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EXHIBIT 10.11
WEBRIDGE, INC.
SERIES B PREFERRED
STOCK PURCHASE AGREEMENT
DECEMBER 24, 1998
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TABLE OF CONTENTS
Page
1. Purchase and Sale of Stock .........................................1
1.1 Sale and Issuance of Series B Preferred Stock .............. 1
1.2 Closing .....................................................1
1.3 Subsequent Sale of Series B Preferred Stock .................1
2. Representations and Warranties of the Company ......................2
2.1 Organization, Good Standing and Qualification ...............2
2.2 Capitalization and Voting Rights ............................2
2.3 Subsidiaries ................................................3
2.4 Authorization ...............................................3
2.5 Valid Issuance of Preferred and Common Stock ................3
2.6 Governmental Consents .......................................3
2.7 Offering ....................................................4
2.8 Litigation ..................................................4
2.9 Proprietary Information and Inventions Agreements ...........4
2.10 Patents and Trademarks ......................................4
2.11 Compliance with Other Instruments ...........................5
2.12 Agreements; Action ..........................................5
2.14 Permits .....................................................6
2.15 Disclosure ..................................................6
2.16 Business Plan ...............................................7
2.17 Registration Rights .........................................7
2.18 Corporate Documents .........................................7
2.19 Title to Property and Assets ................................7
2.20 Section 1202 Compliance .....................................7
2.21 Financial Statements ........................................8
2.22 Changes. ....................................................8
2.23 Insurance ...................................................9
2.24 Employee Benefit Plans ......................................9
2.25 Tax Returns and Payments ...................................10
2.26 Labor Agreements and Actions ...............................10
2.27 Environmental and Safety Laws ..............................10
2.28 Minute Books ...............................................10
2.29 Year 2000 ..................................................10
3. Representations and Warranties of the Investors ...................11
3.1 Authorization ..............................................11
3.2 Purchase Entirely for Own Account ..........................11
3.3 Disclosure of Information ..................................11
3.4 Investment Experience ......................................11
3.5 Accredited Investor ........................................12
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3.6 Restricted Securities ......................................12
3.7 Further Limitations on Disposition .........................12
3.8 Legends ....................................................12
3.9 Manchester Bridge Principal LP .............................13
4. Conditions of Investor's Obligations at Closing ...................13
4.1 Representations and Warranties .............................13
4.2 Performance ................................................13
4.3 Compliance Certificate .....................................13
4.4 Qualifications .............................................13
4.5 Proceedings and Documents ..................................13
4.6 Bylaws .....................................................14
4.7 Board of Directors .........................................14
4.8 Opinion of Company Counsel .................................14
4.9 Investors' Rights Agreement ................................14
4.10 Co-Sale Agreement ..........................................14
5. Conditions of the Company's Obligations at Closing ................14
5.1 Representations and Warranties .............................14
5.2 Qualifications .............................................14
6. Miscellaneous .....................................................14
6.1 Survival of Warranties .....................................14
6.2 Successors and Assigns .....................................14
6.3 Governing Law ..............................................15
6.4 Counterparts ...............................................15
6.5 Titles and Subtitles .......................................15
6.6 Notices ....................................................15
6.7 Finders' Fees ..............................................15
6.8 Expenses ...................................................15
6.9 Amendments and Waivers .....................................15
6.10 Severability ...............................................16
6.11 Aggregation of Stock .......................................16
6.12 Entire Agreement ...........................................16
SCHEDULE A Schedule of Investors
EXHIBIT A Amended and Restated Certificate of Incorporation
EXHIBIT B Amended and Restated Investors' Rights Agreement
EXHIBIT C Amended and Restated First Refusal and Co-Sale Agreement
EXHIBIT D Opinion of Counsel for the Company
EXHIBIT E List of Stockholders and Optionholders
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STOCK PURCHASE AGREEMENT
THIS SERIES B PREFERRED STOCK PURCHASE AGREEMENT is made as of December 24,
1998 by and among Webridge, Inc., a Delaware corporation (the "Company"), and
the investors listed on Schedule A hereto, each of which is herein referred to
as an "Investor."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Series B Preferred Stock.
