Exibit 10.1
AVID TECHNOLOGY, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made and entered into
as of March 22, 1997, by and between AVID TECHNOLOGY, INC., a Delaware
corporation (the "Company"), and INTEL CORPORATION, a Delaware corporation (the
"Investor").
R E C I T A L
WHEREAS, the Company desires to sell to the Investor, and the Investor desires
to purchase from the Company, shares of the Company's Common Stock, $0.01 par
value per share ("Common Stock"), on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing recital, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK
1.1 AUTHORIZATION
As of the Closing (as defined below), the Company's Board of Directors will
have authorized the issuance, pursuant to the terms and conditions of this
Agreement, of 1,552,632 shares (the "Purchase Shares") of the Company's Common
Stock.
1.2 AGREEMENT TO PURCHASE AND SELL COMMON STOCK
The Company hereby agrees to sell to the Investor at the Closing, and the
Investor agrees to purchase from the Company at the Closing, the Purchased
Shares at a price per share equal to the Per Share Purchase Price.
1.3 PER SHARE PURCHASE PRICE
The "Per Share Purchase Price" shall be $9.50 per share.
2. CLOSING
2.1 THE CLOSING
The purchase and sale of the Purchased Shares will take place at the offices of
Venture Law Group, A Professional Corporation, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000 at 10:00 a.m. California time, within three (3) business days
after the conditions set forth in Articles 5 and 6 have been satisfied, or at
such other time and place as the Company and the Investor mutually agree upon
(which time and place are referred to in this Agreement as the "Closing"). At
the Closing, the Company will send to the Investor via appropriate overnight
courier mutually agreeable to the Company and the Investor, a certificate
representing the Purchased Shares, and will cause the delivery of such
certificate to the Investor on the first business day following the Closing,
against delivery to the Company by the Investor at the Closing of the full
purchase price of the Purchased Shares, paid by wire transfer of funds to the
Company.
3. REPRESENTATlONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor that the statements
in this Section 3 are true and correct, except as set forth in the SEC Documents
or the Disclosure Letter from the Company dated March 22, 1997 (the "Disclosure
Letter").
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all corporate power
and authority required to (a) carry on its business as presently conducted, and
(b) enter into this Agreement, the Investor Rights Agreement (as defined in
Section 5.8) and the Development Agreement (as defined in Section 5.9) and to
consummate the transactions contemplated hereby and thereby. The Company is
qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect. As used in this
Agreement, "Material Adverse Effect" means a material adverse effect on, or a
material adverse change in, or a group of such effects on or changes in, the
business, operations, financial condition, results of operations, assets or
liabilities of the Company and its subsidiaries taken as a whole.
3.2 CAPITALIZATION
As of the date of this Agreement the capitalization of the Company is as
follows:
(a) Preferred Stock
A total of 1,000,000 authorized shares of Preferred Stock, $0.01 par value per
share (the "Preferred Stock"), none of which is issued or outstanding.
(b) Common Stock
A total of 50,000,000 authorized shares of Common Stock, $0.01 par value, of
which 21,450,894 shares are issued and outstanding as of March 17, 1997. All
of such outstanding shares are validly issued, fully paid and non-assessable.
No such outstanding shares were issued in violation of any preemptive right.
(c) Options, Warrants, Reserved Shares
Except for the plans set forth in the SEC Documents (as defined below) (the
"Plans"), there are no outstanding options, warrants, rights (including
conversion or preemptive rights) or agreements for the purchase or acquisition
from the Company of any shares of its capital stock or any securities
convertible into or ultimately exchangeable or exercisable for any shares of
the Company's capital stock. Except for any stock repurchase rights of the
Company under its plans described in the SEC Documents, no shares of the
Company's outstanding capital stock, or stock issuable upon exercise,
conversion or exchange of any outstanding options, warrants or rights, or
other stock issuable by the Company, are subject to any rights of first
refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement, commitment or other
obligation of the Company.
3.3 SUBSIDIARIES
The Company does not presently own or control, directly or indirectly, any
interest in any other corporation, partnership, trust, joint venture,
association or other entity other than as set forth in the SEC Documents (the
"Subsidiaries"). The Company holds of record or beneficially all of the issued
and outstanding capital stock of each of the Subsidiaries.
3.4 DUE AUTHORIZATION
All corporate action on the part of the Company, its officers, directors and
shareholders necessary for the authorization, execution, delivery of, and the
performance of all obligations of the Company under, this Agreement, the
Investor Rights Agreement and the Development Agreement, and the authorization,
issuance, reservation for issuance and delivery of all of the Purchased Shares
being sold under this Agreement has been taken or will be taken prior to the
Closing, and this Agreement constitutes, and the Investor Rights Agreement and
the Development Agreement when executed, will constitute, valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally, (ii) the effect of rules of law governing the availability of
equitable remedies and (iii) the fact that any indemnification or contribution
provision contained in the Investor Rights Agreement or this Agreement may be
unenforceable insofar as the enforceability of such provision may be sought
under federal or state securities laws.
3.5 VALID ISSUANCE OF STOCK
(a) The Purchased Shares, when issued, sold and delivered in accordance with
the terms of this Agreement for the consideration provided for herein, will be
duly and validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the investors in Section 4
hereof, the Purchased Shares will be issued in compliance with the
registration and prospectus delivery requirements of the Securities Act of
1933, as amended (the "1933 Act"), or in compliance with applicable exemptions
therefrom, and the registration and qualification requirements of all
applicable securities laws of the states of the United States.
