Purchase Agreement



 Exhibit 4.9 
  
 PURCHASE AGREEMENT 
  
 THIS PURCHASE AGREEMENT (“Agreement”) is made as of the 10th day of December, 2003 by and among Tarantella, Inc., a California corporation (the “Company”), and the Investors set forth on the signature pages affixed hereto (each an “Investor”
and collectively the “Investors”). 
  
 Recitals

  
 A. The Company and the Investors are executing and
delivering this Agreement in reliance upon the exemption from securities registration afforded by the provisions of Regulation D (“Regulation D”), as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under
the Securities Act of 1933, as amended. 
  
 B. The Investors wish
to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and conditions stated in this Agreement, (i) an aggregate of 2,000,000 shares of the Company’s Common Stock, no par value (the “Common
Stock”), and (ii) warrants to purchase an aggregate of 400,000 shares of Common Stock of the Company in the form attached hereto as Exhibit A (the “Warrants”). 
  
 C. Contemporaneous with the sale of the Common Stock and Warrants, the parties hereto will execute and deliver a
Registration Rights Agreement, in the form attached hereto as Exhibit B (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain registration rights under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, and applicable state securities laws. 
  
 In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 
  
 1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall have the meanings here set forth: 
  
 “Affiliate” means, with respect to any Person, any other Person who directly or indirectly Controls, is controlled by, or
is under common control with, such Person. 
  
 “Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business. 
  
 “Common Stock” means the common stock, no par value, of the Company, and any securities
into which the Common Stock may be reclassified. 
  
 “Company’s Knowledge” means the actual knowledge of the officers of the Company, after due inquiry. 
  
 “Confidential Information” means trade secrets, confidential information and know-how (including but not limited to
ideas, formulae, compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings, specifications, designs, business and marketing plans, and
customer and supplier lists and related information). 
  
 “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

  









 “Intellectual Property” means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with
all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; and (v) proprietary computer software (including but not limited to data, data
bases and documentation). 
  
 “Material
Adverse Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise), business, or prospects of the Company and its Subsidiaries taken as a whole, or (ii) the ability of
the Company to perform its obligations under the Transaction Documents. 
  
 “Nasdaq” means The Nasdaq Stock Market, Inc., its successors and assigns. 
  
 “Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association,
joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein. 
  
 “Purchase Price” means Two Million Dollars ($2,000,000). 
  
 “SEC Filings” has the meaning set forth in
Section 4.6. 
  
 “Securities”
means the Shares, the Warrants and the Warrant Shares. 
  
 “September Warrants” means the warrants to purchase shares of Common Stock issued by the Company pursuant to the Purchase Agreement dated September 29, 2003. 
  
 “Shares” means the shares of Common Stock being purchased by the Investors hereunder.

  
 “Subsidiary” has the meaning
set forth in Section 4.1. 
  
 “Transaction Documents” means this Agreement, the Warrants and the Registration Rights Agreement. 
  
 “Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants. 
  
 “1933 Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder. 
  
 “1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. 
  
 2. Purchase and Sale of the Shares and Warrants. Subject to the terms and conditions of this Agreement, on the
Closing Date, each of the Investors shall severally, and not jointly, purchase, and the Company shall sell and issue to the Investors, the Shares and Warrants in the respective amounts set forth opposite the Investors’ names on the signature
pages attached hereto in exchange for the Purchase Price as specified in Section 3 below. 
  
 3. Closing. Upon confirmation that the other conditions to closing specified herein have been satisfied, the Company shall deliver to Lowenstein Sandler PC, in trust, a certificate or certificates, registered
in such name or names as the Investors may designate, representing the Shares and Warrants, with instructions that such certificates are to be held for release to the Investors only upon payment of the Purchase Price to the Company. Upon receipt by
Lowenstein Sandler PC of the certificates, each Investor shall promptly cause a wire transfer in same day funds to be sent to the account of the Company as instructed in writing by the Company, in an amount representing such Investor’s pro rata
portion of the Purchase Price as set forth on the signature pages to this 

  









 
Agreement. On the date (the “Closing Date”) the Company receives such funds, the certificates evidencing the Shares and Warrants shall be released
to the Investors (the “Closing”). The purchase and sale of the Shares and Warrants shall take place at the offices of Lowenstein Sandler PC, 1330 Avenue of the Americas, 21st Floor, New York, New York, or at such other location and on such
other date as the Company and the Investors shall mutually agree. 
  
