{"id":43447,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-and-security-agreement-onsale-inc-and-john-dean-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-and-security-agreement-onsale-inc-and-john-dean-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/loan-and-security-agreement-onsale-inc-and-john-dean-and.html","title":{"rendered":"Loan and Security Agreement &#8211; Onsale Inc. and John Dean and Tracey Orr-Dean"},"content":{"rendered":"<pre>                           LOAN AND SECURITY AGREEMENT          This Loan and Security Agreement (as from time to time amended,supplemented, restated, or otherwise modified, \"Agreement\") is entered intoeffective May 15, 1999 (\"Effective Date\") by and among Onsale, Inc., a Delawarecorporation (\"Lender\"), on the one hand, and, on the other hand, John Dean, anindividual and Tracey Orr-Dean, his spouse (collectively, \"Borrower\").  ThisAgreement, the Note (defined in Section 1.2), the Second Mortgage (defined in                                -----------                                  Section 1.3), the Pledge Agreement (defined in Section 1.4) and any other-----------                                    -----------               documents entered into pursuant to this Agreement or in connection with thisLoan (defined in Section 1.1) are hereinafter sometimes collectively referred to                 -----------                                                    as the \"Loan Documents.\"          WHEREAS, Lender desires to loan a certain sum to Borrower and Borrowerwishes to borrow a certain sum from Lender in order that Borrower may purchase aprimary residence in northern California;          NOW, THEREFORE, in consideration of the mutual promises,representations, warranties and covenants set forth in this Agreement, Lenderand Borrower hereby agree as follows:     1.   AMOUNT AND TERMS OF LOAN.          ------------------------           1.1  Loan.  Subject to the terms and conditions of this Agreement, and               ----                                                             in reliance on the representations, warranties and covenants of Borrower in thisAgreement, Lender shall loan Borrower the principal amount of Eighty-EightThousand Dollars ($88,000) (\"Loan\") for the purchase of a primary residence inNorthern California (\"Northern California Residence\").          1.2  Note; Interest.  Borrower's indebtedness to Lender under the Loan               --------------                                                   Documents will be evidenced by a Secured Promissory Note executed by Borrowersubstantially in the form attached as Exhibit A (the \"Note\").  The Note will                                      ---------                             provide that interest on the unpaid principal of this Loan will accrue at a rateequal to four and eighty-one hundredths percent (4.81%) per annum. Accruedinterest is payable on the date that is three months after the date of the Noteand every three months thereafter until this Loan has been repaid in full.Interest will continue to accrue until the date on which all amounts owing underthe Loan Documents have been repaid in full.          1.3  Security.  Borrower's indebtedness to Lender under the Loan               --------                                                   Documents will be secured by a second mortgage in such form as is customarilyutilized in the Province of British Columbia, Canada (the \"Second Mortgage\") onproperty owned by Borrower and located at 4396 West 11\/th\/ Avenue, Vancouver,B.C.  V6R 2M1 (\"Property\").  The Second Mortgage will be executed by Borrower infavor of Lender.                                       1           1.4  Additional Security.  Borrower's indebtedness to Lender under the               -------------------                                              Loan Documents will also be secured by Borrower's pledge of certain shares ofLender equity securities (the \"Pledged Shares\") in accordance with the terms ofa pledge agreement, dated May 15, 1999, substantially in the form attached asExhibit B (the \"Pledge Agreement\"). Borrower shall immediately transfer to---------Lender upon issuance all Lender equity securities that Borrower acquirespursuant to: (a) Borrower's exercise of options to purchase Lender equitysecurities under Lender's 1995 Equity Incentive Plan or any subsequent orsimilar stock option plan of Lender, or (b) any employee stock purchaseagreement or other similar plan of Lender.          1.5  Maturity of Loan.  The unpaid principal amount of this Loan and               ----------------                                               all unpaid interest accrued thereon, will be immediately due and payable toLender in full on the date (the \"Maturity Date\") that is the earlier to occurof: (a) twelve (12) months after the date of the Note, or (b) the date on whichthe unpaid principal amount and interest due under this Loan becomes due andpayable in full under Section 5.1. The Lender agrees to release the Borrower                      -----------from any and all obligations in the Loan Documents upon full payment of the Loanand Interest.          1.6  Prepayment.  Borrower may prepay the unpaid principal and               ----------                                               interest due under this Loan at any time, without penalty, in whole or in partin amounts of at least Ten Thousand Dollars ($10,000).  Each prepayment will beapplied as follows: (a) first to the payment of accrued interest, and (b)second, to the extent that the amount of such prepayment exceeds the amount ofall such accrued interest, to the payment of principal on this Loan.  Until thisLoan is paid in full, Borrower shall immediately apply: (a) if no default eventhas occurred under the Loan Documents and is continuing, fifty percent (50%) ofthe net before tax proceeds from any sale by Borrower of the Pledged Shares, or(b) if a default event has occurred and is continuing, one hundred percent(100%) of the net before tax proceeds from any sale by Borrower of the PledgedShares, to pay down this Loan in accordance  with this Agreement.          1.7  At Will Employment.  Borrower is an \"at will\" employee of Lender,               ------------------                                               and nothing in this Agreement or any exhibit shall be construed as a promise ofcontinued employment.      2.   REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents          ------------------------------------------                  and warrants to Lender that:          2.1  Use of Loan Proceeds.  Borrower will apply the entire Loan               --------------------                                      proceeds towards the purchase of the Northern California Residence no later thanJune 1, 1999.          2.2  Nature of Purchase.  Borrower's purchase of the Northern               ------------------                                      California Residence will be an arm's length transaction.          2.3  Title to Property.  The Property is free and clear of all               -----------------                                        mortgages, deeds of trust, liens, encumbrances and security interests, exceptfor: (a) if Borrower has a first lender for the Property, the mortgage filed bysuch first lender; (b) statutory liens for the payment of current taxes that arenot yet delinquent; and (c) subject to approval by Lender, encumbrancesidentified in Exhibit C attached hereto.              ---------                                                        2           2.4  Balloon Payment.  Borrower acknowledges that the unpaid principal               ---------------                                                  amount of this Loan and all unpaid interest accrued thereon will be immediatelydue and payable to Lender in full as one balloon payment on the Maturity Date.     3.   COVENANTS OF BORROWER.          ---------------------           3.1  Insurance Covering Collateral.  Borrower shall maintain all risk               -----------------------------                                   property damage insurance policies covering the Property in an amount at leastequal to the value of the dwelling on the Property.          3.2  Further Assurances.  In addition to the obligations and documents               ------------------                                               that this Agreement expressly requires Borrower to execute, deliver and perform,Borrower will execute, deliver and perform any and all further acts or documentswhich Lender may reasonably require in order to carry out the purposes of thisAgreement or any of the other Loan Documents.      4.   CONDITIONS PRECEDENT TO OBLIGATIONS OF LENDER. The obligation of          ---------------------------------------------                   Lender to make this Loan is subject to the satisfaction (or written waiver byLender) of each and all of the following conditions precedent:          4.1  Representations True.  All representations and warranties of               --------------------                                        Borrower contained in this Agreement and in all other Loan Documents will betrue, correct and complete in all respects.          4.2  Note, Second Deed of Trust and Stock Pledge Agreement.  Lender               -----------------------------------------------------         will have received from Borrower the Note, the Second Deed of Trust and theStock Pledge Agreement, each duly executed by Borrower.          4.3  Loan Effective Date.  The Effective Date of this Loan must be               -------------------                                          earlier than May 31, 1999.     5.   DEFAULT BY BORROWER.          -------------------           5.1  Acceleration.  The unpaid principal and interest due under this               ------------                                                   Loan will become immediately due and payable, without the need for any furtheraction on the part of Lender or any other holder of the Note: (a) uponBorrower's sale, gift, assignment or other transfer of the Property, except fortransfers which, by law, cannot be restricted by a due-on-sale clause, (b) uponBorrower's sale, gift, assignment or other transfer of the Northern CaliforniaResidence, except for transfers which, by law, cannot be restricted by a due-on-sale clause, (c) upon termination of Borrower's employment with Lender for anyreason other than termination without cause by Lender or (d) upon Borrower'sfailure to apply the appropriate proceeds of any sale of Pledged Shares to paydown this Loan in accordance with Section 1.6.  In the event that Lender                                  -----------                           terminates Borrower's employment with Lender without cause, the unpaid principaland interest due under this Loan will become immediately due and payable,without the need for any further action on the part of Lender or any otherholder of the Note, on the date that is one hundred eighty (180) days after thedate of termination of Borrower's employment with Lender.  In any case, thisLoan shall become due and payable in full no later than twelve (12) months afterthe date of the Note.                                       3           5.2  Default.  Borrower will be deemed to be in default of this Loan               -------                                                        if: (a) Borrower fails to pay Lender (or, in the event another party holds theNote, such holder) the full amount of unpaid principal and interest due underthis Loan on or before the Maturity Date, and (b) Borrower does not cure thisfailure to pay within five (5) calendar days after Lender gives Borrower writtennotice of such failure to pay.          5.3  Remedies Upon Default.  Upon Borrower's default of this Loan,               ---------------------                                        Lender may pursue its rights under the Note, the Second Mortgage and the StockPledge Agreement.  The rights and remedies of Lender herein provided will becumulative and not exclusive of any other rights or remedies provided by law orotherwise.     6.   CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.          6.1  Choice of Law and Venue.               THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT), THECONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTSOF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDEROR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNEDBY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUTREGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE VALIDITYOR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR ANY REMEDIES HEREUNDER, INRESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTIONOTHER THAN THE STATE OF CALIFORNIA. THE PARTIES AGREE THAT ALL ACTIONS ORPROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOANDOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTSLOCATED IN THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA OR, AT THE SOLE OPTIONOF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLEPROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER INCONTROVERSY. EACH OF BORROWER AND LENDER WAIVES, TO THE EXTENT PERMITTED UNDERAPPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NONCONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT INACCORDANCE WITH THIS SECTION 6.                     ---------           6.2  Jury Trial Waiver.               BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO AJURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OFTHE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDINGCONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER                                       4 COMMON LAW OR STATUTORY CLAIMS. EACH OF BORROWER AND LENDER REPRESENTS THAT ITHAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURYTRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OFLITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO ATRIAL BY THE COURT.     7.   MISCELLANEOUS.          -------------           7.1  Entire Agreement.  The Loan Documents constitute the entire               ----------------                                           agreement and understanding among the parties with respect to the subject matterthereof and supersede any prior understandings or agreements of the parties withrespect to such subject matter.          7.2  Successors and Assigns.  The terms and conditions of this               ----------------------                                   Agreement will inure to the benefit of and be binding upon the respectivesuccessors and assigns of the parties, including any subsequent holders of theNote; provided, however, that Borrower may not assign or delegate any of its      --------  -------                                                     rights or obligations hereunder or under any other Loan Document or any interestherein or therein without Lender's prior written consent.          7.3  No Third Party Beneficiaries.   Nothing in this Agreement,               ----------------------------                              express or implied, is intended to confer upon any third party any rights,remedies, obligations, or liabilities under or by reason of this Agreement,except as expressly provided in this Agreement.          7.4  Construction.  This Agreement and its exhibits are the result of               ------------                                                    negotiations between the parties and have been reviewed by each party hereto.Accordingly, this Agreement will be deemed to be the product of the partieshereto and no ambiguity will be construed in favor of or against any party.          7.5  Modification; Waiver.  This Agreement may be modified or amended               --------------------                                            only by a writing signed by both parties hereto.  No waiver or consent withrespect to this Agreement will be binding unless it is set forth in writing andsigned by the party against whom such waiver is asserted.  No course of dealingbetween Borrower and Lender will operate as a waiver or modification of anyparty's rights under this Agreement or any other Loan Document.  No delay orfailure on the part of either party in exercising any right or remedy under thisAgreement or any other Loan Document will operate as a waiver of such right orany other right.  A waiver given on one occasion will not be construed as a barto, or as a waiver of, any right or remedy on any future occasion.          7.6  Severability.  The invalidity or unenforceability of any term or               ------------                                                    provision of this Agreement will not affect the validity or enforceability ofany other term or provision.          7.7  Attorneys' Fees.  If either party hereto commences or maintains               ---------------                                                any action at law or in equity (including counterclaims or cross-complaints)against the other party hereto by reason of the breach or default or claimedbreach or default of any term or provision of this Agreement or any other LoanDocument, then the prevailing party in said action will be entitled to recoverits reasonable attorneys' fees and court costs incurred therein.  This provisiondoes not limit Lender's ability to recover additional expenses under the Note.                                       5           7.8  Counterparts.  This Agreement may be executed in one or two               ------------                                               counterparts, each of which will be deemed an original, but together willconstitute one and the same instrument.          7.9  Section Titles.  The Section titles contained in this Agreement               --------------                                                 are and will be without substantive meaning or content of any kind and are notpart of this Agreement.          IN WITNESS WHEREOF, the parties have duly executed and delivered thisAgreement as of the Effective Date.BORROWER:                               LENDER:                                        OnSale, Inc.\/s\/ John Dean              *            By: \/s\/ JOHN E. LABBETT------------------------------             ------------------------------------John Dean, an individual                   John E. Labbett, Senior Vice                                            President and Chief Financial Officer\/s\/ Tracey Orr-Dean        *------------------------------Tracey Orr-Dean, an individual* Signed without legal counsel.                                       6                                    EXHIBIT A                                   ---------                            SECURED PROMISSORY NOTE                            -----------------------                                                          Menlo Park, California$88,000.00                                                          May 15, 1999           For value received, John Dean, an individual, and Tracey Orr-Dean, hisspouse (collectively, \"Borrower\") hereby promise to pay to the order of OnSale,Inc., a Delaware corporation (the \"Company\") on or before August 15, 2000, atthe Company's principal place of business at 1350 Willow Road #202, Menlo Park,CA 94025, or at such other place as the Company may direct, the principal sum ofEighty-Eight Thousand Dollars ($88,000), together with interest at the rate offour and eighty-one hundredths percent (4.81%), provided, however, that the rate                                                --------  -------               at which interest will accrue on unpaid principal under this secured promissorynote (as may be amended, restated, supplemented, or otherwise modified from timeto time, this \"Note\") will not exceed the highest rate permitted by applicablelaw.  Accrued interest is payable on the date that is three months after thedate of this Note and every three months thereafter until this Note has beenrepaid in full.  Interest will continue to accrue until the date on which allamounts owing on this Note have been repaid in full.          This Note is issued pursuant to and governed by the terms of thatcertain Loan and Security Agreement, dated May 15, 1999, between the Company andBorrower (the \"Loan Agreement\").  Terms not defined herein shall have themeanings assigned to them in the Loan Agreement.          1.   Security.  Payment of this Note is secured by: (a) the Second               --------                                                     Mortgage on the Property, and (b) Borrower's pledge of the Pledged Shares inaccordance with the terms of the Pledge Agreement.          2.   Acceleration.  The unpaid principal and interest due under this               ------------                                                   Note will become immediately due and payable in accordance with the terms of theLoan Agreement. In any case, this Note shall become due and payable in full nolater than twelve (12) months after the date of this Note.          3.   Default.  Borrower will be deemed to be in default under this               -------                                                      Note as provided in the Loan Agreement.          4.   Prepayment. Borrower may prepay the unpaid principal and interest               ----------                                                       due as provided in the Loan Agreement.          5.   Assignment.  This Note is freely transferable and assignable by               ----------                                                     the Company.  Any reference to the Company herein will be deemed to refer to anysubsequent transferee of this Note at such time as such transferee holds thisNote.                                       1           6.   CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.               6.1  Choice of Law and Venue.               THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT), THECONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTSOF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDEROR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNEDBY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUTREGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE VALIDITYOR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR ANY REMEDIES HEREUNDER, INRESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTIONOTHER THAN THE STATE OF CALIFORNIA. THE PARTIES AGREE THAT ALL ACTIONS ORPROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOANDOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTSLOCATED IN THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA OR, AT THE SOLE OPTIONOF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLEPROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER INCONTROVERSY. EACH OF BORROWER AND LENDER WAIVES, TO THE EXTENT PERMITTED UNDERAPPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NONCONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT INACCORDANCE WITH THIS SECTION 6.                     ---------                6.2  Jury Trial Waiver.               BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO AJURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OFTHE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDINGCONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW ORSTATUTORY CLAIMS. EACH OF BORROWER AND LENDER REPRESENTS THAT IT HAS REVIEWEDTHIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTSFOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OFTHIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.                                       2           7.   Waivers.  Borrower hereby waives presentment, notice of non-               -------                                                    payment, notice of dishonor, protest, demand and diligence.          IN WITNESS WHEREOF, Borrower has executed this Note as of the date andyear first above written.                                             BORROWER:                                              \/s\/ JOHN DEAN                                             -------------------------                                              John Dean                                              \/s\/ TRACEY ORR-DEAN                                             -------------------------                                              Tracey Orr-DeanACCEPTED AND ACKNOWLEDGED:THE COMPANYOnSale, Inc.By:   \/s\/ JOHN E. LABBETT     ----------------------------------     John E. Labbett, Senior Vice     President and Chief Financial      Officer                                       3                                    EXHIBIT B                                   ---------                               PLEDGE AGREEMENT     This Pledge Agreement as the same may be amended, modified or supplementedfrom time to time (\"Pledge Agreement\") dated as of May 15, 1999, is made byand between, on the one hand, John Dean, an individual, and Tracy Orr-Dean, hisspouse (collectively referred to hereinafter as \"Pledgor\"), and, on the otherhand, Onsale, Inc., a Delaware corporation (\"Pledgee\").                                