Strategic Investment Agreement - Digimarc Corp. and Koninklijke Philips Electronics NV
STRATEGIC INVESTMENT AGREEMENT
BETWEEN
DIGIMARC CORPORATION
AND
KONINKLIJKE PHILIPS ELECTRONICS N.V.
DATED AS OF SEPTEMBER 17, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I. Purchase and Sale of Shares............................................................................2
1.1 Purchase and Sale of the Shares..............................................................2
1.2 The Closing..................................................................................2
1.3 Newco Collaboration..........................................................................2
1.4 Consulting Agreement.........................................................................3
ARTICLE II. Representations and Warranties........................................................................3
2.1 Representations and Warranties of the Company................................................3
2.2 Representations and Warranties of the Investor..............................................10
ARTICLE III. Covenants...........................................................................................13
3.1 Galaxy Group; Watermarking Technology.......................................................13
3.2 Investor's Standstill Agreement.............................................................13
3.3 Transfer....................................................................................14
3.4 Compliance with Section 13..................................................................14
ARTICLE IV. Registration Rights..................................................................................15
4.1 Legend......................................................................................15
4.2 Registration on Form S-3....................................................................16
4.3 Piggyback Registration......................................................................17
4.4 Registration Procedures.....................................................................18
4.5 Delay of Registration; Furnishing Information...............................................20
4.6 Termination of Registration Rights..........................................................21
4.7 Indemnification.............................................................................21
4.8 Assignment of Registration Rights...........................................................23
4.9 Limitation on Subsequent Registration Rights................................................24
4.10 Market Stand-Off Agreement..................................................................24
4.11 Rule 144 Reporting..........................................................................24
ARTICLE V. Additional Agreements.................................................................................25
5.1 Consents; Approvals.........................................................................25
5.2 Firewall Procedures.........................................................................25
ARTICLE VI. Conditions Precedent.................................................................................26
6.1 Investor Conditions to Closing..............................................................26
6.2 Company Conditions to Closing...............................................................28
ARTICLE VII. Miscellaneous.......................................................................................30
7.1 Fees and Expenses...........................................................................30
7.2 Severability................................................................................30
7.3 Consent to Jurisdiction.....................................................................30
7.4 Dispute Resolution Procedures...............................................................31
7.5 Brokers.....................................................................................33
7.6 Entire Agreement; Amendments................................................................34
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7.7 Notices.....................................................................................34
7.8 No Waiver...................................................................................35
7.9 Heading.....................................................................................36
7.10 Successors and Assigns......................................................................36
7.11 No Third Party Beneficiaries................................................................36
7.12 Governing Law...............................................................................36
7.13 Further Assurances..........................................................................36
7.14 English Language Controls...................................................................36
7.15 Relationship of the Parties.................................................................36
7.16 Publicity...................................................................................37
7.17 Number and Gender of Words..................................................................37
7.18 Interpretation..............................................................................37
7.19 Counterparts................................................................................38
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TABLE OF EXHIBITS
Exhibit A - Definitions
Exhibit B - Consulting Agreement
Exhibit C - Schedule of Exceptions
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EXHIBIT 10.13
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DIGIMARC CORPORATION
STRATEGIC INVESTMENT AGREEMENT
THIS STRATEGIC INVESTMENT AGREEMENT (this "AGREEMENT") is made as of
September 17, 2000 by and between KONINKLIJKE PHILIPS ELECTRONICS N.V., a
Netherlands corporation (the "INVESTOR"), and DIGIMARC CORPORATION, a Delaware
corporation (the "COMPANY"), (each a "PARTY", collectively, the "PARTIES").
Capitalized terms used in this Agreement and not otherwise defined are defined
in EXHIBIT A, attached hereto and incorporated by reference herein.
A. The Investor and the Company believe that a more extensive business
relationship between them would be mutually advantageous.
B. As part of such current and potential business relationship, the
Parties desire that the Investor become an equity investor in the Company by
purchasing shares of the Company's Common Stock (the "COMMON STOCK", and such
shares, the "SHARES") in a number equal to the Philips Percentage (defined
below), at a purchase price of $20.00 per share. The "PHILIPS PERCENTAGE" of the
Common Stock shall be an amount equal to twelve percent (12%) of the issued and
outstanding Common Stock at the Closing, including the shares issued to the
Investor hereunder and the shares issued or to be issued pursuant to the
proposed Strategic Investment Agreement between the Company and Macrovision
Corporation (the "MACROVISION INVESTMENT AGREEMENT"), but excluding shares
subject to warrants, options or other contracts for the sale of the Common Stock
existing on the date of this Agreement. If the Company issues any warrants,
options or other contracts for the purchase of Common Stock after the date of
this Agreement but prior to the Closing (other than pursuant to the Company's
existing employee stock purchase plans), then the Investor may purchase (at its
option) a number of shares of Common Stock such that the Philips Percentage may
be calculated including the Common Stock available for issuance under such
warrants, options and other contracts.
C. As another part of such future business relationship, the Parties
contemplate negotiating arrangements for jointly creating a third corporation
("NEWCO") as a vehicle for developing and marketing the Company's watermarking
technology for the audio-video market, as enhanced by audio-video technology
licensed from the Investor.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and made pursuant hereto, and good and valuable consideration, receipt of
which is hereby acknowledged, the Parties hereto do hereby agree as follows:
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ARTICLE I.
Purchase and Sale of Shares
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1.1 PURCHASE AND SALE OF THE SHARES.
Subject to the terms and conditions hereof, the Company will issue and
sell to the Investor, and the Investor will purchase from the Company, at the
Closing (defined in Section 1.2), a number of shares of Common Stock equal to
the Philips Percentage, at a purchase price per share (the "SHARE PRICE") equal
to $20.00 per share. The "TOTAL PURCHASE PRICE" shall be the Share Price
multiplied by the number of shares of Common Stock purchased by the Investor,
such number of shares not to exceed the Philips Percentage.
1.2 THE CLOSING.
The purchase and sale of the Shares shall take place at the offices of
Morrison & Foerster LLP, 425 Market Street, San Francisco, California, on
October 19, 2000, or at such other time and place as the Company and the
Investor mutually agree upon orally or in writing (the "CLOSING"). At the
Closing, the Company shall deliver to the Investor a stock certificate
representing the Shares purchased by the Investor, and the Investor shall pay
the Total Purchase Price by wire transfer of immediately available funds in the
manner requested by the Company, all in accordance with Section 1.1.
1.3 NEWCO COLLABORATION.
The Investor and the Company each agree to negotiate in good faith
toward the accomplishment of the following described collaboration through Newco
which, although initially contemplated to be jointly owned by the Parties, is
contemplated to evolve into a separate, publicly owned corporation. Such good
faith negotiation shall be consistent with the customs and practices of
sophisticated technology companies when they each have an expertise in a
particular technology that can be combined synergistically in a collaboration to
create a multidisciplinary product based upon applications of both technologies.
The collaboration herein contemplated is for the creation and marketing of an
audio/video product based upon the Company's watermark technology and relevant
Investor audio/video technology. Nothing herein shall be deemed to contemplate
any particular transfers of intellectual property rights by either Party;
provided that the Parties contemplate that Newco itself will develop its own
intellectual property, including by creating derivative works and copyrights for
watermarking software for this audio/video market. Nothing herein contemplates
any particular level of financial support for Newco by the Parties, which is a
function of complex economic analyses that will be done by each Party as it
hereafter evaluates the technology, the market potential, potential competition
and other matters. [***] the Company's obligations under the preceding proviso
shall earlier terminate upon the occurrence of any of the following: (i) the
Parties shall have failed to use reasonable Best Efforts to file their joint
application pursuant to the Hart-Scott Rodino Antitrust Improvements Act of
1976, as amended (the "HSR ACT")
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within five (5) business days after the date hereof, (ii) the Closing shall have
failed to occur on the earlier of (A) five (5) business days after the
expiration of the waiting period under the HSR Act (which date under this
subclause (ii)(A) shall not be deemed to have occurred until at least 30 days
from the date hereof) and (B) 90 days from the date hereof, or (iii) either
Party receives notification from the Federal Trade Commission ("FTC") that the
Parties' HSR Act application will not be approved. [***]
1.4 CONSULTING AGREEMENT.
The Parties shall execute a Consulting Agreement, in substantially the
form of EXHIBIT B hereto (the "CONSULTING AGREEMENT"), contemporaneously with
the execution of this Agreement, pursuant to which the Company shall provide
consulting services to the Investor and the Investor shall pay consulting fees
to the Company, all as set forth more specifically therein.
ARTICLE II.
Representations and Warranties
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2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the Schedule of Exceptions, attached hereto as
EXHIBIT C ("SCHEDULE OF EXCEPTIONS"), or as disclosed in the SEC Documents (as
defined in Section 2.1(f)), the Company represents and warrants to the Investor
as follows:
(a) ORGANIZATION AND QUALIFICATION.
The Company is a corporation duly organized and existing in good
standing under the laws of the jurisdiction in which it is incorporated, and has
the requisite corporate power to own its properties and to carry on its business
as now being conducted. The Company 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 to qualify would have a Material Adverse Effect
with respect to the Company.
(b) AUTHORIZATION; ENFORCEMENT.
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. The execution and delivery by the Company of this Agreement and
the consummation 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. This Agreement has been duly executed and delivered by the Company.
