Investment Agreement - Compression Labs Inc. and Fletcher Asset Management Inc.
INVESTMENT AGREEMENT
BETWEEN
COMPRESSION LABS, INCORPORATED
AND
FLETCHER ASSET MANAGEMENT, INC.
DATED AS OF JUNE 16, 1995
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INVESTMENT AGREEMENT
This INVESTMENT AGREEMENT (the "Agreement") is entered into as of June
16, 1995 (the "Agreement Date") by and between FLETCHER ASSET MANAGEMENT, INC.,
a Delaware corporation (the "Investor"), and COMPRESSION LABS, INCORPORATED, a
Delaware corporation (the "Company").
WHEREAS, the parties desire that the Investor become an equity investor
in the Company by purchasing shares (as determined under Article I hereof) of
the Company's Common Stock, par value $.001 per share (the "Common Stock").
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
1.1 PURCHASE AND SALE OF COMMON STOCK. Upon the terms and
conditions set forth herein, the Company shall issue and sell to the Investor
pursuant to an effective Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), and the Investor shall purchase, shares (as determined under this
Article I) of Common Stock (the "Shares"), including one Right, as defined in
the Amended and Restated Rights Agreement (the "Rights Agreement") between
Compression Labs, Incorporated and the First National Bank of Boston, dated
January 29, 1993 for each share of Common Stock (the "Rights"); provided,
however, that no Rights shall be issuable at each of the Closings (as defined
herein) if the Rights have been redeemed or repurchased by the Company prior to
such Closing. References herein to the Common Stock shall, unless the context
otherwise requires, be deemed to include the associated Rights.
1.2 INITIAL CLOSING. The Initial Closing Date shall be July 10,
1995, provided, however, that upon notice from the Company to Investor on or
before June 27, 1995, the Company, in its sole discretion, may accelerate the
Initial Closing Date to June 30, 1995. The "Initial Share Quantity" shall be
equal to 500,000 shares of Common Stock. The Initial Share Price shall be equal
to the average (rounded to the nearest thousandth of a dollar) of the three
lowest per share daily low sale prices of the Common Stock as reported by the
Nasdaq National Market (the "Nasdaq") in the period beginning on the Agreement
Date and ending one business day prior to the Initial Closing Date. The Initial
Payment shall be the dollar amount equal to the product of (i) the Initial
Share Quantity and (ii) the Initial Share Price. On the Initial Closing Date,
the Company shall deliver Initial Share Quantity number of shares of Common
Stock to the Investor against payment by the Investor therefor of the Initial
Payment to the Company. If the Rights are repurchased or redeemed by the
Company prior to the Initial Closing Date, the Initial Payment shall be reduced
by the product of (x) the Initial Share Quantity and (y) the per Right
repurchase or redemption price.
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1.3 INTERIM CLOSING. The Interim Closing Date shall be the first
business day following the Interim Trading Period. The Interim Trading Period
shall be the period beginning on the Agreement Date and ending August 7, 1995,
provided, however, that the ending date shall be extended to include an
additional trading day for the Common Stock for each day during the period
throughout which trading in the Common Stock had been suspended by the SEC or
the Nasdaq. The Interim Share Price shall be equal to the average (rounded to
the nearest thousandth of a dollar) of the daily volume-weighted average trade
price of the Common Stock as reported by Bloomberg for the days on which the
Common Stock is trading during the Interim Trading Period. Subject to the
limitation set forth in Section 1.5 hereof, on the Interim Closing Date, if and
only if the Interim Share Price is less than the Initial Share Price, then the
Company shall issue the Interim Share Quantity (as defined below) number of
shares of Common Stock, if any, to the Investor. Alternatively, on the Interim
Closing Date, if and only if the Interim Share Price is greater than the
Initial Share Price, then the Investor shall make payment of the Interim
Payment (as defined below) to the Company. The Interim Share Quantity shall be
the nearest whole number greater than or equal to zero to the quantity:
(Initial Share Price - Interim Share Price) x Initial Share Quantity
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Interim Share Price
The Interim Payment, if any, shall be the dollar amount equal to:
