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EXHIBIT 10.19
XXXXX.XXX NETWORKS
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (the "AGREEMENT") is
entered into as of June 5, 1998, by and among XXXXX.XXX NETWORKS, a California
corporation (the "COMPANY"), and each of those persons and entities, severally
and not jointly, whose names are set forth on the Schedule of Purchasers
attached hereto as EXHIBIT A (which persons and entities are hereinafter
collectively referred to as "PURCHASERS" and each individually as a
"PURCHASER").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of 7,598,784 shares of its Series D Preferred Stock (the "SHARES");
WHEREAS, Purchasers desire to purchase the Shares on the terms and
conditions set forth herein;
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
SECTION 1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized (i) the sale and issuance to
Purchasers of the Shares and (ii) the issuance of the shares of Common Stock to
be issued on conversion of the Shares (the "CONVERSION SHARES"). The Shares and
the Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Amended and Restated Articles of Incorporation of
the Company, in the form attached hereto as Exhibit B (the "RESTATED ARTICLES").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as hereinafter defined) the Company hereby agrees to issue and sell
to each Purchaser and each Purchaser agrees to purchase from the Company, the
number of Shares set forth opposite such Purchaser's name on Exhibit A, at a
purchase price of $3.29 per Share.
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SECTION 2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "CLOSING") shall take place on the date of this Agreement, at the
offices of the Company or at such other time and place upon which the Company
and a majority of the Purchasers shall agree.
2.2 DELIVERY. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchasers certificates representing the
number of Shares to be purchased at the Closing by each Purchaser, against
payment of the purchase price therefor by check or wire transfer made payable to
the order of the Company, cancellation of indebtedness or any combination of the
foregoing.
2.3 SUBSEQUENT SALES OF SHARES. At any time on or before the 90th day
following the Closing, the Company may sell up to the balance of the authorized
shares of Series D Preferred Stock not sold at the Closing to such persons as
may be approved by the Board of Directors of the Company. All such sales shall
be made on the terms and conditions set forth in this Agreement, including,
without limitation, the representations and warranties by such Purchasers as set
forth in Section 4. Any Shares of Series D Preferred Stock sold pursuant to this
Section 2.3 shall be deemed to be "Shares" for all purposes under this Agreement
and any purchasers thereof shall be deemed to be "Purchasers" for all purposes
under this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto as
EXHIBIT C, the Company hereby represents and warrants to each Purchaser as
follows:
3.1 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 California. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Amended and Restated Investors' Rights Agreement in the form
attached hereto as Exhibit D (the "INVESTORS' RIGHTS AGREEMENT"), the Amended
and Restated Co-Sale and Voting Agreement in the form attached as Exhibit E (the
"CO-SALE AGREEMENT"), to issue and sell the Shares, to issue the Conversion
Shares, to carry out the provisions of this Agreement, the Investors' Rights
Agreement, the Co-Sale Agreement and the Restated Articles and to carry on its
business as presently conducted and as presently proposed to be conducted. The
Company is duly qualified and is authorized to do business and is in good
standing as a foreign corporation in all jurisdictions in which the nature of
its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those jurisdictions in which failure to do
so would not have a material adverse effect on the Company or its business. The
Company owns no equity securities of any other corporation, limited partnership
or similar entity. The Company is not a participant in any joint venture,
partnership or similar arrangement.