(a) The Company shall adopt and file with the Secretary of State
of Delaware on or before the Closing (as defined below), the Amended and
Restated Certificate of Incorporation in the form attached hereto as Exhibit A
(the "Restated Certificate").
(b) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally, to purchase at the Closing or pursuant to Section
1.3 and the Company agrees to sell and issue to each Investor at the Closing or
pursuant to Section 1.3, that number of shares of the Company's Series B
Preferred Stock set forth opposite each Investor's name on Schedule A hereto for
the purchase price set forth thereon.
1.2 Closing. The purchase and sale of the Series B Preferred Stock
shall take place at the offices of Stoel Rives LLP, 000 XX Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxx, at _________ on December 24, 1998 or at such other time
and place as the Company and Investors acquiring in the aggregate more than half
the shares of Series B Preferred Stock sold pursuant hereto mutually agree upon
orally or in writing (which time and place are designated as the "Closing"). At
the Closing, the Company shall deliver to each Investor a certificate
representing the Series B Preferred Stock that such Investor is purchasing
against payment of the purchase price therefor by check, wire transfer,
cancellation of indebtedness, or any combination thereof.
1.3 Subsequent Sale of Series B Preferred Stock. The Company may sell
up to the balance of the authorized number of shares of Series B Preferred Stock
not sold at the Closing to such purchasers as it shall select, at a price not
less than $1.70 per share, provided the agreement for sale is executed not later
than January 30, 1999, that the sale is consummated as soon as is reasonably
practicable thereafter, and provided further that such sale is unanimously
approved by the Board of Directors of the Company. Any such purchaser shall
become a party to this Agreement, that certain Amended and Restated Investors'
Rights Agreement of even date herewith, by and among the Company, the Investors,
certain other parties and Founders (as defined therein), the form of which is
attached hereto as Exhibit B (the "Investors' Rights Agreement"), and that
certain Amended and Restated First Refusal and Co-Sale Agreement of even date
herewith, by and among the Company, the Investors, certain other parties and the
Founders (as defined therein), the form of which is attached hereto as
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Exhibit C (the "Co-Sale Agreement"), and shall have the rights and obligations
hereunder and thereunder, unless such purchaser enters into an acquisition
agreement that provides otherwise.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor that, except as set forth on a Schedule
of Exceptions (the "Schedule of Exceptions") furnished each Investor:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted in its
Operations Plan 98 Version 1.3 dated September 1998, heretofore furnished to the
Investors ("Business Plan"). The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.
2.2 Capitalization and Voting Rights. The authorized capital of the
Company CONSISTS of:
(a) Preferred Stock. Seven million four hundred sixty-four
thousand one hundred thirty four (7,464,134) shares of Series A Preferred Stock
(the "Series A Preferred Stock"), all of which are issued and outstanding, and
five million two hundred and ninety-four thousand, one hundred and eighteen
(5,294,118) shares of Series B Preferred Stock (the "Series B Preferred Stock"),
none of which were issued or outstanding immediately prior to the Closing and up
to all of which may be sold pursuant to this Agreement. The rights, privileges
and preferences of the Series A Preferred Stock and the Series B Preferred Stock
are as stated in the Company's Restated Certificate.
(b) Common Stock. Thirty million (30,000,000) shares of Common
Stock ("Common Stock"), of which 12,346,634 shares are issued and outstanding.
(c) The outstanding shares of Common Stock and options to
purchase shares of Common Stock are owned by the stockholders and optionholders
and in the numbers specified in Exhibit E hereto.
(d) The outstanding shares of Common Stock and Series A Preferred
Stock are all duly and validly authorized and issued, fully paid and
nonassessable, and were issued in accordance with the registration or
qualification provisions of the Securities Act of 1933, as amended (the "Act")
and any relevant state securities laws or pursuant to valid exemptions
therefrom.
