Exhibit 10.13
EXECUTION COPY
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COMMON STOCK PURCHASE AGREEMENT
DATED DECEMBER 8, 1999
BETWEEN
LANTE CORPORATION,
XXXX X. XXXXX,
DELL USA L.P.
AND
THE PURCHASERS LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
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Page
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1. Authorization and Closing............................................. 1
1A. Authorization of the Common Stock.............................. 1
1B. Purchase and Sale of the Common Stock.......................... 1
1C. The Closing.................................................... 1
2. Closing Deliveries.................................................... 2
2A. Series A Purchase Agreement Waiver............................. 2
2B. Shareholders Agreement Waiver.................................. 2
2C. Officer's Certificate.......................................... 2
2D. Resolutions.................................................... 2
3. Covenants............................................................. 2
3A. Current Public Information..................................... 2
3B. Public Disclosures............................................. 3
3C. Regulatory Filings............................................. 3
3D. Standstill..................................................... 3
3E. Shareholders Agreement......................................... 4
3F. Registration Rights............................................ 4
3G. FIRPTA......................................................... 4
4. Representations and Warranties of the Company......................... 5
4A. Organization, Corporate Power and Licenses..................... 5
4B. Capital Stock and Related Matters.............................. 5
4C. Authorization; No Breach....................................... 6
4D. Financial Statements........................................... 6
4E. No Material Adverse Change..................................... 7
4F. Absence of Certain Developments................................ 7
4G. Brokerage...................................................... 7
4H. Governmental Consent, etc...................................... 7
4I. Real Property Holding Corporation Status....................... 8
4J. Foundation Disqualified Person................................. 8
4K. Disclosure..................................................... 8
5. Definitions........................................................... 8
5A. Definitions.................................................... 8
6. Miscellaneous......................................................... 10
6A. Expenses....................................................... 10
6B. Purchaser's Investment Representations......................... 10
6C. Consent to Amendments.......................................... 11
6D. Survival of Representations and Warranties..................... 00
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0X. Successors and Assigns......................................... 11
6F. Severability................................................... 11
6G. Counterparts................................................... 12
6H. Descriptive Headings; Interpretation........................... 12
6I. Generally Accepted Accounting Principles....................... 12
6J. Governing Law.................................................. 12
6K. Notices........................................................ 12
6L. No Strict Construction......................................... 13
6M. Understanding Among the Purchasers............................. 13
6N. Termination.................................................... 13
SCHEDULE OF PURCHASERS................................................... 20
Name of Purchaser................................................... 20
No. of Shares Purchased............................................. 20
Total Purchase Price................................................ 20
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LANTE CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
December 8, 1999 between Lante Corporation, a Delaware corporation (the
"Company"), Xxxx X. Xxxxx ("Xxxxx"), Dell USA L.P. ("Dell") and the other
purchasers identified on the attached "Schedule of Purchasers" (collectively,
the "Other Purchasers"). Dell and the Other Purchasers are referred to herein
collectively as the "Purchasers" and individually as a "Purchaser". Except as
otherwise indicated herein, capitalized terms used herein are defined in Section
5 hereof.
The parties hereto agree as follows:
Section 1. Authorization and Closing.
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1A. Authorization of the Common Stock. The Company shall authorize
the issuance and sale to the Purchasers of an aggregate of 1,510,186 shares of
its Common Stock, par value $.01 per share ("Common Stock"). The shares of
Common Stock to be issued by the Company pursuant to this Agreement are referred
to herein as the "Company Shares".
