EXHIBIT 10.14
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This Series B Preferred Stock Purchase Agreement (this "Agreement"),
dated as of August 26, 1998 is entered into by and between VIP Calling, Inc., a
Delaware corporation (the "Company"), and the persons who become party to this
Agreement by executing and delivering to the Company an Instrument of Adherence
(an "Instrument of Adherence") in the form attached hereto as EXHIBIT A (the
"Purchasers").
WITNESSETH
WHEREAS, the parties hereto desire to provide for the purchase and sale
of up to 6,562,500 shares (the "Shares") of the Company's Series B Convertible
Preferred Stock, par value $.001 per share (the "Series B Preferred Stock"), the
rights, designations and preferences of which are set forth on EXHIBIT B hereto;
and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to sell and issue to
each Purchaser, and each Purchaser agrees to purchase from the Company, at a
purchase price of $1.60 per share, that number of shares of Series B Preferred
Stock listed below such Purchaser's name on such Purchaser's Instrument of
Adherence, each such purchase and sale to occur at a Closing (as contemplated by
Section 2 hereof).
2. THE CLOSING. The closing ("Closing") of the sale and purchase of the
Shares under this Agreement shall take place at the offices of Xxxxxxx Xxxx LLP
in Boston, Massachusetts at 10:00 a.m. on August 26, 1998. At the Closing, the
Company shall issue and deliver to each Purchaser a certificate for the number
of Shares being purchased by such Purchaser, registered in the name of such
Purchaser, against payment to the Company of the purchase price therefor, by
wire transfer, bank check, or other method acceptable to the Company. The date
of the Closing is hereinafter referred to as the "Closing Date." Notwithstanding
anything to the contrary in this Section 2, the Purchasers understand and agree
that the Company may issue and deliver up to 312,500 Shares, upon receipt of the
purchase price therefor, from time to time during the one-week period
immediately following the Closing Date, with each such issuance being deemed to
have occurred as of the Closing Date.
3. REPRESENTATIONS OF THE COMPANY. Except as disclosed by the Company in
the Exhibits and Schedules attached hereto, the Company hereby represents and
warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to conduct its
business as now conducted and to enter into and perform the Series B Agreements
(as defined below) and the transactions contemplated thereby. The Company is
duly qualified to do business in and is in good standing in each state in which
a failure to be so qualified would have a material adverse effect on the
Company's financial condition or its ability to conduct its business in the
manner now conducted. The Company has furnished to the Purchasers true and
complete copies of its Certificate of Incorporation and By-laws, each as amended
to date.
3.2 CAPITALIZATION. The authorized capital stock of the Company
immediately prior to the date hereof consists of (i) 25,000,000 shares of Class
A Common Stock, par value $.001 per share (the "Class A Common Stock"), of which
6,060,000 shares are issued and outstanding, (ii) 1,500,000 shares of Class B
Common Stock, par value $.001 per share (the "Class B Common Stock"), of which
1,500,000 shares are issued and outstanding, (iii) 1,256,875 shares of Series A
Preferred Stock, of which 1,250,000 shares are issued and outstanding, and (iv)
6,875,000 shares of Series B Preferred Stock, none of which are issued and
outstanding. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in SCHEDULE 3.2.1 hereto, (a) no
subscription, warrant, option, convertible security or other right (contingent
or otherwise) to purchase or acquire any shares of capital stock of the Company
is authorized or outstanding, (b) there is not any commitment of the Company to
issue any subscription, warrant, option, convertible security or other such
right or to issue or distribute to holders of any shares of its capital stock
any evidences of indebtedness or assets of the Company, and (c) the Company has
no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect hereof. Except as set forth on
SCHEDULE 3.2.2 hereto or as provided in this Agreement and the Shareholders
Agreement (as defined in Section 5.5), (A) no person or entity is entitled to
(i) any preemptive or similar right with respect to the issuance or sale of any
capital stock of the Company or (ii) any rights with respect to the registration
of any capital stock of the Company under the Securities Act of 1933, as amended
(the "Securities Act") and (B) there exists no agreement, written or oral,
between the Company and any shareholders with respect to the voting, acquisition
(including, without limitation, rights of first refusal or preemptive rights),
or disposition of any capital stock of the Company.
3.3 SUBSIDIARIES. Except as set forth on SCHEDULE 3.3 hereto, the
Company has no subsidiaries and does not own or control, directly or indirectly,
any interest in any other corporation, association or business entity.