(e) Except for (A) the conversion privileges of the Series A
Preferred Stock and the conversion privileges of the Series B Preferred Stock to
be issued under this Agreement, (B) the rights provided in Section 2.4 of the
Investors' Rights Agreement, and (C) currently outstanding options to purchase
1,455,331 shares of Common Stock granted to service providers of the Company
pursuant to the Company's 1996 Stock Incentive Plan (the
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"Stock Incentive Plan"), there are not outstanding any options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock. The Company has
reserved 738,169 shares of its Common Stock for purchase upon exercise of
options to be granted in the future under the Stock Incentive Plan. Except for
the Investor's Rights Agreement, the Company is not a party or subject to any
agreement or understanding, and, to the Company's knowledge, there is no
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.
2.3 Subsidiaries. The Company does not presently 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,
partnership, or similar arrangement.
2.4 Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the Investors' Rights Agreement and
the Co-Sale Agreement, the performance of all obligations of the Company
hereunder and thereunder, including approval of the Restated Certificate, and
the authorization, issuance (or reservation for issuance), sale and delivery of
the Series B Preferred Stock being sold hereunder and the Common Stock issuable
upon conversion of the Series B Preferred Stock has been taken or will be taken
prior to the Closing, and this Agreement, the Investors' Rights Agreement and
the Co-Sale Agreement constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
2.5 Valid Issuance of Preferred and Common Stock. The Series B
Preferred Stock that is being purchased by the Investors hereunder, when issued,
sold and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Investors' Rights
Agreement and under applicable state and federal securities laws. The Common
Stock issuable upon conversion of the Series B Preferred Stock purchased under
this Agreement has been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Restated Certificate, will be duly
and validly issued, fully paid, and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and the Investors' Rights Agreement and under applicable state and
federal securities laws.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the
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consummation of the transactions contemplated by this Agreement except (i) the
filing of the Amended and Restated Certificate of Incorporation with the State
of Delaware and (ii) if required, qualifications or filings under the Securities
Act and applicable Blue Sky laws, which qualifications and filings will be
obtained or made and will be effective within the period required by law.
2.7 Offering. Subject in part to the truth and accuracy of each
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Series B Preferred Stock as contemplated by this
Agreement are exempt from the registration requirements of the Securities Act of
1933, as amended (the "Act"), and New York State securities laws, and neither
the Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemptions.
2.8 Litigation. There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Company, currently threatened against the
Company that questions the validity of this Agreement, the Investors' Rights
Agreement or the Co-Sale Agreement, or the right of the Company to enter into
such agreements, or to consummate the transactions contemplated hereby or
thereby, or that might result, either individually or in the aggregate, in any
material adverse changes in the assets, condition, affairs or prospects of the
Company, financially or otherwise, or any change in the current equity ownership
of the Company, nor is the Company aware that there is any basis for the
foregoing. The foregoing includes, without limitation, actions, suits,
proceedings or investigations pending or, to the knowledge of the Company,
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 employers, or their obligations under any agreements with prior
employers. 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. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
2.9 Proprietary Information and Inventions Agreements. Each employee,
officer and consultant of the Company has executed an Employment Agreement
relating to proprietary information and inventions in the form made available to
the Investors. The Company, after reasonable investigation, is not aware that
any of its employees, officers or consultants are in violation thereof, and the
Company will use its best efforts to prevent any such violation.
2.10 Patents and Trademarks. To the best of the Company's knowledge,
the Company has sufficient title and ownership of all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes, whether or not registered, necessary for its business as
now conducted and as proposed to be conducted as described in the Business Plan
(including with respect to its Mainspan product) without any conflict with or
infringement of the rights of others. There are no outstanding options,
licenses, royalties, or other agreements of any kind relating to the foregoing,
nor is the Company bound by or a party to any options, licenses or agreements of
any kind with respect
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to the patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, information, proprietary rights and processes of any other
person or entity. The Company has not received any communications alleging that
the Company has violated or, by conducting its business as proposed, would
violate any of the patents, trademarks, service marks, trade names, copyrights
or trade secrets or other proprietary rights of any other person or entity.
