EXHIBIT 4.4
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NEOMAGIC CORPORATION
STOCK PURCHASE AGREEMENT
March 20, 1997
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of
March 20, 1997, by and among NeoMagic Corporation, a Delaware corporation
(the "Company"), with its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Mitsubishi International Corporation (the "Purchaser").
W I T N E S S E T H
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WHEREAS, the Company has proposed to undertake an initial public offering
(the "Stock Offering") of its shares of Common Stock, $.001 par value ("Common
Stock");
WHEREAS, the Company has filed with the Securities and Exchange Commission
a Registration Statement (the "Registration Statement") on Form S-1
(Registration No. 333-70031) pursuant to which the shares of Common Stock to be
sold in the Stock Offering and the Shares (as defined below) to be sold pursuant
to this Agreement will be registered under the Securities Act of 1933, as
amended (the "Securities Act"); and
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement, the Purchaser agrees to purchase, and the Company agrees to issue and
sell, shares of Common Stock;
NOW, THEREFORE, BE IT RESOLVED that for good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1
Authorization and Sale of the Shares
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1.1 Authorization. The Company has authorized the sale and issuance to
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the Purchaser of 100,000 shares of its Common Stock (the "Shares").
1.2 Sale of the Shares. Subject to the terms and conditions of this
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Agreement, the Purchaser agrees to purchase at the Closing (as defined herein),
and the Company agrees to sell and issue to the Purchaser at the Closing, such
number of Shares (the "Offered Shares") equal to $1,000,000 divided by the Price
per Share, as defined herein, in consideration of payment by Purchaser to the
Company of an aggregate purchase price (the "Purchase Price") equal to the
product of the Price per Share and the number of Offered Shares; provided
however that no fractional Share shall be issued and the Purchase Price shall
be adjusted to such amount as to result in a whole number of Offered Shares as
close to, but not exceeding, 100,000. As used herein, "Price per Share" shall
mean the price to the public per share of Common Stock in the Stock Offering
less the underwriting discount per share of Common Stock in the Stock
Offering.
SECTION 2
Closing Date; Delivery
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2.1 Closing Date. The closing of the purchase and sale of the Shares
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hereunder (the "Closing") shall be held at the time and place of the closing of
the Stock Offering (the time of the Closing is hereinafter referred to as the
"Closing Date").
2.2 Delivery.
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(a) At least one business day prior to the Closing Date, the
Purchaser will deliver to Account No. ▇▇▇▇▇-▇▇▇▇▇, Bank of America (ABA Ref.
No.▇▇▇▇▇▇▇▇▇) (the "Account") cash or a certified check in the amount of the
Purchase Price. The Purchaser shall not instruct Bank of America to disburse
funds deposited in the Account pursuant to this clause (a) except in
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accordance with the provisions of clauses (c) and (d) hereof.
(b) At the Closing, the Company will deliver to the Purchaser a
certificate or certificates registered in the Purchaser's name, representing the
Shares to be purchased by such Purchaser at the Closing.
(c) At the Closing, the Purchaser will cause Bank of America to
deliver to the Company by check or wire transfer all amounts held in the Account
pursuant to instructions provided by the Company.
(d) On the earlier to occur of (x) the first business day following
Closing Date and (y) June 1, 1997, the Purchaser may deliver written
instructions to Bank of America to deliver to each Purchaser any amounts
delivered by such Purchaser pursuant to clause (a) that were not disbursed, or
were not required to be disbursed, pursuant to clause (c).
SECTION 3
Representations and Warranties of the Company
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The Company represents and warrants to the Purchaser as of each of the date
hereof and the Closing Date as follows:
3.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing as a domestic corporation under the laws of
such state. The Company is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the ownership or
leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company.
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3.2 Corporate Power. The Company has all requisite legal and corporate
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power and authority to execute and deliver this Agreement and to sell and issue
the Shares hereunder.
3.3 Authorization. All corporate action on the part of the Company, its
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directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement by the Company, the authorization, sale,
issuance and delivery of the Shares and the performance of all of the Company's
obligations hereunder have been or will be taken prior to the Closing. This
Agreement, when executed and delivered by the Company, shall constitute the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies. The Shares, when
issued in compliance with the provisions of this Agreement will be validly
issued, fully paid and nonassessable and will be free of any liens or
encumbrances other than any liens or encumbrances created by or imposed upon the
holders; provided, however, that the Shares are subject to restrictions on
transfer under state and/or federal securities laws.
3.4 Brokers. The Company has not dealt with any broker, finder,
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commission, agent or other person in connection with the sale of the Shares and
the transactions contemplated by this Agreement.
3.5 Registration Statement Effective. The Registration Statement has
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been declared effective under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted by or, to the knowledge of the Company,
threatened by the Securities and Exchange Commission.
SECTION 4
Representations and Warranties of the Purchaser
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Representations and Warranties of the Purchaser. The Purchaser hereby
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represents and warrants to the Company effective as of each of the date hereof
and the Closing Date, as follows:
4.1 Purchase for Own Account; No View to Distribution. The Purchaser is
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purchasing the Shares for its account only and not with a view to undertake any
"distribution" thereof within the meaning of the Securities Act.