(Interim Share Price - Initial Share Price) x Initial Share Quantity
1.4 FINAL CLOSING. The Final Closing Date shall be the first
business day following the Final Trading Period. The Final Trading Period shall
be the period beginning on the Agreement Date and ending September 28, 1995,
provided, however, that the ending date shall be extended to include an
additional trading day for the Common Stock for each day during the period
throughout which trading in the Common Stock had been suspended by the SEC or
the Nasdaq. The Final Share Price shall be equal to the average (rounded to the
nearest thousandth of a dollar) of the daily volume-weighted average trade
price of the Common Stock as reported by Bloomberg for the days on which the
Common Stock is trading during the Final Trading Period. Subject to the
limitation set forth in Section 1.5 hereof, on the Final Closing Date, the
Company will issue the Final Share Quantity (as defined below) number of shares
of Common Stock, if any, to the Investor. The Final Share Quantity shall be the
nearest whole number greater than or equal to zero to the quantity:
(Interim Share Price - Final Share Price) x
(Initial Share Quantity + Interim Share Quantity)
-------------------------------------------------
Final Share Price
In addition, on the Final Closing Date, the Company shall deliver a number of
shares of Common Stock equal to the Supplemental Share Quantity, if any, to the
Investor against payment by the Investor therefor of the Supplemental Payment
to the Company. The Supplemental Share Quantity shall be the nearest whole
number greater than or equal to zero to (i) the Minimum Share Quantity (as
defined below) minus (ii) the sum of the Initial Share Quantity, Interim Share
2.
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Quantity and Final Share Quantity. The Minimum Share Quantity shall be equal to
565,000, provided, that the Investor shall have the option, to be exercised by
written notice to the Company two business days before the Final Closing Date,
to increase the Minimum Share Quantity to a whole number up to and including
765,000. The Supplemental Payment shall be the dollar amount equal to the
product of (i) the Supplemental Share Quantity and (ii) the lower of the
Interim Share Price or the Final Share Price.
1.5 MAXIMUM SHARE LIMITATION. The maximum number of shares
issuable to Investor pursuant to the Company's obligations under this Agreement
shall be 765,000 shares of Common Stock.
1.6 CLOSINGS. The Initial Closing, Interim Closing and Final
Closing (collectively, the "Closings") shall take place on the Initial Closing
Date, Interim Closing Date and Final Closing Date, respectively, at the offices
of Cooley Godward Castro Huddleson & Tatum, Five Palo Alto Square, 3000 El
Camino Real, Palo Alto, California 94705, at 2:00 p.m., Pacific time or at such
other time and place and/or on such other date as the Investor and the Company
may agree. At each of the Closings, (i) the Company shall deliver to the
Investor one or more stock certificates, as required hereunder, representing
the shares to be issued to the Investor, registered in the name as shall be
designated in writing by the Investor, or deposit the Initial Shares to the
account at Depository Trust Company as shall be designated in writing by the
Investor, and (ii) the Investor shall deliver to the Company payment, as
required hereunder, in immediately available funds by wire transfer to such
account as shall be designated in writing by the Company. In addition, each of
the Company and the Investor shall deliver all other documents, instruments and
writings required to be delivered by either of them pursuant to this
Agreement at or prior to the Closings.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby makes the following representations and warranties to the Investor.
(a) ORGANIZATION AND QUALIFICATION. Each of the Company
and its subsidiaries is a corporation duly organized and existing in good
standing under the laws of the jurisdiction in which it is incorporated,
except, in the case of such subsidiaries, as would not have a Material Adverse
Effect (as defined below), and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. Each of the
company and its subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary and where the failure so to qualify would have a Material Adverse
Effect. "Material Adverse Effect" means any material adverse effect on the
operations, properties, prospects, or financial condition of the Company and
its subsidiaries taken as a whole.
3.
