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EXHIBIT 10.11
INFOBEAT INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (the "AGREEMENT") is
entered into as of June 8, 1998 by and among InfoBeat Inc., a Delaware
corporation (the "COMPANY") and each of those persons and entities, severally
and not jointly, whose names are set forth on the Schedule of Purchasers
attached hereto as EXHIBIT A (collectively the "PURCHASERS" and individually a
"PURCHASER").
In consideration of the mutual promises hereinafter set forth, the
parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized the sale and issuance to the
Purchasers of shares of its Series D Preferred Stock (the "Shares") having the
rights, preferences, privileges and restrictions set forth in the Restated
Certificate of Incorporation of the Company attached hereto as EXHIBIT B.
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing, the Company hereby agrees to issue and sell to each Purchaser and
each Purchaser severally and not jointly agrees to purchase from the Company
the number of Shares set forth opposite such Purchaser's name on EXHIBIT A at a
purchase price of Five Dollars and Eight Cents ($5.08) per Share.
2. CLOSING, DELIVERY AND PAYMENT
The closing of the sale and purchase of the Shares under this Agreement
shall take place at 10:00 a.m. on the date hereof, at the offices of Xxxxxx
Godward LLP, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, or at
such other time or place as the Company and Purchasers may mutually agree (the
"Closing"). At the Closing, subject to the terms and conditions hereof, the
Company will deliver to the Purchasers certificates representing the number of
Shares to be purchased at the Closing by each Purchaser, against payment of the
purchase price therefor by certified check or wire transfer of immediately
available funds.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Disclosure Schedule delivered by the Company
to the Purchasers in connection with the signing hereof (with each item of the
Disclosure Schedule being deemed to apply to a particular section of this
Section 3 and not to all Sections of this Agreement) the Company hereby
represents and warrants to each Purchaser as follows:
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3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has all requisite corporate power
and authority to own and operate its properties and assets, to execute and
deliver this Agreement to issue and sell the Shares and the shares of Common
Stock issuable upon conversion thereof (the "Conversion Shares") and to carry
out the other provisions of this Agreement, and to carry on its business as
presently conducted and as presently proposed to be conducted. The Company is
qualified or licensed and in good standing as a foreign corporation in all
jurisdictions where the nature of its business or property makes such
qualification or licensing necessary and the failure to be so qualified or
licensed could materially adversely affect the business, earnings, prospects,
properties or condition (financial or other) of the Company.
3.2 CAPITALIZATION.
(a) Immediately prior to the Closing, the authorized capital
stock of the Company will consist of (i) twelve million five hundred thousand
(12,500,000 shares of Common Stock, one million four thousand ninety-six
(1,004,096) shares of which are issued and outstanding, and (ii) seven million
seven hundred thousand (7,700,000) shares of Preferred Stock, eight hundred
eighty thousand (880,000) shares of which are designated as Series A Preferred
Stock, all of which are issued and outstanding, two million five hundred
seventy thousand (2,570,000) shares of which are designated as Series B
Preferred Stock, two million five hundred twenty-three thousand three hundred
thirty-three (2,523,333) of which are issued and outstanding, three million
five hundred fifty thousand (3,550,000) shares of which are designated as
Series C Preferred Stock, one million nine hundred eleven thousand five hundred
thirty-four (1,911,534) of which are issued and outstanding, and seven hundred
seventy thousand (770,000) shares of which are designated Series D Preferred
Stock, none of which were issued and outstanding prior to the Closing. All
issued and outstanding shares of the Company's Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable. Except for
outstanding employee options to purchase a total of one million thirty six
thousand fifty-three (1,036,053) shares of Common Stock, warrants to purchase
forty-six thousand six hundred sixty-six (46,666) shares of Series B Preferred
Stock, and warrants to purchase seven hundred ten thousand nine hundred
seventeen (710,917) shares of Series C Preferred Stock, there are no
outstanding options, warrants or other rights to purchase from the Company any
of its securities.