 4. Representations and Warranties of the Company. The Company hereby represents and warrants to the Investors that, except as set forth in the schedules delivered herewith (collectively, the “Disclosure Schedules”), which
disclosure shall provide an exception to or otherwise qualify the representations or warranties of the Company specifically referred to in such disclosure and such other representation and warranties to the extent such disclosure shall reasonably
appear to be applicable to such other representations or warranties: 
  
 4.1 Organization, Good Standing and Qualification. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to carry on its business as now conducted and to own its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to so qualify has not and could not reasonably be expected to have a Material
Adverse Effect. The Company’s subsidiaries are reflected on Schedule 4.1 hereto (the “Subsidiaries”). 
  
 4.2 Authorization. The Company has full power and authority and has taken all requisite action on the part of the Company, its
officers, directors and shareholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the
authorization, issuance (or reservation for issuance) and delivery of the Securities. The Transaction Documents constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally. 
  
 4.3 Capitalization. Schedule 4.3 sets forth the authorized capital stock of the Company on the
date hereof; (b) the number of shares of capital stock issued and outstanding; (c) the number of shares of capital stock issuable pursuant to the Company’s stock plans; and (d) the number of shares of capital stock issuable and reserved for
issuance pursuant to securities (other than the Shares and the Warrants) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All of the issued and outstanding shares of the Company’s capital
stock have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in compliance in all material respects with applicable law and any rights of third parties. All of the issued and
outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in compliance in all material respects with applicable law and any
rights of third parties and are owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. No Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities
of the Company. Except as described on Schedule 4.3, there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may
be obligated to issue any equity securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind. Except as
described on Schedule 4.3 and except for the Registration Rights Agreement, there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company and any of the
securityholders of the Company relating to the securities of the Company held by them. Except as described on Schedule 4.3, the Company has not granted any Person the right to require the Company to register any securities of the Company
under the 1933 Act, whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account of any other Person. Except as described on Schedule 4.3, the issuance and sale of the
Securities hereunder will not obligate the Company to issue shares of Common Stock or other securities to any other Person (other than the Investors) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any
outstanding security. 
  









 The Company does not have outstanding shareholder purchase rights or any similar
arrangement in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain events. 
  
 4.4 Valid Issuance. The Shares have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws. The Warrants have
been duly and validly authorized. Upon the due exercise of the Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in
the Transaction Documents or imposed by applicable securities laws. The Company has reserved a sufficient number of shares of Common Stock for issuance upon the exercise of the Warrants, free and clear of all encumbrances and restrictions, except
for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws. 
  
 4.5 Consents. The execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale
of the Securities require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws and post-sale filings
pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods. The Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii) the issuance of
the Warrant Shares upon due exercise of the Warrants, and (iii) the other transactions contemplated by the Transaction Documents from the provisions of any shareholder rights plan or other “poison pill” arrangement, anti-takeover, business
combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject or any provision of the Company’s Articles of Incorporation, By-laws or any shareholder rights
agreement that is or could become applicable to the Investors as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the
Investors or the exercise of any right granted to the Investors pursuant to this Agreement or the other Transaction Documents. 
  
 4.6 Delivery of SEC Filings; Business. The Company has provided the Investors with copies of the Company’s most recent Annual
Report on Form 10-K for the fiscal year ended September 30, 2002 (the “10-K”), and all other reports filed by the Company pursuant to the 1934 Act since the filing of the 10-K and prior to the date hereof (collectively, the “SEC
Filings”). Except as described on Schedule 4.6, the SEC Filings are the only filings required of the Company pursuant to the 1934 Act for such period. The Company and its Subsidiaries are engaged only in the business described in the SEC
Filings and, except as described on Schedule 4.6, the SEC Filings contain a complete and accurate description in all material respects of the business of the Company and its Subsidiaries, taken as a whole. 
  
 4.7 Use of Proceeds. The proceeds of the sale of the
Shares and the Warrants hereunder shall be used by the Company for working capital and general corporate purposes. 
  
 4.8 No Material Adverse Change. Since September 30, 2002, except as identified and described in the SEC Filings or as described on
Schedule 4.8, there has not been: 
  
 (i)
any change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements included in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2003, except for changes in the ordinary course of business which have not and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate; 
  
 (ii) any declaration or payment of any dividend, or any authorization or payment of any distribution, on any
of the capital stock of the Company, or any redemption or repurchase of any securities of the Company; 
  
 (iii) any material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its
Subsidiaries; 
  









 (iv) any waiver, not in the ordinary course of business, by the Company or any Subsidiary
of a material right or of a material debt owed to it; 
  
 (v) any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial
condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed to be conducted); 
  
 (vi) any change or amendment to the Company’s Articles of Incorporation or by-laws, or material change
to any material contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject; 
  
 (vii) any material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;

  
 (viii) any transaction entered into by the
Company or a Subsidiary other than in the ordinary course of business; 
  
 (ix) the loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company or any Subsidiary; 
  
 (x) the loss or threatened loss of any customer which has
had or could reasonably be expected to have a Material Adverse Effect; or 
  
 (xi) any other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect. 
  
