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EXHIBIT 10.1
TRICORD SYSTEMS, INC.
STOCK PURCHASE AGREEMENT
APRIL 13, 2000
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TABLE OF CONTENTS
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Page
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SECTION 1. AUTHORIZATION AND SALE OF COMMON STOCK...........................................1
1.1. Authorization.......................................................................1
1.2. Sale of the Shares..................................................................1
SECTION 2. CLOSING DATE; DELIVERY...........................................................1
2.1. Closing Date........................................................................1
2.2. Delivery............................................................................1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................................1
3.1. Organization and Standing; Charter and Bylaws.......................................1
3.2. Corporate Power.....................................................................2
3.3. Capitalization......................................................................2
3.4. Authorization.......................................................................2
3.5. SEC Reports.........................................................................2
3.6. No Conflicts........................................................................3
3.7. Brokers or Finders..................................................................3
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.................................3
4.1. Experience; Accredited Investor.....................................................3
4.2. Investment..........................................................................4
4.3. Rule 144............................................................................4
4.4. No Federal or State Approval........................................................4
4.5. Access to Data......................................................................4
4.6. Authorization.......................................................................4
4.7. Address and Taxpayer Identification Number or Federal Tax Identification Number.....5
SECTION 5. CONDITIONS TO CLOSING BY THE PURCHASERS..........................................5
5.1. Representations and Warranties Correct..............................................5
5.2. Covenants...........................................................................5
5.3. Compliance Certificate..............................................................5
5.4. Opinion of Company's Counsel........................................................5
5.5. Investors Agreement.................................................................5
5.6. Proceedings and Documents; Legal Matters............................................5
5.7. Good Standing Certificate...........................................................6
5.8. Secretary's Certificate.............................................................6
SECTION 6. CONDITIONS TO CLOSING BY THE COMPANY.............................................6
6.1. Representations.....................................................................6
6.2. Covenants...........................................................................6
6.3. Investors Agreement.................................................................6
6.4. Proceedings and Documents; Legal Matters............................................6
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SECTION 7. RESTRICTIONS ON TRANSFERABILITY OF SHARES;
COMPLIANCE WITH SECURITIES ACT............................................................6
7.1. Restrictions on Transferability.....................................................6
7.2. Restrictive Legend..................................................................7
SECTION 8. COVENANTS........................................................................8
8.1. Fulfillment of Closing Conditions...................................................8
8.2. Agreement by Purchasers.............................................................8
8.3. Publicity...........................................................................8
SECTION 9. MISCELLANEOUS....................................................................8
9.1. Governing Law.......................................................................8
9.2. Survival............................................................................9
9.3. Successors and Assigns..............................................................9
9.4. Entire Agreement; Amendment.........................................................9
9.5. Notices, etc........................................................................9
9.6. Delays or Omissions.................................................................9
9.7. Severability.......................................................................10
9.8. Titles and Subtitles...............................................................10
9.9. Counterparts.......................................................................10
9.10. Construction......................................................................10
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EXHIBITS
A Schedule of and Signature Page for Purchasers
A- 1 Purchaser Address and Taxpayer Identification Number / Federal Tax
Identification Number Schedule
B Form of Opinion of Counsel to the Company
C Form of Amended and Restated Investors' Rights Agreement
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STOCK PURCHASE AGREEMENT
This Agreement is entered into effective as of April 13, 2000 by and
among Tricord Systems, Inc., a Delaware corporation (the "Company"), and each of
the persons listed on the Schedule of Purchasers attached hereto as Exhibit A
(each a "Purchaser" and collectively, the "Purchasers").
SECTION 1.
AUTHORIZATION AND SALE OF COMMON STOCK
1.1. Authorization. The Company has authorized the sale and issuance of
up to four million one hundred seventy-five thousand (4,175,000) shares (the
"Shares") of its common stock, par value $.01 per share ("Common Stock"), at the
Closing (as hereinafter defined).
1.2. Sale of the Shares. Subject to the terms and conditions hereof,
the Company will severally issue and sell to the Purchasers, and the Purchasers
will severally buy from the Company, the number of shares of Common Stock for
the aggregate purchase price set forth opposite such Purchaser's name on Exhibit
A hereto. The Company's agreements with each of the Purchasers are separate
agreements, and the sales of the Shares to each of the Purchasers are separate
sales.
SECTION 2.