R E C I T A L S                                - - - - - - - -                                             A.   Pursuant to that certain Loan and Security Agreement dated as of May15, 1999 (as the same may from time to time be amended, modified orsupplemented, the \"Loan Agreement\"), by and between Pledgor and Pledgee, Pledgeehas agreed to make certain advances of money and to extend certain financialaccommodations to Pledgor in the amounts and manner set forth in the LoanAgreement (collectively, the \"Loan\").     B.   Pledgee is willing to make the Loan to Pledgor, but only upon thecondition, among others, that Pledgor shall have executed this Pledge Agreementand delivered same to Pledgee and shall have delivered to Pledgee the PledgedCollateral (each as defined below), in order to secure the obligations ofPledgor under the Loan Documents.                                   Agreement          Now, Therefore, in consideration of the foregoing recitals and forother good and valuable consideration, the receipt and adequacy of which arehereby acknowledged, Pledgor and Pledgee hereby agree as follows:     Section 1.  Definitions. All capitalized terms used herein withoutdefinition shall have the meanings ascribed to them in the Loan Agreement.          \"Pledged Collateral\" shall have the meaning set forth in Section 2.          \"Obligations\" mean all advances, debts, liabilities, obligations,covenants and duties arising under any Loan Document owing by the Pledgor to thePledgee whether direct or indirect (including those acquired by assignment),absolute or contingent, due or to become due, now existing or hereafter arising.     Section 2.  Pledge. As security for the full, prompt and complete paymentand performance when due (whether by stated maturity, by acceleration orotherwise) of the Obligations, together with, without limitation, the promptpayment of all expenses, including, without limitation, reasonably attorneys'fees and legal expenses, incidental to the collection of the Obligations and theenforcement or protection of Pledgee's lien in and to the collateral pledgedhereunder, Pledgor hereby pledges and grants to Pledgee a                                       1 security interest in all of the following (collectively, the \"PledgedCollateral\"): the shares listed on Schedule 1 hereto (the \"Pledged Shares\")owned or held by Pledgor and the certificates representing the Pledged Shares,and all dividends, cash instruments, and other property or proceeds from time totime received, receivable, or otherwise distributed in respect of or in exchangefor any or all of the Pledged Shares. The Obligations and all other obligationsand covenants to be performed by Pledgor under this Pledge Agreement shallhereinafter from time to time be collectively referred to as the \"SecuredObligations.\"     Section 3.  Delivery of Pledged Collateral.  Pledgor shall deliver toPledgee all certificates or other instruments representing or evidencing anyPledged Shares, accompanied by appropriate duly executed instruments of transferor assignment (including, without limitation, stock powers) in blank. Except asspecifically provided in Section 6, Pledgor shall receive all certificates,cash, instruments, and other property or proceeds from time to time received,receivable, or otherwise distributed in respect of or in exchange for any or allof the Pledged Shares in trust for Pledgee and shall immediately upon receiptdeliver to Pledgee such certificates, cash, instruments, and other property andproceeds, together with any necessary endorsement.     Section 4.  Representations and Warranties.  Pledgor hereby represents andwarrants to Pledgee as follows:          (a)    Pledgor is, at the time of delivery of the Pledged Shares toPledgee hereunder and at all times which this Pledge Agreement is in effectshall be, the sole holder of record and the sole beneficial owner of the PledgedCollateral pledged to Pledgee by Pledgor under Section 2 of this PledgeAgreement, free and clear of any lien thereon or affecting the title thereto,except for the lien created by this Pledge Agreement.          (b)    None of the Pledged Shares has been transferred in violation ofthe securities registration, securities disclosure or similar laws of anyjurisdiction to which such transfer may be subject with respect to which suchtransfer could have a material adverse effect.          (c)    No consent, approval, authorization or other order of anyperson and no consent or authorization of any governmental authority orregulatory body is required to be made or obtained by Pledgor for the pledge byPledgor of the Pledged Collateral pursuant to this Pledge Agreement or for theexecution, delivery, or performance of this Pledge Agreement by Pledgor.          (d)    This Pledge Agreement has been duly executed and delivered byPledgor and constitutes a legal, valid, and binding obligation of Pledgorenforceable in accordance with its terms, except as enforceability may belimited by bankruptcy, insolvency, or other similar laws affecting the rights ofcreditors generally or by the application of general equity principles.                                       2      Pledgor covenants, warrants, and represents to Pledgee that allrepresentations and warranties contained in this Pledge Agreement shall be trueand correct at the time of Pledgor's execution of this Pledge Agreement.     Section 5.  Covenants of Pledgor. Pledgor covenants and agrees that untilthe Loan has been paid and performed in full or otherwise terminated by Pledgeein writing or until Pledgor's Secured Obligations under this Pledge Agreementhave been otherwise terminated pursuant to Section 8, below:          (a)    Pledgor shall not sell, assign, transfer, pledge, or otherwiseencumber any of Pledgor's rights in or to the Pledged Collateral pledged byPledgor or any unpaid dividends or other distributions or payments with respectthereto or grant a lien therein except as otherwise permitted by this PledgeAgreement.          (b)    Pledgor shall, at Pledgor's own expense, promptly execute,acknowledge, and deliver all such instruments and take all such action asPledgee from time to time may reasonably request in order to ensure to Pledgeethe benefits of the lien in and to the Pledged Collateral intended to be createdby this Pledge Agreement.          (c)    Pledgor shall maintain, preserve and defend the title to thePledged Collateral and the lien of Pledgee thereon against the claim of anyother person.     Section 6.  Pledgor's Rights. So long as no Event of Default shall haveoccurred and be continuing:          (a)    Pledgor shall have the right, from time to time, to vote andgive consents with respect to the Pledged Collateral or any part thereof for allpurposes not inconsistent with the provisions of this Pledge Agreement.           (b)    Pledgor shall be entitled, from time to time, to collect andreceive for Pledgor's own use, and shall not be required to pledge pursuant toSection 2 above, any cash dividends or distributions permitted pursuant to theterms of the Loan Agreement to be paid in respect of the Pledged Shares;provided, however, that until actually paid, all rights to any such permitteddividends and distributions shall remain subject to the lien created by thisPledge Agreement.     Section 7.  Defaults and Remedies.          (a)    Events of Default.  It shall be an \"Event of Default\"                  -----------------        hereunder upon the occurrence of any one or more of the following events:                 (1) The occurrence of an Event of Default under or as definedin the Loan Agreement; or                                       3                  (2) Pledgor fails or neglects to perform, keep or observe anyof the covenants contained in this Pledge Agreement and such failure is notcured within twenty (20) days after notice from Pledgee of the same.          (b)    Remedies.  Upon the occurrence of an Event of Default and so                  --------      long as the same shall be continuing:                 (1) All of any portion of the Secured Obligations may, at theoption of Pledgee, and without demand, notice, or legal process of any kind, bedeclared, and immediately shall become due and payable.                 (2) Pledgee is hereby authorized and empowered to transfer andregister in its name or in the name of its nominee the whole or any part of thePledge Collateral, to exchange certificates or instruments representing orevidencing Pledge Shares for certificates or instruments of smaller or largerdenominations, to exercise the voting rights with respect thereto, to collectand receive all cash dividends and other distributions made thereon, to sell inone or more sales after ten (10) days' prior written notice of the time andplace of any public sale or of the time after which a private sale is to takeplace (which notice Pledgor agrees is commercially reasonable), but without anyother previous notice or advertisement, the whole or any part of the PledgeCollateral and to otherwise act with respect to the Pledge Collateral as thoughPledgee were the outright owner thereof, Pledgor hereby irrevocably constitutesand appoints Pledgee the proxy and attorney-in-fact of Pledgor, with full powerof substitution (which appointment is coupled with an interest) to take all suchactions permitted hereunder or otherwise permitted by law; provided, however,Pledgee, shall not have any duty to exercise any such right or to preserve thesame and shall not be liable for any failure to do so or for any delay in doingso.                 (3) In the event of any sales hereunder, Pledgee shall, afterdeducting all costs or expenses of every kind (including, without limitation,reasonable attorneys' fees, costs and other reasonable legal expenses), forcare, safekeeping, collection, sale, delivery, or otherwise, apply the residueof the proceeds of the sales to the payment or reduction, either in whole or inpart, of the Secured Obligations in accordance with the agreements andinstruments governing and evidencing such Secured Obligations, return thesurplus, if any, to Pledgor.                 (4) If, at any time when Pledgee shall determine to exerciseits right to sell the whole or any part of the Pledged Collateral hereunder,such Pledged Collateral or the part thereof to be sold shall not, for any reasonwhatsoever, be effectively registered under the Securities Act of 1933, asamended, Pledgee may, in its discretion (subject only to applicable requirementsof law), sell such Pledged Collateral or part thereof by private sale in suchmanner and under such circumstances as Pledgee may deem necessary or advisable,but subject to the other requirements of this Section 7 and shall not berequired to effect such registration or cause the same to be effected.                                       4      Section 8.  Termination.  Immediately following the complete payment,performance or other satisfaction of all the Secured Obligations or at such timeas this Pledge Agreement and the Loan Documents are terminated or released byPledgee, Pledgee shall deliver to Pledgor the Pledged Collateral pledged byPledgor at the time subject to this Pledge Agreement and all instruments ofassignment executed in connection therewith, free and clear of the lien hereof,and, except as otherwise provided herein, all of Pledgor' obligations hereundershall at such time terminate.     Section 9.  Miscellaneous.          (a)    Entire Agreement.  This Pledge Agreement constitutes and                  ----------------    contains the entire agreement of the parties with respect to the subject matterhereof and supersedes any and all prior and contemporaneous agreements,negotiations, correspondence, understandings and communications between theparties, whether written or oral, respecting the subject matter hereof.          (b)    Assignability.  This Pledge Agreement shall be binding upon                  --------------        and inure to the benefit of Pledgor and Pledgee and their respective successorsand assigns, except that Pledgor shall not have the right to assign its rightshereunder or any interest herein without the prior written consent of Pledgee.          (c)    Notices.  Except as otherwise provided herein, any notice or                  -------                      other communication herein required or permitted to be given shall be in writingand may be delivered in person, with receipt acknowledged, or sent by telex,telecopy, computer transmission or by United States mail, registered orcertified, return receipt requested, postage prepaid.          (d)    No Waiver; Amendments.  No failure on the part of Pledgee to                  ---------------------     exercise, no delay in exercising and no course of dealing with respect to, anyright hereunder shall operate as a waiver thereof; nor shall any single orpartial exercise of any right hereunder preclude any other or further exercisethereof or the exercise of any other right. The remedies herein provided arecumulative and not exclusive of any remedies provided by law. This PledgeAgreement may not be amended or modified except by written agreement betweenPledgor and Pledgee, and no consent or waiver hereunder shall be valid unless inwriting and signed by Pledgee.          (e)    Severability.  If any provision of this Pledge Agreement is                  ------------    held to be unenforceable for any reason, it shall be adjusted, if possible,rather than voided in order to achieve the intent of the parties to the extentpossible. In any event, all other provisions of this Pledge Agreement shall bedeemed valid and enforceable to the full extent possible.                                       5           (f)    Governing Law.  This Pledge Agreement shall be governed by, and                 -------------                                                  construed in accordance with, the laws of the State of California as applied tocontracts made and performed entirely within the State of California byresidents of such State.          In Witness Whereof, the parties hereto have caused this PledgeAgreement to be duly executed as of the date first written above.Pledgor:                                Pledgee:                                        Onsale, Inc.\/s\/ JOHN DEAN                           By: \/s\/ JOHN E. LABBETT------------------------------             -----------------------------------John Dean, an individual                   John E. Labbett                                           Senior Vice President and Chief                                           Financial Officer                                       6                                   SCHEDULE 1     Attached to and forming a part of that certain Pledge Agreement (\"PledgeAgreement\") dated as of May 15, 1999, executed by John Dean, an individual, andTracy Orr-Dean, his spouse (collectively referred to hereinafter as \"Pledgor\"),and, on the other hand, Onsale, Inc., a Delaware corporation (\"Pledgee\").=========================================================================================     Stock Issuer        Class of Stock      Stock Certificate        Number of Shares                                                  Numbers-----------------------------------------------------------------------------------------                                                               ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------=========================================================================================                                        7                                    EXHIBIT C                                   ---------                LIST OF PERMITTED ENCUMBRANCES ON THE PROPERTY                  1. Mortgage No.BL401025 registered in favour of the                      Hongkong Bank of Canada. <\/pre>\n<p><contract-type>\/Compensation\/Employment Agreements<\/contract-type><companies><company-name>Onsale Inc.<\/company-name><\/companies><creation-date>2009-10-18<\/creation-date><contract-url>\/compensation\/employment\/<\/contract-url><path>\/content\/hippo\/files\/default.www\/content\/contract\/contract\/O\/Onsale-Inc-\/1449<\/path>\n<article><contract-id>542<\/contract-id><contract-name>Purchase Agreement &#8211; Datalogix International Inc. and Oracle Corp.<\/contract-name><contract-content><\/p>\n<pre>\n                               PURCHASE AGREEMENT\n                               ------------------\n     Datalogix International Inc. (the \"Company\") and the Investor identified on\nthe signature page of this Purchase Agreement (this \"Agreement\") agree as\nfollows:\n\n     Section 1.  Purchase of Shares and Warrant.  Concurrently with the\n                 ------------------------------                        \nexecution of this Agreement, the Company is selling and the Investor is\npurchasing:  (a) the number of shares of the Company's Series F Convertible\nPreferred Stock identified on Exhibit A to this Agreement at the aggregate price\nthere indicated (all such shares of Series F Convertible Preferred Stock being\npurchased by the Investor are herein collectively called the \"Shares\") and (b) a\nwarrant (the \"Warrant\") to purchase the number of shares of the Company's Common\nShares, par value $.01 per share (\"Common Stock\") identified on Exhibit A to\nthis Agreement at the aggregate price there indicated.\n\n     Section 2.  Representations and Warranties of the Company.  The Company\n                 ---------------------------------------------              \nrepresents and warrants to the Investor that, except as set forth in Exhibit B\nto this Agreement:\n\n          (a) Organization, Standing, etc.  The Company is a corporation duly\n              ----------------------------                                   \norganized, validly existing and in good standing under the laws of the\njurisdiction indicated on the signature page of this Agreement, and has all\nrequisite power and authority to carry on its business as currently conducted\nand as proposed m be conducted, to own its properties, and to enter into and\nperform this Agreement.  The copies of the Certificate of Incorporation, as\namended, and By-Laws of the Company delivered to the Investor together with a\nCertificate of the President of the Company on the date hereof are true and\ncomplete and have not, since the date of such Certificate of Incorporation and\nBy-Laws been further amended or repealed.  The Company is duly qualified as a\nforeign corporation in good standing in each jurisdiction in which the conduct\nof its business or its ownership or leasing of properly makes such qualification\nnecessary.\n\n          (b) Capital Stock.  The authorized capital stock and the outstanding\n              -------------                                                   \ncapital stock, of the Company consists in each case as of the date hereof solely\nof the shares indicated on Exhibit C to this Agreement.  All of the outstanding\nshares have been duly authorized, are fully paid and nonassessable, and were\nissued in compliance with all applicable securities laws.  An accurate list of\nthe Company's shareholders and their holdings is set forth in Exhibit D to this\nAgreement.  No one is entitled to preemptive or similar statutory or contractual\nrights with respect to any securities of the Company, except as set forth (i) in\nSection 4(d) of this Agreement, (ii) in Section 4(m) of the Purchase Agreement\ndated October 29, 1992 (\"Series E Agreement\") regarding the sale by the Company\nof its Series E Convertible Preferred Stock, (iii) in Section 4(l) of the\nPurchase Agreement dated June 30, 1993 regarding the sale by the Company of its\nSeries E Convertible Preferred Stock (\"Series E II Agreement\"), and (iv) under\nSection 6 of the Amended and Restated Stockholders Agreement dated November 19,\n1990 (\"Prior Stockholders Agreement\").  All necessary and appropriate waivers of\nshareholders have been obtained.  Except as disclosed in Exhibit E to this\nAgreement, there are no outstanding warrants, options, convertible securities\nother than the Series A, Series B, Series C, Series D and Series E Convertible\nPreferred Stock listed in Exhibit C to this Agreement, or other agreements or\n\n \narrangements of any character under which the Company or any subsidiary is or\nmay be obligated to issue any equity securities of any kind, or to transfer any\nequity securities of any kind owned by them, and neither the Company nor any\nsubsidiary has any present plan or intention to issue any equity securities of\nany kind, or to transfer any equity securities of any kind owned by them.\nExcept as disclosed in Exhibit F, the Company does not know of any voting\nagreements, buy-sell agreements, option or right of first refusal or other\nagreements of any kind among any of the security holders of the Company or of\nany subsidiary relating to the securities held by them.  Neither the Company nor\nany subsidiary has agreed, or has any present intention, to register any of its\nsecurities under the Securities Act of 1933, as amended (the \"Securities Act\"),\nexcept as provided in the Registration Rights Agreement dated October 29, 1992,\nas amended June 30, 1993 and on the date of this Agreement, a copy of which is\nattached hereto as Exhibit G (the \"Registration Rights Agreement\") or as\nprovided in warrants referred to in Item 2 of Exhibit E which have piggy-back\nrights to the Registration Rights Agreement.  The voting powers, designations,\npreferences and relative, participating, optional and other rights of the\nShares, and the qualifications, limitations or restrictions thereof are as fully\nset forth in the Restated Certificate of Incorporation of the Company, as\namended (the \"Certificate\").\n\n          (c) Corporate Proceedings.  The execution, delivery and performance of\n              ---------------------                                             \nthis Agreement have been duly authorized by all requisite action on the part of\nthe officers, directors and the holders of the capital stock of the Company and\nno other action is necessary for the due authorization of such execution,\ndelivery and performance.  True and complete copies of the relevant resolutions\nhave been delivered to the Investor, and such resolutions have not been amended\nor repealed.  This Agreement constitutes the valid and binding obligation of the\nCompany, enforceable in accordance with its terms, except (i) as limited by\napplicable bankruptcy, insolvency, reorganization, moratorium or other similar\nlaws of general application relating to or affecting the enforcement of\ncreditors rights; and (ii) that no representation or warranty is made as to the\nenforceability of the provisions in Paragraph 3(e) of the Registration Rights\nAgreement regarding indemnification for violations of federal securities laws,\nor as to the availability of the remedy of specific performance.  The Shares are\nduly authorized, validly issued, fully paid, nonassessable and free and clear of\nany encumbrances and restrictions, except for restrictions on transfer imposed\nby applicable securities laws or by this Agreement and have been issued in\ncompliance with all applicable securities laws.  The Company has reserved a\nsufficient number of shares of its Common Stock for issuance upon exercise of\nthe Warrant and the conversion of the Shares, and such shares of Common Stock,\nwhen issued upon exercise of the Warrant or upon conversion of the Shares, will\nhe duly authorized, validly issued, fully paid, nonassessable and free and clear\nof all encumbrances and restriction, except for restrictions on transfer imposed\nby applicable securities laws or by this Agreement.\n\n          (d) Subsidiaries.  The Company's subsidiaries, if any, are listed in\n              ------------                                                    \nExhibit H to this Agreement.  Except for those subsidiaries, the Company has no\ndirect or indirect ownership interest in any other corporation, partnership,\nassociation, firm or business.  Each subsidiary is a corporation duly organized,\nvalidly existing and in good standing under the laws of the jurisdiction\nindicated in Exhibit H, has all requisite power and authority to carry on its\nbusiness and to own its properties and is duly qualified as a foreign\ncorporation in good standing in each jurisdiction in which the conduct of its\nbusiness or its ownership or leasing of property makes such qualification\nnecessary.  