1B. Purchase and Sale of the Common Stock. At the Initial Closing
(as defined in xxxxxxxxx 0X xxxxx),xxx Company shall sell to the Other
Purchasers and, subject to the terms and conditions set forth herein, the Other
Purchasers shall purchase from the Company, the number of shares of the Common
Stock set forth opposite such Person's name on the Schedule of Purchasers at a
purchase price of $11.00 per share, for an aggregate purchase price of
$5,612,046, on the terms and conditions set forth in this Agreement. At the
Second Closing (as defined below), (i) the Company shall sell to Dell and Dell
shall purchase from the Company 1,000,000 shares of Common Stock at a purchase
price of $11.00 per share for an aggregate purchase price of $11,000,000.00 and
(ii) Xxxxx shall sell to Dell and Dell shall purchase from Xxxxx 1,000,000
shares of Common Stock at a price of $11.00 per share for an aggregate purchase
price of $11,000,000.00, on the terms and conditions set forth in this
Agreement. The shares of Common Stock to be purchased by Dell from Xxxxx
pursuant to this Agreement are referred to herein as the "Xxxxx Shares" and
together with the Company Shares as the "Shares."
1C. The Closings. The closing of the separate purchases and sales of
the Common Stock to each of the Other Purchasers (the "Initial Closing") shall
take place at the offices of Xxxxxx Xxxxxx Zavis, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000 at 10:00 a.m. with respect to the Other Purchasers, on
December 10, 1999. The closing of the separate purchases and sales of the
Common Stock to Dell hereunder (the "Second Closing") shall take place at such
time and place as Dell, Xxxxx, and the Company agree, provided that the Second
Closing shall occur on a date not later than two business days following the
expiration or earlier termination of the applicable waiting period
under the HSR Act. For purposes of the Initial Closing and the Second Closing,
the term "Closing" shall mean the Initial Closing and the Second Closing,
respectively.
Section 2. Closing Deliveries.
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(i) The following deliveries shall be made at the Initial Closing:
2A. Series A Purchase Agreement Waiver. The holders of a majority of
the shares of Series A Preferred Stock shall execute and deliver a Waiver under
the Series A Preferred Stock Purchase Agreement in form and substance as set
forth in Exhibit A attached hereto.
2B. Shareholders Agreement Waiver. Xxxxx, the holders of a majority
of the Investor Shares and the holders of a majority of the Shareholder Shares
(other than Xxxxx and the Investor Shares) shall execute and deliver a Waiver
under the Shareholders Agreement in form and substance as set forth in Exhibit A
attached hereto.
2C. Officer's Certificate. The Company shall deliver to the
Purchasers a certificate executed on behalf of the Company by an officer of the
Company, stating that (i) the representations and warranties contained in
Section 4 hereof are true and correct at and as of the Initial Closing; (ii) the
requirements described in paragraph 2D, have been satisfied; and (iii) all
corporate and other proceedings required to be taken by the Company in
connection with the transactions contemplated hereby to be consummated at or
prior to the Initial Closing have been taken.
2D. Resolutions. The Company shall deliver to the Purchasers
certified copies of the resolutions duly adopted by the Board authorizing the
execution, delivery and performance of this Agreement, and each of the other
agreements contemplated hereby or thereby to which the Company is party.
(ii) At the Second Closing, the Company will deliver to Dell evidence
that the applicable waiting period under the HSR Act has expired or been
terminated.
(iii) At each Closing, the Company or Xxxxx, as the case may be, shall
deliver to each Purchaser stock certificates evidencing the Shares to be
purchased by such Purchaser at such Closing, registered in such Purchaser's name
or duly endorsed for transfer, upon payment at the purchase price for such
Shares by wire transfer, in immediately available funds to an account designated
by the Company or Xxxxx, as the case may be.
Section 3. Covenants.
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3A. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Securities Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder and
shall take such
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further action as any holder or holders of Common Stock may reasonably request,
all to the extent required to enable such holders to sell Common Stock pursuant
to (i) Rule 144 adopted by the Securities and Exchange Commission under the
Securities Act (as such rule may be amended from time to time) or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission
or (ii) a registration statement on Form S-2 or S-3 or any similar registration
form hereafter adopted by the Securities and Exchange Commission. Upon request,
the Company shall deliver to any holder of Common Stock a written statement as
to whether it has complied with such requirements.