 4.9 SEC Filings. 
  
 (a) Except as described on Schedule 4.9, at the time of filing thereof, the SEC Filings complied as
to form in all material respects with the requirements of the 1934 Act and did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. 
  
 (b) Except as described on Schedule 4.9, each registration statement and any amendment thereto filed by the Company since January 1, 2002 pursuant to the 1933 Act and the rules and regulations thereunder, as of
the date such statement or amendment became effective, complied as to form in all material respects with the 1933 Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; and each prospectus filed pursuant to Rule 424(b) under the 1933 Act, as of its issue date and as of the closing of any
sale of securities pursuant thereto did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. 
  
 (c) For only the reasons described on Schedule 4.9, the Company is ineligible to use Form S-3 to register the Registrable Securities (as such term is defined in the Registration Rights Agreement) for sale by the Investors as
contemplated by the Registration Rights Agreement. 
  
 4.10 No Conflict, Breach, Violation or Default. The execution, delivery and performance of the Transaction Documents by the Company and the issuance and sale of the Securities will not conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default under (i) the Company’s Articles of Incorporation or the Company’s Bylaws, both as in effect on the date hereof (copies of which have been provided to the Investors before the
date hereof), or (ii)(a) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of 

  









 
their respective assets or properties, or (b) any agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or a
Subsidiary is bound or to which any of their respective assets or properties is subject, except in the case of clause (ii), for breaches, violations or defaults that that would not have a Material Adverse Effect, individually or in the aggregate.

  
 4.11 Tax Matters. The Company and each
Subsidiary has timely prepared and filed all material tax returns required to have been filed by the Company or such Subsidiary with all appropriate governmental agencies and timely paid all taxes shown thereon or otherwise owed by it. The charges,
accruals and reserves on the books of the Company in respect of taxes for all fiscal periods are adequate in all material respects, and there are no material unpaid assessments against the Company or any Subsidiary nor, to the Company’s
Knowledge, any basis for the assessment of any additional taxes, penalties or interest for any fiscal period or audits by any federal, state or local taxing authority except for any assessment which is not material to the Company and its
Subsidiaries, taken as a whole. All taxes and other assessments and levies that the Company or any Subsidiary is required to withhold or to collect for payment have been duly withheld and collected and paid to the proper governmental entity or third
party when due, except where the failure to so withhold, collect or pay has not and would not reasonably be expected to result in a Material Adverse Effect. There are no tax liens or claims pending or, to the Company’s Knowledge, threatened
against the Company or any Subsidiary or any of their respective assets or property. Except as described on Schedule 4.11, there are no outstanding tax sharing agreements or other such arrangements between the Company and any Subsidiary or
other corporation or entity. 
  
 4.12 Title to
Properties. Except as disclosed in the SEC Filings, the Company and each Subsidiary has good and marketable title to all real properties and all other properties and assets owned by it, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with the use made or currently planned to be made thereof by them; and except as disclosed in the SEC Filings, the Company and each Subsidiary holds any leased real or personal
property under valid and enforceable leases with no exceptions that would materially interfere with the use made or currently planned to be made thereof by them. 
  
 4.13 Certificates, Authorities and Permits. The Company and each Subsidiary possess adequate
certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it, and neither the Company nor any Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to have a Material Adverse Effect, individually or in the aggregate. 
  
 4.14 No Labor Disputes. No material labor dispute
with the employees of the Company or any Subsidiary exists or, to the Company’s Knowledge, is imminent. 
  
 4.15 Intellectual Property. 
  
 (a) The Company and/or its Subsidiaries has complied in all material respects with its obligations (including timely filings, proofs and
payments of fees) with respect to all Intellectual Property owned by the Company and/or its Subsidiaries, and to the Company’s Knowledge, the Company’s rights with respect to such owned Intellectual Property is currently valid and
enforceable. No Intellectual Property of the Company or its Subsidiaries which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted
has been or is now involved in any cancellation, dispute or litigation, and, to the Company’s Knowledge, no such action is threatened. No patent of the Company or its Subsidiaries has been or is now involved in any interference, reissue,
re-examination or opposition proceeding. 
  