3.4 STOCKHOLDER LIST. SCHEDULE 3.4 contains a true and complete
list of the stockholders of the Company, showing the number of shares of Common
Stock or other securities of the Company held by each stockholder as of the date
of this Agreement.
3.5 ISSUANCE OF SHARES. The issuance, sale and delivery of the
Shares in accordance with this Agreement and the reservation, issuance, sale and
delivery of the shares issuable upon conversion of the Shares have been duly
authorized by all requisite corporate action on the part of the Company, and the
Shares, when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of Class A
Common Stock issuable upon conversion of the Shares, when issued upon such
conversion in accordance with the Company's Certificate of Incorporation, will
be duly and validly issued, fully paid and non-assessable.
3.6 AUTHORITY FOR AGREEMENT. The execution, delivery and
performance by the Company of this Agreement, the Amended Shareholders'
Agreement (as defined in Section 5.5) and the Amended Registration Rights
Agreement (as defined in Section 5.6) (collectively, the "Series B Agreements")
have been duly authorized by all requisite corporate action, and each of the
Series B Agreements has been duly executed and delivered by the Company. Each of
the Series B Agreements constitutes the valid and binding obligation of the
Company enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to or affecting enforcement of
creditors' rights and the application of equitable principles in any action
legal or equitable. The execution and delivery of the Series B Agreements and
performance of the transactions contemplated thereby and compliance with their
provisions by the Company will not violate any provision of law and will not
conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, the Company's Certificate of
Incorporation or By-laws, each as amended to date, or any indenture, lease,
agreement or other instrument to which the Company is a party or by which the
Company or any of its properties is bound, or any decree, judgment, order,
statute, rule or regulation applicable to the Company, except where any such
violation, conflict, breach or default would not have a material adverse effect
on the condition (financial or otherwise), business or properties of the
Company.
3.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any
governmental authority is required on the part of the Company in connection with
the execution and delivery of the Series B Agreements, the offer, issue, sale
and delivery of the Shares, or the other transactions to be consummated at the
Closing, except (i) the filing by the Company of a Form D with the Securities
and Exchange Commission, which the Company hereby covenants to file within
fifteen (15) days of the close of the Offering, (ii) requisite filings with
appropriate state securities authorities, if any, which the Company hereby
covenants to make on a timely basis, and (iii) such filings as shall have been
made prior to and shall be effective on and as of the Closing.
3.8 LITIGATION. There is no action, suit, proceeding or
investigation pending, or, to the best of the Company's knowledge, threatened
against the Company, which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition (financial or
otherwise), business or prospects of the Company or that would limit or impair
the power or authority of the Company to enter into the Series B Agreements and
consummate the transactions contemplated therein.
3.9 ABSENCE OF LIABILITIES. Except as set forth on SCHEDULE 3.9
hereto, the Company does not have, as of the date hereof, any liabilities of any
type which in the aggregate exceeded $50,000, whether absolute or contingent.
3.10 PROPERTY AND ASSETS. The Company has good title to all of its
material properties and assets as set forth on SCHEDULE 3.10 hereto and, except
as set forth on such schedule, none of such properties or assets is subject to
any mortgage, pledge, lien, security interest, lease, charge or encumbrance.
3.11 PATENTS AND TRADEMARKS. SCHEDULE 3.11 hereto lists all the
material patents, patent applications, trademarks, registered service marks,
registered trademark and service xxxx applications, registered copyrights and
patent and trademark licenses now owned or held by the Company. To the best of
the Company's knowledge, the business proposed by the Company will not cause the
Company to infringe or violate any of the patents, trademarks, service marks,
trade names, copyrights, licenses, trade secrets or other proprietary rights of
any other person or entity. The Company is not aware that any employee is
obligated under any contract (including any license, covenant or commitment of
any nature), or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's best
efforts to promote the interest of the Company or would conflict with the
Company's business as proposed to be conducted. There is no claim, suit, action
or proceeding pending, or to the Company's knowledge of threatened, against the
Company asserting that the Company's use of any of its intellectual property
infringes the rights of any other entity.
3.12 INSURANCE. The Company maintains or will acquire within sixty
(60) days after the date hereof valid policies of workers' compensation
insurance and of
insurance with respect to its properties and business of the kinds and in the
amounts not less than is customarily obtained by corporations of established
reputation engaged in the same or similar business and similarly situated,
including, without limitation, insurance against loss, damage, fire, theft,
public liability and other risks.