3B. Public Disclosures. The Company shall not, nor shall it permit
any Subsidiary to, disclose Dell's (or any of their respective Affiliate's) name
or identity as an investor in the Company in any press release or other public
announcement or in any document or material filed with any governmental entity,
without the prior written consent of Dell (as applicable), unless such
disclosure is required by applicable law or governmental regulations or by order
of a court of competent jurisdiction, in which case prior to making such
disclosure the Company shall give written notice to Dell (as applicable),
describing in reasonable detail the proposed content of such disclosure and
shall permit Dell (as applicable), to review and comment upon the form and
substance of such disclosure.
3C. Regulatory Filings. As promptly as practicable after the date of
this Agreement (but in any event within 15 business days after the date hereof),
each of the Company and Dell will make any filings required by the HSR Act to be
made by it in order to consummate the transactions contemplated hereby, and
between the date of this Agreement and the Second Closing, each party hereto
will cooperate with the other parties hereto in connection with any such filings
required by the HSR Act. Notwithstanding anything to the contrary contained
herein, nothing in this Agreement will require any Person, whether pursuant to
an order of the Federal Trade Commission or the United States Department of
Justice or otherwise, to dispose of any assets, lines of business or equity
interests, or otherwise take any action that would materially affect its
business, in order to obtain the consent of the Federal Trade Commission or the
United States Department of Justice to the transactions contemplated by this
Agreement.
3D. Standstill. Dell agrees that, for a period of two years from the
date of this Agreement, unless specifically invited in writing by the Company,
Dell will not, and will cause each of its Affiliates not to, in any manner,
directly or indirectly, (i) own or acquire, by purchase or otherwise (including,
without limitation, any option or similar arrangement), any securities of the
Company; (ii) make, effect or commence any tender or exchange offer, merger or
other business combination involving the Company; (iii) consummate any
recapitalization, restructuring or other extraordinary transaction with respect
to the Company; (iv) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the Securities and
Exchange Commission) to vote, or seek to advise or influence any person with
respect to the voting of, any voting securities of the Company, provided however
that except as set forth in the last sentence of this Section 3D, the foregoing
will not restrict Dell's or its Affiliates' ability to vote their voting
securities of the Company; (v) form, join or in any way
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participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act) with respect to any voting securities of the Company
or; (vi) solicit, seek or offer to negotiate with or make any proposal to the
Company, its Affiliates or its shareholders or otherwise make any public
announcement with respect to any of the actions set forth in the foregoing
subsections of this Section 3D. Notwithstanding anything herein to the contrary,
the foregoing shall not prohibit Dell and its Affiliates from (i) owning, in the
aggregate, up to 15% of any class or series of securities of the Company or
owning in excess of 15% of any class or series of securities of the Company if
Dell and its Affiliates own in excess of 15% of such class or series solely as a
result of actions taken by the Company (and not Dell and its Affiliates), (ii)
purchasing securities of the Company provided that their aggregate ownership
does not exceed 15% of any class or series of securities of the Company after
such purchase, (iii) purchasing or owning the shares of any unaffiliated
investment company (iv) making, effecting or commencing an unsolicited tender or
exchange offer involving the Company and doing anything necessary to effect the
same if prior to making, effecting, or commencing such offer a third party has
made, effected or commenced an unsolicited tender offer involving the Company or
the Company has publicly announced its intent to effect a sale of the Company,
or (v) in connection with (i), (ii), (iii), or (iv) exercising any of the rights
or privileges associated with the ownership of such securities. Dell agrees
that, for a period of two years from the date of this Agreement, if Dell and its
Affiliates own securities of the Company having, in the aggregate, 10% of the
combined voting power of all outstanding securities of the Company, Dell will,
and will cause each of its Affiliates to, vote on each matter submitted to a
vote of securities holders of the Company, or any series or class thereof, in
the manner recommended by the Board.
3E. Shareholders Agreement. Each Purchaser that is not a party to
the Shareholders Agreement hereby agrees to be a party to, and bound by, the
Shareholders Agreement as an Employee Shareholder.
