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Exhibit 10.8
TOMAX TECHNOLOGIES, INC.
STOCK PURCHASE AGREEMENT
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DATED JULY 13, 2000
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TOMAX TECHNOLOGIES, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement dated July 13, 2000 is among TOMAX
TECHNOLOGIES, INC., a Utah corporation (the "COMPANY"), ORACLE CORPORATION, a
Delaware corporation (the "PURCHASER"), and XXXX XXXXXXX, XXXXXX XXXXXXXXX,
XXXXX XXXXXX and XXXXX LOW (collectively, the "SHAREHOLDERS"). Capitalized terms
used herein are defined as set forth in Section 8.
The Company desires to issue and sell to the Purchaser 421,585 shares
(the "PREFERRED SHARES") of Series A Convertible Preferred Stock, no par value
per share, of the Company (the "PREFERRED STOCK"), the terms of which are set
forth in the certificate of designation of rights, preferences and privileges
set forth in Exhibit A (the "CERTIFICATE OF DESIGNATION"), for a price per share
of $11.86, for an aggregate purchase price of $4,999,998.10 (the "PREFERRED
PURCHASE PRICE").
At the First Closing, each Shareholder desires to sell to the Purchaser
92.11% of the number of shares of common stock, no par value per share, of the
Company (the "COMMON STOCK") set forth below such Shareholder's signature
hereof, for a price of $7.88 per share. Each Shareholder desires to deliver at
the First Closing the remaining 7.89% of the number of shares of Common Stock
set forth below each Shareholder's signature hereof (the "ESCROW SHARES"), to an
escrow account, pursuant to Section 1.5 of this Agreement. Pursuant to Section
1.1 of this Agreement, shareholders of the Company not a party to this Agreement
(collectively, the "OTHER SHAREHOLDERS") will, at the Second Closing, be given
the opportunity to sell a certain number of shares of Common Stock to the
Purchaser for a price of $7.88 per share. If, as of the Second Closing, the
Other Shareholders have not indicated that they will sell the number of shares
of Common Stock to the Purchaser at the Second Closing so that the aggregate
purchase price of the Common Stock to be purchased by Purchaser from both the
Shareholders and the Other Shareholders shall be $5,000,001.84 (the "COMMON
PURCHASE PRICE"), each Shareholder desires to sell as much of his pro rata
portion of the Escrow Shares to the Purchaser at the Second Closing for a price
of $7.88 per share so that Common Purchase Price shall be $5,000,001.84 and the
aggregate shares of Common Stock to be sold to Purchaser pursuant to this
Agreement shall be 634,518. The 634,518 aggregate shares of Common Stock to be
sold pursuant to this Agreement are herein collectively called the "COMMON
SHARES," and the Preferred Shares and the Common Shares are herein collectively
called the "SHARES." Immediately after the Second Closing, the Shares will
constitute 8.78% of the sum (without duplication) of the shares of Common Stock
(i) issued and outstanding, (ii) issuable upon conversion of the Preferred
Shares, (iii) issuable upon any outstanding Stock Rights and (iv) included in
the Company's 750,000-share stock option pool. The Shareholders own a
substantial amount of Common Stock (in addition to the Common Shares), and will
benefit materially from the transactions contemplated by this Agreement.
The Purchaser desires to purchase the Shares on the terms and subject to
the conditions set forth in this Agreement.
Now, therefore, the parties agree as follows:
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1. Purchase and Sale of Shares
1.1 ISSUANCE AND SALE OF THE PREFERRED SHARES. The Company agrees to
issue and sell to the Purchaser, and the Purchaser agrees to purchase from the
Company, the Preferred Shares at a closing held as mutually agreed by the
parties (the "FIRST CLOSING"). The Company agrees to approach the Other
Shareholders, as described in Section 6.3, with an offer to sell their pro rata
portions of the Common Stock.
1.2 SALE OF THE COMMON SHARES. Each Shareholder agrees to sell to
Purchaser, and agrees to deliver to Purchaser at the First Closing, and the
Purchaser agrees to purchase from each Shareholder, 92.11% of the number of
Common Shares set forth below such Shareholder's signature hereof. Within 25
days after the First Closing at a date and time to be mutually agreed by the
parties (the "SECOND CLOSING"), each Shareholder agrees to sell and deliver to
Purchaser as much of the Escrow Shares to the Purchaser, or cause to be sold and
delivered to Purchaser that number of shares of Common Stock by the Other
Shareholders (both for a price of $7.88 per share), so that Common Purchase
Price shall be $5,000,001.84 and the aggregate number of shares of Common Stock
to be sold to Purchaser pursuant to this Agreement at the First Closing and the
Second Closing shall be 634,518.
1.3 PAYMENT OF PURCHASE PRICE. At the First Closing, the Purchaser
shall pay to the Company the Preferred Purchase Price (less ten percent) and
92.11% of the Common Purchase Price (less ten percent of such amount) to the
respective sellers by wire transfer to the accounts previously designated by
each. At the Second Closing, the Purchaser shall pay 7.89% of the Common
Purchase Price (less ten percent of such amount) to the respective sellers by
wire transfer to the accounts previously designated by each.
1.4 PURCHASE PRICE ESCROW. The remaining ten percent of each of the
Preferred Purchase Price and the Common Purchase Price shall be paid at the
First Closing and the Second Closing, as applicable, to an escrow agent mutually
agreed upon by the Purchaser, the Company, and the Shareholders (the "ESCROW
AGENT"), and such amount shall be held by the Escrow Agent for a period of one
year from the Second Closing, subject to the terms and conditions of an escrow
agreement substantially in the form of Exhibit H hereto (the "PURCHASE PRICE
ESCROW AGREEMENT").
1.5 COMMON STOCK ESCROW. The Escrow Shares shall be subject to the
common stock escrow agreement substantially in the form of Exhibit I hereto (the
"COMMON STOCK ESCROW AGREEMENT"). Certificates representing the Escrow Shares
shall be delivered at the First Closing to the Escrow Agent.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to the exceptions set forth in the Company Disclosure
Schedule, the Company represents and warrants to the Purchaser, as of the date
hereof, that:
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2.1 CORPORATE ORGANIZATION, CONTRIBUTION AND AUTHORITY.
