EXHIBIT 10.15
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Series C Preferred Stock Purchase Agreement (this "AGREEMENT"),
dated as of July 12, 1999 is entered into by and between VIP Calling, Inc., a
Delaware corporation (the "COMPANY"), and the persons who become party to this
Agreement by executing and delivering to the Company an Instrument of Adherence
(an "INSTRUMENT OF ADHERENCE") in the form attached hereto as EXHIBIT A (the
"PURCHASERS").
WITNESSETH
WHEREAS, the parties hereto desire to provide for the purchase and sale
of up to 5,775,000 shares (the "SHARES") of the Company's Series C Convertible
Preferred Stock, par value $.001 per share (the "SERIES C PREFERRED STOCK"), the
rights, designations and preferences of which are set forth on EXHIBIT B hereto;
and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to sell and issue to
each Purchaser, and each Purchaser agrees to purchase from the Company, at a
purchase price of $4.37 per share, that number of shares of Series C Preferred
Stock listed above such Purchaser's name on such Purchaser's Instrument of
Adherence, each such purchase and sale to occur at a Closing (as contemplated by
Section 2 hereof).
2. MULTIPLE CLOSINGS, THE CLOSINGS.
2.1 MULTIPLE CLOSINGS. The Company is conducting an offering
of up to 5,775,000 Shares (the "OFFERING"). The Company may, at its discretion,
have two closings (each a "CLOSING," collectively, the "CLOSINGS," and the date
of each thereof, a "CLOSING DATE") of the Offering; the second Closing to occur
on or before July 21, 1999. There is no minimum amount of the Offering required
to be sold in connection with either such Closing.
2.2 THE CLOSINGS. Each Closing of the purchase and sale of the
Shares shall occur the offices of Xxxxxxx Xxxx LLP in Boston, Massachusetts. At
each Closing, the Company shall issue and deliver to each Purchaser
participating therein a stock certificate or certificates evidencing the Shares
being issued and sold to such Purchaser, against delivery by such Purchaser of
the purchase price therefor by certified or bank check payable to the order of
the Company or wire transfer of immediately available funds to such account as
the Company shall indicate prior to such Closing.
3. REPRESENTATIONS OF THE COMPANY. Except as disclosed by the Company
in the Exhibits and Schedules attached hereto, the Company hereby represents and
warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to conduct its
business as now conducted and to enter into and perform the Series C Agreements
(as defined below) and the transactions contemplated thereby. The Company is
duly qualified to do business in and is in good standing in each state in which
a failure to be so qualified would have a material adverse effect on the
Company's financial condition or its ability to conduct its business in the
manner now conducted. The Company has furnished to the Purchasers true and
complete copies of its Certificate of Incorporation and By-laws, each as amended
to date.
3.2 CAPITALIZATION. The authorized capital stock of the Company
immediately prior to the each of the Closing consists of (i) 30,000,000 shares
of Class A Common Stock, par value $.001 per share (the "CLASS A COMMON STOCK"),
of which 6,060,000 shares are issued and outstanding, (ii) 1,500,000 shares of
Class B Common Stock, par value $.001 per share (the "CLASS B COMMON STOCK"), of
which 1,500,000 shares are issued and outstanding, (iii) 1,256,875 shares of
Series A Preferred Stock, par value $.001 per share (the "SERIES A PREFERRED
STOCK"), of which 1,250,000 shares are issued and outstanding, (iv) 6,875,000
shares of Series B Preferred Stock, par value $.001 per share (the "SERIES B
PREFERRED STOCK"), of which 6,562,500 shares are issued and outstanding, and (v)
5,775,000 shares of Series C Preferred Stock, none of which are issued and
outstanding prior to the first Closing to occur. All of the issued and
outstanding shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and were issued in compliance
with applicable federal and state securities laws. As of each Closing, the
shares of Series A Preferred Stock and Series B Preferred Stock outstanding or
subject to outstanding options, warrants or rights therefor are convertible into
an aggregate of 3,770,625 and 6,600,000 shares of Class A Common Stock,
respectively. As of each Closing, there are 2,685,000 shares of Class A Common
Stock authorized for issuance pursuant to the Company's 1997 Stock Incentive
Plan. Except as set forth in SCHEDULE 3.2.1 hereto, (a) no subscription,
warrant, option, convertible security or other right (contingent or otherwise)
to purchase or acquire any shares of capital stock of the Company is authorized
or outstanding, (b) there is not any commitment of the Company to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock any evidences
of indebtedness or assets of the Company, and (c) the Company has no obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend or make any
other distribution in respect hereof. All of the options, warrants and other
rights or subscriptions for equity securities of the Company have been duly and
validly authorized and issued and were issued in compliance with applicable
federal and state securities laws. Except as set forth on SCHEDULE 3.2.2 hereto
or as provided in this Agreement, the Amended Registration Rights Agreement (as
defined in Section 5.6) and the Amended Shareholders Agreement (as defined in
Section 5.5), (A) no person or entity is entitled to (i) any preemptive or
similar right with respect to the issuance or sale of any capital stock of the
Company or (ii) any rights with respect to the registration of any capital stock
of the Company under the Securities Act of 1933, as amended (the "SECURITIES
ACT") and (B) there exists no agreement, written or oral, between the Company
and any shareholders with respect to the voting, acquisition (including, without
limitation, rights of first refusal or preemptive rights), or disposition of any
capital stock of the Company.
