EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
September 1, 2000, by and among Geoworks Corporation, a Delaware corporation
("Company"), Integral Capital Partners V, Side Fund, L.P., a Delaware limited
partnership, and Integral Capital Partners V, L.P., a Delaware limited
partnership (collectively, "Purchaser").
The parties hereby agree as follows:
1. DEFINITIONS.
1.1 "Agreement" shall mean, and the words "herein," "hereof,"
"hereunder" and words of similar import shall refer, to this instrument and any
amendment hereto.
1.2 "Commission" shall refer to the Securities and Exchange Commission.
1.3 "Commissioner" shall refer to the California Commissioner of
Corporations.
1.4 "Common Stock" shall refer to the common stock, par value $.001 per
share, of Company.
1.5 "Registration Rights Agreement" shall refer to that certain
Registration Rights Agreement, of even date herewith, to be made by and between
Company and Purchaser.
1.6 "Person" shall refer to any corporation, trust, partnership,
individual, association, or other entity.
1.7 The "Securities Act" shall refer to the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
1.8 The "Securities Exchange Act" shall refer to the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
2. PURCHASE AND SALE. Subject to the terms and conditions set forth herein,
Company agrees to sell to Purchaser and Purchaser agrees to purchase from
Company, in the aggregate of THREE HUNDRED FIFTY-FIVE THOUSAND FIVE HUNDRED
FIFTY-SIX (355,556) shares of Common Stock ("Purchased Stock"), 350,312 shares
to Integral Capital Partners V, L.P., and 5,244 shares to Integral Capital
Partners V, Side Fund, L.P., for an aggregate purchase price of FIVE MILLION AND
00/100 DOLLARS ($5,000,000.00) allocated pro rata ("Purchase Price"). The
closing of the issuance of the Common Stock (the "Closing") will take place at
the offices of ▇▇▇▇▇ ▇▇▇▇ LLP, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, on September 1, 2000, or at such other time and place thereafter as
Company and Purchaser may direct. At the Closing, Company will deliver to
Purchaser a certificate(s) in the name of Purchaser representing the Purchased
Stock ("Certificate").
1
3. CONDITIONS OF PURCHASER'S OBLIGATIONS
The obligation of Purchaser to consummate the transactions contemplated
at the Closing is subject to the satisfaction on or before the date of the
Closing of the following conditions, all or any of which may be waived in
writing by Purchaser:
3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties in
Section 5 will be true and correct at and as of the date of the Closing as
though then made, except to the extent of changes caused by the transactions
expressly contemplated herein.
3.2 EXAMINATION OF BOOKS AND RECORDS.
RECORDS. Company shall have made available to Purchaser or its representatives
for inspection all of Company's books, records, contracts, and documents of, or
relating to, Company, or any of its officers, directors, and employees, during
normal business hours.
3.3 CLOSING FEES. Company shall pay to Purchaser their legal fees in an
amount not to exceed Five Thousand Dollars ($5,000).
3.4 REGISTRATION RIGHTS AGREEMENT. Company shall have executed and
delivered to Purchaser the Registration Rights Agreement.
3.5 DELIVERY OF CERTIFICATE. Company shall have tendered the
Certificate to Purchaser.
3.6 OPINION OF COMPANY COUNSEL. Purchaser at the Closing shall
have received from ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to Company, an opinion dated as of
the Closing, in substantially the form attached hereto as EXHIBIT 3.6.
4. CONDITIONS OF COMPANY'S OBLIGATIONS.
The obligation of Company to issue the Purchased Stock is subject to
the satisfaction on or before the date of the Closing of the following
conditions, all or any of which may be waived in writing by Company:
4.1 REPRESENTATIONS AND WARRANTIES. The following representations and
warranties are made by Purchaser and are now and will be true and correct at and
as of the date of the Closing:
(i) This Agreement constitutes a valid and legally binding
obligation of Purchaser, enforceable in accordance with its terms,
subject to bankruptcy and other laws of general application affecting
the rights and remedies of creditors and the availability of equitable
remedies.
(ii) This Agreement is made with Purchaser in reliance upon
Purchaser's representations to Company, which, by Purchaser's
execution of this Agreement, Purchaser hereby confirms, that (A) the
Purchased Stock is being acquired for investment for Purchaser's own
account, not as a nominee or agent, and not with a
2
view to the resale or distribution of any part thereof to the public,
and that Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same to; (B) Purchaser
does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to person or to
any third person, with respect to any of the Purchased Stock other
than to accredited investors as defined in Section 4.1 (vi); (C)
Purchaser is not an underwriter of the Purchased Stock within the
meaning of Section 2(11) of the Securities Act; and (D) Purchaser has
full power and authority to enter into this Agreement.