After due investigation, 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 his or
her best efforts to promote the interests of the Company or that would conflict
with the Company's business as proposed to be conducted. Neither the execution
nor delivery of this Agreement, the Investors' Rights Agreement or the Co-Sale
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 proposed, 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 of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company.
2.11 Compliance with Other Instruments. The Company is not in
violation or default of any provision of its Restated Certificate or Bylaws, or
of any instrument, judgment, order, writ, decree or contract to which it is a
party or by which it is bound, or, to its knowledge, of any provision of any
federal or state statute, rule or regulation applicable to the Company. The
execution, delivery and performance of this Agreement, the Investors' Rights
Agreement and the Co-Sale Agreement, and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree or contract or an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any material permit,
license, authorization, or approval applicable to the Company, its business or
operations or any of its assets or properties.
2.12 Agreements; Action.
(a) Except for agreements explicitly contemplated hereby and by
the Investors' Rights Agreement and Co-Sale Agreement, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, affiliates, or any affiliate thereof.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company is a party or by which it is bound that may involve (i) obligations
(contingent or otherwise) of, or payments to the Company in excess of, $5,000,
or (ii) the license of any patent, copyright, trade secret or other proprietary
right to or from the Company (other than the license by the Company of
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its software and products in the ordinary course of business), or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services.
(c) The Company has not (i) declared or paid any dividends or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or any
other liabilities individually in excess of $5,000 or, in the case of
indebtedness and/or liabilities individually less than $5,000, in excess of
$25,000 in the aggregate, (iii) made any loans or advances to any person, other
than ordinary advances for business expenses, or (iv) sold, exchanged or
otherwise disposed of any of its assets or rights, other than the sale of its
inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Restated Certificate or Bylaws that adversely affects its business as now
conducted or as proposed to be conducted in the Business Plan, its properties or
its financial condition.
(f) The Company has not engaged in the past three (3) months in
any 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.
2.13 Related-Party Transactions. No employee, officer, or director of
the Company or member of his or her 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. To the best of the Company's knowledge, 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. 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.
2.14 Permits. The Company has all franchises, permits, licenses, and
any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which would materially and adversely affect the
business, properties, prospects, or financial condition of the Company, and the
Company believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be
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conducted. The Company is not in default in any material respect under any of
such franchises, permits, licenses or other similar authority.
2.15 Disclosure. The Company has fully provided each Investor with all
the information that such Investor has requested for deciding whether to
purchase the Series B Preferred Stock and all information that the Company
believes is reasonably necessary to enable such Investor to make such decision.
Neither this Agreement, the Investors' Rights Agreement or the Co-Sale
Agreement, nor any other written statements or certificates made or delivered in
connection herewith or therewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
or therein not misleading.
2.16 Business Plan. The Business Plan previously delivered to each
Investor has been prepared in good faith by the Company and does not contain any
untrue statement of a material fact nor does it omit to state a material fact
necessary to make the statements made therein not misleading, except that with
respect to projections contained in the Business Plan, the Company represents
only that such projections were prepared in good faith and that the Company
reasonably believes there is a reasonable basis for such projections.
2.17 Registration Rights. Except as provided in the Investors' Rights
Agreement, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person or entity.
2.18 Corporate Documents. Except for amendments necessary to satisfy
representations and warranties or conditions contained herein (the form of which
amendments has been approved by the Investors), the Restated Certificate and
Bylaws of the Company are in the form previously made available to the
Investors.
2.19 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 that 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 compliance
with such leases and, to its knowledge, holds a valid leasehold interest free of
any liens, claims or encumbrances.
2.20 Section 1202 Compliance.
(a) The Company is a "C" corporation for federal income tax
purposes, is an "eligible corporation" as defined in Section 1202(e)(4) of the
Code and is engaged in a "qualified trade or business" as defined in Section
1202(e)(3) of the Code.
