EXHIBIT 3
XXXXXXX.XXX, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
This Note and Warrant Purchase Agreement (this "AGREEMENT") is made as
of July 10, 2001, by and among XxxXxxx.xxx, Inc., a Delaware corporation (the
"COMPANY") and the persons and entities listed on the Schedule of Investors
attached hereto as Exhibit A (the "INVESTORS").
1. The Notes and the Warrants
1.1 Authorization. The Company has authorized the sale and
issuance of: (i) subordinated promissory notes, in the form attached hereto as
Exhibit B, in the aggregate amount of up to $13 million (collectively the
"NOTES" or individually a "NOTE"), and (ii) related warrants (collectively the
"WARRANTS" or individually a "WARRANT") to purchase Common Stock of the Company
as described in Section 1.5 below. The Notes, the Warrants, and the Common Stock
issuable upon exercise of the Warrants (the "WARRANT STOCK") are hereinafter
collectively referred to as the "SECURITIES."
1.2 Sale of Notes and Warrants. Subject to the terms and
conditions hereof, the Company will issue and sell to the Investors, and the
Investors will purchase from the Company, the Notes and Warrants in the
respective amounts set forth opposite each such Investor's name on Exhibit A.
The obligations of the Investors are several and not joint.
1.3 Closing
(a) The purchase, sale and issuance of the Notes and
Warrants will take place at a closing (the "CLOSING") at 10:00 a.m. local time
at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 on July 10, 2001, or such other date and location as the
Company and the Investors participating in such Closing agree (the "CLOSING
DATE").
1.4 Delivery. At the Closing, the Company will deliver to each
Investor a Note in the principal amount set forth opposite such Investor's name
on Exhibit A and a corresponding Warrant to purchase such number of shares of
Common Stock as is determined pursuant to Section 1.5 below. At the Closing,
each Investor will deliver to the Company the purchase price for its Notes and
Warrant as set forth opposite such Investor's name in Exhibit A by check or wire
transfer in accordance with the Company's wiring instructions.
1.5 Warrants. The Company agrees to issue to each Investor a
Warrant, in the form attached as Exhibit C to this Agreement, as follows:
(a) (i) Each Investor that is not a preferred stockholder of
the Company will receive a Warrant to purchase one (1) share of Company Common
Stock for every dollar of principal amount of Notes purchased by such Investor.
(ii) Each Investor that is a preferred stockholder of the Company will receive a
Warrant to purchase one (1) share of Company Common Stock for every dollar of
principal amount of Notes purchased up to such Investor's
Preferred Pro Rata Amount (as defined below), 1.9 shares of Company Common Stock
for every dollar of principal amount of Notes purchased over such Investor's
Preferred Pro Rata Amount up to the Investor's Overage Pro Rata Amount (as
defined below), and two (2) shares of Company Common Stock for every dollar of
principal amount of Notes purchased over such Investor's Overage Pro Rata
Amount. For purposes of this Agreement, "PREFERRED PRO RATA AMOUNT" shall equal
an Investor's percentage ownership of outstanding Company Preferred Stock
(including outstanding warrants to purchase Series E Preferred Stock, on an
as-exercised basis, outstanding as of prior to the transactions contemplated by
this Agreement) multiplied by $10,000,000. For purposes of this Agreement,
"OVERAGE PRO RATA AMOUNT" shall equal an Investor's Preferred Pro Rata Amount
plus an amount equal to (X) such Investor's ownership of Company Preferred Stock
(including outstanding warrants to purchase Series E Preferred Stock, on an
as-exercised basis, outstanding as of prior to the transactions contemplated by
this Agreement) as a percentage of all Company Preferred Stock held by all
Investors that have purchased their full Preferred Pro Rata Amount multiplied by
(Y) $10,000,000 less the amount of Notes purchased by all Investors that are
preferred stockholders up to the aggregate of their respective Preferred Pro
Rata Amounts. For purposes of this Agreement, all shares of Company Preferred
Stock held by an Investor and any affiliated entity thereof shall be aggregated
together for the purposes of calculating the Preferred Pro Rata Amount and
Overage Pro Rata Amount, and each such Investor shall be entitled to apportion
ownership of the Notes and Warrants among any of its affiliate entities as it
deems appropriate.
(b) The Company and the Investors, having adverse interests
and as a result of arm's length bargaining, agree that (i) neither the Investors
nor any of their affiliates have rendered or have agreed to render any services
to the Company in connection with this Agreement or the issuance of the Notes
and Warrants; and (ii) the Warrants are not being issued as compensation. The
Company and the Investors agree that the fair market value of the Warrants
purchased by each Investor is equal to $.001 multiplied by the number of shares
of Company Common Stock for which each such Warrant is initially exercisable,
and to file all federal, state, local and foreign tax returns in a manner
consistent with such valuation.
2. Representations and Warranties of the Company. Except as set forth on
the Schedule of Exceptions attached as Exhibit D (the "SCHEDULE OF EXCEPTIONS")
delivered to the Investors in connection with this Agreement, which exceptions
shall be deemed to be made hereunder, the Company represents and warrants to the
Investors as of the date of this Agreement as follows:
2.1 Organization and Standing; Certificate and Bylaws. The Company
is a corporation duly organized and validly existing under, and by virtue of,
the laws of the State of Delaware and is in good standing under such laws. The
Company has the requisite corporate power and authority to own and operate its
properties and assets, and to carry on its business as presently conducted, and
is in good standing in each jurisdiction where the failure to so qualify would
have a material adverse effect on its business or properties.