(b) There are no outstanding rights, subscriptions, calls,
options, warrants, conversion rights or agreements granted or issued by or
binding upon the Company for the purchase or acquisition (contingent or
otherwise) from the Company of any shares of its capital stock or any other
securities except in accordance with the terms of this Agreement. The Company
is not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any share of its capital stock or any security
convertible into or exchangeable for any shares of its capital stock. No holder
of Common Stock or Preferred Stock or any other security of the Company or
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any other person or entity is entitled to any preemptive right, right of first
refusal or similar right as a result of the issuance of the Shares or
otherwise, except as set forth therein. There is no voting trust, agreement or
arrangement among any of the beneficial holders of Common Stock or Preferred
Stock of the Company affecting the exercise of the voting rights of such stock.
(c) Attached in Part 3.2(c) of the Disclosure Schedule is a
true and complete list of the names and addresses of the record holders of all
of the outstanding Common Stock and Preferred Stock and other securities of the
Company. Such list attached contains a true and complete description of the
number of shares held by each such holder, the price paid per share and the
form of payment therefor. With respect to each outstanding option, such list
sets forth the date of grant, the number of shares subject thereto, the
exercise price, and vesting schedule. Such list also shows the current
directors and officers of the Company.
3.3 SUBSIDIARIES. The Company does not presently own, of record or
beneficially, or control, directly or indirectly, any capital stock or equity
interest in any corporation, association or business entity. The Company is
not, directly or indirectly, a participant in any joint venture or partnership.
3.4 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on
the part of the Company, its officers, directors and stockholders necessary for
the authorization of this Agreement, the performance of all obligations of the
Company hereunder at the Closing and the authorization, sale, issuance and
delivery of the Shares has been taken or will be taken prior to the Closing.
When issued in compliance with the provisions of this Agreement, the Shares
will be validly issued, fully paid and nonassessable and will be free and clear
of any preemptive rights, security interests, claims, liens or encumbrances
created by the Company. The Conversion Shares have been duly and validly
reserved for issuance and, when issued upon conversion of the Series D
Preferred Stock, will be validly issued, fully paid and nonassessable and will
be free and clear of any preemptive rights, security interests, restrictions on
transfer, claims, liens or encumbrances other than restrictions under
applicable state securities laws. This Agreement shall constitute the valid and
binding obligation of the Company enforceable in accordance with its terms.
3.5 CONSENTS AND APPROVALS. No filings with, notices to, or
approvals or authorizations of any governmental or regulatory body are required
to be obtained or made by the Company in connection with the consummation of
the transactions contemplated hereby. The Company has obtained all consents,
approvals or authorizations of, made all declarations or filings with, and
given all notices to, all federal, state or local governmental or public
authorities or agencies which are necessary for the continued conduct by the
Company of its business as now conducted or as proposed to be conducted in
which the failure to so obtain, make or give could materially adversely affect
the business, earnings, prospects, properties or condition (financial or other)
of the Company.
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3.6 NO VIOLATIONS. The execution and delivery of this Agreement
and the performance by the Company of its obligations hereunder (i) do not and
will not conflict with or violate any provision of the Restated Certificate of
Incorporation or bylaws of the Company and (ii) do not and will not (a)
conflict with or result in a breach of the terms, conditions or provisions of,
(b) constitute a default under, (c) result in the creation of any encumbrance
upon the capital stock or assets of the Company pursuant to, (d) give any third
party the right to modify, terminate or accelerate any obligation under, (e)
result in a violation of, or (f) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body or other third party pursuant to, any law, statute, rule or
regulation or any material agreement or instrument or any order, judgment or
decree to which the Company is subject or by which any of its assets are bound.
