-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M0+wmLNvN8ODXjR6AACTVy5zRUAGa6fM2or+6d6palzTD4w3Tx8kBrcTkahpdADi vgnk+NxkwGRePmkaMVg3qg== /in/edgar/work/20000914/0001092388-00-000654/0001092388-00-000654.txt : 20000922 0001092388-00-000654.hdr.sgml : 20000922 ACCESSION NUMBER: 0001092388-00-000654 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20000901 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000914 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GEOWORKS /CA/ CENTRAL INDEX KEY: 0000922285 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 942920371 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-23926 FILM NUMBER: 723101 BUSINESS ADDRESS: STREET 1: 960 ATLANTIC AVENUE CITY: ALAMEDA STATE: CA ZIP: 94501 BUSINESS PHONE: 5108141660 8-K 1 0001.txt FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) SEPTEMBER 1, 2000 ----------------------------- GEOWORKS CORPORATION --------------------------------------------------------- (Exact name of registrant as specified in its charter) NEVADA 0-23926 94-2920371 -------------------------- ------------------ ------------------- (State of other jurisdiction (Commission File (IRS Employer of incorporation) Number) Identification No.) 960 ATLANTIC AVENUE, ALAMEDA, CALIFORNIA 94501 ---------------------------------------- ------------------ (Address of principal executive offices) (Zip code) Registrant's telephone number, including area code (510) 814-1660 ---------------------------- ----------------------------------------------------------------- (Former name or former address, if changed since last report) 1 ITEM 5. OTHER EVENTS. On September 1, 2000, Geoworks Corporation (the "Company"), issued and sold an aggregate of three hundred fifty-five thousand, five hundred fifty-six (355,556) shares of its common stock to two affiliated entities -- 350,312 shares to Integral Capital Partners V, L.P., a Delaware limited partnership, and 5,244 shares to Integral Capital Partners V, Side Fund, L.P., a Delaware limited partnership (collectively, "Integral"). The aggregate purchase price of the transaction was five million dollars ($5,000,000), or approximately $14 1/16th per share. As part of the transaction, the Company agreed to use its best efforts to file with the Securities and Exchange Commission (the "SEC"), a registration statement on Form S-3 (or any applicable replacement form) covering the resale of the shares sold to Integral. The Company undertook to file the registration statement no later than November 30, 2000, and, thereafter, to proceed as expeditiously as possible to cause such registration statement to be declared effective and qualified under other applicable securities laws. The Company also agreed to use its best efforts to keep the registration statement effective until the earlier of (i) two (2) years from the date it was declared effective by the SEC, (ii) the date that Integral or any permitted assignee no longer owned any securities that were the subject of the registration statement, or (iii) the date on which all of such securities become freely transferable pursuant to subsection (k) of Rule 144. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. c. Exhibits 2.1 Stock Purchase Agreement, dated as of September 1, 2000, by and among Geoworks Corporation, Integral Capital Partners V, L.P., and Integral Capital Partners V, Side Fund, L.P. 2.2 Registration Rights Agreement, dated as of September 1, 2000, by and among Geoworks Corporation, Integral Capital Partners V, L.P., and Integral Capital Partners V, Side Fund, L.P. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed by the undersigned hereunto duly authorized. Date: September 14, 2000 Geoworks Corporation By: /s/ Stephen T. Baker ---------------------------- Stephen T. Baker Chief Financial Officer (Duly Authorized Officer and Principal Financial Officer) 3 Exhibit Index 2.1 Stock Purchase Agreement, dated as of September 1, 2000, by and among Geoworks Corporation, Integral Capital Partners V, L.P., and Integral Capital Partners V, Side Fund, L.P. 2.2 Registration Rights Agreement, dated as of September 1, 2000, by and among Geoworks Corporation, Integral Capital Partners V, L.P., and Integral Capital Partners V, Side Fund, L.P. 4 EX-2.1 2 0002.txt EXHIBIT 2.1 EXHIBIT 2.1 STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of September 1, 2000, by and among Geoworks Corporation, a Delaware corporation ("Company"), Integral Capital Partners V, Side Fund, L.P., a Delaware limited partnership, and Integral Capital Partners V, L.P., a Delaware limited partnership (collectively, "Purchaser"). The parties hereby agree as follows: 1. DEFINITIONS. 1.1 "Agreement" shall mean, and the words "herein," "hereof," "hereunder" and words of similar import shall refer, to this instrument and any amendment hereto. 1.2 "Commission" shall refer to the Securities and Exchange Commission. 1.3 "Commissioner" shall refer to the California Commissioner of Corporations. 1.4 "Common Stock" shall refer to the common stock, par value $.001 per share, of Company. 1.5 "Registration Rights Agreement" shall refer to that certain Registration Rights Agreement, of even date herewith, to be made by and between Company and Purchaser. 1.6 "Person" shall refer to any corporation, trust, partnership, individual, association, or other entity. 1.7 The "Securities Act" shall refer to the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. 1.8 The "Securities Exchange Act" shall refer to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. 2. PURCHASE AND SALE. Subject to the terms and conditions set forth herein, Company agrees to sell to Purchaser and Purchaser agrees to purchase from Company, in the aggregate of THREE HUNDRED FIFTY-FIVE THOUSAND FIVE HUNDRED FIFTY-SIX (355,556) shares of Common Stock ("Purchased Stock"), 350,312 shares to Integral Capital Partners V, L.P., and 5,244 shares to Integral Capital Partners V, Side Fund, L.P., for an aggregate purchase price of FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) allocated pro rata ("Purchase Price"). The closing of the issuance of the Common Stock (the "Closing") will take place at the offices of Bryan Cave LLP, located at 2020 Main Street, Suite 600, Irvine, CA 92614, on September 1, 2000, or at such other time and place thereafter as Company and Purchaser may direct. At the Closing, Company will deliver to Purchaser a certificate(s) in the name of Purchaser representing the Purchased Stock ("Certificate"). 