All of the outstanding capital stock of each subsidiary has been\nduly \n\n                                      -2-\n\n \nauthorized, is fully paid and nonassessable and is owned by the Company,\nfree and clear of all encumbrances and restrictions, except for restrictions on\ntransfer imposed by applicable securities laws.\n\n          (e) Financial Statements.  True and complete copies of the financial\n              --------------------                                            \nstatements listed in Exhibit I to this Agreement have been delivered by the\nCompany to the Investor.  Those financial statements (i) are in accordance with\nthe books and records of the Company and any subsidiaries included in those\nstatements, (ii) present fairly the consolidated financial position of the\nCompany and any such subsidiaries at the dates, and the consolidated results of\ntheir operations for the periods, indicated in those statements, and (iii) have\nbeen prepared in accordance with generally accepted accounting principles\nconsistency applied; provided, however, that the Company's unaudited balance\n                     --------  -------                                      \nsheet as of March 31, 1994 does not include normal year end adjustments.\nSpecifically, but not by way of limitation, each balance sheet included in those\nstatements reflects as of its date, and provides adequate reserves in respect\nof, all of the debts, liabilities and obligations of a kind customarily\nreflected in a balance sheet prepared in accordance with generally accepted\naccounting principles.  As of the date of the balance sheet listed in Exhibit I,\nneither the Company nor any of its subsidiaries had any debts, liabilities or\nobligations, whether absolute, accrued, contingent or otherwise, which are not\nfully reflected in such balance sheet, other than those which, in any one case\nor in the aggregate, would not have a materially adverse effect on the business,\nassets, liabilities, condition (financial or otherwise), affairs or operations\nof the Company or any of its subsidiaries as of such date.\n\n          (f) Litigation.  Except as disclosed in Exhibit J to this Agreement,\n              ----------                                                      \nthere are no legal actions, suits, arbitrations or other legal, administrative\nor governmental proceedings pending or, to the Company's knowledge, threatened\nagainst the Company or any subsidiary, or against the assets or business of the\nCompany or any subsidiary, or against any employee, officer, director or\nshareholder of the Company or of any subsidiary in his capacity as such person\nor relating to any of his past employment relationships with any employer or to\nhis activities with the Company or any subsidiary, and the Company is not aware\nof any facts that might result in or form the basis for any such action, suit,\narbitration or other proceeding.  Except as set forth in Exhibit J to this\nAgreement, the Company does not have pending, and has no present intention to\nbring, any legal actions, suits, arbitration, or other legal, administrative or\ngovernmental proceedings against any other person or entity or the property or\nrights of any other person or entity.\n\n          (g) Title to Assets.  Except as disclosed in the notes to the\n              ---------------                                          \nfinancial statements listed in Exhibit I to this Agreement, the Company and its\nsubsidiaries have good and marketable title to their respective assets,\nincluding, without limitation, those reflected in the balance sheet listed on\nExhibit I (other than those since disposed of in the ordinary course of\nbusiness), free and clear of all security interests, liens, charges and other\nencumbrances, except for (i) liens for taxes not yet due and payable or being\ncontested in good faith by appropriate proceedings, (ii) encumbrances that are\nincidental to the conduct of their businesses or their ownership of property,\nnot incurred in connection with the borrowing of money or the obtaining of\ncredit and which do not in the aggregate materially detract from the value of\nthe assets affected thereby or materially impair the use thereof by the Company\nor its subsidiaries, and (iii) liens on assets of the Company and its subsidiary\nin favor of Silicon Valley Bank (\"Silicon\") under the Line of Credit \n\n                                      -3-\n\n \nfrom Silicon to the Company guaranteed by Datalogix Development Corp. dated\nJanuary 15, 1994. With respect to the assets of the Company which are leased,\nthe Company is in compliance with all material provision of such leases, such\nleases are valid and binding, and the Company holds its leasehold interest in\nsuch assets free and clear of all security interests, liens, charges and other\nencumbrances except encumbrances which, in the aggregate, do not materially\ndetract from the value of the leased assets affected thereby or materially\nimpair the use thereof by the company or its subsidiaries.\n\n          (h) Accounts Receivable; Inventories, Condition of Assets.\n              ----------------------------------------------------- \n\n          (i) The accounts receivable shown in the balance sheet listed in\nExhibit I or acquired since the date of such balance sheet have been collected\nor are (or will be) collectible in amounts not less than the aggregate amount\nthereof (net of allowance for doubtful accounts established in accordance with\nprior practice) carried (or to be carried) on the books of the Company and its\nsubsidiaries.\n\n          (ii) The plants, buildings, structures, machinery, tools, equipment\nand other tangible assets of the Company and its subsidiaries are in good\noperating condition and in a state of reasonable maintenance and repair.\n\n          (i) Tax Returns and Audits and Other Tax Matters.  All required tax\n              --------------------------------------------                   \nreturns of the Company and its subsidiaries have been accurately prepared and\nduly and timely filed, and all taxes required to be paid with respect to the\nperiods or transactions covered by such returns have been duly and timely paid.\nNeither the Company nor any subsidiary is delinquent in the payment of any tax,\nassessment or governmental charge, has had any tax deficiency proposed or\nassessed against it, or has executed any waiver still in effect of any statute\nof limitations on the assessment or collection of any tax.  None of the federal\nor state income tax returns or state franchise tax returns of the Company or any\nsubsidiary has ever been audited by governmental authorities.  The amounts\naccrued on the financial statements of the Company are sufficient with respect\nto all unpaid federal, state, county, local and foreign taxes for all periods\nending prior to the date of this Agreement.\n\n          (j) Adverse Changes.  Since the date of the balance sheet listed in\n              ---------------                                                \nExhibit I to this Agreement, neither the Company nor any subsidiary has:\n\n          (i) incurred, or discharged or satisfied, any debts, obligations or\nliabilities, whether absolute, accrued, contingent or otherwise, except for the\nroutine occurrence, discharge or satisfaction of (x) current liabilities in the\nordinary course of business and (y) obligations under contracts entered into in\nthe ordinary course of business;\n\n          (ii) declared or made any dividend or other payment or distribution to\nits stockholders as such, or purchased or redeemed any of its securities;\n\n          (iii)  sold, leased or otherwise disposed of any of its assets except\nroutine dispositions made in the ordinary course of business;\n\n                                      -4-\n\n \n          (iv) suffered any material physical damage, destruction or loss\n(whether or not covered by insurance);\n\n          (v) encountered any labor difficulties or labor union organizing\nactivities;\n\n          (vi) made or granted any increases in wages or salaries or in employee\nbenefits, except for routine increases that were made in the ordinary course of\nbusiness and were consistent with past practice;\n\n          (vii)  entered into any transaction other than in the ordinary\ncourse of business; or\n\n          (viii)  suffered or experienced any change in, or event or condition\naffecting, its business, assets, liabilities, condition (financial or\notherwise), affairs or operations, other than changes, events or conditions in\nthe ordinary course of business, none of which (either when taken by itself or\nwhen token in conjunction with all such other changes, events or conditions) has\nbeen materially adverse, or might reasonably be expected to be materially\nadverse in the future.\n\n          (k) Compliance with Laws and other Instruments.  The business and\n              ------------------------------------------                   \noperations of the Company and its subsidiaries have been and are being conducted\nin all material respects in accordance with all applicable laws, rules,\nregulations, judgments and decrees and the Certificate and By-Laws of the\nCompany.  Neither the execution, delivery or performance of this Agreement, nor\nthe offer, issuance, sale or delivery of the Shares to the Investor, nor the\nissuance of shares of Common Stock upon exercise of the Warrant (the \"Warrant\nShares\"), nor the issuance of shares of Common Stock upon conversion of the\nShares (\"Conversion Shares\"), with or without the giving of notice or passage of\ntime, or both, will violate, or result in any breach of, or constitute a default\nunder, or result in the imposition of any encumbrance upon any asset of the\nCompany or of any subsidiary pursuant to, any provision of any corporate\ncharter, by-law, contract, law, rule, regulation, judgment, decree or other\ndocument or instrument or, to the best of the Company's knowledge, will cause\nthe Company or any subsidiary to lose the benefit of any right or privilege it\npresently enjoys or any person who normally does business with the Company or\nany subsidiary to discontinue to do so on the same basis.\n\n          (l) Governmental Consents; Offering of Shares.  No consent,\n              -----------------------------------------              \nauthorization, approval, permit or order of, or declaration to or filing with,\nany governmental or regulatory authority is required in connection with the\nexecution, delivery and performance of this Agreement or the offer, issuance,\nsale or delivery of the Shares, the Conversion Shares, the Warrant or the\nWarrant Shares (the Shares, the Conversion Shares, the Warrant and the Warrant\nShares are hereinafter collectively referred to as the \"Securities\").  The\nissuance of the Securities in conformity with the terms of this Agreement\nconstitute transactions exempt from the registration requirements of Section 5\nof the Securities Act, and from all applicable state registration and\nqualification requirements.  Neither the Company nor any agent acting on its\nbehalf has, directly or indirectly, sold or offered for sale, or solicited any\noffers to buy, any securities, or otherwise approached or negotiated with any\nperson or persons, so as to subject the \n\n                                      -5-\n\n \noffer or sale of the Securities to the Investor to the provisions of Section 5\nof the Securities Act, and the Company agrees that neither it nor any agent\nacting on its behalf will take any action that would subject the offer or sale\nof the Securities to those provisions.\n\n          (m) Patents and Trademarks.  The Company has sufficient title and\n              ----------------------                                       \nownership of all patents, trademarks, service marks, trade names, copyrights,\ntrade secrets, information, proprietary rights and processes necessary for its\nbusiness as now conducted and as proposed to be conducted without any conflict\nwith or infringement of the rights of others.  Other than license and\ndistribution agreements entered into in the ordinary course of business, there\nare no outstanding options, licenses, or agreements of any kind relating to the\nforegoing, nor is the Company bound by or a party to any options, licenses or\nagreements of any kind with respect to the patents, trademarks, service marks,\ntrade names, copyrights, trade secrets, licenses, information, proprietary\nrights and processes of any other person or entity, except as set forth in\nExhibit K.  