of Taxes
imposed upon the Company, or for which the Company is or could be
liable, whether to taxing authorities (as, for example, under
law) or to other persons or entities (as, for example, under tax
allocation agreements), and with respect to all taxable periods
or portions of periods ending on or before the Closing Date, all
applicable Tax laws and agreements have been fully complied with,
and all such amounts required to be paid by the Company to taxing
authorities or others have been paid.
(c) The Company has not received notice that the
Internal Revenue Service or any other taxing authority has
asserted against the Company any deficiency or claim for
additional Taxes in connection with any Tax Return, and no issues
have been raised (and are currently pending) by any taxing
authority in connection with any Tax Return. The Company has not
received notice that it is or may be subject to Tax in a
jurisdiction in which it has not filed or does not currently file
Tax Returns.
3.18 Labor Agreements and Actions.
(a) No collective bargaining agreement exists that is
binding on the Company, and no petition has been filed or
proceedings instituted by an employee or group of
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employees with any labor relations board seeking recognition of a
bargaining representative. To the best of the Company's
knowledge, no organizational effort is currently being made or
threatened by or on behalf of any labor union to organize any
employees of the Company.
(b) There is no labor strike, dispute, slow down or
stoppage pending or threatened against or directly affecting the
Company. No grievance or arbitration proceeding arising out of
or under any collective bargaining agreement is pending, and no
claims therefor exist. The Company has not received any notice,
and has no knowledge of any threatened labor or civil rights
dispute, controversy or grievance or any other unfair labor
practice proceeding or breach of contact claim or action with
respect to claims of, or obligations to, any employee or group of
employees of the Company.
(c) All individuals who are performing or have
performed services for the Company and are or were classified by
the Company as "independent contractors" qualify for such
classification under Section 530 of the Revenue Act of 1978 or
Section 1706 of the Tax Reform Act of 1986, as applicable, except
for such instances which would not, in the aggregate, have a
Material Adverse Effect.
3.19 Real Property Holding Corporation Status. Since its
inception the Company has not been a "United States real property
holding corporation", as defined in Section 897(c)(2) of the U.S.
Internal Revenue Code of 1986, as amended, and in Section 1.897-
2(b) of the Treasury Regulations issued thereunder (the
"Regulations"), and the Company has filed with the Internal
Revenue Service all statements, if any, with its United States
income tax returns which are required under Section 1.897-2(h) of
the Regulations.
3.20 Full Disclosure. The information contained in this
Agreement and the Disclosure Letter with respect to the business,
operations, assets, results of operations and financial condition
of the Company, and the transactions contemplated by this
Agreement, the Investor Rights Agreement and the Warrant, are
true and complete in all material respects and do not omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
INVESTOR. The Investor hereby represents and warrants to the
Company, and agrees that:
4.l Authorization. This Agreement and the Investor Rights
Agreement have been duly authorized by all necessary corporate
action on the part of the Investor. This Agreement and the
Investor Rights Agreement constitute the Investor's valid and
legally binding obligations, enforceable in accordance with their
respective terms, except as may be limited by (a) applicable
bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally and (b) the effect of rules of law
governing the availability of equitable remedies. The Investor
has full corporate power and authority to enter into this
Agreement and the Investor Rights Agreement
12
4.2 Purchase for Own Account. The Purchased Shares and the
Warrant are being acquired for investment for the Investors own
account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the
1933 Act, and the Investor has no present intention of selling,
granting any participation in, or otherwise distributing the
same. The Investor also represents that it has not been formed
for the specific purpose of acquiring the Purchased Shares and
the Warrant.
4.3 Disclosure of Information. The Investor has received
or has had full access to all the information it considers
necessary or appropriate to make an informed investment decision
with respect to the Purchased Shares and the Warrant to be
purchased by the Investor under this Agreement. The Investor
further has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of
the offering of the Purchased Shares, the Warrant and the Warrant
Shares and to obtain additional information (to the extent the
Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any
information furnished to the investor or to which the Investor
had access. The foregoing, however, does not in any way limit or
modify the representations and warranties made by the Company in
Article 3.
