. <\/strong>The Company has filed all reports,
\nschedules, registration statements, forms and other documents required to be
\nfiled by the Company with the SEC, including those that the Company may file
\nwith the SEC after the date of this Agreement until the Closing (“SEC
\nFilings<\/u>“) required to be filed as of the date hereof. The SEC Filings (i)
\nwere or will be filed on a timely basis, (ii) at the time filed, were or will be
\nprepared in compliance in all material respects with the applicable requirements
\nof the Securities Act and the Exchange Act, as the case may be, and the rules
\nand regulations of the SEC thereunder applicable to such SEC Filings, and (iii)
\ndid not or will not at the time they were or are filed contain any untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated in such SEC Filings or necessary in order to make the statements in such
\nSEC Filings, in the light of the circumstances under which they were made, not
\nmisleading.<\/p>\n(h) Collateral<\/u><\/strong>. The Company and each
\nof its direct and indirect United States subsidiaries has good title to the
\nCollateral, free of any Liens except Permitted Liens. This Agreement creates in
\nfavor of the Purchasers a valid security interest in all of the Company’s right,
\ntitle and interest in and to the Collateral, and upon the filing of appropriate
\nUCC financing statements with the Delaware Secretary of State, the Purchasers’
\nsecurity interest hereunder and under the Notes will be duly perfected in all of
\nthe Collateral in which a security interest may be perfected by such filing.\n<\/p>\n5. Representations and Warranties of the
\nPurchasers<\/u>.<\/strong> Each Purchaser hereby represents and warrants to the
\nCompany that:<\/p>\n(a) Authorization<\/u>. <\/strong>Such Purchaser has
\nfull power and authority to enter into this Agreement. This Agreement, when
\nexecuted and delivered by the Purchaser, will constitute a valid and legally
\nbinding obligation of the Purchaser, enforceable in accordance with its terms,
\nexcept as limited by applicable bankruptcy, insolvency, reorganization,
\nmoratorium, fraudulent conveyance, and any other laws of general application
\naffecting enforcement of creditors’ rights generally, and as limited by laws
\nrelating to the availability of a specific performance, injunctive relief, or
\nother equitable remedies.<\/p>\n(b) Purchase Entirely for Own
\nAccount<\/u>.<\/strong> This Agreement is made with the Purchaser in reliance upon
\nthe Purchaser’s representation to the Company, which by the Purchaser’s
\nexecution of this Agreement, the Purchaser hereby confirms, that the Securities
\nto be acquired by the Purchaser will be acquired for investment for the
\nPurchaser’s own account, not as a nominee or agent, and not with a view to the
\nresale or distribution of any part thereof, and that the Purchaser has no
\npresent intention of selling, granting any participation in, or otherwise
\ndistributing the same. By executing this Agreement, the Purchaser further
\nrepresents that the Purchaser does not presently have any contract, undertaking,
\nagreement or arrangement with any person to sell, transfer or grant
\nparticipations to such person or to any third person, with respect to any of the
\nSecurities. The Purchaser has not been formed for the specific purpose of
\nacquiring any of the Securities.<\/p>\n(c) Knowledge<\/u>.<\/strong> The Purchaser is aware
\nof the Company’s business affairs and financial condition and has acquired
\nsufficient information about the Company to reach an informed and knowledgeable
\ndecision to acquire the Securities.<\/p>\n(d) Restricted Securities<\/u>.<\/strong> The
\nPurchaser understands that the Securities have not been, and will not be,
\nregistered under the Securities Act of 1933, as amended (the “Securities Act”),
\nby reason of a specific exemption from the registration provisions of the
\nSecurities Act which depends upon, among other things, the bona fide nature of
\nthe investment intent and the accuracy of the Purchaser’s representations as
\nexpressed herein. The Purchaser understands that the Securities are “restricted
\nsecurities” under applicable U.S. federal and state securities laws and that,
\npursuant to these laws, the Purchaser must hold the Securities indefinitely
\nunless they are registered with the Securities and Exchange Commission and
\nqualified by state authorities, or an exemption from such registration and
\nqualification requirements is available. The Purchaser acknowledges that, except
\nas expressly set forth herein, the Company has no obligation to register or
\nqualify the Securities for resale. The Purchaser further acknowledges that if an
\nexemption from registration or qualification is available, it may be conditioned
\non various requirements including, but not limited to, the time and manner of
\nsale, the holding period for the Securities, and on requirements relating to the
\nCompany which are outside of the Purchaser’s control, and which the Company is
\nunder no obligation and may not be able to satisfy.<\/p>\n(e) Not a Listed Security<\/u>.<\/strong> The
\nPurchaser understands that the Company’s stock is not listed on a national
\nsecurities exchange, and that the Company has made no assurances that the
\nCompany’s stock will ever be traded on a national securities exchange.<\/p>\n(f) Legends<\/u>.<\/strong> The Purchaser
\nunderstands that the Securities, and any securities issued in respect thereof or
\nexchange therefor, may bear one or all of the following legends:<\/p>\n(i) “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
\nBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
\nINVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
\nDISTRIBUTION THEREOF. EXCEPT IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER THE
\nSECURITIES ACT OF 1933 OR ANY OTHER AVAILABLE EXEMPTION FROM REGISTRATION, NO
\nSUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
\nSTATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE
\nCOMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
\n1933.”<\/p>\n
(ii) THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO
\nMAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144
\nPROMULGATED UNDER THE ACT.<\/p>\n
(iii) Any legend required by the Blue Sky laws of any state to the extent
\nsuch laws are applicable to the shares represented by the certificate so
\nlegended.<\/p>\n
(g) Accredited Investor<\/u>. <\/strong>The
\nPurchaser is an accredited investor as defined in Rule 501(a) of Regulation D
\npromulgated under the Securities Act.<\/p>\n(<\/strong>h) Foreign
\nInvestors<\/u>.<\/strong> If a Purchaser is not a United States person (as defined
\nby Rule 902(k) under the Securities Act), such Purchaser hereby represents that
\nit has satisfied itself as to the full observance of the laws of its
\njurisdiction in connection with any invitation to subscribe for the Securities
\nor any use of this Agreement, including (i) the legal requirements within its
\njurisdiction for the purchase of the Securities, (ii) any foreign exchange
\nrestrictions applicable to such purchase, (iii) any governmental or other
\nconsents that may need to be obtained and (iv) the income tax and other tax
\nconsequences, if any, that may be relevant to the purchase, holding, redemption,
\nsale or transfer of the Securities. Such Purchaser’s subscription and payment
\nfor, and his or her continued beneficial ownership of the Securities, will not
\nviolate any applicable securities or other laws of Purchaser’s jurisdiction.