(a) ORGANIZATION, CONTRIBUTION. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Utah. The certificate of incorporation and bylaws of the Company
currently in effect are attached as Schedule 2.1(a).
(b) POWER AND AUTHORITY. The Company has the corporate power and
corporate authority to own and operate its Properties and to carry on its
business as now conducted and as proposed to be conducted and to enter into and
perform its obligations under the Transaction Documents.
(c) FOREIGN QUALIFICATION. The Company and its subsidiary are
qualified to do business as a foreign corporation in any jurisdiction in which
the failure to be so qualified would have a Material Adverse Effect.
2.2 CAPITALIZATION.
(a) CAPITAL STOCK. Immediately prior to the Second Closing, the
authorized and outstanding capital of the Company consists of: (i) 50,000,000
shares of Common Stock of which 10,857,143 shares are issued and outstanding, or
issuable, and (ii) 2,000,000 shares of preferred stock of which none are issued
or outstanding and of which 421,585 shares have been designated as Series A
Convertible Preferred Stock. Schedule 2.2 sets forth the record ownership of all
outstanding shares of Common Stock.
(b) OTHER SECURITIES, RIGHTS. Schedule 2.2 sets forth the record
ownership of all outstanding Stock Rights of the Company. Except as set forth in
Schedule 2.2, (i) there is (A) no capital stock or Stock Rights outstanding, nor
(B) any Contracts between the Company and any holders of its capital stock or
Stock Rights or any Contracts among any holders of its capital stock or Stock
Rights relating to the acquisition (including, without limitation, rights of
first refusal, anti-dilution or pre-emptive rights), disposition or voting of
the capital stock or Stock Rights in the Company; (ii) the Company has no
obligation (contingent or otherwise) to issue or distribute to holders of any
capital stock or Stock Rights any evidence of indebtedness or Property of the
Company; (iii) the Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any capital stock or Stock Rights in the
Company or to pay any dividend or make any distribution in respect thereof; and
(iv) there are no outstanding stock appreciation, phantom stock or similar
rights with respect to the Company.
2.3 SUBSIDIARIES, INVESTMENTS. The Company does not own any equity
interest in any other Person.
2.4 AUTHORIZATION. All action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery by the Company of the Transaction Documents, the performance by the
Company of its obligations under the Transaction Documents and the issuance by
the Company of the Preferred Shares has been taken, and the Transaction
Documents constitute legally valid and binding obligations of the Company
enforceable against it in accordance with their respective terms, except for
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applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights and rules of law governing
specific performance, injunctive relief or other equitable remedies. The Company
has not retained any broker or finder in connection with the transactions
contemplated in this Agreement.
2.5 VALIDITY OF SHARES. The Preferred Shares, when issued in
accordance with this Agreement, will be duly authorized, validly issued
(including, without limitation, issued in compliance with applicable federal and
state securities laws), fully-paid (except as stated in Section 1.3) and
nonassessable and will be free and clear of all preemptive rights, rights of
first refusal, liens, charges, restrictions, claims and any other encumbrances
imposed by or through the Company.
2.6 CONSENTS. Except as set forth in Schedule 2.6, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Person (governmental or private) on
the part of the Company (or, to the Company's and the Shareholder's knowledge,
on the part of any third party) is required in connection with the Company's
valid execution and delivery of the Transaction Documents or the offer, sale or
issuance of the Preferred Shares, the offer, sale or transfer of the Common
Shares or the consummation of any other transaction contemplated by this
Agreement, except for, to the extent envisioned by the Company, the filing of a
notice under Regulation D under the Securities Act and any other filings
necessary to comply with applicable state securities laws, all of which shall be
filed by the Company immediately following the First Closing or the Second
Closing, as applicable. The offer, sale and issuance of the Preferred Shares,
and the offer, sale and transfer of the Common Shares, in conformity with the
terms of this Agreement are exempt from the registration requirements of Section
5 of the Securities Act and from the qualification requirements of applicable
state securities laws.
2.7 COMPLIANCE. The Company is not in violation of any term of its
certificate of incorporation or bylaws and is not in breach of or in default
under any Contract to which it is a party or to which it or any of its Property
is subject, or any Order or Legal Requirement applicable to the Company or any
of its Property. No event has occurred which, with the passage of time or the
giving of notice or both, would constitute a breach of or default under any of
the foregoing. The execution, delivery and performance of and compliance with
the Transaction Documents will not result in any such violation or be in breach
of or constitute a default under any of the foregoing, or result in the creation
of any Third-Party Right in any of the Properties of the Company pursuant
thereto, or accelerate the time for performance of any obligation of the Company
under any Legal Requirement, Order or Contract. The Company is not a party to
any Contract or subject to any Order or Legal Requirement which has or may
reasonably be expected to have a Material Adverse Effect on the Company. Neither
the Shareholders nor any employee of the Company is in violation of any
employment contract, patent or proprietary information disclosure agreement or
any other Contract with any prior employer or any other Person, and the
continued employment by the Company of the Shareholders and its present
employees will not result in any such violation.
2.8 FINANCIAL STATEMENTS; PROJECTIONS. The Company has delivered to
the Purchaser (i) its audited annual financial statements as of June 30, 1999
(the "LAST FISCAL YEAR-
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END") and 1998, and for the periods then ended and (ii) its unaudited interim
financial statements as of May 31, 2000 and for the period then ended. All such
financial statements, including the related footnotes, are herein collectively
called the "FINANCIAL STATEMENTS." The Financial Statements fairly present the
financial condition of the Company at the dates indicated and the results of
operations for the periods then ended, in accordance with GAAP, consistently
applied (except as expressly stated therein), subject in the case of interim
financial statements to normal non-material year-end audit adjustments and the
omission of certain footnote disclosures.
2.9 ABSENCE OF CERTAIN LIABILITIES. The Company has no liability or
obligation of any nature, whether absolute, accrued, contingent, known, unknown
or otherwise, arising out of acts or omissions heretofore occurring, or
circumstances heretofore existing, except: (i) as set forth in the Company
Disclosure Schedule; (ii) as accrued in the Financial Statements; (iii) for
liabilities and obligations incurred since the Last Fiscal Year-End in the
ordinary course of business consistent in nature and amount with prior periods;
(iv) liabilities and obligations of a kind not required to be accrued in a
balance sheet at the date hereof prepared in accordance with GAAP which will not
subject the Company to Damages in excess of $50,000 individually (or in the
aggregate for related matters) or $200,000 for all such matters; and (v)
executory Contracts not required to be listed in Schedule 2.17 entered into in
the ordinary course of business.