2.2 Corporate Power. The Company will have at the Closing all
requisite legal and corporate power and authority to execute and deliver this
Agreement, the Stockholders' Rights Agreement (as defined in Section 4.1(d)
below), the Voting Agreement (as defined in Section 4.1(e) below), the Notes,
and the Warrants (collectively, the "AGREEMENTS"), to sell and
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issue the Securities hereunder and to carry out and perform its obligations
under the terms of the Agreements.
2.3 Capitalization. The authorized capital stock of the Company
will, upon the filing of the Amended and Restated Certificate of Incorporation
(the "CERTIFICATE") attached as Exhibit E hereto in connection with the sale and
issuance of the Notes and Warrants, consist of 100,000,000 shares of Common
Stock and 35,425,014 shares of Preferred Stock, 5,000,000 of which are
designated Series A Preferred Stock, 5,776,616 of which are designated Series B
Preferred Stock, 4,750,000 of which are designated Series C Preferred Stock,
4,650,000 of which are designated Series D Preferred Stock, 5,874,199 of which
are designated Series E Preferred Stock, 5,874,199 of which are designated
Series E-1 Preferred Stock, and 3,500,000 of which are designated Series F
Non-Voting Preferred Stock. Immediately prior to the Closing, 6,456,430 shares
of Common Stock will be outstanding, 4,444,545 shares of Series A Preferred
Stock will be outstanding, 5,684,024 shares of Series B Preferred Stock will be
outstanding, 4,650,269 shares of Series C Preferred Stock will be outstanding,
4,649,927 shares of Series D Preferred Stock will be outstanding, 5,332,689
shares of Series E Preferred Stock will be outstanding, no shares of Series E-1
Preferred Stock will be outstanding, and 2,370,610(1) shares of Series F
Non-Voting Preferred Stock will be outstanding. The Company has reserved
45,038,775 shares of Common Stock for issuance upon conversion of the Preferred
Stock. The Company has reserved 17,989,935 shares of Common Stock for issuance
to officers, directors, employees and consultants of the Company pursuant to its
1997 Stock Plan duly adopted by the Board of Directors and approved by the
Company's stockholders (the "1997 STOCK PLAN"). Of such reserved shares, options
to purchase 3,605,116 shares of Common Stock have been granted and are currently
outstanding and 10,776,655 shares of Common Stock remain available for issuance
pursuant to the 1997 Stock Plan. Except as set forth in the Schedule of
Exceptions, as of the time immediately following the Closing, all outstanding
shares of Preferred Stock will be convertible into Common Stock on a one-for-one
basis. All of the outstanding shares of Common Stock, Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series E-1 Preferred Stock and Series F Non-Voting
Preferred Stock are duly authorized, validly issued, fully paid and
nonassessable, and were issued in compliance with applicable federal and state
securities laws. The Common Stock issued upon exercise of the Warrants will be
duly authorized, validly issued, fully paid and nonassessable and will be free
of restrictions on transfer except for such restrictions as are imposed by law
and the Agreements and free of any preemptive or similar rights other than those
arising under the Stockholders' Rights Agreement, which rights will have been
waived with respect to the issuance of the Securities. Except those purchase
rights, options and warrants set forth on Section 2.3 of the Schedule of
Exceptions, as of the time immediately prior to the Closing, there are no other
options, warrants or other rights (including conversion or preemptive rights) or
agreements outstanding to purchase or otherwise acquire any of the Company's
authorized and unissued capital stock. To the Company's knowledge and except as
provided in the Certificate, the Stockholders' Rights Agreement and the Voting
Agreement, there is no
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(1) For purposes of this Agreement, this figure includes 1,074,096 shares
that the Company is contractually obligated to issue.
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agreement or understanding between any persons and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of the Company.
2.4 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of the Agreements by the
Company, the authorization, sale, issuance and delivery of the Notes, the
Warrants and the Warrant Stock and the performance of all of the Company's
obligations under the Agreements will be taken prior to the Closing. The
Agreements, when executed and delivered in accordance with the terms hereof and
thereof by the Company, shall constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, organization, or similar laws relating to or affecting
the enforcement of creditor's rights and to the availability of the remedy of
specific performance and to general principles of equity. The Warrant Stock has
been duly and validly reserved and, when issued in compliance with the
provisions of this Agreement and the Certificate, will be validly issued, and
will be fully paid and nonassessable; and the Securities will be free of any
liens or encumbrances, assuming the Investors take the Securities with no notice
thereof, other than any liens or encumbrances created by or imposed upon the
holders through no action of the Company; provided, however, that the Securities
may be subject to restrictions on transfer under state and/or federal securities
laws as set forth herein.
2.5 Compliance with Other Instruments. The Company is not in
violation or default of any term of its Certificate or Bylaws, or in any
material respect of any term or provision of any material mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment, order or
decree, and to its knowledge is not in violation of any statute, rule or
regulation applicable to the Company where such violation would have a material
adverse effect on the Company. The execution, delivery and performance of and
compliance with the Agreements, and the issuance of the Securities, have not
resulted in and will not result in any material violation of, or conflict with,
or constitute with or without the passage of time and the giving of notice a
material violation or default under, the Company's Certificate or Bylaws.
2.6 Governmental Consent, etc. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of the Company is required in connection with the valid
execution and delivery of this Agreement, or the offer, sale or issuance of the
Securities, or the consummation of any other transaction contemplated hereby,
except (a) filing of the Certificate in the office of the Delaware Secretary of
State and (b) qualification (or taking such action as may be necessary to secure
an exemption from qualification, if available) of the offer and sale of the
Securities under applicable state Blue Sky laws.