3.2 CAPITALIZATION; VOTING RIGHTS. The authorized capital stock of the
Company, immediately prior to the Closing, will consist of: thirty million
(30,000,000) shares of Common Stock, one million four hundred fifty seven six
hundred thirty two (1,457,632) shares of which
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are issued and outstanding and three million eighty thousand six hundred thirty
three (3,080,633) shares of which are reserved for future issuance to employees,
consultants and directors upon the exercise of options to purchase the Company's
Common Stock; and eighteen million two hundred eighty-six thousand eight hundred
ten (18,286,810) shares of Preferred Stock, of which two million seven hundred
seven thousand four hundred three (2,707,403) shares are designated Series A
Preferred Stock, of which two million six hundred eighty-five thousand one
hundred eighty-one (2,685,181) shares are issued and outstanding, of which five
hundred seventy-nine thousand four hundred seven (579,407) shares are designated
Series B Preferred Stock, of which five hundred seventy-nine thousand four
hundred seven (579,407) shares are issued and outstanding, of which seven
million (7,000,000) shares are designated Series C Preferred Stock, of which
three million six hundred twenty six thousand nine hundred twenty two
(3,626,922) shares are issued and outstanding and of which eight million
(8,000,0000) shares are designated Series D Preferred Stock, none of which are
issued and outstanding. All issued and outstanding shares of the Company's
Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock (i) have been duly authorized and validly issued to the persons
listed on Exhibit F hereto, (ii) are fully paid and nonassessable, and (iii)
were issued in compliance with all applicable state and federal laws concerning
the issuance of securities. The rights, preferences, privileges and restrictions
of the Shares are as stated in the Restated Articles. The Conversion Shares have
been duly and validly reserved for issuance. Other than as set forth on Exhibit
F, and except (i) as may be granted pursuant to the Investors' Rights Agreement
and the Co-Sale Agreement, (ii) a warrant for the purchase of an aggregate of
twenty-two thousand two hundred twenty-two (22,222) shares of Series A Preferred
Stock, (iii) warrants for the purchase of an aggregate of one hundred ten
thousand five hundred twenty four (110,524) shares of Common Stock, (iv)
warrants for the purchase of an aggregate of one million seven hundred
seventy-five thousand three hundred thirty (1,775,330) shares of Series C
Preferred Stock, (v) a warrant for the purchase of an aggregate of twenty four
thousand six hundred seventy one (24,671) shares of Series C Preferred Stock or
Series D Preferred Stock, (vi) warrant to be issued to BT Alex.Xxxxx
Incorporated pursuant to this transaction to purchase Common Stock of the
Company, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
shareholder agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. When issued in compliance
with the provisions of this Agreement and the Restated Articles, the Shares and
the Conversion Shares will be validly issued, fully paid and nonassessable, and
will be free of any liens or encumbrances; provided, however, that the Shares
and the Conversion Shares may be subject to restrictions on transfer under state
and/or federal securities laws as set forth herein or as otherwise required by
such laws at the time a transfer is proposed.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the part
of the Company, its officers, directors and shareholders necessary for the
authorization of this Agreement, the Investors' Rights Agreement and the Co-Sale
Agreement, the performance of all obligations of the Company hereunder and
thereunder at the Closing and the authorization, sale, issuance and delivery of
the Shares pursuant hereto and the Conversion Shares pursuant to the Restated
Articles, has been taken or will be taken prior to the Closing. The Agreement,
the Investors' Rights Agreement and the Co-Sale Agreement, when executed and
delivered, will be valid and binding obligations of the Company enforceable in
accordance with their terms, except
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(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors' rights;
(ii) general principles of equity that restrict the availability of equitable
remedies; and (iii) to the extent that the enforceability of the indemnification
provisions in Section 2.9 of the Investors' Rights Agreement may be limited by
applicable laws. The sale of the Shares and the subsequent conversion of Shares
into Conversion Shares are not and will not be subject to any preemptive rights
or rights of first refusal other than the right of first refusal set forth in
the Investors' Rights Agreement, which has been waived in accordance with that
agreement.
3.4 FINANCIAL STATEMENTS. The Company has delivered to each Purchaser
(i) its audited balance sheet as at December 31, 1997 and audited statement of
income for the year ending December 31, 1997 and (ii) its unaudited balance
sheet as at March 31, 1998 and unaudited statement of income for the three month
period ending March 31, 1998 (collectively, the "FINANCIAL STATEMENTS"), copies
of which are attached hereto as Exhibit G. The Financial Statements, together
with the notes thereto, are complete and correct in all material respects, have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated, except as
disclosed therein, and present fairly the financial condition and position of
the Company as of December 31, 1997 and March 31, 1998, provided, however, that
the interim financial statements are subject to normal recurring year-end audit
adjustments (which are not expected to be material), and do not contain all
footnotes required under generally accepted accounting principles.
3.5 LIABILITIES. The Company has no material liabilities and, to the
best of its knowledge, knows of no material contingent liabilities not disclosed
in the Financial Statements, except current liabilities incurred in the ordinary
course of business subsequent to March 31, 1998, which in the aggregate do not
exceed $100,000.