Subject to the Company's receipt of the Total Purchase Price, this Agreement
constitutes the valid and binding obligation of the Company enforceable
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against the Company in accordance with its respective terms, except as such
enforceability may be limited by applicable insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by equitable principles of
general application.
(c) CAPITALIZATION.
The authorized capital stock of the Company consists of 100,000,000
shares of Common Stock, of which as of September 13, 2000, 13,085,930 shares
were issued and outstanding and 5,000,000 shares of Preferred Stock, none of
which is outstanding. All of such outstanding shares have been validly issued
and are fully paid and nonassessable. The Company has furnished to the Investor
true and correct copies of the Company's Certificate of Incorporation as in
effect on the date hereof (the "CERTIFICATE OF INCORPORATION") and the Company's
By-laws, as in effect on the date hereof (the "BY-LAWS").
(d) VALIDITY OF SHARES.
The Shares, when issued in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable.
(e) NO CONFLICTS.
The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby do not (i) result in a violation of the Company's Certificate of
Incorporation 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,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, or result in a violation of any law, rule, regulation, order, judgment
or decree applicable to the Company or by which any property or asset of the
Company is bound or affected (except, in the case of subclause (ii) above, for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a Material
Adverse Effect on the Company). No action, suit, dispute or proceeding is
pending or, to the best knowledge of the Company, threatened against the Company
which, if adversely determined, would prevent the Company from carrying out its
obligations under this Agreement or which would have a material adverse effect
on any of the Company's Intellectual Property (as defined in Section 2(m)(i)
hereof). The business of the Company is not being conducted in violation of any
law, ordinance or regulation of any Governmental Authority, except for possible
violations which either singly or in the aggregate do not and will not have a
Material Adverse Effect with respect to the Company. Except as contemplated by
this Agreement, the Company is not required to obtain any consent, authorization
or order of, or make any filing or registration with, any court or Governmental
Authority in order for it to execute, deliver or perform any of its obligations
under this Agreement.
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(f) SEC DOCUMENTS, FINANCIAL STATEMENTS.
Since December 7, 1999, the Company has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Exchange Act (all filings with the
SEC since such date through the date of this Agreement are hereinafter 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, 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 U.S. generally accepted accounting
principles ("GAAP") 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 year-end adjustments or may be
condensed or summary statements) and fairly present in all material respects the
consolidated financial position of the Company as of the dates thereof and the
consolidated results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(g) LIABILITIES.
The Company has no debt, obligation, duty or liability of any nature
including any unknown, undisclosed, unmatured, unaccrued, unasserted,
contingent, indirect, conditional, implied, vicarious, derivative, joint,
several or secondary liability, regardless of whether such debt, obligation,
duty or liability would be required to be disclosed on a balance sheet prepared
in accordance with GAAP, consistently applied, and regardless of whether such
debts, obligations, duties or liabilities are immediately due and payable
(hereinafter, "LIABILITIES"), and the executive officers of the Company have no
knowledge of any such debts, obligations, duties or liabilities of the Company
except:
(i) Those Liabilities disclosed in the SEC Documents; or
(ii) Those Liabilities reflected or reserved against on the
Company's June 30, 2000 balance sheet (the "INTERIM BALANCE SHEET") or incurred
by the Company in the ordinary course of business since June 30, 2000, none of
which individually or in the aggregate had or will have a Material Adverse
Effect on the business of the Company or its property, assets, financial
condition, earnings, profits or prospects or which would
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have a material adverse effect on any of the Intellectual Property or on the
creation of an audio/video product based on the Company's watermarking
technologies.
(h) OFFERING.
Assuming (i) the accuracy of the representations and warranties of the
Investor contained in Section 2.2 hereof and (ii) that the principal office of
the Investor is at Amstelplein 1, Amsterdam, The Netherlands, the offer,
issuance, and sale of the Shares are and will be exempt from the registration
and prospectus delivery requirements of the Securities Act and are exempt from
the registration, permit, or qualification requirements of all applicable state
securities laws.
(i) SUBSIDIARIES.
The Company does not presently own or control, directly, or indirectly,
any interest in any other corporation, association, partnership, or other
business entity.
(j) LITIGATION.
There are no civil, criminal or administrative actions, suits, claims,
hearings or proceedings pending, initiated or, to the best knowledge of the
executive officers of the Company, threatened, against the Company which, if
decided adversely, are reasonably expected to have a Material Adverse Effect
with respect to the Company. There are no actions, suits, claims, hearings or
proceedings pending, initiated or, to the best knowledge of the Company,
threatened, by the Company against any other Person for claims in excess of
$500,000.
(k) GALAXY GROUP; WATERMARKING TECHNOLOGY.
(i) The Company is in compliance with Section 1.3.
(ii) There is no present intention by the Company to depart from its
business plan of aggressively developing and marketing its watermarking
technology.
(l) ABSENCE OF CERTAIN CHANGES.
Since the date of the Company's most recent quarterly report filed with
the SEC (the "AUDIT DATE"), the Company has conducted its businesses only in,
and has not engaged in any material transaction other than according to, the
ordinary and usual course of its business. Without limiting the generality of
the foregoing, since the Audit Date there has not been (i) any Material Adverse
Effect or any development or combination of developments that, individually or
in the aggregate, has had or is reasonably likely to have a Material Adverse
Effect; or (ii) any damage, destruction or other casualty or loss with respect
to any asset or property owned, leased or otherwise used by the Company, whether
or not covered by insurance, which has had or will have a Material Adverse
Effect on the Company.
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(m) INTELLECTUAL PROPERTY.
(i) The Company is the sole legal and beneficial owner of all
intellectual property, proprietary technology and proprietary information held
or used in the business of the Company (the "INTELLECTUAL PROPERTY"), except for
Intellectual Property that is the subject of any license for Third Party
Intellectual Property Rights (a "THIRD PARTY INTELLECTUAL PROPERTY LICENSE") or
commercially available or user licenses. Notwithstanding the foregoing, the
Company makes no warranty about third party patents that have not, to the
knowledge of the Company's executive officers, been asserted in writing against
the Company as of the date hereof, other than: (A) third party patents that the
Company has asked outside legal counsel to analyze to determine whether such
patents apply to the Company's products; (B) any third-party patent for which
the Company's in-house attorneys have prepared a written analysis relating to
the relevance of such patent to the Company's products; (C) third-party patents
that have been identified by or brought to the attention to any of the executive
officers of the Company (which includes its Chief Technology Officer and the
general managers of each of its three lines of business) or the Vice President
of Engineering or the Vice President of Corporate Development of the Company as
being potentially infringed by the Company's products or methods, or (D) third
party patents that the Company is willfully infringing.
(ii) With the exception of immaterial licenses and agreements
entered into in the normal course of business and except for as set forth in the
Schedule of Exceptions, [***].
(iii) The Company is in compliance in all material respects with all
Third Party Intellectual Property Licenses.
(iv) The Company is not, nor will it be as a result of the execution
and delivery of this Agreement or the performance of obligations hereunder in
violation or breach of any contracts as to which the Company licenses or
sublicenses the Intellectual Property or any Third Party Intellectual Property
Licenses.
(v) The Company has the right to license to third parties the use of
the Intellectual Property other than commercially available and user software
licenses and other than the Intellectual Property that, in the aggregate, would
be immaterial to the Company's business.
(vi) All registrations and filings relating to the Company's
Intellectual Property are in good standing. All maintenance and renewal fees
necessary to preserve the rights of the Company in respect of its Intellectual
Property have been made. The registrations and filings relating to the Company's
Intellectual Property are proceeding, and there are no facts of which the
executive officers of the Company have knowledge which could significantly
undermine those registrations or filings or reduce to a significant extent the
scope of protection of any patents arising from such applications beyond that
which ordinarily might occur in a patent prosecution proceeding.
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Notwithstanding the foregoing, the Company only makes the foregoing warranties
under this subsection (vi) to the knowledge of the Company's executive officers
as of the Closing as applied to the Third Party Intellectual Property Rights.
(vii) The manufacturing, marketing, distribution or sale of any product
currently manufactured, marketed, distributed or sold by, or identified for
development by, the Company, any of its subsidiaries, licensees or sublicensees
in the countries where the Company has conducted or proposes to conduct such
activities does not and would not infringe, induce infringement or
contributorily infringe the intellectual property rights throughout the world of
any third party (collectively, "THIRD PARTY INTELLECTUAL PROPERTY RIGHTS"),
except the Company makes no warranty about third party patents that have not, to
the knowledge of the Company's executive officers, been asserted in writing
against the Company as of the date hereof, other than: (A) third party patents
that the Company has asked outside legal counsel to analyze to determine whether
such patents apply to the Company's products; (B) any third-party patent for
which the Company's in-house attorneys have prepared a written analysis relating
to the relevance of such patent to the Company's products; (C) third-party
patents that have been identified by or brought to the attention to any of the
executive officers of the Company (which includes its Chief Technology Officer
and the general managers of each of its three lines of business) or the Vice
President of Engineering or the Vice President of Corporate Development of the
Company as being potentially infringed by the Company's products or methods, or
(D) third party patents that the Company is willfully infringing.
(viii) Except as set forth in the Schedule of Exceptions, there are no
allegations, claims or proceedings instituted or pending which challenge the
rights possessed by the Company to use the Intellectual Property or the validity
or effectiveness of the Intellectual Property, including without limitation any
interferences, oppositions, cancellations or other contested proceedings.
(ix) There are no outstanding claims or proceedings instituted or
pending by any third party challenging the ownership, priority, scope or
validity or effectiveness of any Intellectual Property.