The Company has not received any communications alleging that the\nCompany has violated, or by conducting its business as proposed, would violate\nany of the patents, trademarks, service marks, trade names, copyrights or trade\nsecrets or other proprietary rights of any other person or entity.  The Company\nis not aware that any of its employees or consultants is obligated under any\ncontract (including licenses, covenants or commitments of any nature) or other\nagreement, or subject to any judgment, decree or order of any court or\nadministrative agency, that would interfere with the use of its best efforts to\npromote the interests of the Company or that would conflict with the Company's\nbusiness as now conducted and as proposed to be conducted.  Neither the\nexecution nor delivery of this Agreement, nor the carrying on of the Company's\nbusiness by the employees and consultants of the Company as now conducted, nor\nthe conduct of the Company's business as proposed, will, to the Company's\nknowledge, conflict with or result in a breach of the terms, conditions or\nprovisions of, or constitute a default under, any contract, covenant or\ninstrument under which any of such employees or consultants is now obligated.\nThe Company does not believe it is or will be necessary to utilize any\ninventions of any of its employees or consultants (or persons it currently\nintends to hire) made prior to their employment by the Company.\n\n          (n) No Defaults; Contracts.  The Company and its subsidiaries have in\n              ----------------------                                           \nall material respects performed all obligations required to be performed by\nthem, and are not in default in any material respect, under any material\ncontract, commitment or instrument, and no event or condition has occurred\nwhich, with the giving of notice or passage of time, or both, would constitute\nsuch a default.  Neither the Company nor any subsidiary is under any obligation\nthat cannot readily be performed by it on time and without undue or unusual\nexpenditure of money or effort.  All parties having material contracts or\ncommitments with the Company or any subsidiary are in compliance therewith in\nall material respects.  Exhibit K to this Agreement contains an accurate list of\nall contracts or commitments, oral or written, of the Company and its\nsubsidiaries, other than (x) licensing agreements entered into by the Company\nwith its customers in the ordinary course of business and (y) license agreements\nthat provide for the use by the Company of the licensors' software to be\nroutinely used and incorporated in the Company's product, that either (i) may\ninvolve the expenditure by the Company or any subsidiary of more than $50,000\nover the term of such contract or commitment or (ii) are not subject to\ntermination by the Company or the appropriate subsidiary without penalty.\n\n                                      -6-\n\n \n          (o) Insurance Coverage.  Exhibit L to this Agreement contains an\n              ------------------                                          \naccurate list of the insurance coverage maintained by the Company and its\nsubsidiaries.  Such coverage, is sufficient in amount (subject to reasonable\ndeductibles) to allow it to replace any of its properties that might be damaged\nor destroyed.\n\n          (p) Employee Matters.  Except as disclosed in Exhibit M to this\n              ----------------                                           \nAgreement or described herein, neither the Company nor any subsidiary has in\neffect or has any present intention to put into effect any employment\nagreements, consulting arrangements, deferred compensation, pension or\nretirement agreements or arrangements, bonus, incentive or profit-sharing plans\nor arrangements, or labor or collective bargaining agreements, written or oral,\nwhether legally binding or in the nature of informal understandings.  Except as\nset forth in Exhibit M, there are no existing or proposed loans, leases,\nlicenses or other such agreements or arrangements between the Company or any\nsubsidiary and any officer, director or security holder of the Company or any\nsubsidiary.  The Company has no knowledge that any of the officers or other key\nemployees or consultants of the Company or any subsidiary has any present\nintention to terminate his employment, or that any employee or consultant of the\nCompany or any subsidiary is bound by any agreement or arrangement with any\nother employer (past or present) that in any way affects adversely or threatens\nhereafter to affect adversely the performance of his duties as an employee or\nconsultant of the Company or any subsidiary or the ability of the Company or any\nsubsidiary to conduct its business.  Attached as Exhibit N is an accurate\nsummary of the policies followed by the Company and its subsidiaries regarding\nconfidentiality of sensitive information and ownership of patents, know-how and\nother such matters relating to the businesses of the Company and its\nsubsidiaries.  The Company, after reasonable investigation, is not aware that\nany of its employees or consultants is in violation of the policies summarized\nin Exhibit N, and the Company will use its best efforts to prevent any such\nviolation.\n\n          (q) Brokers and Finders.  No person or firm has, or will have, any\n              -------------------                                           \nright, interest or valid claim against the Company, any subsidiary or the\nInvestor, for any commission, fee or other compensation as a finder or broker or\nin any similar capacity as a result of any act or omission by the Company, any\nsubsidiary or anyone acting on behalf of the Company or any subsidiary.\n\n          (r) Disclosure.  This Agreement (including the Exhibits) does not\n              ----------                                                   \ncontain any untrue statement of a material fact or omit to state any material\nfact required to make the statements herein or therein not misleading in the\nlight of the circumstances under which those statements where made.  There is no\nfact known to the Company that materially adversely affects or threatens in the\nfuture to materially adversely affect, the business, assets, liabilities,\ncondition (financial or otherwise), affairs or operations or the Company or any\nsubsidiary which has not been disclosed by the Company in writing to the\nInvestor.\n\n          (s) Real Property Holding Corporation.  The Company is not and has not\n              ---------------------------------                                 \nbeen at any time a \"United States real property holding corporation\" (as that\nterm is defined in Treasury Regulation Section 1.897-2(b)).  If at any time in\nthe future the Company shall become a \"United States real property holding\ncorporation\" the Company shall, as promptly as practicable, notify each foreign\ninvestor.  Within thirty (30) days after receipt of a request from a foreign\ninvestor, the Company shall prepare and deliver to such foreign investor the\nstatement required \n\n                                      -7-\n\n \nunder Treasury Regulation Section 1.897-2(h)(1)(IV) and subject to the\nsucceeding sentence either or both of the following documents: (i) an affidavit\nin conformance with the requirements of Internal Revenue Code (\"IRC\") Section\n1445(b)(3) or (ii) a notarized statement, executed by an officer having actual\nknowledge of the facts, that the shares of Company stock held by such foreign\ninvestor are of a class that is regularly traded on an established securities\nmarket, within the meaning of IRC Section 1445(b)(6). If the Company is unable\nto provide either of the documents described in (i) or (ii) above, if requested,\nit shall promptly notify such foreign investor in writing of the reasons for\nsuch inability. Finally, upon the request of a foreign investor and without\nregard to whether either document described in (i) or (ii) above has been\nrequested, the Company shall reasonably cooperate with the efforts of such\nforeign investor to obtain a \"qualifying statement,\" within the meaning of IRC\nSection 1445(b) (4) or such other documents as would excuse a transferee of a\nforeign investor's interest from withholding of income tax imposed pursuant to\nIRC Section 897(a).\n\n          The Company shall in a timely manner, after the date hereof, make all\nnecessary filings and shall take all other actions as are necessary to establish\nthat the Company is not a United States real property holding corporation.\n\n          (t) Audit Committee.  The Company shall continue to have an audit\n              ---------------                                              \ncommittee of its Board of Directors, which committee shall be comprised of no\nfewer than two members of the Board of Directors, no member of which shall be an\nemployee of the Company.\n\n          (u) Compensation Committee.  The Company shall continue to have a\n              ----------------------                                       \ncompensation committee of its Board of Directors, which committee shall be\ncomprised of no fewer than three members of the Board of Directors, and no more\nthan one member of which shall be an employee of the Company.\n\n          (v) Minute Books.  The minute books of the Company provided to the\n              ------------                                                  \nInvestor contain a complete summary of all meetings of directors and\nstockholders since the time of incorporation and reflect all transactions\nreferred to in such minutes accurately in all material respects.\n\n          (w) Registration Rights.  Except as set forth in the Registration\n              -------------------                                          \nRights Agreement and as provided in the warrants referred to at Item 2 of\nExhibit E, the Company is not under any contractual obligation to register any\nof its presently outstanding securities or any of its securities which may\nhereafter be issued.\n\n          (x) Backlog.  Exhibit P to this Agreement sets forth an accurate\n              -------                                                     \nstatement by product line of the amounts, as of the date there indicated, of\nunfilled binding orders of the Company and its subsidiaries for sales (other\nthan intercompany sales) in the ordinary course of business of products and\nservices.  None of such amounts had been recognized as revenues on the books of\nthe Company and its subsidiaries as of such date.\n\n     Section 3.  Representations, Warranties and Agreements of the Investor.\n                 ----------------------------------------------------------  \nThe Investor:\n\n          (a) Represents and warrants to the Company that:\n\n                                      -8-\n\n \n               (i) it is a corporation as indicated on the signature page of\nthis Agreement:\n\n               (ii) the execution, delivery and performance by it of this\nAgreement have been duly authorized;\n\n               (iii)  this Agreement constitutes a valid and binding obligation\nof the Investor;\n\n          (iv) no person or firm has, or will have, as a result of any act or\nomission by the Investor or anyone acting on behalf of the Investor, any right,\ninterest or valid claim against the Company or any subsidiary, for any\ncommission, fee or other compensation as a finder or broker or in any similar\ncapacity;\n\n          (v) the Investor is acquiring the Securities being purchased by it for\nits own account for investment and not with a view to, or for sale in connection\nwith, distribution of any of the Securities; and\n\n          (vi) the Investor is an \"accredited investor\" as that term is defined\nin Rule 501(A)(1), (2), (3) or (7) under the Securities Act and that it is able\nto bear the economic risk of its investment.\n\n          (b) Agrees that it will not sell or otherwise transfer any of the\nSecurities, except in accordance with the Securities Act and all applicable\nstate securities laws, and that prior to any transfer (other than pursuant to an\neffective registration under that Act) it will furnish to the Company a written\nopinion of counsel, reasonably satisfactory in form and substance to the\nCompany, to the effect that registration under the Securities Act is not\nrequired, and all requisite action has been taken, under all applicable state\nsecurities laws, in connection with the proposed transfer.  