CLOSING DATE; DELIVERY
2.1. Closing Date. The closing of the purchase and sale of the Shares
hereunder shall be held at the Company's offices located at 2905 Northwest
Boulevard, Suite 20, Plymouth, MN 55441, on or prior to April 21, 2000 (the
"Closing"), or at such other time and place upon which the Company and the
Purchasers acquiring in the aggregate more than 50% of the Shares pursuant to
the terms hereto mutually agree upon orally or in writing (the date of the
Closing is hereinafter referred to as the "Closing Date").
2.2. Delivery. At the Closing, the Company will deliver to each
Purchaser a certificate or certificates, registered in such Purchaser's name
representing the number of shares of Common Stock in the amount set forth
opposite such Purchaser's name on Exhibit A hereto, against payment of the
purchase price therefor, by certified check payable to the Company or wire
transfer per the Company's instructions.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the disclosure schedule prepared by the Company
and delivered to the Purchasers, dated as of the date hereof (the "Disclosure
Schedule"), the Company represents and warrants to each Purchaser both as of the
date hereof and again as of the Closing as follows:
3.1. Organization and Standing; Charter and Bylaws. The Company is a
corporation duly organized, existing and in good standing under the laws of the
State of Delaware. The Company has all requisite corporate power and authority
to own and operate its properties and
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assets, and to carry on its business as presently conducted. The Company
currently is qualified to do business as a foreign corporation in each
jurisdiction where the failure to be so qualified would have a material adverse
effect on the Company's properties and business as now conducted or its
financial condition. The Company has made available to Purchasers a true,
correct and complete copy of its Bylaws as in full force and effect on the date
hereof (the "Bylaws") and a true, correct and complete copy of the Company's
Certificate of Incorporation, as amended (the "Charter"), as in full force and
effect on the date hereof.
3.2. Corporate Power. The Company has and will have at the Closing Date
all requisite corporate power and authority to execute and deliver this
Agreement and the Amended and Restated Investors' Rights Agreement (as defined
in Section 5.5 hereof), to sell and issue the Shares hereunder and to carry out
and perform its obligations under the terms of this Agreement and the Amended
and Restated Investors' Rights Agreement referred to in Section 5.5 below.
3.3. Capitalization. The authorized capital stock of the Company
consists of 80,750,677 shares, 75,000,000 of which are designated as Common
Stock, 2,043,966 of which are designated as series C convertible preferred
stock, $.0l par value ("Series C Preferred Stock"), 706,711 of which are
designated as series D convertible preferred stock, $.01 par value ("Series D
Preferred Stock"), 2,500,000 of which is undesignated stock, $.01 par value
("Undesignated Stock"), and 500,000 shares which are designated as series A
junior preferred stock, $.01 par value (the "Series A Junior Preferred Stock").
As of April 4, 2000, there were 20,984,111 shares of Common Stock outstanding,
and there were no shares of Series C Preferred Stock, Series D Preferred Stock,
Undesignated Stock or Series A Junior Preferred Stock outstanding. The
outstanding shares of the Company's capital stock have been duly authorized and
validly issued, and are fully paid and nonassessable.
3.4. Authorization. All corporate action on the part of the Company,
its directors and its stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Amended and Restated
Investors' Rights Agreement by the Company, the authorization, sale, issuance
and delivery of the Shares and the performance of all of the Company's
obligations hereunder has been taken or will have been taken prior to the
Closing. This Agreement and the Amended and Restated Investors' Rights
Agreement, when executed and delivered by the Company, shall constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms, except as such enforcement is subject to the effect of (i) any applicable
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable; and will be
free of any pledges, liens, encumbrances, preemptive rights or restrictions
except for restrictions on transfer under federal and state securities laws as
set forth herein and as set out in the Amended and Restated Investors' Rights
Agreement.
3.5. SEC Reports. The Company has previously made available to the
Purchasers true and complete copies of its (i) Annual Reports on Form 10-K for
its fiscal year ended December 31, 1999, (ii) Quarterly Reports on Form l0-Q for
its quarterly periods ended March 31, 1999, June 30, 1999 and September 30,
1999, (iii) Current Reports on Form 8-K dated May 18, 1999, August 4, 1999 and
September 23, 1999, (iv) definitive proxy statement for its
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1999 annual stockholders meeting, and (v) any other reports or registration
statements filed by the Company with the Securities and Exchange Commission (the
"Commission") since January 1, 1999, except for preliminary material, which are
all the documents that the Company was required to file since that date
(collectively, the "SEC Reports"). As of their respective dates, the SEC Reports
complied as to form in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations of the Commission thereunder applicable to such SEC Reports. As
of their respective dates, the SEC Reports did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The audited consolidated
financial statements and unaudited interim financial statements of the Company
included in the SEC Reports comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the Commission with respect thereto (except as may be indicated thereon or in
the notes thereto), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby and present fairly the financial condition of the Company as of
such dates and the results of operations, changes in stockholders' equity and
cash flows of the Company for such period.