(x) There are no Third Party Intellectual Property Rights that would be
infringed by the continued practice of any technologies previously used or
presently used by the Company, except the Company makes no warranty about third
party patents that have not, to the knowledge of the Company's executive
officers, been asserted in writing against the Company as of the date hereof,
other than: (A) third party patents that the Company has asked outside legal
counsel to analyze to determine whether such patents apply to the Company's
products; (B) any third-party patent for which the Company's in-house attorneys
have prepared a written analysis relating to the relevance of such patent to the
Company's products; (C) third-party patents that have been identified by or
brought to the attention to any of the executive officers of the Company (which
includes its Chief Technology Officer and the general managers of each of its
three lines of business) or the Vice President of Engineering or the Vice
President of Corporate
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Development of the Company as being potentially infringed
by the Company's products or methods, or (D) third party patents that the
Company is willfully infringing.
(xi) Except as set forth in the Schedule of Exceptions, to the
knowledge of the executive officers of the Company, there is no unauthorized
use, infringement or misappropriation of the Intellectual Property by any third
party, including any employee or former employee of the Company or any of its
subsidiaries, except for use, infringement or misappropriation that would not
have a Material Adverse Effect.
(xii) The Company has taken commercially reasonable measures to
maintain the confidentiality of the inventions, trade secrets, formulae,
know-how, technical information, research data, research raw data, laboratory
notebooks, procedures, designs, proprietary technology and information of the
Company, and all other information the value of which to the Company is
contingent upon maintenance of the confidentiality thereof.
(n) ACCOUNTS RECEIVABLE.
The accounts receivable of the Company as shown in the Interim Balance
Sheet (i) have arisen in the ordinary course of business, and (ii) represent
valid and, with the exception of the established reserves reflected on the
Interim Balance Sheet, collectible obligations owed to the Company.
(o) BOOKS AND RECORDS.
The books, records and accounts of the Company (i) are, in all material
respects, true, complete and correct, (ii) have been maintained in accordance
with ordinary business practices of the Company and (iii) fairly reflect the
Company's financial statements.
(p) PAYMENTS.
To the knowledge of the executive officers of the Company, none of the
current stockholders, directors, officers, representatives, agents or employees
of the Company (i) has used or is using any corporate funds for any illegal or
improper contributions, gifts, entertainment or other unlawful expenses, (ii)
has used or is using any corporate funds for any direct or indirect unlawful or
improper payments to any domestic government officials or employees, (iii) has
established or maintained, or is maintaining, any unlawful, improper or
unrecorded fund of corporate monies or other properties, (iv) has made any false
or fictitious entries on the books and records of the Company, (v) has made any
bribe, rebate, payoff, influence payment, kickback or other unlawful or improper
payment of any nature using corporate funds or otherwise on behalf of the
Company, or (vi) has made any material favor or gift that is not deductible for
federal income tax purposes using corporate funds or otherwise on behalf of the
Company.
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(q) REGISTRATION RIGHTS.
The Company has not granted registration rights with respect to the
Company's securities, except as set forth in the Company's Second Amended and
Restated Investor Rights Agreement dated as of November 2, 1999.
(r) FULL DISCLOSURE.
No representation or warranty made by the Company or any of its
subsidiaries in this Agreement nor any of the exceptions, qualifications or
other information set forth in the Schedule of Exceptions (i) contains any
statement that is false or misleading with respect to any material fact, or (ii)
omits to state any material fact that is necessary to make the statements made
in the context in which made, not false or misleading. Notwithstanding anything
in the foregoing to the contrary, nothing in this Agreement shall require the
Company to provide to the Investor information which (A) the Company must, under
confidentiality obligations to third parties, not disclose to the Investor;
provided that the Company shall provide as much necessary information as is
permitted under agreements with such third parties which have such
confidentiality obligations; (B) is protected by the attorney-client privilege
of the Company; or (C) is the Company's attorney work product.
(s) DISCLAIMER.
The Company shall not be deemed to have made to the Investor any
representation or warranty other than as expressly made by the Company in this
Section 2.1. Without limiting the generality of the foregoing, and without
prejudice to any express representations and warranties made by the Company in
this Section 2.1, the Company makes no representation or warranty to the
Investor with regard to any projections, estimates or budgets or as to any
matters addressed in other materials previously delivered to or made available
to the Investor with respect to future revenues, expenses, expenditures or
future results of operations. Within the limits of the foregoing disclaimer,
nothing in this Section 2.1(s) shall limit any remedy that may be available to
the Investor pursuant to Applicable Law.
2.2 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor hereby makes the following representations and warranties
to the Company:
(a) AUTHORIZATION; ENFORCEMENT.
The Investor is a corporation duly organized and existing in good
standing under the laws of the Netherlands. The Investor has the requisite
corporate power and authority to enter into and perform this Agreement. The
execution and delivery of this Agreement by the Investor and the consummation by
the Investor of the transactions contemplated hereby have been duly authorized
by all necessary corporate action, and no further
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consent or authorization of the Investor or its Board of Directors or
stockholders is required. This Agreement has been duly authorized, executed and
delivered by the Investor. Upon receipt of the Shares, 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, creditors' rights and remedies or by other equitable principles of general
application.
(b) PRESENT OWNERSHIP.
Other than the Shares to be acquired pursuant to this Agreement, the
Investor does not Beneficially Own any securities issued by the Company.
(c) INVESTMENT INTENT.
The Investor is acquiring the Shares solely for the purpose of
investment within the meaning of 16 C.F.R. Section 802.9 and, as a result of
this investment, the Investor, the ultimate parent entity of the Investor, and
all other entities controlled by the ultimate parent entity of the Investor,
will not own more than 12% of the outstanding voting securities of the Company.
As used in the preceding sentence the term "controlled" shall have the meaning
set forth in 16 C.F.R. Section 801.1(b), and the term "ultimate parent entity"
shall have the meaning set forth in 16 C.F.R. Section 801.1(a)(3). This
representation and warranty is made solely for the purpose of determining the
applicability to the transactions contemplated by this Agreement of the HSR Act.
(d) NO CONFLICTS.
The execution, delivery and performance of this Agreement by the
Investor and the consummation by the Investor of the transactions contemplated
hereby do not (i) result in a violation of the Investor's charter or governing
documents or (ii) conflict with, or constitute a default (or an event which with
material 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 material agreement, material indenture or material instrument to which the
Investor or any of its subsidiaries is a party, or result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Investor, any
of its subsidiaries or by which any property or asset of the Investor or any of
its subsidiaries is bound or affected (except in the case of subclause (ii) for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a Material
Adverse Effect with respect to the Investor or materially impair the Investor's
ability to perform its obligations under this Agreement). No action, suit,
dispute or proceeding is pending or, to the best knowledge of the Investor,
threatened against the Investor which, if adversely determined, would prevent
the Investor from carrying out its obligations under this Agreement. Except as
contemplated by this Agreement, the Investor is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or
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governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or to purchase the Shares in accordance with
the terms hereof.
(e) INVESTMENT REPRESENTATION.
The Investor understands and acknowledges that none of the Shares have
been registered or qualified under the federal or applicable state securities
laws and the Shares are being sold to and purchased by the Investor in reliance
upon applicable exemptions from such registration and qualification
requirements. The Investor is an "ACCREDITED INVESTOR" within the meaning of the
federal securities laws and acknowledges that it has been furnished with access
to, and has been afforded access to, and afforded the opportunity to ask
questions and receive answers concerning such information pertaining to the
Shares, the Company, and its assets and liabilities as it deemed necessary to
decide whether to purchase the Shares pursuant to the terms of this Agreement.
The Shares will be acquired by the Investor for investment only and not with a
view to any public distribution thereof. The Investor understands that the
Shares are "RESTRICTED SECURITIES" within the meaning of the federal securities
laws. The Investor agrees that it will not offer to sell or otherwise dispose of
any of the Shares in violation of the registration and qualification
requirements of the federal and applicable state securities laws. All
certificates to be delivered at the Closing evidencing the Shares will contain
appropriate legends incorporating any applicable securities laws restrictions.
(f) APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Investor has designated Philips Electronics, North America Corp.,
1000 West Maude Avenue, Sunnyvale, CA 94085-2810 (Attention: Legal Department),
as agent for service of process hereunder and the above named is authorized and
directed to accept service of process on behalf of the Investor in any suit
instituted regarding the transactions contemplated by this Agreement.
(g) DISCLAIMER.
The Investor shall not be deemed to have made to the Company any
representation or warranty other than as expressly made by the Investor in this
Section 2.2. Without limiting the generality of the foregoing, and without
prejudice to any express representations and warranties made by the Investor in
this Section 2.2, the Investor makes no representation or warranty to the
Company with regard to any issues related to projections, estimates or budgets
or other matters previously delivered to or made available to the Company with
respect to future revenues, expenses, expenditures or future results of
operations. Within the limits of the foregoing disclaimer, nothing in this
Section 2.2(g) shall limit any remedy that may be available to Company pursuant
to Applicable Law.
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ARTICLE III.
Covenants
----------
3.1 GALAXY GROUP; WATERMARKING TECHNOLOGY.
[***]
3.2 INVESTOR'S STANDSTILL AGREEMENT.
(a) STANDSTILL PERIOD.