1 3. CONDITIONS OF PURCHASER'S OBLIGATIONS The obligation of Purchaser to consummate the transactions contemplated at the Closing is subject to the satisfaction on or before the date of the Closing of the following conditions, all or any of which may be waived in writing by Purchaser: 3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties in Section 5 will be true and correct at and as of the date of the Closing as though then made, except to the extent of changes caused by the transactions expressly contemplated herein. 3.2 EXAMINATION OF BOOKS AND RECORDS. RECORDS. Company shall have made available to Purchaser or its representatives for inspection all of Company's books, records, contracts, and documents of, or relating to, Company, or any of its officers, directors, and employees, during normal business hours. 3.3 CLOSING FEES. Company shall pay to Purchaser their legal fees in an amount not to exceed Five Thousand Dollars ($5,000). 3.4 REGISTRATION RIGHTS AGREEMENT. Company shall have executed and delivered to Purchaser the Registration Rights Agreement. 3.5 DELIVERY OF CERTIFICATE. Company shall have tendered the Certificate to Purchaser. 3.6 OPINION OF COMPANY COUNSEL. Purchaser at the Closing shall have received from Bryan Cave LLP, counsel to Company, an opinion dated as of the Closing, in substantially the form attached hereto as EXHIBIT 3.6. 4. CONDITIONS OF COMPANY'S OBLIGATIONS. The obligation of Company to issue the Purchased Stock is subject to the satisfaction on or before the date of the Closing of the following conditions, all or any of which may be waived in writing by Company: 4.1 REPRESENTATIONS AND WARRANTIES. The following representations and warranties are made by Purchaser and are now and will be true and correct at and as of the date of the Closing: (i) This Agreement constitutes a valid and legally binding obligation of Purchaser, enforceable in accordance with its terms, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and the availability of equitable remedies. (ii) This Agreement is made with Purchaser in reliance upon Purchaser's representations to Company, which, by Purchaser's execution of this Agreement, Purchaser hereby confirms, that (A) the Purchased Stock is being acquired for investment for Purchaser's own account, not as a nominee or agent, and not with a 2 view to the resale or distribution of any part thereof to the public, and that Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same to; (B) Purchaser does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to person or to any third person, with respect to any of the Purchased Stock other than to accredited investors as defined in Section 4.1 (vi); (C) Purchaser is not an underwriter of the Purchased Stock within the meaning of Section 2(11) of the Securities Act; and (D) Purchaser has full power and authority to enter into this Agreement. (iii) Purchaser has not been attracted to the purchase of the Purchased Stock by any publication or any advertising, and the transactions contemplated by this Agreement are not being effected by or through a broker-dealer. (iv) Purchaser believes it has received the information it considers necessary or appropriate for deciding whether to purchase the Purchased Stock, and represents that it has had an opportunity to ask questions and receive answers from Company regarding Company, its business and prospects, and the terms and conditions of the offering of the Purchased Stock. (v) Purchaser has not been organized for the purpose of acquiring the Purchased Stock and is an investor in securities of publicly-held and privately-held companies and acknowledges that it is able to protect its interests in connection with the purchase of the Purchased Stock, can bear the economic risk of its investment with full understanding that it can lose its entire investment in the Purchased Stock without producing a material adverse change in its financial condition, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Purchased Stock. (vi) Purchaser is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated by the Commission, as presently in effect. (vii) Purchaser understands that (A) neither the Purchased Stock nor the sale thereof to it has been registered under the Securities Act, or under any state securities law; (B) no registration statement has been filed with the Commission, nor with any other regulatory authority and that, as a result, any benefit which might normally accrue to an investor such as Purchaser by an impartial review of such a registration statement by the Commission or other regulatory commission will not be forthcoming; and (C) the Purchased Stock is characterized as "restricted securities" under the federal securities laws inasmuch as it is being acquired from Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Purchaser represents that it is familiar with the Commission's Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. 3 4.2 DELIVERY OF CONSIDERATION. Purchaser shall have tendered the Purchase Price to Company in the form of immediately available funds. 4.3 BROKERS AND FINDERS. Neither Purchaser nor any of its representatives has employed any broker, finder, or financial advisor or incurred any liability for any fees or commissions in connection with initiating the transactions contemplated herein. Purchaser agrees to indemnify and hold Company harmless against or in respect of any commissions, finder's fees, or brokerage fees incurred or alleged to have been incurred with respect to initiating the transactions contemplated herein as a result of any action of Purchaser. 4.4 CONSENTS. Purchaser shall have obtained any third party consents to the execution, delivery and performance of this Agreement by Purchaser and the consummation of the transactions contemplated herein. 4.5 DISCLOSURE. Neither this Agreement, nor any of the schedules, attachments, written statements, documents, certificates or other materials prepared or supplied by Purchaser with respect to the transactions contemplated hereby, contain any untrue statements of a material fact or omit a material fact necessary to make the statements contained herein or therein not misleading. 5. REPRESENTATIONS AND WARRANTIES OF COMPANY. Except as (i) disclosed in the documents filed by Company pursuant to the Securities Act and the Securities Exchange Act, (ii) otherwise set forth in this Agreement, or (iii) set forth in SCHEDULE 5 attached hereto, Company represents and warrants, as of the date hereof and as of the Closing, that: 5.1 ORGANIZATION AND CORPORATE POWER. Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, is qualified to do business in the state of its incorporation, and is qualified as a foreign corporation in any jurisdiction in which the nature of property owned or leased by it or the conduct of its business requires such qualification. Company has all requisite corporate power and authority necessary to own and operate its properties and to carry on its business as now conducted and as presently proposed to be conducted. 