\nSuch Purchaser also hereby represents that such Purchaser is not a “10-percent
\nshareholder” as defined in Section 871(h) of the Internal Revenue Code of 1986,
\nas amended.<\/p>\n6. Conditions of the Purchasers’ Obligations at
\nClosing<\/u>.<\/strong> The obligations of each Purchaser to the Company under
\nthis Agreement are subject to the fulfillment, on or before the Closing, of each
\nof the following conditions, unless otherwise waived:<\/p>\n(a) Representations and Warranties<\/u>.<\/strong>
\nThe representations and warranties of the Company contained in Section 4 shall
\nbe true on and as of the Closing with the same effect as though such
\nrepresentations and warranties had been made on and as of the date of the
\nClosing.<\/p>\n(b) Qualifications<\/u>.<\/strong> All
\nauthorizations, approvals or permits, if any, of any governmental authority or
\nregulatory body of the United States or of any state that are required in
\nconnection with the lawful issuance and sale of the Securities pursuant to this
\nAgreement shall be obtained and effective as of the Closing.<\/p>\n(c) Minimum Amount<\/u>. <\/strong>A minimum of
\n$500,000 aggregate principal amount of the Notes shall be purchased by the
\nPurchasers at the initial Closing under this Agreement.<\/p>\n7. Conditions of the Company’s Obligations at
\nClosing<\/u>.<\/strong> The obligations of the Company to each Purchaser under
\nthis Agreement are subject to the fulfillment, on or before the Closing, of each
\nof the following conditions, unless otherwise waived:<\/p>\n(a) Representations and Warranties<\/u>.<\/strong>
\nThe representations and warranties of each Purchaser contained in Section 5
\nshall be true on and as of the Closing with the same effect as though such
\nrepresentations and warranties had been made on and as of the Closing.<\/p>\n(b) Qualifications<\/u>.<\/strong> All
\nauthorizations, approvals or permits, if any, of any governmental authority or
\nregulatory body of the United States or of any state that are required in
\nconnection with the lawful issuance and sale of the Securities pursuant to this
\nAgreement shall be obtained and effective as of the Closing.<\/p>\n(c) Delivery of Form W-8 BEN or Form
\nW-9<\/u><\/strong>. Each Purchaser shall have completed and delivered to the
\nCompany a validly executed IRS Form W-8 BEN or IRS Form W-9, as applicable,
\nestablishing such Purchaser’s exemption from withholding tax.<\/p>\n8. Covenants of the Company<\/u><\/strong>.<\/p>\n(a) Negative Covenants<\/u><\/strong>. Until the earlier to occur of
\nthe conversion or repayment in full of the Notes, the Company shall not do any
\nof the following without the prior written consent of Purchasers holding a
\nmajority of the outstanding principal amount of the Notes, which consent will
\nnot be unreasonably withheld or delayed:<\/p>\n(i) Secured Indebtedness<\/u>.<\/strong> Create, incur, assume, or
\nbe liable for any secured Indebtedness which is senior in right of payment to
\nthe Notes other than Permitted Indebtedness or Permitted Senior Indebtedness.\n<\/p>\n(ii) Liens<\/u>.<\/strong> Create, incur, or allow any Lien on any
\nof its property, except for Permitted Liens.<\/p>\n(iii) Dividends and Distributions<\/u>.<\/strong> Pay any dividends
\nor make any distribution or payment other than dividends payable solely in the
\nCompany’s Common Stock or redeem, retire or purchase any capital stock except
\nfor repurchases of stock from former employees, consultants, or directors of
\nCompany under the terms of applicable repurchase agreements, provided that no
\nEvent of Default (as defined in the Notes) has occurred, is continuing or would
\nexist after giving effect to the repurchases.<\/p>\n(b) Affirmative Covenants.<\/strong><\/p>\n(i) Registration of Intellectual Property<\/u>.