3.13 MATERIAL CONTRACTS AND OBLIGATIONS. Except as set forth on
Schedule 3.13 hereto, there are no (i) agreements which require future
expenditures by the Company in excess of $50,000, (ii) leases or rental
agreements for real property or office space, (iii) employment or consulting
agreements, employee benefit, bonus, pension, profit-sharing, stock option,
stock purchase or similar plans or arrangements, or (iv) material agreements
between the Company and any stockholder, officer or director of the Company, or
any "affiliate", or "associate" of such persons (as such terms are defined in
the rules and regulations promulgated under the Securities Act), including
without limitation any agreement or other arrangement providing for the
furnishing of services by, rental of real or personal property from, or
otherwise requiring payments to, any such person or entity in excess of $50,000.
The Company has delivered to the Purchaser true and complete copies of the
foregoing agreements. All of such agreements and contracts are valid, binding
and in full force and effect.
3.14 ERISA. The Company maintains no employee benefit plans, as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974.
3.15 COMPLIANCE. The Company has, in all material respects,
complied with all laws, regulations and orders applicable to its present and
proposed business and has obtained all material permits and licenses required
thereby, except where the failure to obtain such permits or licenses would not
have a material adverse effect. There is no term or provision of any material
mortgage, indenture, contract, agreement or instrument to which the Company is a
party or by which it is bound or, to the knowledge of the Company, of any
provision of any state or Federal judgment, decree, order, statute, rule or
regulation applicable to or binding upon the Company, which, in the absence of a
breach or violation of any such provision, law or judgment, decree or
regulation, materially adversely affects the business, prospects, or operations
of the Company or its properties or assets. To the best of the Company's
knowledge, none of the employees of the Company is in violation of any term of
any employment contract, patent or other proprietary information disclosure
agreement or any other contract or agreement relating to the employment of such
employee by the Company.
3.16 EMPLOYEES. Except as set forth on Schedule 3.16 hereto, each
employee of the Company whose activities require access to confidential or
proprietary information of the Company has executed and delivered to the Company
a Proprietary Information and Inventions Agreement substantially in the form of
Exhibit C hereto, and each such agreement is in full force and effect. None of
the employees of the
Company is represented by any labor union, and there is no labor strike or other
labor trouble pending with respect to the Company or, to the best knowledge of
the Company, threatened.
3.17 BROKERS OR FINDERS. The Company has not entered into any
arrangement that would cause any person to have any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker as a result of the consummation of the transactions
contemplated by this Agreement.
3.18 DISCLOSURES. Neither this Agreement nor any Exhibit hereto,
nor any agreement or document delivered by the Company to the Purchasers or
their counsel in connection with the transactions contemplated by this Agreement
contains or will contain any material misstatement of fact or omits or will omit
to state a material fact necessary to make the statements continued herein or
therein not misleading. Anything disclosed in any Schedules or Exhibits hereto
or in any other agreement or document (including any schedule or exhibit
thereto) delivered in connection with the transactions contemplated by this
Agreement shall be deemed disclosed in all other Schedules or Exhibits hereto
and in all other agreements or documents delivered in connection with such
transaction.
3.19 MINUTES BOOKS AND STOCK LEDGER. The minute books of the
Company contain materially complete and accurate records of all meetings and
other corporate action of the stockholders, Board of Directors, and committees
thereof. The stock ledger of the Company is complete and accurate and reflects
all issuances, transfers, repurchases, and cancellations of shares of the
Company's capital stock.
3.20. FINANCIAL STATEMENTS. The unaudited financial statements of
the Company at and for the seven month period ending July 31, 1998 (the "Company
Financial Statements"), which are attached as Schedule 3.20 hereto, are true,
correct and complete in all material respects and present fairly, in conformity
with generally accepted accounting principles consistently applied (except, that
the unaudited financial statements do not contain all of the required footnotes
and are subject to normal, recurring non-material year-end adjustments) the
financial position of the Company at the dates indicated and the results of its
operations for each of the periods indicated, except as otherwise set forth in
the notes thereto. The books and records of the Company have been kept, and will
be kept to the date of the Closing, in reasonable detail, and will fairly and
accurately reflect in all material respects to the date of the Closing, the
transactions of the Company.