5.2 CAPITAL STOCK AND RELATED MATTERS. (a) The authorized equity securities of Company consist of 40,000,000 shares of common stock, par value $.001 per share, of which 21,737,957 shares are issued and outstanding as of August 17, 2000; and 2,000,000 share of preferred stock, none of which is issued or outstanding. All of the outstanding equity securities of Company have been duly authorized and validly issued and are fully paid and nonassessable. Company does not have outstanding any stock or securities convertible or exchangeable for any equity securities, nor will there be outstanding any rights or options to subscribe for or to purchase any equity securities or any stock or securities convertible into or exchangeable for any equity securities of Company. 4 Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its equity securities. To Company's knowledge, there are no shareholder agreements, proxies, voting trust agreements or similar agreements or options granted by any shareholders of Company. (b) The Purchased Stock shall constitute approximately 1.58% of the Common Stock outstanding as of the date of this Agreement, assuming (i) all warrants for Common Stock outstanding as of the date of this Agreement have been exercised for Common Stock, (ii) all vested options to purchase Common Stock outstanding as of the date of this Agreement that are exercisable as of the date of this Agreement have been exercised for Common Stock and (iii) all other rights outstanding as of the date of this Agreement to acquire Common Stock or securities convertible into Common Stock have been exercised for or converted into Common Stock. 5.3 AUTHORIZATION; ENFORCEABILITY. The execution and delivery of this Agreement has been duly authorized by Company, and this Agreement constitutes a valid and binding obligation of Company, enforceable in accordance with its terms, subject to bankruptcy and other laws of general application affecting the rights of creditors and the availability of equitable remedies. 5.4 VALID ISSUANCE OF STOCK. The Purchased Stock that will be issued to Purchaser at the Closing will have been duly and validly reserved for issuance and, when issued and delivered in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable, and free of restrictions on transfer other than restrictions on transfer under this Agreement and applicable state and federal securities laws. Based in part upon the representations of Purchaser in this Agreement, the Purchased Stock will be issued in compliance with all applicable federal and state securities laws. 5.5 LIABILITIES. Company has no liabilities and there are no contingent liabilities required by generally accepted accounting principles to be disclosed on a balance sheet that are not disclosed on Company's audited balance sheet as of March 31, 2000 and/or on Company's unaudited balance sheet as of June 30, 2000, except liabilities that would not result, either individually or in the aggregate, in any material adverse changes in the business, assets or condition of Company, financially or otherwise. 5.6 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and performance of the Agreement and the consummation of the transactions contemplated hereby will not result in any violation or be in conflict with or constitute, with or without passage of time and giving notice, either a default under or cause acceleration under any provision of Company's Certificate of Incorporation or the bylaws of Company, which would (i) have a material adverse effect on the business, assets or condition of Company, financially or otherwise, (ii) materially and adversely effect the ability of Company to perform its obligations under the Agreement or (iii) result in the creation of any material lien, charge or encumbrance upon any assets of Company. 5.7 MATERIAL AGREEMENTS. Company has filed with the Commission all agreements in existence as of the date of this Agreement that (a) define or affect the rights of security holders of Company in their capacity as security holders including, but not limited to, such security holders' 5 voting rights, registration rights or obligations or (b) are required to be filed under Item 601 of Regulation S-K. 5.8 FINANCIAL STATEMENTS. Company has delivered to Purchaser its audited financial statements (balance sheet and statement of operations, statement of stockholders' equity and statement of cash flows, including notes thereto) at March 31, 2000 and for the fiscal year then ended, and its unaudited financial statements (balance sheet and statement of operations) as, at and for the three-month period ended June 30, 2000 (the "Financial Statements"). Each of the foregoing Financial Statements is accurate and complete in all material respects, is consistent with the books and records of Company (which, in turn, are accurate and complete in all materials respects) and has been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated and with each other, except that unaudited Financial Statements may not contain all footnotes required by generally accepted accounting principles. The Financial Statements fairly present the financial condition and operating results of Company as of the dates, and for the periods, indicated therein, subject in the case of unaudited Financial Statements to normal year-end audit adjustments. Except as set forth in the Financial Statements, Company does not have any liabilities (whether accrued, absolute, unliquidated, contingent or otherwise, whether or not known to Company, whether due or to become due and regardless of when asserted) arising out of transactions entered into, at or prior to the Closing, or any action or inaction at or prior to the Closing or any state of facts existing at or prior to the Closing other than (i) liabilities and obligations that have arisen after June 30, 2000 in the ordinary course of business (none of which is a liability resulting from breach of contract, breach of warranty, tort, infringement, claim or lawsuit), and (ii) obligations under contracts and commitments incurred in the ordinary course of business that would not be required to be reflected in financial statements prepared in accordance with generally accepted accounting principles. Except as disclosed in the Financial Statements, Company is not a guarantor or indemnitor of any indebtedness of any other Person. Company maintains and will continue to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles. 