EXHIBIT 4
SECURITIES PURCHASE AGREEMENT
Securities Purchase Agreement
SECURITIES PURCHASE AGREEMENT, dated as of August 1, 2001,
between Intel Corporation, a Delaware corporation ("Seller") and
Special Situations Fund ("Purchaser").
1. Sale of Stock. Subject to the terms and conditions
contained herein, on the Closing Date (as defined below), Seller
hereby agrees to sell to Purchaser and Purchaser hereby agrees to
purchase from Seller 328,212 shares (the "Common Shares") of
Common Stock of Panja, Inc., a Texas corporation (the "Company"),
at a price equal to three dollars ($3.00) per share (the
"Purchase Price").
2. Closing. Closing of the sale and purchase under Section 1
of this Agreement (the "Closing") shall take place on August 1,
2001 at 12:00 p.m. New York time, or such other date and time as
Purchaser and Seller may mutually agree (the "Closing Date").
Prior to Closing, Purchaser and Seller shall deliver the
representation letters attached hereto as Exhibit A and Exhibit B
to the transfer agent for the Common Shares and the Company. At
Closing (a) Seller shall cause to be delivered to Purchaser a
certificate or certificates for the Common Shares, or shall
deliver appropriate instructions for book entry transfer, and (b)
Purchaser shall make payment of the Purchase Price for the Common
Shares in U.S. dollars by wiring said Purchase Price to Seller,
pursuant to Seller's wire instructions. Delivery of the Common
Shares, whether via certificated shares or book entry transfer,
shall be made in accordance with the instructions of the
Purchaser and in such name(s) or affixed with such stock powers
as the Purchaser shall instruct, subject to customary settlement
procedures.
3. Representations and Covenants of Seller. Seller represents,
warrants and agrees that:
a) Seller has full right, power and authority to enter
into and perform its obligations under this Agreement and to
transfer the Common Shares in accordance with the terms of this
Agreement and this Agreement constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights
generally and by general equitable principles.
b) Seller is the lawful record owner of the Common Shares
and is not a party to any shareholder agreement, voting trust or
similar arrangement which restricts the sale, transfer or voting
of the Common Shares. On the Closing Date, at the time of
delivery of the Common Shares to Purchaser, Seller will have and
will transfer to Purchaser good and marketable title to the
Common Shares, free and clear of all liens, claims, charges and
other encumbrances.
c) Seller's execution, delivery and performance of the
Agreement do not violate or conflict with any law applicable to
it, any agreement or instrument to which it is a party, any order
or judgment of any court or other agency of government applicable
to it or any of its assets, or any contractual restriction
binding on or affecting it or any of its assets.
d) Seller acquired the Common Shares directly from the
Company on December 14, 1999 (the "Acquisition Date") in a
transaction not involving any public offering, and the Common
Shares are "restricted securities" within the meaning of Rule 144
under the Securities Act. The full purchase price or other
consideration (which did not include any promissory note or other
obligation of the Seller) payable by the Seller to the Company
for the Common Shares was paid and delivered to the Company on
the Acquisition Date, and the holding period for the Common
Shares for purposes of paragraph (d) of Rule 144 began on the
Acquisition Date..
e) Seller is not an "affiliate" of the Company, as such
term is defined within the meaning of the Securities Act and Rule
144 thereunder.
f) Seller has not offered the Common Shares for sale to,
or solicited offers to buy from, any individual or entity other
than a limited number of potential investors, including
Purchaser.
4. Representations and Covenants of Purchaser. Purchaser
represents, warrants and agrees that:
a) Purchaser has full right, power and authority to enter
into and perform its obligations under this Agreement and to
purchase the Common Shares from Seller on the terms described
herein, and this Agreement has been duly authorized, executed and
delivered by Purchaser and constitutes a legal, valid and binding
obligation of Purchaser, enforceable against it in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting creditors' rights generally and by general
equitable principles.
b) Purchaser is acquiring the Common Shares to be acquired
by it hereunder for its own account and not with a view to the
distribution or resale of the Common Shares except pursuant to a
registration statement declared effective under, or an exemption
from the registration requirements of, the Securities Act of
1933, as amended (the "Securities Act").