3.6 AGREEMENTS; ACTION.
(a) Except for agreements explicitly contemplated hereby and
agreements between the Company and its employees with respect to the sale of the
Company's Common Stock, 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 to its knowledge by which it is bound which may
involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $100,000 (other than obligations of, or payments to, the
Company arising from purchase or sale agreements entered into in the ordinary
course of business), or (ii) the license of any patent, copyright, trade secret
or other proprietary right to or from the Company (other than licenses arising
from the purchase of "off the shelf" or other standard products), or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services, or (iv) indemnification by the Company
with respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business).
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(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 (other than with respect to dividend obligations,
distributions, indebtedness and other obligations incurred in the ordinary
course of business or as disclosed in the Financial Statements) individually in
excess of $100,000 or, in the case of indebtedness and/or liabilities
individually less than $100,000, in excess of $200,000 in the aggregate, (iii)
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 affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) The Company has not engaged in the past three months in any
discussion (i) with any representative of any corporation or corporations
regarding the consolidation or merger of the Company with or into any such
corporation or corporations, (ii) with any corporation, partnership, association
or other business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company, or a
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, or (iii) regarding any
other form of acquisition, liquidation, dissolution or winding up of the
Company.
3.7 OBLIGATIONS TO RELATED PARTIES. There are no obligations of the
Company to officers, directors, shareholders, or employees of the Company other
than (a) for payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Company, (c) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company), (d) the Investors' Rights Agreement, and (e) the
Co-Sale Agreement.
3.8 CHANGES. Since March 31, 1998, there has not been to the Company's
knowledge:
(a) Any change in the assets, liabilities, financial condition
or operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is expected to have a material
adverse effect on such assets, liabilities, financial condition or operations of
the Company;
(b) Any resignation or termination of any key officers of the
Company; and the Company, to the best of its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
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(c) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by the Company to any
shareholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or shareholder;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the Company;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except those for immaterial amounts and for current
liabilities incurred in the ordinary course of business;
(k) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(l) Any change in any material agreement to which the Company is
a party or by which it is bound which materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
the Company, including compensation agreements with the Company's employees; or
(m) Any other event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the
business, assets, liabilities, financial condition, operations or prospects of
the Company.
3.9 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good and
marketable title to its tangible properties and assets, including the tangible
properties and assets reflected in the balance sheet as at March 31, 1998
(included in the Financial Statements), and good title to its leasehold estates,
to the Company's knowledge, in each case subject to no mortgage, pledge, lien,
lease, encumbrance or charge, other than (i) those resulting from taxes which
have not yet become delinquent, (ii) minor liens and encumbrances which do not
materially detract from the value of the property subject thereto or materially
impair the
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operations of the Company, and (iii) those that have otherwise arisen in the
ordinary course of business.
3.10 PATENTS AND TRADEMARKS. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes necessary
for its business as now conducted and as proposed to be conducted, without any
known infringement of the rights of others. There are no outstanding options,
licenses or agreements of any kind relating to the foregoing, nor is the Company
bound by or a party to any options, licenses or agreements of any kind with
respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information and other proprietary rights and processes
of any other person or entity other than such licenses or agreements arising
from the purchase of "off the shelf" or standard products. The Company has not
received any communications alleging that the Company has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. The Company is not aware that
any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with their duties to the Company or that would conflict with the
Company's business as proposed to be conducted. Neither the execution nor
delivery of this Agreement, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as proposed,
will, to the Company's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. The Company
does not believe it is or will be necessary to utilize any inventions, trade
secrets or proprietary information of any of its employees made prior to their
employment by the Company, except for inventions, trade secrets or proprietary
information that have been assigned to the Company.
3.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation
or default of any term of its Restated Articles or Bylaws, or of any provision
of any mortgage, indenture, contract, agreement, instrument or contract to which
it is party or by which it is bound or of any judgment, decree, order, writ or,
to its knowledge, any statute, rule or regulation applicable to the Company
which would materially and adversely affect the business, assets, liabilities,
financial condition, operations or prospects of the Company. The execution,
delivery, and performance of and compliance with this Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement and the issuance and sale of the
Shares pursuant hereto and of the Conversion Shares pursuant to the Restated
Articles, will not result in any such material violation, or be in conflict with
or constitute a default under any such term, or result in the creation of any
mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of the Company or the suspension, revocation, impairment, forfeiture or
nonrenewal of any permit license, authorization or approval applicable to the
Company, its business or operations or any of its assets or properties.