5.9 CHANGES SINCE THE FILING OF FORM 10-Q. Since the filing of Company's Form 10-Q for its fiscal quarter ended June 30, 2000: (i) there has been no material change, adverse or otherwise, in the business, property, employee relations or conditions, financial or otherwise, of Company; (ii) no dividend to stockholders has been declared or paid by Company; (iii) no stock of Company has been redeemed or otherwise acquired by Company, or split or otherwise subdivided; (iv) no equity securities of Company have been issued; (v) no union organizing activity has occurred and no key employee or executive or significant group of employees has terminated his employment with 6 Company, or indicated a desire to depart from Company or to work less than full time; and (vi) there has been no sale or transfer of any of Company's material assets nor cancellation of any of the material claims of Company nor the acquisition of any material assets or business of any Person except in the ordinary course of business, none of which individually or in the aggregate has been materially adverse to the business, properties, financial condition or affairs of Company. Company has no knowledge of any facts or events that would give rise to the occurrence of any of the events listed in this Section 5.9. 5.10 LITIGATION. There are no actions, proceedings or investigations pending involving Company, its officers, or directors or, to the best knowledge of Company, threatened, or verdicts or judgments entered against or in favor of Company, its officers or directors before any court or before any administrative agency or officer which might result in any material adverse change in the business, properties or condition, financial or otherwise, of Company. 5.11 BROKERS AND FINDERS. Neither Company nor any of its representatives has employed any broker, finder, or financial advisor or incurred any liability for any fees or commissions in connection with initiating the transactions contemplated herein. Company hereto agrees to indemnify and hold Purchaser harmless against or in respect of any commissions, finder's fees, or brokerage fees incurred or alleged to have been incurred with respect to initiating the transactions contemplated herein as a result of any action of Company. 5.12 GOVERNMENTAL CONSENT, ETC. Except for the Notice of Sale of Securities on Form D to be filed with the Commission and the applicable state agencies and related forms, no further permit, consent, approval, authorization of, declaration to, or filing with any governmental authority or third-party is required in connection with the execution, delivery and performance of this Agreement by Company or the consummation by Company of any transactions contemplated hereby, except as have already been obtained or accomplished. 5.13 SEC REPORTING; DISCLOSURE. As of the date each was filed, none of Company's registration statements, reports or other filings made with the Commission, contained any untrue statement of material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Neither this Agreement, nor any of the schedules, attachments, written statements, documents, certificates or other materials prepared or supplied by Company with respect to the transactions contemplated hereby, contains any untrue statements of a material fact or omits a material fact necessary to make the statements contained herein or therein not misleading. 5.14 INVESTMENT COMPANY. Company is not subject to regulation under the Investment Company Act of 1940, or to any federal or state statute or regulation limiting its ability to incur indebtedness. 7 5.15 REAL PROPERTY HOLDING COMPANY. None of Company or its subsidiaries is or ever was a real property holding company within the meaning of Section 897(c) of the Internal Revenue Code of 1986, as amended. 5.16 SURVIVAL. The representations and warranties contained in this Section 5 of the Agreement shall survive the date of the Closing for a period of one year. Any claim for recovery of an indemnification event must be initiated not later than 60 days following the expiration of such period. 6. REGISTRATION, TRANSFER OF SECURITIES. The Purchased Stock is not transferable except upon the conditions specified in this Section 6, which conditions are intended to insure compliance with the provisions of the Securities Act and state securities laws in respect of the transfer of any of such securities. 6.1 RESTRICTIVE LEGENDS. Unless and until otherwise permitted by this Agreement, each share certificate for the Purchased Stock issued to Purchaser or to any subsequent transferee shall be stamped or otherwise imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS. Company may order its transfer agent to stop the transfer of any securities bearing the legend required by this section 6.1 until the conditions herein with respect to transfer of such securities have been satisfied. 8 6.2 NOTICE OF PROPOSED TRANSFERS. (a) Prior to any transfer or attempted transfer of any securities bearing the legend in Section 6.1 (unless such securities properly have been registered pursuant to an effective registration statement), the holder thereof shall give Company written notice of its intention so to do, describing briefly the nature of any such proposed transfer. If, in the written opinion of counsel for holder, in form and substance satisfactory to Company and its counsel, addressed to Company and the holder, the proposed transfer may be effected without registration of such security, the securities proposed to be transferred may be transferred in accordance with the terms of said notice and in compliance with applicable state securities laws and regulations. Company shall not be required to effect any such transfer prior to the receipt of such favorable opinion or opinions; provided that if the proposed transfer is governed by Rule 144 promulgated by the Commission, or any successor rule, such opinion shall not be required, but Company may prevent such transfer until it receives evidence satisfactory to it and its counsel that the transfer complies with Rule 144. Each transfer shall comply with all applicable Commissioner's rules and applicable state securities laws. (b) If, in the opinion of such counsel, the proposed transfer of such securities may not be effected without registration thereof under the Securities Act, such holder shall not consummate the proposed transfer. 6.3 RESTRICTION ON TRADING. Purchaser shall not publicly trade in any equity securities of Company until Company has publicly announced the transactions set forth in this Agreement, and either (i) the transactions set forth herein have Closed or (ii) the termination of this Agreement upon the mutual consent of the parties hereto. 