3.6. No Conflicts. The execution, delivery and performance of and
compliance with this Agreement and the Amended and Restated Investors' Rights
Agreement, and the issuance of the Shares, have not resulted and will not result
(i) in any material violation of, or conflict with, or constitute a material
default under, the Company's Charter or Bylaws or any mortgage, indebtedness,
lease, indenture, contract, agreement, license, instrument, judgement or decree
to which the Company is party or otherwise subject to, or (ii) in the creation
of, any mortgage, pledge, lien, encumbrance or charge upon any of the properties
or assets of the Company; and there is no such violation or default which
materially and adversely affects the business of the Company or any of its
properties or assets.
3.7. Brokers or Finders. Except for such amounts as may be owed to
Soundview Technology Group, Inc. as a result of the transactions contemplated by
this Agreement, the Company has not incurred, and will not incur, directly or
indirectly, as a result of any action taken by the Company, any liability for
brokerage or finders' fees or agents' commissions or any similar charge in
connection with this Agreement.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to the Company
with respect to the purchase of the Shares as of the date hereof and again as of
the Closing, as follows:
4.1. Experience; Accredited Investor. Purchaser is a sophisticated
investor and has experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company so that Purchaser
is capable of evaluating the merits and risks of Purchaser's investment in the
Company and has the capacity to protect Purchaser's own interests. Further,
Purchaser recognizes that an investment in the Company is highly speculative and
involves significant risks (including those identified in the SEC Reports)
including a complete loss of such investment. In addition, Purchaser is an
"accredited investor" as such term
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is defined in Rule 501(a) of Regulation D under the Securities Act. Purchaser
(i) has no need for liquidity in the investment in the Shares, (ii) is able to
bear the substantial economic risk of an investment in the Shares for an
indefinite period and (iii) could afford the complete loss of Purchaser's
investment in the Shares.
4.2. Investment. Purchaser is acquiring the Shares for investment for
Purchaser's own account, not as a nominee or agent, and not with the view to, or
for resale in connection with, any distribution thereof and, if Purchaser is not
a natural person, it was not formed solely for purposes of making this
investment. Purchaser understands that the Shares to be purchased have not been,
and will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), or qualified under applicable blue sky or other state
securities laws by reason of specific exemptions from the registration
provisions of the Securities Act and the qualification provisions of applicable
blue sky and other state securities laws, the availability of which depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of such Purchaser's representations as expressed herein. In acquiring
the Shares, Purchaser is acting on Purchaser's own behalf and is not acting
together with any other person or entity (including any other Purchasers) for
the purpose of acquiring, holding, voting or disposing of the Shares within the
meaning of Section 13(d) of the Exchange Act.
4.3. Rule 144. Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions.
4.4. No Federal or State Approval. Purchaser understands that no
federal or state agency has passed upon the Shares or made any finding or
determination as to the fairness of the investment or any recommendation or
endorsement of the Shares.
4.5. Access to Data. Purchaser has read carefully and understands this
Agreement and has consulted with Purchaser's own attorney, accountant or
investment advisor with respect to the investment contemplated hereby and its
suitability for Purchaser. Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with its management and has
had the opportunity to review the Company's facilities. Purchaser also has had
opportunity to ask questions of officers of the Company. Purchaser's taking
advantage of any such opportunity however, does not limit or modify the
representations and warranties of the Company in Section 3 hereof or the right
of the Purchaser to rely thereon.
4.6. Authorization. This Agreement and the Amended and Restated
Investors' Rights Agreement, when executed and delivered by such Purchaser, will
constitute valid and legally binding obligations of the Purchaser, enforceable
in accordance with their terms, except as such enforcement is subject to the
effect of (i) any applicable bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors' rights generally, and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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4.7. Address and Taxpayer Identification Number or Federal Tax
Identification Number. The address and taxpayer identification number set forth
opposite each name on the Purchaser Address and Taxpayer Identification Number
or Federal Tax Identification Number Schedule attached hereto as Exhibit A-1 are
true and correct, such address is Purchaser's residence or principal place of
business, and Purchaser has no present intention of changing such residence or
principal place of business to any other state or jurisdiction.