4.4 Investment Experience. The Investor understands that
the purchase of the Purchased Shares and the Warrant involves
substantial risk. The Investor: (a) has experience as an
investor in securities of companies and acknowledges that it is
able to fend for itself, can bear the economic risk of its
investment in the Purchased Shares and the Warrant and has such
knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of this investment
in the Purchased Shares and the Warrant and protecting its own
interests in connection with this investment and/or (b) has a
preexisting personal or business relationship with the Company
and certain of its officers, directors or controlling persons of
a nature and duration that enables the Investor to be aware of
the character, business acumen and financial circumstances of
such persons.
4.5 Accredited Investor Status. The Investor is an
"accredited investor" within the meaning of Regulation D
promulgated under the ▇▇▇▇ ▇▇▇.
4.6 Restricted Securities. The Investor understands that
the Purchased Shares and the Warrant to be purchased by the
Investor hereunder, and any Warrant Shares to be purchased by the
Investor upon exercise of the Warrant, are characterized as
"restricted securities" under the 1933 Act inasmuch as they are
being acquired from the Company in a transaction not involving a
public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without
registration under the 1933 Act only in certain limited
circumstances. The Investor is familiar with Rule 144 of the
SEC, as presently in effect, and understands the resale
limitations imposed thereby and by the 1933 Act. The Investor
understands that the Company is under no obligation to register
any of the securities sold hereunder except as provided in the
Investor Rights Agreement.
4.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, the Investor
further agrees not to make any disposition of all or any portion
of the Purchased Shares, the Warrant or the Warrant Shares unless
and until:
13
(a) there is then in effect a registration statement
under the 1933 Act covering such proposed disposition and such
disposition is made in accordance with such registration
statement; or
(b) the Investor has notified the Company of the
proposed disposition and has furnished the Company with a
statement of the circumstances surrounding the proposed
disposition, and the Investor has furnished the Company, at the
expense of the Investor or its transferee, with an opinion of
counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities
under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) of this
Section 4.7, no such registration statement or opinion of counsel
will be required for any transfer of any Purchased Shares, the
Warrant, or any Warrant Shares in compliance with SEC Rule 144,
Rule 144A or Rule 145(d), or if such transfer otherwise is
exempt, in the view of the Company's legal counsel, from the
registration requirements of the ▇▇▇▇ ▇▇▇.
4.8 Legends. Certificates evidencing the Purchased Shares
and the Warrant Shares will bear each of the legends set forth
below and the Warrant will bear the legends set forth in (a) and
(c) below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED
UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF
THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) THE SHARES EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN A CERTAIN INVESTOR
RIGHTS AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF
SUCH SHARES DATED AS OF JANUARY 13, 1997, A COPY OF WHICH IS
AVAILABLE FOR EXAMINATION AT THE ISSUER'S PRINCIPAL OFFICE.
(c) Any Legends required by any applicable state
securities laws.
The Legend set forth in Section 4.8(a) hereof will be removed by
the Company from any certificate evidencing Purchased Shares or
the Warrant Shares upon delivery to the Company of an opinion by
counsel, reasonably satisfactory to the Company, that a
registration statement under the 1933 Act is at that time in
effect with respect to the legended security or that such
security
14
can be freely transferred in a public sale without such a
registration statement being in effect and that such transfer
will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Purchased Shares, the
Warrant or the Warrant Shares.
5. CONDITIONS TO THE INVESTOR'S OBLIGATIONS AT CLOSING. The
obligations of the Investor under Sections l and 2 of this
Agreement are subject to the fulfillment or waiver, on or before
the Closing (defined in Section 2.l), of each of the following
conditions:
5.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in
Section 3 will be true and correct on and as of the date hereof
and on and as of the date of the Closing, except as set forth in
the Disclosure Letter, as amended through the Closing, with the
same effect as though such representations and warranties had
been made as of the Closing.
5.2 Performance. The Company will 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 and will have
obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Compliance with HSR Requirements. The HSR Requirements
shall have been complied with.
5.4 Compliance Certificate. The Company will have
delivered to the Investor at the Closing a certificate signed on
its behalf by its Chief Executive Officer or Chief Financial
Officer certifying that the conditions specified in Sections 5.1
and 5.2 hereof have been fulfilled.
