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EXHIBIT 10.1
INTELLICORP, INC.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK PURCHASE AGREEMENT ("Purchase Agreement")
is made and entered into this 8th day of March, 2001 by and between INTELLICORP,
INC., a Delaware corporation (the "Company"), and the Purchasers listed in
Schedule 1.1 attached hereto (the "Purchasers" and individually, a "Purchaser").
R E C I T A L S:
A. The Board of Directors of the Company has adopted the Certificate
Designation, Preferences and Rights of the Series C Preferred Stock (the
"Certificate of Designation") in the form attached hereto as Exhibit 1 which
establishes the rights, preferences and privileges of the Company's $0.001 par
value Series C Preferred Stock (the "Series C Preferred Stock").
B. The Company desires to issue and the Purchasers desire to acquire up
to 4,880 shares of Series C Preferred Stock and warrants to purchase 1,084,445
shares of Common Stock (the "Warrants") subject to the terms and conditions set
forth in this Purchase Agreement.
A G R E E M E N T:
NOW, THEREFORE, IT IS AGREED as follows:
1. Issue of Preferred Stock and Warrants.
1.1 Subject to the terms and conditions hereof, the Company has
authorized the issue of:
(a) Up to 4,880 shares of Series C Preferred Stock of the Company
for delivery to the Purchasers in the amounts set forth in Schedule 1.1 attached
hereto against payment to the Company by each Purchaser of the amount set forth
in Schedule 1.1 by wire transfer in same day or next day funds.
(b) Up to 4,337,777 shares of Common Stock (which number may be
adjusted as provided in the Certificate of Designation) upon conversion of the
Shares in accordance with the terms of the Certificate of Designation, shares of
Common Stock which may be issued as dividends on the Shares through February 1,
2002 (the "Dividend Shares") and 1,084,445 shares of Common Stock issuable upon
exercise of the Warrants as described below.
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1.2 Subject to the terms and conditions of this Purchase
Agreement, the Company shall issue and sell to the Purchasers and the Purchasers
shall purchase from the Company a total of 4,880 shares of Series C Preferred
Stock (the "Shares") and warrants to acquire 1,084,445 shares of Common Stock,
for an aggregate purchase price of $4,880,000. The Shares shall be convertible
into shares of the Company's Common Stock (the "Conversion Shares") as provided
in the Certificate of Designation. Each Purchaser shall receive that number of
Warrants equal to 25% of the number of shares of Common Stock being purchased by
such Purchaser, on an as converted basis, under this Purchase Agreement. The
exercise price of each Warrant shall be $2.00 per share. The number of Shares
and Warrants to be purchased by each Purchaser is set forth opposite the name of
each Purchaser on Schedule 1.1. The shares of Common Stock issuable upon
exercise of the Warrants are referred to herein as the "Warrant Shares", and the
Shares, the Conversion Shares, the Warrants, the Dividend Shares and the Warrant
Shares are referred to collectively as the Securities.
1.3 The closing of the purchase and sale of Shares and the
Warrants shall take place at the offices of Xxxxxx Xxxxxx White and XxXxxxxxx,
000 Xxxxxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m., on March 8, 2001,
or on such other date and at such other time as the parties shall mutually agree
(the "Closing Date").
1.4 If the number of shares Common Stock issuable on conversion
of the Shares is increased by virtue of the provisions of Section 7.4.8 of the
Certificate of Designation (the "Increased Shares"), the Company shall promptly
issue to each Purchaser an additional Warrant to purchase 25% of the number of
the Increased Shares applicable to the Shares held by such Purchaser. If Shares
are redeemed pursuant to the Certificate of Designation, there will not be any
adjustments to the number of Warrants issued to the Purchasers.
2. Representations and Warranties of the Company. The Company
represents and warrants that:
2.1 It is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware, and duly qualified to do
business and in good standing as a foreign corporation in the State of
California, with full power and authority, corporate and otherwise, to enter
into and perform this Agreement, and to make, execute and deliver the various
instruments and documents provided for herein.
2.2 The execution, delivery and performance by the Company of
this Purchase Agreement, and the making, execution and delivery by the Company
of the instruments contemplated hereby, have been duly authorized by all
necessary corporate action and will not violate any provision of law, court
order or decree, or of its Certificate of Incorporation or Bylaws, or result in
the breach of or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to any agreement or instrument, to which it is a party, or by which
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it or its property may be bound or affected. This Agreement is a valid and
binding obligation of the Company, enforceable in accordance with its terms.