3.3 SUBSIDIARIES. Except as set forth on SCHEDULE 3.3 hereto (each
entity identified thereon as a subsidiary of the Company being hereinafter
referred to as a "SUBSIDIARY"), the Company has no subsidiaries and does not own
or control, directly or indirectly, any interest in any other corporation,
association or business entity. All of the outstanding equity securities of each
of the Company's Subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and such equity securities as are owned by
the Company are owned directly by the Company, free and clear of any security
interests (perfected or otherwise), claims, liens, or encumbrances. There are no
outstanding options, warrants, equity securities or similar ownership interests,
calls rights (including preemptive rights), commitments or agreements of any
character to which the Company or any of its Subsidiaries is a party or by which
they are bound obligating any Subsidiary to issue, deliver or sell, or cause to
be issued, delivered or sold, any shares of capital stock or similar ownership
interests in such Subsidiary or obligating such Subsidiary to grant any such
option, warrant, equity security, call, right, commitment or agreement.
3.4 STOCKHOLDER LIST. SCHEDULE 3.4 contains a true and complete
list of the stockholders of the Company, showing the number of shares of Common
Stock or other securities of the Company held by each stockholder as of the date
of this Agreement.
3.5 ISSUANCE OF SHARES. The issuance, sale and delivery of the
Shares in accordance with this Agreement and the reservation, issuance, sale and
delivery of the shares issuable upon conversion of the Shares have been duly
authorized by all requisite corporate action on the part of the Company, and the
Shares, when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of Class A
Common Stock issuable upon conversion of the Shares, when issued upon such
conversion in accordance with the Company's Certificate of Incorporation, will
be duly and validly issued, fully paid, non-assessable and, subject to the
accuracy of the Purchasers' representations and warranties herein, issued in
compliance with applicable federal and state securities laws.
3.6 AUTHORITY FOR AGREEMENT. The execution, delivery and
performance by the Company of this Agreement, the Amended Shareholders'
Agreement (as defined in Section 5.5), the Amended Registration Rights Agreement
(as defined in Section 5.6) and the Management Rights Agreements (as defined in
Section 5.8) (collectively, the "SERIES C AGREEMENTS") have been duly authorized
by all requisite corporate action, and each of the Series C Agreements has been
duly executed and delivered by the Company. Each of the Series C Agreements
constitutes the valid and binding obligation of the Company enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditors' rights
and the application of equitable principles in any action legal or equitable.
The execution and delivery of the Series C Agreements and performance of the
transactions contemplated thereby and compliance with their provisions by the
Company will not violate any provision of law and will not conflict with or
result in any breach of any of the terms, conditions or provisions
of, or constitute a default under, the Company's Certificate of Incorporation or
By-laws, each as amended to date, or any indenture, lease, agreement or other
instrument to which the Company is a party or by which the Company or any of its
properties is bound, or any decree, judgment, order, statute, rule or regulation
applicable to the Company, except where any such violation, conflict, breach or
default would not have a material adverse effect on the condition (financial or
otherwise), business or properties of the Company.
3.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company
in connection with the execution and delivery of the Series C Agreements, the
offer, issue, sale and delivery of the Shares, or the other transactions to be
consummated at each Closing, except (i) the filing by the Company of a Form D
with the Securities and Exchange Commission, which the Company hereby covenants
to file within fifteen (15) days of the close of the offering, (ii) requisite
filings with appropriate state securities authorities, if any, which the Company
hereby covenants to make on a timely basis, and (iii) such filings as shall have
been made prior to and shall be effective on and as of each Closing.
3.8 LITIGATION. There is no action, suit, proceeding or
investigation pending, or, to the best of the Company's knowledge, threatened
against the Company, which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition (financial or
otherwise), business or prospects of the Company or that would limit or impair
the power or authority of the Company to enter into the Series C Agreements and
consummate the transactions contemplated therein.
3.9 ABSENCE OF LIABILITIES. Except as set forth on SCHEDULE 3.9
hereto, the Company does not have, as of the date hereof, any liabilities of any
type which in the aggregate exceeded $50,000, whether absolute or contingent.
3.10 PROPERTY AND ASSETS. The Company has good title to all of its
material properties and assets as set forth on SCHEDULE 3.10 hereto and, except
as set forth on such schedule, none of such properties or assets is subject to
any mortgage, pledge, lien, security interest, lease, charge or encumbrance.
3.11 PATENTS AND TRADEMARKS. SCHEDULE 3.11 hereto lists all the
material patents, patent applications, trademarks, registered service marks,
registered trademark and service xxxx applications, registered copyrights and
patent and trademark licenses now owned or held by the Company (the
"INTELLECTUAL PROPERTY"). The Intellectual Property includes all intellectual
property necessary for the conduct of the Company's business. To the best of the
Company's knowledge, the business as currently conducted or as proposed to be
conducted by the Company will not cause the Company to infringe or violate any
of the patents, trademarks, service marks, trade names, copyrights, licenses,
trade secrets or other proprietary rights of any other person or entity. The
Company is not aware that any employee is obligated under any contract
(including any license, covenant or commitment of any nature), or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of such employee's best efforts to promote the interest
of the Company or would conflict with the Company's business as proposed to be
conducted. There is no claim, suit, action or proceeding pending, or to the
Company's knowledge of threatened, against the Company asserting that the
Company's use of any of its intellectual property infringes the rights of any
other entity.
3.12 INSURANCE. The Company maintains valid policies of workers'
compensation insurance and of insurance with respect to its properties and
business of the kinds and in the amounts not less than is customarily obtained
by corporations of established reputation engaged in the same or similar
business and similarly situated, including, without limitation, insurance
against loss, damage, fire, theft, public liability and other risks.