5.5 Securities Exemptions. The offer and sale of the
Purchased Shares and the Warrant to the Investor pursuant to this
Agreement will be exempt from the registration requirements of
the 1933 Act and the registration and/or qualification
requirements of all applicable state securities laws.
5.6 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at
the Closing and all documents incident thereto will be reasonably
satisfactory in form and substance to the Investor, and the
Investor will have received all such counterpart originals and
certified or other copies of such documents as it may reasonably
request. Such documents shall include (but not be limited to)
the following:
(a) Certified Charter Documents. A copy of (i) the
Articles of Incorporation certified as of a recent date by the
Secretary of State of California as a complete and correct copy
thereof, and (ii) the Bylaws of the Company (as amended through
the date of the Closing) certified by the Secretary of the
Company as true and correct copies thereof as of the Closing.
(b) Board Resolutions. A copy, certified by the
Secretary of the Company, of the resolutions of the Board of
Directors of the Company providing for the approval of this
Agreement and the Investor Rights Agreement and the issuance of
the Purchased Shares and the Warrant and the other matters
contemplated hereby.
15
5.7 Opinion of Company Counsel. The Investor will have
received an opinion on behalf of the Company, dated as of the
date of the Closing, from Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, in
form and substance reasonably satisfactory to the Investor.
5.8 Warrant and Investor Rights Agreement. The Company
will have issued the Warrant and will have executed and delivered
the Investor Rights Agreement substantially in the form attached
to this Agreement as Exhibit B (the "Investor Rights Agreement").
5.9 No Material Adverse Effect. Between the date hereof
and the Closing, there shall not have occurred any Material
Adverse Effect.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company to the Investor under this Agreement
are subject to the fulfillment or waiver on or before the Closing
(defined in Section 2.1), of each of the following conditions:
6.1 Representations and Warranties True. The
representations and warranties of the Investor contained in
Section 4 will be true and correct on and as of the date hereof
and on and as of the date of the Closing with the same effect as
though such representations and warranties had been made as of
the Closing.
6.2 Payment of Purchase Price. The Investor will have
delivered to the Company the full purchase price of the Purchased
Shares as specified in Section 1.2.
6.3 Compliance with HSR Requirements. The HSR Requirements
shall have been complied with.
6.4 Securities Exemptions. The offer and sale of the
Purchased Shares and the Warrant to the Investor pursuant to this
Agreement will be exempt from the registration requirements of
the 1933 Act and the registration and/or qualification
requirements of all applicable state securities laws.
6.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at
the Closing and all documents incident thereto will be reasonably
satisfactory in form and substance to the Company and to the
Company's legal counsel, and the Company will have received all
such counterpart originals and certified or other copies of such
documents as it may reasonably request.
6.6 Investor Rights Agreement. The Investor will have
executed and delivered the Investor Rights Agreement.
6.7 Opinion of Investor Counsel. The Company will have
received an opinion on behalf of the Investor, dated as of the
date of the Closing, from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP and/or
Intel Corporation in house counsel, in form and substance
reasonably satisfactory to the Company.
16
7. INDEMNIFICATION.
7.1 Agreement to Indemnify.
(a) Company Indemnity. The Investor, its Affiliates
and Associates, and each officer, director, shareholder,
employer, representative and agent of any of the foregoing
(collectively, the "Investor Indemnitees") shall each be
indemnified and held harmless to the extent set forth in this
Section 7 by the Company with respect to any and all Damages (as
defined below) incurred by any Investor Indemnitee as a proximate
result of any inaccuracy or misrepresentation in, or breach of,
any representation, warranty, covenant or agreement made by the
Company in this Agreement, the Investor Rights Agreement or the
Warrant (including any Exhibits and Schedules hereto).
(b) Investor Indemnity. The Company, its respective
Affiliates and Associates, and each officer, director,
shareholder, employer, representative and agent of any of the
foregoing (collectively, the "Company Indemnitees") shall each be
indemnified and held harmless to the extent set forth in this
Section 7, by the Investor, in respect of any and all Damages
incurred by any Company Indemnitee as a result of any inaccuracy
or misrepresentation in, or breach of, any representation,
warranty, covenant or agreement made by the Investor in this
Agreement or the Investor Rights Agreement.