2.10 ABSENCE OF CERTAIN CHANGES. Since the Last Fiscal Year-End,
except as set forth in Schedule 2.10:
(a) The Company has operated its business in the ordinary course.
(b) There has been no material adverse change in the assets,
business, liabilities, financial condition, results of operations, prospects or
customer base of the Company.
(c) There has not been any damage, destruction or condemnation known
to the Company with respect to Property having an aggregate net book value on
the Company's books in excess of $50,000, net of any insurance recoveries.
(d) There has not been any change in the accounting methods,
practices or principles of the Company.
(e) The Company has not sold, transferred, disposed of or granted
licenses or other rights of use with respect to (or agreed or committed to do
any of the foregoing) with respect to any of its Properties related to its
Business other than sales and licenses to end users in the ordinary course of
business.
(f) The Company has not instituted, settled or agreed to settle any
litigation, action or proceeding before any Governmental Agency.
(g) The Company has not assumed, guaranteed, endorsed or otherwise
become responsible (or otherwise agreed to become responsible) for the
obligations of any other Person, except for the endorsement of negotiable
instruments in the ordinary course of business.
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(h) The Company has not granted (or agreed or committed to grant)
any increase in compensation or benefits other than normal salary increases
consistent with prior periods.
2.11 INDEBTEDNESS. The Company has no obligations for any of the
following, other than the obligations set forth in Schedule 2.11:
(a) borrowed money,
(b) debt instruments,
(c) the deferred purchase price of Property or services over an
original period of 90 days or more,
(d) acquisition consideration, noncompetition payments or other
payments to acquired businesses or their former owners or
(e) capital leases.
2.12 LITIGATION. There is no action, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or by the
Company or the Shareholders. Neither the Company nor the Shareholders intends to
initiate any action or proceeding against any other Person or before any court
or Governmental Agency. To the knowledge of the Company, there is no action,
proceeding or investigation pending or threatened against any Person other than
the Company that questions the validity of the Transaction Documents or the
right of the Company to enter into the Transaction Documents or would result in
any change in the current equity ownership of the Company. To the knowledge of
the Company, there is no Order in effect against the Company.
2.13 TITLE TO PROPERTIES. The Company has good title to all of its
Properties and has good and valid rights to use all other Properties used in its
business, in each case subject to no Third-Party Right.
2.14 Intellectual Property Rights.
(a) "COMPANY INTELLECTUAL PROPERTY" means all Intellectual Property
Rights used in the business of the Company as currently conducted or as
presently planned to be conducted or embedded in the products currently being
provided or marketed, or presently proposed to be provided or marketed, by the
Company to its customers, other than Third-Party Intellectual Property, and all
Intellectual Property Rights owned by the Company. Except as set forth on
Schedule 2.14(a) and except for Third-Party Intellectual Property licensed to
the Company pursuant to an agreement listed in Schedule 2.14(c)(ii), the Company
owns, solely and exclusively (subject to the right of other Persons who have
independently developed know-how or trade secrets similar to the know-how or
trade secrets included in the Company Intellectual Property to use such
independently-developed know-how and trade secrets), and free and clear of any
Third-Party Right, all title to and rights in all Intellectual Property Rights
that are used in the business of the Company as currently conducted or as
presently planned to be conducted.
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"INTELLECTUAL PROPERTY RIGHTS" means patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, domain names, service marks,
copyright registrations and copyrights, in each case arising under the laws of
any jurisdiction anywhere in the world, any applications to any Governmental
Agency for any of the foregoing, net lists, schematics, industrial models,
inventions, technology, know-how, trade secrets, computer software programs or
applications (in both source code and object code form), development
documentation, programming tools, data, technical information, and tangible or
intangible proprietary information or material. "THIRD-PARTY INTELLECTUAL
PROPERTY" means Intellectual Property Rights owned in whole or in part by any
Person other than the Company.
(b) Schedule 2.14(b) lists all patents, patent applications,
trademarks, trade names, domain names, service marks and copyrights included in
the Company Intellectual Property which have been registered, issued or applied
for and the jurisdictions in which such Company Intellectual Property right has
been issued, registered or applied for.
(c) Schedule 2.14(c)(i) lists all licenses, sublicenses and other
agreements, written or unwritten, to which the Company is a party and pursuant
to which any Person is authorized to use, resell, sublicense or market or
distribute any product currently marketed or presently planned to be marketed by
the Company or any component of any such product. Schedule 2.14(c)(ii) lists all
written, and all material unwritten, licenses, sublicenses and other agreements
to which the Company is a party and pursuant to which the Company is authorized
to use, resell or distribute any Third-Party Intellectual Property, including
without limitation software, opensource, freeware, shareware and hardware, which
are incorporated in or are a part of any products which the Company has sold,
resold, licensed or sublicensed, or which is material to the current operations
of the Company, other than (in the case of Third-Party Intellectual Property
used internally only) readily-obtainable standard products with wide retail
distribution. The Company has, and at the relevant times in the past had, all
necessary rights to resell or distribute any hardware and software of a third
party which it resells or distributes or has resold or distributed. The Company
is not in violation of any license, sublicense or agreement described in
Schedule 2.14(c)(i) or (ii). Neither the Company nor any of its products or
operations is in violation of or infringes any Third-Party Intellectual
Property. Except as set forth on Schedule 2.14(c)(i) or (ii), the Company has
not received any claim that it has lost or will lose any rights of the Company
under any licenses to Third-Party Intellectual Property to which the Company is
a party. The execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated hereby will neither cause the
Company to be in violation or default under any such license, sublicense or
agreement nor entitle any other party to any such license, sublicense or
agreement to terminate or modify such license, sublicense or agreement. Except
as listed on Schedule 2.14(c)(i), the Company has not assigned or licensed to
any third party any right, title or interest in the Company Intellectual
Property. Except as listed on Schedule 2.14(c)(ii), the Company is not
contractually obligated to pay any compensation to any third party for the use
of the Company Intellectual Property or the Third-Party Intellectual Property.