2.7 Offering. Subject to the accuracy of the Investors'
representations in Section 3 hereof, the offer, sale and issuance of the Notes
and Warrants to be issued in conformity with the terms of this Agreement, and
the issuance of the Warrant Stock, constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as amended
(the "SECURITIES ACT") and in compliance with applicable state Blue Sky laws.
2.8 Brokers or Finders; Other Offers. The Company has not
incurred, and will not incur, directly or indirectly, as a result of any action
taken by the Company, any liability for
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brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement.
2.9 Intellectual Property. The Company owns or possesses
sufficient legal rights to all patents, trademarks, service marks, tradenames,
copyrights, trade secrets, licenses, information and proprietary rights and
processes necessary for its business as currently conducted without any conflict
with, or infringement of, the rights of others. There are no outstanding
options, licenses, or agreements of any kind relating to the foregoing, nor is
the Company bound by or a party to any options, licenses or arrangements of any
kind with respect to the patents, trademarks, service marks, tradenames,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity, except, in either case, for standard
end-use, object code, internal use software licenses and support maintenance
agreements. The Company has not received any communications alleging that the
Company has violated or, by conducting its business, would violate any of the
patents, trademarks, service marks, tradenames, copyrights, trade secrets or
other proprietary rights or processes of any other person or entity. The Company
is not aware that any of its employees is 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 interfere with the use of such employee's best efforts to
promote the interest of the Company or that would conflict with the Company's
business. Neither the execution or delivery of this Agreement, nor the carrying
on of the Company's business by the employees of the Company, nor the conduct of
the Company's business as currently conducted, will, to the Company's knowledge,
conflict with or result in a breach of the terms, conditions, or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any such employee is now obligated. The Company does not believe it is or will
be necessary to use any inventions of any of its employees (or persons it
currently intends to hire) made prior to their employment by the Company. Set
forth in Section 2.9 of the Schedule of Exceptions is a listing of all
registered patents, copyrights and trademarks and applications therefor filed by
the Company with the appropriate governmental agency.
2.10 Subsidiaries. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture or
partnership.
2.11 Litigation. There is no action, suit, proceeding or, to the
Company's knowledge, investigation pending or, to the Company's knowledge,
currently threatened against the Company that questions the validity of the
Agreements, or the right of the Company to enter into each of the Agreements, or
to consummate the transactions contemplated thereby. The Company is not a party
or subject to the provisions of any order, writ, injunction, judgment or decree
of any court or government agency or instrumentality which prohibits the
transactions contemplated by this Agreement. There is no action, suit or
proceeding by the Company currently pending or which the Company currently
intends to initiate. The foregoing includes, without limitation, actions, suits,
proceedings or investigations pending or known to be threatened (or any basis
therefor known to the Company) involving the prior employment of any of the
Company's employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employees, or their obligations under any agreements with prior employers.
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2.12 Rights of Registration. Except as contemplated in the
Stockholders' Rights Agreement, the Company has not granted or agreed to grant
any registration rights, including piggyback rights, to any person or entity.
2.13 Corporate Documents. The Certificate and Bylaws of the
Company as will be in effect immediately prior to the Closing are attached
hereto as Exhibit E and Exhibit F, respectively.
2.14 Employee Benefit Plans. The Company does not have any
"employee benefit" plan as defined in the Employee Retirement Income Security
Act of 1974 ("ERISA"). The Company is not, nor was it at any time, obligated to
contribute to any employee pension benefit plan which is or was a multi-employer
plan as defined in ERISA.
2.15 Tax Returns and Payments. The Company has filed all tax
returns and reports as required by law. These returns and reports are true and
correct in all material respects. The Company has paid all taxes and other
assessments due. Except as would not have a material adverse effect on the
Company, since the date of the Financial Statements (as defined below), the
Company has not incurred any taxes, assessments or governmental charges other
than in the ordinary course of business and the Company has made adequate
provisions on its books of account for all taxes, assessments and governmental
charges with respect to its business, properties and operations for such period.
Except as would not have a material adverse effect on the Company, the Company
has withheld or collected from each payment made to each of its employees, the
amount of all taxes (including, but not limited to, federal income taxes,
Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom, and has paid the same to the
proper tax receiving officers or authorized depositories.
2.16 Compliance with Laws. The Company has complied with and is
not in violation of any foreign, federal, state or local statute, law or
regulation, the violation of which would have a material adverse effect on the
Company.
2.17 Title to Property and Assets. The Company owns its property
and assets free and clear of all mortgages, liens, loans and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not materially impair the Company's ownership or use of such
property or assets. With respect to the property and assets it leases, the
Company is in material compliance with such leases and holds a valid leasehold
interest free of any liens, claims or encumbrances.
2.18 No Conflict of Interest. The Company is not indebted to any
of its officers or directors or to their respective spouses or children, in any
amount whatsoever other than in connection with expenses or advances of expenses
incurred in the ordinary course of business. None of the Company's officers or
directors, or any members of their immediate families, are indebted to or have
any direct or indirect ownership interest in any firm or corporation with which
the Company is affiliated (other than the Company itself) or with which the
Company has a business relationship, or any firm or corporation which competes
with the Company except that officers, directors and/or stockholders of the
Company may own stock in (but not to exceed two (2) percent of the outstanding
capital stock thereof) publicly traded companies that may compete
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with the Company. No officer or director or any member of their immediate
families is interested in any material contract with the Company.