SECTION 5.
CONDITIONS TO CLOSING BY THE PURCHASERS
The Purchasers' obligations to purchase the Shares at the Closing are,
at the option of the Purchasers, subject to the fulfillment of the following
conditions:
5.1. Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects as of the Closing Date with the same effect as though such
representations and warranties had been made on the Closing Date except to the
extent any such representation specifically references an earlier date.
5.2. Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with.
5.3. Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate executed by the Co-Chief Executive Officer of the
Company, dated the Closing Date, and certifying, among other things, to the
fulfillment of the conditions specified in Sections 5.1 and 5.2 of this
Agreement.
5.4. Opinion of Company's Counsel. The Purchasers shall have received
from Oppenheimer Wolff & Donnelly LLP, counsel to the Company, an opinion
addressed to the Purchasers, dated the Closing Date, in form and substance
satisfactory to the Purchasers, substantially in the form of Exhibit B hereto.
5.5. Amended and Restated Investors' Rights Agreement. The Purchasers,
the Company and such Existing Investors (as defined in the Amended and Restated
Investors' Rights Agreement) as necessary to carry out the transactions therein
shall have entered into an Amended and Restated Investors' Rights Agreement
providing for, among other things, certain registration rights, rights of first
refusal and information rights, substantially in the form attached hereto as
Exhibit C.
5.6. Proceedings and Documents; Legal Matters. All corporate and other
proceedings in connection with the transactions contemplated at the Closing, and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to the Purchasers. All material matters of a legal nature which
pertain to this Agreement and the Amended and Restated Investors' Rights
Agreement and the transactions contemplated hereby and thereby, shall be
reasonably approved by the Purchasers on advice of counsel.
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5.7. Good Standing Certificate. The Company shall have delivered to the
Purchasers a Certificate dated as of a recent date issued by the Secretary of
State of Delaware to the effect that the Company is legally existing and in good
standing.
5.8. Secretary's Certificate. The Company shall have delivered to the
Purchasers a certificate executed by the Secretary of the Company dated as of
the Closing, certifying as to (a) the directors resolutions authorizing the
transactions contemplated by this Agreement; (b) the Charter of the Company; (c)
the Bylaws of the Company; (d) the incumbency of the Chairman, Co-Chief
Executive Officer and Secretary of the Company; and (e) such other matters as
the Purchasers may reasonably request.
SECTION 6.
CONDITIONS TO CLOSING BY THE COMPANY
The Company's obligation to sell and issue the Shares at the Closing
is, at the option of the Company, subject to the fulfillment as of the Closing
Date of the following conditions:
6.1. Representations. The representations made by the Purchasers in
Section 4 hereof shall be true and correct in all material respects on the
Closing Date with the same effect as though such representations and warranties
had been made on the Closing Date except to the extent any such representation
specifically references an earlier date.
6.2. Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with.
6.3. Amended and Restated Investors' Rights Agreement. The Purchasers,
the Company and such Existing Investors (as defined in the Amended and Restated
Investors' Rights Agreement) as necessary to carry out the transactions therein
shall have entered into the Amended and Restated Investors' Rights Agreement.
6.4. Proceedings and Documents; Legal Matters. All corporate and other
proceedings in connection with the transactions contemplated at the Closing, and
all documents incident thereto, shall be reasonably satisfactory in form and
substance to the Company. All material matters of a legal nature which pertain
to this Agreement and the Amended and Restated Investors' Rights Agreement and
the transactions contemplated hereby and thereby, shall be reasonably approved
by the Company on advice of counsel.
SECTION 7.
RESTRICTIONS ON TRANSFERABILITY OF SHARES;
COMPLIANCE WITH SECURITIES ACT
7.1. Restrictions on Transferability.
(a) The Shares referred to herein are "Restricted Securities" and
shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 7, which conditions are intended
to be in compliance with the provisions of the Securities Act. Each
Purchaser will cause any proposed purchaser, assignee, transferee, or
pledgee
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of the Shares held by such Purchaser to agree to take and hold such
securities subject to the provisions and upon the conditions specified
in this Section 7.