3.7 FINANCIAL STATEMENTS; INTERIM CHANGES. The Company's unaudited
balance sheet as of April 30, 1998 (the "Latest Balance Sheet") and unaudited
of income and cash flows of the Company for the period from January 1, 1998 to
April 30, 1998 delivered to the Purchasers in connection with the investment
contemplated hereby have been prepared in accordance with generally accepted
accounting principles consistently applied (subject to normal year-end
adjustments and the absence of footnote disclosures) and fairly present in all
material respects the financial position and the results of operations of the
Company for the period covered thereby, and the Company has no liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) that are
not either reflected or fully reserved against on the Latest Balance Sheet or
incurred in the ordinary course of the business of the Company subsequent to
the date thereof in an amount not to exceed $100,000 in the aggregate. Since
the date of the Latest Balance Sheet there has not been any material adverse
change in the business, operations, financial condition or prospects of the
Company.
3.8 COMPLIANCE WITH LAWS. The Company's business has been
conducted in compliance with all applicable laws and regulations of
governmental authorities, except for such violations that have been cured or
that, individually or in the aggregate, may not reasonably be expected to have
a material adverse effect on the business, operations, financial condition or
prospects of the Company.
3.9 PROPRIETARY RIGHTS. The Company has not received any
communications alleging that it has violated or, by conducting its business as
proposed would violate, any proprietary rights of any other person, nor is the
Company aware of any basis for the foregoing.
3.10 ACTIONS PENDING. There is no action, suit, proceeding or
investigation pending or, to the best knowledge of the Company, threatened in
writing against or affecting the Company or any of its respective properties or
rights before any court or by or before any governmental body or arbitration
board or tribunal. The foregoing includes, without limitation, actions pending
or threatened (or any basis therefor known to the Company) involving the prior
employment of any of the Company's employees,
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the use in connection with the Company's business of any information or
techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers. The Company is not a
party or subject to, and none of its assets are bound by, the provisions of any
order, writ, injunction, judgment or decree of any court or government agency
or instrumentality or arbitrator or arbitration panel. There is no action,
suit, proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
3.11 MATERIAL CONTRACTS. Except as set forth on the Disclosure
Schedule, the Company is not a party to (and is not otherwise bound by) any of
the following: (i) any employment or consulting contract (including employee
benefit and welfare arrangements), (ii) any agreement providing for the
issuance or repurchase of any securities of the Company, (iii) any agreement in
respect of registration rights, preemptive rights, rights of first refusal,
voting rights or other rights of security holders, (iv) any agreement
evidencing or providing for any indebtedness for borrowed money, (v) any joint
venture contract or arrangement or other agreement involving a sharing of
profits or expenses to which the Company is a party; (vi) agreements limiting
the freedom of the Company to compete in any line of business or in any
geographic area or with any person; (vii) agreements providing for disposition
of the business, assets or shares of the Company, agreements of merger or
consolidation to which the Company is a party or letters of intent with respect
to the foregoing; or (viii) any other agreement that could reasonably be deemed
material to the Company.
3.12 INVESTMENTS IN UNITED STATES REAL PROPERTY INTERESTS. The
Company's capital stock does not constitute a United States real property
interest as that term is defined in Section 897(c)(1)(A)(ii) of the Internal
Revenue Code of 1986, as amended (the "Code"). The preceding representation is
based on a determination by the Company that the Company is not and has not
been a United States real property holding corporation (as that term is defined
in Section 897(c)(2) of the Code) during the five (5) year period preceding the
date of this letter. The Company shall use its best efforts to ensure that it
does not at any time in the future become a United States real property holding
corporation. If at any time in the future the Company should become a United
States real property holding corporation, the Company shall, as promptly as
possible, notify each Purchaser of such change in status.