Subject to subsection (b) below, during the period commencing on the
Closing and ending [***] (the "STANDSTILL Period"), the Investor agrees that,
except as specifically permitted by this Agreement, the Investor and each of its
Affiliates will not, in any manner, directly or indirectly:
(i) acquire, or offer or agree to acquire, any Common Stock of the
Company or any of its successors, except by way of stock dividends or other
distributions or offerings made available to holders of Common Stock generally,
[***];
(ii) disclose publicly any intention, plan or arrangement
inconsistent with the foregoing; or
(iii) enter into any discussions, negotiations, arrangements or
understanding with any third party with respect to circumventing, or aid, abet
or encourage any action prohibited by, any of the foregoing.
(b) EXCEPTIONS.
(i) Notwithstanding any provision of this Section 3.2 to the
contrary, the provisions of subsection (a) above shall terminate on the
following events:
(A) [***]; or
(B) [***]
(ii) Notwithstanding any provision of this Section 3.2 to the
contrary, the provisions of subsection (a) above shall not be construed to
prohibit or otherwise restrict [***].
(c) NOTICE OF ACQUISITION; COMPLIANCE.
During the Standstill Period, the Investor agrees that, prior to any
time that the Investor wishes to acquire Company Securities in any open market
purchase or other purchase permitted under this Agreement, it will give the
Company notice of its intention
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to make such acquisition. All open market purchases of shares of Company
Securities by the Investor and its Affiliates shall be made in compliance with
Applicable Laws.
3.3 TRANSFER.
(a) TRANSFER RESTRICTIONS.
The Investor shall not, at any time, directly or indirectly, sell or
transfer, or offer to sell or transfer, all or any portion of the Holder's
Company Securities or Registrable Securities acquired pursuant to this Agreement
or Beneficially Owned by it, except:
(i) as provided in Section 3.3(b);
(ii) in transactions in compliance with Rule 144 promulgated under
the Securities Act, as such rule exists on the date hereof as hereafter amended
(or any successor or similar provision governing the resale of the restricted
securities); or
(iii) in any other bona fide sales or transfers to any Person
pursuant to an exemption from the registration requirements of the Securities
Act, but only if:
(A) the Investor has previously delivered to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect that any
sale or transfer pursuant to this Section 3.3 is exempt from registration under
the Securities Act; and
(B) the Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition.
(b) PERMITTED TRANSFERS.
The Investor shall be permitted to sell Company Securities that are
registered pursuant to an effective registration statement under the Securities
Act under Article IV below.
3.4 COMPLIANCE WITH SECTION 13.
The Investor shall, promptly and at all times after the date hereof,
use Best Efforts to comply with its obligations to make any filings required by
Section 13 of the Exchange Act.
3.5 DIRECTOR APPOINTMENTS AND ELECTION.
At the Closing, the Company shall appoint an individual selected by the
Investor and reasonably acceptable to the Company (the "INVESTOR NOMINEE") to a
seat on the Company's Board of Directors with a term expiring at the Company's
annual shareholders' meeting in calendar year 2003. The Investor shall have the
right to replace
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the Investor Nominee at any time and appoint another individual reasonably
acceptable to the Company to serve the remainder of the term expiring at the
2003 shareholders' meeting.
ARTICLE IV.
Registration Rights
-------------------
4.1 LEGEND.
(a) LEGEND.
All certificates evidencing the Shares shall bear the following legend,
to the extent applicable, which legend will remain on such certificates until
such time as the securities represented by such certificates are no longer
subject to the legended restrictions, and there is delivered to the Company an
opinion of counsel reasonably acceptable to the Company to the effect that such
legend is no longer required (at which time new certificates shall be issued at
the Company's expense without such legend):
THIS SECURITY IS SUBJECT TO THE PROVISIONS OF THE STRATEGIC INVESTMENT
AGREEMENT DATED AS OF SEPTEMBER 17, 2000 BETWEEN THE ISSUER AND
KONINKLIJKE PHILIPS ELECTRONICS N.V. AND MAY NOT BE SOLD OR TRANSFERRED
EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SUCH AGREEMENT IS ON FILE AT
THE OFFICE OF THE CORPORATE SECRETARY OF THE ISSUER. THIS SECURITY WAS
SOLD IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES
ACT OF 1933 (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON OTHER WRITTEN
EVIDENCE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
(b) REMOVAL OF SECURITIES ACT LEGEND.
The Company shall be obligated to reissue promptly unlegended
certificates at the request of the Investor, if the Investor shall have obtained
an opinion of counsel reasonably acceptable to the Company to the effect that
the securities proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
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(c) REMOVAL OF BLUE SKY LEGEND.
Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
4.2 REGISTRATION ON FORM S-3.
Not earlier than [***] after the Closing, if the Company shall receive
from the Investor a written request or requests (such requests shall state the
number of Registrable Securities to be disposed of and the intended methods of
disposition of such shares by the Investor) that the Company effect a
registration on Form S-3 (or any successor to Form S-3) or any similar
short-form registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities the Company will:
(a) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of the Investor's
Registrable Securities as are specified in such request; provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 4.2:
(i) if the Company shall have already effected two (2) registrations
for the Investor under this Section 4.2
(ii) if Form S-3 (or such successor or similar form) is not
available for such offering by the Investor; or
(iii) if the Investor, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
offering price to the public of less than $1,000,000; or
(iv) if the Company shall furnish to the Investor a certificate
signed by the President or Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
single period of not more than ninety (90) days after receipt of the request of
the Investor under this Section 4.2 and provided that such right to delay a
request shall be exercised by the Company no more than twice in any one-year
period; or
(v) during the period starting with the date of filing of, and
ending on the date one hundred eighty (180) days following, the effective date
of any other registration statement filed by the Company under the Securities
Act; or
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(vi) if the Company has already effected one (1) registration on
Form S-3 for the Investor pursuant to this Section 4.2 within the previous
twelve (12) months.
(b) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request by the Investor.
4.3 PIGGYBACK REGISTRATION.
(a) PIGGYBACK REGISTRATION.
After nine months from the date of the Closing, if the Company proposes
to effect a registration statement under the Securities Act for purposes of a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to acquisitions by the
Company, employee benefit plans and corporate reorganizations) for itself and/or
its stockholders, the Company shall notify the Investor in writing at least
thirty (30) days prior to filing such registration statement. Thereafter, the
Company shall use its Best Efforts to include in such registration statement all
or part of such Registrable Securities held by the Investor pursuant to this
Section 4.3, provided however, nothing in this Article IV shall obligate the
Company to effect such a registration statement. If the Investor desires to
include all or any part of its Registrable Securities in any such registration
statement, it shall, within fifteen (15) days after delivery of the
above-described notice from the Company, notify the Company in writing of the
Investor's intention; the Investor's notice shall state the intended method of
disposition of the Registrable Securities by the Investor. If the Investor
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, the Investor shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(b) UNDERWRITTEN OFFERINGS, CUTBACK.
If the registration statement under which the Company gives notice
under this Section 4.3 is for an underwritten offering, the Company shall so
advise the Investor. In such event, or if the registration statement under which
the Investor proposes to sell the Registrable Securities under Section 4.2
above, the right of the Investor to be included in a registration pursuant to
either Sections 4.2 or 4.3 shall be conditioned upon the Investor's
participation in such underwriting and the inclusion of the Investor's
Registrable Securities in the underwriting to the extent provided herein. If the
Investor proposes to distribute its Registrable Securities through such
underwriting, it shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the underwriter
determines in good faith that marketing factors require a limitation of
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the number of Registrable Securities to be underwritten in a registration
effected under this Section 4.3, the number of Registrable Securities that may
be included in the underwriting shall be reduced among the Investor and all
other holders of securities who are relying on piggyback rights to include
shares in such registration (together, the "PIGGYBACK INVESTORS") on a pro rata
basis based on the total number of Registrable Securities sought to be included
in the registration by the Piggyback Investors, provided no such reduction shall
reduce to less than 25% of any offering the number of shares of the Piggyback
Investors requested to be registered. The foregoing limitations in the previous
sentence shall not apply to registrations effected pursuant to Section 4.2. In
no event will shares of any other shareholder who does not have piggyback rights
or other written contractual rights to require that the Company register its
securities be included in such registration, which would reduce the number of
shares of Common Stock which may be included by the Piggyback Investors, without
the written consent of holders of not less than a majority of the securities
proposed to be sold in the offering by the Piggyback Investors.
(c) COMPANY'S RIGHT TO TERMINATE.
The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 4.3 prior to the effectiveness
of such registration, whether or not the Investor has elected to include
securities in such registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 4.4(c)
hereof.