(c) Equitable Relief. Nothing set forth in this
Section 7 shall be deemed to prohibit or limit any Investor
Indemnitee's or Company Indemnitee's right at any time before, on
or after the Closing Date, to seek injunctive or other equitable
relief for the failure of any Indemnifying Party to perform or
comply with any covenant or agreement contained herein.
7.2 Survival. All representations and warranties of the
Investor and the Company contained herein or in the Investor
Rights Agreement or the Warrant, and all claims of any Investor
Indemnitee or Company Indemnitee in respect of any inaccuracy or
misrepresentation in or breach thereof, shall survive the Closing
until the later of (i) the date of termination of the Right of
Participation under the Investor Rights Agreement, and (ii) the
third anniversary of the date of this Agreement, regardless of
whether the applicable statute of limitations, including
extensions thereof, may expire (except to the extent any such
covenant or agreement shall expire by its terms). All covenants
and agreements of the Investor and the Company contained herein
or in the Investor Rights Agreement or the Warrant shall survive
the Closing in perpetuity (except to the extent any such covenant
or agreement shall expire by its terms). All claims of any
Investor Indemnitee or Company Indemnitee in respect of any
breach of such covenants or agreements shall survive the Closing
until the expiration of two years following the non-breaching
party's obtaining actual knowledge of such breach.
7.3 Claims for Indemnification. If any Investor Indemnitee
or Company Indemnitee (an "Indemnitee") shall believe that such
Indemnitee is entitled to indemnification pursuant to this
Section 7 in respect of any Damages, such Indemnitee shall give
the appropriate Indemnifying Party (which for purposes hereof, in
the case of an Investor Indemnitee, means the Company, and in the
case of a Company Indemnitee, means the Investor) prompt written
notice thereof. Any such notice shall set forth in reasonable
detail and to the extent then known the basis
17
for such claim for indemnification. The failure of such
Indemnitee to give notice of any claim for indemnification
promptly shall not adversely affect such Indemnitee's right to
indemnity hereunder except to the extent that such failure
adversely affects the right of the Indemnifying Party to assert
any reasonable defense to such claim. Each such claim for
indemnity shall expressly state that the Indemnifying Party shall
have only the twenty (20) business day period referred to in the
next sentence to dispute or deny such claim. The Indemnifying
Party shall have twenty (20) business days following its receipt
of such notice either (a) to acquiesce in such claim by giving
such Indemnitee written notice of such acquiescence or (b) to
object to the claim by giving such Indemnitee written notice of
the objection. If Indemnifying Party does not object thereto
within such twenty (20) business day period, such Indemnitee
shall be entitled to be indemnified for all Damages reasonably
and proximately incurred by such Indemnitee in respect of such
claim. If the Indemnifying Party objects to such claim in a
timely manner, the senior management of the Company and the
Investor shall meet to attempt to resolve such dispute. If the
dispute cannot be resolved by the senior management either party
may make a written demand for formal dispute resolution and
specify therein the scope of the dispute. Within thirty days
after such written notification, the parties agree to meet for
one day with an impartial mediator and consider dispute
resolution alternatives other than litigation. If an alternative
method of dispute resolution is not agreed upon within thirty
days after the one day mediation, either party may begin
litigation proceedings. Nothing in this section shall be deemed
to require arbitration.
7.4 Defense of Claims. In connection with any claim that
may give rise to indemnity under this Section 7 resulting from or
arising out of any claim or Proceeding against an Indemnitee by a
person or entity that is not a party hereto, the Indemnifying
Party may but shall not be obligated to (unless such Indemnitee
elects not to seek indemnity hereunder for such claim), upon
written notice to the relevant Indemnitee, assume the defense of
any such claim or proceeding if the Indemnifying Party with
respect to such claim or Proceeding acknowledges to the
Indemnitee the Indemnitee's right to indemnity pursuant hereto to
the extent provided herein (as such claim may have been modified
through written agreement of the parties or arbitration
hereunder) and provides assurances, satisfactory to such
Indemnitee, that the Indemnifying Party will be financially able
to satisfy such claim to the extent provided herein if such claim
or Proceeding is decided adversely; provided, however, that
nothing set forth herein shall be deemed to require the
Indemnifying Party to waive any crossclaims or counterclaims the
Indemnifying Party may have against the Indemnified Party for
damages. The Indemnified Party shall be entitled to retain
separate counsel, reasonably acceptable to the Indemnifying
Party, if the Indemnified Counsel shall determine, upon the
written advice of counsel, that an actual or potential conflict
of interest exists between the Indemnifying Party and the
Indemnified Party in connection with such Proceeding. The
Indemnifying Party shall be obligated to pay the reasonable fees
and expenses of such separate counsel to the extent the
Indemnified Party is entitled to indemnification by the
Indemnifying Party with respect to such claim or Proceeding under
this Section 7.4. If the Indemnifying Party assumes the defense
of any such claim or Proceeding, the Indemnifying Party shall
select counsel reasonably acceptable to such Indemnitee to
conduct the defense of such claim or Proceeding, shall take all
steps necessary in the defense or settlement thereof and shall at
all times diligently and promptly pursue the resolution thereof.