3.13 UNRELATED BUSINESS TAXABLE INCOME. Any gross income derived by
the Purchasers from the Company shall be in the form of dividends, interest,
capital gains and losses from the disposition of property, and rents and
royalties, but only such rents and royalties as are excluded pursuant to Code
Sections 512(b)(2) and 512(b)(3), respectively, in calculating unrelated
business taxable income and only such dividends, interest, capital gains and
losses, and rents and royalties that are not included under Section 512(b)(4)
of the Code in calculating unrelated business taxable income. This Section 3.12
shall not be deemed to apply to (i) any compensation (in cash, stock or other
form) received by designees of the Purchasers in their capacities as directors
of the Company that is transferred to the Purchasers or (ii) any income
included under
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Section 512(b)(4) of the Code as a result of acquisition indebtedness incurred
by any Purchaser in connection with the purchase of an interest in the Company.
3.14 QUALIFIED SMALL BUSINESS. To the best of its knowledge, the
Company qualifies as a "Qualified Small Business" as defined in Section 1202(d)
of the Code and covenants that so long as its shares are held by the Purchasers
(or a transferee in whose hands the shares are eligible to qualify as Qualified
Small Business Stock as defined in Section 1202(c) of the Code), it will use
its reasonable efforts to cause the shares to qualify as Qualified Small
Business Stock; provided that, notwithstanding the foregoing, the Company shall
not be obligated to take any action, or refrain from any action, which in its
good faith judgment is not in the best interests of the Company or its
stockholders.
3.15 DISCLOSURE. Neither this Agreement nor any schedule hereto,
nor any written disclosure document furnished by or on behalf of the Company to
the Purchasers or counsel to the Purchasers in connection with the transactions
contemplated by this Agreement, when read together, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any information
contained within any of the foregoing relating to future events or the
projected future financial performance of the Company, including any financial
projections or descriptions of potential strategic or business relationships
between the Company and third parties, except that the budget and financial
projections provided to the Purchasers (the "Financial Projections") were
prepared in good faith based on assumptions which the Company believes were
reasonable at the time the projections were prepared. As of the date of this
Agreement, to the Company's knowledge each of the assumptions upon which the
Financial Projections were based remain reasonable.
3.16 PERMITS. The Company has all franchises, permits, licenses and
other authority necessary for its business as now being conducted and believes
it can obtain, without undue burden or expense, any similar authority for its
business as planned to be conducted. The Company is not in default in any
material respect under any such franchise, permit, license or other authority.
3.17 INTELLECTUAL PROPERTY.
(a) The Company owns or has sufficient rights to use, free
and clear of all liens, charges, claims, and restrictions, all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information,
proprietary rights and processes and other intellectual property rights
necessary to its business as presently conducted.
(b) Since its organization, the Company has taken reasonable
security measures to protect the secrecy, confidentiality and value of all
intellectual property and
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all Inventions (as defined below). Since its organization, each of the
Company's employees, consultants, and independent contractors, who, either
alone or in concert with others, developed, invented, discovered, derived,
programmed or designed intellectual property or Inventions, or who has
knowledge of or access to information about intellectual property or
Inventions, has entered into a written agreement substantially in the form
attached hereto as Exhibit C ("Proprietary Information Agreement") with the
Company. As used herein, "Inventions" means all inventions, developments and
discoveries which during the period of an employee's, consultant's, or
contractor's service to the Company he, she or it makes or conceives of, either
solely or jointly with others, that relate to any subject matter with which
his, her, or its work for the Company may be concerned, or relate to or are
connected with the business, products, services or projects of the Company, or
relate to the actual or demonstrably anticipated research or development of the
Company or involve the use of the Company's funds, time, material, facilities
or trade secret information.