4.2 Acknowledgment of Receipt of Prospectus. The Purchaser hereby
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acknowledges receipt from the Company of each of (i) that certain Preliminary
Prospectus dated as of February __, 1997 constituting a part of the Registration
Statement and (ii) that certain Final Prospectus of even date herewith
constituting a part of the Registration Statement.
4.3 No Legal, Tax or Investment Advice. The Purchaser understands that
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nothing in the Registration Statement, this Agreement or any other materials
presented to the Purchaser in
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connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice. The Purchaser has consulted such legal, tax and investment
advisors as he, in his sole discretion, has deemed necessary or appropriate in
connection with his purchase of the Shares.
4.4. Authorization. The Purchaser has full legal capacity to execute and
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deliver this Agreement. This Agreement when executed and delivered by the
Purchaser shall constitute the legal, valid and binding obligation of the
Purchaser, enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
SECTION 5
Conditions to Closing of Purchaser
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The Purchaser's obligation to purchase the Shares at the Closing is, at the
option of the Purchaser, subject to the fulfillment or waiver as of the Closing
Date of the following conditions:
5.1 Representations and Warranties Correct. The representations and
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warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date.
5.2 Covenants. All covenants, agreements and conditions contained in
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this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.3 Consents and Permits. The Company shall have received all consents,
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permits and other authorizations, and made all such filings and declarations, as
may be required pursuant to any law, statute, regulation or rule (Federal,
state, local and foreign) in connection with the transactions to be consummated
on or prior to the Closing Date contemplated by this Agreement and the other
documents including the issuance and sale of the Shares to the Purchaser, and
pursuant to all other agreements, orders and decrees to which the Company is a
party or to which the Company is subject, in connection with the transactions to
be consummated on or prior to the Closing Date contemplated by this Agreement
and the other documents.
5.4 Effectiveness of the Registration Statement. No stop order
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suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted by or, to
the knowledge of the Company, threatened by the Securities and Exchange
Commission.
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SECTION 6
Conditions to Closing of Company
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The Company's obligation to sell and issue the Shares at the Closing is, at
the option of the Company, subject to the fulfillment or waiver of the following
conditions:
6.1 Representations and Warranties Correct. The representations and
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warranties made by the Purchaser in Section 4 hereof shall be true and correct
in all material respects when made, and shall be true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of said date.
6.2 Covenants. All covenants, agreements and conditions contained in
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this Agreement to be performed by the Purchaser on or prior to the Closing Date
(including, without limitation, delivery of payment to the Company pursuant to
Section 2.2 in respect of the several purchases of the Shares) shall have been
performed or complied with in all material respects.
6.3 Consents and Permits. The Company shall have received all consents,
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permits and other authorizations, and made all such filings and declarations, as
may be required pursuant to any law, statute, regulation or rule (Federal,
state, local and foreign) in connection with the transactions to be consummated
on or prior to the Closing Date contemplated by this Agreement and the other
documents including the issuance and sale of the Shares to the Purchaser, and
pursuant to all other agreements, orders and decrees to which the Company is a
party or to which the Company is subject, in connection with the transactions to
be consummated on or prior to the Closing Date contemplated by this Agreement
and the other documents.
6.4 No Material Judgment or Order. There shall not be on the Closing
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Date any judgment or order of a court of competent jurisdiction or any ruling of
any agency of the Federal, state or local government that, in the reasonable
judgment of the Company, would prohibit the sale or issuance of the Shares
hereunder or subject the Company to any material penalty if the Shares were to
be issued and sold hereunder.
6.5 Effectiveness of the Registration Statement. No stop order
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suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted by or, to
the knowledge of the Company, threatened by the Securities and Exchange
Commission.
6.6 Completion of the Stock Offering. The Company shall have consummated
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the sale and issuance of not less than $25,000,000 worth of shares of Common
Stock in the Stock Offering.
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SECTION 7
Miscellaneous
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7.1 Waivers and Amendments. This Agreement may not be waived or amended
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without the written consent of the Company and the Purchaser.
7.2 Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
7.3 Survival. The representations, warranties, covenants and agreements
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made in this Agreement shall survive any investigation made by the Company or
the Purchaser and the Closing.
7.4 Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
7.5 Successors and Assigns. The provisions of this Agreement shall inure
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to the benefit to, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to this Agreement.
7.6 Entire Agreement. This Agreement constitutes the full and entire
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understanding and agreement between the parties with regard to the subjects
thereof.
7.7 Notices, etc. All notices and other communications required or
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permitted under this Agreement shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, overnight delivery service
or U.S. mail, in which event it may be mailed by first-class, certified or
registered, postage prepaid, addressed to the Company or the Purchaser, as the
case may be, at their respective addresses set forth at the beginning of this
Agreement in the case of the Company at such other address as the Company or the
Purchaser shall have furnished to the other party in writing.
7.8 Expenses. Each party will pay its own costs and expenses incurred in
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connection with the negotiation, execution and closing of this Agreement and the
transactions contemplated hereby.
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7.9 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
NEOMAGIC CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President & CEO
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MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: General Manager, Palo Alto Office
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* * * STOCK PURCHASE AGREEMENT * * *
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