2.19 Books and Records. The Company has made available to the
Investors all corporate and financial books and records of the Company which are
current in all material respects.
2.20 Voting Agreements. To the knowledge of the Company, other
than the Certificate, the Stockholders' Rights Agreement and the Voting
Agreement, there is no stockholder agreement or voting agreement or agreement or
understanding between any stockholders or any other persons that grants special
rights with respect to any shares of the Company's capital stock.
2.21 Material Agreements. Except as set forth in Section 2.21 of
the Schedule of Exceptions, the Company does not have any contract, agreement,
lease or commitment, written or oral, absolute or contingent, other than (i)
contracts for the purchase of supplies or services entered into in the ordinary
course of business and that do not involve more than $100,000 and do not extend
for more than one year beyond the date hereof, (ii) equipment leases entered
into in the ordinary course of business and that do not individually provide for
rental payments of more than $100,000 annually, (iii) contracts terminable by
the Company on no more than sixty days' notice without materially adverse cost
or liability to the Company and (iv) contracts expressly contemplated hereby.
The Company has not engaged in the past three (3) months in any substantive and
material discussion (i) with any representative of any corporation or
corporations regarding the consolidation or merger of the Company with or into
any such corporation or corporations, (ii) with any corporation, partnership,
association or other business entity or any individual regarding the sale,
conveyance or disposition of all or substantially all of the assets of the
Company or a transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of the Company is disposed of, or (iii)
regarding any other form of acquisition, liquidation, dissolution or winding up
of the Company.
2.22 Financial Statements. The Company has delivered to each
Investor its audited balance sheet and audited statement of income as of and for
the twelve month periods ended December 31, 1999 and December 31, 2000,
respectively, and its unaudited balance sheet as of March 31, 2001 (the "INTERIM
BALANCE SHEET") and unaudited statement of income for the three month period
ended March 31, 2001 (collectively, the "FINANCIAL STATEMENTS"), copies of which
are attached hereto as Exhibit G. The Financial Statements are in accordance
with the books and records of the Company in all material respects and present
fairly the financial condition and position of the Company as of the respective
statement dates; provided, however, that the unaudited interim financial
statements are subject to normal recurring year-end audit adjustments. The
Financial Statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods indicated, except as disclosed therein. Except as set forth in the
Financial Statements, the Company has no material liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to March 31, 2001 and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
GAAP to be reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of the Company.
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Except as disclosed in the Financial Statements, the Company is not a guarantor
or indemnitor of any indebtedness of any other person, firm or corporation. The
Company will make a good faith effort to maintain a standard system of
accounting established and administered in accordance with GAAP.
2.23 Changes. Except as would not have a material adverse effect
on the Company, since March 31, 2001 there has not been:
(a) any change in the assets, liabilities, financial
condition or operating results of the Company from that reflected in the
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);
(c) any waiver by the Company 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);
(e) any material change by the Company in any compensation
arrangement or agreement with any employee;
(f) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(g) any resignation or termination of employment of any key
officer of the Company; and the Company does not know of the impending
resignation or termination of employment of any such officer;
(h) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company;
(i) 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;
(j) 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;
(k) 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;
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(l) to 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 or business of the Company
(as such business is presently conducted and as it is proposed to be conducted);
or
(m) any agreement or commitment by the Company to do any of
the things described in this Section 2.23.
2.24 Proprietary Information and Inventions Agreements. Each
employee, officer and consultant of the Company has executed a Proprietary
Information and Inventions Agreement substantially in the form previously
reviewed by counsel to the Investors. The Company is not aware that any of its
employees or consultants is in violation thereof and the Company will use its
reasonable efforts to prevent any such violation.
2.25 Section 83(b) Elections. To the Company's knowledge, all
election notices permitted by Section 83(b) of the Internal Revenue Code and any
analogous provisions of applicable state tax laws have been timely filed by all
employees who have purchased shares of the Company's common stock under
agreements that provide for the vesting of such shares.
2.26 Disclosure. The Company has provided the Investors with the
information which the Investors have requested for deciding whether to purchase
the Notes and Warrants. To the Company's knowledge, no representation or
warranty of the Company contained in this Agreement and the exhibits attached
hereto or any certificate furnished or to be furnished to the Investors at the
Closing (when read together) contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made.
2.27 Insurance. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
2.28 Dividends. The Company has not declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock.
2.29 Labor Agreements. The Company is not bound by or subject to
(and none of its assets or properties is bound by or subject to) any written or
oral, express or implied, contract, commitment or arrangement with any labor
union, and no labor union has requested or, to the knowledge of the Company, has
sought to represent any of the employees, representatives or agents of the
Company. The employment of each officer and employee of the Company is
terminable at the will of the Company. The Company has complied in all material
respects with all applicable state and federal equal employment opportunity laws
and with other laws related to employment. The Company is not aware that any
executive officer or key employee intends to terminate their employment with the
Company, nor does the Company have a present intention to terminate the
employment of any of the foregoing. The employment of each officer and employee
of the Company is terminable at the will of the Company. The Company is not a
party to or bound by any currently effective employment contract, deferred
compensation agreement,
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bonus plan, incentive plan, profit sharing plan, retirement agreement, or other
employee compensation agreement, except for severance arrangements with certain
non-officer employees of the Company.