The Company will\npromptly review any such opinion to determine whether it is reasonably\nsatisfactory in form and substance.\n\n          (c) Acknowledges that it is aware that it will not be entitled to make\nany public offer or public sale of any of the Securities for an indefinite\nperiod unless those Securities are then registered under the Securities Act.\nAlthough it may be possible in the future to make limited public sales of the\nSecurities without registration in reliance on Rule 144 under that Act, Rule 144\nis not now available and there is no assurance that it will become available for\nthis purpose.  Accordingly, the Investor understands that it must bear the\neconomic risk of its investment in the Securities for an indefinite period.\n\n          (d) Acknowledges that it has been furnished access to the business\nrecords of the Company (including any subsidiaries) and such additional\ninformation and documents as the Investor has requested, and has been given the\nopportunity to meet with Company officials and, to have such persons answer\nquestions regarding the Company's affairs and condition.\n\n          (e) Acknowledges its understanding that the certificates evidencing\nthe Securities (other than Securities that shall have been transferred pursuant\nto an effective \n\n                                      -9-\n\n \nregistration statement) will bear legends substantially in the following form\nuntil the Company's counsel determines that the legends are no longer advisable:\n\n          \"[The shares evidenced by this certificate have] [This Warrant has]\n          not been registered under the Securities Act of 1933, as amended, and\n          must be held indefinitely unless [they are] [it is] transferred\n          pursuant to an effective registration statement under that Act,\n          pursuant to Rule 144 or l44A, or after receipt of an opinion of\n          counsel satisfactory to the Company that registration is not\n          required.\"\n\n          \"[The shares evidenced by this certificate are] [This Warrant is]\n          subject to certain agreements contained in the Purchase Agreement\n          dated as of September 6, 1994 among the Company and [Investor], a copy\n          of which is on file with the Secretary of the Company.\"\n\nThe appropriate stop-transfer orders will be noted on the Company's stock and\nwarrant records with respect to all Securities so legended with the first\nlegend.\n\n          (f) Agrees that it shall hold in confidence any confidential\ninformation about the Company that the Investor has received or hereafter\nreceives pursuant to any provision of this Agreement under circumstances\nindicating the confidentiality of such information unless (i) such information\nshall have been publicly disclosed other than as a result of any wrongful action\nof Investor, or (ii) Investor independently develops or is aware of such\ninformation.\n\n          (g)  (i)  Agrees for itself, its affiliates and any transferee of\nInvestor which is obligated under this Section 3(g)(i), that without the prior\nwritten consent of the Company, it will not directly or indirectly increase its\nholdings of capital stock of the Company or any security convertible into or\nexercisable or exchangeable for capital stock of the Company (\"Capital\nHoldings\") such that, after giving effect to the increase in such holdings, the\nInvestor will hold securities representing a number of Common Stock Equivalents\n(as hereinafter defined) greater than 25% of the Common Stock Equivalents\nrepresented by securities then outstanding (the \"Holding Limit\"); provided,\n                                                                  -------- \nhowever, that the Investor may increase its holdings above the foregoing limit\n- -------                                                                       \nas a result of an acquisition of securities of the Company pursuant to a merger\nor a purchase of securities made pursuant to a plan of merger or an offer\nsimultaneously made by the Investor to acquire the Company pursuant to a merger\nor to purchase all of the capital stock held by all holders of capital stock of\nthe Company which in either case is accepted by the holders of securities\nrepresenting two-thirds of the Common Stock Equivalents then outstanding (which\nfor purposes of said computation shall include the Common Stock Equivalents held\nby the Investor).  Notwithstanding the foregoing restriction, the Investor may\nincrease its Capital Holdings above 25% upon exercise of the Warrant solely and\nto the extent that at the date of exercise of the Warrant the outstanding Common\nStock Equivalents against which the 25% limitation is calculated are less than\n16,027,668 by reason that from the date hereof through the date of exercise\neither (i) the Company has repurchased or redeemed Common Stock Equivalents, or\n(ii) vested options outstanding on the date hereof shall not have been exercised\nor (iii) both of (i) and (ii).\n\n                                      -10-\n\n \n          (ii) The agreement set forth in Section 3(g)(i) shall expire upon the\nearlier of the tenth anniversary of the date of this Agreement or the second\nanniversary of the date on which the Company shall have first issued its\nsecurities upon the consummation of an initial public offering made pursuant to\na registration statement declared effective under the Securities Act (an \"IPO\");\nprovided, however, that if the Investor (or any transferee of securities which\n- --------  -------                                                             \nis bound by the provisions of Section 3(g)(i)) shall transfer securities of the\nCompany and such transferee is bound by the provisions of Section 3(g)(i), then,\nas to such transferee the agreements set forth in Section 3(g)(i) shall expire\non the earlier of the tenth anniversary of the date of this Agreement or on the\ndate the Company first issues its equity securities in an IPO.\n\n          (iii)  For purposes of this Agreement the term \"Common Stock\nEquivalents\" shall mean Common Stock and securities which are then (without\npayment of any additional consideration other than the tender of the security)\nconvertible into or exchangeable for Common Stock.  Each share of Common Stock\nshall represent one Common Stock Equivalent.  The number of Common Stock\nEquivalents represented by other securities shall be the maximum number of\nshares of Common Stock which may then be issued upon conversion or exchange\nthereof based upon the terms thereof (including any conversion or exchange\nrates, as adjusted from time to time in accordance with the terms of such\nsecurity).\n\n          (h) Agrees that it and for so long as it holds 5% or more of the\noutstanding voting stock of the Company, it shall be present in person or\nrepresented by proxy at all meetings of voting securityholders of the Company\n(or to be available to sign consents of securityholders) so that all of the\nvoting securities then owned by it may be counted for the purpose of determining\nthe presence of a quorum at any such meeting (or for the purpose of determining\nof the requisite percentage of securityholders having signed a consent).\n\n          (i) Agrees that, for so long as the obligations under Section 3(g)(i)\nhave not expired, it will not in one or more transactions transfer securities\nrepresenting more than an aggregate of 800,000 Common Stock Equivalents to (A)\nany person which is not an affiliate of the Investor or (B) any group of\npersons, each member of which either (x) is affiliated with at least one other\nmember or (y) would, directly or indirectly, through any contractual\narrangement, understanding or relationship, have or share voting power or\ninvestment power with one or more other members of the group with respect to\nsuch securities, but of which group no member is an affiliate of the Investor,\nunless such transferee or transferees agree(s) in writing to be subject to the\nterms of Section 3(g) of this Agreement; provided, however, that such condition\n                                         --------  -------                     \nshall not apply in the case of any transferee which as of the date of this\nAgreement is a holder of any shares of Series A, Series B, Series C, Series D or\nSeries E Convertible Preferred Stock.  The Company agrees that any transferee of\nthe Investor, that is not described in clause (A) or (B) of the foregoing\nsentence, that acquires less than 800,000 Common Stock Equivalents shall not be\nbound by Section 3(g)(i).  The Company shall not be obligated to recognize any\ntransfer made in violation of this Section 3(i).\n\n          (j) Notwithstanding the provisions of paragraph (b) above, no such\nregistration statement or opinion of counsel shall be necessary for a transfer\nby the Investor to any affiliate of the Investor, if the transferee agrees in\nwriting to be subject to the terms hereof to the same extent as if it were the\noriginal Investor hereunder.\n\n                                      -11-\n\n \n          (k) Notwithstanding the provisions of paragraph (b) above, no such\nregistration statement or opinion of counsel shall be necessary for a transfer\nby the Investor pursuant to Rule 144, if the Investor makes the factual\nrepresentations reasonably requested by the Company indicating the availability\nof the exemption provided by Rule 144.\n\n     Section 4.  Covenants of the Company.\n                 ------------------------ \n\n          (a) Financial Statements; Inspection.  From and after the date hereof,\n              --------------------------------                                  \nthe Company shall prepare or cause to be prepared, and shall furnish to each\nholder of any Securities, the financial statements and related data specified in\nExhibit O, which financial statements and related data shall be acceptable to\neach such holder, and shall permit each such holder to inspect at the holder's\nexpense any of the properties or books and records of the Company and its\nsubsidiaries, to make copies of extracts from such book and records and to\ndiscuss the affairs and condition of the Company and its subsidiaries with\nrepresentatives of the Company and its subsidiaries, all to such reasonable\nextent and at such reasonable times and intervals as such holder may reasonably\nrequest.  If the holder is a person or entity other than the Investor, the right\nto inspect the properties or books or records of the Company granted under this\nparagraph (b) may be exercised only with the consent of the Company, which\nconsent shall not be unreasonably withheld.  Any holder (including the Investor)\nwho exercises the right to inspection shall, at the request of the Company, sign\nan agreement to hold in confidence any confidential information about the\nCompany received as a result of such inspection under circumstances indicating\nthe confidentiality of such information unless (i) such information shall have\nbeen publicly disclosed other than as a result of wrongful action of Investor,\nor (ii) Investor independently develops or is aware of such information.\n\n          (b) Intellectual Property.  The Company will use its best efforts to\n              ---------------------                                           \nkeep all intellectual property which is material to the Company's business or\nprospects confidential and, to that end, the Company will enter into appropriate\ncontractual arrangements with each of its employees and such of its consultants,\nagents, distributors, licensees, vendors and customers as the Company considers\nappropriate.\n\n          (c) Proprietary Interest in Patents, Trademarks, etc.  The Company\n              -------------------------------------------------             \nwill use its best efforts to enter into contractual arrangements with each of\nits employees so that the Company shall have sufficient title and ownership of\nall patents, trademarks, service marks, trade names, copyrights, trade secrets,\ninformation, proprietary rights and processes as are or may become necessary for\nthe conduct of its business.