(d) To the Company's knowledge there is no material unauthorized
use, disclosure, infringement or misappropriation of any Company Intellectual
Property or any Third-Party Intellectual Property licensed by or through the
Company by any third party, including
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without limitation any employee or former employee of the Company. The Company
has not entered into any agreement to indemnify any other person against any
charge of infringement of any Third-Party Intellectual Property, other than
indemnification provisions contained in purchase orders arising in the ordinary
course of business.
(e) All patents, registered trademarks, registered service marks and
registered copyrights held by the Company are valid and subsisting. To the
Company's knowledge, there is no assertion or claim (or basis therefor)
challenging the validity of any Company Intellectual Property. The Company has
not been sued in any suit, action or proceeding, or otherwise notified of any
claim, which involves a claim of infringement of any patent, trademark, service
xxxx, copyright or violation of any trade secret or other proprietary right of
any third party. To the Company's knowledge, neither the conduct of the business
of the Company as currently conducted nor the manufacture, sale, licensing or
use of any of the products of the Company as now manufactured, sold or licensed
or used, infringes on or conflicts with, in any way, any trademark, trademark
right, trade name, trade name right, service xxxx or copyright, patent, patent
right, industrial model or invention, of any third party that individually or in
the aggregate has or is reasonably likely to have a Material Adverse Effect. To
the Company's knowledge and except as set forth on Schedule 2.14(e), no third
party is challenging the ownership by the Company, or the validity or
effectiveness of, any of the Company Intellectual Property. The Company has not
brought any action, suit or proceeding for infringement of Company Intellectual
Property or breach of any license or agreement involving Company Intellectual
Property against any third party. There are no pending, or to the Company's
knowledge, threatened interference, re-examinations, oppositions or nullities
involving any patents, patent rights or applications therefor of the Company.
Except as set forth on Schedule 2.14(e), to the Company's knowledge, there is no
breach or violation by a third party of, or actual or threatened, loss of rights
under, any licenses to which the Company is a party.
(f) To the Company's knowledge based upon a reasonable quality
assurance program, there are no material defects in the Company's products, and
there are no material errors in any documentation, specifications, manuals, user
guides, promotional material, internal notes and memos, technical documentation,
drawings, flow charts, diagrams, source language statements, demo disks,
benchmark test results, and other written materials related to, associated with
or used or produced in the development of the Company's products, which defects
or errors have or are reasonably like to have, individually or in the aggregate,
a Material Adverse Effect.
(g) The Company has no customer warranty obligations currently in
effect other than as set forth in end-user agreements listed in Schedule
2.14(g). Except as set forth in Schedule 2.14(g), the Company has not made any
material oral or written representations or warranties with respect to its
products or services.
2.15 PROPRIETARY RIGHTS AGREEMENTS. Except as set forth in Schedule
2.15, since November 1998, each current and former employee, consultant and
officer of the Company has executed an agreement with the Company regarding
confidentiality and proprietary information substantially in the form attached
hereto as Exhibit B (the "PROPRIETARY RIGHTS AGREEMENT"). The Company is not
aware that any of its employees is obligated under any Contract, or subject to
any Order, that would interfere with the use of the employee's best efforts
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to promote the interests of the Company or that would conflict with the
Company's business as conducted or proposed to be conducted. Neither the
execution nor delivery of the Transaction Documents, nor the carrying on of the
Company's business by the employees of the Company, nor the conduct of the
Company's business as proposed, will conflict with or result in a breach of, or
constitute a default under, any Contract under which any of such employees is
now obligated. The Company does not believe it is or will be necessary to
utilize any inventions of any of its employees or contractors (or Persons it
currently intends to hire or contract with) made prior to their employment or
engagement by the Company. No current employee, officer or consultant of the
Company has excluded works or inventions made prior to his or her employment
with the Company from his or her assignment of inventions pursuant to such
Person's Proprietary Rights Agreement. The Company is not aware that any of its
employees or consultants is in violation thereof, and the Company will use its
best efforts to prevent any such violation. The Company has taken reasonable
security measures to maintain the confidentiality of the Company's proprietary
information.
2.16 TAXES. All federal, state, local and foreign Tax returns
required to be filed by the Company have been filed, or if not yet filed have
been granted extensions of the filing dates which extensions have not expired,
and all Taxes shown in such returns and on assessments received by the Company
to be due and payable have been paid. All such returns were materially correct.
2.17 CONTRACTS. Schedule 2.17 lists all Contracts to which the
Company is a party, other than routine arrangements for the furnishing of goods
and services (other than with respect to Intellectual Property Rights) to or by
the Company involving less than $50,000 in annual amounts which are cancelable
at any time without liability. The Company has performed all of the material
obligations required to be performed by it to date under all Contracts listed in
Schedule 2.17 and has not received any notice of default and is not in default
(with due notice or lapse of time or both) under any such Contract. The Company
has no present expectation or intention of not fully performing all of its
material obligations under any Contract listed in Schedule 2.17.
2.18 RELATED TRANSACTIONS. Except as set forth in Schedule 2.18,
there are no loans, leases, customer or supplier arrangements or agreements or
any other transactions or relationships between the Company on the one hand and
any of its affiliates, officers, directors, stockholders, employees or
consultants or any spouse or relative of any of such Persons, other than
compensation payments and travel advances made in the ordinary course of the
Company's business. None of the affiliates, officers, directors, stockholders,
employees or consultants of the Company, nor any of their spouses or relatives,
owns directly or indirectly, any interest in any Person that is a competitor,
customer or supplier of, or has any existing contractual relationship with, the
Company.
2.19 PRIVATE OFFERING. Neither the Company, either Shareholder, nor
anyone acting on its or his behalf has offered any of the Shares or any similar
securities for issuance or sale to, or solicited any offer to acquire any of the
same from, anyone so as to make the issuance and sale of the Preferred Shares or
the transfer and sale of the Common Shares subject to the registration
requirements of Section 5 of the Securities Act.
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2.20 DISTRIBUTIONS. Except as set forth in Schedule 2.20, the
Company has never paid or declared any dividend or other distribution by the
Company of any Property or indebtedness to any holders of its capital stock or
Stock Rights or redeemed or repurchased any of its capital stock or Stock
Rights.