(iii) Purchaser has not been attracted to the purchase of the
Purchased Stock by any publication or any advertising, and the
transactions contemplated by this Agreement are not being effected by
or through a broker-dealer.
(iv) Purchaser believes it has received the information it
considers necessary or appropriate for deciding whether to purchase
the Purchased Stock, and represents that it has had an opportunity to
ask questions and receive answers from Company regarding Company, its
business and prospects, and the terms and conditions of the offering
of the Purchased Stock.
(v) Purchaser has not been organized for the purpose of
acquiring the Purchased Stock and is an investor in securities of
publicly-held and privately-held companies and acknowledges that it is
able to protect its interests in connection with the purchase of the
Purchased Stock, can bear the economic risk of its investment with
full understanding that it can lose its entire investment in the
Purchased Stock without producing a material adverse change in its
financial condition, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Purchased Stock.
(vi) Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated by the Commission, as
presently in effect.
(vii) Purchaser understands that (A) neither the Purchased
Stock nor the sale thereof to it has been registered under the
Securities Act, or under any state securities law; (B) no registration
statement has been filed with the Commission, nor with any other
regulatory authority and that, as a result, any benefit which might
normally accrue to an investor such as Purchaser by an impartial
review of such a registration statement by the Commission or other
regulatory commission will not be forthcoming; and (C) the Purchased
Stock is characterized as "restricted securities" under the federal
securities laws inasmuch as it is being acquired from Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited
circumstances. In this connection, Purchaser represents that it is
familiar with the Commission's Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the
Securities Act.
3
4.2 DELIVERY OF CONSIDERATION. Purchaser shall have tendered the
Purchase Price to Company in the form of immediately available funds.
4.3 BROKERS AND FINDERS. Neither Purchaser nor any of its representatives
has employed any broker, finder, or financial advisor or incurred any liability
for any fees or commissions in connection with initiating the transactions
contemplated herein. Purchaser agrees to indemnify and hold Company harmless
against or in respect of any commissions, finder's fees, or brokerage fees
incurred or alleged to have been incurred with respect to initiating the
transactions contemplated herein as a result of any action of Purchaser.
4.4 CONSENTS. Purchaser shall have obtained any third party consents to
the execution, delivery and performance of this Agreement by Purchaser and the
consummation of the transactions contemplated herein.
4.5 DISCLOSURE. Neither this Agreement, nor any of the schedules,
attachments, written statements, documents, certificates or other materials
prepared or supplied by Purchaser with respect to the transactions contemplated
hereby, contain any untrue statements of a material fact or omit a material fact
necessary to make the statements contained herein or therein not misleading.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY.
Except as (i) disclosed in the documents filed by Company pursuant to
the Securities Act and the Securities Exchange Act, (ii) otherwise set forth in
this Agreement, or (iii) set forth in SCHEDULE 5 attached hereto, Company
represents and warrants, as of the date hereof and as of the Closing, that:
5.1 ORGANIZATION AND CORPORATE POWER. Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, is qualified to do business in the state of its incorporation, and is
qualified as a foreign corporation in any jurisdiction in which the nature of
property owned or leased by it or the conduct of its business requires such
qualification. Company has all requisite corporate power and authority necessary
to own and operate its properties and to carry on its business as now conducted
and as presently proposed to be conducted.
5.2 CAPITAL STOCK AND RELATED MATTERS.
(a) The authorized equity securities of Company consist of 40,000,000
shares of common stock, par value $.001 per share, of which 21,737,957 shares
are issued and outstanding as of August 17, 2000; and 2,000,000 share of
preferred stock, none of which is issued or outstanding. All of the outstanding
equity securities of Company have been duly authorized and validly issued and
are fully paid and nonassessable. Company does not have outstanding any stock or
securities convertible or exchangeable for any equity securities, nor will there
be outstanding any rights or options to subscribe for or to purchase any equity
securities or any stock or securities convertible into or exchangeable for any
equity securities of Company.