(c) The Company is not aware that any of the Company's
employees or consultants is or will be in violation of his or her Proprietary
Information Agreement, and the Company shall use its best efforts to prevent
any such violation. The Company is not aware that any of the Company's
employees, consultants or contractors are obligated under any contract
(including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would conflict with his or her obligation to use
his or her best efforts to promote the interests of the Company. Neither the
execution nor delivery of this Agreement and the agreements contemplated
thereby, nor the carrying on of the Company's business by its employees,
consultants and contractors, nor the conduct of its business as proposed, will
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any contract, covenant or instrument known to
the Company under which any of such employees, consultants or contractors is
now obligated. The Company does not believe it is or will be necessary to
utilize any inventions, copyrights, or other intellectual property of any of
its employees, consultants or contractors (or people it currently intends to
hire) made or owned prior to their employment with or engagement by the Company
or that it is or will be necessary to utilize any other assets or rights of any
of its employees, consultants or contractors (or people it currently intends to
hire) made or owned prior to their employment with or engagement by the
Company, in violation of any limitations or restrictions to which any such
employee, consultant or contractor is a party or to which any of such assets or
rights may be subject.
3.18 PATENTS AND OTHER INTANGIBLE ASSETS.
(a) Part 3.18(a) of the Disclosure Schedule summarizes all
patents, patent applications, trademarks, copyrights and other intellectual
property of the Company with a description of their scope.
(b) The Company (i) owns or has the right to use, free and
clear of all
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liens, claims and restrictions, all patents, patent applications, trademarks,
service marks, trade names, inventions, trade secrets, copyrights, licenses and
rights with respect to the foregoing, used in or necessary for the conduct of
its business as now conducted or proposed to be conducted, (ii) is not
infringing upon or otherwise acting adversely to the right or claimed right of
any person or entity under or with respect to any patent, trademark, service
xxxx, trade name, invention, trade secret, copyright, license or other
intellectual property or right with respect with respect thereto, and (iii) is
not obligated or under any liability whatsoever to make any payments by way of
royalties, fees or otherwise to any owner or licensee of, or other claimant to,
any patent, trademark, service xxxx, trade name, invention, trade secret, or
copyright with respect to the use thereof or in connection with the conduct of
its business or otherwise.
(c) The Company owns and has the unrestricted right to use
all product rights, manufacturing rights, trade secrets, including know-how,
negative know-how, formulas, patterns, compilations, programs, devices,
methods, techniques, processes, inventions, designs, computer programs and
technical data and all information that derives independent economic value,
actual or potential, from not being generally known or known by competitors and
which the Company has taken reasonable steps to maintain in secret (all of the
foregoing of which are collectively referred to herein as "INTELLECTUAL
PROPERTY") required for the development, manufacture, operation, and sale of
all products and services sold or proposed to be sold by the Company, free and
clear of any right, lien or claim of others, including without limitation
former employers of its employees, consultants and contractors, and current
employers of employees, consultants and contractors, where such employees,
consultants or contractors are also employed or under contract with another
person.
(d) The Company has not sold, transferred, assigned, licensed
or subjected to any lien, security interest, or other encumbrance, any
Intellectual Property, trade secret, know-how, invention, design, process,
computer program or technical data, or any interest therein, necessary or
useful for the development, manufacture, use, operation or sale of any product
or service presently under development or manufactured, sold or rendered by the
Company.
(e) No director, officer, employee, agent or stockholder of
the Company owns or has any right in the Intellectual Property of the Company,
or any patents, trademarks, service marks, trade names, copyrights, licenses or
rights with respect to the foregoing, or any inventions, developments or
discoveries used in or necessary for the conduct of the Company's business as
now conducted or as proposed to be conducted.
(f) The Company has no actual knowledge of any facts and has
not received any communication alleging or stating that the Company or any
employee, consultant or contractor has violated or infringed, or by conducting
business as proposed, would violate or infringe, any patent, trademark, service
xxxx, trade name, copyright, trade secret, proprietary right, process or other
Intellectual Property of any
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other person or entity; the Company has no knowledge of any impediment whereby
any employee, consultant or contractor who performs or is to perform services
of any kind for the Company that would interfere with such person's ability to
promote the business of the Company or would conflict with the business or
proposed Company business.