If the Indemnifying Party shall have assumed the defense of any
claim or Proceeding in accordance with this Section 7.4, the
Indemnifying Party shall be authorized to consent to a settlement
of, or
the entry of any judgment arising from, any such claim or
Proceeding, with the prior written consent of such Indemnitee,
not to be unreasonably withheld; provided, however, that the
Indemnifying Party shall pay or cause to be paid all amounts
arising out of such settlement or judgment concurrently with the
effectiveness thereof; provided, further, that the Indemnifying
Party shall not be authorized to encumber any of the assets of
any Indemnitee or to agree to any restriction that would apply to
any Indemnitee or to its conduct of business; and provided,
further, that a condition to any such settlement shall be a
complete release of such Indemnitee and its Affiliates,
directors, officers, employees and agents with respect to such
claim, including any reasonably foreseeable collateral
consequences thereof. Such Indemnitee shall be entitled to
participate in (but not control) the defense of any such action,
with its own counsel and at its own expense. Each Indemnitee
shall, and shall cause each of its Affiliates, directors,
officers, employees and agents to, cooperate fully with the
Indemnifying Party in the defense of any claim or Proceeding
being defended by the Indemnifying Party pursuant to this Section
7.4. If the Indemnifying Party does not assume the defense of
any claim or Proceeding resulting therefrom in accordance with
the terms of this Section 7.4, such Indemnitee may defend against
such claim or Proceeding in such manner as it may deem
appropriate, including settling such claim or proceeding after
giving notice of the same to the Indemnifying Party, on such
terms as such Indemnitee may deem appropriate. If any
Indemnifying Party seeks to question the manner in which such
Indemnitee defended such claim or Proceeding or the amount of or
nature of any such settlement, such Indemnifying Party shall have
the burden to prove by a preponderance of the evidence that such
Indemnitee did not defend such claim or Proceeding in a
reasonably prudent manner.
7.5 Certain Definitions. As used in this Section 7, (a)
"Affiliate" means, with respect to any person or entity, any
person or entity directly or indirectly controlling, controlled
by or under direct or indirect common control with such other
person or entity; (b) "Associate" means, when used to indicate a
relationship with any person or entity, (l) any other person or
entity of which such first person or entity is an officer,
director or partner or is, directly or indirectly, the beneficial
owner of ten percent (10%) or more of any class of equity
securities, membership interests or other comparable ownership
interests issued by such other person or entity, (2) any trust or
other estate in which such first person or entity has a ten
percent (10%) or more beneficial interest or as to which such
first person or entity serves as trustee or in a similar
fiduciary capacity, and (3) any relative or spouse of such first
person or entity who has the same home as such first person or
entity or who is a director or officer of such first person or
entity; (c) "Damages" means all demands, claims, actions or
causes of action, assessments, losses, damages, costs, expenses,
liabilities, judgments, awards, fines, response costs, sanctions,
taxes, penalties, charges and amounts paid in settlement,
including (1) interest on cash disbursements in respect of any of
the foregoing at the prime rate of Bank of America, NT & SA, as
in effect from time to time, compounded quarterly, from the date
each such cash disbursement is made until the date the party
incurring such cash disbursement shall have been indemnified in
respect thereof, and (2) reasonable out-of-pocket costs, fees and
expenses (including reasonable costs, fees and expenses of
attorneys, accountants and other agents of, or other parties
retained by, such party), and (d) "Proceeding" means any action,
suit, hearing, arbitration, audit, proceeding (public or private)
or investigation that is brought or initiated by or against any
federal, state, local or foreign governmental authority or any
other person or entity.