3.21 ABSENCE OF CERTAIN CHANGES. Since July 31, 1998 and except as
disclosed elsewhere in this Agreement, there has not been any change in the
condition (financial or otherwise), properties, assets, liabilities or business
prospects of the
Company, which has been materially adverse or has occurred outside of the
ordinary course of business.
3.22 TAX RETURNS. The Company has filed in correct form all tax
returns and estimates (federal, state and local) required to be filed by it, and
has paid all taxes shown to be due and payable on the returns or on any
assessment received by the Company as well as all other taxes (federal, state
and local) due and payable by it on or before the date hereof, other than state
and local realty taxes which are payable but which are not yet due. The Internal
Revenue Service has not conducted an examination of any income tax returns of
the Company. The amount shown on the Company Financial Statements as provision
for taxes, if any, is sufficient in all material respects for payment of all
accrued and unpaid federal, state, county, local, and foreign taxes for the
period then ended and all prior periods.
3.23 ENVIRONMENTAL MATTERS. The Company, to the best of its
knowledge, is in compliance with all local, state and federal environmental
statutes, laws, rules, regulations and permits, including but not limited to
CERCLA. Except for acrylamide acrylic acid, caustic soda, methylene
bisacrylamide used in manufacturing and common chemicals used by the in cleaning
and materials processing, the Company has not, nor to the Company's knowledge
have other parties, used, stored, disposed of or permitted any "hazardous
substance" (as defined in CERCLA), petroleum hydrocarbon, polychlorinated
biphenyl, asbestos or radioactive material (collectively, "Hazardous
Substances") to remain at, on, in or under any of the property covered by any of
the real property leases to which the Company is a party. The Company has not
installed, used, or disposed of any asbestos or asbestos-containing material on,
in or under any of the property covered by any of the real property leases to
which it is a party.
4. REPRESENTATIONS OF EACH PURCHASER. Each Purchaser, as to itself,
represents and warrants to the Company as follows:
4.1 AUTHORITY. It has full power and authority to enter into and
to perform this Agreement, the Shareholders Agreement and the Amended
Registration Rights Agreement in accordance with their terms. If not a natural
person, it is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization.
4.2 INVESTMENT PURPOSE. The Purchaser is acquiring Shares for its
own account for the purpose of investment and not with a view to distribution or
resale thereof.
4.3 NO REGISTRATION. The Purchaser understands and agrees that the
Shares have not been registered under the Securities Act of 1933, as amended
(the
"Securities Act"), and therefore, cannot be offered, sold or transferred unless
they are registered under the Securities Act or an exemption from such
registration is available.
4.4 DEVELOPMENT-STAGE COMPANY. The Purchaser acknowledges and
understands that the Company is a development-stage company.
4.5 REQUISITE KNOWLEDGE. The Purchaser represents that it has such
knowledge and experience in business and financial matters with respect to
investments in securities of privately-held, development-stage companies so as
to enable it to understand and evaluate the risks of the Purchaser's investment
in the Shares and to form an investment decision with respect thereto.
4.6 SUFFICIENCY OF INFORMATION. The Purchaser has been afforded
the opportunity during the course of negotiating the transactions contemplated
by this Agreement to ask questions of, and to secure such information from, the
Company and its officers and directors as it deems necessary to evaluate the
merits of entering into such transactions, and all information requested has
been given and all questions asked were answered.
4.7 ADEQUATE NET WORTH. The Purchaser represents that it has
adequate net worth and means of providing for its current needs and personal
contingencies to sustain a complete loss of its investment in the Shares. In
particular, the Purchaser confirms that the amount of its investment in the
Shares does not exceed 25% of its net worth (including, if the Purchaser is a
natural person, the net worth of his or her spouse).
4.8 INVESTOR QUESTIONNAIRE. The Purchaser, if an individual, is,
simultaneously herewith, completing an Investor Questionnaire to establish that
it is an "accredited investor" within the meaning of Rule 501 under the
Securities Act. The Purchaser, if an individual, represents and warrants that it
has completed this Questionnaire accurately, and acknowledges and understands
that the Company is relying upon such Investor Questionnaire to establish that
an exemption from registration of the Shares under the Securities Act is
available. All Purchasers who are not individuals hereby represent that they are
"accredited investors" within the meaning of Rule 501 under the Securities Act.