2.30 Permits. The Company has all franchises, permits, license and
any similar authority necessary for the conduct of its business, the lack of
which could materially and adversely affect the business, properties, prospects,
or financial condition of the Company. The Company is not in default under any
of such franchises, permits, licenses or other similar authority.
2.31 Usury Representations.
(a) The proceeds from the sale and issuance of the Notes and
Warrants will be used for corporate purposes.
(b) The Company has total assets of at least $2,000,000, as
reflected in its balance sheet dated as of a date not more than 90 days from the
date hereof, which has been prepared in accordance with GAAP applied on a
consistent basis throughout the period indicated.
(c) The Company is experienced in evaluating, and has the
capacity to protect its interest in, loan arrangements. The Company is a
sophisticated borrower with such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of
issuing and selling the Notes and Warrants and is capable of bearing the
economic risks of such issuance and sale.
(d) The Notes have not been guaranteed by (i) any individual,
(ii) any partnership that has at least one individual as a general partner or
(iii) any revocable trust that has at least one individual as a trustor.
3. Representations and Warranties of Investors. Each Investor severally
represents and warrants to the Company with respect to the acquisition of the
Securities as follows:
3.1 No Registration. The Investor understands that the Securities
have not been, and will not be, registered under the Securities Act by reason of
a specific exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Investor's representations as
expressed herein or otherwise made pursuant hereto.
3.2 Investment Intent. The Investor is acquiring the Securities
for investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof.
3.3 Investment Experience. The Investor 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.
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3.4 Speculative Nature of Investment. The Investor acknowledges
that its investment in the Company is highly speculative and entails a
substantial degree of risk and the Investor is in a position to lose the entire
amount of such investment.
3.5 Access to Data. The Investor has had an opportunity to discuss
the Company's business, management and financial affairs with the Company's
management. The Investor has also had an opportunity to ask questions of
officers of the Company, which questions were answered to its satisfaction. The
Investor understands that such discussions, as well as any information issued by
the Company, were intended to describe certain aspects of the Company's business
and prospects, but were not necessarily a thorough or exhaustive description.
The Investor acknowledges that any business plans prepared by the Company have
been, and continue to be, subject to change and that any projections included in
such business plans or otherwise are necessarily speculative in nature, and it
can be expected that some or all of the assumptions underlying the projections
will not materialize or will vary significantly from actual results.
3.6 Accredited Investor. The Investor is an "accredited investor"
within the meaning of Regulation D, Rule 501(a), promulgated by the Securities
and Exchange Commission.
3.7 Residency. The residency of the Investor (or, in the case of a
partnership, trust or corporation, such entity's principal place of business) is
correctly set forth below the Investor's signature on the signature page of this
Agreement.
3.8 Restriction on Resales. The Investor acknowledges that the
Securities must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. The
Company has no present intention of registering any of the Securities. The
Investor further understands that there is no assurance that any exemption from
registration under the Securities Act will be available or, if available, that
such exemption will allow the Investor to dispose of or otherwise transfer any
or all of the Securities under the circumstances, in the amounts or at the times
the Investor might propose.
3.9 Rule 144. The Investor is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions, including among other things, the existence of a public market for
the shares, 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 effected through a
"broker's transaction" or in transactions directly with a "market maker" and the
number of shares being sold during any three-month period not exceeding
specified limitations. The Investor understands that the current public
information referred to above is not now available and the Company has no
present plans to make such information available. The Investor acknowledges and
understands that the Company may not be satisfying the current public
information requirement of Rule 144 at the time the Investor wishes to sell the
Securities, and that, in such event, the Investor may be precluded from selling
such securities under Rule 144, even if the other requirements of Rule 144 have
been satisfied. The Investor acknowledges that, in the event all of the
requirements of Rule 144 are not met, registration under the Securities Act or
an exemption from registration will be required
-11-
for any disposition of the Securities. The Investor understands that, although
Rule 144 is not exclusive, the Securities and Exchange Commission has expressed
its opinion that persons proposing to sell restricted securities received in a
private offering other than in a registered offering or pursuant to Rule 144
will have a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales and that such persons and the
brokers who participate in the transactions do so at their own risk.
3.10 No Public Market. The Investor understands and acknowledges
that no public market now exists for any of the securities issued by the Company
and that the Company has made no assurances that a public market will ever exist
for the Company's securities.
3.11 Authorization.
(a) The Investor has all requisite power and authority to
execute and deliver this Agreement, to purchase the Securities and to carry out
and perform its obligations under the terms of this Agreement. All action on the
part of the Investor necessary for the authorization, execution, delivery and
performance of this Agreement, and the performance of all of the Investor's
obligations under this Agreement, has been taken.
(b) This Agreement, when executed and delivered by the
Investor, will constitute the valid and legally binding obligation of the
Investor, enforceable in accordance with its terms except: (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies or by general principles of
equity.
(c) No consent, approval, authorization, order, filing,
registration or qualification of or with any court, governmental authority or
third person is required to be obtained by the Investor in connection with the
execution and delivery of this Agreement or the performance of the Investor's
obligations hereunder.
3.12 Brokers or Finders. The Investor has not engaged any brokers,
finders, or agents, and neither the Company nor any other Investor has, nor
will, incur, directly or indirectly, as a result of any action taken by the
Investor, any liability for brokerage or finders' fees or agents' commissions or
any similar charges in connection with the Agreements.
3.13 Investor Counsel. The Investor acknowledges that it has had
the opportunity to review the Agreements, the exhibits and schedules attached
hereto and thereto and the transactions contemplated by the Agreements with its
own legal counsel.