4.4 REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY.
Whenever the Company determines to effect any registration in which
Registrable Securities held by the Investor are to be included pursuant to
Section 4.3 (the "SUBJECT SECURITIES"), the Company will use its Best Efforts to
effect the registration and sale of the Subject Securities in accordance with
the intended method of disposition. Without limiting the generality of the
foregoing, the Company will expeditiously and as soon as reasonably possible:
(i) furnish the Investor, without charge, such number of copies of
the prospectus included in a registration statement (including each preliminary
prospectus), and such other documents, as the Investor may reasonably request;
(ii) use its Best Efforts to register or qualify the Subject
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Investor shall reasonably request or as
the managing underwriter(s) shall reasonably recommend, and do any and all other
acts and things which may be reasonably necessary or advisable to enable the
Investor to consummate the disposition in such jurisdictions of the Subject
Securities covered by such registration statement in accordance with the plan of
distribution, except that the Company shall not for any such
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purpose be required to (A) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified; (B) subject
itself to taxation in any such jurisdiction wherein it is not so subject; or (C)
consent to general service of process in any such jurisdiction or otherwise take
any action that may subject it to the general jurisdiction of the courts of any
jurisdiction in which it is not so subject;
(iii) otherwise use its Best Efforts to comply with all applicable
rules and regulations of the SEC, including, without limitation, the following:
(A) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its Best Efforts to cause such
registration statement to become effective, and, upon the request of the
Investor, keep such registration statement effective for up to one hundred
eighty (180) days or, if earlier, until the Investor has completed the
distribution related thereto; and
(B) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(iv) immediately notify the Investor, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, if the
Company, in its sole judgment, becomes aware that the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and at the request of
Investor, deliver a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of the securities covered thereby, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(v) furnish, at the request of the Investor, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (A) an opinion, dated as of
such date, of counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to the Investor,
addressed to the underwriters, if any, and to the Investor, and (B) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to the
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Investor, addressed to the underwriters, if any, and, if permitted by applicable
accounting standards, to the Investor; and
(vi) execute and deliver all instruments and documents (including an
underwriting agreement in customary form) and take such other actions and obtain
such certificates and opinions as are customary in underwritten public
offerings.
(b) OBLIGATIONS OF THE INVESTOR; SELECTION OF UNDERWRITERS.
The Investor shall provide (in writing and signed by the Investor and
stated to be specifically for use in the related registration statement,
preliminary prospectus, prospectus or other document incident thereto) all such
information and materials regarding the Investor and the plan of distribution
and take all such action as may be reasonably required in order to permit the
Company to comply with all applicable requirements of the SEC and any applicable
state securities laws and to obtain any desired acceleration of the effective
date of any registration statement prepared and filed by the Company pursuant to
this Agreement. In connection with a registration effected under Section 4.3,
the Company shall at all times retain the right, in its sole discretion, to
select any underwriters necessary for making an offering in conjunction with
such registration.
(c) EXPENSES OF REGISTRATION.
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Sections 4.2 and 4.3 shall be borne by
the Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the Investor.
4.5 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) NO INJUNCTIONS.
The Investor shall not have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Article IV.
(b) THE INVESTOR'S DATA CONDITIONS PRECEDENT.
It shall be a condition precedent to the obligations of the Company to
take any action with respect to the registration of Registrable Securities held
by the Investor that the Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be reasonably required to effect the
registration of its Registrable Securities.
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4.6 TERMINATION OF REGISTRATION RIGHTS.
All registration rights granted under this Agreement shall terminate
and be of no further force and effect after December 6, 2009, provided, however,
that registration rights granted under this Article IV shall terminate and be of
no further force and effect as to the Investor (or transferee holding
registration rights hereunder) prior to December 6, 2009, if the Investor and
its Affiliates or transferee and its Affiliates can either (a) sell all of its
Registrable Securities pursuant to Rule 144 of the Securities Act within any
calendar quarter or (b) sell its Registrable Securities pursuant to Rule 144(k)
of the Securities Act.
4.7 INDEMNIFICATION.
(a) INDEMNIFICATION.
In the event any Registrable Securities held by Investor are included
in a registration statement:
(i) COMPANY INDEMNIFICATION. To the extent permitted by Applicable
Law, the Company will indemnify and hold harmless the Investor, the partners,
officers and directors of the Investor, any underwriter (as defined in the
Securities Act) for the Investor and each Person, if any, who controls the
Investor or underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"VIOLATION") by the Company: (A) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (B) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (C) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law in connection with the offering covered by such
registration statement; and the Company will reimburse the Investor, partner,
officer or director, underwriter or controlling Person for any legal or other
expenses as reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
that the indemnity agreement contained in this Section 4.7(a)(i) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such
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registration by the Investor, partner, officer, director, underwriter or
controlling Person of the Investor.
(ii) INVESTOR INDEMNIFICATION. To the extent permitted by Applicable
Law, the Investor will indemnify and hold harmless the Company, each of its
directors, each of its officers, each Person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter and any other holder
selling securities under such registration statement or any of such other
holder's partners, directors or officers or any Person who controls such holder
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling Person, underwriter or
other such holder, or partner, director, officer or controlling Person of such
other holder may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by the Investor under an instrument duly executed by the Investor and
stated to be specifically for use in connection with such registration, and,
with respect to other holders selling securities, only to the extent that such
other holders selling securities provide similar indemnification to the
Investor; and the Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling Person,
underwriter or other holder, or partner, officer, director or controlling Person
of such other holder in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 4.7(a)(ii) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Investor, which consent shall
not be unreasonably withheld; provided further, that in no event shall any
indemnity under this Section 4.7 exceed the net proceeds from the offering
received by the Investor.
(b) PROCEDURE ON INDEMNIFICATION CLAIMS.
Promptly after receipt by an indemnified party under this Section 4.7
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 4.7, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the indemnifying and
indemnified parties; provided, however, that an indemnified party shall have the
right to retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if
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materially prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
4.7, but the omission to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 4.7.
(c) ALTERNATE REMEDIES.
If the indemnification provided for in this Section 4.7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall, to the extent permitted by Applicable Law, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the Violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(d) INDEMNIFICATION OBLIGATIONS SURVIVE.
The obligations of the Company and the Investor under this Section 4.7
shall survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
(e) LIMITS ON SETTLEMENT OBLIGATION.
The Investor shall not be obligated to consent to any settlement of any
claim entered into by the Company in satisfaction of its indemnification
obligations hereunder unless the settlement includes a full and complete release
of the Investor.
4.8 ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause the Company to register Registrable Securities
pursuant to this Article IV may be assigned by the Investor to a transferee or
assignee of all [***] of the Registrable Securities, and by any such transferee
or assignee to successive transferees or assignees. The Investor and all such
transferees or assignees shall retain all of their rights under this Article IV
with respect to any Registrable Securities retained by such Person.
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4.9 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS.
Nothing in this Agreement shall be construed to limit or prevent the
Company from granting additional parties registration rights on parity with
those granted the Investor hereunder.
4.10 MARKET STAND-OFF AGREEMENT.
If requested by the Company or a representative of the underwriters of
Common Stock (or other securities) of the Company acting reasonably, the
Investor shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by the Investor (other than those included
in the registration) for a period specified by the representative of the
underwriters, not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act, and shall enter into an agreement with any of the underwriters
stating the same upon such underwriter's request. The foregoing commitment has
two limitations: (a) the Investor shall not be required to refrain from selling
under this paragraph, unless all officers of the Company enter into similar
agreements; and (b) the Investor shall not be required to refrain from selling
under this paragraph unless all other holders of the Company's Common Stock
owning an equal or a larger percentage of the Company's Common Stock (on an
as-converted basis) as the Investor is also required by a representative of the
underwriter to enter into market stand-off agreements on the same terms.
The obligations described in this Section 4.10 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
4.11 RULE 144 REPORTING.
With a view to making available to the Investor the benefits of certain
rules and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
good faith efforts to:
(a) DO THINGS THAT MAKE RULE 144 AVAILABLE.
Make and keep public information available, as those terms are
understood and defined in Rule 144 or any similar or analogous rule promulgated
under the Securities Act, at all times after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public;
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(b) FILE SECURITIES ACT AND EXCHANGE ACT REPORTS TIMELY.
File with the SEC, in a timely manner, all reports and other documents
required of the Company under the Securities Act and the Exchange Act;
(c) DATA TO THE INVESTOR.
So long as the Investor owns any Registrable Securities, furnish to the
Investor forthwith upon written request: a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as the Investor may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
ARTICLE V.
Additional Agreements
---------------------
5.1 CONSENTS; APPROVALS.
The Company and the Investor shall each use their reasonable efforts to
obtain all consents, waivers, approvals, authorizations or orders (including,
without limitation, all governmental and regulatory rulings and approvals), and
the Company and the Investor shall make all filings (including, without
limitation, all filings with governmental or regulatory agencies) required in
connection with the authorization, execution and delivery of this Agreement by
the Company and the Investor and the consummation by them of the transactions
contemplated hereby. The Company and the Investor shall furnish all information
required to be included in any application or other filing to be made pursuant
to the rules and regulations of any Governmental Authority in connection with
the transactions contemplated by this Agreement. Except where prohibited by
applicable statutes and regulations, and subject to the Confidentiality
Agreement between the Company and the Investor dated September 14, 2000, each
Party shall promptly provide the other (or its counsel) with copies of all
filings made by such Party with any state or federal government entity in
connection with this Agreement or the transactions contemplated hereby.
5.2 FIREWALL PROCEDURES
The Parties agree that they will maintain and abide by a formal
Firewall Policy, which may be amended from time to time by mutual agreement and
as to which each Party will also develop more detailed compliance rules,
procedures and methodologies. Each Party shall ensure that each of their
relevant employees (which, in the case of the Investor, shall mean the Investor
Nominee and any person to whom the Investor Nominee reports) is given a copy of
this policy and of any amendment thereto and also a current
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copy of that Party's more detailed rules, procedures and methodologies. Such
employees shall periodically certify in writing that they have read this policy
and these materials and agree to abide thereby. Each Party shall select an
employee responsible for overseeing the implementation of the policy and for
responding to questions from employees regarding the policy.