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3.12 LITIGATION. There is no action, suit, proceeding or investigation
pending or to the Company's knowledge 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 any of such
agreements, or to consummate the transactions contemplated hereby or thereby, or
which might result, either individually or in the aggregate, in any material
adverse change in the assets, condition, affairs or prospects of the Company,
financially or otherwise, or any change in the current equity ownership of the
Company, nor is the Company aware of any such material unasserted claim which,
if asserted, would likely be determined adversely to the Company. The foregoing
includes, without limitation, actions pending or threatened or unasserted claims
(as described in the preceding sentence) 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 which the Company intends to initiate.
3.13 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns
(federal, state and local) required to be filed by it. All taxes shown to be due
and payable on such returns, any assessments imposed, and to the Company's
knowledge all other taxes due and payable by the Company on or before the
Closing have been paid or will be paid prior to the time they become delinquent.
3.14 EMPLOYEES. The Company has no collective bargaining agreements with
any of its employees. There is no labor union organizing activity pending or, to
the Company's knowledge, threatened with respect to the Company. No employee has
any agreement or contract, written or verbal, regarding his or her employment.
To the Company's knowledge, no employee of the Company, nor any consultant with
whom the Company has contracted, is in violation of any term of any employment
contract, patent disclosure agreement or any other agreement relating to the
right of any such individual to be employed by, or to contract with, the Company
because of the nature of the business to be conducted by the Company; and to the
Company's knowledge the continued employment by the Company of its present
employees, and the performance of the Company's contracts with its independent
contractors, will not result in any such violation. The Company has not received
any notice alleging that any such violation has occurred. Each employee is
employed on an "at will" basis and has no right to any material compensation
following termination of employment with the Company. The Company is not aware
that any officer or key employee, or that any group of key employees, intends to
terminate their employment with the Company, nor does the Company have a present
intention to terminate the employment of any officer, key employee or group of
key employees.
3.15 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each key
employee, officer and director of the Company has executed a Proprietary
Information and Inventions Agreement substantially in the form of Exhibit H
attached hereto.
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3.16 OBLIGATIONS OF MANAGEMENT. Each officer of the Company is currently
devoting one hundred percent (100%) of his or her business time to the conduct
of the business of the Company. The Company is not aware of any officer or key
employee of the Company planning to work less than full time at the Company in
the future.
3.17 REGISTRATION RIGHTS. Except as required pursuant to the Investors'
Rights Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register (as defined in Section 1.1 of the Investors'
Rights Agreement) any of the Company's presently outstanding securities or any
of its securities that may hereafter be issued.
3.18 COMPLIANCE WITH LAWS; PERMITS. To its knowledge, the Company is not
in violation of any applicable statute, rule, regulation, order or restriction
of any domestic or foreign government or any instrumentality or agency thereof
in respect of the conduct of its business or the ownership of its properties
which violation would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Company. No
governmental orders, permissions, consents, approvals or authorizations are
required to be obtained and no registrations or declarations are required to be
filed in connection with the execution and delivery of this Agreement and the
issuance of the Shares or the Conversion Shares, except such as has been duly
and validly obtained or filed, or with respect to any filings that must be made
after the Closing, as will be filed in a timely manner. The Company has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business as now being conducted by it, the lack of which could
materially and adversely affect the business, properties, prospects or financial
condition of the Company and believes it can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted.
3.19 ENVIRONMENTAL AND SAFETY LAWS. To its knowledge, the Company is not
in violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation.
3.20 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4.3 hereof, the offer, sale
and issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") and will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. Neither the Company nor
any agent on its behalf has solicited or will solicit any offers to sell or has
offered to sell or will offer to sell all or any part of the Shares to any
person or persons so as to bring the sale of such Shares by the Company within
the registration provisions of the Securities Act.
3.21 FULL DISCLOSURE. This Agreement, the Exhibits hereto, the
Investors' Rights Agreement, the Co-Sale Agreement and all other documents
delivered by the Company to Purchasers or their attorneys or agents in
connection herewith or therewith or with the transactions contemplated hereby or
thereby, do not contain any untrue statement of a material
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fact nor, to the Company's knowledge, omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading.