7. MISCELLANEOUS. 7.1 NOTICES. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in Person or mailed, certified or registered mail with postage prepaid, or sent by courier service, telex, telegram, or fax, as follows: (a) if to Purchaser: Integral Capital Partners V, L.P. Integral Capital Partners V, Side Fund, L.P. 2750 Sand Hill Road Menlo Park, CA 94025 Attention: Pamela K. Hagenah, General Partner Telephone: 650-233-3374 Fax: 650-233-0366 9 With a copy to: (which shall not constitute notice) Brobeck, Phleger & Harrison LLP One Market, Spear Street Tower San Francisco, CA 94105 Attention: Ronald B. Moskovitz, Esq. Telephone: 415-442-0900 Fax: 415-442-1010 (b) if to Company: Geoworks Corporation. 960 Atlantic Avenue Alameda, California 94501 Attention: James Given, Esq. Telephone: 510-814-1660 Fax: 510-814-4251 with a copy to: (which shall not constitute notice) Bryan Cave LLP 2020 Main Street, Suite 600 Irvine, California 92614 Attention: Randolf W. Katz, Esq. Telephone: 949-223-7103 Fax: 949-223-7100 or to such other Person or address as any party shall specify by notice in writing to each of the other parties. All such notices, requests, demands, waivers and communications shall be deemed to have been received on the date of delivery if the date of transmission is electronically endorsed automatically on the media or evidenced by courier service documentation. If notice is mailed or transmitted in a manner in which date of delivery cannot be ascertained from the media used or courier service records, notice shall be deemed given on the third business day after the mailing or other transmission or delivery thereof. A notice of a change of address shall be effective only upon receipt. 7.2 SCHEDULES AND EXHIBITS. All schedules and exhibits are an integral part of this Agreement. 7.3 ENTIRE AGREEMENT AND AMENDMENT. This Agreement and documents delivered at the Closing hereunder contain the entire agreement between the parties hereto with respect to the transactions contemplated by this Agreement and supersede all other agreements and representations, written or oral, with respect thereto. This Agreement may be amended or modified in whole or in part, and any rights hereunder may be waived, only by an agreement in writing, duly and validly executed in the same manner as this Agreement or by the party against 10 whom the waiver would be asserted. The waiver of any right hereunder shall be effective only with respect to the matter specifically waived and shall not act as a continuing waiver unless it so states by its terms. 7.4 COUNTERPARTS. This Agreement may be executed in one or more counterparts each of which shall be deemed to constitute an original and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other party. 7.5 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Delaware. 7.6 ATTORNEYS' FEES AND COSTS. In the event any party to this Agreement shall be required to initiate legal proceedings to enforce performance of any term or condition of this Agreement, including, but not limited to, the payment of monies or the enjoining of any action prohibited hereunder, the prevailing party shall be entitled to recover such sums, in addition to any other damages or compensation received, as will reimburse the prevailing party for reasonable attorneys' fees and court costs incurred on account thereof (including, without limitation, the costs of any appeal) notwithstanding the nature of the claim or cause of action asserted by the prevailing party. 7.7 SUCCESSORS AND ASSIGNS, PARTIES IN INTEREST. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. Each party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the parties hereto. 7.8 CAPTIONS. The captions appearing in this Agreement are inserted for convenience of reference only and shall not affect the interpretation of this Agreement. 7.9 SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 7.10 JURY TRIAL WAIVER. THE PARTIES AGREE TO WAIVE THEIR SEPARATE RIGHTS TO A TRIAL BY JURY. THIS WAIVER MEANS THAT ANY TRIAL WILL BE BEFORE A JUDGE. [SIGNATURE PAGE TO FOLLOW] 11 IN WITNESS WHEREOF, the parties hereto have executed or have caused a duly authorized officer or representative to execute this Agreement all as of the date first above written. GEOWORKS CORPORATION By: /s/ David Grannan ---------------------------------------- Name: David Grannan --------------------------------------- Title: President -------------------------------------- INTEGRAL CAPITAL PARTNERS V, L.P. By: Integral Capital Management V, LLC Its General Partner By: /s/ Pamela K. Hagenah ---------------------------------------- Name: Pamela K. Hagenah --------------------------------------- Title: Manager -------------------------------------- INTEGRAL CAPITAL PARTNERS V, SIDE FUND, L.P. By: ICP Management V, LLC Its General Partner By: /s/ Pamela K. Hagenah ---------------------------------------- Name: Pamela K. Hagenah --------------------------------------- Title: Manager -------------------------------------- 12 EX-2.2 3 0003.txt EXHIBIT 2.2 EXHIBIT 2.2 GEOWORKS CORPORATION REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the 1st day of September, 2000, by and among Geoworks Corporation, a Delaware corporation (the "Company"), Integral Capital Partners V, L.P., a Delaware limited partnership, and Integral Capital Partners V, Side Fund, L.P., a Delaware limited partnership (collectively, the "Holder"). RECITALS A. The Holder has entered into a Stock Purchase Agreement, of even date herewith, with the Company (the "Purchase Agreement"). B. In order to induce the Company to enter into the Purchase Agreement and to induce the Holder to invest in the Company pursuant to the Purchase Agreement, the Holder and the Company hereby agree that this Agreement shall govern the rights of the Holder to cause the Company to register shares of Common Stock of the Company held by and issuable to the Holder and certain other matters as set forth herein. NOW, THEREFORE, the parties agree as follows: AGREEMENT 1. DEFINITIONS. For purposes of this Agreement: 1.1 The term "Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. 1.2 The term "Affiliate" shall mean, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or in under common control with, such specified Person. 1.3 The term "Purchase Common Stock" shall mean the Common Stock of the Company sold pursuant to the terms of the Purchase Agreement. 1.4 The term "Common Stock" shall mean the common stock, par value $.001 per share, of the Company. 1.5 The term "1934 Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. 