(b) During the one-year period beginning on the date one year
before the date of the Closing, the Company has not made one or more purchases
of its stock with an aggregate value (as of the time of the respective
purchases) exceeding 5% of the aggregate value of all of its stock as of the
beginning of such period.
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(c) At all times during the period that began with the formation
of the Company and ends on the Closing, the aggregate gross assets of the
Company did not exceed $50,000,000. For purposes of this representation, (i) the
amount received by the Company from the sale of its stock as contemplated herein
shall be taken into account, (ii) "aggregate gross assets" shall mean the amount
of (A) cash, (B) the aggregate fair market value of all property contributed to
the Company (or other property with a basis determined in whole or part for
federal income tax purposes by reference to the adjusted basis of property so
contributed) as of the date of such contribution, and (C) the aggregate adjusted
basis for federal income tax purposes of other property held by the Company, and
(iii) the Company shall be deemed to own its ratable share of the assets of its
subsidiaries, if any.
(d) Ten percent or less of the total value of the Company's
assets as of the Closing consists of real property that is not used in the
Company's business.
(e) Ten percent or less of the total value of the Company's
assets (in excess of liabilities) as of the Closing consists of stock or
securities in other corporations that are not subsidiaries of the Company (other
than assets described in Section 1202(e)(6) of the Code).
2.21 Financial Statements. The Company has delivered to each Investor
its unaudited financial statements (balance sheet, income statement and
statement of cash flows), as of December 15, 1998, and for the 349 day period
then ended (the "Financial Statements"). The Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated and with each other, except
that the unaudited Financial Statements may not contain all footnotes required
by generally accepted accounting principles. The Financial Statements fairly
present the financial condition and operating results of the Company as of the
dates, and for the periods, indicated therein, subject in the case of the
unaudited Financial Statements to normal year-end audit adjustments. 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 December 15, 1998, 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
Financial Statements, which, in both cases, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
2.22 Changes. Since December 15, 1998, 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,
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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 material 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 its assets or properties is bound or
subject;
(f) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets other than the licensing of
the Company's products in the ordinary course of business;
(g) any resignation or termination of employment of any key
employee or 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 key employee or officer;
(h) receipt by an executive officer of the Company 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 of any dividend 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;
(l) 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 or business of the
Company (as such business is presently conducted and as it is proposed to be
conducted); or
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(m) any agreement or commitment by the Company to do any of the
things described in this Section 2.22.
2.23 Insurance. The Company has in full force and effect fire,
casualty and liability insurance policies with recognized insurers with such
coverages as are sufficient in amount to allow replacement of the tangible
properties of the Company that might be damaged or destroyed.
2.24 Employee Benefit Plans. Except as set forth in Section 2.24 of
the Webridge, Inc. Schedule of Exceptions hereto, the Company does not have any
Employee Benefit Plan as defined in the Employee Retirement Income Security Act
of 1974 ("ERISA"). To the Company's knowledge, each of the Company's Employee
Benefit Plans is in full compliance with ERISA and the Company has no
liabilities associated with any Employee Benefit Plan other than those
liabilities set forth in the Financial Statements.
2.25 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
when due, except those contested by it in good faith that are listed in the
Schedule of Exceptions. The provision for taxes of the Company as shown in the
Financial Statements is adequate for taxes due or accrued as of the date
thereof. The Company has not elected pursuant to the Internal Revenue Code of
1986, as amended (the "Code"), to be treated as a collapsible corporation
pursuant to Section 341(f) of the Code, nor has it made any other elections
pursuant to the Code (other than elections that relate solely to methods of
accounting, depreciation or amortization) that would have a material adverse
effect on the Company, its financial condition, its business as presently
conducted or proposed to be conducted or any of its properties or material
assets.
