EXHIBIT 10.30
STOCK AND WARRANT PURCHASE AGREEMENT
THIS STOCK AND WARRANT PURCHASE AGREEMENT (the "Agreement") is
made as of the 12th day of August, 2001, by and among Viador Inc., a Delaware
corporation (the "Company"), and the investors listed on Schedule I hereto
------- ----------
(individually, an "Investor" and, collectively, the "Investors").
-------- ---------
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock and Warrants.
---------------------------------------
1.1. Sale and Issuance of Stock. On the terms and subject to the conditions of
--------------------------
this Agreement, the Company agrees to sell to each of the Investors and each
Investor agrees to purchase from the Company in cash, the number of shares of
Common Stock, par value $0.001 per share (the "Shares"), and a warrant to
------
purchase the number of shares of Common Stock (each a "Warrant" and,
-------
collectively, the "Warrants") set forth opposite the name of such Investor on
--------
Schedule I hereto, for the purchase price of $0.27 per share, or an aggregate
purchase price of Four Million Dollars ($4,000,000). The Shares and the Warrants
are sometimes referred to herein as the "Securities."
----------
1.2. The Closing. The purchase and sale of the Securities (the "Closing") shall
----------- -------
be held at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, Two Embarcadero
Place, 2200 Geng Road, Palo Alto, California, or in a location as mutually
agreed, as soon as practicable following satisfaction of the closing conditions
set forth in Section 5 hereof, or such later date as the Investors and the
Company may agree upon (the "Closing Date"). At the Closing, the Investors shall
------------
purchase on a pro rata basis that number of Shares and Warrants set forth
opposite such Investor's name on Schedule I and the Company will deliver or
----------
cause to be delivered by its transfer agent to each Investor a certificate
evidencing the Shares and the Warrants that such Investor is purchasing, in the
name of such Investor (or any designee of such Investor), against payment of the
purchase price therefor by check or wire transfer.
2. Representations and Warranties of the Company. The Company hereby represents
---------------------------------------------
and warrants to the Investors that, except as set forth on a Schedule of
Exceptions attached hereto as Exhibit A (the "Schedule of Exceptions"), which
--------- ----------------------
exceptions shall be deemed to be representations and warranties made hereunder:
2.1. Organization, Good Standing and Qualification; Subsidiaries. The Company is
-----------------------------------------------------------
a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power to carry on
its business as now conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to so
qualify would have a material adverse effect on its business or properties.
Except as disclosed in the Company SEC Documents (as defined in Section 2.8),
the Company does not, directly or indirectly, own any equity in any other
corporation, partnership, joint venture or other business association or entity.
2.2. Capitalization. The authorized capital stock of the Company consists,
--------------
or will consist immediately prior to the Closing, of:
(a) 10,000,000 shares of Preferred Stock, par value $0.001 per share (the
"Preferred Stock"), none of which are issued or outstanding immediately prior to
---------------
the Closing (or the First Tranche Closing, if applicable).
(b) 100,000,000 shares of Common Stock, par value $0.001 per share (the "Common
------
Stock"), 18,317,997 shares of which are issued and outstanding and 2,962,963 of
-----
which have been reserved solely for issuance upon exercise of the Warrants. All
of the outstanding shares of Common Stock have been duly authorized, fully paid
and are nonassessable and issued in compliance in all material respects with all
applicable federal and state securities laws.
(c) The Company has reserved 11,235,741 shares of Common Stock for issuance to
officers, directors, employees and consultants of the Company pursuant to its
1999 Stock Incentive Plan (the "Stock Plan"). Of such reserved shares of Common
Stock, options to purchase 5,200,901 shares have been granted and are currently
outstanding, and 4,024,406 shares of Common Stock remain available for issuance
pursuant to the Stock Plan. In addition, the Company has reserved 994,297 shares
of Common Stock for purchase by employees under its 1999 Employee Stock Purchase
Plan and 1,250,000 shares of Common Stock for issuance pursuant to outstanding
warrants.