4
Company is not subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any of its equity securities. To Company's
knowledge, there are no shareholder agreements, proxies, voting trust agreements
or similar agreements or options granted by any shareholders of Company.
(b) The Purchased Stock shall constitute approximately 1.58% of the
Common Stock outstanding as of the date of this Agreement, assuming (i) all
warrants for Common Stock outstanding as of the date of this Agreement have been
exercised for Common Stock, (ii) all vested options to purchase Common Stock
outstanding as of the date of this Agreement that are exercisable as of the date
of this Agreement have been exercised for Common Stock and (iii) all other
rights outstanding as of the date of this Agreement to acquire Common Stock or
securities convertible into Common Stock have been exercised for or converted
into Common Stock.
5.3 AUTHORIZATION; ENFORCEABILITY. The execution and delivery of this
Agreement has been duly authorized by Company, and this Agreement constitutes a
valid and binding obligation of Company, enforceable in accordance with its
terms, subject to bankruptcy and other laws of general application affecting the
rights of creditors and the availability of equitable remedies.
5.4 VALID ISSUANCE OF STOCK. The Purchased Stock that will be issued to
Purchaser at the Closing will have been duly and validly reserved for issuance
and, when issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and nonassessable, and free of
restrictions on transfer other than restrictions on transfer under this
Agreement and applicable state and federal securities laws. Based in part upon
the representations of Purchaser in this Agreement, the Purchased Stock will be
issued in compliance with all applicable federal and state securities laws.
5.5 LIABILITIES. Company has no liabilities and there are no contingent
liabilities required by generally accepted accounting principles to be disclosed
on a balance sheet that are not disclosed on Company's audited balance sheet as
of March 31, 2000 and/or on Company's unaudited balance sheet as of June 30,
2000, except liabilities that would not result, either individually or in the
aggregate, in any material adverse changes in the business, assets or condition
of Company, financially or otherwise.
5.6 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of the Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or be in conflict with or
constitute, with or without passage of time and giving notice, either a default
under or cause acceleration under any provision of Company's Certificate of
Incorporation or the bylaws of Company, which would (i) have a material adverse
effect on the business, assets or condition of Company, financially or
otherwise, (ii) materially and adversely effect the ability of Company to
perform its obligations under the Agreement or (iii) result in the creation of
any material lien, charge or encumbrance upon any assets of Company.
5.7 MATERIAL AGREEMENTS. Company has filed with the Commission all
agreements in existence as of the date of this Agreement that (a) define or
affect the rights of security holders of Company in their capacity as security
holders including, but not limited to, such security holders'
5
voting rights, registration rights or obligations or (b) are required to be
filed under Item 601 of Regulation S-K.
5.8 FINANCIAL STATEMENTS. Company has delivered to Purchaser its audited
financial statements (balance sheet and statement of operations, statement of
stockholders' equity and statement of cash flows, including notes thereto) at
March 31, 2000 and for the fiscal year then ended, and its unaudited financial
statements (balance sheet and statement of operations) as, at and for the
three-month period ended June 30, 2000 (the "Financial Statements"). Each of the
foregoing Financial Statements is accurate and complete in all material
respects, is consistent with the books and records of Company (which, in turn,
are accurate and complete in all materials respects) and has been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated and with each other, except that
unaudited Financial Statements may not contain all footnotes required by
generally accepted accounting principles. The Financial Statements fairly
present the financial condition and operating results of Company as of the
dates, and for the periods, indicated therein, subject in the case of unaudited
Financial Statements to normal year-end audit adjustments. Except as set forth
in the Financial Statements, Company does not have any liabilities (whether
accrued, absolute, unliquidated, contingent or otherwise, whether or not known
to Company, whether due or to become due and regardless of when asserted)
arising out of transactions entered into, at or prior to the Closing, or any
action or inaction at or prior to the Closing or any state of facts existing at
or prior to the Closing other than (i) liabilities and obligations that have
arisen after June 30, 2000 in the ordinary course of business (none of which is
a liability resulting from breach of contract, breach of warranty, tort,
infringement, claim or lawsuit), and (ii) obligations under contracts and
commitments incurred in the ordinary course of business that would not be
required to be reflected in financial statements prepared in accordance with
generally accepted accounting principles. Except as disclosed in the Financial
Statements, Company is not a guarantor or indemnitor of any indebtedness of any
other Person. Company maintains and will continue to maintain a standard system
of accounting established and administered in accordance with generally accepted
accounting principles.