3F. Registration Rights. Dell agrees that notwithstanding the
provisions of the Registration Agreement, if at any time on or after the date
hereof Dell and its Affiliates own securities of the Company having, in the
aggregate, 10% or more of the combined voting power of all outstanding
securities of the Company, then at all times thereafter Dell will not, and will
cause its Affiliates not to, request to be included in any Short-Form
Registration (as such term is defined in the Registration Agreement) Shares and
other securities of the Company to the extent that the aggregate number of
Shares and the other securities of the Company to be included by Dell and its
Affiliates in such Short-Form Registration would exceed 4% of the outstanding
Common Stock of the Company. For purposes of Sections 3D and 3F, MSD Capital
and Dell's independent directors will not be Affiliates of Dell.
3G. FIRPTA.
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(i) The Company acknowledges that certain Purchasers may be foreign
entities or have foreign entities or have foreign Persons as partners and that
the Company may be required to file or cause to be filed in the future with the
IRS certain statements with its United States income tax returns required under
Section 1.897-2(h) of the Treasury Regulations. The Company shall use
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reasonable efforts consistent with sound business practice to avoid becoming a
"United States real property holding corporation" within the meaning of Section
897(c)(2) of the IRC. Upon Frontenac's request, the Company shall provide
Frontenac with a statement that the Company is or is not a "United States real
property holding corporation" as of the date specified by Frontenac (or as of
the date of the request if Frontenac does not specify a date) and shall send a
copy of such statement to the IRS in a form and manner which identifies
Frontenac and which otherwise satisfies the requirements of Section 1.897-
2(h)(2) of the Treasury Regulations.
(ii) In the event the Company in the future becomes a "United States
real property
holding corporation," the Company shall promptly notify Frontenac in writing of
such fact. Thereafter, upon written request from Frontenac, the Company shall
provide information, documentation and assistance to Frontenac reasonably
related to the Company's status as a "United States real property holding
corporation," including but not limited to (i) an affidavit stating (if true)
that the stock held by Frontenac is of a class that is regularly traded (as
defined by Sections 1.897-1(n) and 1.897-9T of the Treasury Regulations) on an
established securities market (as defined by Section 1.897-1(m) of the Treasury
Regulations), and (ii) information or assistance which would enable Frontenac to
obtain a withholding certificate permitting a transferee of Frontenac's stock to
avoid or reduce any withholding obligation such transferee would otherwise have
under federal tax law.
Section 4. Representations and Warranties of the Company.
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As a material inducement to each Purchaser to enter into this
Agreement and purchase the Common Stock hereunder, the Company hereby represents
and warrants that:
4A. Organization, Corporate Power and Licenses. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to do business in every jurisdiction
in which its ownership of property or conduct of business requires it to
qualify. The Company possesses all requisite corporate power and authority and
all material licenses, permits and authorizations necessary to own and operate
its properties, to carry on its businesses as now conducted and presently
proposed to be conducted and to carry out the transactions contemplated by this
Agreement.
4B. Capital Stock and Related Matters.
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(i) As of the date hereof, the authorized capital stock of the Company
consisted of (a) 10,000,000 shares of preferred stock, of which 3,536,069 shares
were issued and outstanding, and (b) 50,000,000 shares of Common Stock,
11,942,700 of which were issued and outstanding.
(ii) There are no statutory or contractual shareholders' preemptive
rights or rights of refusal with respect to the issuance of Common Stock, other
than rights that have been satisfied or waived. The Company has not violated
any applicable federal or state securities laws in connection with the offer,
sale or issuance of any of its capital stock, and the offer, sale and issuance
of the Common Stock hereunder do not require registration under the Securities
Act or any
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applicable state securities laws. To the best of the Company's knowledge after
due inquiry, as of the Closing, there are no agreements between the Company's
shareholders with respect to the voting or transfer of the Company's capital
stock or with respect to any other aspect of the Company's affairs, other than
the Shareholders Agreement and the Registration Agreement.