2.3 The Shares, the Dividend Shares, the Conversion Shares and
the Warrant Shares have been duly authorized and at all times prior to the
conversion of the Shares or the exercise of the Warrants will have been duly
reserved for issuance and, when issued, will be validly issued, fully paid and
nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions other than any liens or encumbrances created by or imposed on the
holder thereof through no action of the Company. Assuming the truth and accuracy
of the representations made by the Purchasers, the offer, sale and issuance of
the Securities are exempt from the registration requirements of the Securities
Act and applicable state securities laws, and neither the Company nor any
authorized agent acting on its behalf has taken or will take any action
hereafter that would cause the loss of such exemption.
2.4 The authorized capital of the Company is 50,000,000 shares of
Common Stock, $.001 par value per share and 2,000,000 shares of preferred stock,
$.001 par value, of which 21,701,000 shares of Common Stock, 411,290 shares of
Series A Preferred Stock and 5,000 shares of Series B Preferred Stock are issued
and outstanding, respectively. There are no shares of preferred stock reserved
for issuance, except as set forth herein. There are no shares of Common Stock
reserved for issuance on exercise of options and warrants or conversion of
convertible securities, except as set forth on Schedule 2.4 hereto.
2.5 There are no law suits or proceedings pending, or, to the
Company's knowledge, threatened against or affecting the Company and there are
no proceedings before any governmental commission, bureau or other
administrative agency pending, or, to the Company's knowledge, threatened
against the Company.
2.6 Any and all licenses and approvals required by the Company
for the conduct of its business have been obtained from the federal, state or
local authorities concerned, all of which are in good standing, except where the
failure to receive such licenses or approvals would not, individually or in the
aggregate, have a material adverse effect on the financial condition,
operations, business, assets or properties of the Company.
2.7 The minute books of the Company have been properly kept and
reflect all transactions entered into by the Company which require submission to
or action by the stockholders or directors of the Company.
2.8 No governmental permit, consent, approval or authorization
(other than as required by any applicable state securities law) is required in
connection with (i) the execution and delivery of this Purchase Agreement by the
Company or (ii) the offer, sale, issuance and delivery of the Securities
contemplated hereby by the Company;
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provided that, all representations made to the Company by the Purchasers in this
Purchase Agreement are assumed for purposes of this representation and warranty
to be accurate and complete.
2.9 Included in the Company's Annual Report on Form 10-KSB for
the fiscal year ended June 30, 2000 are the consolidated balance sheets of the
Company at June 30, 2000 and June 30, 1999, and the consolidated statements of
operations, cash flows and stockholders equity for the year ended June 30, 2000
with the report thereon of Ernst & Young LLP, independent auditors.
2.10 None of the Company's reports and filings with the
Securities and Exchange Commission ("SEC") when filed contained a misstatement
of a material fact or omitted to state a material fact necessary to make the
statements contained therein, in the light of the circumstances in which they
were made or omitted, not misleading.
2.11 The Company's Common Stock is traded on Nasdaq SmallCap
Market, and within 20 days of this Agreement the Conversion Shares, Warrant
Shares and the Dividend Shares shall be listed for trading with Nasdaq.
2.12 Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration of the Securities being
offered hereby under the Securities Act or cause this offering of Securities to
be integrated with any prior offering of securities of the Company for purposes
of the Securities Act or any applicable stockholder approval provisions.
2.13 The Company is currently eligible to register the resale of
its Common Stock on a registration statement on Form S-3 under the Securities
Act. There exist no facts or circumstances (including without limitation any
required approvals or waivers of any circumstances that may delay or prevent the
obtaining of accountant's consents) that would prohibit or delay the preparation
and filing of a registration statement on Form S-3 with respect to the
Securities, or delay the effectiveness of such registration statement.
2.14 Changes. Except as otherwise disclosed herein or the reports
listed in paragraph 2.10 hereof, between December 31, 2000 and the date of this
Agreement there has not been:
(a) any change in the assets, liabilities, financial condition,
prospects or operations of the Company from that reflected in the Quarterly
Report, except changes in the ordinary course of business which have not been,
either in any individual case or in the aggregate, materially adverse;
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(b) any material change in the contingent obligations of the
Company, whether by way of guaranty, endorsement, indemnity, warranty or
otherwise;
(c) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties or business of the
Company;
(d) except for the dividend payment on outstanding preferred
stock of the Company, any declaration or payment of any dividend or other
distribution of the assets of the Company;
(e) any labor organization activity; or
(f) to the best of the Company's knowledge, any other event or
condition of any character which has materially and adversely affected the
Company's assets, liabilities, financial condition, prospects or operations.