\n<\/strong>The Company shall, within a period of thirty (30) days following the
\ninitial Closing, file with the U.S. Copyright Office (the “CO<\/u>“)
\nregistrations with respect to all material copyrights of the Company, provided
\nthat the legal, registration and other related costs and expenses associated
\nwith such registrations and filings do not exceed $2,000 in the aggregate. With
\nrespect to any registrations so filed, the Company shall also concurrently make
\nsuch filings as are required such that the Purchasers have a first priority
\nsecurity interest in such copyrights (subject to Permitted Liens created to
\nsecure Senior Permitted Indebtedness). At the request of the Purchasers holding
\na majority of the outstanding principal amount of the Notes, the Company shall
\nalso take commercially reasonable actions to register any additional copyrights
\ndeveloped or acquired hereafter with the CO.<\/p>\n(ii) Perfection of Security Interest<\/u>.<\/strong>
\nThe Company shall file any amendments to UCC-1 financing statements or filings
\nwith the CO and PTO, and shall make new filings, as are required in order to
\nperfect the Purchasers’ security interest in the Collateral (including
\nCollateral developed or acquired hereafter), including without limitation as
\nrequired upon the reorganization of the Company under the laws of a jurisdiction
\nother than the State of Delaware.<\/p>\n(iii) Preservation of Collateral<\/u>.<\/strong>
\nThe Company shall keep all of its inventory in good and marketable condition,
\nfree from material defects. Returns and allowances between the Company and its
\naccount debtors will follow the Company’s customary practices in the ordinary
\ncourse of business.<\/p>\n(iv) Additional Closings<\/u>.<\/strong> The Company
\nshall use reasonable efforts to sell the remaining amount of Notes authorized
\nfor sale hereunder ($810,000 less the principal amount of Notes sold in the
\nInitial Closing) within the time period provided by Section 1(b) hereof
\n(provided, however, that the Company shall not be required to sell Notes in any
\ntransaction that would not comply with applicable law).<\/p>\n(c) Certain Definitions<\/u><\/strong>. As used in
\nthis Agreement, the following capitalized terms have the following meanings:\n<\/p>\n(i) “Indebtedness<\/u>” shall mean indebtedness owed by the
\nCompany to banks, commercial finance lenders, insurance companies, leasing or
\nequipment financing institutions, lending institutions or any other parties,
\nwhich is for money borrowed or the deferred purchase price or leasing of
\nequipment, whether or not secured.<\/p>\n
(ii) “Lien<\/u>” shall mean, with respect to any asset or
\nproperty of the Company, any security interest, mortgage, pledge, lien, claim,
\ncharge or other encumbrance in, of, or on such property or the income therefrom,
\nincluding, without limitation, the interest of a vendor or lessor under a
\nconditional sale agreement, capital lease or other title retention agreement, or
\nany agreement to provide any of the foregoing, and the filing of any financing
\nstatement or similar instrument under the Uniform Commercial Code or comparable
\nlaw of any jurisdiction.<\/p>\n
(iii) “Permitted Indebtedness<\/u>” shall mean: (i)
\nIndebtedness to trade creditors incurred in the ordinary course of business;
\n(ii) Indebtedness secured by Permitted Liens; (v) Indebtedness of Company to any
\nof its subsidiaries; (iii) Indebtedness which is first applied to fully pay all
\namounts due under the Notes; and (iv) extensions, refinancings, modifications,
\namendments and restatements of any items of Permitted Indebtedness set forth
\nabove, provided that the principal amount thereof is not increased or the terms
\nthereof are not modified to impose more burdensome terms upon Company, as the
\ncase may be.<\/p>\n
(iv) “Permitted Senior Indebtedness<\/u>” shall mean Indebtedness secured
\nby the Permitted Liens described in subsections (iv), (v), (x) and (xii) of the
\ndefinition of Permitted Liens.<\/p>\n
(v) “Permitted Liens<\/u>” means (i) Liens for taxes not
\nyet delinquent or Liens for taxes being contested in good faith and by
\nappropriate proceedings for which adequate reserves have been established;
\n(ii) Liens in respect of property or assets imposed by law which were incurred
\nin the ordinary course of business, such as carriers’, warehousemen’s,
\nmaterialmen’s and mechanics’ Liens and other similar Liens arising in the
\nordinary course of business which are not delinquent or remain payable without
\npenalty or which are being contested in good faith and by appropriate
\nproceedings; (iii) Liens incurred or deposits made in the ordinary course of
\nbusiness in connection with workers’ compensation, unemployment insurance and
\nother types of social security, statutory obligations, contract bids, government
\ncontracts, performance and return of money bonds and other similar obligations,
\nincurred in the ordinary course of business, whether pursuant to statutory
\nrequirements, common law or consensual arrangements; (iv) Liens securing
\nobligations under a capital lease if such Liens do not extend to property other
\nthan the property leased under such capital lease; (v) Liens upon any equipment
\nor other property acquired or held by Company or any of its subsidiaries to
\nsecure the purchase price of such equipment or other property or Indebtedness
\nincurred solely for the purpose of financing the acquisition of such equipment
\nor other property, so long as such Lien extends only to the equipment or other
\nproperty financed, and any accessions, replacements, substitutions and proceeds
\n(including insurance proceeds) thereof or thereto; (vi) Liens in favor of
\ncustoms and revenue authorities arising as a matter of law to secure payments of
\ncustoms duties in connection with the importation of goods; (vii) Liens which
\nconstitute rights of setoff of a customary nature or banker’s liens, whether
\narising by law or by contract; (viii) Leases or subleases and licenses or
\nsublicenses granted in the ordinary course of Company’s business; (ix) Liens
\nsecuring Indebtedness which is first applied to fully pay all amounts due under
\nthe Notes; (x) Liens securing indebtedness of a Person (other than an existing
\nsubsidiary of the Company) existing at the time such Person becomes a subsidiary
\nof the Company or is merged with or into the Company or a subsidiary of the
\nCompany or Liens securing Indebtedness incurred in connection with an
\nacquisition, merger or consolidation; provided<\/u>, that such Liens were in
\nexistence prior to the date of such acquisition, merger or consolidation, were
\nnot incurred in anticipation thereof, and do not extend to any other assets;
\n(xi) Liens which are expressly subordinate to the Notes; and (xii) Liens upon
\nproperty or assets purchased or otherwise acquired for consideration after the
\ndate hereof that do not extend to any other property or assets except those
\npurchased or otherwise acquired; provided that, with respect to clauses (x)(but
\nonly if the primary purpose of such acquisition, merger or consolidation is
\ncapital raising) and (xii) above, the Company’s consolidated net tangible assets
\nare equal to or greater than 250% of the Company’s aggregate secured
\nindebtedness (including the Notes and the proposed secured indebtedness to be
\nsecured by such Liens).<\/p>\n