(iii) Upon issuance in accordance with the terms hereof, the Company
Shares will be duly and validly issued, fully paid, non-assessable and free and
clear of all liens, claims and encumbrances of any kind, other than (a) transfer
and other restrictions under this Agreement, the Shareholders Agreement and the
Registration Agreement, (b) transfer restrictions under federal and state
securities laws and (c) liens, claims or encumbrances imposed due to the actions
of the Purchasers.
4C. Authorization; No Breach.
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(i) The execution, delivery and performance of this Agreement and all
other agreements contemplated hereby to which the Company is a party have been
duly authorized by the Company. This Agreement and all other agreements
contemplated hereby to which the Company is a party each constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms.
(ii) The execution and delivery by the Company of this Agreement and
all other agreements contemplated hereby to which the Company is a party, the
offering, sale and issuance of the Company Shares hereunder and the fulfillment
of and compliance with the respective terms hereof and thereof by the Company,
do not and shall not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii) result in
the creation of any lien, security interest, charge or encumbrance upon the
Company's or any Subsidiary's capital stock or assets pursuant to, (iv) give any
third party the right to modify, terminate or accelerate any obligation under,
(v) result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice or declaration to, or filing
with, any court or administrative or governmental body or agency pursuant to,
the charter or bylaws of the Company or any Subsidiary of the Company, or any
law, statute, rule or regulation to which the Company or any Subsidiary is
subject, or any agreement, instrument, order, judgment or decree to which the
Company or any Subsidiary is subject, except such as have been obtained or
waived as provided in Sections 2A and 2B.
4D. Financial Statements. The Company has made available to the
Purchasers the following financial statements:
(i) the audited consolidated balance sheets of the Company and its
Subsidiaries as of December 31, 1998, and the related statements of income and
cash flows (or the equivalent) for the respective twelve-month periods then
ended; and
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(ii) the consolidated balance sheet of the Company and its
Subsidiaries as of September 30, 1999 (the "Latest Balance Sheet"), and the
related statement of income for the 9-month period then ended.
Each of the foregoing financial statements (including in all cases the notes
thereto, if any) is accurate and complete in all material respects, is
consistent with the books and records of the Company (which, in turn, are
accurate and complete in all material respects) and has been prepared in
accordance with GAAP and presents fairly the consolidated financial condition,
results of operations and cash flows of the Company and its Subsidiaries as of
the dates and for the periods set forth therein.
4E. No Material Adverse Change. Since September 30, 1999, there has
been no material adverse change in the financial condition, operating results,
assets, operations, business prospects, employee relations or customer or
supplier relations of the Company and its Subsidiaries taken as a whole.
4F. Absence of Certain Developments.
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(i) Except as expressly contemplated by this Agreement or in other
agreements documenting the transactions occurring in connection with and
delivered at the Closing, since September 30, 1999, neither the Company nor any
Subsidiary have:
(a) sold, assigned or transferred any of its material tangible
assets, except in the ordinary course of business, or canceled any
material debts or claims;
(b) sold, assigned or transferred any material patents or patent
applications, trademarks, service marks, trade names, corporate names,
copyrights or copyright registrations, trade secrets or other intangible
assets, or disclosed any material proprietary confidential information to
any Person, other than in the ordinary course of business;
(c) suffered any extraordinary losses or waived any rights of
material value, other than in the ordinary course of business or
consistent with past practice; or
(d) suffered any damage, destruction or casualty loss exceeding in
the aggregate $100,000, not covered by insurance.
(ii) Neither the Company nor any Subsidiary has at any time made any
payments for political contributions or made any bribes, kickback payments or
other illegal payments.
4G. Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon the Company or any Subsidiary.
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4H. Governmental Consent, etc. Except for filings required, and the
termination or expiration of the waiting period, under the HSR Act, no permit,
consent, approval or authorization of, or declaration to or filing with, any
governmental authority is required in connection with the execution, delivery
and performance by the Company of this Agreement or the other agreements
contemplated hereby, or the consummation by the Company of any other
transactions contemplated hereby or thereby.