Under this Firewall Policy, each Party will erect and maintain
"firewalls" at their respective companies to ensure that each Party's nonpublic,
confidential and proprietary business information, particularly if information
relating to its specific customers and customer contracts or bids and its
prices, pricing plans and policies, and retail selling activities, is disclosed
to the other Party (which, in the case of the Investor, shall mean the Investor
nominee and any person to whom the Investor Nominee reports), that information
will not be disclosed to any persons at the other Party who are responsible for
developing that Party's own customer contracts or bids, prices, pricing plans
and policies, and retail selling activities.
5.3 MACROVISION STRATEGIC INVESTMENT AGREEMENT
[***].
ARTICLE VI.
Conditions Precedent
--------------------
6.1 INVESTOR CONDITIONS TO CLOSING.
The obligation of the Investor to make the investment in the Company
contemplated herein shall be subject to the satisfaction of the following
conditions precedent, in form and substance satisfactory to the Investor:
(a) RESOLUTIONS; INCUMBENCY.
The Investor shall have received each of the following:
(i) Copies of the resolutions of the Board of Directors of the
Company authorizing the transactions contemplated hereby, certified as of the
Closing by the Secretary or an Assistant Secretary of the Company; and
(ii) Certificates of the Secretary or Assistant Secretary of the
Company, dated as of the Closing, certifying the names, titles and true
signatures of the officers of the Company authorized to execute, deliver and
perform this Agreement and all other documents to be delivered by it hereunder;
(b) ORGANIZATION DOCUMENTS; GOOD STANDING.
The Investor shall have received each of the following:
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(i) A copy of the Certificate of Incorporation and By-laws as in
effect on the Closing, certified by the Secretary or Assistant Secretary of the
Company as of the Closing; and
(ii) A good standing certificate for the Company from the Secretary
of State (or similar, applicable Governmental Authority) of its state of
incorporation, as of a recent date.
(c) NO INJUNCTION OR RESTRAINTS; ILLEGALITY.
(i) HSR ACT. The waiting period (and any extension thereof
applicable to the consummation of the Agreement) under the HSR Act shall have
expired or been terminated;
(ii) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the Agreement
shall be in effect and no litigation by any governmental entity seeking any of
the foregoing shall have been commenced. There shall not be any action taken, or
any statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to this Agreement, which makes the consummation of this Agreement
illegal;
(iii) The Investor shall have received a certificate from an officer
of the Company certifying that all (A) authorizations, consents or approvals of,
notices to or filings with, any governmental agency, including pursuant to the
HSR Act, and (B) approvals and consents of any other Person, required in
connection with the agreement described herein, shall have been obtained or made
and that all applicable waiting periods have expired without notice of any
action which seeks to restrain, enjoin or otherwise prohibit or significantly
delay the Closing having been taken by any governmental agency;
(d) CERTIFICATE.
The Investor shall have received a certificate signed by an officer of
the Company, dated as of the Closing, stating that the representations and
warranties contained in Article II are true and correct on and as of such date,
as though made on and as of such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date);
(e) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF OBLIGATIONS.
The representations and warranties of the Company contained in Article
II shall be true and correct as of the Closing in all material respects as
though made on and as of such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date), and the Company shall have performed
all obligations and conditions required to be performed or
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observed by it on or prior to the Closing and all documents incident thereto
shall be satisfactory in form and content to the Investor and its counsel;
(f) OPINION OF COMPANY COUNSEL.
The Investor shall have received from Morrison & Foerster, LLP, counsel
for the Company, an opinion, dated as of the Closing, in the form reasonably
acceptable to counsel to the Investor;
(g) SHARE ISSUANCE.
The Company shall have taken all steps necessary to instruct its
transfer agent to issue a share certificate to the Investor representing the
Shares issued at Closing;
(h) DUE DILIGENCE AND OTHER DOCUMENTS.
(i) Within thirty (30) days of the execution of this Agreement, the
Investor shall have completed all desired due diligence investigations with
respect to the Company and its assets (including, but not limited to, the
Intellectual Property), business and operations and shall have concluded in good
faith that such investigations have revealed no facts or circumstances which
significantly frustrate the Newco collaboration as currently contemplated by
Section 1.3 above or which could reasonably have a Material Adverse Effect on
the Company; and
(ii) The Investor shall have received such other approvals,
opinions, documents or materials as the Investor may reasonably request.
(i) BOARD OF DIRECTORS.
The Investor Nominee shall have been appointed to the Board of
Directors of the Company, and shall have entered into an agreement with the
Company regarding indemnification and confidentiality, in form reasonably
acceptable to the Parties (the "DIRECTOR AGREEMENT").
6.2 COMPANY CONDITIONS TO CLOSING.
The obligation of the Company to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction of the
following conditions precedent, in form and substance satisfactory to the
Company:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF OBLIGATIONS.
The representations and warranties made by the Investor herein shall be
true and correct in all material respects as of the Closing, with the same force
and effect as if they had been made on and as of the same date, and the Investor
shall have performed all obligations and conditions required to be performed or
observed by it on or prior to the
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Closing and all documents incident thereto shall be satisfactory in form and
content to the Company and its counsel;
(b) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY.
(i) The waiting period (and any extension thereof applicable to the
consummation of the Agreement, under the HSR Act shall have expired or been
terminated;
(ii) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of this Agreement
shall be in effect and no litigation by any governmental entity seeking any of
the foregoing shall have been commenced. There shall not be any action taken, or
any statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to this Agreement, which makes the consummation of this Agreement
illegal;
(c) CONSENTS.
The Company shall have obtained all consents, permits and waivers
necessary or appropriate for consummation of the transactions contemplated by
this Agreement which need to be obtained prior to the Closing;
(d) COMPLIANCE WITH ALL LAWS.
At the Closing, the purchase of the Common Stock by the Investor
hereunder shall be legally permitted by all laws and regulations to which the
Investor or the Company are subject;
(e) PAYMENT OF PURCHASE PRICE.
The Investor shall have delivered the Total Purchase Price;
(f) CONSULTING AGREEMENT.
The Company and the Investor shall have entered into the Consulting
Agreement; and
(g) The Investor Nominee shall have entered into the Director
Agreement.
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ARTICLE VII.
Miscellaneous
-------------
7.1 FEES AND EXPENSES.
Except as specifically noted herein, each Party shall be solely
responsible for the payment of the fees and expenses of its advisers, 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.
7.2 SEVERABILITY.
If any provision of this Agreement is held by a court of competent
jurisdiction (including pursuant to enforcement of any arbitration award under
this Agreement) or panel of arbitrators to be invalid, unlawful or
unenforceable, it shall be modified, if possible, to the minimum extent
necessary to make it valid, lawful and enforceable or, if such modification is
not possible, it shall be stricken from this Agreement and the remaining
provisions of this Agreement shall continue in full force and effect; provided,
however, that, if a provision is so stricken and is of a nature so as to
fundamentally alter the economic arrangements of this Agreement, the Party
adversely affected may terminate this Agreement by giving to the other Party
sixty (60) days written notice of termination.
7.3 CONSENT TO JURISDICTION.
(a) CONSENT TO JURISDICTION.
For purposes of any suit, action, or legal proceeding permitted under
this Agreement, each Party to this Agreement (i) hereby irrevocably submits
itself to and consents to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York for the purposes of any
such suit, action or legal proceeding in connection with this Agreement
including to enforce an arbitral resolution, settlement, order or award made
pursuant to this Agreement (including pursuant to the New York Convention, the
U.S. Arbitration Act, or otherwise), and (ii) to the extent permitted by
Applicable Law, hereby waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action, or legal proceeding pending in
such event, any claim that it is not personally subject to the jurisdiction of
such court, that the suit, action or legal proceeding is brought in an
inconvenient forum or that the venue of the suit, action or legal proceeding is
improper. Each Party to this Agreement hereby agrees to the entry of an order to
enforce any resolution, settlement, order or award made pursuant to this Section
by the United States District Court for the Southern District of New York.
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(b) EXCLUDED INSTRUMENTS.
The Parties hereby agree to exclude application of the following
instruments and documents: United Nations Convention on the International Sale
of Goods; 1990 International Chamber of Commerce Incoterms; Revised American
Foreign Trade Definitions; and UNCITRAL Arbitration Rules.
7.4 DISPUTE RESOLUTION PROCEDURES.
(a) Any controversy or claim arising out of or relating to this
contract, or the breach thereof between or among the Parties and/or any of their
Affiliates under this Agreement, shall be settled, if possible, through good
faith negotiations between the relevant parties. Prior to resolving any dispute
by means of arbitration or by means of any suit, action or legal proceeding
permitted under this Section 7.4, the relevant parties involved in such dispute
shall refer such dispute to their respective Chief Executive Officers or
equivalent, who shall meet in person to negotiate in good faith the possible
resolution thereof on at least two occasions within thirty (30) days before any
such party commences arbitration or other litigation permitted under this
Agreement (provided, that if any such party fails or refuses to have a
representative attend such meetings within such thirty (30) day period, the
procedures of this Section 7.4 shall be applicable after the conclusion of such
thirty (30) day period); and further provided that (i) any legal proceedings
seeking interim equitable relief (including a temporary restraining order or
preliminary injunction) until such time as such interim equitable relief can be
addressed through arbitration; (ii) proceedings for provisional relief
contemplated by Section 7.4(k) below; and (iii) third party legal proceedings,
in each case, may be commenced immediately.