\n\n          (d) Right of First Refusal.  Until such time as the Shares shall be\n              ----------------------                                         \ndeemed automatically converted into shares of Common Stock under paragraph\n4(d)(ii) of the Certificate, each holder of Series F Preferred, so long as such\nholder shall own at least an aggregate 100,000 shares of Series F Preferred or\nshares of Common Stock issuable upon conversion of such shares of Series F\nPreferred or shares of Common Stock which have been acquired upon the exercise\nof the Warrant, as the case may be (a \"Preferred Holder\"), shall have the right\nif the Company shall offer (the \"Offer\") to sell to any other person or entity\nother than a holder of Preferred Stock with a contractual right of first refusal\nunder, the Series E Agreement, the Series E II Agreement or the Prior\nStockholders Agreement (\"Other Purchaser\") any voting security of the Company\nexcept \n\n                                      -12-\n\n \nPermitted Shares as defined in paragraph 4(d)(iii)(A) of the Certificate, or any\nsecurities convertible or exchangeable into or exercisable for voting securities\nof the Company, to purchase on the same terms and conditions as such securities\nare being offered for sale to the Other Purchasers, up to that number of such\nsecurities that would, after the completion of the sale of all of such\nsecurities (assuming the conversion, exchange or exercise of all securities\nwhich are convertible or exchangeable into or exercisable for voting\nsecurities), result in such Preferred Holder having the same percentage interest\nin the voting securities of the Company (based upon the number of votes) as such\nholder had prior to such sale. The Company shall provide written notice to each\nPreferred Holder of any offer, which notice shall contain the terms and\nconditions of the Offer. Each Preferred Holder shall have a period equal to the\nlonger of (i) 14 days from the date such Preferred Holder receives such notice\nfrom the Company, or (ii) the period of time that Other Purchasers will be\npermitted to accept the Offer, to exercise such Preferred Holder's right to\npurchase securities under this Section 4(d). Such Preferred Holder shall\nexercise the right by providing written notice to the Company of such Preferred\nHolder's intent to purchase and the number of shares which such Preferred Holder\nintends to purchase. Thereafter, each Preferred Holder shall have a period equal\nto the longer of (i) 30 days from the date such Preferred Holder gives notice to\nthe Company of such Preferred Holder's intent to purchase, or (ii) the period of\ntime that Other Purchasers are permitted to purchase and pay for securities\npursuant to the Offer, to purchase and pay for the securities pursuant to this\nSection 4(d). This right to purchase securities may not be assigned or otherwise\ntransferred by any Preferred Holder; provided, however, the right of each\n                                     --------  -------\nPreferred Holder to purchase securities may be apportioned in such a manner as\neach Preferred Holder deems appropriate among the affiliates, partners or\nretired partners of such Preferred Holder and further provided, however, that\n                                              ------- --------  -------\nshould any Preferred Holder not purchase the full number of securities permitted\nunder this Section 4(d), each other Preferred Holder shall have the right to\npurchase a pro rata portion of such securities.\n\n          (e) Rule 144A Information.  For so Ions as any of the Securities are\n              ---------------------                                           \noutstanding and are \"restricted securities\" within the meaning of Rule 144 (a)\n(3) under the Act, the Company will provide to any holder of Securities and to\nany prospective purchaser of Securities designated by a holder of such\nSecurities that is a \"qualified institutional buyer\" (as that term is defined\nunder Rule 144A), upon the request of such holder or prospective purchaser, the\ninformation and the rights to information required to be provided to such holder\nor prospective purchaser by Rule 144A(d)(4).  The Company further agrees that\nits obligations pursuant to this paragraph (i) shall extend to any person who\nacquires any of the Securities in a transaction pursuant to Rule 144A.\n\n          Section 5.  Drag Along Provision.\n                      -------------------- \n\n          (a) If at any time a written offer meeting the criteria described in\nSection 5(b) (the \"Offer\") is made by a prospective buyer of securities of the\nCompany for the purchase by such prospective buyer of securities which, together\nwith Common Stock Equivalents represented by securities then owned by such\nprospective buyer, represents two-thirds or more of the outstanding Common Stock\nEquivalents (including Common Stock Equivalents represented by securities held\nby the Investor) and a copy of such Offer is transmitted to the Investor, then\non and after the 11th day following the transmittal of the Offer to the\nInvestor, the Offer for the sale of such securities (including securities held\nby the Investor) may he accepted by holders who in \n\n                                      -13-\n\n \nthe aggregate, together with the prospective buyer but excluding the Investor,\nhold securities representing two-thirds or more of the outstanding Common Stock\nEquivalents (\"Control Holders\"). In such event, the Investor agrees to sell\npursuant to the Offer all the securities owned by the Investor which are subject\nto the Offer. The Investor further agrees to execute and deliver such documents\nand perform all other actions as shall reasonably be requested by the\nprospective buyer and the Control Holders in order to effectuate such sale in\naccordance with the terms of the Offer and on a timely basis. Any transferee of\nSecurities of the Investor (other than an affiliate of the Investor) shall not\nbe bound by the provisions of this Section 5. This Section 5 shall terminate\nupon the earlier of (i) the second anniversary of Company's initial public\noffering of securities and (ii) the date on which the Company becomes subject to\nthe periodic reporting obligations of the Securities Exchange Act of 1934 with\nrespect to its Common Stock equivalents.\n\n          (b) Any Offer to which Section 5(a) shall apply shall provide that the\nInvestor (i) shall be paid not less for its Shares than it would have received\nunder Article 4(b) of the Certificate of Incorporation were the transaction\nconstituted as a merger and (ii) that the Investor shall be entitled to exercise\nthe Warrant simultaneously with consummation of the transaction contemplated by\nthe Offer and to be paid as a holder of Common Stock for such shares.\n\n     Section 6.  Miscellaneous.\n                 ------------- \n\n          (a) Exhibits.  The Exhibits attached to this Agreement constitute a\n              --------                                                       \npart of this Agreement.  They are incorporated herein by reference and shall\nhave the same force and effect as if set forth in full in the main body of this\nAgreement.\n\n          (b) Survival of Warranties.  All warranties, representations,\n              ----------------------                                   \ncovenants and agreements made in this Agreement shall survive the delivery of\nthe Shares to the Investor, regardless of any investigation made by any party.\n\n          (c) Assigns.  This Agreement shall bind and inure to the benefit of\n              -------                                                        \nthe parties hereto and their respective heirs, executors, administrators,\nsuccessors and assigns.\n\n          (d) Governing Law.  This Agreement shall be governed by the laws of\n              -------------                                                  \nthe State of New York.\n\n          (e) Notices.  All communications provided for in this Agreement shall\n              -------                                                          \nbe in writing and shall be sent to the appropriate address shown on the\nsignature page or on Exhibit A to this Agreement or to such other address as the\naddressee may from time to time designate to the sender and shall be sent by\ncertified mail, return receipt requested, or shall be personally delivered.\n\n          (f) Entire Agreement.  This Agreement constitutes the entire agreement\n              ----------------                                                  \namong the parties regarding the transactions contemplated herein and may not be\namended except in writing.\n\n          (g) Headings.  The headings contained in this Agreement are for\n              --------                                                   \nreference purposes only and shall not affect in any way the interpretation of\nthis Agreement.\n\n                                      -14-\n\n \n          (h) Effect of Stock Splits.  Whenever any rights under this Agreement\n              ----------------------                                           \nare available only when at least a specified minimum number of Securities is\ninvolved, such number shall be appropriately adjusted to reflect any stock\nsplit, stock dividend, combination of securities into a smaller number of\nsecurities or reclassification of stock.\n\n          (i) Amendments.  This Agreement may be amended only by an instrument\n              ----------                                                      \nin writing, signed by the Company and by the Investor or by holders, on the date\nof such amendment, of at least a majority of the Shares and\/or Conversion Shares\nissuable upon conversion of the Shares held by all of such holders.\n\n          (j) Counterparts.  This Agreement may be executed in any number of\n              ------------                                                  \ncounterparts, each of which shall be an original, all of which together shall\nconstitute one instrument.\n\n          (k) Facsimile.  This Agreement may be executed and thereafter\n              ---------                                                \ntransmitted by facsimile and the facsimile receipt shall constitute an original.\n\n          (l) Third Party Beneficiaries.  Each of the holders of capital stock\n              -------------------------                                       \nof the Company shall be a third party beneficiary of this Agreement and may\nenforce the obligations of the Investor hereunder.\n\n                                      -15-\n\n \nIN WITNESS WHEREOF, we have set our hands as of the date hereinafter set forth.\n\nDate:  September 6, 1994\n\n                              The Company:\n\n                              DATALOGIX INTERNATIONAL INC.\n                              A New York Corporation\n\n                              By:  \/s\/ R. GIORDANELLA\n                                 -----------------------\n                              Title:  CEO\n                                    --------------------\n                              100 Summit Lake Drive\n                              Valhalla, New York  10595\n\n                              The Investor:\n\n                              ORACLE CORPORATION\n\n                              By:   \/s\/ JEFFREY O. HENLEY\n                                 ------------------------\n                              Title:  CFO\n                                    ---------------------\n                              500 Oracle Parkway\n                              Redwood Shores, California  94065\n\n                                      -16-\n\n\n<\/pre>\n<p><\/contract-content><\/article>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7273,8419],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9627],"class_list":["post-43447","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-datalogix-international-inc","corporate_contracts_companies-oracle-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43447","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43447"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43447"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43447"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43447"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}