(b) In addition to the restrictions imposed by Section 7.1(a)
hereof, each Purchaser agrees that, until the earlier of September 15,
2000 or such time as the Shares held by such Purchaser are registered
under the Securities Act pursuant to the Amended and Restated
Investors' Rights Agreement, such Purchaser shall not, without the
consent of the Company, (i) sell, pledge, offer to sell, contract to
sell (including, without limitation, any short sale), sell any option
or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock (whether such shares or any such securities are then owned by the
Purchaser or are thereafter acquired) or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash
or otherwise, other than transfers to affiliates of the Purchaser that
agree to be bound by the terms of this Section 7.1(b).
7.2. Restrictive Legend. Each certificate representing (i) the Shares,
or (ii) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall be stamped or otherwise imprinted with legends in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE HOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.
Each Purchaser consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Shares in order to
implement the restrictions on transfer established in this Section 7.
The Company agrees to cause new certificates to be issued without
any such legend to any Purchaser and such notation to be removed upon request by
such Purchaser when reasonable in light of the then general practice under the
Securities Act.
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SECTION 8.
COVENANTS
8.1. Fulfillment of Closing Conditions. The Company and each Purchaser
agree to use their commercially reasonable best efforts to cause the fulfillment
of the closing conditions (to the extent, in whole or in part, within their
direct or indirect control) set forth in Sections 5 and 6 hereof.
8.2. Agreement by Purchasers. Each Purchaser hereby severally agrees
not to take any of the following actions without the prior written approval of
the Board of Directors of the Company:
(a) No Purchaser shall, directly or indirectly, offer, sell or
otherwise transfer any Shares except pursuant to a bona fide public
offering registered under the Securities Act, Rule 144 under the
Securities Act or other transaction that effects a broad distribution
of such Shares and that, to the best of the Purchaser's knowledge,
would not result in such acquiring party or related group of persons to
such acquiring party beneficially owning more than 3% of the combined
voting power of the then outstanding securities of the Company
ordinarily having the right to vote at elections of directors ("Voting
Securities"); provided, however, that this provision shall not prohibit
(i) the assignment by a Purchaser to any wholly owned subsidiary or
parent of, or to any corporation or entity that is, within the meaning
of the Securities Act, controlling, controlled by or under common
control with, any such Purchaser, (ii) the assignment to members of the
Purchaser's immediate family and to trusts or entities established for
the benefit of the Purchaser or its immediate family, or (iii) a bona
fide pledge to an institutional lender for money borrowed, provided, in
each case, that the transferees agree to be bound by the terms and
conditions of this Section.
(b) No Purchaser shall solicit proxies or become a "participant"
in a "solicitation" (as such terms are defined in Regulation 14A under
the Exchange Act) in opposition to the recommendation of the majority
of the directors of the Company with respect to the election of
directors.
8.3. Publicity. The Company and each Purchaser agree not to issue any
press release or make any public announcement with respect to this Agreement or
the transactions contemplated hereby unless the prior written consents of the
other parties hereto have been obtained, which consents shall not be
unreasonably withheld; provided however, that the Company may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case it will use its best efforts to advise the Purchasers prior to making such
disclosure).
SECTION 9.
MISCELLANEOUS
9.1. Governing Law. This Agreement shall be governed by and construed
in all respects in accordance with the laws of the State of Delaware
(notwithstanding the laws of conflict of any jurisdiction).
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9.2. Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by Purchasers and
the closing of the transactions contemplated hereby for a period of two years.
9.3. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
9.4. Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto at the Closing constitute the complete and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that holders of a majority of the Shares issued and issuable
hereunder may waive, consent to, modify, or amend, on behalf of all such
holders, any provisions hereof.
9.5. Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing (or in the form of a telex or telecopy
(confirmed in writing) to be given only during the recipient's normal business
hours unless arrangements have otherwise been made to receive such notice by
telex or telecopy outside of normal business hours) and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, or telex or telecopy (as provided above) addressed (a) if to a
Purchaser, at such address as such Purchaser shall have furnished to the Company
in writing or (b) if to any other holder of any Shares, at such address as such
holder shall have furnished the Company in writing or, until any such holder so
furnishes an address to the Company, then to the address of the last holder of
such Shares who has so furnished an address to the Company or (c) if to the
Company, sent to its principal executive offices and addressed to the attention
of the Co-Chief Executive Officer, or at such other address as the Company shall
have furnished to the Purchasers.
Each such notice or other communication shall for all purposes of
this Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid or, if
by telex or telecopy, when received and confirmed in the manner provided above.