2.15 Intellectual Property. To the Company's knowledge, the
Company has not violated and is not currently in violation of any copyright,
trademark or other intellectual property rights of any third persons, except to
the extent that such violation does not materially and adversely affect the
Company or its operations.
2.16 Investment Company. The Company represents and warrants that
it is not an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"). In addition, the Company agrees that it shall not become an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the 1940 Act. In the event that the Company breaches the
foregoing, the Company shall forthwith notify the Purchasers and shall take
immediate corrective action to remedy such breach.
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3. Representations of Purchaser. This Purchase Agreement is made
with each Purchaser by the Company in reliance upon such Purchaser's
representations to the Company, which by such Purchaser's acceptance hereof,
such Purchaser confirms, that (a) Purchaser is acquiring the Shares for its own
account and not for the beneficial interest of any other person, and not with a
view to the distribution thereof, and that Purchaser will not distribute, sell
or otherwise dispose of the Shares, or the Warrants, or any of the shares of
Common Stock of the Company issuable upon conversion of the Shares or the
Warrants, except as permitted under the Securities Act of 1933, as amended (the
"Act"), the General Rules and Regulations thereunder, and all applicable State
"Blue Sky" laws; (b) Purchaser's financial circumstances are such as to permit
Purchaser to make this investment without having a present intention or need to
liquidate its investment; (c) Purchaser severally confirms further that it has
been advised that none of the Shares, the Warrants, or the Common Stock issuable
upon the conversion thereof have been registered under the Act, and that,
accordingly, such Shares, shares of Common Stock and the Warrants will be what
is commonly known as "restricted securities," and are not freely transferrable
by Purchaser except pursuant to an exemption from registration under the Act,
such as Rule 144, the substance of which has been explained to Purchaser or upon
registration of the Common Stock under the Act; (d) Purchaser is an "accredited
investor" as that term is defined in SEC Regulation D, (e) Purchaser is
knowledgeable about the software industry and the Company's products and has had
the opportunity to discuss with Company management the Company and its products,
prospects, results of operation and financial condition and to have access to
any and all information regarding the Company that Purchaser deems necessary to
its decision to purchase the Shares, and (f) that the following legends shall be
placed on the Certificates evidencing the Shares (and, on the Warrants,
Conversion Shares and the Warrant Shares):
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, PURSUANT TO SECTION 4(2) OF SAID ACT AND NOT WITH A
VIEW TO OR IN CONNECTION WITH THE DISTRIBUTION THEREOF. NEITHER THESE
SECURITIES NOR THE SECURITIES ISSUED UPON CONVERSION HEREOF MAY BE
OFFERED FOR SALE OR SOLD OR OTHERWISE DISPOSED OF EXCEPT UPON
COMPLIANCE WITH SAID ACT."
4. Registration.
4.1 Within 20 days following the execution of this Agreement the
Company shall prepare and file with the Commission a registration statement on
Form S-
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3 sufficient to permit the public offering and sale by the Purchasers of the
Conversion Shares and the Warrant Shares through the facilities of all
appropriate securities exchanges and the over-the-counter market, and will use
its best efforts through its officers, directors, auditors and counsel to cause
such registration statement to become effective within 90 days following the
execution of this Agreement (or 120 days following the execution of this
Agreement in the event of a written review of such registration statement by the
Commission). Any registration statement which becomes effective pursuant to the
provisions of this paragraph, shall be kept effective by the Company for so long
as any Purchaser owns any of the Shares or Warrants, or any Conversion Shares or
Warrant Shares.
(a) Terms of Registrations. The foregoing rights and duties shall
be subject to the following terms and conditions:
(i) The Company shall bear all of the costs of any
registration statement, including all "blue sky" fees and expenses.
(ii) The Company will use its best efforts to cause such
registration statement to become effective under the Act.
(iii) Other than for 1,850,00 shares of Common Stock which
shall be registered with the Securities, the Company shall not register or file
a registration statement registering any shares of its securities (other than as
provided herein or in connection with employee stock option plans) until the
registration statement covering the Conversion Shares, and Warrant Shares has
been declared effective and remains effective for a period of at least 60
consecutive trading days.