(vi) “Person” means any corporation, individual, limited
\nliability company, joint stock company, joint venture, partnership,
\nunincorporated association, governmental regulatory entity, country, state or
\npolitical subdivision thereof, trust, municipality or other entity.<\/p>\n
9. Covenant of the Holders<\/u><\/strong>.<\/p>\n(a) Further Assurances<\/u><\/strong>. At any time and from time to
\ntime, upon the written request of the Company and at the Company’s expense, the
\nHolders will promptly and duly authenticate and deliver such instruments and
\ndocuments and take such further action as the Company may reasonably request for
\nthe purpose of enabling the Company to incur Permitted Indebtedness and Senior
\nPermitted Indebtedness and otherwise preserving such rights under this Agreement
\nincluding, without limitation, filing any financing statements or amendments
\nthereto under the UCC as in effect with respect to Permitted Liens.<\/p>\n10. Registration Rights<\/u><\/strong>.<\/p>\n10.1 Definitions<\/u><\/strong>. As used in this Section 10:<\/p>\n(a) The terms “register<\/u>,” “registered<\/u>,” and
\n“registration<\/u>” refer to a registration effected by preparing and filing a
\nregistration statement in compliance with the Securities Act of 1933, as amended
\n(the “Securities Act<\/u>“), and the subsequent declaration or ordering of the
\neffectiveness of such registration statement;<\/p>\n
(b) The term “Registrable Securities<\/u>” means: (i) the shares of the
\nCompany’s Common Stock issued or issuable upon conversion of the Notes
\n(including Common Stock issued or issuable upon conversion of Preferred Stock
\nwhich is issued upon conversion of the Notes); and (ii) any other shares of
\nCommon Stock of the Purchaser issued as (or issuable upon the conversion or
\nexercise of any warrant, right or other security which is issued as) a dividend
\nor other distribution with respect to, or in exchange for or in replacement of,
\nthe Securities, excluding in all cases, however, any Registrable Securities sold
\nby a person in a transaction in which such person’s rights under this Agreement
\nand the Note are not assigned; provided<\/u>, however<\/u>, that Common
\nStock or other securities shall only be treated as Registrable Securities if and
\nso long as they have not been (A) sold to or through a broker or dealer or
\nunderwriter in a public distribution or a public securities transaction, or
\n(B) sold in a transaction exempt from the registration and prospectus delivery
\nrequirements of the Securities Act under Section 4(1) thereof so that all
\ntransfer restrictions, and restrictive legends with respect thereto, if any, are
\nremoved upon the consummation of such sale;<\/p>\n
(c) The number of shares of “Registrable Securities then outstanding<\/u>”
\nshall mean the number of shares of Common Stock outstanding which are, and the
\nnumber of shares of Common Stock issuable pursuant to the then exercisable or
\nconvertible securities which are, Registrable Securities;<\/p>\n
(d) The term “Holder<\/u>” means any holder of outstanding Registrable
\nSecurities who, subject to the limitations set forth in Section 10.7 below,
\nacquired such Registrable Securities in a transaction or series of transactions
\nnot involving any registered public offering; and<\/p>\n
(e) The term “Form S-3<\/u>” means such form under the Securities Act as in
\neffect on the date hereof or any registration form under the Securities Act
\nsubsequently adopted by the Securities and Exchange Commission (“SEC<\/u>“)
\nwhich permits inclusion or incorporation of substantial information by reference
\nto other documents filed by the Purchaser with the SEC.<\/p>\n
10.2 Company Registration<\/u>.<\/strong> If (but without any
\nobligation to do so) the Company proposes to register (including for this
\npurpose a registration effected by the Company for stockholders other than the
\nHolders) any of its stock under the Securities Act in connection with the public
\noffering of such securities solely for cash (other than a registration relating
\nsolely to the sale of securities to participants in a Company stock plan or a
\ntransaction covered by Rule 145 under the Securities Act, a registration in
\nwhich the only stock being registered is Common Stock issuable upon conversion
\nof debt securities which are also being registered), the Company shall, at such
\ntime, promptly give each Holder written notice of such registration. Upon the
\nwritten request of each Holder given within 20 days after mailing of such notice
\nby the Company in accordance with Section 11(e), the Company shall, subject to
\nthe provisions of Section 10.6, cause to be registered under the Securities Act
\nall of the Registrable Securities that each such Holder has requested to be
\nregistered.<\/p>\n10.3 Form S-3 Registration<\/u><\/strong>. In case
\nthe Company shall receive from any Holder or Holders of not less than fifty
\npercent (50%) of the Registrable Securities then outstanding a written request
\nor requests that the Company effect a registration on Form S-3 and any related
\nqualification or compliance with respect to all or a part of the Registrable
\nSecurities owned by such Holder or Holders, the Company will:<\/p>\n(a) promptly give written notice of the proposed registration, and any
\nrelated qualification or compliance, to all other Holders;<\/p>\n
(b) as soon as practicable, effect such registration and all such
\nqualifications and compliances as may be so requested and as would permit or
\nfacilitate the sale and distribution of all or such portion of such Holder’s or
\nHolders’ Registrable Securities as are specified in such request, together with
\nall or such portion of the Registrable Securities of any other Holder or Holders
\njoining in such request as are specified in a written request given within 15
\ndays after receipt of such written notice from the Company; provided, however,
\nthat the Company shall not be obligated to effect any such registration,
\nqualification or compliance, pursuant to this Section 10.3: (1) if Form S-3 is
\nnot available for such offering by the Holders; (2) if the Company shall furnish
\nto the Holders a certificate signed by the President of the Company stating that
\nin the good faith judgment of the Board of Directors of the Company, it would be
\nseriously detrimental to the Company and its shareholders for such Form S-3
\nRegistration to be effected at such time, in which event the Company shall have
\nthe right to defer the filing of the Form S-3 registration statement for a
\nperiod of not more than 90 days after receipt of the request of the Holder or
\nHolders under this Section 10.3; provided, however, that the Company shall not
\nutilize this right more than once in any twelve month period; (3) if the Company
\nhas, within the 12 month period preceding the date of such request, already
\neffected two registrations on Form S-3 for the Holders; or (4) in any particular
\njurisdiction in which the Company would be required to qualify to do business or
\nto execute a general consent to service of process in effecting such
\nregistration, qualification or compliance; and<\/p>\n
(c) Subject to the foregoing, the Company shall file a registration statement
\non Form S-3 covering the Registrable Securities and other securities so
\nrequested to be registered promptly after receipt of the request or requests of