9.6. Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement shall
impair any such right, power or remedy of such holder nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing
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and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
9.7. Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
invalid, unenforceable or void, this Agreement shall continue in full force and
effect without such provision to the fullest extent permitted under applicable
law. In such event, the parties shall negotiate, in good faith, a legal, valid
and enforceable substitute provision which most nearly effects the intent of the
parties in entering into this Agreement.
9.8. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
9.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one and
the same instrument.
9.10. Construction. Whenever the context so requires, the singular
number includes the plural and vice versa, and a reference to one gender
includes the other gender or the neuter.
Balance of Page Intentionally Blank
10
<PAGE> 14
The foregoing Agreement is hereby executed as of the date first above written.
TRICORD SYSTEMS, INC.
By: /s/ John J. Mitcham
---------------------------
Name: John J. Mitcham
----------------------
Title: Chairman and Co-CEO
---------------------
11
<PAGE> 15
EXHIBIT A
Schedule of and Signature Page for Purchasers
--------------------------------------------------------------------------------
PURCHASER NUMBER OF SHARES AMOUNT
--------------------------------------------------------------------------------
OPPENHEIMER VARIABLE ACCOUNT FUNDS One million eight Fifteen million
FOR THE ACCOUNT OF hundred seventy- dollars
OPPENHEIMER AGGRESSIVE GROWTH FUND five thousand ($15,000,000)
(1,875,000)
By: /s/ Bruce Bartlett,
--------------------------------------------------
Bruce Bartlett, Vice President & Portfolio Manager
--------------------------------------------------------------------------------
(Note: each Purchaser has signed a separate signature page;
balance of page intentionally blank;
other signature pages for Purchasers, if any, follow.)
<PAGE> 16
EXHIBIT A
Schedule of and Signature Page for Purchasers
--------------------------------------------------------------------------------
PURCHASER NUMBER OF SHARES AMOUNT
--------------------------------------------------------------------------------
HARTFORD CAPITAL APPRECIATION FUND One million two Nine million
hundred twelve seven hundred
By: Wellington Management Company, LLP thousand five thousand
Its: Investment Advisor hundred dollars
(1,212,500) ($9,700,000)
By: /s/ Mary Ann Tynan
--------------------------------------------------
Mary Ann Tynan, Senior Vice President and Partner
--------------------------------------------------------------------------------
(Note: each Purchaser has signed a separate signature page;
balance of page intentionally blank;
other signature pages for Purchasers, if any, follow.)
<PAGE> 17
EXHIBIT A
Schedule of and Signature Page for Purchasers
--------------------------------------------------------------------------------
PURCHASER NUMBER OF SHARES AMOUNT
--------------------------------------------------------------------------------
HAZELBROOK PARTNERS, L.P. Thirty-seven Three hundred
thousand five thousand
By: Wellington Management Company, LLP hundred (37,500) dollars
Its: Investment Advisor ($300,000)
By: /s/ Mary Ann Tynan
--------------------------------------------------
Mary Ann Tynan, Senior Vice President and Partner
--------------------------------------------------------------------------------
(Note: each Purchaser has signed a separate signature page;
balance of page intentionally blank;
other signature pages for Purchasers, if any, follow.)
<PAGE> 18
EXHIBIT A
Schedule of and Signature Page for Purchasers
--------------------------------------------------------------------------------
PURCHASER NUMBER OF SHARES AMOUNT
--------------------------------------------------------------------------------
THE ABERNATHY GROUP LONG-TERM One-hundred One million
CAPITAL PARTNERS, LP twenty-five dollars
By: The Abernathy Group Long Term thousand ($1,000,000)
Capital Partners (125,000)
General Partner, LLC
By: /s/ Bruce B. Johnson
--------------------------------------------------
Bruce B. Johnson, A Managing Member
--------------------------------------------------------------------------------
(Note: each Purchaser has signed a separate signature page;
balance of page intentionally blank;
other signature pages for Purchasers, if any, follow.)
<PAGE> 19
EXHIBIT A-1
PURCHASER ADDRESS AND TAXPAYER IDENTIFICATION NUMBER SCHEDULE
--------------------------------------------------------------------------------
PURCHASER SOCIAL SECURITY ADDRESS
NUMBER OR
FEDERAL TAX
IDENTIFICATION
NUMBER
--------------------------------------------------------------------------------
Oppenheimer Variable 84-0885458 Oppenheimer Variable Account
Account Funds for the Funds for the account of
account of Oppenheimer Oppenheimer Aggressive
Aggressive Growth Fund Growth Fund
c/o OppenheimerFunds, Inc.