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(b) AUTHORIZATION; ENFORCEMENT. (i) The Company has the
requisite corporate power and authority to enter into and perform this
Agreement and to issue the Shares in accordance with the terms hereof, (ii) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by the
Company's Board of Directors and no further consent or authorization of the
Company or its Board of Directors or stockholders is required, (iii) this
Agreement has been duly executed and delivered by the Company and (iv) this
Agreement constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) CAPITALIZATION. The authorized capital stock of the
Company consists of (i) 25,153,658 shares of Common Stock, of which as of the
close of business on June 12, 1995, 14,733,225 shares were issued and
outstanding; (ii) 4,000,000 shares of Preferred Stock, of which 14,300 shares
have been designated Series B Redeemable Convertible Preferred Stock, par value
$.001 per share (the "Series B Preferred Stock"), of which no shares are issued
and outstanding; and (iii) 250,000 shares of Series A Junior Participating
Preferred Stock, of which no shares were issued and outstanding. All of such
outstanding shares of Common Stock and have been validly issued and are fully
paid and nonassessable. No shares of Common Stock are entitled to preemptive
rights. Except as disclosed in Schedule 2.1(c), as of the date of this
Agreement, there are no options, warrants, conversion privileges, preemptive
rights or other rights presently outstanding to purchase any of the authorized
but unissued shares of the Company, other than those under the Company's 1980
Stock Option Plan, 1984 Supplemental Stock Option Plan, 1984 Employee Stock
Purchase Plan, 1992 Non-Employee Directors' Stock Option Plan and the Rights
Agreement. The Company has furnished to the Investor true and correct copies of
the Company's Restated Certificate of Incorporation as in effect on the date
hereof (the "Certificate of Incorporation"), the Company's Bylaws, as in effect
on the date hereof (the "Bylaws") and the Company's Certificate of Designation
for the Series B Preferred Stock.
(d) ISSUANCE OF SHARES. The Shares are duly authorized,
and when paid for in accordance with the terms hereof shall be validly issued,
fully paid and nonassessable and the Rights shall be duly authorized and
validly issued (if issued pursuant to the terms hereof).
(e) NO CONFLICTS. The execution, delivery and performance
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby or relating hereto do not (i) result in a
violation of the Company's Certificate of Incorporation or Bylaws or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its subsidiaries is a
party, or, to the best of the Company's knowledge, result in a violation of any
law, rule, regulations, order, judgment or decree (including Federal and state
securities laws and regulations) applicable to the Company, any of its
subsidiaries or
4.
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by which any property or asset of the Company or any of its subsidiaries is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect). The
businesses of the Company and its subsidiaries are not being conducted in
violation of any law, ordinance or regulation of any governmental entity,
except for possible violations which either singly or in the aggregate do not
have a Material Adverse Effect. Except as required under the Securities Act and
any applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under this Agreement or issue the Shares and Rights and
sell the Shares in accordance with the terms hereof.
(f) SEC DOCUMENTS, FINANCIAL STATEMENTS. Since January 1,
1994, the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange
Commission (the "SEC") pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (all of the foregoing
filed prior to the date hereof being hereinafter referred to herein as the "SEC
Documents"). The Company has delivered to the Investor true and complete copies
of the SEC Documents. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Exchange Act and the
rules and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents (when read together with all exhibits
included therein and financial statement schedules thereto and documents (other
than exhibits) incorporated by reference) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in
the SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material respects
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(g) REGISTRATION. The Shares are registered under the
Securities Act of 1933, as amended (the "Act") and, when issued in accordance
with the terms hereof, will be registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of any applicable state securities laws.
2.2 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
hereby makes the following representations and warranties to the Company:
5.
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(a) AUTHORIZATION; ENFORCEMENT. (i) The Investor has the
requisite corporate power and authority to enter into and perform this
Agreement, (ii) the execution and delivery of this Agreement by the Investor
and the consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary corporate action, and no further consent or
authorization of the Investor or its Board of Directors or stockholders is
required, (iii) this Agreement has been duly authorized, executed and delivered
by the Investor and (iv) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditor's rights and remedies
or by other equitable principles of general application.
(b) NO CONFLICTS. The execution, delivery and performance
of this Agreement and the consummation by the Investor of the transactions
contemplated hereby or relating hereto do not (i) result in a violation of the
Investor's charter documents or by-laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, any agreement, indenture or instrument to which the Investor or
any of its subsidiaries is a party, or, to the best of the Investor's knowledge,
result in a violation of any law, rule, regulation, order, judgment or decree
of any court or governmental agency (including Federal and state securities
laws and regulations) applicable to the Investor, any of its subsidiaries or
their respective properties (except for such conflicts, defaults and violations
as would not, individually or in the aggregate have a material adverse effect
on the Investor). The businesses of the Investor and its subsidiaries are not
being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations which either singly or in
the aggregate do not have a material adverse effect. The Investor is not
required to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement or
purchase the Shares in accordance with the terms hereof.