5. CONDITIONS TO THE OBLIGATIONS OF EACH PURCHASER. The obligation
of each Purchaser to purchase Shares at the Closing is subject to the
fulfillment, or the waiver by such Purchaser, of each of the following
conditions on or before the Closing Date:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations
and warranties contained in Section 3 of this Agreement (except for such
representations and warranties as are limited by their terms to an earlier
specified date (which shall be true as of such date)) shall be true and correct
in all material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of that date.
5.2 PERFORMANCE. The Company shall have performed and complied in
all material respects with all agreements and conditions contained in this
Agreement required to be performed or complied with by the Company prior to or
at such Closing.
5.3 OPINION OF COUNSEL. The Purchaser shall have received an
opinion, substantially in the form of Exhibit D hereto, from Xxxxxxx Xxxx LLP,
counsel to the Company, dated as of the date hereof, addressed to the
Purchasers.
5.4 CERTIFICATES AND DOCUMENTS. The Company shall have delivered
to the Purchasers:
(i) A copy of the Certificate of Incorporation of the
Company, as amended and in effect as of the date hereof, certified by the
Secretary or Assistant Secretary of the Company;
(ii) A copy of the By-laws of the Company as amended and
in effect as of the date hereof, certified by the Secretary or Assistant
Secretary of the Company as of the date hereof;
(iii) A copy of resolutions of the Board of Directors
authorizing and approving all requisite matters in connection with this
Agreement and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of the Company as of the date hereof;
(iv) A certificate, as of a date reasonably proximate to
the date hereof, as to the corporate good standing of the Company issued by the
Secretary of State of the State of Delaware;
(v) A certificate, as of the Closing Date, stating that
the conditions specified in Section 5.1 have been fulfilled.
5.5 SHAREHOLDERS' AGREEMENT. The Second Amendment, substantially
in the form of Exhibit E hereto, (the "Second Amendment"), to the First Amended
and Restated Shareholders' Agreement (as amended by the Second Amendment, the
"Amended Shareholders' Agreement") shall have been executed and delivered by the
Company and the holders of at least sixty percent (60%) of (i) the aggregate
issued and
outstanding shares of the Class A Common Stock and the Class B Common Stock and
(ii) the issued and outstanding shares of the Series A Preferred Stock.
5.6 REGISTRATION RIGHTS AGREEMENT. The First Amendment,
substantially in the form of Exhibit F hereto, (the "First Amendment") to the
Registration Rights Agreement (as amended by the First Amendment, the "Amended
Registration Rights Agreement") shall have been executed and delivered by the
Company and the holders of at least a majority of the Registrable Shares (as
defined in such Registration Rights Agreement) outstanding immediately prior to
the issuance of any of the Shares.
5.7 AMENDMENT TO CERTIFICATE OF INCORPORATION. The Amendment to
the Certificate of Incorporation in the form of Exhibit B shall have been
executed by the Company and filed with the Secretary of State's office in
Delaware.
6. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to sell Shares to a Purchaser at the Closing is subject to the
fulfillment, or waiver by the Company, of each of the following conditions on or
before the Closing Date:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchaser contained in Section 4 shall be
true and correct in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of that date.
6.2 ANCILLARY AGREEMENTS. The Purchaser shall become or shall have
become a party to the Amended Shareholders' Agreement and the Amended
Registration Rights Agreement.
6.3 BLUE SKY APPROVALS. The Company and the Purchaser shall have
received all requisite approvals and made any requisite filings with state Blue
Sky authorities and any such approvals shall be in full force and effect on the
Closing Date (other than filings required to be made after the Closing Date).
7. LEGEND. EACH PURCHASER UNDERSTANDS THAT THE CERTIFICATE OR CERTIFICATES
EVIDENCING SHARES PURCHASED BY SUCH PURCHASER SHALL BEAR THE FOLLOWING LEGENDS:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES UNDER
THE
SECURITIES ACT OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, PLEDGE,
HYPOTHECATION OF OTHER TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHICH
SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS.
Each Purchaser further understands that the Company may place a
stop-transfer order on any of the Shares with the Company's transfer agent.
8. MISCELLANEOUS.
8.1 NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed effectively
given and received upon delivery in person, or one business day after delivery
by national overnight courier service or by telecopier transmission with
acknowledgment of transmission receipt, or three business days after deposit via
certified or registered mail, return receipt requested, in each case addressed
as follows:
(a) if to the Company, to:
VIP Calling, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxx, President
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(b) if to a Purchaser, to the address of such Purchaser set forth
on the Instrument of Adherence executed and delivered to the Company by such
Purchaser; with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
or, in any such case, at such other address or addresses as shall have
been furnished in writing by such party to the other.