2.3. Authorization. All corporate action on the part of the Company, its
-------------
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder, and the authorization, issuance (or reservation for
issuance), sale and delivery of the Securities being sold hereunder and the
Common Stock issuable upon exercise of the Warrants has been taken or will be
taken prior to the Closing, and this Agreement constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality is required by or with respect
to the Company or any of its subsidiaries in connection with the execution and
delivery of this Agreement, or the consummation of the transactions contemplated
hereby, except for (w) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
state securities laws and the securities laws of any foreign country; (x) such
filings, if any, as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act"); and (y) such other consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would not
have a material adverse effect on the Company and would not prevent, or
materially alter or delay any of the transactions contemplated by this
Agreement.
2
2.4. Valid Issuance of Shares. The Shares, when issued, sold and delivered in
------------------------
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and under applicable state and federal securities laws. The Common
Stock issuable upon exercise of the Warrants has been duly and validly reserved
for issuance and, is free of restrictions on transfer other than restrictions on
transfer under this Agreement and under applicable state and federal securities
laws. Subject to the truth and accuracy of the Investors' representations set
forth in Section 3 of this Agreement, the offer, sale and issuance of the
Securities as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Act").
---
2.5. Compliance with Other Documents. The execution and delivery of this
-------------------------------
Agreement, consummation of the transactions contemplated hereby, and compliance
with the terms and provisions hereof will not conflict with or result in a
breach of the terms and conditions of, or constitute a default under the
Company's Second Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") or Bylaws or of any contract or agreement to
which the Company is now a party, except where such conflict, breach or default
of any such contract or agreement, either individually or in the aggregate,
would not have a material adverse effect on the Company's business, financial
condition or results of operations and would not prevent, or materially alter or
delay any of the transactions contemplated by this Agreement.
2.6. Litigation. Except as disclosed in the Company SEC Documents filed from
----------
time to time with the U.S. Securities and Exchange Commission (the "SEC"), there
are no actions, proceedings or, to the knowledge of the Company, investigations
pending against the Company that, either in any case or in the aggregate, would
result in any material adverse change in the business, financial condition or
results of operations of the Company or would prevent, or materially alter or
delay, any of the transactions contemplated by this Agreement.
2.7. Intellectual Property. The Company owns or possesses sufficient legal title
---------------------
or rights to use all patents, trademarks, service marks, trade names,
copyrights, trade secrets and know how (collectively, "Intellectual Property")
---------------------
necessary for its business as now conducted without any conflict with, or
infringement of, the rights of others. To the knowledge of the Company, there
has been no unauthorized use or infringement of any of the Intellectual Property
of the Company by any third party. The Company has not received any written
communications alleging that the Company has violated any of the Intellectual
Property of any other person or entity. Neither the execution nor delivery of
this Agreement, nor the carrying on of the Company's business by the employees
of the Company, will, to the Company's knowledge, conflict with or result in a
breach of the terms, conditions, or provisions of, or constitute a default
under, any contract, covenant, or instrument under which any of its employees or
officers is now obligated.
2.8. SEC Documents; Financial Statements. The Company has made available to the
-----------------------------------
Investors a true and complete copy of each report, registration statement (with
the prospectus in the form filed pursuant to Rule 424(b) of the Act), definitive
proxy statement and other filings made with the SEC by the Company since October
26, 1999 and, prior to the Closing, the Company will have furnished to the
Investors true and complete copies of any additional documents filed with the
SEC by the Company (collectively, the "Company SEC Documents") prior to the
---------------------
3
Closing. The Company has timely filed all forms, statements and documents
-------
required to be filed by it with the SEC and The Nasdaq National Market since
October 26, 1999. In addition, the Company has made available to the Investors
all exhibits to the Company SEC Documents filed prior to the date hereof, and
will promptly make available to the Investors all exhibits to any additional
Company SEC Documents filed prior to the Closing (or the First Tranche Closing,
if applicable). As of their respective filing dates, the Company SEC Documents
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the Act, and none of the
--------
Company SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected, supplemented or
superseded by a subsequently filed Company SEC Document. The financial
statements of the Company, including the notes thereto, included in the Company
SEC Documents (the "Company Financial Statements") were complete and correct in
----------------------------
all material respects as of their respective dates, complied as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto as of their respective
dates, and have been prepared in accordance with United States generally
accepted accounting principles ("GAAP") applied on a basis consistent throughout
----
the periods indicated and consistent with each other (except as may be indicated
in the notes thereto or, in the case of unaudited statements included in
Quarterly Reports on Form 10-Q, as permitted by Form 10-Q of the SEC). The
Company Financial Statements fairly present the consolidated financial condition
and operating results of the Company and its subsidiaries at the dates and
during the periods indicated therein (subject, in the case of unaudited
statements, to normal, recurring year-end adjustments).