 (b)
All of the licenses and sublicenses and consent, royalty or other agreements concerning Intellectual Property which are necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted
or as currently proposed to be conducted to which the Company or any Subsidiary is a party or by which any of their assets are bound (other than generally commercially available, non-custom, off-the-shelf software application programs having a
retail acquisition price of less than $10,000 per license) (collectively, “License Agreements”) are valid and binding obligations of the Company or its Subsidiaries that are parties thereto and, to the Company’s Knowledge, the other
parties thereto, enforceable in accordance with 

  









 
their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors’ rights generally, and there exists no event or condition which will result in a material violation or breach of or constitute (with or without due notice or lapse of time or both) a
default by the Company or any of its Subsidiaries under any such License Agreement. 
  
 (c) The Company and its Subsidiaries own or have the valid right to use all of the Intellectual Property that is necessary for the conduct
of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted and for the ownership, maintenance and operation of the Company’s and its Subsidiaries’
properties and assets, free and clear of all liens, encumbrances, adverse claims or obligations to license all such owned Intellectual Property and Confidential Information, other than licenses entered into in the ordinary course of the
Company’s and its Subsidiaries’ businesses. The Company and its Subsidiaries have a valid and enforceable right to use all third party Intellectual Property and Confidential Information used or held for use in the respective businesses of
the Company and its Subsidiaries. 
  
 (d) The
conduct of the Company’s and its Subsidiaries’ businesses as currently conducted does not infringe or otherwise impair or conflict with (collectively, “Infringe”) any Intellectual Property rights of any third party or any
confidentiality obligation owed to a third party, and, to the Company’s Knowledge, the Intellectual Property and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not being Infringed by any third party. There is no litigation or order pending or outstanding or, to the Company’s Knowledge,
threatened or imminent, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any Intellectual Property or Confidential Information of the Company and its Subsidiaries and the Company’s and its
Subsidiaries’ use of any Intellectual Property or Confidential Information owned by a third party, and, to the Company’s Knowledge, there is no valid basis for the same. 
  
 (e) The consummation of the transactions contemplated hereby will not result in the alteration, loss,
impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any of the Intellectual Property or Confidential Information which is necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted. 
  
 (f) All software owned by the Company or any of its Subsidiaries, and, to the Company’s Knowledge, all software licensed from third
parties by the Company or any of its Subsidiaries, (i) is free from any material defect, bug, virus, or programming, design or documentation error; (ii) operates and runs in a reasonable and efficient business manner; and (iii) conforms in all
material respects to the specifications and purposes thereof. 
  
 (g) The Company and its Subsidiaries have taken reasonable steps to protect the Company’s and its Subsidiaries’ rights in their Intellectual Property and Confidential Information. Each employee, consultant
and contractor who has had access to Confidential Information which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted has executed
an agreement to maintain the confidentiality of such Confidential Information and has executed appropriate agreements that are substantially consistent with the Company’s standard forms thereof. Except under confidentiality obligations, there
has been no material disclosure of any of the Company’s or its Subsidiaries’ Confidential Information to any third party. 
  
 4.16 Environmental Matters. Neither the Company nor any Subsidiary is in violation of any statute, rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, and is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim has had or could reasonably be expected 

  









 
to have a Material Adverse Effect, individually or in the aggregate; and there is no pending or, to the Company’s Knowledge, threatened investigation
that might lead to such a claim. 
  
 4.17
Litigation. Except as described on Schedule 4.17, there are no pending actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or their properties; and to the Company’s Knowledge, no such
actions, suits or proceedings are threatened or contemplated. 
  
 4.18 Financial Statements. Except as described on Schedule 4.18, the financial statements included in each SEC Filing present fairly, in all material respects, the consolidated financial position of the
Company as of the dates shown and its consolidated results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a
consistent basis (except as may be disclosed therein or in the notes thereto, and, in the case of quarterly financial statements, as permitted by Form 10-Q under the 1934 Act). Except as set forth in the financial statements of the Company included
in the SEC Filings filed prior to the date hereof or as described on Schedule 4.18, neither the Company nor any of its Subsidiaries has incurred any liabilities, contingent or otherwise, except those incurred in the ordinary course of
business, consistent (as to amount and nature) with past practices since the date of such financial statements, none of which, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect. 

 
 4.19 Insurance Coverage. The Company and each
Subsidiary maintains in full force and effect insurance coverage that is customary for comparably situated companies for the business being conducted and properties owned or leased by the Company and each Subsidiary, and the Company reasonably
believes such insurance coverage to be adequate against all liabilities, claims and risks against which it is customary for comparably situated companies to insure. 
  
 4.20 [This section intentionally omitted.] 
  
 4.21 Brokers and Finders. No Person will have, as a result of the transactions contemplated by this
Agreement, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the
Company. 
  
