EXHIBIT 10.14
SERIES F PREFERRED
STOCK PURCHASE AGREEMENT
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THIS SERIES F PREFERRED STOCK PURCHASE AGREEMENT (the
"Agreement") is made as of the 4th day of June, 1998, by and among Agile
Software Corporation, a California corporation (the "Company") and the investors
listed on Schedule A hereto (collectively, the "Investors," individually, an
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"Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series F Preferred Stock.
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(a) The Company shall adopt and file with the Secretary of State of
California on or before the Closing (as defined below) the Sixth Amended and
Restated Articles of Incorporation in the form attached hereto as Exhibit A (the
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"Restated Articles").
(b) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally, to purchase at the Closing, and the Company agrees
to sell and issue to each Investor at the Closing, that number of shares of the
Company's Series F Preferred Stock (the "Series F Preferred Stock") set forth
opposite each Investor's name on Schedule A hereto for the purchase price set
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forth thereon.
1.2 Closing. The purchase and sale of the Series F Preferred Stock
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shall take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, Two
Embarcadero Place, 2200 Geng Road, Palo Alto, California, at 1:00 P.M., on June
4, 1998, or at such other time and place as the Company and the Investors
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 number of shares of Series F Preferred Stock that
each such Investor is purchasing against payment of the purchase price therefor
by check or wire transfer to an account specified by the Company.
2. Representations, Warranties and Covenants of the Company. The
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Company hereby represents, warrants and covenants to the Investors that, except
as set forth on a Schedule of Exceptions (the "Schedule of Exceptions")
furnished to the Investors specifically identifying the relevant subparagraph
hereof, which exceptions shall be deemed to be representations and warranties as
if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. 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
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Company consists of or will consist of prior to the Closing:
(i) Preferred Stock. 21,055,556 shares of Preferred Stock
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(the "Preferred Stock"), of which 1,500,000 shares have been designated Series A
Preferred Stock (the "Series A Preferred Stock"), 1,232,500 of which are issued
and outstanding, of which 3,000,000 shares have been designated Series B
Preferred Stock (the "Series B Preferred Stock"), 2,937,995 of which are issued
and outstanding, of which 4,000,000 shares have been designated Series C
Preferred Stock (the "Series C Preferred Stock"), 3,575,000 of which are issued
and outstanding, of which 4,000,000 shares have been designated Series C1
Preferred Stock (the "Series C1 Preferred Stock"), none of which are issued and
outstanding, of which 1,500,000 shares have been designated Series D Preferred
Stock (the "Series D Preferred Stock"), 1,350,000 of which are issued and
outstanding, of which 1,500,000 shares have been designated Series D1 Preferred
Stock (the "Series D1 Preferred Stock"), none of which are issued and
outstanding, of which 1,000,000 shares have been designated Series E Preferred
Stock (the "Series E Preferred Stock"), 1,000,000 of which are issued and
outstanding, of which 1,000,000 shares have been designated Series E1 Preferred
Stock (the "Series E1 Preferred Stock"), none of which are issued and
outstanding, of which 1,777,778 shares have been designated Series F Preferred
Stock (the "Series F Preferred Stock"), none of which are issued and outstanding
and 1,777,778 of which will be sold pursuant to this Agreement, and of which
1,777,778 shares have been designated Series F1 Preferred Stock (the "Series F1
Preferred Stock"), none of which are issued and outstanding. The respective
rights, privileges and preferences of the Series A, Series B, Series C, Series
C1, Series D, Series D1, Series E, Series E1, Series F and Series F1 Preferred
Stock will be as stated in the Company's Restated Articles.
(ii) Common Stock 29,000,000 shares of common stock ("Common
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Stock"), of which 3,997,566 shares are issued and outstanding.
(iii) The outstanding shares of Series A, Series B, Series C,
Series D and Series E Preferred Stock and of Common Stock are owned by the
shareholders in the numbers specified in Exhibit C hereto.
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(iv) The outstanding shares of Series A, Series B, Series C,
Series D and Series E Preferred Stock and of Common 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 "Securities Act") and any relevant state securities
laws or pursuant to valid exemptions therefrom.
(v) Except for (A) the conversion privileges of the Series A,
Series B, Series C, Series C1, Series D, Series D1, Series E, Series El, Series
F and Series F1 Preferred Stock, (B) the rights provided in Section 2 of the
Fifth Amended and Restated Investors' Rights Agreement (the "Investors' Rights
Agreement"), the form of which is attached hereto as Exhibit
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2.