2.9. Absence of Certain Changes. Except as disclosed in the Company SEC
--------------------------
Documents, and except pursuant to the transactions contemplated by this
Agreement, since the date of such periodic reports, the Company has conducted
its business in the ordinary course consistent with past practice and there has
not occurred: (i) any change, event or condition (regardless of whether covered
by insurance) that has resulted in, or might reasonably be expected to result
in, a material adverse effect to the Company; (ii) any acquisition, sale or
transfer of any material asset of the Company or any of its subsidiaries other
than in the ordinary course of business; (iii) any change in accounting methods
or practices (including any change in depreciation or amortization policies or
rates) by the Company except as required under GAAP or any revaluation by the
Company of any of its or any of its subsidiaries' assets; (iv) any declaration,
setting aside, or payment of a dividend or other distribution with respect to
the shares of the Company, or any direct or indirect redemption, purchase or
other acquisition by the Company of any of its shares of capital stock; (v) any
amendment or change to the Company's Certificate of Incorporation or Bylaws; or
(vi) any agreement to do any of the things described in the preceding clauses
(i) through (v).
2.10. Broker's or Finders' Fee. A commission of 6% of the aggregate proceeds
------------------------
received from the Investors is payable to Xx. Xxxxx Hungyeung. Except for this
commission, the Company has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection with the
transactions contemplated by this Agreement.
4
3. Representations and Warranties of the Investor. Each Investor hereby
----------------------------------------------
represents and warrants that:
3.1. Authorization. Such Investor has full power and authority to enter
-------------
into this Agreement and this Agreement constitutes the valid and legally binding
obligation of such Investor, enforceable in accordance with its terms.
3.2. Investigation. Such Investor acknowledges that it has had access to all the
-------------
information about the Company it considers necessary or appropriate for deciding
whether to purchase the Securities. Such Investor further represents that it has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Securities and to
discuss the business, affairs and current prospects of the Company with the
Company's officers. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of such Investor to rely thereon.
3.3. Investment Experience. Such Investor is an investor in securities of
---------------------
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, 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 Securities. If other than an
individual, such Investor also represents it has not been organized for the
purpose of acquiring the Securities.
3.4. Accredited Investor. Such Investor is an "Accredited Investor" as such term
------------------- -------------------
is defined in Regulation D adopted by the SEC.
3.5. Purchase Entirely for Own Account. This Agreement is made with such
---------------------------------
Investor in reliance upon such Investor's representation to the Company, which
by such Investor's execution of this Agreement such Investor hereby confirms,
that the Securities will be acquired for investment for such Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that such Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, such Investor further represents that
such Investor does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Securities.
3.6. 13D Group. Each Investor represents that it is not affiliated with any
---------
other Investor and that with respect to the Voting Securities (as defined below)
of the Company, such Investor shall not be deemed to be part of a group of
persons with any other Investor ("13D Group") that was formed for the purpose of
---------
acquiring, holding, voting or disposing of such Voting Securities which would
require, under Section 13(d) of the 1934 Act and the rules and regulations
thereunder, such Investor to file a statement on Schedule 13D with the SEC as a
"person" within the meaning of Section 13(d)(3) of the 1934 Act if such
------
Investors beneficially owned Voting Securities representing more than 5% of the
total combined voting power of all such Voting Securities then outstanding.