3.13 MATERIAL CONTRACTS AND OBLIGATIONS. Except as set forth on
SCHEDULE 3.13 hereto, there are no (i) agreements which require future
expenditures by the Company in excess of $50,000, (ii) leases or rental
agreements for real property or office space, (iii) employment or consulting
agreements, employee benefit, bonus, pension, profit-sharing, stock option,
stock purchase or similar plans or arrangements, or (iv) material agreements
between the Company and any stockholder, officer or director of the Company, or
any "affiliate", or "associate" of such persons (as such terms are defined in
the rules and regulations promulgated under the Securities Act). The Company has
delivered to the Purchaser true and complete copies of the foregoing agreements.
All of such agreements and contracts are valid, binding and in full force and
effect.
3.14 ERISA. The Company maintains no employee benefit plans, as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974.
3.15 COMPLIANCE. The Company has, in all material respects,
complied with all laws, regulations and orders applicable to its present and
proposed business and has obtained all material permits and licenses required
thereby, except where the failure to obtain such permits or licenses would not
have a material adverse effect. There is no term or provision of any material
mortgage, indenture, contract, agreement or instrument to which the Company is a
party or by which it is bound or, to the knowledge of the Company, of any
provision of any state or Federal judgment, decree, order, statute, rule or
regulation applicable to or binding upon the Company, which, in the absence of a
material breach or violation of any such provision, law or judgment, decree or
regulation, materially adversely affects the business, prospects, or operations
of the Company or its properties or assets and the Company is not in material
breach of any of the foregoing. To the best of the Company's knowledge, none of
the employees of the Company is in violation of any term of any employment
contract, patent or other proprietary information disclosure agreement or any
other contract or agreement relating to the employment of such employee by the
Company.
3.16 EMPLOYEES. Except as set forth on SCHEDULE 3.16 hereto, each
employee of the Company whose activities require access to confidential or
proprietary information of the Company has executed and delivered to the Company
a Proprietary Information and Inventions Agreement substantially in the form of
EXHIBIT C hereto, and each such agreement is in full force and effect. None of
the employees of the Company is represented by any labor union, and there is no
labor strike or other labor trouble pending with respect to the Company or, to
the best knowledge of the Company, threatened.
3.17 BROKERS OR FINDERS. The Company has not entered into any
arrangement that would cause any person to have any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker as a result of the consummation of the transactions
contemplated by this Agreement. The Company agrees to indemnify and to hold
harmless the Purchasers from any liability for any commission or compensation in
the nature of a finder's or broker's fee (and any asserted liability) for which
the Company or any of its officers, partners, employees or representatives is
responsible.
3.18 DISCLOSURES. Neither this Agreement nor any Exhibit hereto,
nor any agreement or document delivered by the Company to the Purchasers or
their counsel in connection with the transactions contemplated by this Agreement
contains or will contain any material misstatement of fact or omits or will omit
to state a material fact necessary to make the statements continued herein or
therein not misleading. Anything disclosed in any Schedules or Exhibits hereto
shall be deemed disclosed in all other Schedules or Exhibits hereto.
3.19 MINUTE BOOKS AND STOCK LEDGER. The minute books of the
Company contain materially complete and accurate records of all meetings and
other corporate action of the stockholders, Board of Directors, and committees
thereof. The stock ledger of the Company is complete and accurate and reflects
all issuances, transfers, repurchases, and cancellations of shares of the
Company's capital stock.
3.20. FINANCIAL STATEMENTS. The audited financial statements of
the Company at and for the year ended December 31, 1998, and the unaudited
financial statements of the Company at and for the five month period ending May
31, 1999 (collectively, the "COMPANY FINANCIAL STATEMENTS"), which are attached
as SCHEDULE 3.20 hereto, are true, correct and complete in all material respects
and present fairly, in conformity with generally accepted accounting principles
consistently applied (except, that the unaudited financial statements do not
contain all of the required footnotes and are subject to normal, recurring
non-material year-end adjustments) the financial position of the Company at the
dates indicated and the results of its operations for each of the periods
indicated, except as otherwise set forth in the notes thereto. Except as set
forth in the Company Financial Statements, the Company has no material
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to May 31, 1999 and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the Company Financial Statements, which, in both cases, individually or in the
aggregate, are not material to the financial condition or operating results of
the Company. Except as disclosed in the Company Financial Statements, the
Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation. The books and records of the Company have been
kept, and will be kept to the date of each Closing, in reasonable detail, and
will fairly and accurately reflect in all material respects to the date of the
Closing, the transactions of the Company.
3.21 ABSENCE OF CERTAIN CHANGES. Since May 31, 1999 and except as
disclosed elsewhere in this Agreement, there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Company Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a
material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(e) any material change or amendment to a material contract or
arrangement by which the Company or any of it assets or properties is bound or
subject;
(f) any material change in any compensation arrangement or
agreement with any employee;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any key
officer of the Company; and the Company, to the best of its knowledge, does not
know of the impending resignation or termination of employment of any such
officer;
(i) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company;
(j) any mortgage, pledge, transfer of a security interest in,
or lien, created by the Company, with respect to any of its material properties
or assets, except liens for taxes not yet due or payable;
(k) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(l) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company;
(m) to the best of the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
assets, properties, financial condition, operating results of business of the
Company (as such business is presently conducted and as it is proposed to be
conducted); or
(n) any agreement of commitment by the Company to do any of
the things described in this Section 3.21.