Attn: Banking Operations
6803 South Tucson Way
Englewood, CO 80112
with a copy to
The Bank of New York
Attn: Mutual Funds Custody
100 Church Street
New York, NY 10286
--------------------------------------------------------------------------------
(Note: each Purchaser has executed a separate exhibit A-1;
balance of page intentionally blank;
other exhibit A-1 pages for Purchasers, if any, follow.)
<PAGE> 20
EXHIBIT A-1
PURCHASER ADDRESS AND TAXPAYER IDENTIFICATION NUMBER SCHEDULE
--------------------------------------------------------------------------------
PURCHASER SOCIAL SECURITY ADDRESS
NUMBER OR
FEDERAL TAX
IDENTIFICATION
NUMBER
--------------------------------------------------------------------------------
Hartford Capital Hartford Capital Appreciation
Appreciation Fund Fund
c/o Wellington Management
Company, LLP
75 State Street
Boston, MA 02109
Attn: Tina Raymond
--------------------------------------------------------------------------------
(Note: each Purchaser has executed a separate exhibit A-1;
balance of page intentionally blank;
other exhibit A-1 pages for Purchasers, if any, follow.)
<PAGE> 21
EXHIBIT A-1
PURCHASER ADDRESS AND TAXPAYER IDENTIFICATION NUMBER SCHEDULE
--------------------------------------------------------------------------------
PURCHASER SOCIAL SECURITY ADDRESS
NUMBER OR
FEDERAL TAX
IDENTIFICATION
NUMBER
--------------------------------------------------------------------------------
Hazelbrook Partners, L.P. Hazelbrook Partners, L.P.
c/o Wellington Management
Company, LLP
75 State Street
Boston, MA 02109
Attn: Sean Higgins
--------------------------------------------------------------------------------
(Note: each Purchaser has executed a separate exhibit A-1;
balance of page intentionally blank;
other exhibit A-1 pages for Purchasers, if any, follow.)
<PAGE> 22
EXHIBIT A-1
PURCHASER ADDRESS AND TAXPAYER IDENTIFICATION NUMBER SCHEDULE
--------------------------------------------------------------------------------
PURCHASER SOCIAL SECURITY ADDRESS
NUMBER OR
FEDERAL TAX
IDENTIFICATION
NUMBER
--------------------------------------------------------------------------------
The Abernathy Group 13-3899533 Suite 3800
Long Term Capital 20 Exchange Place
Partners, LP New York, NY 10005
--------------------------------------------------------------------------------
(Note: each Purchaser has executed a separate exhibit A-1;
balance of page intentionally blank;
other exhibit A-1 pages for Purchasers, if any, follow.)
<PAGE> 23
EXHIBIT B
Form of Opinion of Oppenheimer Wolff & Donnelly LLP
<PAGE> 24
[Letterhead]
<TABLE>
<S> <C> <C>
OPPENHEIMER Amsterdam New York
----------- Brussels Orange County
Oppenheimer Wolfe & Donnelly LLP Chicago Paris
Geneva Saint Paul
Los Angeles Silicon Valley
Minneapolis Washington, D.C.
www.oppenheimer.com
</TABLE>
April 17, 2000
To the Purchasers
Listed on Exhibit A to the
Stock Purchase Agreement
Described Herein
Ladies and Gentlemen:
We have acted as counsel to Tricord Systems, Inc., a Delaware corporation (the
"Company"), in connection with the sale by the Company of up to four million one
hundred seventy-five (4,175,000) shares (the "Shares") of the Company's common
stock, par value $.01 per share (the "Common Stock"), pursuant to the Stock
Purchase Agreement dated as of April 13, 2000 (the "Purchase Agreement") among
the Company and each of the persons or entities listed on the Schedule of
Purchasers attached thereto as Exhibit A (each a "Purchaser" and collectively
the "Purchasers"). This opinion is furnished to you pursuant to Section 5.4 of
the Purchase Agreement. Capitalized terms used in this opinion are as defined in
the Purchase Agreement unless otherwise specifically provided herein.
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
As to the various questions of fact material to such opinions, we have, when
relevant facts were not independently established, relied upon officers of the
Company and upon statements of fact, as opposed to conclusions of law,
contained in the Purchase Agreement.
