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Title: |
Securities Purchase Agreement |
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Entities: |
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Date: |
2000 |
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Preview shows 19KB of 110KB total |
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$46 |
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ID: |
#1133581 |
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of August 8, 2000 (this
"Agreement"), among eGain Communication Corporation, a Delaware corporation (the
"Company"), and the Persons named on Schedule 2.1 (such Persons, collectively,
the "Purchasers").
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Company proposes to issue and sell (i) an aggregate of 35.11 shares, par value
$.001 per share, of Series A Cumulative Convertible Preferred Stock of the
Company (the "Series A Preferred Stock"), (ii) an aggregate of 849.89 shares,
par value $.001 per share, of Series B Cumulative Convertible Preferred Stock
(the "Series B Preferred Stock", and, collectively with the Series A Preferred
Stock, the "Preferred Stock") and (iii) warrants (collectively, the "Warrants")
to purchase, subject to the terms and conditions thereof, an aggregate of
3,826,322 shares (subject to adjustment) of Common Stock at an exercise price of
$9.2517 per share (subject to adjustment), containing the terms and conditions
set forth in the form of warrant attached hereto as Exhibit A; and
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WHEREAS, each share of Series A Preferred Stock is convertible (subject to
adjustment) into shares of common stock, par value $.001 per share, of the
Company (the "Common Stock"); and
WHEREAS, each share of Series B Preferred Stock is convertible, subject to
certain terms and conditions, to Series A Preferred Stock or Series C Cumulative
Redeemable Preferred Stock, par value $.001 per share ("Series C Preferred
Stock").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Definitions . As used in this Agreement, and unless the context
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requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined in Rule
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12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" means this Agreement, as the same may be amended, supplemented
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or modified in accordance with the terms hereof.
<PAGE>
2
"Approvals" has the meaning set forth in Section 7.2 of this Agreement.
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"Assets" has the meaning set forth in Section 3.18 of this Agreement.
------
"Board of Directors" means the Board of Directors of the Company.
------------------
"Business Day" means any day other than a Saturday, Sunday or other day on
------------
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"By-laws" means the by-laws of the Company in effect on the Payment Date,
-------
as the same may be amended from time to time.
"Certificates of Designations" means, collectively, the Series A
----------------------------
Certificate of Designations, Series B Certificate of Designations and Series C
Certificate of Designations.
"Certificate of Incorporation" means the Amended and Restated Certificate
----------------------------
of Incorporation of the Company.
"Claims" has the meaning set forth in Section 3.5 of this Agreement.
------
"Closing Date" has the meaning set forth in Section 2.3 of this Agreement.
------------
"Code" means the Internal Revenue Code of 1986, as amended, or any
----
successor statute thereto.
"Commission" means the United States Securities and Exchange Commission or
----------
any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" has the meaning set forth in the recitals to this Agreement.
------------
"Company" has the meaning set forth in the preamble to this Agreement.
-------
"Company Privacy Policy" means the privacy policy posted on the Company
----------------------
Website.
"Company Website" means the Internet website located at the URL address
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www.egain.com and all other Internet websites owned and/or controlled by the
Company.
<PAGE>
3
"Condition of the Company" means the assets, business, prospects, results
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of operations or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
"Contingent Obligation" means, as applied to any Person, any direct or
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indirect liability of that Person with respect to any Indebtedness, lease,
dividend, guaranty, letter of credit or other obligation, contractual or
otherwise (the "primary obligation") of another Person (the "primary obligor"),
------------------ ---------------
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect security
therefor, (b) to advance or provide funds (i) for the payment or discharge of
any such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or
(d) otherwise to assure or hold harmless the owner of any such primary
obligation against loss or failure or inability to perform in respect thereof.
The amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof.
"Contractual Obligations" means, as to any Person, any provision of any
-----------------------
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Copyrights" means any foreign or United States copyright registrations and
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applications for registration thereof, and any non-registered copyrights.
"Customer Information" means any and all of the customer information the
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Company receives through the Company Website or otherwise.
"Environmental Laws" means federal, state, local and foreign laws,
-------------------
principles of common laws, civil laws, regulations, and codes, as well as
orders, decrees, judgments or injunctions, issued, promulgated, approved or
entered thereunder relating to pollution, protection of the environment or
public health and safety.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations of the Commission thereunder.
<PAGE>
4
"Financial Statements" has the meaning set forth in Section 3.10 of this
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Agreement.
"GAAP" means United States generally accepted accounting principles in
----
effect from time to time.
"Governmental Authority" means the government of any nation, state, city,
----------------------
locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"including" means including but not limited to the items following such
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term, unless the context clearly requires otherwise.