5.9 CHANGES SINCE THE FILING OF FORM 10-Q. Since the filing of Company's
Form 10-Q for its fiscal quarter ended June 30, 2000:
(i) there has been no material change, adverse or
otherwise, in the business, property, employee relations or conditions,
financial or otherwise, of Company;
(ii) no dividend to stockholders has been declared or paid
by Company;
(iii) no stock of Company has been redeemed or otherwise
acquired by Company, or split or otherwise subdivided;
(iv) no equity securities of Company have been issued;
(v) no union organizing activity has occurred and no key
employee or executive or significant group of employees has terminated his
employment with
6
Company, or indicated a desire to depart from Company or to work less than
full time; and
(vi) there has been no sale or transfer of any of Company's
material assets nor cancellation of any of the material claims of Company
nor the acquisition of any material assets or business of any Person except
in the ordinary course of business, none of which individually or in the
aggregate has been materially adverse to the business, properties,
financial condition or affairs of Company. Company has no knowledge of any
facts or events that would give rise to the occurrence of any of the events
listed in this Section 5.9.
5.10 LITIGATION. There are no actions, proceedings or investigations
pending involving Company, its officers, or directors or, to the best knowledge
of Company, threatened, or verdicts or judgments entered against or in favor of
Company, its officers or directors before any court or before any administrative
agency or officer which might result in any material adverse change in the
business, properties or condition, financial or otherwise, of Company.
5.11 BROKERS AND FINDERS. Neither Company nor any of its representatives
has employed any broker, finder, or financial advisor or incurred any liability
for any fees or commissions in connection with initiating the transactions
contemplated herein. Company hereto agrees to indemnify and hold Purchaser
harmless against or in respect of any commissions, finder's fees, or brokerage
fees incurred or alleged to have been incurred with respect to initiating the
transactions contemplated herein as a result of any action of Company.
5.12 GOVERNMENTAL CONSENT, ETC. Except for the Notice of Sale of Securities
on Form D to be filed with the Commission and the applicable state agencies and
related forms, no further permit, consent, approval, authorization of,
declaration to, or filing with any governmental authority or third-party is
required in connection with the execution, delivery and performance of this
Agreement by Company or the consummation by Company of any transactions
contemplated hereby, except as have already been obtained or accomplished.
5.13 SEC REPORTING; DISCLOSURE. As of the date each was filed, none of
Company's registration statements, reports or other filings made with the
Commission, contained any untrue statement of material fact or omitted to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Neither this
Agreement, nor any of the schedules, attachments, written statements, documents,
certificates or other materials prepared or supplied by Company with respect to
the transactions contemplated hereby, contains any untrue statements of a
material fact or omits a material fact necessary to make the statements
contained herein or therein not misleading.
5.14 INVESTMENT COMPANY. Company is not subject to regulation under the
Investment Company Act of 1940, or to any federal or state statute or regulation
limiting its ability to incur indebtedness.
7
5.15 REAL PROPERTY HOLDING COMPANY. None of Company or its
subsidiaries is or ever was a real property holding company within the meaning
of Section 897(c) of the Internal Revenue Code of 1986, as amended.
5.16 SURVIVAL. The representations and warranties contained in this
Section 5 of the Agreement shall survive the date of the Closing for a period of
one year. Any claim for recovery of an indemnification event must be initiated
not later than 60 days following the expiration of such period.
6. REGISTRATION, TRANSFER OF SECURITIES.
The Purchased Stock is not transferable except upon the conditions
specified in this Section 6, which conditions are intended to insure compliance
with the provisions of the Securities Act and state securities laws in respect
of the transfer of any of such securities.
6.1 RESTRICTIVE LEGENDS. Unless and until otherwise permitted by this
Agreement, each share certificate for the Purchased Stock issued to Purchaser or
to any subsequent transferee shall be stamped or otherwise imprinted with a
legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT
TO AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
Company may order its transfer agent to stop the transfer of any securities
bearing the legend required by this section 6.1 until the conditions herein with
respect to transfer of such securities have been satisfied.