3.22 TAX RETURNS. The Company has filed in correct form all tax
returns and estimates (federal, state and local) required to be filed by it,
and has paid all taxes shown to be due and payable on the returns or on any
assessment received by the Company as well as all other taxes (federal, state
and local) due and payable by it on or before the date hereof, other than
state and local realty taxes which are payable but which are not yet due.
Neither the Internal Revenue Service nor any state, local or foreign tax
authority has not conducted an examination of any income tax returns of the
Company. The amount shown on the Company Financial Statements as provision
for taxes, if any, is sufficient in all material respects for payment of all
accrued and unpaid federal, state, county, local, and foreign taxes for the
period then ended and all prior periods.
3.23 ENVIRONMENTAL MATTERS. The Company, to the best of its
knowledge, is in compliance with all local, state and federal environmental
statutes, laws, rules, regulations and permits, including but not limited to
CERCLA. Except for acrylamide acrylic acid, caustic soda, methylene
bisacrylamide used in manufacturing and common chemicals used by the in cleaning
and materials processing, the Company has not, nor to the Company's knowledge
have other parties, used, stored, disposed of or permitted any "hazardous
substance" (as defined in CERCLA), petroleum hydrocarbon, polychlorinated
biphenyl, asbestos or radioactive material (collectively, "HAZARDOUS
SUBSTANCES") to remain at, on, in or under any of the property covered by any of
the real property leases to which the Company is a party. The Company has not
installed, used, or disposed of any asbestos or asbestos-containing material on,
in or under any of the property covered by any of the real property leases to
which it is a party.
3.24 QUALIFIED SMALL BUSINESS. The Company qualifies as a
"qualified small business" under Section 1202(d) of the Internal Revenue Code of
1986, as amended (the "CODE").
3.25 YEAR 2000 COMPLIANCE. All of the Company's products, and, to
the Company's knowledge after reasonable investigation, all of the Company's
material information technology ("IT") systems and material non-IT embedded
systems (including products, systems or technology currently under development)
will record, store, process, calculate and present calendar dates falling on and
after (and, if applicable, during spans of time including) September 9, 1999 and
January 1, 2000, and will calculate any information dependent on or relating to
such dates in the same manner, and with the same functionality, data integrity
and performance, as the products, IT systems and non-IT embedded systems record,
store, process, calculate and present, calendar dates on or before September 8,
1999 and December 31, 1999, or calculate any information dependent on or
relating to such dates.
3.26 RELATED-PARTY TRANSACTIONS. No employee, officer or director
of the Company or member of such person's immediate family is indebted to the
Company, nor is the Company indebted (or committed to make loans or extend or
guarantee credit) to any of them. None of such persons has any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation that competes with the Company, except employees, officers or
directors of the Company and members of their immediate families may own less
than 5% of the outstanding stock in a publicly traded company that may compete
with the Company. No member of the immediate family of any officer or director
of the Company is directly or indirectly interested in any material contract
with the Company.
3.27 REAL PROPERTY HOLDING CORPORATION. The Company is not a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code and any regulation promulgated thereunder.
4. REPRESENTATIONS OF EACH PURCHASER. Each Purchaser, as to itself,
represents and warrants to the Company as follows:
4.1 AUTHORITY. It has full power and authority to enter into and to
perform this Agreement, the Amended Shareholders Agreement and the Amended
Registration Rights Agreement in accordance with their terms. If not a natural
person, it is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
4.2 INVESTMENT PURPOSE. The Purchaser is acquiring Shares for its
own account for the purpose of investment and not with a view to distribution or
resale thereof.
4.3 NO REGISTRATION. The Purchaser understands and agrees that the
Shares have not been registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and therefore, cannot be offered, sold or transferred
unless they are registered under the Securities Act or an exemption from such
registration is available.
4.4 DEVELOPMENT-STAGE COMPANY. The Purchaser acknowledges and
understands that the Company commenced operations in 1997.
4.5 REQUISITE KNOWLEDGE. The Purchaser represents that it has such
knowledge and experience in business and financial matters with respect to
investments in securities of privately-held, development-stage companies so as
to enable it to understand and evaluate the risks of the Purchaser's investment
in the Shares and to form an investment decision with respect thereto.
4.6 SUFFICIENCY OF INFORMATION. The Purchaser has been afforded the
opportunity during the course of negotiating the transactions contemplated by
this Agreement to ask questions of, and to secure such information from, the
Company and its officers and directors as
it deems necessary to evaluate the merits of entering into such transactions,
and all information requested has been given and all questions asked were
answered.
4.7 ADEQUATE NET WORTH. The Purchaser represents that it has
adequate net worth and means of providing for its current needs and personal
contingencies to sustain a complete loss of its investment in the Shares. In
particular, the Purchaser confirms that the amount of its investment in the
Shares does not exceed 25% of its net worth (including, if the Purchaser is a
natural person, the net worth of his or her spouse).
4.8 ACCREDITED INVESTOR. The Purchaser hereby represents and
warrants that the Purchaser is an "accredited investor" within the meaning of
Rule 501 under the Securities Act, and acknowledges and understands that the
Company is relying upon such representation and warranty to establish that an
exemption from registration of the Shares under the Securities Act is available.
5. CONDITIONS TO THE OBLIGATIONS OF EACH PURCHASER. The obligation of
each Purchaser to purchase Shares at each Closing is subject to the fulfillment,
or the waiver by such Purchaser, of each of the following conditions on or
before each Closing Date:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in Section 3 of this Agreement (except for such
representations and warranties as are limited by their terms to an earlier
specified date (which shall be true as of such date)) shall be true and correct
in all respects on and as of each Closing Date with the same effect (including,
without limitation, any qualifications therein with respect to materiality) as
though such representations and warranties had been made on and as of that date.