(b) Warrants. If the registration is not declared effective with
such 90 day (or 120 day if the registration is reviewed in writing by the
Commission) period, as described above, additional Warrants shall be issued at
the rate of 15% of the number of Warrants issued to the Purchaser for each month
(or partial month) thereafter that the registration statement is not declared
effective. If after the registration is declared effective the holders are not
able to sell the Common Stock pursuant to the registration statement, the
Company shall grant additional Warrants to holders of the Shares at the rate of
15% of the number of Warrants initially granted for each month (or partial
month) thereafter that the holder is not able to sell under the registration
statement, provided however, the Company shall be able to declare a black-out
period of no more than 10 days per calendar year without having to issue
additional Warrants; provided however, in no event shall the Company declare or
allow to exist a blackout period in excess of 60 days.
4.2 In connection with any registration pursuant to Section 5.1, the
Company will (i) use its best efforts to permit a lawful distribution by
Purchasers in the manner specified by Purchasers; (ii) use its best efforts to
qualify or otherwise "blue sky"
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the proposed offering by Purchasers in such states as the Purchasers shall
reasonably request; provided, however, that nothing herein contained shall
require the Company to qualify as a foreign corporation in a jurisdiction in
which it is not presently qualified or to become licensed as a securities broker
or dealer in any jurisdiction; (iii) provide Purchasers with a reasonable number
of registration statements and prospectuses (including amendments and revisions)
requested by Purchasers; and (iv) use its best efforts to have such prospectuses
meet the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
4.3 The Company's obligations under this Section 4 are
conditioned upon its being furnished by each Purchaser with descriptions of such
Purchaser's Common Stock to be covered in the requested registration statement,
the proposed method of distribution, and such other relevant information as may
be required.
4.4 In connection with any registration statement pursuant to
this Section 4, Purchasers shall indemnify and hold harmless the Company and
each person (if any) who controls the Company within the meaning of Section 15
of the Act from and against all losses, claims, damages and liabilities to which
the Company or any of them may be subject, actually or allegedly caused by any
untrue statement of a material fact contained in any such registration statement
or related prospectus or actually caused by an omission to state therein a
material fact actually required to be stated therein or necessary to make the
statements therein not misleading, which statement or omission shall have been
made in reliance upon and in conformity with written information furnished to
the Company by Purchasers or the Purchaser's agent specifically for use in
connection with such registration statement; provided however, that the
Purchasers' liability under this Purchase Agreement shall be limited to the net
proceeds received from the sale of the Shares. Reciprocally, the Company hereby
agrees to indemnify and hold harmless Purchasers, any broker or other person who
may be deemed an underwriter for a Purchaser and each person (if any) who
controls a Purchaser or Purchaser's underwriter within the meaning of Section 14
of the Act, from and against all losses, claims, damages and liabilities to
which such parties or any of them may be subject, actually or allegedly caused
by any untrue or allegedly untrue statement of a material fact contained in any
such registration statement or related prospectus or actually or allegedly
caused by any omission to state therein a material fact actually or allegedly
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such statement or omission shall have been made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of a Purchaser specifically for use in connection with
such registration statement.
(a) Subject to subsection (b) below, the foregoing
indemnity shall include reimbursements for any reasonable legal or other
expenses incurred by the indemnified party or any director, officer or
controlling person, as defined above, in connection with investigating or
defending any such loss.
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(b) Promptly after receipt by an indemnified party under
this Section 4.4 of notice of commencement of any action, the indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 4.4, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability to any indemnified party except to the extent that the
failure to so notify such party adversely affected the indemnifying party. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the latter will be entitled
to participate therein, and to the extent desired, jointly, with any other
indemnifying party similarly notified, assume the defense and control the
settlement thereof, with counsel satisfactory to such indemnified party. After
notice from the indemnifying party to such indemnified party as to its election
so to assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 4.4 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable cost of investigation.
(c) The Company and Purchasers each have the right to make
a reasonable investigation of the information contained in any registration
statement covered by this Section 4 to confirm its accuracy, subject, however,
to the obligation of the party making such investigation to keep in confidence
any information derived until such time as the information is filed with the
SEC.
4.5 To the extent transfers of any of the Securities are
permitted pursuant to Section 3(a) hereof, Purchaser may transfer, assign or
otherwise transfer of its rights under this Section 4, as a whole or in part,
but no such action by Purchaser shall increase or otherwise affect the nature or
extent of the Company's obligations provided in this Section.