2.21 EMPLOYEES AND CONSULTANTS. The Company has complied in all
material respects with all applicable Legal Requirements relating to wages,
hours, equal opportunity, collective bargaining, workers' compensation insurance
and the payment of social security and other employment-related Taxes. None of
the employees of the Company is represented by any labor union, and there is no
labor strike, other labor trouble or union organizing effort pending or, to the
knowledge of the Company, threatened against the Company. Schedule 2.21 lists
the names of all directors of the Company and the names and titles of all
employees of the Company, and all other Persons currently engaged by the Company
to develop Intellectual Property Rights for use by the Company. Schedule 2.21
also lists all stock option, stock purchase, bonus, 401(k), incentive, health,
welfare and other plans applicable to any employees of the Company.
2.22 USE OF PROCEEDS. The Company will use the proceeds from the
issuance and sale of the Preferred Shares as set forth in Schedule 2.22.
2.23 INSURANCE. The Company maintains valid policies of workers'
compensation insurance and of insurance with respect to its Properties and
business of the kinds and in the amounts of not less than is customarily
obtained by companies engaged in the same or similar business and similarly
situated, including insurance against loss, damage, fire, theft, public
liability and other risks. The Company has no claims outstanding under any
insurance policy and, to the Knowledge of the Company, no circumstances are
threatened which could give rise to any claims. A summary of each insurance
policy is set forth in Schedule 2.23. All of such insurance policies are in full
force and effect, and no notice of termination by any issuing insurance company
has been made or threatened.
2.24 TRANSACTIONAL OBLIGATIONS. Schedule 2.24 sets forth all
obligations of the Company to any Person (including without limitation brokers,
finders, investment bankers, financial advisors, legal or accounting
professionals) whose payment is contingent upon the transactions contemplated by
the Transaction Documents.
2.25 DISCLOSURE. The representations by the Company made in this
Section 2 and the Company Disclosure Schedule do not contain any untrue
statement of a material fact and do not omit to state a material fact necessary
in order to make the representations and warranties made in this Section 2 and
the Company Disclosure Schedule, in the light of the circumstances under which
they were made, not misleading.
3. Representations and Warranties of the Shareholders
Subject to the Shareholder Disclosure Schedule, each Shareholder
represents to the Purchaser, with respect to himself only, as of the date
hereof, that:
3.1. POWER AND AUTHORITY. Such Shareholder has all requisite power and
authority to execute and deliver this Agreement and to perform the transactions
contemplated hereby.
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3.2 TITLE. Such Shareholder is the sole record and beneficial owner of
the Common Shares listed below such Shareholder's signature hereof. Except as
provided in Schedule 3.2, such Common Shares are free and clear of all
Third-Party Rights, and such Shareholder has the full and unrestricted right,
power and authority to sell such Common Shares. Upon delivery of the
certificate(s) for such Common Shares to the Purchaser in accordance with
Section 5.1(b)(ii) and payment of the Common Stock Purchase Price as stated in
Section 1.3, the Purchaser will acquire good and marketable title to and
complete ownership of such Common Shares, free and clear of any Third-Party
Right other than any created by the Purchaser.
3.3 AUTHORITY; ENFORCEABILITY. Such Shareholder has full right and power
and all authorization and approval required by any Legal Requirement and any
Contract to which such Shareholder is a party, to sell and deliver the Common
Shares set forth below such Shareholder's signature hereto free and clear of any
Third-Party Right. This Agreement and the Investor Rights Agreement constitute
legally valid and binding obligations of such Shareholder enforceable against
him in accordance with their respective terms, except for applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights and rules of law governing specific
performance, injunctive relief or other equitable remedies. The execution,
delivery and performance of and compliance with this Agreement and the Investor
Rights Agreement will not result in any violation of any Contract to which such
Shareholder is a party or to which he or any of his Property is subject, or any
Order or Legal Requirement applicable to such Shareholder or any of his Property
or be in breach of or constitute a default under any of the foregoing, or result
in the creation of any Third-Party Right in any of the Properties of such
Shareholder pursuant thereto, or accelerate the time for performance of any
obligation of such Shareholder under any Legal Requirement, Order or Contract.
No consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Person (governmental or private) on
the part of such Shareholder is required in connection with such Shareholder's
valid execution and delivery of this Agreement and the Investor Rights
Agreement.
3.4 NO OBLIGATIONS; RELEASE. Except as set forth in Schedule 3.4,
the Company has no obligation or liability of any nature, absolute or
contingent, known or unknown, to such Shareholder, and such Shareholder hereby
irrevocably releases the Company and the Purchaser from all such obligations and
liabilities. The Shareholders hereby expressly waives the benefits of Section
1542 of the California Civil Code and any similar provision of any other
applicable law. Section 1542 of the California Civil Code provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
3.5 SHAREHOLDER AGREEMENT. Except as provided in Schedule 3.2, the
Shareholder has not entered into any Contract with the Company or any other
Person relating to the acquisition (including, without limitation, rights of
first refusal, anti-dilution or pre-emptive rights), disposition or voting of
capital stock or Stock Rights of the Company, other than this Agreement.
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4. Representations and Warranties of the Purchaser
Subject to the Shareholder Disclosure Schedule, the Purchaser
represents and warrants to the Company and to the Shareholders, as of the date
hereof, that:
4.1 CORPORATE ORGANIZATION AND AUTHORITY.
(a) ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) POWER AND AUTHORITY. The Purchaser has the corporate power and
corporate authority to own and operate its Properties and to carry on its
business as now conducted and as proposed to be conducted and to enter into and
perform its obligations under the Transaction Documents.
4.2 AUTHORIZATION. All action on the part of the Purchaser necessary
for the authorization, execution, delivery and performance of all of its
obligations under the Transaction Documents to which it is a party has been
taken, and such Transaction Documents constitute legally valid and binding
obligations of the Purchaser enforceable against the Purchaser in accordance
with their respective terms except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights or rules of law governing specific performance,
injunctive relief or other equitable remedies.