\nthe Holders.<\/p>\n
10.4 Obligations of the Company<\/u><\/strong>.
\nWhenever required under this Section 10 to effect the registration of any
\nRegistrable Securities, the Company shall, as expeditiously as reasonably
\npossible:<\/p>\n(a) Prepare and file with the SEC a registration statement with respect to
\nsuch Registrable Securities and use its commercially reasonable efforts to cause
\nsuch registration statement to become effective, and, upon the request of the
\nHolders of a majority of the Registrable Securities registered thereunder, keep
\nsuch registration statement effective for up to 90 days;<\/p>\n
(b) Prepare and file with the SEC such amendments and supplements to such
\nregistration statement and the prospectus used in connection with such
\nregistration statement as may be necessary to comply with the provisions of the
\nAct with respect to the disposition of all securities covered by such
\nregistration statement;<\/p>\n
(c) Furnish to the Holders such numbers of copies of a prospectus, including
\na preliminary prospectus, in conformity with the requirements of the Act, and
\nsuch other documents as they may reasonably request in order to facilitate the
\ndisposition of Registrable Securities owned by them;<\/p>\n
(d) Cause all such Registrable Securities registered pursuant hereunder to be
\nlisted on each securities exchange on which similar securities issued by the
\nCompany are then listed.<\/p>\n
10.5 Furnish Information<\/u><\/strong>. It shall be a condition
\nprecedent to the obligations of the Company to take any action pursuant to this
\nSection 10 with respect to the Registrable Securities of any selling Holder that
\nsuch Holder shall furnish to the Company such information regarding itself, the
\nRegistrable Securities held by it, and the intended method of disposition of
\nsuch securities as shall be required to effect the registration of such Holder’s
\nRegistrable Securities.<\/p>\n10.6 Expenses of Registration<\/u>.<\/strong><\/p>\n(a) Company Registration<\/u>.<\/strong> All
\nexpenses other than underwriting discounts and commissions incurred in
\nconnection with registrations, filings or qualifications of Registrable
\nSecurities pursuant to Section 10.2 for each Holder (which right may be assigned
\nas provided in Section 10.10), including (without limitation) all registration,
\nfiling, and qualification fees, printers’ and accounting fees, fees and
\ndisbursements of counsel for the Company shall be borne by the Company. The
\nCompany shall not be required to pay the fees or expenses of separate counsel to
\nthe selling Holders.<\/p>\n(b) Registration on Form S-3<\/u>. <\/strong>All
\nexpenses incurred in connection with a registration requested pursuant to
\nSection 10.3, including (without limitation) all registration, filing,
\nqualification, printer and accounting fees shall be borne by the Company. The
\nCompany shall not be required to pay any underwriters’ or brokers’ fees,
\ndiscounts or commissions relating to the Registrable Securities, or the fees or
\nexpenses of separate counsel to the selling Holders.<\/p>\n10.7 Underwriting Requirements<\/u>.<\/strong> In connection with
\nany offering involving an underwriting of shares of the Company’s capital stock,
\nthe Company shall not be required under Section 10.2 to include any of the
\nHolders’ securities in such underwriting unless they accept the terms of the
\nunderwriting as agreed upon between the Company and the underwriters selected by
\nit (or by other persons entitled to select the underwriters), and then only in
\nsuch quantity as the underwriters determine in their sole discretion will not
\njeopardize the success of the offering by the Company. If the total amount of
\nsecurities, including Registrable Securities, requested by stockholders to be
\nincluded in such offering exceeds the amount of securities sold other than by
\nthe Company that the underwriters determine in their sole discretion is
\ncompatible with the success of the offering, then the Company shall be required
\nto include in the offering only that number of such securities, including
\nRegistrable Securities, which the underwriters determine in their sole
\ndiscretion will not jeopardize the success of the offering (the securities so
\nincluded to be apportioned pro rata among the selling stockholders according to
\nthe total amount of securities entitled to be included therein owned by each
\nselling stockholder or in such other proportions as shall mutually be agreed to
\nby such selling stockholders) but in no event shall the amount of securities of
\nthe selling Holders included in the offering be reduced below 20% of the total
\namount of securities included in such offering. For purposes of the preceding
\nparenthetical concerning apportionment, for any selling stockholder which is a
\nholder of Registrable Securities and which is a partnership or corporation, the
\npartners, retired partners and stockholders of such holder, or the estates and
\nfamily members of any such partners and retired partners and any trusts for the
\nbenefit of any of the foregoing persons shall be deemed to be a single
\n“selling stockholder<\/u>,” and any pro-rata reduction with respect to such
\n“selling stockholder” shall be based upon the aggregate amount of shares
\ncarrying registration rights owned by all entities and individuals included in
\nsuch “selling stockholder,” as defined in this sentence.<\/p>\n10.8 Indemnification<\/u><\/strong>. In the event any Registrable
\nSecurities are included in a registration statement under this Section 10:<\/p>\n(a) To the extent permitted by law, the Company will indemnify and hold
\nharmless each Holder and each person, if any, who controls such Holder within
\nthe meaning of the Securities Act or the Securities Exchange Act of 1934, as
\namended (the “Exchange Act<\/u>“), against any losses, claims, damages, or
\nliabilities (joint or several) to which any of the foregoing persons may become
\nsubject, under the Securities Act, the Exchange Act or other federal or state
\nlaw, insofar as such losses, claims, damages, or liabilities (or actions in