4.6 If any holder of Series C Preferred is granted Board of
Directors observer rights and exercises such rights, such holder shall comply
with the Company's policy regarding trading window periods.
4.7 With a view to making available to Purchasers the benefits of
Rule 144 promulgated under the Securities Act and any other rule or regulation
of the SEC that may at any time permit Purchasers to sell securities of the
Company to the public without registration or pursuant to a registration on Form
S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times from and after the date
of this Agreement so long as the Company remains subject to the periodic
reporting requirements under Sections 13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
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(c) furnish to each Purchaser, so long as such Purchaser owns any
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Securities
Act and the Exchange Act, or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company and (iii) such other information
as may be reasonably requested in availing such Purchaser of any rule or
regulation of the SEC which permits the selling of any the Conversion Shares,
Dividend Shares and Warrant Shares without registration or pursuant to such
form.
4.8 Further Obligations of the Company. In connection with the
registration obligations of the Company pursuant to this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Conversion Shares,
Dividend Shares and Warrant Shares owned by them; and
(b) provide a transfer agent and registrar for all Conversion
Shares, Dividend Shares and Warrant Shares registered pursuant hereunder and a
CUSIP number for all such shares, in each case not later than the effective date
of such registration.
5. Board Representation.
In accordance with the Certificate of Determination, the Purchasers,
voting as a single class, shall be entitled to elect one member of the Board of
Directors of the Corporation. Following the election of such nominee as a
director, such person shall receive no more or less compensation than is paid to
other non-officer directors of the Company for attendance at meetings of the
Board of Directors of the Company and shall be entitled to receive reimbursement
for all reasonable costs incurred in attending such meetings including, but not
limited to, food, lodging and transportation. The Company agrees to indemnify
and hold such director harmless, to the maximum extent permitted by the
Corporation's Restated Certificate of Incorporation or state law, against any
and all claims, actions, awards and judgments arising out of his service as a
director and, in the event the Company maintains a liability insurance policy
affording coverage for the acts of its officers and directors, to include such
director as an insured under such policy. The rights and benefits of such
indemnification and the benefits of such insurance shall, to the extent
possible, extend to the Purchaser insofar as it may be or may be alleged to be
responsible for such director.
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6. Covenants of the Company. The Company agrees that, while any
Shares or Warrants issued hereunder remain outstanding in the name of the
Purchaser, it will do the following:
6.1 The Company will not sell, lease or convey all or
substantially all of its assets or shares of capital stock without the written
consent of Purchaser.
6.2 Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, shall, directly or indirectly, make any
offers or sales of any security or solicit any offers to buy any security under
circumstances that would require registration of the Securities being offered
hereby under the Securities Act or cause this offering of Securities to be
integrated with any prior or future offering of securities of the Company for
purposes of the Securities Act or any applicable stockholder approval
provisions.
6.3 So long as the Purchasers beneficially own any Securities,
the Company shall timely file all reports required to be filed with the SEC
pursuant to the Exchange Act, and shall not terminate its status as an issuer
required to file reports under the Exchange Act even if the Exchange Act or the
rules and regulations thereunder would permit such termination. The Company's
obligation in this Section 6.3 will terminate in the event of a merger or
consolidation, wherein the Company is not the surviving or successor entity.
7. Expenses. Upon the Closing, the Company shall pay the Purchasers
the reasonable fees and expenses, including reasonable attorney fees for
PaloAlto Investors, in the amount not to exceed $20,000.
8. Notices. Any notice or demand required or desired to be given to
or served upon the Company or Purchaser in connection herewith shall be in
writing and deemed to have been sufficiently given or served for all purposes
when delivered in person or when deposited in the United States mails, certified
or registered, postage prepaid, if to the Company, addressed or delivered as
follows:
If to the Company:
IntelliCorp, Inc.
0000 Xx Xxxxxx Xxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: President
If to Purchaser: at the address set forth on Schedule 1.1
attached hereto, or, if any other address shall at any time be designated by the
Company or by Purchaser in writing in conformance with the provisions hereof, to
such other address.
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9. Legal Opinion. The Purchaser shall have received an opinion of
counsel to the Company, dated as of the Closing Date, in substantially the form
of Exhibit 9 attached hereto.
10. Parties in Interest. All the terms and provisions of this
Purchase Agreement shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
11. Governing Law. This Purchase Agreement shall be construed in
accordance with and governed by the laws of the State of California.