4I. Real Property Holding Corporation Status. Since its date of
incorporation, the Company has not been, and as of the date of this Agreement is
not, a "United States real property holding corporation," as defined in Section
897(c)(2) of the IRC, and in Section 1.897-2(b) of the Treasury Regulations
issued thereunder. The Company has no current plans or intentions which would
cause the Company to become a "United States real property holding corporation,"
and the Company has filed with the IRS all statements, if any, with its United
States income tax returns which are required under Section 1.897-2(h) of the
Treasury Regulations.
4J. Foundation Disqualified Person. The Company has been informed
that the Ford Foundation is a limited partner of Frontenac and that the Persons
identified on Exhibit B attached hereto are "disqualified persons," as such term
is defined by Section 4946(a) of the Code ("Disqualified Persons") To the best
of the Company's knowledge, (a) after giving effect to the investment in the
Company by Dell, Frontenac and the other Purchasers, Disqualified Persons do not
own 18% or more of the voting stock of the Company, and (b) the aggregate direct
and indirect holdings of the stock of the Company of the Persons who are
identified as Disqualified Persons result solely from their indirect investment
in the Company through their investment in Frontenac. The Company is not aware
of any Disqualified Person being a shareholder, partner, member or other direct
or indirect owner of any other investor in the Company or any of its Affiliate.
4K. Disclosure. Neither this Agreement nor any of the exhibits,
schedules, attachments, written statements, documents, certificates or other
items supplied to Dell or the Other Purchasers by or on behalf of the Company
with respect to the transactions contemplated hereby contain any untrue
statement of a material fact or omit a material fact necessary to make each
statement contained herein or therein not misleading.
Section 5. Definitions.
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5A. Definitions. For the purposes of this Agreement, the following
terms have the meanings set forth below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Frontenac" means, collectively, Frontenac VII Limited Partnership and
Frontenac Masters VII Limited Partnership.
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"XXX Xxx" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the Premerger Notification Rules promulgated thereunder.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means an underwritten public offering of the
Company''s Common Stock pursuant to a registration statement effective under the
Securities Act.
"Qualified Public Offering" means a Public Offering (i) having an
aggregate offering value of at least $20 million, and (ii) in which the price
per share paid by the public for such shares is at least (x) $5.125 (as adjusted
for stock splits, stock dividends, reverse stock splits, recapitalizations,
etc.), if such public offering is consummated on or prior to December 31, 1999,
(y) $6.00 (as adjusted for stock splits, stock dividends, reverse stock splits,
recapitalizations, etc.), if such Public Offering is consummated thereafter
until June 17, 2000 or (z) $6.75 (as adjusted for stock splits, stock dividends,
reverse stock splits, recapitalizations, etc.), if such public offering is
consummated after June 17, 2000. In addition, a "Qualified Public Offering"
will be deemed to have occurred at any time following consummation of a public
offering of the Common Stock when the Market Price exceeds $7.50 (as adjusted
for stock splits, stock dividends, reverse stock splits, recapitalizations,
etc.) per share.
"Registration Agreement" means that certain Registration Agreement
dated as of June 17, 1999, by and among the Company, Frontenac VII Limited
Partnership, Frontenac Masters VII Limited Partnership, Dell USA, L.P., a Texas
limited partnership, each of the non-employee investors identified on the
"Schedule of Investors" attached thereto and Xxxx X. Xxxxx.
"Shareholders Agreement" means that certain Shareholders Agreement
dated as of June 17, 1999, between the Company, Frontenac VII Limited
Partnership, Frontenac Masters VII Limited Partnership, Dell USA, L.P., a Texas
limited partnership, all of the non-employee shareholders of the Company listed
on the "Schedule of Advisor Shareholders" attached thereto, and all of the
employee shareholders listed on the "Schedule of Employee Shareholders" attached
thereto.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
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"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
Section 6. Miscellaneous.
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6A. Expenses. Each of the parties to this Agreement shall pay all
fees and expenses incurred by it arising in connection with the negotiation and
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement.