8.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts made and to be performed entirely within the state
without regard to principles of conflicts of law.
8.3 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits hereto, constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof and thereof. All Schedules and Exhibits
hereto are hereby incorporated herein by reference.
8.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 NO WAIVERS; AMENDMENTS.
(a) No failure or delay on the part of any party in
exercising any right, power, or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power, or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party at law
or in equity or otherwise.
(b) Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Company and Purchasers who, at any given time, hold at least a majority of the
then outstanding shares of Series B Preferred Stock.
8.6 SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
8.7 GENDER. All pronouns and all variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the person or persons, thing or entity may require.
8.8 HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.9 EXPENSES. The Company shall be responsible for its own legal
costs incurred in connection with the preparation, review and negotiation of the
transactions contemplated by this Agreement and shall pay the legal costs of
counsel to the Purchasers up to an aggregate of $15,000.
8.10 SURVIVABILITY. Notwithstanding any investigation conducted
at any time with regards thereto by or on behalf of any Purchaser, all
representations and warranties of the parties hereto shall survive the Closing
and shall remain in full force and effect through and until March 31, 2000.
IN WITNESS WHEREOF, the undersigned sets its hand under seal as of
the day and year first above written.
COMPANY:
VIP CALLING, INC.
By: Xxxx Xxxxxx
---------------------
Xxxx Xxxxxx
President
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx River VIII A LLC, in order to purchase
shares of Series B Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series B Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of August
26, 1998 (the "Purchase Agreement"). This Instrument of Adherence shall take
effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 3,068,422
------------
Signature: /s/ Xxxxx Xxxxxx
----------------------------
Address: Xxxxxxx River Ventures
-----------------------------
0000 Xxxxxx Xxxxxx, Xxxxx 0000
-----------------------------
Xxxxxxx, XX 00000
-----------------------------
Date: August 26, 1998
-----------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx River Partnership VIII, A Limited
Partnership, in order to purchase shares of Series B Convertible Preferred
Stock, par value $.001 per share, of VIP Calling, Inc., a Delaware corporation
(the "Company"), hereby agrees to become a "Purchaser" party to the Series B
Preferred Stock Purchase Agreement among the Company and the other Purchaser
parties thereto dated as of August 26, 1998 (the "Purchase Agreement"). This
Instrument of Adherence shall take effect and shall become a part of said
Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 56,578
------------
Signature: /s/ Xxxxx Xxxxxx
----------------------------
Address: Xxxxxxx River Ventures
-----------------------------
0000 Xxxxxx Xxxxxx, Xxxxx 0000
-----------------------------
Xxxxxxx, XX 00000
-----------------------------
Date: August 26, 1998
-----------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Menlo Ventures VII, L.P., in order to purchase shares
of Series B Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 2,999,040
-------------
MENLO VENTURES VII, L.P.
By: MV MANAGEMENT VII, L.L.C.
its General Partner
By: /s/ H. D. Xxxxxxxxxx
----------------------------------
Managing Member
Address: 0000 Xxxx Xxxx Xxxx
-----------------------------
Xxxxxxxx 0, Xxxxx 000
-----------------------------
Menlo Xxxx, XX 00000
-----------------------------
Date: August 26, 1998
-----------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Menlo Ventures VII, L.P., in order to purchase shares
of Series B Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 125,960
-------------
MENLO ENTREPRENEURS FUND VII, L.P.
By: MV MANAGEMENT VII, L.L.C.
its General Partner
By: /s/ H. D. Xxxxxxxxxx
----------------------------------
Managing Member
Address: 0000 Xxxx Xxxx Xxxx
-----------------------------
Xxxxxxxx 0, Xxxxx 000
-----------------------------
Menlo Xxxx, XX 00000
-----------------------------
Date: August 26, 1998
-----------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, C.N. Corfield*, in order to purchase shares of Series
B Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
*Xxxxxxx X. Xxxxxxxx Trust No. of Shares Purchased: 100,000
U/A/D 12/19/91 ---------------
Signature: /s/ C. N. Corfield (ttee)
------------------------------
Address: 000 Xxxx Xx.