3.14 Tax Advisors. The Investor has reviewed with its own tax
advisors the U.S. federal, state, local, and foreign tax consequences of this
investment and the transactions contemplated by the Agreements. With respect to
such matters, the Investor has relied solely on such advisors and not on any
statements or representations of the Company or any of its agents, written or
oral. The Investor understands that it (and not the Company) shall be
responsible for its own tax liability that may arise as a result of this
investment or the transactions contemplated by the Agreements.
-12-
3.15 Restrictions on Transfer. The Investor understands that none
of the Securities may be transferred in the absence of (i) an effective
registration statement under the Securities Act as to any of such Securities and
registration or qualification of under any applicable Blue Sky or state
securities law then in effect, or (ii) an opinion of counsel, satisfactory to
the Company, that such registration and qualification are not required;
provided, however, that no opinion need be obtained with respect to a transfer
to (A) a partner or member, active or retired, of an Investor, (B) the estate of
any such partner or member, (C) an "affiliate" of an Investor as that term is
defined in Rule 405 promulgated by the Securities and Exchange Commission under
the Securities Act, or (D) the spouse, children, grandchildren or spouse of such
children or grandchildren of an Investor or to trusts for the benefit of an
Investor or such persons, in each case if the transferee agrees to be subject to
the terms hereof. Notwithstanding the foregoing, any transferee receiving shares
that (A) have been registered under the Securities Act or (B) are resaleable
under Rule 144 promulgated under the Securities Act shall not be required to
agree in writing to be subject to the terms of this Section 3.15. The Investor
agrees that each certificate or other instrument representing the Securities
shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO
RULE 144 THEREUNDER OR UNLESS SUCH SALE, PLEDGE, OR TRANSFER IS
OTHERWISE EXEMPT FROM REGISTRATION."
4. Conditions to Closing.
4.1 Conditions to Obligations of the Investors. The Investors'
obligations at the Closing are subject to the fulfillment, on or prior to the
Closing Date, of all of the following conditions, any of which may be waived in
whole or in part by the Investors:
(a) The representations and warranties made by the Company in
Section 2 shall be true and correct in all material respects as of the Closing;
(b) 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 the
Closing;
(c) Except for the notices required or permitted to be filed
with certain federal and state securities commissions after Closing, the Company
shall have obtained all U.S. governmental approvals required in connection with
the sale and issuance of the Securities;
(d) The Company and the holders of a majority of Registrable
Securities (as defined in the Stockholders' Rights Agreement (as defined below))
shall have executed the Amended and Restated Stockholders' Rights Agreement in
substantially the form attached hereto as Exhibit H (the "STOCKHOLDERS' RIGHTS
AGREEMENT") dated as of the date hereof to, among other things, include the
Warrant Stock as Registrable Securities under that agreement;
-13-
(e) The Company, Xxxx Xxxxxxxx and Xxxx Xxxxxxxx shall have
executed the Voting Agreement attached hereto as Exhibit I (the "VOTING
AGREEMENT") dated as of the date hereof;
(f) Each Investor shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, counsel for the Company, an opinion, dated as of the Closing,
in the form attached hereto as Exhibit J;
(g) The Company shall have delivered to the Investors:
(1) A copy of the Amended and Restated Certificate of
Incorporation, Bylaws and resolutions of the Board of Directors and the
stockholders of the Company authorizing and approving all matters in connection
with the Agreements and the transactions contemplated hereby and thereby,
certified by the Secretary of the Company as of the Closing Date.
(2) A certificate, executed by the Chief Executive
Officer or Chief Financial Officer of the Company, dated as of the Closing Date,
certifying to the fulfillment of the conditions specified in Sections 4.1(a) and
(b) of this Agreement and that the "Right to Maintain" (as defined in Section 17
of the Stockholders' Rights Agreement) of all parties to the Stockholders'
Rights Agreement having such Right to Maintain been waived or satisfied prior to
the Closing Date; and
(h) All corporate and other proceedings in connection with the
transactions contemplated by the Agreements and all documents and instruments
incident to such transactions required to be delivered at or prior to the
Closing shall be reasonably satisfactory in substance and form to the Investors
and their special counsel, and the Investors and their special counsel shall
have received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
4.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Notes and Warrants is subject to the
fulfillment, on or prior to the Closing Date, of all of the following
conditions, any of which may be waived in whole or in part by the Company:
(a) The representations and warranties made by the Investors
in Section 3 shall be true and correct when made, and shall be true and correct
on the Closing Date with the same force and effect as if they had been made on
and as of the same date;
(b) The Investors shall have signed and delivered the
Stockholders' Rights Agreement;
(c) The Investors shall have signed and delivered the Voting
Agreement;
(d) The Investors who hold outstanding warrants to purchase
Series E Non-Voting Preferred Stock shall have signed and delivered a warrant
cancellation agreement in a form reasonably acceptable to the Company;
-14-
(e) Except for the notices required or permitted to be filed
after the Closing Date with certain federal and state securities commissions,
the Company shall have obtained all consents, approvals, permits and waivers
required in connection with the lawful sale and issuance of the Securities; and
(f) At the Closing, the sale and issuance by the Company, and
the purchase by the Investors, of the Securities shall be legally permitted by
all laws and regulations to which the Investors or the Company are subject.