3.6 GOVERNMENTAL CONSENTS
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for the filing of such qualifications or filings under the
1933 Act and the regulations thereunder and all applicable state securities
laws as may be required in connection with the transactions contemplated by
this Agreement. All such qualifications and filings will, in the case of
qualifications, be effective on the Closing and will, in the case of filings,
be made within the time prescribed by law.
3.7 NON-CONTRAVENTION
The execution, delivery and performance of this Agreement, the Investor Rights
Agreement and the Development Agreement by the Company, and the consummation by
the Company of the transactions contemplated hereby and thereby, do not and
will not (i) contravene or conflict with the Certificate of Incorporation or
Bylaws of the Company; (ii) constitute a material violation of any provision of
any federal, state, local or foreign law binding upon or applicable to the
Company; or (iii) constitute a default or require any consent under, give rise
to any right of termination, cancellation or acceleration of, or to a loss of
any benefit to which the Company is entitled under, or result in the creation
or imposition of any lien, claim or encumbrance on any assets of the Company
under, any contract to which the Company is a party or any permit, license or
similar right relating to the Company or by which the Company may be bound or
affected in such a manner as would have a Material Adverse Effect.
3.8 LITIGATION
There is no action, suit, proceeding, claim, arbitration or investigation
("Action") pending: (a) against the Company, its activities, properties or
assets or, to the best of the Company's knowledge, against any officer,
director or employee of the Company in connection with such officer's,
director's or employee's relationship with, or actions taken on behalf of, the
Company which is reasonably likely to have a Material Adverse Effect, or (b)
that seeks to prevent, enjoin, alter or delay the transactions contemplated by
this Agreement, the Investor Rights Agreement or the Development Agreement.
Except as individually or in the aggregate is not reasonably likely to have a
Material Adverse Effect (i) there is no Action pending or, to the best of the
Company's knowledge, threatened, relating to the current or prior employment of
any of the Company's current or former employees or consultants, their use in
connection with the Company's business of any information, technology or
techniques allegedly proprietary to any of their former employers, clients or
other parties, or their obligations under any agreements with prior employers,
clients or other parties; and (ii) the Company is not a party to or subject to
the provisions of any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality.
3.9 INTELLECTUAL PROPERTY
(a) Ownership or Right to Use
To the best of the Company's knowledge, the Company has sole title to and
owns, or is licensed or otherwise possesses legally enforceable rights to use,
all patents or patent applications, software, know-how, registered or
unregistered trademarks and service marks and any applications therefore,
registered or unregistered copyrights, trade names, and any applications
therefore, trade secrets or other confidential or proprietary information
("Intellectual Property") necessary to enable the Company to carry on its
business as currently conducted or proposed to be conducted under the
Development Agreement, except where any deficiency therein would not have a
Material Adverse Effect. For so long as Investor holds all the Purchased
Shares, the Company covenants that it will, where the Company in the exercise
of its good faith judgment deems it appropriate, use reasonable business
efforts to seek copyright and patent registration, and other appropriate
intellectual property protection, for Intellectual Property of the Company.
(b) Licenses; Other Agreements
The Company has not granted to any third party any exclusive licenses (whether
such exclusivity is temporary or permanent) to any material portion of the
Intellectual Property of the Company. To the best of the Company's knowledge,
there are not outstanding any licenses or agreements of any kind relating to
any Intellectual Property of the Company, except for agreements with OEM's and
other customers of the Company entered into in the ordinary course of the
Company's business, where a breach thereof would have a Material Adverse
Effect. The Company is not obligated to pay any royalties or other payments to
third parties with respect to the marketing, sale, distribution, manufacture,
license or use of any Intellectual Property, except as the Company may be so
obligated in the ordinary course of its business or where the failure to make
such payments would not have a Material Adverse Effect.
(c) No Infringement
To the best of the Company's knowledge, the Company has not violated or
infringed and is not currently violating or infringing, and the Company has
not received any communications alleging that the Company (or any of its
employees or consultants) has violated or infringed, any Intellectual Property
of any other person or entity, to the extent that any such violation or
infringement, either individually or together with all other such violations
and infringements, would have a Material Adverse Effect.
(d) Employees and Consultants
To the best of the Company's knowledge, no employee of or consultant to the
Company is in default under any term of any employment contract, agreement or
arrangement relating to Intellectual Property of the Company or any
non-competition arrangement, other contract, or any restrictive covenant
relating to the Intellectual Property of the Company, which default would have
a Material Adverse Effect.
3.10 COMPLIANCE WITH LAW AND CHARTER DOCUMENTS
The Company is not in violation or default of any provisions of its Certificate
of Incorporation or Bylaws, both as amended, and except for any violations that
would not, either individually or in the aggregate, have a Material Adverse
Effect. The Company has complied and is in compliance with all applicable
statutes, laws, and regulations and executive orders of the United States of
America and all states, foreign countries and other governmental bodies and
agencies having jurisdiction over the Company's business or properties except
where such noncompliance would not, either individually or in the aggregate,
have a Material Adverse Effect.
3.11 TITLE TO PROPERTY AND ASSETS
The properties and assets of the Company which are owned by the Company are
owned free and clear of all mortgages, deeds of trust, liens, charges,
encumbrances and security interests except for statutory liens for the payment
of current taxes that are not yet delinquent and liens and encumbrances and
security interests that arise in the ordinary course of business and do not
affect material properties and assets of the Company in a way reasonably likely
to have Material Adverse Effect. With respect to the property and assets it
leases, the Company is in compliance with such leases in all material respects.