3.7. Restricted Securities. Such Investor understands that the Securities it is
---------------------
purchasing are characterized as "restricted securities" under the federal
---------------------
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
5
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In the absence of an effective
registration statement covering the Securities (or the Common Stock issued on
conversion thereof) or an available exemption from registration under the Act,
the Securities (and any Common Stock issued on conversion thereof) must be held
indefinitely. In this connection, such Investor represents that it is familiar
with Rule 144 promulgated by the Commission, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.8. Tax Advisors. Such Investor has reviewed with such Investor's own tax
------------
advisors the federal, state and local tax consequences of this investment, where
applicable, and the transactions contemplated by this Agreement. Such Investor
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents and understands that such Investor (and not
the Company) shall be responsible for such Investor's own tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement.
3.9. Further Representations by Foreign Investors. If such Investor is not a
--------------------------------------------
United States person, such Investor hereby represents that it has satisfied
itself as to the full observance of the laws of its jurisdiction in connection
with any invitation to subscribe for the Securities or any use of this
Agreement, including (i) the legal requirements within its jurisdiction for the
purchase of the Securities, (ii) any foreign exchange restrictions applicable to
such purchase, (iii) any governmental or other consents that may need to be
obtained, and (iv) the income tax and other tax consequences, if any, that may
be relevant to the purchase, holding, redemption, sale or transfer of the
Securities. Such Investor's subscription and payment for, and its continued
beneficial ownership of the Securities, will not violate any applicable
securities or other laws of its jurisdiction.
3.10. Authorizations. All authorizations, approvals or permits, if any, of any
--------------
governmental authority or regulatory body that are required to be obtained by
such Investor in connection with the lawful issuance and sale of the Securities
pursuant to this Agreement have been duly obtained and shall be effective on and
as of the Closing except for any filing and procedures applicable under the HSR
Act.
3.11. Broker's or Finders' Fee. Such Investor has not incurred, nor will it
------------------------
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or investment bankers' fees or any similar charges in
connection with the transaction contemplated by this Agreement.
3.12. Legends. It is understood that the certificates evidencing the Shares
-------
may bear a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT."
6
4. Covenants of the Company and the Investors.
------------------------------------------
4.1. Market Stand-Off. In connection with any underwritten public offering by
----------------
the Company of its equity securities pursuant to an effective registration
statement filed under the Act, none of the Investors shall Transfer (as defined
below) or offer to Transfer any of the Securities without the prior written
consent of the Company and its underwriters provided, that this restriction (the
"Market Stand-Off") applies only if such underwriters determine, in their sole
----------------
discretion, that the Market Stand-Off is necessary for the success of the
offering. Assuming that such Market-Stand-off is necessary as determined above,
it shall be in effect for such period of time from and after the effective date
of the final prospectus for the offering as may be requested by the Company or
such underwriters; provided, however, that (i) such Market Stand-Off shall not
exceed one hundred and eighty (180) days, and (ii) the Investors shall be
subject to the Market Stand-Off only if the officers and directors of the
Company are also subject to similar restrictions. In order to enforce the Market
Stand-Off, the Company may impose stop-transfer instructions with respect to the
Securities until the end of the applicable stand-off period. As used in this
Agreement, the term "Transfer" shall mean any sale, transfer, assignment,
--------
hypothecation, encumbrance or other disposition, whether voluntary or
involuntary, of shares of the Shares. In the case of a hypothecation, the
Transfer shall be deemed to occur both at the time of the initial pledge and at
any pledgee's sale or a sale by any secured creditor or a retention by the
secured creditor of the pledged shares of the Shares in complete or partial
satisfaction of the indebtedness for which the shares of the Shares are
security.
4.2. Standstill Provision. For a period (the "Restricted Period") commencing on
-------------------- -----------------
the Closing Date and ending on the earlier of (i) the tenth anniversary of the
Closing Date or (ii) the occurrence of a "Significant Event" (as defined below),
-----------------
Investors shall not, without the prior written consent of the Company or its
Board of Directors:
(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities or direct or indirect rights to
acquire any voting securities of the Company nor any subsidiary thereof, or of
any successor to or person in control of the Company, or any assets of the
Company or any subsidiary or division thereof or of any such successor or
controlling person;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in the rules of the
------------ -------
SEC, or seek to advise or influence any person or entity with respect to the
voting of any voting securities of the Company;
(c) make any public announcement with respect to, or submit a proposal for, or
offer of (with or without conditions) any extraordinary transaction involving
the other party or any of its securities or assets;
7
(d) form, join or in any way participate in a "group" as defined in Section
-----
13(d)(3) of the 1934 Act in connection with any of the foregoing;
(e) otherwise act or seek to control or influence the management,
Board of Directors or policies of the Company except as expressly provided
herein;
(f) take any action that could reasonably be expected to require the Company to
make a public announcement regarding the possibility of any of the events
described in clauses (a) through (e) above; or
(g) request the Company or any of its representatives, directly or indirectly,
to amend or waive any provision of this paragraph.
