TRADEWEAVE, INC.
COMMON STOCK PURCHASE AGREEMENT
NOVEMBER 30, 1999
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock. 1
1.1 Sale and Issuance of Common Stock..........................1
1.2 Closing....................................................1
2. Representations and Warranties of the Company. 1
2.1 Organization, Good Standing and Qualification..............1
2.2 Capitalization.............................................1
2.3 Authorization..............................................2
2.4 Valid Issuance of Common Stock.............................2
2.5 Noncontravention...........................................2
3. Representations and Warranties of the Investors. 2
3.1 Authorization..............................................2
3.2 Purchase Entirely for Own Account..........................2
3.3 Disclosure of Information..................................2
3.4 Investment Experience......................................3
3.5 Accredited Investor........................................3
3.6 Legends....................................................3
4. California Commissioner of Corporations. 3
4.1 Corporate Securities Law...................................3
5. Conditions of Investor's Obligations at Closing. 4
5.1 Representations and Warranties.............................4
5.2 Performance................................................4
5.3 Stockholders Agreement.....................................4
6. Conditions of the Company's Obligations at Closing. 4
6.1 Representations and Warranties.............................4
6.2 Payment of Purchase Price..................................4
6.3 Stockholders Agreement.....................................4
7. Miscellaneous. 4
7.1 Successors and Assigns.....................................4
7.2 Governing Law..............................................4
7.3 Titles and Subtitles.......................................4
7.4 Notices....................................................4
7.5 Attorneys'Fees.............................................5
7.6 Amendments and Waivers.....................................5
7.7 Severability...............................................5
7.8 Entire Agreement...........................................5
7.9 Counterparts...............................................5
(i)
SCHEDULE A Schedule of Investors
EXHIBIT A Stockholders Agreement
EXHIBIT B Investor Qualifications
(ii)
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made on the
30th day of November, 1999, by and among Tradeweave, Inc., a Delaware
corporation (the "Company"), and the investors listed on SCHEDULE A hereto
(each, an "Investor" and collectively, the "Investors").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms
and conditions of this Agreement, each Investor agrees, severally, to purchase
at each Closing and the Company agrees to sell and issue to each Investor at
each Closing, that number of shares of the Company's common stock (the "Common
Stock") set forth opposite each Investor's name with respect to such Closing on
SCHEDULE A hereto for the purchase price set forth thereon.
1.2 CLOSING. The purchases and sales of the Common Stock shall
take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, Xxx Xxxxxx, Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, at 10:00 a.m. on the dates set
forth on SCHEDULE A hereto, or at such other times and places as the Company and
Investors agree upon in writing (each of which are designated as a "Closing" and
the first of which is designated as the "Initial Closing"). Notwithstanding the
foregoing, QRS may change the date of any or all of the Closings to a date or
dates earlier than those set forth on SCHEDULE A if QRS provides written notice
of the changed date of any such Closing to the other Stockholders and the
Company at least ten calendar days in advance of the new date of such Closing.
At each Closing the Company shall deliver to each Investor a certificate
representing the Common Stock that such Investor is purchasing against payment
of the purchase price therefor by check, wire transfer, cancellation of
indebtedness or any combination thereof. In the event that payment by an
Investor is made, in whole or in part, by cancellation of indebtedness, then
such Investor shall surrender to the Company for cancellation at the Closing any
evidence of such indebtedness or shall execute an instrument of cancellation in
form and substance acceptable to the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Investor as follows:
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 and legal right to own and operate its assets and to carry on its
business as currently conducted.
2.2 CAPITALIZATION. The authorized capital of the Company will
consist immediately prior to the Initial Closing of twenty million (20,000,000)
shares of Common Stock, of which fifty (50) shares are issued and outstanding.
The outstanding shares of Common Stock are all duly and validly authorized and
issued, fully paid and nonassessable.
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2.3 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 performance of all
obligations of the Company hereunder, and the authorization (or reservation for
issuance), sale and issuance of the Common Stock being sold hereunder has been
taken. This Agreement constitutes valid and legally binding obligations of the
Company, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
2.4 VALID ISSUANCE OF COMMON STOCK. The Common 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 under applicable state and federal securities laws.
2.5 NONCONTRAVENTION. Neither the execution and the delivery
of this Agreement, nor the consummation of the transaction contemplated hereby
will (i) violate any statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge or other restriction of any government, government agency
or court to which the Company is subject or any provision of its certificate of
incorporation or bylaws or (ii) conflict with, result in a breach of, create in
any party the right to accelerate, terminate, modify or cancel, or require any
notice under any agreement, contract, lease, license , instrument or other
arrangement to which the Company is a party or by which it is bound or to which
any of its assets is subject.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor
hereby represents, warrants and covenants that:
3.1 AUTHORIZATION. Such Investor has full power and authority
to enter into this Agreement and such agreement constitutes its valid and
legally binding obligation, enforceable in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
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 Common Stock to be received by such Investor 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 Common Stock.