1.6 The terms "register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement or similar document 1 in compliance with the Act, and the declaration or ordering of, effectiveness of such registration statement or document. 1.7 The term "Registrable Securities" shall mean (i) the Purchase Common Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations and other recapitalizations after the date hereof (collectively, a "Recapitalization")), and (ii) any Common Stock issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of the shares referenced in (i) above, excluding in all cases, however, any Registrable Securities that have been sold by the Holder privately, pursuant to the provisions of Rule 144, or pursuant to a registration statement under the Act covering such Registrable Securities that has been declared effective by the SEC. 1.8 The number of shares of "Registrable Securities then outstanding" shall be determined by the number of shares of Common Stock outstanding that are Registrable Securities. 1.9 The term "Rule 144" shall mean Rule 144 under the Act as in effect on the date hereof and such rule as from time to time amended and any successor rule or regulation under the Act. 1.10 The term "Person" shall mean any individual, corporation, partnership, association, limited liability company, trust, unincorporated organization, other entity or group (as "group" is defined in Section 13(d)(3) of the 1934 Act). 1.11 The term "SEC" shall mean the Securities and Exchange Commission and any successor thereto. 1.12 The term "Subsidiary" shall mean, when used with reference to any entity, any corporation or other organization, whether incorporated or unincorporated, (i) of which such party or any other subsidiary of such party is a general or managing partner or (ii) the outstanding voting securities or interests of which, having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization, is directly or indirectly owned or controlled by such party or by any one or more of its subsidiaries. 2. REGISTRATION. The Company shall, on the terms and conditions hereinafter provided, use its best efforts to cause a registration statement on Form S-3 or any applicable replacement form (the "Registration Statement") covering the resale of the Registrable Securities to be filed with the SEC under the Act no later than 90 days from the date hereof and thereafter, proceed as expeditiously as possible to cause such Registration Statement to be declared effective and qualified under other applicable securities laws upon the reasonable request of the Holder. The Company shall use its best efforts to keep the Registration Statement effective under the Act until the earlier of (i) two (2) years from the date the Registration Statement has been declared effective by the SEC, (ii) the date that the Holder or any permitted assignee pursuant to Section 3.8 of this 2 Agreement no longer owns any Registrable Securities, or (iii) the date when all the Registrable Securities covered by the Registration Statement are freely transferable pursuant to subsection (k) of Rule 144. 3. REGISTRATION PROCEDURES. 3.1 OBLIGATIONS OF THE COMPANY. Whenever required under Section 2 of this Agreement to effect the registration of any Registrable Securities, the Company shall, as expeditiously as possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities, use its best efforts to cause such registration statement to become effective and keep such registration statement effective for the period of time contemplated in Section 2 of this Agreement; provided, however, that applicable rules under the Act governing the obligation to file a post-effective amendment permit, in lieu of filing a post-effective amendment that (i) includes any prospectus required by Section 10(a)(3) of the Act, or (ii) reflects facts or events representing a material or fundamental change in the information set forth in the registration statement, the incorporation by reference of information required to be included in (i) and (ii) above to be contained in periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the registration statement. (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to the Holder such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as it may reasonably request from time to time in order to facilitate the disposition of Registrable Securities owned by the Holder. (d) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holder; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already required to qualify to do business or subject to service in such jurisdiction and except as may be required by the Act. (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. (f) Notify the Holder at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result 3 of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. (g) Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed. (h) Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration. (i) Make available for inspection by the Holder participating in such registration, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers and directors to supply all information reasonably requested by the Holder, underwriter, attorney or accountant in connection with such registration statement; PROVIDED, HOWEVER, that the Holder, underwriter, attorney or accountant shall agree to hold in confidence and trust all information so provided. (j) Make available to the Holder participating in such registration, upon the request of the Holder: (i) in the case of an underwritten public offering, a copy of any opinion of counsel for the Company provided to the underwriters participating in such offering, dated the date such shares are delivered to such underwriters for sale in connection with the registration statement; (ii) in the case of an underwritten public offering, a copy of any "comfort" letters provided to the underwriters participating in such offering and signed by the Company's independent public accountants who have examined and reported on the Company's financial statements included in the registration statement, to the extent permitted by the standards of the AICPA or other relevant authorities; and (iii) a copy of all documents filed with and all correspondence from or to the SEC in connection with any such offering other than non-substantive cover letters and the like. 3.2 FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 2 of this Agreement with respect to Registrable Securities of the Holder that the Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the 4 intended method of disposition of such securities as shall be required to effect the registration of the Holder's Registrable Securities. 