\nrespect thereof) arise out of or are based upon any of the following statements,
\nomissions or violations (collectively a “Violation<\/u>“): (i) any untrue
\nstatement or alleged untrue statement of a material fact contained in such
\nregistration statement, including any final prospectus contained therein or any
\namendments or supplements thereto, (ii) the omission or alleged omission to
\nstate therein a material fact required to be stated therein, or necessary to
\nmake the statements therein not misleading, or (iii) any violation or alleged
\nviolation by the Company of the Securities Act, the Exchange Act, any state
\nsecurities law or any rule or regulation promulgated under the Securities Act,
\nthe Exchange Act or any state securities law; and the Company will pay, as
\nincurred, any legal or other expenses reasonably incurred by any person intended
\nto be indemnified pursuant to this subsection 10.8(a), in connection with
\ninvestigating or defending any such loss, claim, damage, liability, or action;
\nprovided, however, that the indemnity agreement contained in this
\nsubsection 10.8(a) shall not apply to amounts paid in settlement of any such
\nloss, claim, damage, liability, or action if such settlement is effected without
\nthe consent of the Company, which consent shall not be unreasonably withheld,
\nnor shall the Company be liable in any such case for any such loss, claim,
\ndamage, liability, or action to the extent that it arises out of or is based
\nupon a Violation which occurs in reliance upon and in conformity with written
\ninformation furnished expressly for use in connection with such registration by
\nsuch Holder or controlling person;<\/p>\n
(b) To the extent permitted by law, each selling Holder will indemnify and
\nhold harmless the Company, each of its directors, each of its officers who has
\nsigned the registration statement, each person, if any, who controls the Company
\nwithin the meaning of the Securities Act or the Exchange Act, any other Holder
\nselling securities in such registration statement and any controlling person of
\nany such other Holder, against any losses, claims, damages, or liabilities
\n(joint or several) to which any of the foregoing persons may become subject,
\nunder the Securities Act, the Exchange Act or other federal or state law,
\ninsofar as such losses, claims, damages, or liabilities (or actions in respect
\nthereof) arise out of or are based upon any Violation, in each case to the
\nextent (and only to the extent) that such Violation occurs in reliance upon and
\nin conformity with written information furnished by such Holder expressly for
\nuse in connection with such registration; and each such Holder will pay, as
\nincurred, any legal or other expenses reasonably incurred by any person intended
\nto be indemnified pursuant to this subsection 10.8(b), in connection with
\ninvestigating or defending any such loss, claim, damage, liability, or action;
\nprovided, however, that the indemnity agreement contained in this
\nsubsection 10.8(b) shall not apply to amounts paid in settlement of any such
\nloss, claim, damage, liability or action if such settlement is effected without
\nthe consent of the Holder, which consent shall not be unreasonably withheld;
\nprovided that in no event shall any indemnity under this subsection 10.8(b)
\nexceed the gross proceeds from the offering received by such Holder;<\/p>\n
(c) Promptly after receipt by an indemnified party under this Section 10.8 of
\nnotice of the commencement of any action (including any governmental action),
\nsuch indemnified party will, if a claim in respect thereof is to be made against
\nany indemnifying party under this Section 10.8, deliver to the indemnifying
\nparty a written notice of the commencement thereof and the indemnifying party
\nshall have the right to participate in, and, to the extent the indemnifying
\nparty so desires, jointly with any other indemnifying party similarly noticed,
\nto assume the defense thereof with counsel mutually satisfactory to the parties;
\nprovided, however, that an indemnified party shall have the right to retain its
\nown counsel, with the fees and expenses to be paid by the indemnifying party, if
\nrepresentation of such indemnified party by the counsel retained by the
\nindemnifying party would be inappropriate due to actual or potential differing
\ninterests between such indemnified party and any other party represented by such
\ncounsel in such proceeding. The failure to deliver written notice to the
\nindemnifying party within a reasonable time of the commencement of any such
\naction, if prejudicial to its ability to defend such action, shall relieve such
\nindemnifying party of any liability to the indemnified party under this
\nSection 10.8, but the omission so to deliver written notice to the indemnifying
\nparty will not relieve it of any liability that it may have to any indemnified
\nparty otherwise than under this Section 10.8;<\/p>\n
(d) If the indemnification provided in this Section 10.8 is held by a court
\nof competent jurisdiction to be unavailable to an indemnified party with respect
\nto any loss, liability, claim, damage or expense referred to therein, then the
\nindemnifying party, in lieu of indemnifying such indemnified party hereunder,
\nshall contribute to the amount paid or payable by such indemnified party as a
\nresult of such loss, liability, claim, damage or expense in such proportion as
\nis appropriate to reflect the relative fault of the indemnifying party on the
\none hand and of the indemnified party on the other in connection with the
\nstatements or omissions that resulted in such loss, liability, claim, damage or
\nexpense as well as any other relevant equitable considerations. The relative
\nfault of the indemnifying party and of the indemnified party shall be determined
\nby reference to, among other things, whether the untrue or alleged untrue
\nstatement of a material fact or the omission to state a material fact relates to
\ninformation supplied by the indemnifying party or by the indemnified party and
\nthe parties’ relative intent, knowledge, access to information, and opportunity