------------------------------
Xxxx Xxxx, XX 00000
------------------------------
------------------------------
Date: 25 Aug. 1998
------------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxxx, in order to purchase shares of Series B
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 13,100
--------------
Signature: /s/ Xxxx Xxxxxxx
----------------------------
Address: 00 Xxxxxxxx Xxxx
----------------------------
Xxxxxxxxx 000000
----------------------------
----------------------------
Date: August 21, 1998
----------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxxxxxx, in order to purchase shares of Series
B Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 8,800
------------
Signature: /s/ Xxxxx Xxxxxxxx
--------------------------
Address: 00 Xxxxxxxxxx Xxxx
--------------------------
Xxxx Xxxxxxxxx, XX 00000
--------------------------
--------------------------
Date: August 25, 1998
--------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxx, in order to purchase shares of Series B
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 4,400
------------
Signature: /s/ Xxxx Xxxxxx
-------------------------
Address: x/x Xxxx Xxxxxxx
-------------------------
0 Xxxxxx Xxxxx
-------------------------
Xxxxxx, XX 00000
-------------------------
-------------------------
Date: 8/25/98
-------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxx, in order to purchase shares of Series B
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 19,100
-----------
Signature: /s/ Xxxxx Xxxx
---------------------------
Address: 000 Xxxxx Xxxx Xxxx
---------------------------
Xxxxxxxx, XX 00000
---------------------------
---------------------------
Date: 08/31/98
---------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxxxxx, in order to purchase shares of
Series B Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 26,000
------------
Signature: /s/ Xxxxx X. Xxxxxxx
--------------------------
Address: 43 Xxxxxxx Xxxxxx Road
--------------------------
Xxxxxxxxx, XX 00000
--------------------------
--------------------------
Date: 8/25/98
--------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxx, in order to purchase shares of
Series B Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 62,500 ($100,000)
--------
Signature: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Address: X.X. Xxx 0000
-------------------------------
Xxxxxxxxxx, XX 00000
-------------------------------
-------------------------------
Date: 8/25/98
-------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx X. Xxxxxx, as Trustee of Xxxxxx Revocable Trust
u/a/d 2/15/88, in order to purchase shares of Series B Convertible Preferred
Stock, par value $.001 per share, of VIP Calling, Inc., a Delaware corporation
(the "Company"), hereby agrees to become a "Purchaser" party to the Series B
Preferred Stock Purchase Agreement among the Company and the other Purchaser
parties thereto dated as of August 26, 1998 (the "Purchase Agreement"). This
Instrument of Adherence shall take effect and shall become a part of said
Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 22,600
--------------
Signature: /s/ Xxxx X. Xxxxxx
---------------------------
Address: 00 Xxx Xxxx Xxxx
---------------------------
Xxxxxxx Xxxxx, XX 00000
---------------------------
---------------------------
Date: Aug. 25, 1998
---------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx Xxxxxxxxxx, in order to purchase shares of
Series B Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 17,500
---------
Signature: /s/ Xxxxxx Xxxxxxxxxx
------------------------
Address:
------------------------
------------------------
------------------------
Date: 9/2/98
------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxx, in order to purchase shares of Series B
Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a
Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 5,000
---------
Signature: /s/ Xxxx Xxxxxx
------------------------
Address: 0 Xxxxxxxxxx Xxxx
------------------------
Xxxxxxxxxx, XX 00000
------------------------
------------------------
Date: 8/26/98
------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx X. XxxxxxXxxx, in order to purchase shares of Series
B Convertible Preferred Stock, par value $.001 per share, of VIP Calling, Inc.,
a Delaware corporation (the "Company"), hereby agrees to become a "Purchaser"
party to the Series B Preferred Stock Purchase Agreement among the Company and
the other Purchaser parties thereto dated as of August 26, 1998 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 21,000
-----------
Signature: /s/ Xxxxxxxxx X. Xxxxxxxxxx
----------------------------
Address: 00 Xxxxxxxx Xxxxxx
----------------------------
Xxxxxxxxx, XX 00000
----------------------------
----------------------------
Date: August 26, 1998
----------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
Exhibit A to
Stock Purchase Agreement
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES B PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxx, in order to purchase shares of
Series B Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series B Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of August 26, 1998 (the
"Purchase Agreement"). This Instrument of Adherence shall take effect and shall
become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts:
No. of Shares Purchased: 12,500
------------
Signature: /s/ X. X. Xxxxxx
--------------------------
Address: 000 Xxxx Xxxx Xx.
--------------------------
Xxxxxxxxxx, XX 00000
--------------------------
--------------------------
Date: 8/31/98
--------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------