During this Restricted Period, Investors shall promptly advise the
Company of any inquiry or proposal made to it with respect to any of the
foregoing. For purposes of this Agreement, (i) "Significant Event" shall mean,
-----------------
with respect to the Company, any of (A) the acquisition by any person or "13D
Group" of beneficial ownership of "Voting Securities" (as defined below) of the
-----------------
Company representing 15% or more of the then outstanding Voting Securities of
the Company; (B) the announcement or commencement by any person or 13D Group of
a tender or exchange offer to acquire Voting Securities of the Company which, if
successful, would result in such person or 13D Group owning, when combined with
any other Voting Securities of the Company owned by such person or 13D Group,
15% or more of the then outstanding Voting Securities of the Company; or (C) the
entry into by the Company, or determination by the Company to seek to enter
into, any merger, sale or other business combination transaction pursuant to
which the outstanding shares of common stock of the Company would be converted
into cash or securities of another person or 13D Group or 50% or more of the
then outstanding shares of common stock of the Company would be owned by persons
other than the then current holders of shares of common stock of the Company, or
which would result in all or a substantial portion of the Company's assets being
sold to any person or 13D Group; and (ii) "Voting Securities" shall mean, with
-----------------
respect to the Company, at any time shares of any class of capital stock of the
Company which are then entitled to vote generally in the election of directors;
provided, that for purposes of this definition any securities which at such time
are convertible or exchangeable into or exercisable for shares of common stock
of the Company shall be deemed to have been so converted, exchanged or
exercised.
4.3. Lock-Up Provision. For a period of one hundred and eighty (180) days from
-----------------
the Closing Date, Investors shall not Transfer or offer to Transfer any of the
Securities (or any securities issued upon conversion or exercise of the
Securities) without the prior written consent of the Company. For a period of
one hundred and eighty (180) days from the Closing Date, Investors shall not
exercise any Warrants issued under this Agreement. To enforce this lock-up
provision, the Company may impose stop-transfer instructions with respect to the
Securities until the end of the applicable lock-up period.
4.4. Further Limitations on Disposition. Without in any way limiting the
----------------------------------
representations set forth in Section 3 above, each Investor agrees that (i)
within ten (10) business days of any disposition or Transfer by an Investor of
its Securities, such Investor shall provide written notice thereof to the
8
Company and (ii) it shall not make any disposition of all or any portion of the
Securities (or any securities issued upon conversion or exercise of the
Securities) unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by Section 3 above and:
(a) there is then in effect a registration statement under the Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement; or
(b) such Investor shall have notified the Company of the proposed disposition
and shall have furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and if requested by the
Company, such Investor shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company that such disposition will not
require registration of such shares under the Act. It is agreed that the Company
will not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances.
4.5. Listing of Additional Shares. Promptly following the execution of this
----------------------------
Agreement, the Company shall file with The Nasdaq National Market a
Notification Form as necessary.
4.6. Registration of Shares. If the Company shall determine to register any of
----------------------
its securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration on any
registration form which does not permit secondary sales, the Company will (i)
promptly give to each Investor written notice thereof; and (ii) use its best
efforts to include in such registration (and any related qualification under
blue sky laws or other compliance) and in any underwriting involved therein, all
of the Shares specified in a written request or requests, made by any Investor
within twenty (20) days after the written notice from the Company described in
(i) above. Such Investor's written request may specify all or a part of his or
her Shares.