B, (C) a warrant to purchase 41,111 shares of Series B Preferred Stock, (D) a
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warrant to purchase 35,313 shares of Series C Preferred Stock, (E) a warrant to
purchase 4,049 shares of Series D Preferred Stock, (F)a warrant to purchase
17,828 shares of Series D Preferred Stock and (G) currently outstanding options
to purchase 554,500 shares of Common Stock granted to certain officers,
directions, employees, consultants and/or advisors of the Company pursuant to
the 1995 Stock Option Plan, as amended (the "Option Plan"), there are not
outstanding any options, warrants, rights (including conversion or preemptive
rights or rights of first refusal) or agreements for the purchase or acquisition
from the Company of any Shares of its capital stock. The Company has reserved
1,777,778 shares of Series F Preferred Stock for issuance hereunder and
12,777,778 shares of Common Stock for issuance upon conversion of the Series A,
Series B, Series C, Series C1, Series D, Series D1, Series E, Series El, Series
F and Series F1 Preferred Stock. In addition to the aforementioned options, the
Company has reserved an additional 550,209 shares of Common Stock for issuance
upon exercise of options to be granted in the future under the Option Plan and
79,000 shares of Common Stock for issuance to certain executive officers and key
employees of the Company pursuant to compensatory direct stock issuances. The
Company is not a party or subject to any agreement or understanding, and, to the
best of 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 is the sole shareholder in Agile
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Software International Corporation, a Delaware corporation, incorporated on June
12, 1997. The Company does not presently own or control, directly or indirectly,
any interest in any other corporation, association or 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,
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its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the Investors' Rights Agreement and
the Fourth Amended and Restated Co-Sale Agreement (the "Co-Sale Agreement"), the
form of which is attached hereto as Exhibit E, the performance of all
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obligations of the Company hereunder and thereunder, and the authorization,
issuance (or reservation for issuance), sale and delivery of the Series F
Preferred Stock being sold hereunder and the Common Stock issuable upon
conversion of the Series F and/or Series F1 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 F
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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
3.
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
F Preferred Stock purchased under this Agreement, or issuable upon conversion of
the Series F1 Preferred Stock, has been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Restated Articles, 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
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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 consummation of the transactions
contemplated by this Agreement, the Investors' Rights Agreement or the Co-Sale
Agreement, except for the filing pursuant to Section 25102(f) of the California
Corporate Securities Law of 1968, as amended, and the rules thereunder, which
filing will be effected within 15 days of the sale of the Series F Preferred
Stock hereunder.
2.7 Litigation. There is no action, suit, proceeding or investigation
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pending or 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. The foregoing includes,
without limitation, actions, suits, proceedings or investigations, pending or
threatened, 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.
2.8 Proprietary Information and Inventions Agreement. Each employee,
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officer and consultant of the Company has executed a Proprietary Information and
Inventions Agreement in the form previously provided to counsel to certain of
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.
2.9 Patents and Trademarks. To the best of its knowledge (but
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without having conducted any special investigation or patent search), the
Company has sufficient title to and ownership of all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for its business as now conducted and as proposed
to be conducted without any conflict with or infringement of the rights of
others. There are no outstanding options, licenses or agreements of any kind
relating to the foregoing, nor is
4.
the Company bound by or a party to any options, licenses or agreements of any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity.
2.10 Compliance with Other Instruments. The Company is not in
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violation or default in any material respect of any provision of its Restated
Articles or Bylaws, or in any material respect of any instrument, judgment,
order, writ, decree or contract to which it is a party or by which it is bound,
or, to the best of 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.
2.11 Agreements; Action.
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(a) Except for agreements explicitly contemplated hereby, by the
Investors' Rights Agreement and the 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, $10,000, (ii) the
license of any patent, copyright, trade secret or other proprietary right to or
from the Company 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 $20,000 or, in the case of
indebtedness and/or liabilities individually less than $20,000, in excess of
$50,000 in the aggregate, (iii) except with respect to the purchase of shares of
stock of the Company by employees, officers or directors, made any loans or
advances to any person, other than ordinary advances for travel 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
5.
affiliated therewith) shall be aggregated for the purpose of meeting the
individual minimum dollar amounts of such subsections.
2.12 Related-Party Transactions. Except with respect to the purchase
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of shares of stock of the Company, 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 said
founders, officers or directors, or any members of their immediate families, 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 which competes with the Company, except that Xxxxx
Xxxxxx owns 400 shares and Xxxxxxxx Xxxxx owns 3,000 shares of the common stock
of Sherpa Corporation, and employees, officers and directors of the Company may
own stock in publicly traded companies that may compete with the Company. To the
best of the Company's knowledge, no employee, officer or director or any member
of their immediate families is, directly or indirectly, interested in any
material contract with the Company other than as a shareholder in the Company.
The Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
2.13 Permits. The Company has all franchises, permits, licenses and
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any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could 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 conducted. The
Company is not in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
2.14 Disclosure. The Company has fully provided the Investors with
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all the information that the Investors have requested for deciding whether to
purchase the Series F Preferred Stock. To the best of its knowledge, neither
this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement nor any
other 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.
2.15 Registration Rights. Except as provided in the Investors'
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Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.16 Corporate Documents. Except for amendments necessary to satisfy
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representations and warranties or conditions contained herein (the form of which
amendments has been approved by the Investors), the Restated Articles and the
Bylaws of the Company are in the form previously provided to counsel to certain
of the Investors.
2.17 Section 83(b) Elections. To the best of the Company's
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knowledge, all individuals who have purchased shares of the Company's Common
Stock have timely filed
6.
elections under Section 83(b) of the Internal Revenue Code of 1986, as amended,
and any analogous provisions of applicable state tax laws.
2.18 Employees. To the best of the Company's knowledge, no employee
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or consultant of the Company is in violation of any term of any employment,
employment contract, patent disclosure agreement or any other contract or
agreement relating to the relationship of any such person with the Company or
any other party because of the nature of the business conducted or to be
conducted by the Company. The Company does not have any collective bargaining
agreements covering any of its employees. Except for the Option Plan, the
Company has no employee benefit plans presently in force with respect to profit-
sharing, pensions, stock options or other stock benefits. The Company is not
aware of any key employee of the Company who has any plans to terminate his or
her employment with the Company.
2.19 Offering. Subject to the accuracy of the Investors'
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representations in Section 3 of this Agreement and in written responses to the
Company's inquiries, the offer, sale and issuance of the Series F Preferred
Stock to be issued in conformity with the terms of this Agreement and the
issuance of the Common Stock to be issued upon conversion of the Series F and/or
Series F1 Preferred Stock constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act.
2.20 Corporate Records. The minute books of the Company made
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available to the Investors contain a complete summary of all meetings or actions
by written consent of directors and shareholders since the time of incorporation
of the Company and reflect all transactions referred to in such minutes
accurately in all material respects.
2.21 Arbitration. Each employee of the Company has agreed in writing
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that all disputes that arise under the terms of the Proprietary Information and
Inventions Agreement, the Restricted Stock Purchase Agreement(s) or the
Employment Agreement entered into between each employee and the Company shall be
resolved through final and binding arbitration.
2.22 Board of Directors Visitation. So long as Integral Capital
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Partners IV, L.P. (including any affiliated entities or persons) holds at least
50% (as adjusted for any subsequent stock splits, stock combinations,
recapitalizations or the like) of the Series F Preferred Stock purchased by it
hereunder (or the Common Stock issuable upon conversion thereof or the Series F1
Preferred Stock issuable upon conversion of the Series F Preferred Stock), it
shall (i) receive notice of each regular meeting of the Company's Board of
Directors, (ii) be entitled to attend such meetings in a visiting, non-voting
capacity and (iii) the Company shall distribute to it the board packages
prepared in connection with each such meeting at the same time as such board
packages are distributed to the other members of the Board of Directors of the
Company.
2.23 Real Property Holding Corporation. The Company covenants that
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it will operate in a manner such that it will not become a "United States real
property holding corporation" as that term is defined in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder
("FIRPTA"). The Company agrees to make determinations as to its status as a
USRPHC, and will file statements concerning those
7.
determinations with the Internal Revenue Service, in the manner and at the times
required under Reg (S) 1.897-2(h), or any supplementary or successor provision
thereto. Within 30 days of a request from an Investor or any of its partners,
the Company will inform the requesting party, in the manner set forth in Reg.
(S) 1.897-2(h)(1)(iv) or any supplementary or successor provision thereto,
whether that party's interest in the Company constitutes a United States real
property interest (within the meaning of Internal Revenue Code Section 897(c)(1)
and the regulations thereunder) and whether the Company has provided to the
Internal Revenue Service all required notices as to its USRPHC status.
3. Representations and Warranties of the Investors. Each Investor
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hereby represents and warrants that:
3.1 Authorization. The Investor has full power and authority to
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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 against such Investor in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made with
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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 F Preferred Stock to be received by such Investor and
the Common Stock or Series F1 Preferred 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
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received all the information it considers necessary or appropriate for deciding
whether to purchase the Series F 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 offering of the
Series F 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 each Investor to rely thereon.