5.2 PERFORMANCE. The Company shall have performed and complied in
all material respects with all agreements and conditions contained in this
Agreement required to be performed or complied with by the Company prior to or
at each such Closing.
5.3 OPINION OF COUNSEL. The Purchaser shall have received an
opinion, substantially in the form of EXHIBIT D hereto, from Xxxxxxx Xxxx LLP,
counsel to the Company, dated as of the date hereof, addressed to the
Purchasers.
5.4 CERTIFICATES AND DOCUMENTS. The Company shall have delivered to
the Purchasers:
(i) A copy of the Certificate of Incorporation of the Company,
as amended and in effect as of the date hereof, certified by the Secretary or
Assistant Secretary of the Company;
(ii) A copy of the By-laws of the Company as amended and in
effect as of the date hereof, certified by the Secretary or Assistant Secretary
of the Company as of the date hereof;
(iii) A copy of resolutions of the Board of Directors
authorizing and approving all requisite matters in connection with this
Agreement and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of the Company as of the date hereof;
(iv) A certificate, as of a date reasonably proximate to the
date hereof, as to the corporate good standing of the Company issued by the
Secretary of State of the State of Delaware;
(v) A certificate, as of the Closing Date, stating that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.5 SHAREHOLDERS' AGREEMENT. The Second Amended and Restated
Shareholders' Agreement, substantially in the form of EXHIBIT E hereto (the
"AMENDED SHAREHOLDERS' AGREEMENT") shall have been executed and delivered by the
Company and the holders of at least sixty percent (60%) of (i) the aggregate
issued and outstanding shares of the Class A Common Stock and the Class B Common
Stock and (ii) the issued and outstanding shares of the Series A Preferred Stock
and Series B Preferred Stock.
5.6 REGISTRATION RIGHTS AGREEMENT. The First Amended and Restated
Registration Rights Agreement, substantially in the form of EXHIBIT F hereto
(the "AMENDED REGISTRATION RIGHTS AGREEMENT") shall have been executed and
delivered by the Company and the holders of at least a majority of the
Registrable Shares (as defined in such Amended Registration Rights Agreement)
outstanding immediately prior to the issuance of any of the Shares.
5.7 AMENDMENT TO CERTIFICATE OF INCORPORATION. The Amendment to the
Certificate of Incorporation in the form of EXHIBIT B shall have been executed
by the Company and filed with the Secretary of State's office in Delaware.
5.8 MANAGEMENT RIGHTS AGREEMENTS. The Company shall have executed
and delivered to TCV III (Q), L.P., a Delaware limited partnership, and Integral
Capital Partners IV, L.P., a Delaware limited partnership, a Management Rights
Agreement in the form attached hereto as EXHIBIT G (together, the "MANAGEMENT
RIGHTS AGREEMENTS").
5.9 EMPLOYEE AGREEMENTS. Each employee of the Company shall have
executed and delivered to the Company a Proprietary Information and Inventions
Agreement substantially in the form of EXHIBIT C hereto.
6. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to sell Shares to a Purchaser at each Closing is subject to the
fulfillment, or waiver by the Company, of each of the following conditions on or
before the Closing Date:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Purchaser contained in Section 4 shall be true and correct
in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
6.2 ANCILLARY AGREEMENTS. The Purchaser shall become or shall have
become a party to the Amended Shareholders' Agreement and the Amended
Registration Rights Agreement.
6.3 BLUE SKY APPROVALS. The Company and the Purchaser shall have
received all requisite approvals and made any requisite filings with state Blue
Sky authorities and any such approvals shall be in full force and effect on the
Closing Date (other than filings required to be made after the Closing Date).
7. LEGEND. Each Purchaser understands that the certificate or
certificates evidencing Shares purchased by such Purchaser shall bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES UNDER
THE SECURITIES ACT OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, PLEDGE,
HYPOTHECATION OF OTHER TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHICH
SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS.
Each Purchaser further understands that the Company may place a
stop-transfer order on any of the Shares with the Company's transfer agent.
8. MISCELLANEOUS.
8.1 NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed effectively
given and received upon delivery in person, or one business day after delivery
by national overnight courier service or by telecopier transmission with
acknowledgment of transmission receipt, or three business days after deposit via
certified or registered mail, return receipt requested, in each case addressed
as follows:
(a) if to the Company, to:
VIP Calling, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxx, President
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(b) if to a Purchaser, to the address or addresses of such
Purchaser set forth on the Instrument of Adherence executed and delivered to the
Company by such Purchaser; with a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the other.
8.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed entirely within the state without regard to
principles of conflicts of law.
8.3 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits hereto, constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof and thereof. All Schedules and Exhibits
hereto are hereby incorporated herein by reference.
8.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 NO WAIVERS; AMENDMENTS.
(a) No failure or delay on the part of any party in
exercising any right, power, or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power, or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party at law
or in equity or otherwise.
(b) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and Purchasers who, at any given time, hold at least a majority of
the then outstanding shares of Series C Preferred Stock.
8.6 SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
8.7 GENDER. All pronouns and all variations thereof shall be deemed
to refer to the masculine, feminine, or neuter, singular or plural, as the
identity of the person or persons, thing or entity may require.