2.26 Labor Agreements and Actions. 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 best knowledge of
the Company, has sought to represent any of the employees, representatives or
agents of the Company. There is no strike or other labor dispute involving the
Company pending, or to the best knowledge of the Company threatened, which could
have a material adverse effect on 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), nor is the Company aware of
any labor organization activity involving its employees.
2.27 Environmental and Safety Laws. To the best of the Company's
knowledge, it is not in violation of any applicable statute, law or regulation
relating to the environment or occupational health and safety that would have a
material effect on the employees, and to the best of its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation.
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2.28 Minute Books. The copy of the minute books of the Company
provided to the counsel for the Investors contains minutes of all meetings of
directors and stockholders and all actions by written consent without a meeting
by the directors and stockholders since the date of incorporation and reflects
all actions by the directors (and any committee of directors) and stockholders
with respect to all transactions referred to in such minutes accurately in all
material respects.
2.29 Year 2000. Software developed by the Company for sale or license
to its customers (including Mainspan) is Year 2000 compliant. As used in this
Agreement, "Year 2000 compliant" means that the software is designed to be used
prior to, during and after the calendar year 2000, and the software will
accurately receive, provide and process date and time data from, into and
between the 20th and 21st centuries, including the years 1999 and 2000, and
leap-year calculations and will not malfunction, cease to function, or provide
invalid or incorrect results as a result of date and time data, to the extent
that other software used in combination with the Company's software properly
exchanges date and time data with it.
3. Representations and Warranties of the Investors. Each Investor hereby
represents and warrants that:
3.1 Authorization. Such Investor has full power and authority to
enter into this Agreement, the Investors' Rights Agreement and the Co-Sale
Agreement, and each such Agreement constitutes its valid and legally binding
obligation, enforceable in accordance with their respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with
such Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Series B Preferred Stock to be received by such Investor and
the Common Stock issuable upon conversion thereof (collectively, the
"Securities") will be acquired for investment for such Investor's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that such Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, such Investor further represents that such Investor does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to any of the Securities.
3.3 Disclosure of Information. Such Investor believes it has received
all the information it considers necessary or appropriate for deciding whether
to purchase the Series B Preferred Stock. Such Investor further represents that
it has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the
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offering of the Series B Preferred Stock and the business, properties, prospects
and financial condition of the Company. The foregoing, however, does not limit
or modify the representations and warranties of the Company in Section 2 of this
Agreement or the right of the Investors to rely thereon and assumes the accuracy
thereof.
3.4 Investment Experience. Such Investor is an investor in securities
of companies in the development stage and acknowledges that it is able to fend
for itself, can bear the economic risk of its investment, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Series B Preferred Stock. If other
than an individual, Investor (other than Manchester Bridge Principal LP) also
represents it has not been organized for the purpose of acquiring the Series B
Preferred Stock.
3.5 Accredited Investor. Such Investor is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
Securities it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. In this connection, such Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and the Investors' Rights Agreement provided and to the extent
this Section and such agreement are then applicable, and:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by an
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Investor that is a partnership to another partnership that is affiliated with
the transferring partnership or to a partner of such transferring partnership or
a retired partner of such partnership who retires after the date hereof, or to
the estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his or her spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were an original Investor hereunder.
3.8 Legends. It is understood that the certificates evidencing the
Securities may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or under applicable state law or
an opinion of counsel satisfactory to the Company that such registration is not
required or unless sold pursuant to Rule 144 of such Act."
(b) The legends set forth in the Investors' Rights Agreement and
the Co-Sale Agreement.
3.9 Manchester Bridge Principal LP Manchester Bridge Principal LP
represents that it is a limited partnership organized under the laws of the
state of Delaware having at the date hereof not more than nine limited partners
and one general partner, each of which is an "accredited investor." At the date
hereof, Manchester Principal LLC is the sole general partner of Manchester
Bridge Principal LP. Manchester Principal LLC shall act as the limited
partnership's representative, with full power and authority to act on behalf of
Manchester Bridge Principal LP in connection with its dealings with the Company,
including the voting of shares of Series B Preferred Stock. Manchester Bridge
Principal LP will, for as long as it holds any shares of Series B Preferred
Stock, continue to be represented by its general partner for such purposes.