3.4 Investment Experience. Such Investor is an investor in
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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 F
Preferred Stock. If other than an individual, such Investor also represents it
has not been organized for the purpose of acquiring the Series F Preferred
Stock.
8.
3.5 Accredited Investor. Such Investor is an "accredited investor"
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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
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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 Securities 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
Securities Act.
3.7 Further Limitations on Disposition. Without in any way limiting
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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 3 and such agreement are then applicable; and;
(a) There is then in effect a Registration Statement under the
Securities 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
Securities 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 Investor that is a partnership to a partner of such 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
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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
9.
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.
3.9 Company Counsel. Each Investor acknowledges and agrees that,
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with respect to the Agreement and the transactions contemplated thereby,
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP has served as counsel to the Company and has not
represented any Investor. The Investors acknowledge and agree that they have not
retained legal counsel to represent them as a group, but rather each Investor
has relied upon separate counsel for advice with respect to the Agreement and
the transactions contemplated thereby. The Investors further acknowledge and
agree that certain of them have previously been represented by Xxxxxxx, Phleger
& Xxxxxxxx LLP for legal advice, and to the extent conflicts of interest, if
any, arise from such relationship, each Investor hereby waives such conflict by
signing below.
4. California Commissioner of Corporations.
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4.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT ARE THE
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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.
5. Conditions of Investors' Obligations at Closing. The obligations
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of the Investors under subsection 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
5.1 Representations and Warranties. The representations and
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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.
5.2 Performance. The Company shall have performed and complied with
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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.
10.
5.3 Compliance Certificate. The President of the Company shall
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deliver to the Investors at the Closing a certificate stating that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no adverse change in the business, affairs,
operations, properties, assets or condition of the Company since the date of
this Agreement.
5.4 Qualifications. All authorizations, approvals or permits, if
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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.
5.5 Proceedings and Documents. All corporate and other proceedings
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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.
5.6 Opinion of Company Counsel. The Investors shall have received
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from Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel for the Company, an opinion, dated
as of the Closing, in the form attached hereto as Exhibit D.
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5.7 Investors' Rights Agreement. The Company, each Investor and a
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majority of the holders of the Series A, Series B, Series C, Series D and Series
E Preferred Stock, taken together as a whole and not as separate series, shall
have entered into the Investors' Rights Agreement in the form attached hereto as
Exhibit B.
---------
5.8 Co-Sale Agreement. Each of the Founders (as defined in the Co-
-----------------
Sale Agreement), the Company and the Investors (as defined in the Co-Sale
Agreement) shall have entered into the Co-Sale Agreement.
5.9 Board of Directors. As of the Closing, the Company's Board of
------------------
Directors shall consist of Xxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxxx, Xxx
Xxxxxxxx and Xxxxx Xxxxxx.
5.10 Minimum Investment. A minimum of $10,000,000 shall have been
------------------
raised by the Company in connection with the sale of its Series F Preferred
Stock according to the terms of this Agreement.
6. Conditions of the Company's Obligations at Closing. The
--------------------------------------------------
obligations of the Company to the Investors under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
the Investors, the waiver of which shall not be effective against the Company
unless in writing and signed on behalf of the Company:
11.
6.1 Representations and Warranties. The representations and
------------------------------
warranties of each 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.
6.2 Payment of Purchase Price. Each Investor shall have delivered
-------------------------
the purchase price specified in Section 1. l(b).
6.3 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.
6.4 Waivers of Right of First Offer. Each Major Investor (as defined
-------------------------------
in the Investors' Rights Agreement) shall have waived the right of first offer
granted to such Investor pursuant to the Fourth Amended and Restated Investors'
Rights Agreement, dated November 14, 1997.
7. Miscellaneous.
--------------
7.1 Survival of Warranties. The warranties, representations and
----------------------
covenants of the Company and each Investor 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 such Investor or the Company.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
12.
7.6 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
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 days' advance written notice to the other
parties.
7.7 Finder's Fee. Each party represents that it neither is nor will
------------
be obligated for any finders' fee or commission 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 a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its 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.
7.8 Expenses. Irrespective of whether the Closing is effected, the
--------
Company shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. 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 Articles, 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.
7.9 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 holders of
a majority of the Common Stock issued or issuable upon conversion of the Series
F 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.
7.10 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 this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
7.11 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.
13.
7.12 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.
14.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AGILE SOFTWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
Address: Xxx Xxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
[SIGNATURE PAGE TO PREFERRED STOCK PURCHASE AGREEMENT]
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