In our examination of such documents, we have assumed, in addition to the other
assumptions set forth herein, that all signatures on all documents submitted to
us are genuine, all documents submitted to us as originals are accurate and
complete and all documents submitted to us as copies are true, correct and
complete copies of originals thereof. In making our examination of documents
executed by parties other than the Company, we have assumed that such parties
have all necessary corporate or other power, authority and legal right and
capacity to execute and deliver such documents and perform their respective
obligations thereunder and have also assumed the due authorization by all
requisite action to the execution and delivery of such documents by such
parties.
Base on the foregoing, and subject to the qualifications and limitations stated
herein, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing in good
standing under the laws of the State of Delaware with full corporate power
and authority to execute and deliver the Purchase Agreement, the Amended
and Restated Investors' Rights Agreement dated April 13, 2000 (the
"Investors' Rights Agreement") and to perform the actions contemplated
thereby.
<PAGE> 25
[LOGO]
The Purchasers
April 17, 2000
Page 2
2. The Shares have duly authorized and, when issued, delivered and paid
for in compliance with the provisions of the Purchase Agreement, will be
validly issued, fully paid and nonassessable.
3. The Purchase Agreement and the Investors' Rights Agreement have each
been duly authorized, executed and delivered by the Company and each
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its respective terms.
4. The execution, delivery and performance of and compliance with the
Purchase Agreement and the Investors' Rights Agreement, and the issuance of
the Shares, have not resulted and will not result in a material violation
of, or conflict with, or constitute a material default under, the Company's
Charter or Bylaws or, to our knowledge, any mortgage, indebtedness, lease,
indenture, contract, agreement, license, instrument, judgement or decree to
which the Company is a party or by which the Company is bound.
In addition to the qualifications and limitations set forth above, the opinions
expressed herein are subject to the following qualifications and limitations.
(a) We express no opinion with respect to laws other than those of the
State of Delaware and the federal laws of the United States of America, and
we assume no responsibility as to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction.
(b) To the extent that the opinions expressed above relate to the
enforceability of any agreement or document referred to herein, the
opinions are subject to, and may be limited by, applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) Our opinion is subject to the effect of generally applicable laws that
(i) provide for the enforcement or oral waivers or modifications where a
material change of position in reliance thereon has occurred or provide
that a course of performance may operate as a waiver, (ii) limit the
enforcement of provisions of a contract that purport to require waiver of
the obligations of good faith, fair dealing, diligence and reasonableness,
(iii) provide that forum selection clauses in contracts are not necessarily
binding on courts, (iv) limit the availability of a remedy under certain
circumstances where another remedy has been elected, (v) limit the
enforceability of provisions releasing, exculpating or exempting a party
from, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct, (vi)
govern and afford judicial discretion regarding the determination of
damages and entitlement to attorneys' fees and other costs, (vii) may
permit a party who has materially failed to render or offer performance
required by a contract to cure that failure unless either permitting a cure
would unreasonably hinder the aggrieved party from making substitute
arrangements for performance or it is important under the circumstances to
the aggrieved party that performance occurs by the date stated in the
contract, (viii) may limit the enforceability of provisions restricting
competition, the solicitation of
<PAGE> 26
[Letterhead]
OPPENHEIMER WOLFF & DONNELLY LLP
The Purchasers
April 17, 2000
Page 3
customers or employees, the use of disclosure or information or other
activities in restraint of Trade and (ix) may require mitigation of
damages.
(d) Whenever our statements herein with respect to the existence or
absence of facts is qualified by the phrase "to our knowledge" or some
other similar phrase, it is intended to indicate that, during the course of
our representation, no information that would give us actual knowledge of
the existence or absence of such facts has come to the attention of those
persons in this firm who have rendered legal services to the Company in
connection with the representation described above. We have not, however,
undertaken any independent investigation to determine the existence or
absence of such facts, and any limited inquiry undertaken by us during the
preparation of this opinion letter should not be regarded as such an
investigation; no inference as to our knowledge of the existence or absence
of such facts should be drawn from the fact of our representation of
Company.
We are furnishing this opinion to you solely for your benefit in connection
with the above-described transactions. It is not to be used, circulated, quoted
or otherwise referred to for any other purpose, and no one other than the
addressees hereof are entitled to rely on this opinion. This opinion speaks
only as of the date above written, and we hereby expressly disclaim any duty to
update any of the statements made herein.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
/s/ Oppenheimer Wolff & Donnelly LLP
<PAGE> 27
EXHIBIT C
Form of Amended and Restated Investors' Rights Agreement
(attached)