c) Purchaser is an "accredited investor" (as such term is
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act and a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act. In the normal
course of business, Purchaser invests in or purchases securities
similar to the Common Shares, has such knowledge and experience
in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Common Shares and
Purchaser is able to bear the economic risks of an investment in
the Common Shares.
d) Purchaser is not an "affiliate" of the Company, as such
term is defined within the meaning of the Securities Act and Rule
144 thereunder.
e) Purchaser has received all the information it considers
necessary or appropriate for deciding whether to acquire the
Common Shares and has had an opportunity to secure all such
information as it deems necessary regarding the business,
properties, prospects and financial condition of the Company.
f) Purchaser has the funds necessary to consummate the
purchase of the Common Shares pursuant to this Agreement.
g) Purchaser understands and acknowledges that the offer
and sale of the Common Shares is not being registered under the
Securities Act and that the Common Shares constitute "restricted
securities" (as defined under Rule 144) and may not be offered,
sold, transferred, pledged, hypothecated or otherwise disposed
of, unless either registered pursuant to, or in a transaction
exempt from, the Securities Act or other applicable securities
law. Purchaser further understands and acknowledges that until
Company is reasonably satisfied in accordance with industry
practice that such legend is not required, a legend similar to
the following may appear on the certificates representing the
Common Shares: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND MAY BE RE-OFFERED AND SOLD ONLY IF
SO REGISTERED OR IF ANY EXEMPTION FROM REGISTRATION IS
AVAILABLE."
h) Purchaser understands that the Common Shares are being
offered and sold by Seller in reliance on exemptions from the
registration requirements of federal and state securities laws
and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and
understandings set forth herein in order to determine the
applicability of such exemptions.
5. Law Governing. This Agreement shall be governed by and
constructed in accordance with the laws of the State of New York
without reference to choice of law doctrine.
6. Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective heirs,
representatives, successors, and assigns. This Agreement and the
rights and obligations hereunder shall not be assignable without
written consent of the non-assigning party.
7. Severability. If any part of this Agreement is held by a
court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
8. Counterparts. This Agreement may be executed concurrently
in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. Each counterpart may be delivered by facsimile
transmission, which transmission shall be deemed delivery of an
originally executed document. This Agreement shall become
binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
9. Headings. The headings of the Sections hereof are inserted
for convenience only and shall not be deemed to constitute a part
hereof. This Agreement constitutes the entire Agreement between
the parties with respect to the subject matter hereof and
supersedes all the previous agreements, promises or
representations, whether written or oral, between the parties.
10. Fees and Expenses. Each of the Purchaser and Seller agrees
to pay its own expenses, including the fees and expenses of its
respective counsel (if any) incurred by it in connection with the
sale and delivery of the Common Shares and the execution,
delivery and performance of this Agreement.
11. Amendment and Waiver. This Agreement may be amended only by
a written agreement executed by each of the parties hereto. No
amendment of or waiver of, or modification of any obligation
under this Agreement will be enforceable unless set forth in a
writing signed by the party against which enforcement is sought.
Any amendment effected in accordance with this Section shall be
binding upon all parties hereto and each of their respective
successors and assigns. No delay or failure to require
performance of any provision of this Agreement shall constitute a
waiver of that provision as to that or any other instance. No
waiver granted under this Agreement as to any one provision
herein shall constitute a subsequent waiver of such provision or
of any other provision herein, nor shall it constitute the waiver
of any performance other than the actual performance specifically
waived.
12. Entire Understanding. This Agreement contains the entire
understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein
contained.
13. Termination. This Agreement may be terminated (i) by
written agreement of the parties, (ii) by Seller in the event of
a breach in any material respect of any representation, warranty
or agreement of Purchaser, or (iii) by Purchaser in the event of
a breach in any material respect of any representation, warranty
or agreement of Seller.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER: INTEL CORPORATION
By: /s/Xxxxx Xxx
Name: Xxxxx Xxx
Title: Assistant Treasurer
PURCHASER: SPECIAL SITUATIONS FUND
By: /s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Managing Director