(g) Neither the execution nor delivery of this Agreement and
the agreements contemplated thereby, nor the carrying on of the Company's
business by its employees, consultants, and contractors nor the conduct of its
business as proposed, will conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument known to the Company under which any of such employees,
consultants or contractors are now obligated.
(h) The Company has not granted any license to use its
proprietary information or Intellectual Property. The Company has not granted
to any other person or entity rights to license, market or sell its proposed
products or services and the Company is not bound by any agreement that affects
the Company's exclusive right to develop, license, market or sell its products
or services.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser severally and not jointly hereby represents and
warrants to the Company as follows:
4.1 REQUISITE POWER AND AUTHORITY. Such Purchaser has all
necessary power and authority under all applicable provisions of law to execute
and deliver this Agreement and to carry out its provisions. All actions on such
Purchaser's part required for the lawful execution and delivery of this
Agreement have been or will be effectively taken prior to the Closing.
4.2 INVESTMENT REPRESENTATIONS. Such Purchaser understands that
neither the Shares nor the Conversion Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act"). Such Purchaser also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon the
Purchaser's representations contained in this Agreement.
(a) PURCHASER BEARS ECONOMIC RISK. Such Purchaser has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company so that it is
capable of evaluating the merits and risks of its investment in the Company and
has the capacity to protect its own interests. Such Purchaser must bear the
economic risk of this investment indefinitely unless the Shares (or the
Conversion Shares) are registered pursuant to the Securities Act, or an
exemption from registration is available. Such Purchaser understands that the
Company has no present intention of registering the Shares, the
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Conversion Shares or any shares of its Common Stock. Such Purchaser also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow such Purchaser to transfer all or any portion of the
Shares or the Conversion Shares under the circumstances, in the amounts or at
the times such Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Such Purchaser is acquiring
the Shares and the Conversion Shares for its own account for investment only,
and not with a view towards their distribution in violation of applicable
securities laws.
(c) PURCHASER CAN PROTECT ITS INTEREST. Such Purchaser
represents that, by reason of its or of its management's business or financial
experience, such Purchaser has the capacity to protect its own interests in
connection with the transactions contemplated in this Agreement. Further, such
Purchaser is aware of no publication of any advertisement in connection with
the transactions contemplated by the Agreement.
(d) ACCREDITED INVESTOR. Such Purchaser represents that it is
an accredited investor within the meaning of Regulation D under the Securities
Act.
(e) COMPANY INFORMATION. Such Purchaser has had an
opportunity to discuss the Company's business, management and financial affairs
with directors, officers and management of the Company. Such Purchaser has also
had the opportunity to ask questions of, and receive answers from, the Company
and its management regarding the terms and conditions of this investment.
(f) RULE 144. Such Purchaser acknowledges and agrees that the
Shares and the Conversion Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Such Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the
availability of certain current public information about the Company, the
resale occurring not less than one year after a party has purchased and paid
for the security to be sold, the sale being through an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the number
of shares being sold during any three-month period not exceeding specified
limitations.
5. CONDITIONS PRECEDENT TO PURCHASERS' OBLIGATIONS
The obligation of each Purchaser to purchase and pay for the Shares to
be delivered to it at the Closing shall be subject to the satisfaction of the
following conditions as of the Closing Date:
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(i) the representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the
Closing Date;
(ii) the Purchasers shall have received the legal opinion of
Xxxxxx Godward LLP, counsel to the Company, in the form of EXHIBIT D
hereto;
(iii) concurrently with the Closing, the Company, the
Purchasers and the existing stockholders of the Company shall have
entered into the Second Amended and Restated Stockholders Agreement in
the form attached hereto as EXHIBIT E;
(iv) the Company shall have provided to Centennial Fund IV,
L.P. ("CENTENNIAL") a certification of the direct and indirect
holdings of securities of the Company by certain persons designated by
Centennial as required by Centennial's governing documents;
(v) all other Purchasers shall have concurrently purchased
the Shares to be purchased by them pursuant to this Agreement; and
(vi) all corporate and legal proceedings taken by the Company
in connection with the transactions contemplated by this Agreement and
all documents relating to such transactions shall be satisfactory to
each of the Purchasers and to its counsel. The Company shall have
delivered to the Purchasers a certificate, executed on behalf of the
Company by the President and the Secretary of the Company, dated the
Closing Date, certifying to the fulfillment of the conditions
specified in subsection 5(i).