3.12 REGISTRATION RIGHTS
Except as provided in the Investor Rights Agreement effective upon the Closing,
the Company is not currently subject to any grant or agreement to grant to any
person or entity any rights (including piggyback registration rights) to have
any securities of the Company registered with the United States Securities and
Exchange Commission ("SEC") or any other governmental authority.
3.13 SEC DOCUMENTS
(a) The Company has furnished to the Investor on or prior to the date hereof
copies of its Annual Report on Form 10-K for the fiscal year ended December
31, 1996 ("Form 10-K"), and all other registration statements, reports and
proxy statements filed by the Company with the Securities and Exchange
Commission ("Commission") on or after December 31, 1996 (the Form 10-K and
such registration statements, reports and proxy statements, are collectively
referred to herein as the "SEC Documents"). Each of the SEC Documents, as of
the respective date thereof, did not, and each of the registration statements,
reports and proxy statements filed by the Company with the Commission after
the date hereof and prior to the Closing will not, as of the date thereof,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, except as may have
been corrected in a subsequent SEC Document. The Company is not a party to any
material contract, agreement or other arrangement which was required to have
been filed as an exhibit to the SEC Documents that is not so filed.
(b) Since December 31, 1996, the Company has duly filed with the Commission
all registration statements, reports and proxy statements required to be filed
by it under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the 1933 Act. The audited and unaudited consolidated financial
statements of the Company included in the SEC Documents filed prior to the
date hereof fairly present, in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis (except as may be indicated
in the notes thereto), the consolidated financial position of the Company and
its consolidated subsidiaries as at the date thereof and the consolidated
results of their operations and cash flows for the periods then ended.
(c) Except as and to the extent reflected or reserved against in the Company's
Financial Statements (including the notes thereto), the Company has no
material liabilities (whether accrued or unaccrued, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined or determinable) other than: (i)
liabilities incurred in the ordinary course of business since the Balance
Sheet Date that are consistent with the Company's past practices, (ii)
liabilities with respect to agreements to which the Investor is a party, and
(iii) other Liabilities that either individually or in the aggregate, would
not result in a Material Adverse Effect.
3.14 ABSENCE OF CERTAIN CHANGES SINCE BALANCE SHEET DATE
Since December 31, 1996, the business and operations of the Company have been
conducted in all material respects in the ordinary course consistent with past
practice, and there has not been:
(a) any declaration, setting aside or payment of any dividend or other
distribution of the assets of the Company with respect to any shares of
capital stock of the Company, or any repurchase, redemption or other
acquisition by the Company or any subsidiary of the Company of any outstanding
shares of the Company's capital stock;
(b) any damage, destruction or loss, whether or not covered by insurance,
except for such occurrences that have not resulted, and are not expected to
result, in a Material Adverse Effect;
(c) any waiver by the Company of a valuable right or of a material debt owed
to it, except for such waivers that have not resulted, and are not expected to
result, in a Material Adverse Effect;
(d) any material change or amendment to, or any waiver of any material rights
under, a material contract or arrangement by which the Company or any of its
assets or properties is bound or subject, except for changes, amendments, or
waivers that are expressly provided for or disclosed in this Agreement or that
have not resulted, and are not expected to result, in a Material Adverse
Effect;
(e) any change by the Company in its accounting principles, methods or
practices or in the manner it keeps its accounting books and records, except
any such change required by a change in GAAP; and
(f) any other event or condition of any character, except for such events and
conditions that have not resulted, and are not expected to result, in a
Material Adverse Effect.
3.15 TAX MATTERS
The Company and each of its subsidiaries have filed all material tax returns
required to be filed, which returns are true and correct in all material
respects, and neither the Company nor any of its subsidiaries is in default in
the payment of any taxes, including penalties and interest, assessments, fees
and other charges, shown thereon due or otherwise assessed, other than those
being contested in good faith and for which adequate reserves have been
provided or those currently payable without interest which were payable
pursuant to said returns or any assessments with respect thereto.
3.16 REAL PROPERTY HOLDING CORPORATION STATUS
Since its inception the Company has not been a "United States real property
holding corporation", as defined in Section 897(c)(2) of the U.S. Internal
Revenue Code of 1986, as amended, and in Section 1.897-2(b) of the Treasury
Regulations issued thereunder (the "Regulations"), and the Company has filed
with the Internal Revenue Service all statements, if any, with its United
States income tax returns which are required under Section 1.897-2(h) of the
Regulations.
3.17 FULL DISCLOSURE
The information contained in this Agreement, the Disclosure Letter and the SEC
Documents with respect to the business, operations, assets, results of
operations and financial condition of the Company, and the transactions
contemplated by this Agreement, the Investor Rights Agreement and the
Development Agreement, are true and complete in all material respects and do
not omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INVESTOR
The Investor hereby represents and warrants to the Company, and agrees that:
4.l AUTHORIZATION
This Agreement and the Investor Rights Agreement have been duly authorized by
all necessary corporate action on the part of the Investor. This Agreement and
the Investor Rights Agreement constitute the Investor's valid and legally
binding obligations, enforceable in accordance with their respective terms,
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting
the enforcement of creditors' rights generally and (b) the effect of rules of
law governing the availability of equitable remedies. The Investor has full
corporate power and authority to enter into this Agreement and the Investor
Rights Agreement
4.2 PURCHASE FOR OWN ACCOUNT
The Purchased Shares are being acquired for investment for the Investors own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the 1933 Act, and the Investor has
no present intention of selling, granting any participation in, or otherwise
distributing the same. The Investor also represents that it has not been formed
for the specific purpose of acquiring the Purchased Shares.