5. Miscellaneous
5.1 Amendment. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged, or terminated
other than by a written instrument referencing this Agreement and signed by the
Company and the Investors holding a majority of the outstanding principal amount
of the Notes. Any such amendment, waiver, discharge, or termination effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities have been converted or exchanged or for
which such securities have been exercised) and each future holder of all such
securities. Each Investor acknowledges that by the operation of this paragraph,
the holders of a majority of the outstanding principal amount of the Notes will
have the right and power to diminish or eliminate all rights of such Investor
under this Agreement.
5.2 Covenants.
(a) Within 60 days of the Closing, the Company shall have
obtained directors' and officers' insurance providing for coverage of up to
$5,000,000, which policy shall be maintained at all times unless otherwise
agreed by the holders of a majority of the outstanding principal amount of the
Notes.
(b) Except for indebtedness to banks, leasing companies or
similar financial institutions, whether currently outstanding or incurred
following the date hereof, the Company agrees that it will not issue any
indebtedness for borrowed money that would rank senior or pari passu to the
Notes in a liquidation of the Company without the prior written consent of the
holders of a majority of the outstanding principal amount of the Notes.
5.3 Notices. All notices and other communications required or
permitted hereunder shall be in writing and delivered, mailed or transmitted by
any standard form of telecommunication. Notices and other communications to an
Investor shall be directed to it at its address noted in the Company's records;
and notices and other communications to the Company shall be directed to it at
its address at XxxXxxx.xxx, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, attention: Chief Financial Officer, with a copy to XxxXxxx.xxx, Inc., 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, attention: General Counsel; or
as to each party, at such other address as shall be designated by such party in
a written notice to the other party pursuant hereto. Any such notice or other
communication shall be deemed to have been duly given (a) when sent by Federal
Express or other overnight delivery service of recognized standing, on the
business day following deposit with such service; (b) when mailed by registered
-15-
or certified mail, first class postage prepaid and addressed as aforesaid
through the United States Postal Service, upon receipt; (c) when delivered by
hand, upon delivery; and (d) when telecopied, upon confirmation of receipt. Any
party hereto may by notice so given change its address for future notice
hereunder.
5.4 Governing Law. This Agreement and all actions arising out of
or in connection with this Agreement shall be governed by and construed in
accordance with the laws of the State of California, without application of
conflicts of law principles thereunder.
5.5 Survival. The warranties, representations and covenants of the
Company and the Investors contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing and shall
in no way be affected by any investigation of the subject matter thereof made by
or on behalf of the Investors or the Company.
5.6 Successors and Assigns. The terms of this Agreement shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
5.7 Entire Agreement. The Agreements and the exhibits and
schedules hereto and thereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof,
and no party shall be liable or bound to any other party in any manner with
regard to the subjects hereof or thereof by any warranties, representations or
covenants except as specifically set forth herein or therein.
5.8 Delays or Omissions. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement upon any breach or default of any other party under this
Agreement shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter
occurring, nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
5.9 Severability. Unless otherwise expressly provided herein, the
rights of the Investors hereunder are several rights, not rights jointly held
with any of the other Investors. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision, and the parties agree to negotiate, in good
faith, a legal and enforceable substitute provision which most nearly effects
the parties' intent in entering into this Agreement.
5.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this
-16-
Agreement. All references in this Agreement to sections, paragraphs, exhibits
and schedules shall, unless otherwise provided, refer to sections and paragraphs
hereof and exhibits and schedules attached hereto.
5.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
5.12 Telecopy Execution and Delivery. A facsimile, telecopy, or
other reproduction of this Agreement may be executed by one or more parties
hereto, and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar electronic transmission device pursuant
to which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy, or
other reproduction hereof.
5.13 Jurisdiction; Venue. With respect to any disputes arising out
of or related to this Agreement, the parties consent to the exclusive
jurisdiction of, and venue in, the state courts in Santa Xxxxx county in the
State of California (or in the event of exclusive federal jurisdiction, the
courts of the United States in the Northern District of California).
5.14 Further Assurances. Each party hereto agrees to execute and
deliver, by the proper exercise of its corporate, limited liability company,
partnership or other powers, all such other and additional instruments and
documents and do all such other acts and things as may be necessary to more
fully effectuate this Agreement.
5.15 Brokers. The Company and each Investor will indemnify and
save the other parties harmless from and against any and all claims,
liabilities, or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
5.16 Expenses. Irrespective of whether the Closing is effected,
the Company shall be responsible for all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement. If the Closing is effected, the Company will pay the reasonable legal
fees and expenses (but in no event more than $30,000) of Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, special counsel to the Investors.
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement the adjudicating party may in its discretion order that the
non-prevailing party, as determined by such adjudicating party, reimburse the
prevailing party for reasonable attorney's fees and costs in addition to any
other relief to which such prevailing party may be entitled.
5.17 Additional Parties. The parties hereto agree that any
transferees of any Securities shall be added as parties to this Agreement by
execution of a counterpart to this Agreement, and shall thereupon be deemed for
all purposes an "Investor" hereunder. The parties agree that Exhibit A hereto
shall be updated automatically without any formal amendment to reflect the
addition of any such additional party.
-17-
[Remainder of Page Intentionally Left Blank]
-18-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
XXXXXXX.XXX, INC.
By: /s/
-------------------------------------
Name: Xxxxx XxXxxxxx
Title: CFO
INVESTORS:
INSTITUTIONAL VENTURE
PARTNERS VIII, L.P., by its General
Partner Institutional Venture
Management VIII, LLC
By: /s/
----------------------------------
Name: Xxxxxxx X. Xxxxx, Managing
Director
IVM INVESTMENT FUND VIII, LLC, by its
Manager Institutional Venture
Management VIII, LLC
By: /s/
----------------------------------
Name: Xxxxxxx X. Xxxxx, Managing
Director
[SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT]
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
[SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT]
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: Investment General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
Foundation Capital Leadership Fund, L.P.