\nto correct or prevent such statement or omission; and<\/p>\n
(e) The obligations of the Company and Holders under this Section 10.8 shall
\nsurvive the completion of any offering of Registrable Securities in a
\nregistration statement under this Section 10, and otherwise.<\/p>\n
10.9 Reports Under Securities Exchange Act of 1934<\/u><\/strong>.
\nWith a view to making available to the Holders the benefits of Rule 144
\npromulgated under the Securities Act (“Rule 144<\/u>“) and any other rule or
\nregulation of the SEC that may at any time permit a Holder to sell securities of
\nthe Company to the public without registration, the Company agrees to use its
\nbest efforts to:<\/p>\n(a) make and keep public information available, as those terms are understood
\nand defined in Rule 144, at all times;<\/p>\n
(b) file with the SEC in a timely manner all reports and other documents
\nrequired of the Company under the Securities Act and the Exchange Act; and<\/p>\n
(c) furnish to any Holder, so long as the Holder owns any Registrable
\nSecurities, forthwith upon request (i) a written statement by the Company that
\nit has complied with the reporting requirements of Rule 144, the Securities Act
\nand the Exchange Act, (ii) a copy of the most recent annual or quarterly report
\nof the Company and such other reports and documents so filed by the Company, and
\n(iii) such other information as may be reasonably requested in availing any
\nHolder of any rule or regulation of the SEC which permits the selling of any
\nsuch securities without registration.<\/p>\n
10.10 Assignment of Registration Rights<\/u><\/strong>. The rights
\nto cause the Company to register Registrable Securities pursuant to this
\nSection 10 may only be assigned by a Holder to a transferee or assignee of all
\nof such Holder’s interest in Holder’s Note, and shall be subject to the
\nrestrictions on transfers contained in such Note. Such assignment shall be
\neffective only if immediately following such transfer the further disposition of
\nsuch securities by the transferee or assignee is restricted under the Securities
\nAct.<\/p>\n10.11 Termination of Registration
\nRights<\/u><\/strong>. The rights granted under this Section 10 shall terminate
\nupon the earlier of (a) five (5) years following the date of this Agreement, or
\n(b) with respect to any Holder, at such time as such Holder may sell all of such
\nHolder’s Registrable Securities in any one three month period pursuant to
\nRule 144 or such successor rule as may be adopted.<\/p>\n11. Miscellaneous<\/u>.<\/strong><\/p>\n(a) Successors and Assigns<\/u>.<\/strong> The terms
\nand conditions of this Agreement shall inure to the benefit of and be binding
\nupon the respective successors and assigns of the parties. Nothing in this
\nAgreement, express or implied, is intended to confer upon any party other than
\nthe parties hereto or their respective successors and assigns any rights,
\nremedies, obligations, or liabilities under or by reason of this Agreement,
\nexcept as expressly provided in this Agreement.<\/p>\n(b) Governing Law<\/u>.<\/strong> This Agreement and
\nall acts and transactions pursuant hereto and the rights and obligations of the
\nparties hereto shall be governed, construed and interpreted in accordance with
\nthe laws of the State of California, without giving effect to principles of
\nconflicts of law.<\/p>\n(c) Counterparts<\/u>.<\/strong> This Agreement may
\nbe executed in two or more counterparts, each of which shall be deemed an
\noriginal and all of which together shall constitute one instrument.<\/p>\n(d) Titles and Subtitles<\/u>.<\/strong> The titles
\nand subtitles used in this Agreement are used for convenience only and are not
\nto be considered in construing or interpreting this Agreement.<\/p>\n(e) Notices<\/u>.<\/strong> Any notice required or
\npermitted by this Agreement shall be in writing and shall be deemed sufficient
\nupon receipt, when delivered personally or by courier, overnight delivery
\nservice or confirmed facsimile, or 48 hours after being deposited in the U.S.
\nmail as certified or registered mail with postage prepaid, if such notice is
\naddressed to the party to be notified at such party’s address or facsimile
\nnumber as set forth below or as subsequently modified by written notice.<\/p>\n(f) Finder’s Fee<\/u>.<\/strong> Each party
\nrepresents that it neither is nor will be obligated for any finder’s fee or
\ncommission in connection with this transaction. Each Purchaser agrees to
\nindemnify and to hold harmless the Company from any liability for any commission
\nor compensation in the nature of a finder’s fee (and the costs and expenses of
\ndefending against such liability or asserted liability) for which each Purchaser
\nor any of its officers, employees, or representatives is responsible. The
\nCompany agrees to indemnify and hold harmless each Purchaser from any liability
\nfor any commission or compensation in the nature of a finder’s fee (and the
\ncosts and expenses of defending against such liability or asserted liability)
\nfor which the Company or any of its officers, employees or representatives
\nis responsible.<\/p>\n(g) Amendments and Waivers<\/u>.<\/strong> Any term
\nof this Agreement may only be amended or waived with the written consent of the
\nCompany and the holders of at least a majority of the outstanding principal
\namount of the Notes (provided that amendment of Section 10 hereof shall instead
\nrequire the written consent of the holders of at least of majority of the
\nRegistrable Securities then outstanding). Any amendment or waiver effected in
\naccordance with this Section 11(g) shall be binding upon each Purchaser and each
\ntransferee of the Securities, each future holder of all such Securities, and the
\nCompany.<\/p>\n(h) Severability<\/u>.<\/strong> If one or more
\nprovisions of this Agreement are held to be <\/u>unenforceable under