6. EXPENSE REIMBURSEMENT
The Company hereby agrees to reimburse Global Retail Partners, L.P. at
the Closing for the fees and expenses of one counsel representing it in an
amount not to exceed $7,500; provided that, the Company shall have received an
itemized xxxx of such fees and expenses prior to the Closing. The Company
agrees to reimburse the fees of counsel and out-of-pocket expenses incurred by
the Purchasers in connection with the enforcement, in a legal proceeding
against the Company, of the rights and remedies of the Purchasers hereunder and
under the Amended and Restated Stockholders Agreement and the Company's Amended
and Restated Certificate of Incorporation(excluding Article Eleven thereof) if
the Purchasers, either individually or collectively, are the prevailing party
or parties in any such proceeding.
7. MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Colorado as such laws are applied to
agreements between Colorado residents entered into and performed entirely in
Colorado, except that the General Corporation Law of the State of Delaware
shall govern as to matters of corporate law.
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7.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser
and the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by
or on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
7.4 ENTIRE AGREEMENT. This Agreement, and any amendment hereto,
the Exhibits and the other documents delivered pursuant hereto or pursuant to
any such amendment, including the Second Amended and Restated Stockholders
Agreement, and any amendment thereto, constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically
set forth herein and therein.
7.5 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal, and enforceable but so as to
most nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby.
7.6 AMENDMENT AND WAIVER. This Agreement may be amended or
modified only upon the mutual written consent of the Company and each of the
Purchasers.
7.7 NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal delivery to
the party to be notified; (ii) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day; (iii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iv) one (1) day
after deposit with a nationally recognized overnight courier, special next day
delivery, with verification of receipt. All communications shall be sent to the
Company at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 and to a
Purchaser at the address set forth on Exhibit A attached hereto or at such
other address as the Company or Purchaser may designate by ten (10) days
advance written notice to the other parties hereto.
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7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.9 BROKER'S FEES. Each party hereto represents and warrants that
no agent, broker, investment banker, person or firm acting on behalf of or
under the authority of such party hereto is or will be entitled to any broker's
or finder's fee or any other commission directly or indirectly in connection
with the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of any such fee or commission payable by such
indemnifying party.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
INFOBEAT INC.
By: /s/
Title: President & CEO
PURCHASERS:
Boulder Ventures Ltd.
By: /s/
Title:
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Global Retail Partners, L.P.
By Global Retail Partners, Inc.
General Partner
By: /s/
Title:
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.
General Partner
By: /s/
Title:
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DLJ Diversified partners-A, L.P.
By DLJ Diversified Partners, Inc.
General Partner
By: /s/
Title:
GRP Partners, L.P.
By Global Retail Partners, Inc.
General Partner
By: /s/
Title:
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Global Retail Partners Funding, Inc.
By: /s/
Title:
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation
General Partner
By: /s/
Title:
/s/
Xxxxxxx X. Xxx Xxxxxxx, Xx.
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EXHIBIT A
SCHEDULE OF PURCHASERS
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EXHIBIT B
RESTATED CERTIFICATE OF INCORPORATION
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EXHIBIT C
PROPRIETARY INFORMATION AGREEMENT RESTATED CERTIFICATE OF INCORPORATION
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EXHIBIT D
FORM OF LEGAL OPINION FORM OF THIRD AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT
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EXHIBIT E
FORM OF SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
FORM OF LEGAL OPINION
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