4.3 CONSENTS. Except as set forth in Schedule 4.3, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Person (governmental or private) on
the part of the Purchaser (or, to the Purchaser's knowledge, on the part of any
third party other than the Company and any Shareholder) is required in
connection with the Purchaser's valid execution and delivery of the Transaction
Documents or the consummation of any other transaction contemplated by this
Agreement.
4.4 COMPLIANCE. The execution, delivery and performance of and
compliance with the Transaction Documents will not result in any violation of
any term of its certificate of incorporation or bylaws or be in material breach
of or constitute a material default under any material Contract to which it is a
party or to which it or any of its Property is subject, or any Order or Legal
Requirement applicable to the Purchaser or any of its Property.
4.5 LITIGATION. To the knowledge of the Purchaser, there is no
action, proceeding or investigation pending or threatened against any Person
other than the Purchaser that questions the validity of the Transaction
Documents or the right of the Purchaser to enter into the Transaction Documents.
To the knowledge of the Purchaser, there is no Order in effect against the
Purchaser which would restrict the right or ability of the Purchaser to carry
out this Agreement in accordance with its terms.
4.6 SECURITIES LAW REPRESENTATIONS AND WARRANTIES.
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(a) INVESTMENT INTENT. The Purchaser is acquiring the Shares for
its own account for the purpose of investment and not with a view to, or for
resale in connection with, the distribution thereof. The Purchaser understands
that the Shares have not been registered under the Securities Act or the
securities laws of any state, and hereby agrees not to make any sale, transfer
or other disposition of any such Shares unless either (i) the Shares first shall
have been registered under the Securities Act and all applicable state
securities laws, or (ii) an exemption from such registration is available, and
the Company has received such documents and agreements from the Purchaser and
the transferee as the Company reasonably requests at such time. A legend noting
such restrictions will be placed on such certificates.
(b) EXEMPTION FROM REGISTRATION. The Purchaser understands and
acknowledges that the offering of the Shares pursuant to this Agreement will not
be registered under the Securities Act on the grounds that the offering and sale
of the Shares contemplated by this Agreement are exempt from registration
pursuant to Regulation D or under Section 4(2) of the Securities Act, and that
the Company's reliance upon such exemption is predicated upon the Purchaser's
representations set forth in this Section 4.6.
(c) ACCREDITED INVESTOR. The Purchaser is an "accredited
investor" as defined in Rule 501(a) of Regulation D under the Securities Act.
The Purchaser has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment in
the Shares. The Purchaser has received all the information the Purchaser has
requested from the Company and considers necessary or appropriate for deciding
whether to purchase the Shares. The Purchaser has the ability to bear the
economic risks inherent in its investment in the Shares and is able, without
materially impairing its financial condition, to hold the Shares for an
indefinite period of time and to suffer a complete loss of its investment.
(d) ACCESS TO INFORMATION. The Purchaser has had the opportunity
to: (i) discuss the Company's business, management and financial condition,
affairs and prospects with the Company's management; and (ii) visit the
Company's facilities and inspect certain of the Company's records provided by
the Company. Purchaser did not know of any material misrepresentation or
material breach of warranty by the Company at the time of First Closing.
(e) REPRESENTATIONS AND WARRANTIES. Nothing in this Section 4.6
shall affect the interpretation or enforcement of any of the representations and
warranties set forth in Sections 2 or 3 or any certificate delivered pursuant to
this Agreement.
4.7 BROKERAGE. The Purchaser has not retained any broker, finder or
investment banker in connection with the transactions contemplated by the
Transaction Documents.
5. Closings
5.1 FIRST CLOSING. At the First Closing, subject to the other terms
and conditions of this Agreement, the following items shall be delivered by and
to the parties specified, and any
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other appropriate items specified in this Agreement and any of the other
Transaction Documents shall be delivered by and to the appropriate parties, in
each case properly executed.
(a) COMPANY. The Company shall deliver to the Purchaser:
(i) a counterpart of this Agreement, executed by the Company;
(ii) a file-stamped counterpart of the Certificate of Designation;
(iii) a stock certificate evidencing the Preferred Shares;
(iv) a good standing certificate of the Utah Department of Commerce
with respect to the Company;
(v) a copy of all resolutions adopted by the Company's Board of
Directors and stockholders authorizing the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby, all certified by the Secretary of
the Company as being in full force and effect as of the First
Closing;
(vi) an Investors Rights Agreement in the form attached hereto as
Exhibit C (the "INVESTORS RIGHTS AGREEMENT"), executed by the
Shareholders and the Company;
(vii) an Oracle Alliances Agreement in the form attached hereto as
Exhibit D (the "ALLIANCES AGREEMENT"), executed by the Company;
(viii) a Development and Licensing Agreement in the form attached
hereto as Exhibit E (the "DEVELOPMENT AGREEMENT"), executed by the
Company; and
(ix) an opinion of Xxxxx, Xxxxx & Xxxxxxx, L.L.C., counsel to the
Company, dated the date hereof, in the form attached hereto as
Exhibit F.
(b) SHAREHOLDERS. Each Shareholder shall deliver:
(i) to the Purchaser:
(A) a counterpart of this Agreement, executed by such
Shareholder;
(B) a stock certificate or certificates evidencing the number
of Common Shares to be delivered at the First Closing in
accordance with Section 1.2 of this Agreement, duly endorsed or
accompanied by duly completed and executed stock powers;
(C) the Investors Rights Agreement, executed by such
Shareholder; and
(D) a Proprietary Rights Agreement, executed by such
Shareholder.
(E) the Purchase Price Escrow Agreement, executed by such
Shareholder.
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(F) the Common Stock Escrow Agreement, executed by such
Shareholder.
(ii) to the Escrow Agent
(A) the Purchase Price Escrow Agreement, executed by such
Shareholder.
(B) the Common Stock Escrow Agreement, executed by such
Shareholder.
(C) a stock certificate or certificates evidencing the number
of Common Shares to be delivered to the Escrow Agent at the First
Closing in accordance with Section 1.5 of this Agreement, duly
endorsed or accompanied by duly completed and executed stock
powers.