ARTICLE III
COVENANTS
3.1 COMMON STOCK. From the date hereof through the Final Closing
Date, the Company shall not (i) amend its organizational documents; (ii) split,
combine or reclassify its outstanding capital stock; (iii) declare or set aside
or pay any dividend or other distribution with respect to the Common Stock; or
(iv) make plans or enter into any agreement with respect to the foregoing.
Notwithstanding the preceding sentence, the Company may take any such action to
the extent that any person (x) publicly announce a tender offer or exchange
offer for the Common Stock, (y) publicly announce plans for a merger,
consolidation or potential change in control of the Company or (z) beneficially
own 15% or more of the Common Stock, and if the Company determines that any
such action is necessary or appropriate, provided that in the event the Company
does take such action(s), appropriate adjustments to the number of Shares
6.
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purchasable hereunder or the price therefor will be made as are necessary to
preserve without impairment the purchase rights represented by this Agreement.
3.2 STANDSTILL AGREEMENT. For the period from the date hereof
through the fifth Anniversary of this Agreement, the Investor will not, and
will cause each of the affiliates of the Investor, not to (i) purchase, acquire
or own, or offer to agree to purchase, acquire or own, directly or indirectly,
any Voting Securities (as hereinafter defined) or direct or indirect rights or
options to acquire Voting Securities of the Company (or enter into any
arrangements or understandings with any third party to do any of the
foregoing), if after such acquisition the Investor would hold, beneficially or
of record, more than 9.99% of the Voting Securities of the Company or (ii)
propose to enter into, directly or indirectly, any merger or business
combination involving the Company or any of its subsidiaries, or in any way to
seek to control of the management, policies or Board of Directors of the
Company, provided that nothing in this clause (ii) shall limit the right to
vote as a stockholder for any merger or business combination. The foregoing
sentence shall be null and void upon any "distribution date" under the Rights
Agreement. For purposes of this Agreement, the term "Voting Securities" shall
mean (i) any securities which are entitled to vote generally in the election of
directors of the Company and (ii) any securities of the company convertible
into or exchangeable for any security described in clause (i) above.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO SELL
THE SHARES. The obligation hereunder of the Company to sell the Shares to the
Investor is further subject to the satisfaction, at or before each of the
Closings, of each of the following conditions set forth below. These
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
(a) ACCURACY OF THE INVESTOR'S REPRESENTATIONS AND
WARRANTIES. The representations and warranties of the Investors shall be true
and correct in all material respects as of the date when made and as of the
date of each of the Closings as though made at that time (except for
representations and warranties that speak as of a particular date).
(b) PERFORMANCE BY THE INVESTORS. The Investors shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Investors at or prior to each of the Closings.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court of governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
7.
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4.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTOR TO
PURCHASE THE SHARES. The obligation of the Investor hereunder to acquire and
pay for the Shares is subject to the satisfaction, at or before each of the
Closings, of each of the following conditions set forth below. These conditions
are for the Investor's sole benefit and may be waived by such Investor at any
time in its sole discretion.
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND
WARRANTIES. The representations and warranties of the Company shall be true
and correct in all material respects as of the date when made and as of the
date of each of the Closings as though made at that time (except for
representations and warranties that speak as of a particular date).
(b) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to each of the Closings.
(c) REGISTRATION STATEMENT. No stop order suspending the
effectiveness of the Registration Statement pursuant to which the Company will
issue and sell, and the Investor shall purchase, the Shares, shall have been
issued; and no proceeding for that purpose shall have been initiated by the SEC.
(d) NASDAQ. The Company shall have given notice of the
issuance of the Shares to Nasdaq, and Shares shall be authorized for trading on
Nasdaq upon official notice of issuance; during the Trading Period, trading in
the Common Stock shall not be suspended by the SEC or the Nasdaq (except for
any suspension of trading of limited duration agreed to between the Company and
Nasdaq solely to permit dissemination of material information regarding the
Company); trading in securities generally as reported by the Nasdaq shall not
have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by the Nasdaq.