 4.22 No Directed Selling
Efforts or General Solicitation. Neither the Company nor any Person acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D) in connection with the offer or sale of any of the
Securities. 
  
 4.23 No Integrated
Offering. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances
that would adversely affect reliance by the Company on Section 4(2) for the exemption from registration for the transactions contemplated hereby or would require registration of the Securities under the 1933 Act. 
  
 4.24 Private Placement. The offer and sale of the
Securities to the Investors as contemplated hereby is exempt from the registration requirements of the 1933 Act. 
  
 4.25 Questionable Payments. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any
of their respective current or former shareholders, directors, officers, employees, agents or other Persons acting on behalf of the Company or any Subsidiary, has on behalf of the Company or any Subsidiary or in connection with their respective
businesses: (a) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity; (b) made any direct or indirect unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or unrecorded fund of corporate monies or other assets; (d) made any false or fictitious entries on the books and records of the Company or any Subsidiary; or (e) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment of any nature. 
  









 4.26 Transactions with Affiliates. Except as disclosed in SEC Filings made on or
prior to the date hereof or as disclosed on Schedule 4.26, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or
any Subsidiary (other than as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner. 
  
 4.27 Internal Controls. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. 
  
 4.28
Disclosures. Neither the Company nor any Person acting on its behalf has provided the Investors or their agents or counsel with any information that constitutes or might constitute material, non-public information. The Company has provided
the Investors with all the information that the Investors have requested for deciding whether to acquire the Shares and Warrants, including information that the Company is deferring the release of its third quarter 2003, and fourth quarter and year
end 2003 financial results pending the review of certain transactions from earlier quarters in fiscal year 2003, and that the Company may be required to restate revenues from the first and second quarters of fiscal year 2003, and possibly earlier
periods. The written materials delivered to the Investors in connection with the transactions contemplated by the Transaction Documents do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in light of the circumstances under which they were made, not misleading. 
  
 5. Representations and Warranties of the Investors. Each of the Investors hereby severally, and not jointly, represents and warrants to the Company
that: 
  
 5.1 Organization and Existence.
Each Investor who is not a natural person is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power and authority to invest in the Securities
pursuant to this Agreement. Each Investor who is a natural person has all requisite right, power and authority to invest in the Securities pursuant to this Agreement (including without limitation obtaining any spousal consents necessary).

  
 5.2 Authorization. The execution,
delivery and performance by the Investor of the Transaction Documents to which such Investor is a party have been duly authorized and will each constitute the valid and legally binding obligation of the Investor, enforceable against the Investor in
accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally. 
  
 5.3 Purchase Entirely for Own Account. The Securities
to be received by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and the Investor has no
present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act. The Investor is not a registered broker dealer or an entity engaged in the business of being a broker dealer. 

 
 5.4 Investment Experience. The Investor
acknowledges that it can bear the economic risk and complete loss of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment
contemplated hereby. 
  
 5.5 Disclosure of
Information. The Investor has had an opportunity to receive all additional information related to the Company requested by it and to ask questions of and receive answers from the Company 

  









 
regarding the Company, its business and the terms and conditions of the offering of the Securities. The Investor acknowledges receipt of copies of the SEC
Filings. The Company has provided the Investor with all the information that the Investor has requested in order to decide whether to acquire the Shares and Warrants. Neither such inquiries nor any other due diligence investigation conducted by the
Investor shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges that the Company has disclosed to such Investor that the Company is
deferring the release of its third quarter 2003 and fourth quarter and year end 2003 financial results pending the review of certain transactions from earlier quarters in fiscal year 2003, and that the Company may be required to restate revenues
from the first and second quarters of fiscal year 2003, and possibly earlier periods as well, and that the Investor acknowledges the risks associated with such possible restatements, including but not limited to (i) the risk that the Company’s
common stock was delisted from the Nasdaq SmallCap Market and may never be relisted, (ii) the risk that the Company may never regain compliance with the SEC’s reporting requirements, and (iii) the risk that the Company may be subject to certain
penalties, which may be substantial. 
  
 5.6
Restricted Securities. The Investor understands that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the 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 1933 Act only in certain limited circumstances. 
  
 5.7 Legends. It is understood that, except as
provided below, certificates evidencing such Securities may bear the following or any similar legend: 
  
 (a) “The securities represented hereby may not be transferred unless (i) such securities have been registered for sale pursuant to
the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144(k), or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration
under the Securities Act of 1933 or qualification under applicable state securities laws.” 
  
 (b) If required by the authorities of any state in connection with the issuance of sale of the Securities, the legend required by such
state authority. 
  