By FC Leadership Management Co., LLC
By: /s/
----------------------------------
Manager
Foundation Capital Leadership Principals Fund, LLC
By FC Leadership Management Co., LLC
By: /s/
----------------------------------
Manager
XXXXXXX X. XXXX and XXXXX X. XXXXXX,
tees XXXX/XXXXXX T/A dtd 8/29/95
By: /s/
----------------------------------
Name:
Title:
Xxx 0000 Children's Trust UTA dated
April 10, 2000 Xxxxxx X. Xxxxxxx Trustee
By: /s/
----------------------------------
[SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT]
TCV IV, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV IV Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
TCV Franchise Fund, L.P.
a Delaware Limited Partnership
By: TCVF Management, L.L.C.
Its: General Partner
By: /s/
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
[SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT]
Xxxx Xxxx Box, Trustee of the XXXX BOX
LIVING TRUST U/A dated December 5, 1995,
as amended
By: /s/
----------------------------------
Name:
Title:
Xxxxxxxx X. Xxxxxxxx
/s/
--------------------------------------
Xxxx Xxxx
/s/
--------------------------------------
X.X. Xxxx
/s/
--------------------------------------
Xxxxx Xxxxxx
/s/
--------------------------------------
Xxxxx XxXxxxxx
/s/
--------------------------------------
Xxxxxxxx XxXxxx
/s/
--------------------------------------
Xxxx Xxxx XxXxxxxx
/s/
--------------------------------------
Xxxxxxx Xxxxxxxx
/s/
--------------------------------------
[SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT]
EXHIBIT A
(To Note and Warrant Purchase Agreement)
SCHEDULE OF INVESTORS
PURCHASER NOTES WARRANT SHARES WARRANT COST TOTAL COST
--------- ------------- -------------- ------------ -------------
TCV IV, L.P. $6,249,103.85 10,413,867 $10,413.87 $6,259,517.72
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
TCV IV Strategic Partners, L.P. $ 233,020.73 388,319 $ 388.32 $ 233,409.05
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
TCV II, V.O.F $ 25,485.24 42,470 $ 42.47 $ 25,527.71
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Technology Crossover Ventures $ 784,520.78 1,307,371 $ 1,307.37 $ 785,828.15
II, L.P.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
TCV II (Q), L.P. $ 603,150.79 1,005,125 $ 1,005.13 $ 604,155.92
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
TCV II Strategic Partners, L.P. $ 107,038.03 178,374 $ 178.37 $ 107,216.40
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Technology Crossover Ventures $ 119,780.65 199,610 $ 199.61 $ 119,980.26
II, C.V
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
TCV Franchise Fund, L.P. $ 168,186.56 280,275 $ 280.28 $ 168,466.84
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
-20-
PURCHASER NOTES WARRANT SHARES WARRANT COST TOTAL COST
--------- ------------- -------------- ------------ -------------
Institutional Venture Partners $1,639,759.00 1,639,759 $1,639.76 $1,641,398.76
VIII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
IVM Investment Fund VIII, LLC $ 30,907.80 30,907 $ 30.91 $ 30,938.71
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Foundation Capital Leadership $2,700,305.92 4,500,065 $ 4,500.07 $2,704,805.99
Fund, L.P.
00 Xxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Foundation Capital Leadership $ 72,082.09 120,002 $ 120.00 $ 72,202.09
Principals Fund, LLC
00 Xxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxx and Xxxxx X. $ 125,000 196,266 $ 196.27 $ 125,196.27
Xxxxxx, tees, XXXX/XXXXXX T/A
dtd 8/29/95.
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxxxx Xxxxxxxx $ 2,500.00 2,842 $ 2.84 $ 2,502.84
X.X. Xxx 000
Xx. Xxxxx, XX 00000
Xxxx Xxxx Box, Trustee of the $ 50,000 60,351 $ 60.35 $ 50,060.35
XXXX BOX LIVING TRUST
U/A dated December 5, 1995,
as amended
000 Xxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
PURCHASER NOTES WARRANT SHARES WARRANT COST TOTAL COST
--------- ------------- -------------- ------------ -------------
Xxxxx Xxxxxx $ 3,158.56 5,263 $ 5.26 $ 3,163.82
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
X.X. Xxxx $ 1,000 1,000 $ 1.00 $ 1,001.00
000 Xxx Xxxx
Xxxx Xxxxxx, XX 00000
Xxxxx XxXxxxxx $ 30,000 30,000 $ 30.00 $ 30,030.00
000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Marry Xxxx XxXxxxxx $ 10,000 10,000 $ 10.00 $ 10,010.00
00000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx XxXxxx $ 10,000 10,000 $ 10.00 $ 10,010.00
000 Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxx $ 5,000 5,000 $ 5.00 $ 5,005.00
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Box 2000 Children's Trust UTA $ 10,000 10,000 $ 10.00 $ 10,010.00
Dated April 10, 2000
Xxxxxx X. Xxxxxxx Trustee
000 Xxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Xxxx Xxxx $ 20,000 20,000 $ 20.00 $ 20,020.00
000 Xxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
TOTALS $ 13,000,000 20,456,866 $ 20,456.88 $13,020,456.88
============= ============== ============ ==============