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 Common
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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 offering of the Common 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.
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 Common
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 as set forth on attached EXHIBIT B.
3.6 LEGENDS. It is understood that the certificates evidencing
the Common Stock 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 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) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
4. CALIFORNIA COMMISSIONER OF CORPORATIONS.
4.1 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES THAT
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
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5. CONDITIONS OF INVESTOR'S OBLIGATIONS AT CLOSING. The obligations of
each Investor under this Agreement are subject to the fulfillment on or before
the respective Closing of each of the following conditions, the waiver of which
shall not be effective against any Investor who does not consent thereto:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true on and as of such
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
5.2 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 such Closing.
5.3 STOCKHOLDERS AGREEMENT. The Company and the Investors
shall have executed and delivered the Stockholders Agreement in the form
attached hereto as EXHIBIT A (the "Stockholders Agreement").
6. 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 respective Closing of each of the following
conditions by that Investor:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor contained in Section 3 shall be true on and as of
such Closing with the same effect as though such representations and warranties
had been made on and as of such Closing.
6.2 PAYMENT OF PURCHASE PRICE. The Investor shall have
delivered the purchase price specified in Section 1.1 for such Closing.
6.3 STOCKHOLDERS AGREEMENT. The Company and the Investors
shall have executed and delivered the Stockholders Agreement.
7. MISCELLANEOUS.
7.1 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.
7.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
7.3 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.
7.4 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given (i) upon personal delivery
to the party to be notified, (ii) when
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sent by confirmed telex or facsimile if sent during normal business hours of
the recipient, if not, then on the next business day, (iii) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the address or facsimile number
as set forth on the signature page hereof or at such other address or
facsimile number as such party may designate by ten days advance written
notice to the other parties hereto.
7.5 ATTORNEYS' FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
7.6 AMENDMENTS AND WAIVERS. Any term of this Agreement 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 Investors.
7.7 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.
7.8 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.
7.9 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TRADEWEAVE, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx, President
Address: 000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
INVESTORS:
QRS CORPORATION
By: /s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx, Chief Executive Officer
Address: 0000 Xxxxxx Xxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------
XXXXX X. XXXXXXX
Address: ______________________________________________
______________________________________________
Facsimile: (_____) _______-_______________
/s/ Xxxxx Xxxxxxx
----------------------------------------------
XXXXX XXXXXXX
Address: ______________________________________________
______________________________________________
Facsimile: (_____) _______-_______________
SCHEDULE A
INVESTORS
INITIAL CLOSING: NOVEMBER 30, 1999
INVESTOR NUMBER OF SHARES CONSIDERATION
------------------------ ------------------------ -------------------
QRS Corporation 3,375,000 $3,375,000
Xxxxx X. Xxxxxxx 285,000 $285,000
Xxxxx Xxxxxxx 90,000 $90,000
TOTAL: 3,750,000 $3,750,000
SECOND CLOSING: DECEMBER 31, 1999
INVESTOR NUMBER OF SHARES CONSIDERATION
------------------------ ------------------------ -------------------
QRS Corporation 1,124,950 $1,124,950
Xxxxx X. Xxxxxxx 95,000 $95,000
Xxxxx Xxxxxxx 30,000 $30,000
TOTAL: 1,249,950 $1,249,950
Schedule A-1
EXHIBIT B
INVESTOR QUALIFICATIONS
INVESTOR QUALIFICATIONS - ACCREDITED INVESTORS.
The following are general definitions of qualified accredited
investors:
1. A natural person who had an individual income (not combined
with a spouse's income) in excess of $200,000 in each of the last two
years or joint income with that person's spouse in excess of $300,000
in each of the last two years and has a reasonable expectation of
reaching the same income level in the current year.
2. A natural person whose individual net worth, or joint net worth
with his or her spouse, at the time of the purchase, exceeds
$1,000,000.
3. Any corporation, Massachusetts or similar business trust, or
partnership, with total assets in excess of $5,000,000.
4. A trust, with total assets in excess of $5,000,000, if the
investment decision is made by a trustee who, either alone or with the
trustee's purchaser representative(s), has such knowledge and
experience in financial and business matters that he or she is capable
of protecting the trust's interest and evaluating the merits and risks
of the investment.
5. A 501(c)(3) non-profit organization with assets of in excess of
$5,000,000.
6. A bank, savings and loan association or other institution as
defined in the Securities Act of 1933, insurance company, investment
company, business development company, small business investment
company, or private business development company, as defined in certain
statutes.
7. An employee benefit plan as defined in ERISA, if the investment
decision is made by a plan fiduciary which is a bank, savings and loan
association, insurance company or registered investment advisor, or if
it has total assets in excess of $5,000,000, or if a self-directed
plan, the investment decision is made by person(s) who meet one of the
tests in paragraph 1 or 2 above.
8. An entity in which each of the equity owners meets one of the
tests in paragraph 1 or 2 above.
B-1