\napplicable law, the parties agree to renegotiate such provision in good faith,
\nin order to maintain the economic position enjoyed by each party as close as
\npossible to that under the provision rendered unenforceable. In the event that
\nthe parties cannot reach a mutually agreeable and enforceable replacement for
\nsuch provision, then (i) such provision shall be excluded from this Agreement,
\n(ii) the balance of the Agreement shall be interpreted as if such provision were
\nso excluded and (iii) the balance of the Agreement shall be enforceable in
\naccordance with its terms.<\/p>\n(i) Entire Agreement<\/u>.<\/strong> This Agreement,
\nand the documents referred to herein constitute the entire agreement between the
\nparties hereto pertaining to the subject matter hereof, and any and all other
\nwritten or oral agreements existing between the parties hereto are expressly
\ncanceled.<\/p>\n(j) Exculpation Among Purchasers<\/u>.<\/strong>
\nEach Purchaser acknowledges that it is not relying upon any person, firm or
\ncorporation, other than the Company and its officers and directors, in making
\nits investment or decision to invest in the Company. Each Purchaser agrees that
\nno Purchaser nor the respective controlling persons, officers, directors,
\npartners, agents, or employees of any Purchaser shall be liable for any action
\nheretofore or hereafter taken or omitted to be taken by any of them in
\nconnection with the Securities.<\/p>\n(k) Advice of Legal Counsel<\/u><\/strong>. Each
\nparty acknowledges and represents that, in executing this Agreement, it has had
\nthe opportunity to seek advice as to its legal rights from legal counsel and
\nthat the person signing on its behalf has read and understood all of the terms
\nand provisions of this Agreement. This Agreement shall not be construed against
\nany party by reason of the drafting or preparation thereof.<\/p>\n(l) Fees and Expenses<\/u>.<\/strong> The Company
\nshall pay promptly after the Closing the fees and expenses of Fenwick & West, the counsel for the Purchasers, incurred in connection with performing due
\ndiligence with respect to this Agreement, the documents referred to herein and
\nthe transactions contemplated hereby and thereby, provided such fees and
\nexpenses do not exceed, in the aggregate, $15,000.<\/p>\n(m) Corporate Securities Law<\/u>. <\/strong>THE
\nSALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN
\nQUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND
\nTHE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
\nCONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE
\nOF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105
\nOF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
\nARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE
\nIS SO EXEMPT.<\/p>\n[Signature Pages Follow]<\/p>\n
The parties have executed this Secured Convertible Note
\nPurchase Agreement as of the date first written above.<\/p>\n
COMPANY:<\/p>\n
ACCRUE SOFTWARE, INC.<\/p>\n<\/p>\n
By: \/s\/ Jonathan D. Becher<\/p>\n
President and CEO<\/p>\n
Name: Jonathan D. Becher<\/p>\n
Address: 48634 Milmont Drive<\/p>\n
Fremont, CA 94538-7353<\/p>\n
Facsimile Number: (510) 580-4501<\/p>\n<\/p>\n
PURCHASERS:<\/p>\n<\/p>\n
RS Orphan Fund, LP<\/p>\n
By: \/s\/ Paul H. Stephens<\/p>\n
Name: Paul H. Stephens<\/p>\n<\/p>\n
Title: Investment Advisory<\/p>\n
General Partner<\/p>\n
Address: 388 Market St.<\/p>\n
San Francisco, CA 94111<\/p>\n
Facsimile Number:<\/p>\n<\/p>\n
PURCHASERS:<\/p>\n
RS Orphan Offshore Fund, LP<\/p>\n
By: \/s\/ Paul H. Stephens<\/p>\n
Name: Paul H. Stephens<\/p>\n<\/p>\n
Title: Investment Advisory<\/p>\n
General Partner<\/p>\n
Address: 388 Market St.<\/p>\n
San Francisco, CA 94111<\/p>\n
Facsimile Number:<\/p>\n<\/p>\n
Sterling Payot Capital, LP<\/p>\n
By: \/s\/ Robert M. Smelick<\/p>\n
Name: Robert M. Smelick<\/p>\n<\/p>\n
Title: General Partner<\/p>\n
Address: 65 Cloudview Rd.<\/p>\n
Sausalito, CA 94956<\/p>\n
Facsimile Number:<\/p>\n<\/p>\n
Robert M. Smelick<\/p>\n
\/s\/ Robert M. Smelick<\/p>\n
Robert M. Smelick<\/p>\n<\/p>\n
Address: 65 Cloudview Rd.<\/p>\n
Sausalito, CA 94956<\/p>\n
Facsimile Number:<\/p>\n
PURCHASERS:<\/p>\n<\/p>\n
ELIZABETH W. KORRELL<\/p>\n
\/s\/ Elizabeth W. Korrell<\/p>\n
Elizabeth W. Korrell<\/p>\n<\/p>\n
Address: 2607 Ninth Avenue West<\/p>\n
Seattle, WA 98119<\/p>\n
Facsimile Number: 206-266-1860<\/p>\n
Exhibit A – Schedule of Purchasers<\/p>\n
Exhibit B – Form of Promissory Note<\/p>\n
Exhibit C – Purchaser Withholding Exemptions<\/p>\n
<\/p>\n
\n\n <\/u><\/p>\n
EXHIBIT A<\/p>\n
<\/u><\/p>\n
SCHEDULE OF PURCHASERS<\/p>\n
FIRST CLOSING<\/p>\n
\n\n\n| \n
\nPurchaser Name and Address<\/strong><\/p>\n<\/td>\n\n Type of<\/p>\n Consideration<\/strong><\/p>\n<\/td>\n| \n Original Principal Amount of Note<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n RS Orphan Fund, LP<\/p>\n 388 Market Street<\/p>\n San Francisco, CA 94111<\/p>\n RS Orphan Offshore Fund, LP<\/p>\n 388 Market Street<\/p>\n San Francisco, CA 94111<\/p>\n<\/td>\n | \n Cash<\/p>\n Cash<\/p>\n<\/td>\n | \n $79,000<\/p>\n $21,000<\/p>\n<\/p>\n<\/td>\n<\/tr>\n | \n| \n Sterling Payot Capital, LP<\/p>\n 65 Cloudview Rd.<\/p>\n Sausalito, CA 94956<\/p>\n<\/td>\n | \n Forgiveness of indebtedness<\/p>\n<\/td>\n | \n $335,573.57<\/p>\n<\/td>\n<\/tr>\n | \n| \n Robert M. Smelick<\/p>\n 65 Cloudview Rd.<\/p>\n Sausalito, CA 94956<\/p>\n<\/td>\n | \n Forgiveness of indebtedness<\/p>\n<\/td>\n | \n $60,349.72<\/p>\n<\/td>\n<\/tr>\n | \n| \n Elizabeth W. Korrell<\/p>\n 2607 Ninth Avenue West<\/p>\n Seattle WA 98119<\/p>\n<\/td>\n | \n Cash<\/p>\n<\/td>\n | \n $5,000.00<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n
\n\n <\/u><\/p>\n EXHIBIT B<\/p>\n <\/u><\/p>\n \n \n FORM OF SECURED CONVERTIBLE PROMISSORY NOTE<\/p>\n <\/p>\n
\n\n <\/u><\/p>\n EXHIBIT C<\/p>\n <\/u><\/p>\n \n PURCHASER WITHHOLDING EXEMPTIONS<\/p>\n <\/p>\n
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