(c) PURCHASER. The Purchaser shall deliver:
(i) to the Company:
(A) a counterpart of this Agreement, executed by the
Purchaser;
(B) the Preferred Purchase Price; and
(C) a good standing certificate of the Delaware Secretary of
State with respect to the Purchaser;
(D) the Investors Rights Agreement, executed by the
Purchaser;
(E) the Alliances Agreement, executed by the Purchaser; and
(F) the Development Agreement, executed by the Purchaser; and
(i) to each Shareholder:
(A) a counterpart of this Agreement, executed by the
Purchaser;
(B) his allocable share of the Common Purchase Price to be
delivered at the First Closing to each Shareholder in accordance
with Section 1.2 of this Agreement; and
(C) the Investors Rights Agreement, executed by the
Purchaser.
(D) the Purchase Price Escrow Agreement, executed by the
Purchaser.
(E) the Common Stock Escrow Agreement, executed by the
Purchaser.
(iii) to the Escrow Agent
(A) the Purchase Price Escrow Agreement, executed by the
Purchaser.
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(B) the Common Stock Escrow Agreement, executed by the
Purchaser.
(C) the amount of the Common Purchase Price and Preferred
Purchase Price to be delivered to the Escrow Agent in accordance
with Section 1.4 of this Agreement.
5.2 SECOND CLOSING. At the Second Closing, each Shareholder and
Other Shareholder selling Common Shares shall deliver, or cause to be delivered
by the Escrow Agent, a stock certificate or certificates evidencing the number
of Common Shares to be delivered at the Second Closing in accordance with
Section 1.2 and Section 1.5 of this Agreement, duly endorsed or accompanied by
duly completed and executed stock powers. If applicable, the Purchaser shall
deliver to each Shareholder or Other Shareholder his allocable share of the
Common Purchase Price to be delivered to each Shareholder or Other Shareholder
at the Second Closing in accordance with Section 1.2 of this Agreement.
6. Additional Covenants
6.1 CONFIDENTIALITY. The Purchaser agrees to treat all information
concerning the Company furnished, or to be furnished, by or on behalf of the
Company (collectively, the "INFORMATION"), in accordance with the provisions of
this Section 6.3. The Information will be used solely for the purpose of
evaluating this proposed investment, and will be kept confidential by the
Purchaser and its officers, directors, employees, representatives, agents, and
advisors; provided that (i) any of such Information may be disclosed to
Purchaser's officers, directors, employees, representatives, agents, and
advisors who need to know such Information for the purpose of evaluating this
proposed investment, (ii) any disclosure of such information may be made to
which the Company consents in writing, and (iii) such Information may be
disclosed if so required by law.
6.2 PROPRIETARY RIGHTS AGREEMENT. The Company will require each
employee of the Company, and each consultant or independent contractor of the
Company involved in the development, maintenance or licensing of the Company's
Intellectual Property Rights, to execute a Proprietary Rights Agreement as a
condition of hiring/engagement. Before the First Closing, the Company shall have
received from each current employee of the Company, and each current consultant
or current independent contractor of the Company involved in the development,
maintenance or licensing of the Company's Intellectual Property Rights, an
executed Proprietary Rights Agreement.
6.3 OTHER SHAREHOLDER NOTICE AND OFFER. Before the First Closing,
the Company will have prepared and distributed to the Other Shareholders: (i) a
disclosure package containing information about the Company and the purchase of
the Shares by the Purchaser and providing each of the Other Shareholders
sufficient information upon which to base the investment decision contemplated
hereunder; (ii) a letter offering the Other Shareholders the opportunity to sell
their pro rata portions of the Common Shares under the same terms as provided in
this Agreement; and (iii) a form of stock purchase agreement to be entered into
by Purchaser and each Other Shareholder selling Common Shares to Purchaser.
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6.4 AGGREGATE COMMON PURCHASE PRICE. At the Second Closing, the
Shareholders and the Other Shareholder selling Common Shares shall sell and
deliver, or cause to be sold and delivered by the Escrow Agent, that number of
Common Shares such that the aggregate number of Common Shares delivered and sold
to Purchaser at the First Closing and the Second Closing shall be 634,518 and
the aggregate purchase price of the Common Stock to be purchased by Purchaser at
the First Closing and the Second Closing shall be $5,000,001.84.
6.5 OTHER SHAREHOLDER REPRESENTATIONS AND WARRANTIES. The Purchaser
shall require that the Other Shareholders, in the event of their sale of Common
Stock to Purchaser, give representations and warranties substantially the same
as those given by the Shareholders in Section 3 of this Agreement.
7. Miscellaneous
7.1 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. The Transaction
Documents constitute the entire agreement between the Company and the Purchaser
relative to the subject matter hereof and thereof. Any previous agreement or
negotiations between the Company and the Purchaser concerning the subject matter
of the Transaction Documents is superseded by the Transaction Documents. The
rights of the parties to this Agreement shall inure to the benefit of and be
binding upon any direct or remote successor to all or the greater part of the
Properties of such party. Any other assignment may be made only with the prior
written consent of all the other parties. No assignment, whether or not
permitted, will relieve the assignor of or otherwise affect the assignor's
obligations with respect to the obligations assumed by such successor.
7.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware.
7.3 LITIGATION. Each party to this Agreement irrevocably consents
and submits to the jurisdiction of the federal and state courts sitting in San
Mateo County, California in any action or proceeding arising out of or relating
to this Agreement or the consummation of the transactions contemplated in this
Agreement. Each party irrevocably: (a) agrees that all claims in respect of any
such action or proceeding may be heard and determined in these courts; (b)
waives any objection that such party now or hereafter may have to the laying of
venue for any action or proceeding arising out of or relating to this Agreement
brought in the aforementioned courts; and (c) agrees to consent to transfer of
any action involving the parties to such forum based on the convenience and
interest of the parties.
7.4 COUNTERPARTS; FACSIMILE. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A facsimile copy of
an executed signature page shall be deemed an original.
7.5 NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be conclusively deemed given upon actual
receipt if given by hand delivery, overnight courier, mail or facsimile
transmission addressed:
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if to the Company, to:
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
Xxxxx, Xxxxx & Xxxxxxx, L.L.C.
00 X. Xxxxxxxx, Xxxxx 000 (84101)
X.X. Xxx 00000
Xxxx Xxxx Xxxx, XX 00000-0000
fax: (000) 000-0000
if to the Purchaser, to:
000 Xxxxxx Xxxxxxx, M/S 5op738
Xxxxxxx Xxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxxx
fax: (000) 000-0000
with a copy to:
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn.: Xxxx Xxxxxx
fax: (000) 000-0000
if to a Shareholder, to:
c/o Tomax technologies, inc.