19
8.1 Successors and Assigns. The terms and conditions of
this Agreement will inure to the benefit of and be binding upon
the respective successors and assigns of the parties.
8.2 Governing Law. This Agreement will be governed by and
construed under the internal laws of the State of California as
applied to agreements among California residents entered into and
to be performed entirely within California, without reference to
principles of conflict of laws or choice of laws.
8.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same
instrument.
8.4 Headings. The headings and captions used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. All
references in this Agreement to sections, paragraphs, exhibits
and schedules will, unless otherwise provided, refer to sections
and paragraphs hereof and exhibits and schedules attached hereto,
all of which exhibits and schedules are incorporated herein by
this reference.
8.5 Notices. Any notice required or permitted under this
Agreement will be given in writing, shall be effective when
received, and shall in any event be deemed received and
effectively given upon personal delivery to the party to be
notified or three (3) business days after deposit with the United
States Post Office, by registered or certified mail, postage
prepaid, or one (1) business day after deposit with a nationally
recognized courier service such as Fedex for next business day
delivery, or one (1) business day after facsimile with copy
delivered by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated
for such party on the signature page hereof or at such other
address as the Investor or the Company may designate by giving at
least ten (10) days advance written notice pursuant to this
Section 8.5.
8.6 No Finder's Fees. Each party represents that it
neither is nor will be obligated for any finder's or broker's fee
or commission in connection with this transaction other than the
fees of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. to be paid by the Company. The
Investor will indemnify and hold harmless the Company from any
liability for any commission or compensation in the nature of a
finders' or broker's fee for which the Investor or any of its
officers, partners, employees or consultants, or representatives
is responsible. The Company will indemnify and hold harmless the
Investor from any liability for any commission or compensation in
the nature of a finder's or broker's fee for which the Company or
any of its officers, employees or consultants or representatives
is responsible.
8.7 Amendments and Waivers. 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 holders of Purchased Shares and/or Warrant
Shares representing at least a majority of the total aggregate
number of Purchased Shares and Warrant Shares then outstanding
(excluding any of such shares that have been sold to the public
pursuant to SEC Rule 144 or otherwise). Any
20
amendment or waiver effected in accordance with this Section 8.7
will be binding upon the Investor, the Company and their
respective successors and assigns.
8.8 Severability. If any provision of this Agreement is
held to be unenforceable under applicable law, such provision
will be excluded from this Agreement and the balance of the
Agreement will be interpreted as if such provision were so
excluded and will be enforceable in accordance with its terms.
8.9 Entire Agreement. This Agreement, together with all
Exhibits and schedules hereto, constitutes the entire agreement
and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations
between the parties with respect to the subject matter hereof.
8.10 Further Assurances. From and after the date of this
Agreement upon the request of the Investor or the Company, the
Company and the Investor will execute and deliver such
instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
8.11 Meaning of Include and Including. Whenever in this
Agreement the word "include" or "including" is used, it shall be
deemed to mean "include, without limitation" or "including,
without limitation," as the case may be, and the language
following "include" or "including" shall not be deemed to set
forth an exhaustive list.
8.12 Fees, Costs and Expenses. All fees, costs and expenses
(including attorneys' fees and expenses) incurred by either party
hereto in connection with the preparation, negotiation and
execution of this Agreement, the Investor Rights Agreement and
the Warrant and the consummation of the transactions contemplated
hereby and thereby, shall be the sole and exclusive
responsibility of such party.
[The remainder of this page is intentionally left blank.]
21
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XIRCOM, INC. INTEL CORPORATION
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, President Title: Vice President and
and Chief Executive Treasurer
Officer
Date Signed: January 13, 1997 Date Signed: January 13, 1997
Address: 2300 Corporate Address: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ College Boulevard
Thousand Oaks, Santa Clara,
California 91320 California 95052
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇ Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇ Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇
[Signature Page to Common Stock and Warrant Purchase Agreement]
22
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
LIST OF EXHIBITS
Exhibit A - Form of Warrant
Exhibit B - Form of Investor Rights Agreement