 Upon the earlier of (i)
registration for resale pursuant to the Registration Rights Agreement and receipt by the Company of the Investor’s written confirmation that such Securities will not be disposed of except in compliance with the prospectus delivery requirements
of the 1933 Act or (ii) Rule 144(k) becoming available the Company shall, upon an Investor’s written request, promptly cause certificates evidencing the Securities to be replaced with certificates which do not bear such restrictive legends, and
Warrant Shares subsequently issued upon due exercise of the Warrants shall not bear such restrictive legends provided the provisions of either clause (i) or clause (ii) above, as applicable, are satisfied with respect to such Warrant Shares. When
the Company is required to cause unlegended certificates to replace previously issued legended certificates, if unlegended certificates are not delivered to an Investor within three (3) Business Days of submission by that Investor of legended
certificate(s) to the Company’s transfer agent together with a representation letter in customary form, the Company shall be liable to the Investor for liquidated damages (but only if such failure results in the Investor being subject to a
buy-in in connection with a trade of the Securities) in an amount equal to 1.5% of the aggregate purchase price of the Securities evidenced by such certificate(s) for each thirty (30) day period (or portion thereof) beyond such three (3) Business
Day that the unlegended certificates have not been so delivered. 
  
 5.8 Accredited Investor. The Investor is an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act. 
  
 5.9 No General Solicitation. The Investor did not learn of the investment in the Securities as a
result of any public advertising or general solicitation. 
  
 5.10 Brokers and Finders. No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company, any Subsidiary or an Investor for
any 

  









 
commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Investors. 
  
 6. Conditions to Closing. 
  
 6.1 Conditions to the Investors’ Obligations.
The obligation of the Investors to purchase the Securities at the Closing is subject to the fulfillment to the Investors’ satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by the Investors
agreeing hereunder to purchase a majority of the Shares and Warrants (the “Required Investors”): 
  
 (a) The representations and warranties made by the Company in Section 4 hereof qualified as to materiality shall be true and correct at
all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the
representations and warranties made by the Company in Section 4 hereof not qualified as to materiality shall be true and correct in all material respects at all times prior to and on the Closing Date, except to the extent any such representation or
warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and
conditions herein required to be performed or observed by it on or prior to the Closing Date. 
  
 (b) The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary or
appropriate for consummation of the purchase and sale of the Securities all of which shall be in full force and effect. 
  
 (c) The Company shall have executed and delivered the Registration Rights Agreement. 
  
 (d) The Company shall have taken all actions necessary to
amend and restate all of the outstanding September Warrants to remove therefrom the exercise limitations set forth in Section 17 thereof. 
  
 (e) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy
court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated
hereby or in the other Transaction Documents. 
  
 (f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfilment of the conditions specified in
subsections (a), (b), (d), (e) and (i) of this Section 6.1. 
  
 (g) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company
approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the Articles of Incorporation and Bylaws of the Company and certifying as to the
signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company. 
  
 (h) The Investors shall have received an opinion from the Company’s counsel, dated as of the Closing Date, in form and substance
reasonably acceptable to the Investors and addressing such legal matters as the Investors may reasonably request. 
  
 (i) No stop order or suspension of trading shall have been imposed by the SEC or any other governmental regulatory body with respect to
public trading in the Common Stock. 
  









 6.2 Conditions to Obligations of the Company. The Company’s obligation to
sell and issue the Securities at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company: 
  
 (a) The representations and warranties made by the Investors
in Section 5 hereof, other than the representations and warranties contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the “Investment Representations”), shall be true and correct in all material respects when made, and shall be
true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct in all respects when made, and shall be true and
correct in all respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investors shall have performed in all material respects all obligations and conditions herein required to be performed or
observed by them on or prior to the Closing Date. 
  
 (b) The Investors shall have executed and delivered the Registration Rights Agreement. 
  
 (c) The Investors shall have delivered the Purchase Price to the Company. 
  
 6.3 Termination of Obligations to Effect Closing; Effects. 
  
 (a) The obligations of the Company, on the one hand, and the
Investors, on the other hand, to effect the Closing shall terminate as follows: 
  
 (i) Upon the mutual written consent of the Company and the Required Investors; 
  
 (ii) By the Company if any of the conditions set forth in
Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company; 
  
 (iii) By the Required Investors if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall
not have been waived by the Required Investors; or 
  
 (iv) By either the Company or the Required Investors if the Closing has not occurred on or prior to December 26, 2003; 
  
 provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of
its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect
the Closing. 
  