8.8 HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.9 EXPENSES. The Company shall be responsible for its own legal
costs incurred in connection with the preparation, review and negotiation of the
transactions contemplated by this Agreement and shall pay the legal costs of
Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, P.C., counsel to the Purchasers, up to an
aggregate of $20,000.
8.10 SURVIVABILITY. Notwithstanding any investigation conducted at
any time with regards thereto by or on behalf of any Purchaser, all
representations and warranties of the parties hereto, with the exception of the
representations of the Company contained in Sections 3.2, 3.6 and 3.22, shall
survive each Closing and shall remain in full force and effect through and until
March 31, 2001.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned sets its hand under seal as of
the day and year first above written.
COMPANY:
VIP CALLING, INC.
By: /s/ Xxxx Xxxxxx
---------------------
Xxxx Xxxxxx
President
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, New Media Investors III, L.L.C., in order to purchase
shares of Series C Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series C Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of July 12,
1999 (the "Purchase Agreement"). This Instrument of Adherence shall take effect
and shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 517,784
-----------
Signature: /s/ Xxxx Xxxxxxxxx
-------------------------
Managing Member
Address: c/o Bain & Company, Inc.
-------------------------
Two Xxxxxx Place
-------------------------
Xxxxxx, XX 00000
-------------------------
Fax No.: 000-000-0000
-------------------------
Date: June 29, 1999
-------------------------
Accepted:
VIP CALLING, INC.
By:
-----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx X. XxxxxxXxxx, in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 16,865
----------
Signature: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Address: 00 Xxxxxxxx Xxxxxx
---------------------------
Xxxxxxxxx, XX 00000
---------------------------
---------------------------
Fax No.:
---------------------------
Date: July 12, 1999
---------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,144
------------
Signature: /s/ Xxxxx X. Xxxxxxx
---------------------------
Address: 000 Xxxxxxx Xx.
---------------------------
Xxxxxx, XX 00000
---------------------------
---------------------------
Fax No.: 000-000-0000
---------------------------
Date:
---------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Integral Capital Partners IV, L.P., in order to purchase
shares of Series C Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series C Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of July ___,
1999 (the "Purchase Agreement"). This Instrument of Adherence shall take effect
and shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,137,761
---------
INTEGRAL CAPITAL PARTNERS IV, L.P.
By Integral Capital Management IV, LLC,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------
A Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax No.: 000-000-0000
Date: July 12, 1999
--------------------
Accepted:
VIP CALLING, INC.
By:_________________________________
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Integral Capital Partners IV MS Side Fund, L.P., in order
to purchase shares of Series C Convertible Preferred Stock, par value $.001 per
share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series C Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
July ___, 1999 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 6,404
--------------------
INTEGRAL CAPITAL PARTNERS IV MS SIDE
FUND, L.P.
By Integral Capital Partners NBT, LLC,
Its Manager
By: /s/ Xxxxxx Hagenha
--------------------------------
A Manager
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax No.: 000-000-0000
Date: July 12, 1999
-------------
Accepted:
VIP CALLING, INC.
By:_______________________________
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 4,577
-----------
Signature: /s/ X.X. Xxxxxx
--------------------
Address: 000 Xxxx Xxxx Xx.
--------------------
Xxxxxxx, XX 00000
--------------------
--------------------
Fax No.: (000) 000-0000
--------------------
Date: July 12, 1999
--------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxxxx Trust u/a/d 12/19/91, in order to
purchase shares of Series C Convertible Preferred Stock, par value $.001 per
share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series C Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
July 12, 1999 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 114,416
----------
Signature: /s/ C.N. Corfield (ttee)
-------------------------
Address: 000 Xxxx Xx.
-------------------------
Xxxx Xxxx, XX 00000
-------------------------
-------------------------
Fax No.: (000) 000-0000
-------------------------
Date: 12 July 1999
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx Xxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 9,153
----------
Signature: /s/ Xxxxxxx Xxxxxxx
------------------------
Address: 0 Xxxxx Xxx.
------------------------
Peakhurst
------------------------
XXX, Xxxxxxxxx 0000
------------------------
Fax No.: 00-0-0-000-0000
------------------------
Date: 6th July 1999
------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx X. Pawel, in order to purchase shares of Series
C Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,144
----------
Signature: /s/ Xxxxxxxxx X. Xxxxx
-------------------------
Address: 00 Xxxxxxx Xx.
-------------------------
Xxxxxx, XX 00000
-------------------------
(work) 000 Xxxx Xxx., 00xx Xxxxx
-------------------------
XX, XX 00000
-------------------------
Fax No.: (W) 000-000-0000
-------------------------
Date: June 29, 1999
-------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx X. Case III, in order to purchase shares of Series
C Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,144
---------
Signature: /s/ Xxxxxx X. Case III
---------------------------
Address: x/x Xxxxxxxxx & Xxxxx
---------------------------
One Xxxx Street, 18Th Floor
---------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------
Fax No.: 000-000-0000
---------------------------
Date: July 12, 1999
---------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx X. Xxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,144
----------
Signature: /s/ Xxxx X. Xxxxxx
------------------------
Address: 0000 Xxxx Xx.
------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------
------------------------
Fax No.: 000 00-0000
------------------------
Date: 6/29/99
------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxxxx, in order to purchase shares of Series
C Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,414
---------
Signature: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Address: 00 Xxxxx Xxxx
-----------------------
Xxxx, XX 00000
-----------------------
-----------------------
Fax No.: 000-000-0000
-----------------------
Date: 6/29/99
-----------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx & Xxxxx Employee Venture Fund, X.X. XX, in order
to purchase shares of Series C Convertible Preferred Stock, par value $.001 per
share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series C Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
July 12, 1999 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 9,153
-----------
XXXXXXXXX & XXXXX EMPLOYEE VENTURE
FUND, X.X. XX.