(b) In the event such good faith negotiations are unsuccessful, either
Party may, after thirty (30) days' written notice to the other, submit any
controversy or claim arising out of, relating to or in connection with this
Agreement, or the breach thereof, to arbitration administered by the American
Arbitration Association ("AAA") in accordance with its then existing Commercial
Arbitration rules and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
(c) It is the express agreement of the Parties that the provisions of
this Section, including the rules of the AAA and the laws of the State of
California referenced herein, as modified by the terms of this Section, shall
govern the arbitration of any disputes arising pursuant to this Agreement. In
the event of any conflict between the law of the State of California, the law of
the arbitral location, and the U.S. Arbitration Act (Title 9, U.S. Code), with
respect to any arbitration conducted pursuant to this Agreement, to the extent
permissible, it is the express intent of the Parties that the selected governing
law, as modified by this Section, shall prevail. To the extent this Section is
deemed a separate agreement, independent from this Agreement, Sections 7.2, 7.6,
7.7 and 7.8 are incorporated herein by reference and all notices under this
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Section may be given in person or otherwise in such manner as is permissible
under the Hague Convention.
(d) The place of arbitration shall be at a mutually agreeable location
within a 10-mile radius of Sunnyvale, California, U.S.A., and the award shall be
deemed a U.S. award for purposes of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of 1958 (the "NEW YORK CONVENTION").
(e) In any arbitration pursuant to this Section, the award shall be
rendered by a majority of the members of a board of arbitration consisting of
three members who must possess at least ten (10) years of experience in serving
clients in transactions similar to the transaction contemplated pursuant to this
Agreement. The arbitrators shall be appointed by the Parties jointly or, if the
Parties cannot agree as to three arbitrators within thirty (30) days after the
commencement of the arbitration proceeding, then one arbitrator shall be
appointed by each of the Company and the Investor within sixty (60) days after
the commencement of the arbitration proceeding and the third arbitrator shall be
appointed by mutual agreement of such two arbitrators. If such two arbitrators
shall fail to agree within seventy-five (75) days after commencement of the
arbitration proceeding upon the appointment of the third arbitrator, the third
arbitrator shall be appointed by the AAA in accordance with its then existing
rules. Notwithstanding the foregoing, if any Party shall fail to appoint an
arbitrator within the specified time period, such arbitrator and the third
arbitrator shall be appointed by the AAA in accordance with its then existing
rules. For purposes of this Section, the "commencement of the arbitration
proceeding" shall be deemed to be the date upon which written demand for
arbitration has been received by the AAA from one of the Parties (and by the
other Party from such Party).
(f) So long as such award complies with subsection (j) below, an award
rendered in connection with an arbitration pursuant to this Section shall be
final and binding upon the Parties, and any judgment upon such an award may be
entered and enforced in any court of competent jurisdiction.
(g) The Parties agree that the award of the arbitral tribunal will be
the sole and exclusive remedy between them regarding any and all claims and
counterclaims between them with respect to the subject matter of the arbitrated
dispute. The Parties hereby waive all jurisdictional defenses in connection with
any arbitration hereunder or the enforcement of an order or award rendered
pursuant thereto (assuming that the terms and conditions of this arbitration
clause have been complied with).
(h) The Parties hereby agree that, for purposes of the New York
Convention, the relationship between the Parties is commercial in nature, and
that any disputes between the Parties related to this Agreement shall be deemed
commercial.
(i) With respect to any order issued by the arbitrator(s) pursuant to
this Agreement, the Parties expressly agree and consent (i) to the bringing of
an action by one Party against the other in the federal courts of the Northern
District of California to
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enforce and confirm such order; (ii) that such order shall be conclusive proof
of the validity of the determination(s) of the arbitrator(s) underlying such
order; and (iii) that any court having jurisdiction or any federal court sitting
in the Northern District of California may enter judgment upon and enforce such
order, whether pursuant to the New York Convention, the U.S. Arbitration Act, or
otherwise.
(j) The arbitrators shall apply and comply with Applicable Law in
reaching their decisions. The arbitrators shall issue a written explanation of
the reasons for the award and a full statement of the facts as found and the
rules of law applied in reaching their decision to both Parties. The arbitrator
shall apportion to each Party all costs (other than attorneys' fees) incurred in
conducting the arbitration in accordance with what he deems just and equitable
under the circumstances. Any provisional remedy which would be available to a
court of law shall be available from the arbitrator(s) pending arbitration of
the dispute. Either Party may make an application to the arbitrator seeking
injunctive or other interim relief, and the arbitrator may take whatever interim
measures they deem necessary in respect of the subject matter of the dispute,
including measures to maintain the status quo until such time as the arbitration
award is rendered or the controversy is otherwise resolved. The arbitrator shall
have the authority to award any remedy or relief that a court of the State of
California could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement or the issuance of an
injunction, but shall NOT have the authority to award any remedy or relief that
could not be granted by a court in the State of California applying California
law.
(k) The Parties may file an application in any proper court for a
provisional remedy in connection with an arbitrable controversy, but only upon
the ground that the award to which the applicant may be entitled may be rendered
ineffectual without provisional relief.
(l) After the appointment of the arbitrators, the parties to the
arbitration shall have the right to take depositions and to obtain discovery
regarding the subject matter of the arbitration, and, to that end, to use and
exercise all the same rights, remedies, and procedures, and be subject to all of
the same duties, liabilities, and obligations in the arbitration with respect to
the subject matter thereof, as provided in Chapter 2 (commencing with Section
1985) of, and Article 3 (commencing with Section 2016) of Chapter 3 of Title 3
of Part 4 of the California Code of Civil Procedure, as if the subject matter of
the arbitration were pending in a civil action before a superior court in
California.
7.5 BROKERS.
Each of the Company and the Investor agrees that it shall indemnify and
hold harmless the other and its Affiliates from and against any and all claims,
liabilities, or obligations with respect to brokerage or finders' fees or
commissions or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any
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Person on the basis of any agreement, statement or representation alleged to
have been made by such Party.
7.6 ENTIRE AGREEMENT; AMENDMENTS.
This Agreement and the Schedules and Exhibits hereto collectively
contain the entire understanding of the Parties with respect to the matters
referred to hereby and thereby, and, except as specifically set forth herein and
therein, 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 amended, supplemented or waived other than by a written
instrument signed by the Party against whom enforcement of any such amendment,
supplement or waiver is sought.
7.7 NOTICES.
Any notice or other communication required or permitted to be given
herein 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
third 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:
DIGIMARC CORPORATION
19801 S.W. 72nd Avenue
Suite 250
Tualatin, OR 97062
Telephone: (503) 885-9699
Facsimile: (503) 495-4577
Attention: Bruce Davis, President & CEO
With a copy to:
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
Attention: Gavin B. Grover, Esq.
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If to the Investor:
KONINKLIJKE PHILIPS ELECTRONICS N V
Amstelplein 1
Amsterdam
The Netherlands
Telephone:
Facsimile: +31 20 5977230
Attention: Corp. Legal Department
With copies to:
PHILIPS SILICON VALLEY CENTER
1000 West Maude Avenue
Sunnyvale, CA 94085-2810
Telephone: (408) 617-4693
Facsimile: (408) 617-4795
Attention: Tim Grace
PHILIPS SILICON VALLEY CENTER
1000 West Maude Avenue
Sunnyvale, CA 94085-2810
Telephone: (408) 617-4848
Facsimile: (408) 617-4847
Attention: Guido Dierick, Esq.
BROBECK, PHLEGER & HARRISON LLP
Two Embarcadero Place,
2200 Geng Road
Palo Alto, CA 94303
Telephone: (650) 496-2885
Facsimile: (650) 424-0160
Attention: G. Larry Engel, Esq.
Each Party may from time to time change its address for notices under this
Section 7.7 by giving at least ten (10) days' notice of such changed address to
the other Party.
7.8 NO WAIVER.
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 hereof or a waiver of any other provision, condition or
request 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.
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7.9 HEADING.
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.
7.10 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their successors and assigns. The Parties may amend this Agreement
without notice to or the consent of any other Person. Neither Party shall assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other Party (which consent may be withheld for any reason in the
sole discretion of the Party from whom consent is given), except as otherwise
expressly provided herein. However, the Investor may assign any of its rights or
Common Stock to any of its wholly owned affiliates.
7.11 NO THIRD PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the Parties, the
indemnified parties under Section 4.7 and their respective permitted successors
and assigns, and are not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
7.12 GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California.
7.13 FURTHER ASSURANCES.
Each Party agrees to take such further actions, including the execution
of such further documents, as may be necessary or desirable, or reasonably
requested by the other, in order to carry out the provisions of this Agreement
including all reasonable action required to be taken by the Company to enable
the consummation of the Closing including convening a meeting of the Company's
shareholders.
7.14 ENGLISH LANGUAGE CONTROLS.
The original and controlling version of this Agreement shall be the
version using the English language. All translations of this Agreement into
other languages shall be for the convenience of the Parties only, and shall not
control the meaning or application of this Agreement. All notices and other
communications required or permitted by this Agreement must be in English, and
the interpretation and application of such notices and other communications
shall be based solely upon the English language version thereof.
7.15 RELATIONSHIP OF THE PARTIES.
For all purposes of this Agreement, the Investor, the Company and all
of their respective Affiliates shall be deemed to be independent entities, and
anything in this
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Agreement to the contrary notwithstanding, nothing herein shall be deemed to
constitute the Investor and the Company or any of their respective Affiliates as
partners, joint venturers, co-owners, an association or any entity separate and
apart from each party itself, nor shall this Agreement make either Party hereto
an employee or agent, legal or otherwise, of the other Party for any purposes
whatsoever. Neither Party hereto is authorized to make any statements or
representations on behalf of the other Party or in any way obligate the other
Party, except as expressly authorized in writing by the other Party. Anything in
this Agreement to the contrary notwithstanding, neither Party hereto shall
assume nor shall be liable for any liabilities or obligations of the other
Party, whether past, present or future, except for indemnity obligations
expressly undertaken herein.