12. Section and other Headings. Section and other headings herein
are for reference purposes only, and shall not be used in any way to govern,
limit, modify, construe or otherwise affect this Agreement.
13. Counterparts. This Purchase Agreement may be executed with
Purchasers in one or more counterparts, each of which shall be deemed an
original, but all of which together shall be deemed but one and the same
instrument.
14. Amendment. This Purchase Agreement may be amended by written
agreement of the Company and the holders of the 75% of the then outstanding
Shares with respect to the matters referred to herein. Any such amendment,
waiver or consent shall be binding upon the parties hereto.
15. Expense of Enforcement. If any action, proceeding or litigation
is commenced to enforce any provision of this Purchase Agreement, then the
prevailing party shall be entitled to be reimbursed by the unsuccessful party
for all costs incurred in connection with such action, proceeding or litigation,
including a reasonable allowance for attorneys' fees and costs, which amount
shall be added to and become part of the final decision in such matter.
IN WITNESS WHEREOF, this Agreement has been executed and delivered on
the date first above written by the duly authorized representative of the
Company.
COMPANY: INTELLICORP, INC.
By:
-----------------------------------------
Xxxxxxx X. Xxxx
Chief Executive Officer
Address: 0000 Xx Xxxxxx Xxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
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PURCHASERS: BANNER PARTNERS MINARET
By:
--------------------------------------------
Xxxx Xxxxxxx, Registered Investment Advisor
XXXXXXX X. XXXXXX, III REVOCABLE TRUST
By:
--------------------------------------------
Xxxx Xxxxxxx, Registered Investment Advisor
XXXX X. XXXXXXX
By:
--------------------------------------------
Xxxx Xxxxxxx, Registered Investment Advisor
MICRO CAP PARTNERS, L.P.
By: Palo Alto Investors LLC, General Partner
By: Palo Alto Investors, Inc., Manager
By:
--------------------------------------------
Xxxx Xxxxxxx, President
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MICRO-MOUSSE PARTNERS, L.P.
By: Palo Alto Investors LLC, General Partner
By: Palo Alto Investors, Inc., Manager
By:
--------------------------------------------
Xxxx Xxxxxxx, President
UBTI FREE, L.P.
By: Palo Alto Investors LLC, General Partner
By: Palo Alto Investors, Inc., Manager
By:
--------------------------------------------
Xxxx Xxxxxxx, President
PALO ALTO CROSSOVER FUND, L.P.
By: Palo Alto Investors LLC, General Partner
By: Palo Alto Investors, Inc., Manager
By:
--------------------------------------------
Xxxx Xxxxxxx, President
ASHFORD CAPITAL MANAGEMENT, INC.
with discretion f/b/o
Ashford Capital Partners, L.P.
By:
--------------------------------------------
Xxxxxxxx X. Xxxxxxx for
Ashcap Corp.
General Partner
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ASHFORD CAPITAL MANAGEMENT, INC.
with discretion f/b/o
Anvil Investment Associates, L.P.
By:
----------------------------------------
Xxxxxxxx X. Xxxxxxx for
Anvil Management Co., LLC
General Partner
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EXHIBIT 1
CERTIFICATE OF DESIGNATION
17
SCHEDULE 1.1
SCHEDULE OF PURCHASERS
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NAME NUMBER OF NUMBER OF
SHARES WARRANT SHARES PURCHASE PRICE
---------------------------------------------------------------------------------------------
Banner Partners Minaret 675 150,000 $675,000
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Xxxxxxx X. Xxxxxx, III Revocable Trust 34 7,556 $34,000
---------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxx 45 10,000 $45,000
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Micro Cap Partners, L.P. 1,426 316,889 $1,426,000
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Micro-Mousse Partners, L.P. 174 38,667 $174,000
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UBTI Free, L.P. 146 32,444 $146,000
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Palo Alto Crossover Fund, L.P. 500 111,111 $500,000
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Anvil Investment Associates, L.P. 880 195,556 $880,000
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Ashford Capital Partners, L.P. 1,000 222,222 $1,000,000
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TOTAL 4,880 1,084,445 $4,880,000.00
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18
SCHEDULE 2.4
Common Stock 21,701,000
Series A Preferred(1) 411,290
Series B Preferred(2) 5,000
Employee Options(3) 4,039,338
Warrants 1,409,418
(1) Convertible into 860,265 shares of Common Stock.
(2) Convertible into 2,710,027 shares of Common Stock.
(3) 5,283,805 shares are available for issuance under existing employee
stock option plan.