8
6.2 NOTICE OF PROPOSED TRANSFERS.
(a) Prior to any transfer or attempted transfer of any securities
bearing the legend in Section 6.1 (unless such securities properly have been
registered pursuant to an effective registration statement), the holder thereof
shall give Company written notice of its intention so to do, describing briefly
the nature of any such proposed transfer. If, in the written opinion of counsel
for holder, in form and substance satisfactory to Company and its counsel,
addressed to Company and the holder, the proposed transfer may be effected
without registration of such security, the securities proposed to be transferred
may be transferred in accordance with the terms of said notice and in compliance
with applicable state securities laws and regulations. Company shall not be
required to effect any such transfer prior to the receipt of such favorable
opinion or opinions; provided that if the proposed transfer is governed by Rule
144 promulgated by the Commission, or any successor rule, such opinion shall not
be required, but Company may prevent such transfer until it receives evidence
satisfactory to it and its counsel that the transfer complies with Rule 144.
Each transfer shall comply with all applicable Commissioner's rules and
applicable state securities laws.
(b) If, in the opinion of such counsel, the proposed transfer of
such securities may not be effected without registration thereof under the
Securities Act, such holder shall not consummate the proposed transfer.
6.3 RESTRICTION ON TRADING. Purchaser shall not publicly trade in any
equity securities of Company until Company has publicly announced the
transactions set forth in this Agreement, and either (i) the transactions set
forth herein have Closed or (ii) the termination of this Agreement upon the
mutual consent of the parties hereto.
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in Person or
mailed, certified or registered mail with postage prepaid, or sent by courier
service, telex, telegram, or fax, as follows:
(a) if to Purchaser:
Integral Capital Partners V, L.P.
Integral Capital Partners V, Side Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
9
With a copy to:
(which shall not constitute notice)
▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to Company:
Geoworks Corporation.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
(which shall not constitute notice)
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery if the date of transmission is electronically endorsed automatically on
the media or evidenced by courier service documentation. If notice is mailed or
transmitted in a manner in which date of delivery cannot be ascertained from the
media used or courier service records, notice shall be deemed given on the third
business day after the mailing or other transmission or delivery thereof. A
notice of a change of address shall be effective only upon receipt.
7.2 SCHEDULES AND EXHIBITS. All schedules and exhibits are an integral
part of this Agreement.
7.3 ENTIRE AGREEMENT AND AMENDMENT. This Agreement and documents
delivered at the Closing hereunder contain the entire agreement between the
parties hereto with respect to the transactions contemplated by this Agreement
and supersede all other agreements and representations, written or oral, with
respect thereto. This Agreement may be amended or modified in whole or in part,
and any rights hereunder may be waived, only by an agreement in writing, duly
and validly executed in the same manner as this Agreement or by the party
against
10
whom the waiver would be asserted. The waiver of any right hereunder shall be
effective only with respect to the matter specifically waived and shall not act
as a continuing waiver unless it so states by its terms.
7.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be deemed to constitute an original and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party.
7.5 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware.
7.6 ATTORNEYS' FEES AND COSTS. In the event any party to this Agreement
shall be required to initiate legal proceedings to enforce performance of any
term or condition of this Agreement, including, but not limited to, the payment
of monies or the enjoining of any action prohibited hereunder, the prevailing
party shall be entitled to recover such sums, in addition to any other damages
or compensation received, as will reimburse the prevailing party for reasonable
attorneys' fees and court costs incurred on account thereof (including, without
limitation, the costs of any appeal) notwithstanding the nature of the claim or
cause of action asserted by the prevailing party.
7.7 SUCCESSORS AND ASSIGNS, PARTIES IN INTEREST. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and assigns. Each
party hereto intends that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any Person other than the parties hereto.
7.8 CAPTIONS. The captions appearing in this Agreement are inserted for
convenience of reference only and shall not affect the interpretation of this
Agreement.
7.9 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
7.10 JURY TRIAL WAIVER. THE PARTIES AGREE TO WAIVE THEIR SEPARATE RIGHTS
TO A TRIAL BY JURY. THIS WAIVER MEANS THAT ANY TRIAL WILL BE BEFORE A JUDGE.
[SIGNATURE PAGE TO FOLLOW]
11
IN WITNESS WHEREOF, the parties hereto have executed or have caused a
duly authorized officer or representative to execute this Agreement all as of
the date first above written.
GEOWORKS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: President
--------------------------------------
INTEGRAL CAPITAL PARTNERS V, L.P.
By: Integral Capital Management V, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Manager
--------------------------------------
INTEGRAL CAPITAL PARTNERS V,
SIDE FUND, L.P.
By: ICP Management V, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Manager
--------------------------------------
12