6B. Purchaser's Investment Representations. Each Purchaser hereby
represents and warrants to the Company that:
(a) Investment Purpose. Purchaser is acquiring the Common Stock
for its own account for investment only and not with a view towards, or for
resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted under the Securities Act.
(b) Accredited Investor Status. Purchaser is an "accredited
investor" as that term is defined in Rule 501(a)(3) of Regulation D.
(c) Reliance on Exemptions. Purchaser understands that Common
Stock is being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state
securities laws and that the Company is relying in part upon the truth and
accuracy of, and Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Purchaser set
forth herein in order to determine the availability of such exemptions and
the eligibility of Purchaser to acquire such securities
(d) Information. Purchaser and its advisors, if any, have been
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of
the Common Stock which have been requested by Purchaser. Purchaser and its
advisors, if any, have been afforded the opportunity to
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ask questions of the Company. Purchaser understands that its investment in the
Common Stock involves a high degree of risk. Purchaser has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the Common
Stock.
(e) No Governmental Review. Purchaser understands that no United
States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the
Shares or the fairness or suitability of the investment in the Shares nor
have such authorities passed upon or endorsed the merits of the offering of
the Shares.
(f) Transfer or Resale. Purchaser understands that except as
provided in the Registration Agreement: (i) the Shares have not been and
are not being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless
(A) subsequently registered thereunder or (B) sold in reliance on an
exemption therefrom; and (ii) neither the Company nor any other person is
under any obligation to register such securities under the Securities Act
or any state securities laws or to comply with the terms and conditions of
any exemption thereunder. Purchaser is able to bear the economic risk of
its investment in the Common Stock for an indefinite period of time.
(g) Enforceability. This Agreement constitutes the legal, valid
and binding obligation of such Purchaser, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement by
Purchaser does not and shall not conflict with, violate or cause a breach
of any material agreement, contract or instrument to which Purchaser is a
party or any judgment, order or decree to which Purchaser is subject.
6C. Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holders of a majority of the Shares. No other course of dealing between the
Company and the holder of any Shares or any delay in exercising any rights
hereunder shall operate as a waiver of any rights of any such holders.
6D. Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by any Purchaser or on its behalf.
6E. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made,
-11-
the provisions of this Agreement which are for any Purchaser's benefit as a
purchaser or holder of Shares are also for the benefit of, and enforceable by,
any subsequent holder of such Shares.
6F. 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.
6G. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
6H. Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
6I. Generally Accepted Accounting Principles. Where any accounting
determination or calculation is required to be made under this Agreement or the
exhibits hereto, such determination or calculation (unless otherwise provided)
shall be made in accordance with generally accepted accounting principles,
consistently applied, except that if because of a change in generally accepted
accounting principles the Company would have to alter a previously utilized
accounting method or policy in order to remain in compliance with generally
accepted accounting principles, such determination or calculation shall continue
to be made in accordance with the Company's previous accounting methods and
policies.
6J. Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
6K. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each Purchaser at the address indicated for such
Purchaser on the Schedule of Purchasers and to the Company at the address
indicated below:
-00-
Xxxxx Xxxxxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
6L. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
6M. Understanding Among the Purchasers. The determination of each
Purchaser to purchase shares of the Common Stock pursuant to this Agreement has
been made by such Purchaser independent of any other Purchaser and independent
of any statements or opinions as to the advisability of such purchase or as to
the properties, business, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries which may have been made or given to such Purchaser
by any other Purchaser or by any agent or employee of any other Purchaser. Each
Purchaser acknowledges and agrees that no other Purchaser shall be responsible
in any way or held liable or accountable to any extent for any information,
documents, materials, analysis, projections, plans or other data (or
compilations thereof) relating to the Company or the transactions contemplated
hereby (collectively, "Investment Data") provided to such Purchaser by any other
Purchaser, and each Purchaser agrees to hold harmless and not make any claims
against any other Purchaser with respect to any Investment Data provided to such
Purchaser by such other Purchaser. In addition, it is acknowledged by each of
the other Purchasers that no Purchaser has acted as an agent of any other
Purchaser in connection with making its investment hereunder and that no
Purchaser shall be acting as an agent of any other Purchaser in connection with
monitoring its investment hereunder.