7.16 PUBLICITY.
(a) Each Party agrees, and shall cause its Affiliates, not to issue any
press release disclosing the terms of, or relating to, this Agreement, without
the prior written consent of the other Party; provided, however, that neither
Party or its Affiliates shall be prevented from complying with any duty of
disclosure it may have pursuant to Applicable Laws. Such disclosing Party shall
use its Best Efforts to consult with the other Party regarding the issuance of
any such press release, or with regard to any public statement disclosing the
terms of this Agreement (including but not limited to any required press release
or other public statement pursuant to Applicable Laws), and shall use its Best
Efforts to obtain confidential treatment for any Confidential Information where
such press release or other public statement is required to be made by
Applicable Law.
(b) The Investor hereby acknowledges that it is aware and that its
representatives and Affiliates have been advised that applicable securities laws
restrict any Person who has material nonpublic information about a company from
purchasing or selling securities of such company, or from communicating such
material non-public information to any other Person under circumstances in which
it is reasonably foreseeable that such Person is likely to purchase or sell such
securities. The Parties agree that all information disclosed during the
negotiations of this Agreement shall be considered "Confidential Information"
and governed by that certain Letter Agreement between the parties regarding
confidentiality, dated September 14, 2000.
7.17 NUMBER AND GENDER OF WORDS.
Whenever the singular number is used herein, the same shall include the
plural where appropriate, and shall apply to all of such number, and to each of
them, jointly and severally, and words of any gender shall include each other
gender where appropriate.
7.18 INTERPRETATION.
When a reference is made in this Agreement or to a Section, Exhibit or
Schedule, such reference shall be to a Section of, Exhibit to or Schedule to
this Agreement, unless
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otherwise indicated. Any references to Applicable Laws or a subset thereof shall
be deemed to include any amendments or additions thereto from time to time or
any successor or similar Applicable Law.
7.19 COUNTERPARTS.
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 all Parties need not sign the same counterpart.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have caused this Strategic
Investment Agreement to be duly executed by their respective authorized officers
as of the date hereof.
DIGIMARC CORPORATION
By:/s/ E.K. RANJIT
--------------------------------
Name: E.K. Ranjit
Title: Chief Financial Officer
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By:/s/ IVO LURVINK
--------------------------------
Name: Ivo Lurvink
Title:
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EXHIBIT A
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Definitions
Any reference in this Agreement to "writing" or cognate expressions
includes a reference to electronic or facsimile transmission or comparable means
of communications. As used in this Agreement, the following terms shall be
defined as follows:
"AAA" shall have the meaning set forth in Section 7.4(b).
"ACCREDITED INVESTOR" shall have the meaning set forth in
Section 2.2(e).
"AFFILIATE(S)" shall mean any corporation, association or other entity
which directly or indirectly controls, is controlled by or is under common
control with the party in question, but only for so long as such relationship
exists. As used herein, the term "control" shall mean the ability to direct the
business of a company and shall be presumed in the case of ownership, directly
or indirectly, of shares of stock having at least fifty percent (50%) of the
voting power entitled to vote for the election of directors in the case of a
corporation, and at least fifty percent (50%) of the voting power and interest
in profits in the case of a business entity other than a corporation, or only if
less than fifty percent (50%) of the voting power and interest in profits is
permitted by Applicable Law, the maximum amount allowed in the country in
question (so long as the holder otherwise retains the ability to direct the
business of the entity).
"AGREEMENT" shall have the meaning set forth in the preamble hereto.
"APPLICABLE LAW(S)" shall mean all foreign, federal, state and local
laws, statutes, rules and regulations which have been enacted by a Governmental
Authority and are in force as of the date hereof or which are enacted by a
Governmental Authority and come into force during the term of this Agreement,
(including any successor provisions as amended, re-enacted or extended by such
Governmental Authority) in each case to the extent that the same are applicable
to the performance by the Parties of their respective obligations under this
Agreement.
"AUDIT DATE" shall have the meaning set forth in Section 2.1(l).
"BENEFICIALLY OWNS" or any derivation of such term shall have the same
meaning as set forth in Rule 13d-3 under the Exchange Act.
"BEST EFFORTS" shall be determined under California law and shall mean
such reasonable efforts as are consistent with efforts made by businesses of
similar size and resources in a similar circumstance and context, to achieve a
particular result in a timely manner, but shall not require a party to take
actions that would be commercially unreasonable to such party in the
circumstances.
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"BY-LAWS" shall have the meaning set forth in Section 2.1(c).
"CERTIFICATE OF INCORPORATION" shall have the meaning set forth in
Section 2.1(c).
"CLOSING" shall have the meaning set forth in Section 1.2.
"COMMON STOCK" shall have the meaning set forth in the recitals to this
Agreement.
"COMPANY" shall have the meaning set forth in the preamble of this
Agreement.
"COMPANY SECURITIES" shall mean the Shares acquired hereunder or any of
the Company's Common Stock or securities (including options, warrants or rights)
convertible into, exchangeable for or exercisable for shares of Common Stock.
"CONFIDENTIAL INFORMATION" shall mean technical and business
information relating to a Party's Intellectual Property Rights, trade secret
processes or devices, techniques, data, formula, inventions (whether or not
patentable) or products, research and development (including research subjects,
methods and results), production, manufacturing and engineering processes,
computer software, costs, profit or margin information, pricing policies,
confidential market information, finances, customers, distribution, sales,
marketing, and production and future business plans and any other information of
a "confidential" nature, specifically including, without limitation, any
information that is identified orally or in writing by the disclosing party to
be confidential, or that the receiving party should reasonably understand under
the circumstances to be a trade secret of the disclosing party or information of
a similar nature that is not generally known to the public.
"CONSULTING AGREEMENT" shall have the meaning set forth in Section 1.4.
"DIRECTOR AGREEMENT" shall have the meaning set forth in
Section 6.1(i).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"GALAXY GROUP" [***].
"GAAP" shall have the meaning set forth in Section 2.1(f).
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state, province or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROUP" shall have the meaning set forth in Section 13(d)(3) of the
Exchange Act.
"HSR ACT" shall have the meaning set forth in Section 1.3.
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"INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 2(m)(i).
"INTERIM BALANCE SHEET" shall have the meaning set forth in
Section 2.1(g)(ii).
"INVESTOR" shall have the meaning set forth in the preamble of this
Agreement.
"INVESTOR NOMINEE" shall have the meaning set forth in Section 3.5
"LIABILITIES" shall have the meaning set forth in Section 2.1(g).
"MACROVISION INVESTMENT AGREEMENT" shall have the meaning set forth in
the recitals to this Agreement.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on the
assets, results of operations, properties, business or financial condition of
either Party hereto, as applicable, and such Party's subsidiaries taken as a
whole.
"NEW YORK CONVENTION" shall have the meaning set forth in
Section 7.4(d).
"NEWCO" shall have the meaning set forth in the recitals to this
Agreement.
"PARTY" or "PARTIES" shall mean the Investor, the Company or both,
as applicable.
"PERSON" shall mean any individual, general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association, or any foreign trust or foreign
business organization or any Governmental Authority.
"PHILIPS PERCENTAGE" shall have the meaning set forth in the recitals
to this Agreement.
"PIGGYBACK INVESTORS" shall have the meaning set forth in
Section 4.3(b).
"REGISTER", "REGISTERED", and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company issued
or issuable under this Agreement; and (ii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such above-described securities.
Notwithstanding the foregoing, Registrable Securities shall not include any
securities (i) sold by a Person to the public either pursuant to a registration
statement or Rule 144 or (ii) sold in a private transaction in which the
transferor's rights under Article IV of this Agreement are not assigned with
respect to such securities.
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"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Section 4.2 and Section 4.3, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company and the underwriters, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"RESTRICTED SECURITIES" shall have the meaning set forth in
Section 2.2(e).
"SCHEDULE OF EXCEPTIONS" shall have the meaning set forth in
Section 2.1.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"SEC DOCUMENTS" shall have the meaning set forth in Section 2.1(f).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes, if any, applicable to the sale.
"SHARE PRICE" shall have the meaning set forth in Section 1.1.
"SHARES" shall have the meaning set forth in the recitals to this
Agreement, which includes all shares of the Common Stock acquired by the
Investor pursuant to this Agreement and all shares of Common Stock issued to the
Investor upon any stock split, stock dividend, recapitalization or similar
event.
"STANDSTILL PERCENTAGE" shall have the meaning set forth in
Section 3.2(a)(i).
"STANDSTILL PERIOD" shall have the meaning set forth in Section 3.2(a).
"SUBJECT SECURITIES" shall have the meaning set forth in
Section 4.4(a).
"THIRD PARTY INTELLECTUAL PROPERTY LICENSE" shall have the meaning set
forth in Section 2.1(m)(i).
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" shall have the meaning set
forth in Section 2.1(m)(vii).
"TOTAL PURCHASE PRICE" shall have the meaning set forth in Section 1.1.
"VIOLATION" shall have the meaning set forth in Section 4.7(a)(i).
"VOTING SECURITIES" shall mean any shares of any class of the Company's
capital stock with voting rights generally to elect directors of the Company.
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