(e) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court of governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
ARTICLE V
TERMINATION
5.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated at any time by the mutual consent of the Company and the Investor,
by action of their respective Board of Directors.
8.
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5.2 TERMINATION BY THE INVESTOR. This Agreement may be terminated
by action of the Board of Directors of the Investor at any time after July 15,
1995 if the sale of the Initial Share Quantity of the Shares shall not have
been consummated by July 15, 1995.
5.3 AUTOMATIC TERMINATION. This Agreement shall automatically
terminate without any further action of either party hereto if the Initial
Closing shall not have occurred by August 1, 1995.
ARTICLE VI
MISCELLANEOUS
6.1 FEES AND EXPENSES. Each party shall pay the fees and expenses
of its advisors, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
6.2 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
6.3 SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION.
(a) The Company and the Investor acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions hereof,
this being in addition to any other remedy to which they may be entitled by law
or equity.
(b) Each of the Company and the Investor (i) hereby
irrevocably submits to the exclusive jurisdiction of the Chancery Court of the
State of Delaware for the purposes of any suit, action or proceeding arising
out of or relating to this Agreement and (ii) hereby waives, and agrees not to
assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Each of the Company and the Investor consents
to process being served in any such suit, action or proceeding by mailing a
copy thereof to such party at the address in effect for notices to it under
this Agreement and agrees that such services shall constitute good and
sufficient service of process and notice thereof. Nothing in this paragraph
shall affect or limit any right to serve process in any other manner permitted
by law.
6.4 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and thereby and, except
9.
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as specifically set forth herein, neither the Company nor the Investor makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
a written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
6.5 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answerback received),
telecopy or facsimile at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company:
Compression Labs, Incorporated
2860 Junction Avenue
San Jose, California 95134
Telecopy: (408) 922-5574
Attention: President
With copies to:
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Telecopy: (415) 857-0663
Attention: Peter F. Stone
If to the Investor:
Fletcher Asset Management, Inc.
767 Fifth Avenue, 48th Floor
New York, NY 10153
Telecopy: (212) 758-7090
Attention: President
With copies to:
Skadden, Arps, Slate, Meagher & Flom
1440 New York Avenue, N.W.
Washington, D.C. 20005
Telecopy: (202) 393-5760
Attention: Stephen W. Hamilton
10.
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Either party hereto may from time to time change its address for notices under
this Section 6.5 by giving at least 10 days' written notice of such changed
address to the other party hereto.
6.6 WAIVERS. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
6.7 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
6.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. The
parties hereto may amend this Agreement without notice to or the consent of any
third party. Neither the Company nor the Investor shall assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
other (which consent may be withheld for any reason in the sole discretion of
the party from whom consent is sought). The assignment by a party of this
Agreement or any rights hereunder shall not affect the obligations of such party
under this Agreement.
6.9 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
6.10 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to the principles of conflict of laws.
6.11 SURVIVAL. The agreements and covenants of the Company contained
in Section 6.1 and this Section 6.11 shall survive the termination of this
Agreement. The representations and warranties of the Company and the Investor
contained in Article II and the agreements and covenants set forth in Sections
3.2, 6.1 and this Section 6.11 shall survive each of the Closings.
6.12 EXECUTION. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause four
additional executed signature pages to be physically delivered to the other
party within five days of the execution and delivery hereof.
11.
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6.13 PUBLICITY. The Company and the Investor shall consult with each
other in issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
COMPRESSION LABS, INCORPORATED
By: /s/ JOHN E. TYSON
---------------------------------------
John E. Tyson,
President and Chief Executive Officer
FLETCHER ASSETS MANAGEMENT, INC.
By: /s/ ALPHONSE FLETCHER, JR.
---------------------------------------
Alphonse Fletcher, Jr.
12.
<PAGE> 14
SCHEDULE 2.1(C)
As of the date of the Agreement, the following warrants were
outstanding:
Warrants to Purchase Shares of Common Stock
<TABLE>
<CAPTION>
Number of Shares
----------------
<S> <C>
Hambrecht & Quist 10,000
National Union 195,000
Other 560,916
</TABLE>