 (b) In the event of termination
by the Company or the Required Investors of their obligations to effect the Closing pursuant to this Section 6.3, written notice thereof shall forthwith be given to the other parties hereto and the obligation of all parties to effect the Closing
shall be terminated, without further action by any party. Nothing in this Section 6.3 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction
Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents. 
  
 7. Covenants and Agreements of the Company. 
  
 7.1 Reservation of Common Stock. The Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of providing for the exercise of the Warrants, such number of shares of Common Stock as shall from time to time equal the number of shares sufficient to permit the exercise of
the Warrants issued pursuant to this Agreement in accordance with their respective terms. 
  









 7.2 Reports. So long as the Investors own at least 5% of the Company’s
outstanding Common Stock, the Company will furnish to such Investors and/or their assignees such information relating to the Company and its Subsidiaries as from time to time may reasonably be requested by such Investors and/or their assignees;
provided, however, that the Company shall not disclose material nonpublic information to the Investors, or to advisors to or representatives of the Investors, unless prior to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Investors, such advisors and representatives with the opportunity to accept or refuse to accept such material nonpublic information for review and any Investor wishing to obtain such information
enters into an appropriate confidentiality agreement with the Company with respect thereto. 
  
 7.3 No Conflicting Agreements. The Company will not take any action, enter into any agreement or make any commitment that would
conflict or interfere in any material respect with the obligations to the Investors under the Transaction Documents. 
  
 7.4 Insurance. The Company shall not materially reduce the insurance coverages described in Section 4.19. 
  
 7.5 Compliance with Laws. The Company will comply in
all material respects with all applicable laws, rules, regulations, orders and decrees of all governmental authorities. 
  
 7.6 Listing of Underlying Shares and Related Matters. The Company will use commercially reasonable efforts to have its Common Stock
listed and traded as soon as reasonably practicable on the most favorable stock exchange or automated quotation system available to the Company at such time. 
  

7.7 Termination of Covenants. The provisions of Sections 7.2 through 7.5 shall terminate and be of no further force and effect
upon the earlier of (i) the mutual consent of the Company and the Required Investors or (ii) the date on which the Company’s obligations under the Registration Rights Agreement to register or maintain the effectiveness of any registration
covering the Registrable Securities (as such term is defined in the Registration Rights Agreement) shall terminate. 
  
 7.8 Exchange of September Warrants. From and after the Closing, the September Warrants shall be deemed to have been amended and
restated as set forth in Section 6.1. From time to time after the Closing, the Company shall execute and deliver to the Investors replacement warrants reflecting such amendment and restatement in exchange for the surrender by the Investors of the
September Warrants then held by them. 
  
 8. Survival and
Indemnification. 
  
 8.1 Survival. All
representations, warranties, covenants and agreements contained in this Agreement shall be deemed to be representations, warranties, covenants and agreements as of the date hereof and shall survive the execution and delivery of this Agreement for a
period of three (3) years from the date of this Agreement; provided, however, that the provisions contained in Section 7 hereof shall survive in accordance therewith. 
  
 8.2 Indemnification. The Company agrees to indemnify and hold harmless, on an after-tax and after
insurance recovery basis, each Investor and its Affiliates and their respective directors, officers, employees and agents from and against any and all losses, claims, damages, liabilities and expenses (including without limitation reasonable
attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement hereof) (collectively, “Losses”) to
which such Person may become subject as a result of any breach of representation, warranty, covenant or agreement made by or to be performed on the part of the Company under the Transaction Documents, and will reimburse any such Person for all such
amounts as they are incurred by such Person. 
  
 8.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or


  









 
the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to Section 8.2, such Indemnified Person
shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses;
provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is materially prejudiced by such failure to notify.
In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have
mutually agreed to the retention of such counsel; or (ii) in the reasonable judgment of counsel to such Indemnified Person representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent, or if there be a final judgment for the
plaintiff, the Company shall indemnify and hold harmless such Indemnified Person from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Without the prior written consent of the Indemnified
Person, which consent shall not be unreasonably withheld, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding. 
  
 9. Miscellaneous. 
  
 9.1 Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company
or the Required Investors, as applicable, provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or in part to an Affiliate or to a third party acquiring some or all of its Securities in a private
transaction without the prior written consent of the Company or the other Investors, after notice duly given by such Investor to the Company and the other Investors, provided, that no such assignment or obligation shall affect the obligations of
such Investor hereunder. Each Investor acknowledges that a transfer of its Securities may be subject to the terms of the Rights Agreement. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. 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. 
  
 9.2 Counterparts; Faxes. 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. This Agreement may also be executed via facsimile, which shall be deemed an original. 
  
 9.3 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. 
  