4. Conditions of Investor's Obligations at Closing. The obligations of
each Investor under subsection 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
thereto:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
4.2 Performance. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
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17
4.3 Compliance Certificate. The President of the Company shall
deliver to each Investor at the Closing a certificate stating that the
conditions specified in Sections 4.1 and 4.2 have been fulfilled and stating
that there shall have been no material adverse change in the business, affairs,
operations, properties, assets or condition of the Company since December 15,
1998.
4.4 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing.
4.5 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investors, and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request.
4.6 Bylaws. The Bylaws of the Company shall provide that the Board of
Directors of the Company shall consist of seven (7) persons.
4.7 Board of Directors. The directors of the Company immediately
following the Closing shall be Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X.
Domenik, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx, and Xxxxx Xxxx, and there shall be one
vacancy on the Board of Directors.
4.8 Opinion of Company Counsel. Each Investor shall have received
from Stoel Rives LLP, counsel for the Company, an opinion, dated as of the
Closing, in the form attached hereto as Exhibit D.
4.9 Investors' Rights Agreement. The Company and each party thereto
shall have entered into the Investors' Rights Agreement in the form attached
hereto as Exhibit B.
4.10 Co-Sale Agreement. The Company and each party thereto shall have
entered into the Co-Sale Agreement in the form attached hereto as Exhibit C.
5. Conditions of the Company's Obligations at Closing. The obligations of
the Company to each Investor under this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions by that Investor:
5.1 Representations and Warranties. The representations and
warranties of such Investor contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
5.2 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required
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in connection with the lawful issuance and sale of the Securities pursuant to
this Agreement shall be duly obtained and effective as of the Closing.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and
covenants of the Company and 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.
6.2 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Securities). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by confirmed facsimile transmission or nationally recognized overnight
courier service or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
6.7 Finders' Fees. Each party represents that it neither is nor will
be obligated for any finders' fees or commissions in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of finders'
fees (and the costs and expenses of defending against such liability or asserted
liability) for which such Investor or any of its
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19
officers, partners, employees, or representatives is responsible. The Company
agrees to indemnify and hold harmless each Investor from any liability for any
commission or compensation in the nature of a finders' fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is responsible.
6.8 Expenses. The Company will pay at the Closing the reasonable fees
and expenses, not to exceed $15,000, of 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 Investors' Rights Agreement, the Co-Sale Agreement or the
Restated Certificate, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
6.9 Amendments and Waivers. Any term of this Agreement other than the
terms of Section 4 may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of sixty percent (60%) of the Common Stock issuable or issued
upon conversion of the Series B Preferred Stock. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
6.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 Aggregation of Stock. All shares of the Preferred Stock held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
6.12 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE COMPANY:
WEBRIDGE, INC.
By:
-------------------------------------
Xxxx X. Xxxxxxxx
Chief Executive Officer
Address: 000 XX Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
21
INVESTORS:
MANCHESTER BRIDGE PRINCIPAL LP
By: Manchester Principal LLC,
its General Partner
By:
-------------------------------------
(signature)
Name:
-----------------------------------
Title:
----------------------------------
Address: 000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
22
XXXXX XXXXX FUND V L.P.
By: SRB Associates V L.P.
Its General Partner
By:
-------------------------------------
(signature)
Name:
-----------------------------------
Title: General Partner
XXXXX XXXXX V AFFILIATES FUND L.P.
By: SRB Associates V L.P.
Its General Partner
By:
-------------------------------------
(signature)
Name:
-----------------------------------
Title: General Partner
XXXXX XXXXX XXXXXXX MANAGEMENT COMPANY
By:
-------------------------------------
(signature)
Name:
-----------------------------------
Title:
----------------------------------
Address: c/o The Xxxxx Xxxxx Funds
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
23
OLYMPIC VENTURE PARTNERS IV, L.P.