(a) If the registration of which the Company gives notice is for a registered
public offering involving an underwriting, the Company shall so advise the
Investors as a part of the written notice given pursuant this Section 4.6. In
such event the right of any Investor to registration pursuant to this Section
4.6 shall be conditioned upon such Investor's participation in such underwriting
and the inclusion of such Investor's Shares in the underwriting to the extent
provided herein. All Investors proposing to distribute their securities through
such underwriting shall (together with the Company and the holders of other
securities of the Company distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected by the Company.
(b) Notwithstanding any other provision of this Section 4.6, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
9
representative may (subject to the limitations set forth below) exclude all
Shares from, or limit the number of Shares to be included in, the registration
and underwriting. The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting shall be allocated
first to the Company for securities being sold for its own account and
thereafter on a pro rata basis among the holders of securities requesting
registration according to the total amount of securities entitled to be included
therein owned by each selling holder of securities or in such other proportions
as shall mutually be agreed to by such selling holders of securities. If any
person does not agree to the terms of any such underwriting, he shall be
excluded therefrom by written notice from the Company or the underwriter. Any
Shares or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(c) If shares are so withdrawn from the registration or if the number of Shares
to be included in such registration was previously reduced as a result of
marketing factors, the Company shall then offer to all persons who have retained
the right to include securities in the registration the right to include
additional securities in the registration in an aggregate amount equal to the
number of shares so withdrawn.
5. Conditions to the Investor's Obligation at Closing. The obligation of the
--------------------------------------------------
Investors to purchase the Securities at the Closing is subject to the
fulfillment to the Investors' satisfaction on or prior to the Closing of the
following conditions:
5.1. Representations and Warranties. The representations and warranties made by
------------------------------
the Company in Section 2 hereof shall be true and correct in all material
respects when made, and shall be true and correct in all material respects as of
the Closing with the same force and effect as if they had been made on and as of
such date, subject to changes contemplated by this Agreement. The President of
the Company shall deliver at the Closing a certificate stating that the
condition specified in the preceding sentence has been fulfilled.
5.2. Covenants. The Company shall have performed and complied in all material
---------
respects with all covenants, agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or
before the Closing.
5.3. Authorizations. All authorizations, approvals or permits, if any, of any
--------------
governmental authority or regulatory body that are required in connection with
the lawful issuance and sale of the Securities pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing. All
waiting periods, if any, under the HSR Act applicable to the issuance of the
Securities hereunder shall have expired or have been terminated.
5.4. Absence of Governmental or Other Objection. There shall be no pending or
------------------------------------------
threatened lawsuit challenging the transaction by any body or agency of the
federal, state or local government or by any third party, and the consummation
of the transaction shall not have been enjoined by a court of competent
jurisdiction as of the Closing.
5.5. No Material Adverse Change. From the date hereof until the Closing
--------------------------
Date, there shall have occurred no material adverse effect on the Company's
business, financial condition or results of operations.
10
5.6. Delivery of Share Certificates and Warrants. On the Closing Date, the
-------------------------------------------
Company shall have delivered, or shall have caused to be delivered, to each
Investor a stock certificate representing the Shares being purchased by such
Investor and a Warrant to purchase the number of shares set forth opposite such
Investor's name in the column titled "Warrant Shares" on Schedule I.
--------------
5.7. Issuance of Warrants. On the Closing Date, the Company shall have delivered
--------------------
a warrant to the Investors in substantially the form attached hereto as Exhibit
B representing the right to purchase the number of shares of Common Stock
indicated across from the Investor's name in the column titled, "Warrant Shares"
--------------
on Schedule I.
6. Conditions to the Company's Obligations at Closing. The obligation of
--------------------------------------------------
the Company to sell the Shares at the Closing is subject to the fulfillment to
the Company's satisfaction on or prior to the Closing of the following
conditions:
6.1. Representations and Warranties. The representations and warranties of the
------------------------------
Investors contained in Section 3 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects as of the Closing with the same force and effect as if they had been
made on and as of such date, subject to changes contemplated by this Agreement.
6.2. Authorizations. All authorizations, approvals or permits, if any, of any
--------------
governmental authority or regulatory body that are required in connection with
the lawful issuance and sale of the Securities pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing. All
waiting periods, if any, under the HSR Act applicable to the issuance of the
Securities hereunder shall have expired or have been terminated.