4.3 DISCLOSURE OF INFORMATION
The Investor has received or has had full access to all the information it
considers necessary or appropriate to make an informed investment decision with
respect to the Purchased Shares to be purchased by the Investor under this
Agreement. The Investor further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Purchased Shares and to obtain additional information (to the
extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished
to the investor or to which the Investor had access. The foregoing, however,
does not in any way limit or modify the representations and warranties made by
the Company in Article 3.
4.4 INVESTMENT EXPERIENCE
The Investor understands that the purchase of the Purchased Shares involves
substantial risk. The Investor: (a) has experience as an investor in securities
of companies and acknowledges that it is able to fend for itself, can bear the
economic risk of its investment in the Purchased Shares and has such knowledge
and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Purchased Shares and
protecting its own interests in connection with this investment and/or (b) has
a preexisting personal or business relationship with the Company and certain of
its officers, directors or controlling persons of a nature and duration that
enables the Investor to be aware of the character, business acumen and
financial circumstances of such persons.
4.5 ACCREDITED INVESTOR STATUS
The Investor is an "accredited investor" within the meaning of Regulation D
promulgated under the 0000 Xxx.
4.6 RESTRICTED SECURITIES
The Investor understands that the Purchased Shares to be purchased by the
Investor hereunder are characterized as "restricted securities" under the 1933
Act inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. The Investor is familiar
with Rule 144 of the SEC, as presently in effect, and understands the resale
limitations imposed thereby and by the 1933 Act. The Investor understands that
the Company is under no obligation to register any of the securities sold
hereunder except as provided in the Investor Rights Agreement.
4.7 FURTHER LIMITATIONS ON DISPOSITION
Without in any way limiting the representations set forth above, the Investor
further agrees not to make any disposition of all or any portion of the
Purchased Shares unless and until:
(a) there is then in effect a registration statement under the 1933 Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; or
(b) the Investor has notified the Company of the proposed disposition and has
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and the Investor has furnished the Company, at the
expense of the Investor or its transferee, with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such securities under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) of this Section 4.7,
no such registration statement or opinion of counsel will be required for any
transfer of any Purchased Shares in compliance with SEC Rule 144, Rule 144A or
Rule 145(d), or if such transfer otherwise is exempt, in the view of the
Company's legal counsel, from the registration requirements of the 0000 Xxx.
4.8 LEGENDS
Certificates evidencing the Purchased Shares will bear each of the legends set
forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS
OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
(b) Any Legends Required By Any Applicable State Securities Laws The legend
set forth in Section 4.8(a) hereof will be removed by the Company from any
certificate evidencing Purchased Shares upon delivery to the Company of an
opinion of counsel, reasonably satisfactory to the Company, that such security
can be freely transferred pursuant to Rule 144(k) without a registration
statement being in effect and that such transfer will not jeopardize the
exemption or exemptions from registration pursuant to which the Company issued
the Purchased Shares.
5. CONDITIONS TO THE INVESTOR'S OBLIGATIONS AT CLOSING
The obligations of the Investor under Sections l and 2 of this Agreement are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions:
5.1 REPRESENTATIONS AND WARRANTIES TRUE
Except for representations and warranties expressed to be as of a specified
date (which shall be true and correct as of such date), each of the
representations and warranties of the Company contained in Section 3 will be
true and correct on and as of the date hereof and on and as of the date of the
Closing, except as set forth in the Disclosure Letter, as amended through the
Closing, with the same effect as though such representations and warranties had
been made as of the Closing.
5.2 PERFORMANCE
The Company will have performed and complied with all agreements, obligations
and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and will have obtained all
approvals, consents and qualifications necessary to complete the purchase and
sale described herein.
5.3 COMPLIANCE CERTIFICATE
The Company will have delivered to the Investor at the Closing a certificate
signed on its behalf by its Chief Executive Officer or Chief Financial Officer
certifying that the conditions specified in Sections 5.1 and 5.2 hereof have
been fulfilled.
5.4 SECURITIES EXEMPTIONS
The offer and sale of the Purchased Shares to the Investor pursuant to this
Agreement will be exempt from the registration requirements of the 1933 Act and
the registration and/or qualification requirements of all applicable state
securities laws.
5.5 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto will be
reasonably satisfactory in form and substance to the Investor, and the Investor
will have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) Certified Charter Documents
A copy of (i) the Certificate of Incorporation certified as of a recent date
by the Secretary of State of Delaware as a complete and correct copy thereof,
and (ii) the Bylaws of the Company (as amended through the date of the
Closing) certified by the Secretary of the Company as true and correct copies
thereof as of the Closing.
(b) Board Resolutions
A copy, certified by the Secretary of the Company, of the resolutions of the
Board of Directors of the Company providing for the approval of this
Agreement, the Investor Rights Agreement and the Development Agreement and the
issuance of the Purchased Shares and the other matters contemplated hereby.
5.6 OPINION OF COMPANY COUNSEL
The Investor will have received an opinion on behalf of the Company, dated as
of the date of the Closing, from Xxxx and Xxxx, in form and substance
reasonably satisfactory to the Investor.
5.7 INVESTOR RIGHTS AGREEMENT
The Company will have executed and delivered the Investor Rights Agreement
substantially in the form attached to this Agreement as Exhibit A (the
"Investor Rights Agreement").
5.8 DEVELOPMENT AGREEMENT
The Company will have executed and delivered the Software and Hardware
Development, License and Distribution Agreement (the "Development Agreement")
in a form reasonably satisfactory to the Investor.