3.3 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities with respect to the registrations pursuant to Section 2 of this Agreement for the Holder, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto and the fees and disbursements of counsel for the Company in its capacity as counsel to the selling Holder hereunder; if Company counsel does not make itself available for this purpose, the Company will pay the reasonable fees and disbursements of one counsel for the selling Holder selected by them, but excluding underwriting discounts and commissions relating to Registrable Securities. 3.4 UNDERWRITING REQUIREMENTS. (a) If the total amount of securities requested by shareholders to be included in an offering involving an underwriting of shares of the Company's capital stock exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the managing underwriter shall advise the Company in writing (with a copy to the Holder) that, in its opinion, the number of securities requested to be included in such registration (including securities to be sold by the Company or by other Persons not holding Registrable Securities) will jeopardize the success of the offering. In such case, the securities so included shall be apportioned pro rata among the selling shareholders according to the total amount of securities entitled to be included therein owned by each selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders. For purposes of the preceding sentence concerning apportionment, for any selling shareholder which is a holder of Registrable Securities and which is a partnership or corporation, the partners, retired partners and shareholders of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing Persons shall be deemed to be a single "selling shareholder," and any pro-rata reduction with respect to such "selling shareholder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "selling shareholder," as defined in this sentence. 3.5 DELAY OF REGISTRATION. The Holder shall not have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Article 3. 3.6 INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under this Agreement: (a) To the extent permitted by law, the Company will indemnify and hold harmless the Holder, each officer and director of the Holder, any 5 underwriter (as defined in the Act) of the Holder and each Person, if any, who controls the Holder or underwriter within the meaning of the Act or the 1934 Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (iii) any violation or alleged violation by the Company of the Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the Act, the 1934 Act or any state securities law; and the Company will pay to the Holder, underwriter or controlling Person any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity provisions contained in this Section 3.6(a) shall not apply to (1) amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), or (2) any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Holder (including each officer and director of the Holder), underwriter or controlling Person. (b) To the extent permitted by law, the Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each Person, if any, who controls the Company within the meaning of the Act, any underwriter, any other Person selling securities in such registration statement, each officer and director of any such other Person and any controlling Person of any such underwriter or other Person, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing Persons may become subject, under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by the Holder, or by an officer or director of the Holder expressly for use in connection with such registration; and the Holder will pay any legal or other expenses reasonably incurred by any Person intended to be indemnified pursuant to this Section 3.6(b) in connection with investigating or defending any such loss, claim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 3.6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; PROVIDED, FURTHER, that in no event shall any indemnity 6 under this Section 3.6(b) exceed the gross proceeds from the offering received by the Holder net of underwriters' commissions and discounts. (c) Promptly after obtaining actual knowledge of any third party claim or action as to which it may seek indemnification under this Section 3.6, an indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 3.6, deliver to the indemnifying party a written notice thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 3.6, if, and to the extent that, such failure is prejudicial to such indemnifying party's ability to defend such action, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 3.6. (d) If the indemnification provided for in this Section 3.6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense (including, without limitation, legal and other expenses incurred by such indemnified party in investigating or defending any such action or claim) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of this Section 3.6(d), the Holder shall not be required to contribute any amount or make any other payments under this Agreement which in the aggregate exceed the net proceeds received by the Holder from the offering covered by the applicable registration statement. 7 (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) The obligations of the Company and the Holder under this Section 3.6 shall survive the completion of any offering of Registrable Securities in a registration statement under this Agreement, and otherwise. 3.7 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making available to the Holder the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holder to sell securities of the Company to the public without registration, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144; (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and (c) furnish to the Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144, the Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing the Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. 3.8 NO ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to register Registrable Securities pursuant to this Agreement may not be assigned; PROVIDED, HOWEVER, that the Holder may assign its rights and obligations under this Agreement to any Subsidiary or Affiliate of the Holder which has become the owner of Registrable Securities. 