By: OVMC IV, L.L.C., General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title: Member
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
OVP IV ENTREPRENEURS FUND, L.P.
By: OVMC IV, L.L.C., General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title: Member
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
24
WORLDVIEW TECHNOLOGY PARTNERS I, L.P.
By: Worldview Capital I, L.P., its
General Partner
By: Worldview Equity I, L.L.C.,
its General Partner
By:
-------------------------------------
Xxxx Xxxxx, General Partner
WORLDVIEW TECHNOLOGY INTERNATIONAL I,
L.P.
By: Worldview Capital I, L.P., its
General Partner
By: Worldview Equity I, L.L.C., its
General Partner
By:
-------------------------------------
Xxxx Xxxxx, General Partner
WORLDVIEW STRATEGIC PARTNERS I, L.P.
By: Worldview Capital I, L.P., its
General Partner
By: Worldview Equity I, L.L.C., its
General Partner
By:
-------------------------------------
Xxxx Xxxxx, General Partner
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
25
XXXXXXX FAMILY LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address: 000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
26
INDIVIDUAL INVESTOR:
By:
-------------------------------------
Xxxx X. Xxxxxxxx
Address: 00000 XX Xxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
27
INDIVIDUAL INVESTOR:
----------------------------------------
Xxxx X. Xxxxx
Address: 000 Xxxxxxx XX
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
28
INDIVIDUAL INVESTOR:
----------------------------------------
Xxxxxxx Damohray
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
29
INDIVIDUAL INVESTOR:
----------------------------------------
Xxxxxx Xxxxxx
Address:
----------------------------------------
----------------------------------------
SIGNATURE PAGE TO WEBRIDGE, INC.
SERIES B STOCK PURCHASE AGREEMENT
30
SCHEDULE A
SCHEDULE OF INVESTORS
31
SCHEDULE A
SCHEDULE OF INVESTORS
NUMBER OF CANCELLATION TOTAL PURCHASE
NAME AND ADDRESS SHARES PURCHASED OF INDEBTEDNESS PRICE OF SHARES
---------------- ---------------- --------------- ---------------
MANCHESTER BRIDGE PRINCIPAL LP 1,764,706 1,500,000 3,000,000
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
XXXXX XXXXX FUND V L.P. 754,652 1,282,908.40
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXXXX XXXXX V AFFILIATES FUND L.P. 32,264 54,848.80
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXXXX XXXXX XXXXXXX MANAGEMENT COMPANY 1,750 2,975
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
OLYMPIC VENTURE PARTNERS IV, L.P. 610,986 1,038,676.20
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
OVP IV ENTREPRENEURS FUND, L.P. 45,988 78,179.60
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
WORLDVIEW TECHNOLOGY PARTNERS I, L.P. 178,055 302,693.50
435 Tasso, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
WORLDVIEW TECHNOLOGY INTERNATIONAL I, L.P. 69,398 117,976.60
435 Tasso, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
WORLDVIEW STRATEGIC PARTNERS I, L.P. 15,337 26,072.90
435 Tasso, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
XXXXXXX FAMILY LLC 441,176 750,000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
32
NUMBER OF CANCELLATION TOTAL PURCHASE
NAME AND ADDRESS SHARES PURCHASED OF INDEBTEDNESS PRICE OF SHARES
---------------- ---------------- --------------- ---------------
XXXX X. XXXXXXXX 588,977 101,260.35 1,001,260.35
00000 XX Xxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000
XXXX XXXXX 30,279 51,474.90 51,474.90
000 Xxxxxxx XX
Xxxxxx, Xxxxx 00000
XXXXXXX DAMOHRAY 180,641 257,089.96 307,089.96
0000 XX Xxx
Xxxxxxxx, XX 00000
XXXXXX XXXXXX 29,412 50,000
0 Xxxxxxxxx Xxxx
Xxxxx, XX 00000
TOTALS 4,743,621 1,909,825.21 8,014,156.21