5.9 NO MATERIAL ADVERSE EFFECT
Between the date hereof and the Closing, there shall not have occurred any
Material Adverse Effect.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company to the Investor under this Agreement are subject
to the fulfillment or waiver on or before the Closing (defined in Section 2.1),
of each of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES TRUE
The representations and warranties of the Investor contained in Section 4 will
be true and correct on and as of the date hereof and on and as of the date of
the Closing with the same effect as though such representations and warranties
had been made as of the Closing.
6.2 PAYMENT OF PURCHASE PRICE
The Investor will have delivered to the Company the full purchase price of the
Purchased Shares as specified in Section 1.2.
6.3 SECURITIES EXEMPTIONS
The offer and sale of the Purchased Shares to the Investor pursuant to this
Agreement will be exempt from the registration requirements of the 1933 Act and
the registration and/or qualification requirements of all applicable state
securities laws.
6.4 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto will be
reasonably satisfactory in form and substance to the Company and to the
Company's legal counsel, and the Company will have received all such
counterpart originals and certified or other copies of such documents as it may
reasonably request.
6.5 INVESTOR RIGHTS AGREEMENT
The Investor will have executed and delivered the Investor Rights Agreement.
6.6 DEVELOPMENT AGREEMENT
Investor will have executed and delivered the Development Agreement.
7. INDEMNIFICATION
7.1 AGREEMENT TO INDEMNIFY
(a) Company Indemnity
The Investor, its Affiliates and Associates, and each officer, director,
shareholder, employer, representative and agent of any of the foregoing
(collectively, the "Investor Indemnitees") shall each be indemnified and held
harmless to the extent set forth in this Section 7 by the Company with respect
to any and all Damages (as defined below) incurred by any Investor Indemnitee
as a proximate result of any inaccuracy or misrepresentation in, or breach of,
any representation, warranty, covenant or agreement made by the Company in
this Agreement or the Investor Rights Agreement (including any Exhibits and
Schedules hereto).
(b) Investor Indemnity
The Company, its respective Affiliates and Associates, and each officer,
director, shareholder, employer, representative and agent of any of the
foregoing (collectively, the "Company Indemnitees") shall each be indemnified
and held harmless to the extent set forth in this Section 7, by the Investor,
in respect of any and all Damages incurred by any Company Indemnitee as a
result of any inaccuracy or misrepresentation in, or breach of, any
representation, warranty, covenant or agreement made by the Investor in this
Agreement or the Investor Rights Agreement.
(c) Equitable Relief
Nothing set forth in this Section 7 shall be deemed to prohibit or limit any
Investor Indemnitee's or Company Indemnitee's right at any time before, on or
after the Closing Date, to seek injunctive or other equitable relief for the
failure of any Indemnifying Party to perform or comply with any covenant or
agreement contained herein.
7.2 SURVIVAL
All representations and warranties of the Investor and the Company contained
herein or in the Investor Rights Agreement, and all claims of any Investor
Indemnitee or Company Indemnitee in respect of any inaccuracy or
misrepresentation in or breach thereof, shall survive the Closing until the
second anniversary of the date of this Agreement, regardless of whether the
applicable statute of limitations, including extensions thereof, may expire
(except to the extent any such covenant or agreement shall expire by its
terms). All covenants and agreements of the Investor and the Company contained
herein or in the Investor Rights Agreement shall survive the Closing in
perpetuity (except to the extent any such covenant or agreement shall expire by
its terms). All claims of any Investor Indemnitee or Company Indemnitee in
respect of any breach of such covenants or agreements shall survive the Closing
until the expiration of two years following the non-breaching party's obtaining
actual knowledge of such breach.
7.3 CLAIMS FOR INDEMNIFICATION
If any Investor Indemnitee or Company Indemnitee (an "Indemnitee") shall
believe that such Indemnitee is entitled to indemnification pursuant to this
Section 7 in respect of any Damages, such Indemnitee shall give the appropriate
Indemnifying Party (which for purposes hereof, in the case of an Investor
Indemnitee, means the Company, and in the case of a Company Indemnitee, means
the Investor) prompt written notice thereof. Any such notice shall set forth in
reasonable detail and to the extent then known the basis for such claim for
indemnification. The failure of such Indemnitee to give notice of any claim for
indemnification promptly shall not adversely affect such Indemnitee's right to
indemnity hereunder except to the extent that such failure adversely affects
the right of the Indemnifying Party to assert any reasonable defense to such
claim. Each such claim for indemnity shall expressly state that the
Indemnifying Party shall have only the twenty (20) business day period referred
to in the next sentence to dispute or deny such claim. The Indemnifying Party
shall have twenty (20) business days following its receipt of such notice
either (a) to acquiesce in such claim by giving such Indemnitee written notice
of such acquiescence or (b) to object to the claim by giving such Indemnitee
written notice of the objection. If Indemnifying Party does not object thereto
within such twenty (20) business day period, such Indemnitee shall be entitled
to be indemnified for all Damages reasonably and proximately incurred by such
Indemnitee in respect of such claim. If the Indemnifying Party objects to such
claim in a timely manner, the senior management of the Company and the Investor
shall meet to attempt to resolve such dispute. If the dispute cannot be
resolved by the senior management either party may make a written demand for
formal dispute resolution and specify therein the scope of the dispute. Within
thirty days after such written notification, the parties agree to meet for one
day with an impartial mediator and consider dispute resolution alternatives
other than litigation. If an alternative method of dispute resolution is not
agreed upon within thirty days after the one day mediation, either party may
begin litigation proceedings. Nothing in this section shall be deemed to
require arbitration.