"Indebtedness" means, as to any Person, (a) all obligations of such Person
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for borrowed money (including reimbursement and all other obligations with
respect to surety bonds, letters of credit and bankers' acceptances, whether or
not matured), (b) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable and accrued
commercial or trade liabilities arising in the ordinary course of business, (c)
all interest rate and currency swaps, caps, collars and similar agreements or
hedging devices under which payments are obligated to be made by such Person,
whether periodically or upon the happening of a contingency, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all indebtedness secured
by any Lien (other than Liens in favor of lessors under leases other than leases
included in clause (e)) on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is non-recourse to the credit of that Person, and (g) any
Contingent Obligation of such Person.
"Indemnified Party" has the meaning set forth in Section 7.1 of this
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Agreement.
"Indemnifying Party" has the meaning set forth in Section 7.1 of this
------------------
Agreement.
"Intellectual Property" has the meaning set forth in Section 3.20 of this
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Agreement.
"Internet Assets" means any Internet domain names and other computer user
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identifiers and any rights in and to sites on the worldwide web, including
rights in
<PAGE>
5
and to any text, graphics, audio and video files and html or other code
incorporated in such sites.
"Liabilities" has the meaning set forth in Section 3.19 of this Agreement.
-----------
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity related preferences).
"Losses" has the meaning set forth in Section 7.1 of this Agreement.
------
"Market Price" on any date shall mean the closing bid prices per share of
------------
the Common Stock on NASDAQ or, if not then listed or traded on NASDAQ, such
other exchange, market or system that the Common Stock is then listed or traded
on. If on any such date the shares of such Common Stock are not listed or
admitted for trading on any national securities exchange or quoted on NASDAQ or
a similar service, the Market Price for such shares shall be the fair market
value of such shares on such date as determined in good faith by the Board of
Directors of the Company and shall be the value which is agreed upon by at least
66 2/3% of the members thereof, or if such percentage of the members of the
Board of Directors are unable to agree upon the value of such consideration, the
value thereof shall be determined by an independent investment bank of a
nationally recognized stature that is selected by the Oak Hill Entities and the
Company.
"NASDAQ" shall mean the National Association of Securities Dealers, Inc.
------
Automated Quotation System.
"Oak Hill Entities" means Oak Hill Capital Partners, L.P., FW Investors V,
-----------------
L.P., Oak Hill Venture Fund I, L.P. and Oak Hill Capital Management Partners,
L.P.
"Orders" has the meaning set forth in Section 3.2 of this Agreement.
------
"Patents" means any foreign or United States patents and patent
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applications, including any divisions, continuations, continuations-in-part,
substitutions or reissues thereof, whether or not patents are issued on such
applications and whether or not such applications are modified, withdrawn or
resubmitted.
"Permits" has the meaning set forth in Section 3.6 of this Agreement.
-------
"Person" means any individual, firm, corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
<PAGE>
6
"Plans" has the meaning set forth in Section 3.17 of this Agreement.
-----
"Preferred Stock" has the meaning set forth in the recitals to this
---------------
Agreement.
"Purchased Shares" has the meaning set forth in Section 2.1 of this
----------------
Agreement.
"Purchasers" has the meaning set forth in the preamble to this Agreement.
----------
"Registration Rights Agreement" means the Registration Rights Agreement
-----------------------------
substantially in the form attached hereto as Exhibit C.
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"Requirements of Law" means, as to any Person, any law, statute, treaty,
-------------------
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"SEC Reports" with respect to any Person means all forms, reports,
-----------
statements and other documents (including exhibits, annexes, supplements and
amendments to such documents) required to be filed by it, or sent or made
available by it to its security holders, under the Exchange Act, the Securities
Act, any national securities exchange or quotation system or comparable
Governmental Authority since the date of such Person's initial public offering.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Commission thereunder.
"Series A Certificate of Designations" means the Certificate of
------------------------------------
Designations with respect to the Series A Preferred Stock adopted by the Board
of Directors and duly filed with the Secretary of State of the State of Delaware
on or before the Payment Date substantially in the form attached hereto as
Exhibit B-1.
-----------
"Series B Certificate of Designations" means the Certificate of
------------------------------------
Designations with respect to the Series B Preferred Stock adopted by the Board
of Directors and duly filed with the Secretary of State of the State of Delaware
on or before the Payment Date substantially in the form attached hereto as
Exhibit B-2.
-----------
"Series C Certificate of Designations" means the Certificate of
------------------------------------
Designations with respect to the Series C Preferred Stock adopted by the Board
of Directors and duly filed with the Secretary of State of the State of Delaware
on or before the Payment Date substantially in the form attached hereto as
Exhibit B-3.
-----------
<PAGE>
7
"Software" means any computer software programs, source code, object code,
--------
data and documentation, including any computer software programs that
incorporate and run the Company's pricing models, formulae and algorithms.
"Stock Equivalents" means any security or obligation which is by its terms
-----------------
convertible into or exchangeable for shares of common stock or other capital
stock or securities of the Company, and any option, warrant or other
subscription or purchase right with respect to common stock or such other
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