6.3. Absence of Governmental or Other Objection. There shall be no pending or
------------------------------------------
threatened lawsuit challenging the transaction by any body or agency of the
federal, state or local government or by any third party, and the consummation
of the transaction shall not have been enjoined by a court of competent
jurisdiction as of the Closing.
6.4. Payment of Purchase Price. Each of the Investors shall have delivered
-------------------------
to the Company the purchase price for the Securities, as set forth on Schedule I
----------
attached hereto.
7. Miscellaneous.
-------------
7.1. Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California, without
regard to the conflict of law provisions thereof.
7.2. Survival. The representations and warranties set forth in Sections 2 and 3
--------
shall survive until the Closing. The covenants and agreements set forth in
Section 4 shall survive in accordance with their terms.
7.3. Successors and Assigns. Except as otherwise expressly provided herein, the
----------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
11
respective successors and assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. The Investors may not assign
their rights hereunder without the prior written consent of the Company.
7.4. Entire Agreement. This Agreement constitutes the entire understanding and
----------------
agreement between the parties with regard to the subject matter hereof.
7.5. Notices. Except as otherwise provided, all notices and other communications
-------
required or permitted hereunder shall be in writing, shall be effective when
given, and shall in any event be deemed to be given upon receipt or, if earlier,
(i) five (5) days after deposit with the U.S. postal service or other applicable
postal service, if delivered by first class mail, postage prepaid, (ii) upon
delivery, if delivered by hand, (iii) one (1) business day after the day of
deposit with Federal Express or similar overnight courier, freight prepaid, if
delivered by overnight courier or (iv) one (1) business day after the day of
facsimile transmission, if delivered by facsimile transmission with copy by
first class mail, postage prepaid, and shall be addressed, (a) if to the
Investors, at such Investors' addresses set forth on Schedule I attached hereto,
or at such other addresses as the Investors shall have furnished to the Company
in writing, or (b) if to the Company, at its address as set forth below, or at
such other address as the Company shall have furnished to the Investors in
writing:
If to the Company:
Viador Inc.
0000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Mo
Facsimile Number: (000) 000-0000
7.6. Amendments and Waivers. Any term of this Agreement may be amended and the
----------------------
observance of any term of the Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the holders of a majority of the Common Stock
not previously sold to the public that is issued or issuable upon conversion of
the Securities. Any amendment or waiver effected in accordance with this section
shall be binding upon each holder of any Securities purchased under this
Agreement at the time outstanding (including securities into which such
Securities are convertible), each future holder of such securities and the
Company.
12
7.7. Expenses. The Company and the Investors shall each bear their own legal and
--------
other expenses with respect to the transaction provided, however, that upon
Closing, the Company shall reimburse the reasonable expenses of Investors in
connection with the transaction up to Twenty-Five Thousand Dollars ($25,000).
7.8. Titles and Subtitles. The titles of the paragraphs and subparagraphs
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.9. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be an original, but all of which together shall constitute one
instrument.
7.10. Severability. If one or more provisions of this Agreement are held to be
------------
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.11. Confidentiality. The parties hereto agree that, except with the prior
---------------
written permission of the other party, it shall at all times keep confidential
and not divulge, furnish, or make accessible to anyone any confidential
information, knowledge, or data concerning or relating to the business or
financial affairs of such other party to which said party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement, or the performance of its obligations hereunder.
*****
13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year hereinabove first written.
VIADOR INC.
By:
---------------------------------------------
Name:
Title:
INVESTORS:
Xxxxx Hungyeung
By:
---------------------------------------------
Name:
Title:
Wang Zihan
By:
---------------------------------------------
Name:
Title:
Magison Investment Ltd.
By:
---------------------------------------------
Name:
Title:
Schedule I
----------
Name and Address Number of
of Investor Shares Purchased Purchase Price Warrant Shares
----------- ---------------- -------------- --------------
Xxxxx Hungyeung 5,555,556 $1,500,000 1,111,110
Wang Zihan 5,555,556 $1,500,000 1,111,110
Magison Investment Ltd. 3,703,704 $1,000,000 740,741
Exhibit A
Schedule of Exceptions
EXHIBIT 10.31
Exhibit B
Form of Warrant