7.4 DEFENSE OF CLAIMS
In connection with any claim that may give rise to indemnity under this Section
7 resulting from or arising out of any claim or Proceeding against an
Indemnitee by a person or entity that is not a party hereto, the Indemnifying
Party may but shall not be obligated to (unless such Indemnitee elects not to
seek indemnity hereunder for such claim), upon written notice to the relevant
Indemnitee, assume the defense of any such claim or proceeding if the
Indemnifying Party with respect to such claim or Proceeding acknowledges to the
Indemnitee the Indemnitee's right to indemnity pursuant hereto to the extent
provided herein (as such claim may have been modified through written agreement
of the parties or arbitration hereunder) and provides assurances, satisfactory
to such Indemnitee, that the Indemnifying Party will be financially able to
satisfy such claim to the extent provided herein if such claim or Proceeding is
decided adversely; provided, however, that nothing set forth herein shall be
deemed to require the Indemnifying Party to waive any crossclaims or
counterclaims the Indemnifying Party may have against the Indemnified Party for
damages. The Indemnified Party shall be entitled to retain separate counsel,
reasonably acceptable to the Indemnifying Party, if the Indemnified Counsel
shall determine, upon the written advice of counsel, that claims of or defenses
available to the Indemnifying Party and the Indemnified Party in connection
with such Proceeding may differ. The Indemnifying Party shall be obligated to
pay the reasonable fees and expenses of such separate counsel to the extent the
Indemnified Party is entitled to indemnification by the Indemnifying Party with
respect to such claim or Proceeding under this Section 7.4. If the Indemnifying
Party assumes the defense of any such claim or Proceeding, the Indemnifying
Party shall select counsel reasonably acceptable to such Indemnitee to conduct
the defense of such claim or Proceeding, shall take all steps necessary in the
defense or settlement thereof and shall at all times diligently and promptly
pursue the resolution thereof. If the Indemnifying Party shall have assumed the
defense of any claim or Proceeding in accordance with this Section 7.4, the
Indemnifying Party shall be authorized to consent to a settlement of, or the
entry of any judgment arising from, any such claim or Proceeding, but only with
the prior written consent of such Indemnitee, which consent shall not be
unreasonably withheld; provided, however, that the Indemnifying Party shall pay
or cause to be paid all amounts arising out of such settlement or judgment
concurrently with the effectiveness thereof; provided, further, that the
Indemnifying Party shall not be authorized to encumber any of the assets of any
Indemnitee or to agree to any restriction that would apply to any Indemnitee or
to its conduct of business; and provided, further, that a condition to any such
settlement shall be a complete release of such Indemnitee and its Affiliates,
directors, officers, employees and agents with respect to such claim, including
any reasonably foreseeable collateral consequences hereof. Such Indemnitee
shall be entitled to participate in (but not control) the defense of any such
action, with its own counsel and at its own expense. Each Indemnitee shall, and
shall cause each of its Affiliates, directors, officers, employees and agents
to, cooperate fully with the Indemnifying Party in the defense of any claim or
Proceeding being defended by the Indemnifying Party pursuant to this Section
7.4. If the Indemnifying Party does not assume the defense of any claim or
Proceeding resulting therefrom in accordance with the terms of this Section
7.4, such Indemnitee may defend against such claim or Proceeding in such manner
as it may deem appropriate, including settling such claim or proceeding after
giving notice of the same to the Indemnifying Party, on such terms as such
Indemnitee may deem appropriate, but only with the prior written consent of
Indemnitee which consent shall not be unreasonably withheld. If any
Indemnifying Party seeks to question the manner in which such Indemnitee
defended such claim or Proceeding or the amount of or nature of any such
settlement, such Indemnifying Party shall have the burden to prove by a
preponderance of the evidence that such Indemnitee did not defend such claim or
Proceeding in a reasonably prudent manner.
7.5 CERTAIN DEFINITIONS
As used in this Section 7, (a) "Affiliate" means, with respect to any person or
entity, any person or entity directly or indirectly controlling, controlled by
or under direct or indirect common control with such other person or entity;
(b) "Associate" means, when used to indicate a relationship with any person or
entity, (l) any other person or entity of which such first person or entity is
an officer, director or partner or is, directly or indirectly, the beneficial
owner of ten percent (10%) or more of any class of equity securities,
membership interests or other comparable ownership interests issued by such
other person or entity, (2) any trust or other estate in which such first
person or entity has a ten percent (10%) or more beneficial interest or as to
which such first person or entity serves as trustee or in a similar fiduciary
capacity, and (3) any relative or spouse of such first person or entity who has
the same home as such first person or entity or who is a director or officer of
such first person or entity; (c) "Damages" means all demands, claims, actions
or causes of action, assessments, losses, damages, costs, expenses,
liabilities, judgments, awards, fines, response costs, sanctions, taxes,
penalties, charges and amounts paid in settlement, including reasonable
out-of-pocket costs, fees and expenses (including reasonable costs, fees and
expenses of attorneys, accountants and other agents of, or other parties
retained by, such party), and (d) "Proceeding" means any action, suit, hearing,
arbitration, audit, proceeding (public or private) or investigation that is
brought or initiated by or against any federal, state, local or foreign
governmental authority or any other person or entity.