By: H&Q VENTURE MANAGEMENT, L. L. C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Its: Tax Director, Attorney-in-Fact
Address: Xxx Xxxx Xx.
------------------------------
XX, XX 00000
------------------------------
------------------------------
Fax No.: 0 (000) 000-0000
------------------------------
Date: 6/29/99
------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx & Xxxxx California, in order to purchase shares
of Series C Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 9,153
---------
Xxxxxxxxx & Xxxxx California
Signature: /s/ Xxxxxx X. Xxxxxx
------------------------------
Tax Director, Attorney-in-Fact
Address: Xxx Xxxx Xx.
------------------------------
XX, XX 00000
------------------------------
------------------------------
Fax No.: 0 (000) 000-0000
------------------------------
Date: 6/29/99
------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, TCV III Strategic Partners, L.P., a Delaware Limited
Partnership, in order to purchase shares of Series C Convertible Preferred
Stock, par value $.001 per share, of VIP Calling, Inc., a Delaware corporation
(the "Company"), hereby agrees to become a "Purchaser" party to the Series C
Preferred Stock Purchase Agreement among the Company and the other Purchaser
parties thereto dated as of July ___, 1999 (the "Purchase Agreement"). This
Instrument of Adherence shall take effect and shall become a part of said
Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 85,498
----------
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III,
L.L.C., Its General Partner
By: /s/ R Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, TCV III (Q), L.P., a Delaware Limited Partnership, in
order to purchase shares of Series C Convertible Preferred Stock, par value
$.001 per share, of VIP Calling, Inc., a Delaware corporation (the "Company"),
hereby agrees to become a "Purchaser" party to the Series C Preferred Stock
Purchase Agreement among the Company and the other Purchaser parties thereto
dated as of July 12_, 1999 (the "Purchase Agreement"). This Instrument of
Adherence shall take effect and shall become a part of said Purchase Agreement
immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 1,888,010
------------
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III,
L.L.C., Its General Partner
By: /s/ R Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, TCV III, L.P., a Delaware Limited Partnership, in order to
purchase shares of Series C Convertible Preferred Stock, par value $.001 per
share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series C Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
July 12_, 1999 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 71,034
---------
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III,
L.L.C., Its General Partner
By: /s/ R Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, TCV III (GP), a Delaware General Partnership, in order to
purchase shares of Series C Convertible Preferred Stock, par value $.001 per
share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series C Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
July 12_, 1999 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 14,955
---------
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III,
L.L.C., Its General Partner
By: /s/ R Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Dirigo Partners, LLC, in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 114,416
------------
Signature: /s/ Xxxxx Xxxx
--------------------------
Address: 0000 Xxxxx Xxxx Xx
--------------------------
Xxxxxxxx, XX 00000
--------------------------
--------------------------
Fax No.: 000-000-0000
--------------------------
Date:
--------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 10,000
-----------
Signature: /s/ Xxx X. Xxxxx
--------------------------
Address: 000 Xxxx 00xx Xxxxxx
--------------------------
Xxx. #0000
--------------------------
N.Y., N.Y. 10022
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: 7-6-99
--------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 13,723
-----------
Signature: /s/ Xxxxx Xxxxxxxx
--------------------------
Address: 11 Woodsorrel
--------------------------
East Northport
--------------------------
Xxx Xxxx, XX 00000
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: July 5, 1999
--------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Bayview Investors, Ltd. , in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 22,883
----------
Signature: /s/ Xxxx Xxxxx
------------------------------
Address: 000 Xxxxxxxxxx Xx., Xxxxx 0000
------------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------------
ATTN: Xxxxxxxx Xxxxxxxx
------------------------------
Fax No.: 000-000-0000
------------------------------
Date: 6/29/99
------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx River Partnership VIII, a limited partnership, in
order to purchase shares of Series C Convertible Preferred Stock, par value
$.001 per share, of VIP Calling, Inc., a Delaware corporation (the "Company"),
hereby agrees to become a "Purchaser" party to the Series C Preferred Stock
Purchase Agreement among the Company and the other Purchaser parties thereto
dated as of July 12, 1999 (the "Purchase Agreement"). This Instrument of
Adherence shall take effect and shall become a part of said Purchase Agreement
immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 674,071
---------------
XXXXXXX RIVER PARTNERSHIP VIII,
a limited partnership
By: Xxxxxxx River VIII GP Limited Partnership,
General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name:
Title:
Address: Xxxxxxx River Ventures
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Date: July 1, 1999
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx River Partnership VIII-A LLC, in order to purchase
shares of Series C Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series C Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of July 12,
1999 (the "Purchase Agreement"). This Instrument of Adherence shall take effect
and shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 12,429
-------------
XXXXXXX RIVER VIII-A LLC
a limited partnership
By Xxxxxxx River VII, Inc.,
Manager
By: /s/ Xxxxx Xxxxxx
---------------------
Name:
Title:
Address: Xxxxxxx River Ventures
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Date: July 1, 1999
Accepted:
VIP CALLING, INC.
By:__________________________________
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 10,297
---------
Signature: /s/ Xxxxx X. Xxxxx
--------------------------
Address: c/o Xxxxxxx Xxxx Llp
--------------------------
000 Xxxxxxx Xx.
--------------------------
Xxxxxx, XX 00000
--------------------------
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: 6/29/99
--------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Menlo Ventures VII, L.P., in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July ___, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 27,671
---------------
MENLO VENTURES VII, L.P.