3.9 "MARKET STAND-OFF" AGREEMENT. The Holder hereby agrees that, during the period of duration specified by the Company and an underwriter of Common Stock or other securities of the Company of the same class as the Registrable Securities, following the date on which a registration statement of the Company is filed under the Act, it shall not, to the extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any securities of the Company held by it at any time during such period, except (i) Common Stock included in such registration, (ii) Common Stock or other securities acquired by it in open market transactions, and (iii) any Registrable Securities disposed of by private sale, so long as each such purchaser (and any and all subsequent purchasers) shall agree in writing, not later than the effective time of such 8 private sale, to be bound by all of the terms and conditions of this Section 3.9; PROVIDED, HOWEVER, that: (a) such agreement shall be applicable during the five (5) years following the date of this Agreement, subject to an earlier termination of such limitation period following the market stand-off period of the second such registration statement of the Company which covers Common Stock (or other securities of the Company of the same class as the Registrable Securities) to be sold on its behalf to the public in an underwritten offering; (b) such market stand-off time period shall not exceed 90 days following the effective date of each such registration statement; (c) such agreement shall not be applicable more than once in any 12-month time period; (d) all executive officers and directors of the Company and all other persons holding five percent (5%) or more of the Company's outstanding capital stock shall enter into similar agreements; and (e) any discretionary waiver or termination of the restrictions of such agreements (including this Agreement) by the Company or an underwriter shall apply to all Persons subject to such agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities of the Holder (and the shares or securities of every other Person subject to the foregoing restriction) until the end of such period. Notwithstanding the foregoing, the obligations described in this Section 3.9 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms which may be promulgated in the future. 4. MISCELLANEOUS. 4.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any shares of Registrable Securities). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 4.2 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Delaware. 9 4.3 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4.4 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 4.5 NOTICES. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in Person or mailed, certified or registered mail with postage prepaid, or sent by courier service, telex, telegram, or fax, as follows: (a) if to Holder: Integral Capital Partners V, L.P. Integral Capital Partners V, Side Fund, L.P. 2750 Sand Hill Road Menlo Park, CA 94025 Attention: Pamela K. Hagenah, General Partner Telephone: 650-233-3374 Fax: 650-233-0366 With a copy to: (which shall not constitute notice) Brobeck, Phleger & Harrison LLP One Market, Spear Street Tower San Francisco, CA 94105 Attention: Ronald B. Moskovitz Telephone: 415-442-0900 Fax: 415-442-1010 (b) if to the Company: Geoworks Corporation. 960 Atlantic Avenue Alameda, California 94501 Attention: James Given, Esq. Telephone: 510-814-1660 Fax: 510-814-4251 with a copy to: (which shall not constitute notice) 10 Bryan Cave LLP 2020 Main Street, Suite 600 Irvine, California 92614 Attention: Randolf W. Katz, Esq. Telephone: 949-223-7103 Fax: 949-223-7100 or to such other Person or address as any party shall specify by notice in writing to each of the other parties. All such notices, requests, demands, waivers and communications shall be deemed to have been received on the date of delivery if the date of transmission is electronically endorsed automatically on the media or evidenced by courier service documentation. If notice is mailed or transmitted in a manner in which date of delivery cannot be ascertained from the media used or courier service records, notice shall be deemed given on the third business day after the mailing or other transmission or delivery thereof. A notice of a change of address shall be effective only upon receipt. 4.6 EXPENSES. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. 4.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the holders of the Registrable Securities then outstanding. Any amendment or waiver effected in accordance with this Section 4.7 shall be binding upon each holder of any Registrable Securities then outstanding, each future holder of all such Registrable Securities, and the Company; provided that, without the consent of the Company and all holders of Registrable Securities then outstanding, no amendment to this Agreement may be made that (i) modifies this Section 4.7, or (ii) would effect the holders of the Registrable Securities in a disproportionate manner (other than any disproportionate results that are due to a difference in the relative stock ownership in the Company). 4.8 SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 4.9 AGGREGATION OF STOCK. All shares of Registrable Securities held or acquired by affiliated entities or Persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. 4.10 ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement between the parties regarding the matters set forth herein. Except as otherwise expressly provided herein, the provisions hereof shall inure to the 11 benefit of, and be binding upon the successors, assigns, heirs, executors and administrators of the parties hereto. 4.11 FURTHER ASSURANCES. At any time, and from time to time, each party will execute such additional instruments and take such action as may be reasonably requested by any other party to carry out the intent and purposes of this Agreement. 4.12 JURY TRIAL WAIVER. THE PARTIES AGREE TO WAIVE THEIR SEPARATE RIGHTS TO A TRIAL BY JURY. THIS WAIVER MEANS THAT ANY TRIAL WILL BE BEFORE A JUDGE. IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first above written. GEOWORKS CORPORATION By: /s/ David Grannan ------------------------------- Name: David Grannan ---------------------- Title: President ---------------------- INTEGRAL CAPITAL PARTNERS V, L.P. By: Integral Capital Management V, LLC Its General Partner By: /s/ Pamela K. Hagenah ------------------------------- Name: Pamela K. Hagenah ---------------------- Title: Manager ---------------------- INTEGRAL CAPITAL PARTNERS V, SIDE FUND, L.P. By: ICP Management V, LLC Its General Partner By: /s/ Pamela K. Hagenah ------------------------------- Name: Pamela K. Hagenah ---------------------- Title: Manager ---------------------- 12 -----END PRIVACY-ENHANCED MESSAGE-----