7.6 LIMITATIONS ON INDEMNITIES
Notwithstanding any other provision in this Section 7, neither party shall have
any obligation to indemnify the other party under Section 7.1 unless the
aggregate for all such claims exceeds $500,000, in which case to the full
extent of Damages (including such initial $500,000) up to a maximum aggregate
indemnity of $14,750,000. NEITHER PARTY TO THIS AGREEMENT NOR ANY OF ITS
AFFILIATES SHALL BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY
A PARTY OR ITS AFFILIATES WITH RESPECT TO ANY TERM OR THE SUBJECT MATTER OF
THIS AGREEMENT.
8. STANDSTILL
The Investor hereby agrees that the Investor (together with all of its
subsidiaries in which Investor owns beneficially or of record a majority of the
outstanding Voting Stock of such subsidiary ("Majority Owned Subsidiaries"))
shall not acquire "beneficial ownership" (as defined in Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended) of any Voting Stock (as
defined below), any securities convertible into or exchangeable for Voting
Stock, or any other right to acquire Voting Stock (except, in any case, by way
of stock dividends or other distributions or offerings made available to holders
of any Voting Stock generally) without the prior written consent of the Company,
if the effect of such acquisition would be to increase the Voting Power of all
Voting Stock then beneficially owned by the Investor or which it has a right to
acquire (together with all Majority Owned Subsidiaries) to a percentage greater
than nineteen and ninety-nine one hundredths percent (19.99%) (the "Standstill
Percentage") of the Total Voting Power (as defined below) of the Company at the
time in effect; provided that:
(a) The Investor may acquire Voting Stock without regard to the foregoing
limitation, and such limitation shall be suspended, but not terminated, if and
for as long as (i) a tender or exchange offer is made and is not withdrawn or
terminated by another person or group to purchase or exchange for cash or
other consideration any Voting Stock that, if accepted or if otherwise
successful, would result in such person or group beneficially owning or having
the right to acquire shares of Voting Stock with aggregate Voting Power of
more than nineteen and ninety-nine one hundredths percent (19.99%) of the
Total Voting Power of the Company then in effect (not counting for these
purposes any shares of Voting Stock of the Company originally acquired (where
such Shares or shares exchanged with the Company in respect thereof, are still
held) by such person or group from the Investor or any Majority Owned
Subsidiary), and such offer is not withdrawn or terminated prior to the
Investor making an offer to acquire Voting Stock or acquiring Voting Stock;
provided, however, that the foregoing standstill limitation will be reinstated
once any such tender or exchange offer is withdrawn or terminated, (ii)
another person or group hereafter acquires Voting Stock with aggregate Voting
Power of twenty percent (20%) or more of the Total Voting Power of the Company
then in effect (not counting for these purposes any shares of Voting Stock of
the Company originally acquired (where such Shares or shares exchanged with
the Company in respect thereof, are still held) by such person or group from
the Investor or any Majority Owned Subsidiary), where such person or group
files a Schedule 13D (under the rules promulgated under Section 13(d) under
the Securities and Exchange Act of 1934, as such rules and section are in
effect on the date hereof), or other similar or successor schedule or form,
indicating that such person's or group's holdings equal or exceed twenty
percent (20%); provided, however, that the foregoing standstill limitation
will be reinstated once the percentage of Total Voting Power beneficially
owned by such other person or group falls below twenty percent (20%); (iii)
another person or group hereafter acquires Voting Stock that results in such
person or group being required to file a Schedule 13G, or other similar or
successor schedule or form, indicating that such other person or group
beneficially owns or has the right to acquire Voting Stock with aggregate
Voting Power equal to or more than twenty percent (20%) of the Total Voting
Power of the Company (not counting for these purposes any shares of Voting
Stock of the Company originally acquired (where such Shares or shares
exchanged with the Company in respect thereof, are still held) by such person
or group from the Investor or any Majority Owned Subsidiary); provided,
however, that the foregoing standstill limitation will be reinstated once the
percentage of Total Voting Power beneficially owned by such other person or
group falls below twenty percent (20%); or (iv) another person or group orally
or in writing contacts the Company and advises the Company of such person's or
group's intention to commence a tender or exchange offer that, if so
commenced, would result in a suspension pursuant to clause (i) above (e.g., a
"bear hug" offer) and such contact by such person or group is publicly
disclosed or otherwise becomes publicly known; provided, further, that if such
a bear hug offer is not publicly disclosed or known to the public then the
Company shall notify Investor of such bear hug and from time to time of its
ongoing status (which information Investor shall treat as confidential);
provided, however, that the foregoing standstill limitation will be reinstated
if such intention is withdrawn in writing or other reasonable evidence of such
withdrawal is provided to the Investor. The Company shall notify the Investor
in writing of the occurrence of any event described in clauses (i) through
(iv) of the immediately preceding sentence as soon as practicable following
the Company's becoming aware of any such event, and in any case, shall provide
the Investor written notice of any such event within two (2) business days of
the Company's being aware of the occurrence of any such event.
(b) The Investor will not be obliged to dispose of any Voting Stock to the
extent that the aggregate percentage of the Total Voting Power of the Company
represented by Voting Stock beneficially owned by the Investor or which the
Investor has a right to acquire is increased beyond the Standstill Percentage
(i) as a result of a recapitalization of the Company or a repurchase or
exchange of securities by the Company or any other action taken by the Company
or its affiliates; (ii) as the result of acquisitions of Voting Stock made
during the period when the Investor's "standstill" obligations are suspended
pursuant to Section 8.1(a); (iii) as a result of an equity index transaction,
provided that Investor shall not vote such shares; (iv) by way of stock
dividends or other distributions or rights or offerings made available to
holders of shares of Voting Stock generally; (v) with the consent of a simple
majority of the independent authorized members of the Company's Board of
Directors; or (vi) as part of a transaction on behalf of Investor's Defined
Benefit Pension Plan, Profit Sharing Retirement Plan, 401(k) Savings Plan,
Sheltered Employee Retirement Plan and Sheltered Employee Retirement Plan
Plus, or any successor or additional retirement plans thereto (collectively,
the "Retirement Plans") where the Company's shares in such Retirement Plans
are voted by a trustee for the benefit of Investor employees or, for those
Retirement Plans where Investor controls voting, where Investor agrees not to
vote any shares of such Retirement Plan Voting Stock that would cause Investor
to exceed the Standstill Percentage.