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
Xxxxx, Xxxxx & Xxxxxxx, L.L.C.
00 X. Xxxxxxxx, Xxxxx 000 (84101)
X.X. Xxx 00000
Xxxx Xxxx Xxxx, XX 00000-0000
fax: (000) 000-0000
or to such other address as the Company, the Purchaser or the Shareholders may
designate by 10 days prior written notice to the other parties to this
Agreement.
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7.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; CLAIMS. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement, the
First Closing and the Second Closing.
7.7 AMENDMENT, WAIVER. Any provision of this Agreement may be
amended or waived only by a written instrument signed by the Company, the
Purchaser and the Shareholders.
7.8 EXPENSES. The Company, the Purchaser and the Shareholders shall
bear their own expenses in connection with this transaction.
7.9 SEVERABILITY. If any provision of this Agreement, or the
application thereof, is for any reason and to any extent determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other persons or
circumstances will be interpreted so as best to reasonably effect the intent of
the parties to this Agreement. The parties agree to use their best efforts to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the greatest possible extent, the
economic, business and other purposes of the void or unenforceable provision.
7.10 CONSTRUCTION. The headings of the Sections of this Agreement
are for convenience and shall not be considered in the interpretation of this
Agreement. The words "hereof," "hereunder" and similar words refer to this
Agreement as a whole and not to any subdivision contained in this Agreement.
References herein to a Section or Exhibit refer to the designated Section or
Exhibit of or to this Agreement. References herein to Schedules refer to the
Company Disclosure Schedule. In construing the terms of this Agreement, no
presumption shall operate in favor of or against any party as a result of its
counsel's role in drafting this Agreement.
8. Glossary
AGREEMENT -- this Stock Purchase Agreement, including the Exhibits
hereto and the Company Disclosure Schedule, as it may be amended from time to
time in accordance with its terms.
ALLIANCES AGREEMENT -- Section 5.1(a)(vii).
CERTIFICATE OF DESIGNATION -- introductory paragraphs.
COMMON PURCHASE PRICE -- introductory paragraphs.
COMMON SHARES -- introductory paragraphs.
COMMON STOCK -- introductory paragraphs.
COMPANY -- introductory paragraphs.
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COMPANY DISCLOSURE SCHEDULE -- the schedules and exceptions attached
as Exhibit G.
COMPANY INTELLECTUAL PROPERTY -- Section 2.14(a).
CONTRACT -- any written or oral agreement, commitment, arrangement,
instrument or license.
DEVELOPMENT AGREEMENT -- Section 5.1(a)(viii).
FINANCIAL STATEMENTS -- Section 2.8.
FIRST CLOSING -- Section 1.2.
GAAP -- United States generally accepted accounting principles.
GOVERNMENTAL AGENCY -- any agency, department, board, commission,
district or other public organ, whether federal, state, local or foreign.
INFORMATION -- Section 6.1.
INTELLECTUAL PROPERTY RIGHTS -- Section 2.14(a).
INVESTOR RIGHTS AGREEMENT -- Section 5.1(a)(vi).
LAST FISCAL YEAR-END -- Section 2.8.
MATERIAL ADVERSE EFFECT -- a material adverse effect on the
Company's Properties, assets, obligations or liabilities (absolute or
contingent), financial condition, results of operations, business, operations or
prospects of the Person in question.
ORDER -- any judgment, decree, order or award.
PERSON -- any corporation, general partnership, limited partnership,
limited liability company, business trust, association, organization, entity,
individual or a Governmental Agency.
PREFERRED PURCHASE PRICE -- introductory paragraphs.
PREFERRED SHARES -- introductory paragraphs.
PREFERRED STOCK -- introductory paragraphs.
PROPERTY -- any interest in any kind of property or asset, real,
personal or mixed, tangible or intangible.
PROPRIETARY RIGHTS AGREEMENT -- Section 2.15.
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PURCHASER -- introductory paragraphs.
SECURITIES ACT -- the Securities Act of 1933, as amended.
SECOND CLOSING -- Section 1.2.
SHAREHOLDER DISCLOSURE SCHEDULE -- the schedules and exceptions
attached hereto, excluding those in the Company Disclosure Schedule.
SHAREHOLDERS -- introductory paragraphs.
SHARES -- introductory paragraphs.
STOCK RIGHT -- any right to acquire an capital stock or any other
Stock Rights from the corporation in question, including without limitation, an
option, warrant, conversion right, exchange right, subscription right or
pre-emptive right.
TAX -- any federal, state, local or foreign tax, assessment, duty,
fee and other governmental charge or imposition of any kind, whether measured by
Properties, assets, wages, payroll, purchases, value added, payments, sales,
use, business, capital stock, surplus or income, and any addition, interest,
penalty, deficiency imposed with respect to any Tax.
THIRD-PARTY INTELLECTUAL PROPERTY -- Section 2.14(a).
THIRD-PARTY RIGHT -- any lien, security interest, mortgage, deed of
trust, pledge, hypothecation, capitalized lease or interest or right for
security purposes on any Property of the Person in question, or any right (i) to
acquire, lease, use, dispose of, vote or exercise any right or power conferred
by any Property of such Person, or (ii) restricting the Person's right to lease,
use, dispose of, vote or exercise any right or power conferred by any Property
of such Person.
TRANSACTION DOCUMENTS -- this Agreement, the Investors Rights
Agreement, the Alliances Agreement, the Development Agreement and the
Certificate of Designation.
[remainder of page left blank intentionally]
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In witness whereof, the parties have executed this Stock Purchase
Agreement.
COMPANY: TOMAX TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: CEO and President
PURCHASER: ORACLE CORPORATION
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President, Corporate Development
SHAREHOLDERS: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
Common Shares to be sold: 255,541 shares
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Xxxxxx Xxxxxxxxx
Common Shares to be sold: 56,787 shares
/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
Common Shares to be sold: 153,312 shares
/s/ Xxxxx Low
----------------------------
Xxxxx Low
Common Shares to be sold: 168,877 shares
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