By MV Management VII, L.L.C.,
its General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: 000-000-0000
Date: July ___, 1999
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Menlo Entrepreneurs Fund VII, L.P., in order to purchase
shares of Series C Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series C Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of July ___,
1999 (the "Purchase Agreement"). This Instrument of Adherence shall take effect
and shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 658,829
-------
MENLO ENTREPRENEURS FUND VII, L.P.
By MV Management VII, L.L.C.,
its General Partner
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: 000-000-0000
Date: July ___, 1999
Accepted:
VIP CALLING, INC.
By:____________________________
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 6,466
--------------
Signature: /s/ Xxxxx Xxxxxxx
----------------------------
Address: 00 Xxxxxxxxxxx Xx.
----------------------------
Xxxxxx, XX 00000
----------------------------
----------------------------
Fax No.: 000-000-0000
----------------------------
Date: 6/30/99
----------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx Xxxxxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 12,124
------------
Signature: /s/ Xxxxxx Xxxxxxxxxx
--------------------------
Address: c/o Bain Capital, Inc.
--------------------------
Two Xxxxxx Place
--------------------------
Xxxxxx, XX 00000
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: July 12, 1999
--------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 7,889
------------
Signature: /s/ Xxxx Xxxxxx
--------------------------
Address: c/o Bain Capital, Inc.
--------------------------
Two Xxxxxx Place
--------------------------
Xxxxxx, XX 00000
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: 6/29/99
--------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxxxx, in order to purchase shares of Series
C Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 6,466
-------------
Signature: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Address: Xxxx Capital Inc.
---------------------------
0 Xxxxxx Xxxxx
---------------------------
Xxxxxx, XX 00000
---------------------------
Fax No.: 000-000-0000
---------------------------
Date: 6/29/99
---------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Porky Partners II, LLP , in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 51,487
------------
Porky Partners II, LLC
Signature: By: /s/ Xxx X. Xxxxxxx
------------------
Authorized Agent
Address: 000 XXXXXX XX. #000
----------------------
Xxxxxxxxxx, XX 00000
----------------------
----------------------
Fax No.: (000) 000-0000
----------------------
Date: 7-16-99
----------------------
Accepted:
VIP CALLING, INC.
By:
-----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Elka, Ltd., in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 23,000
------------
Signature: /s/ Itamar Hatsor
-------------------------------
Power of Attorney for Elka Ltd.
Address: 00 Xxxxxx Xx
-------------------------------
Tel-aviv Israel
-------------------------------
-------------------------------
Fax No.: 000-0-0000000
-------------------------------
Date: July 16, 1999
-------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 4,805
----------
Signature: /s/ Xxxxx X. Xxxx
-------------------------
Address: 0000 Xxxxxx Xxxxx
-------------------------
Xxxxx, XX 00000
-------------------------
-------------------------
Fax No.: (000) 000-0000
-------------------------
Date: 7/16/99
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx-Xxxxxxxxx Ltd. , in order to purchase shares of
Series C Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 11,442
-------------
Signature: /s/ Xxxxxx Xxxxxx
---------------------------
Address: Xxxxxx-Xxxxxxxxx Ltd.
---------------------------
1-Hadrazan Str
---------------------------
7-200R 5800 1
---------------------------
Fax No.: 000-0-0000000
---------------------------
Date: July 15, 1999
---------------------------
Accepted:
VIP CALLING, INC.
By:
-----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 37,500
----------
Signature: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Address: 000 Xxxxx Xxx.
--------------------------
00000 Xxxxxxxx Xxxxxx
--------------------------
Xxxxxxxx Xxxxxxx, XX 00000
--------------------------
Fax No.: 000-000-0000
--------------------------
Date: 7/15/99
--------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx Xxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 4,348
----------
Signature: /s/ Xx Xxxxxxx
-------------------------
Address: 0000 Xxxxxx Xxx.
-------------------------
Xxxx, XX 00000
-------------------------
-------------------------
Fax No.: 000-000-0000
-------------------------
Date: 7/15/99
-------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx X. VandenBrug Trust, in order to purchase shares
of Series C Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series C Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of July 12, 1999 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 121,234
-----------
Signature: /s/ M.C. Vandenbrug
-------------------------
Address: 0000 Xxxxxxx Xxxx
-------------------------
Xxxxxxxxxx Xxx, XX 00000
-------------------------
-------------------------
Fax No.: 000-000-0000
-------------------------
Date: 7-14-99
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 13,730
----------
Signature: /s/ Xxxx Xxxxxxxxxx
------------------------
Address: 0000 Xxxx Xxxx
------------------------
Xxxx Xxxx, XX 00000
------------------------
------------------------
Fax No.: 000-000-0000
------------------------
Date: July 13, 1999
------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 2,288
---------
Signature: /s/ Xxxxx X. Xxxxxxx
---------------------------
Address: 00 Xxxxxx Xxxxxx
---------------------------
Xxxxxx, XX 00000
---------------------------
---------------------------
Fax No.: (000) 000-0000
---------------------------
Date: July 16, 1999
---------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxx, in order to purchase shares of Series C
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series C Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of July 12, 1999 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts:
No. of Shares Purchased: 4,577
---------
Signature: /s/ Xxxx Xxxxxx
---------------------------
Address:
---------------------------
---------------------------
---------------------------
Fax No.:
---------------------------
Date: July 16, 1999
---------------------------
Accepted:
VIP CALLING, INC.
By: Xxxx Xxxxxx
---------------------------