(c) As used in this Section 8, (i) the term "Voting Stock" means the Common
Stock and any other securities issued by the Company having the ordinary power
to vote in the election of directors of the Company (other than securities
having such power only upon the happening of a contingency that has not
occurred), (ii) the term "Voting Power" of any Voting Stock means the number
of votes such Voting Stock is entitled to cast for directors of the Company at
any meeting of shareholders of the Company, and (ii) the term "Total Voting
Power" means the total number of votes which may be cast in the election of
directors of the Company at any meeting of shareholders of the Company if all
Voting Stock was represented and voted to the fullest extent possible at such
meeting, other than votes that may be cast only upon the happening of a
contingency that has not occurred. For purposes of this Section 8, the
Investor shall not be deemed to have beneficial ownership of any Voting Stock
held by a pension plan or other employee benefit program of the Investor if
the Investor does not have the power to control the investment decisions of
such plan or program.
9. MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS
Neither party may assign this Agreement or any rights hereunder without the
consent of the other party except to a Majority Owned Subsidiary. In the event
of a permitted assignment, the terms and conditions of this Agreement will
inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
9.2 GOVERNING LAW
This Agreement will be governed by and construed under the internal laws of the
State of Delaware as applied to agreements among Delaware residents entered
into and to be performed entirely within Delaware, without reference to
principles of conflict of laws or choice of laws.
9.3 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the
same instrument.
9.4 HEADINGS
The headings and captions used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement. All
references in this Agreement to sections, paragraphs, exhibits and schedules
will, unless otherwise provided, refer to sections and paragraphs hereof and
exhibits and schedules attached hereto, all of which exhibits and schedules are
incorporated herein by this reference.
9.5 NOTICES
Any notice required or permitted under this Agreement will be given in writing,
shall be effective when received, and shall in any event be deemed received and
effectively given upon personal delivery to the party to be notified or three
(3) business days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, or one (1) business day after
deposit with a nationally recognized courier service such as Federal Express
for next business day delivery, or one (1) business day after facsimile with
copy delivered by registered or certified mail, postage prepaid and addressed
to the party to be notified at the address indicated for such party on the
signature page hereof or at such other address as the Investor or the Company
may designate by giving at least ten (10) days advance written notice pursuant
to this Section 9.5.
9.6 NO FINDER'S FEES
Each party represents that it neither is nor will be obligated for any finder's
or broker's fee or commission in connection with this transaction. The Investor
will indemnify and hold harmless the Company from any liability for any
commission or compensation in the nature of a finders' or broker's fee for
which the Investor or any of its officers, partners, employees or consultants,
or representatives is responsible. The Company will indemnify and hold harmless
the Investor from any liability for any commission or compensation in the
nature of a finder's or broker's fee for which the Company or any of its
officers, employees or consultants or representatives is responsible.
9.7 AMENDMENTS AND WAIVERS
This Agreement may be amended and the observance of any term of this 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 Investor. Any amendment or waiver effected in accordance with this
Section 9.7 will be binding upon the Investor, the Company and their respective
successors and assigns.
9.8 SEVERABILITY
If any provision of this Agreement is held to be unenforceable under applicable
law, such provision will be excluded from this Agreement and the balance of the
Agreement will be interpreted as if such provision were so excluded and will be
enforceable in accordance with its terms.
9.9 ENTIRE AGREEMENT
This Agreement and the Investor Rights Agreement, together with all Exhibits
and schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
9.10 FURTHER ASSURANCES
From and after the date of this Agreement upon the request of the Investor or
the Company, the Company and the Investor will execute and deliver such
instruments, documents or other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
9.11 MEANING OF INCLUDE AND INCLUDING
Whenever in this Agreement the word "include" or "including" is used, it shall
be deemed to mean "include, without limitation" or "including, without
limitation," as the case may be, and the language following "include" or
"including" shall not be deemed to set forth an exhaustive list.
9.12 FEES, COSTS, AND EXPENSES
All fees, costs and expenses (including attorneys' fees and expenses) incurred
by either party hereto in connection with the preparation, negotiation and
execution of this Agreement, the Investor Rights Agreement and the Development
Agreement and the consummation of the transactions contemplated hereby and
thereby, shall be the sole and exclusive responsibility of such party.
9.13 LIMITATION
The entire liability of either party to the other party shall not exceed the
aggregate amount of consideration received by the Company for the Purchased
Shares pursuant to Section 1 of this Agreement.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
AVID TECHNOLOGY, INC. INTEL CORPORATION
By: /S/ XXXXXXX X. XXXXXXXX By: /S/ XXXXXX XXXXXXX
--------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Vice President of Title:
Finance and Chief Financial
Officer
Address: Metropolitan Technology Park Address: Mail Stop: SC4-210
One Park West 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel Attention: Treasurer
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
with a copy to
Address: SC4-203
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
[Signature Page to Common Stock Purchase Agreement]