6N. Termination. This Agreement shall terminate automatically and be
of no further force and effect upon the later of (i) the consummation of a
Qualified Public Offering and (ii) the Second Closing, except that the
provisions of Paragraphs 3A, 3B, 3D, 3E, 3F, 3G, 4A, 4B, 4C, 6A, 6C, 6D (as such
paragraph relates to Paragraphs 4A, 4B and 4C), 6E, 6F, 6H, 6J, 6K and 6M shall
continue to be effective in accordance with their terms.
* * * * *
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
LANTE CORPORATION
By /s/ X. X. Xxxxxxx
-----------------------------------
Its President and CEO
-----------------------------------
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
FRONTENAC VII LIMITED PARTNERSHIP
By: Frontenac Company VII, L.L.C.
Its: General Partner
By /s/ Xxx Xxxxxxxxx
-----------------------------------
Its
-----------------------------------
FRONTENAC MASTERS VII LIMITED PARTNERSHIP
By: Frontenac Company VII, L.L.C.
Its: General Partner
By /s/ Xxx Xxxxxxxxx
-----------------------------------
Its
-----------------------------------
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DELL USA L.P.
By: Dell Gen. P. Corp.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Its CFO
-----------------------------------
XXXXXX XXXXX IRREVOCABLE TRUST
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx, Trustee
XXXX XXXXX IRREVOCABLE TRUST
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx, Trustee
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxx Smaller
-----------------------------------
Xxxxx Smaller
/s/ Xxx Xxxxx
-----------------------------------
Xxx Xxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx Xxxxxx
JRO Consulting
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
KRAFT ENTERPRISES
By: /s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx
/s/ X. X. Xxxxxxx
-----------------------------------
C. Xxxx Xxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxx Xxxxxxx
-----------------
Xxxx Xxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx
SCHEDULE OF PURCHASERS
----------------------
----------------------------------------------------------------------------------
Name of Purchaser No. of Shares Purchased Total Purchase Price
----------------- ----------------------- --------------------
----------------------------------------------------------------------------------
Dell USA L.P. 1,000,000 $11,000,000
----------------------------------------------------------------------------------
Frontenac VII Limited Partnership 157,356 1,730,916
----------------------------------------------------------------------------------
Frontenac Masters VII Limited
Partnership 7,868 86,548
----------------------------------------------------------------------------------
Xxxx Xxxxxxxx 7,207 79,277
----------------------------------------------------------------------------------
Xxxx Xxxxx 20,230 222,530
----------------------------------------------------------------------------------
Xxxx Xxxxxx 13,790 151,690
----------------------------------------------------------------------------------
Xxx Xxxxx 9,887 108,757
----------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 13,790 151,690
----------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 26,820 295,020
----------------------------------------------------------------------------------
Xxxx Xxxxxx 33,134 364,474
----------------------------------------------------------------------------------
Xxxx Xxxxxxxx 20,104 221,144
----------------------------------------------------------------------------------
C. Xxxx Xxxxxxx 70,500 775,500
----------------------------------------------------------------------------------
Xxxxx Xxxxx 25,000 275,000
----------------------------------------------------------------------------------
Xxxx Xxxxx 20,000 220,000
----------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 20,000 220,000
----------------------------------------------------------------------------------
Xxxx Xxxxxxx 15,000 165,000
----------------------------------------------------------------------------------
Xxxxx Xxxxx 15,000 165,000
----------------------------------------------------------------------------------
Xxxx Xxxx 10,000 110,000
----------------------------------------------------------------------------------
Xxxxx Smaller 10,000 110,000
----------------------------------------------------------------------------------
Xxxxx Xxxxxxx 10,000 110,000
----------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 4,500 49,500
--------- -----------
----------------------------------------------------------------------------------
LIST OF EXHIBITS
----------------
Exhibit A - Waiver