 9.4 Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given as hereinafter described (i) if given by personal
delivery, then such notice shall be deemed given upon such delivery, (ii) if given by telex or telecopier, then such notice shall be deemed given upon receipt of confirmation of complete transmittal, (iii) if given by mail, then such notice shall be
deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such notice is deposited in first class mail, postage prepaid, and (iv) if given by an internationally recognized overnight air courier, then such
notice shall be deemed given one day after delivery to such carrier. All notices shall be addressed to the party to be notified at the address as follows, or at such other address as such party may designate by ten days’ advance written notice
to the other party: 
  
 If to the Company:

  
 Tarantella, Inc. 
 425 Encinal Street 
 Santa Cruz, California 95060 
 Attention: Legal Department 
 Fax: (831) 427-5474 
  









 With a copy to: 
  
 Wilson Sonsini Goodrich & Rosati LLP 
 650 Page Mill Road 
 Palo Alto, California 94304 
 Attention: Michael Danaher, Esq. 
  
 If to the Investors: 
  
 to the addresses set forth on the signature pages hereto. 
  
 9.5 Expenses. The parties hereto shall pay their own
costs and expenses in connection herewith, except that the Company shall pay the reasonable fees and expenses of counsel to Special Situations, provided however, that such expenses shall not exceed $5,000. Such expenses shall be paid not later than
the Closing. In the event that legal proceedings are commenced by any party to this Agreement against another party to this Agreement in connection with this Agreement or the other Transaction Documents, the party or parties which do not prevail in
such proceedings shall severally, but not jointly, pay their pro rata share of the reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses incurred by the prevailing party in such proceedings. 
  
 9.6 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 Required
Investors. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Securities purchased under this Agreement at the time outstanding, each future holder of all such securities, and the Company.

  
 9.7 Publicity. No public release or
announcement concerning the transactions contemplated hereby shall be issued by the Company or the Investors without the prior consent of the Company (in the case of a release or announcement by the Investors) or the Investors (in the case of a
release or announcement by the Company) (which consents shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange or securities market, in
which case the Company or the Investors, as the case may be, shall allow the Investors or the Company, as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of
such issuance; provided, however, that the Company shall have the right to make such disclosures as the Company reasonably believes are required to be made under applicable law, rule or regulations of any stock exchange or market on which the
Company’s securities are then traded. 
  
 9.8 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect. 
  
 9.9 Entire Agreement. This Agreement, including the
Exhibits and the Disclosure Schedules, and the other Transaction Documents constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both
oral and written, between the parties with respect to the subject matter hereof and thereof. 
  
 9.10 Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained. 
  









 9.11 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or
proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. 
  
 [signature page follows] 
  









 IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to
execute this Agreement as of the date first above written. 
  

									
	 The Company:
	 	 	 	 TARANTELLA, INC.

					
	 	 	 	 	 	 	By:	 	 /s/    FRANCIS E. WILDE

	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 Name:
	 	 Francis E. Wilde

	 	 	 	 	 	 	 Title:
	 	 President & CEO


  

									
	 The Investors:
	 	 	 	 Special Situations Technology Fund, LP

					
	 	 	 	 	 	 	By:	 	/S/    AUSTIN MARXE        
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 Name:
	 	 Austin Marxe

	 	 	 	 	 	 	 Title:
	 	 General Partner


  
 Aggregate Purchase Price: $327,300

 Number of Shares: 327,300 
 Number of Warrants: 65,460

  

									
	 Address for Notice:
	 	 	 	 
					
	 	 	 	 	 	 	 	 	 153 E. 53rd Street
 55th Floor
 New York, NY 10022
  
 with a copy to:
  
 Lowenstein Sandler PC
 65 Livingston
Avenue
 Roseland, NJ 07068
 Attn: John D. Hogoboom, Esq.
 Telephone: 973.597.2500
 Facsimile:    973.597.2400


  

									
	 	 	 	 	 Special Situations Technology Fund, LP

					
	 	 	 	 	 	 	By:	 	/S/    AUSTIN MARXE        
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 Name:
	 	 Austin Marxe

	 	 	 	 	 	 	 Title:
	 	 General Partner


  
 Aggregate Purchase Price: $1,672,700

 Number of Shares: 1,672,700 
 Number of Warrants: 334,540

  

									
	 Address for Notice:
	 	 	 	 
					
	 	 	 	 	 	 	 	 	 153 E. 53rd Street
 55th Floor
 New York, NY 10022
  
 with a copy to:
  
 Lowenstein Sandler PC
 65 Livingston
Avenue
 Roseland, NJ 07068
 Attn: John D. Hogoboom, Esq.
 Telephone: 973.597.2500
 Facsimile:    973.597.2400