3.22 QUALIFIED SMALL BUSINESS. The Company represents and warrants to
the Purchasers that it qualifies as a "Qualified Small Business" as defined in
Section 1202(d) of the Internal Revenue Code of 1986, as amended (the "CODE").
The Company covenants that so long as it reasonably believes that the Shares
(and/or Conversion Shares) held by Purchaser or a transferee would qualify as
Qualified Small Business Stock as defined in Section 1202(c) of the Code it will
timely file all reports or filings with the Internal Revenue Service required of
a Qualified Small Business.
3.23 MINUTE BOOKS. The minute books of the Company provided to the
Purchasers contain a complete summary of all meetings of directors and
shareholders since the time of incorporation.
3.24 REAL PROPERTY HOLDING CORPORATION. The Company is not a real
property holding corporation within the meaning of Internal Revenue Code Section
897(c)(2) and any regulations promulgated thereunder.
3.25 INSURANCE. The Company has fire and casualty insurance policies
with coverage customary for companies similarly situated to the Company.
3.26 SMALL BUSINESS CONCERN. The Company, together with its affiliates
(as that term is defined in 13 C.F.R. Section 121.103), is a "small business
concern" within the meaning of the Small Business Investment Act of 1958, as
amended, and the regulations promulgated thereunder (the "SMALL BUSINESS
INVESTMENT ACT") and Part 121 of Title 13 of the United States Code of Federal
Regulations ("CFR"). The information provided by the Company to each Purchaser
that is a licensed Small Business Investment Company (an "SBIC PURCHASER") on
SBA Forms 480, 652 and 1031 delivered in connection herewith is accurate and
complete.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents and warrants to the Company as follows
(such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power and
authority under all applicable provisions of law to execute and deliver this
Agreement and the Investors' Rights Agreement and to carry out their provisions.
All action on Purchaser's part required for the lawful execution and delivery of
this Agreement, the Investors' Rights Agreement and the Co-Sale Agreement have
been or will be effectively taken prior to the Closing. Upon their execution and
delivery, this Agreement, the Investors' Rights Agreement and the Co-Sale
Agreement will be valid and binding obligations of Purchaser, enforceable in
accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights, (ii) general principles of equity
that restrict the availability of equitable
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remedies, and (iii) to the extent that the enforceability of the indemnification
provisions of Section 2.9 of the Investors' Rights Agreement may be limited by
applicable laws.
4.2 CONSENTS. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of Purchaser required in
connection with the consummation of the transactions contemplated in the
Agreement, the Investors' Rights Agreement or the Co-Sale Agreement have been or
shall have been obtained prior to and be effective as of the Closing.
4.3 INVESTMENT REPRESENTATIONS. Purchaser understands that neither the
Shares nor the Conversion Shares have been registered under the Securities Act.
Purchaser also understands that the Shares are being offered and sold pursuant
to an exemption from registration contained in the Securities Act based in part
upon Purchaser's representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares (or the Conversion Shares) are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser understands that the Company has no present intention of
registering the Shares, the Conversion Shares or any shares of its Common Stock.
Purchaser also understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow Purchaser to transfer all or any portion
of the Shares or the Conversion Shares under the circumstances, in the amounts
or at the times Purchaser might propose.
(b) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement, the Investors' Rights Agreement and
the Co-Sale Agreement. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(c) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(d) INVESTMENT. Purchaser is acquiring the Shares (or any of the
Common Stock into which the Shares are convertible) for investment for its own
account and not with a view to, or for resale in connection with, any
distribution thereof, and Purchaser has no present intention of selling or
distributing the Shares (or any of the Common Stock into which the Shares are
convertible). Purchaser understands that the Shares (and the Common Stock into
which the Shares are convertible) to be purchased by it have not been registered
under the Securities Act which depends upon, among other things, the bona fide
nature of the investment intent as expressed herein.
11.
12
(e) COMPANY INFORMATION. Purchaser has received and read the
Financial Statements and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(f) RESTRICTED SECURITIES. Purchaser acknowledges and agrees
that the Shares and the Conversion Shares must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being through an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934) and the number of shares
being sold during any three-month period not exceeding specified limitations.
4.4 TRANSFER RESTRICTIONS. Each Purchaser acknowledges and agrees that
the Shares and the Conversion Shares are subject to restrictions on transfer as
set forth in the Investors' Rights Agreement.
SECTION 5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Purchasers'
obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct as of the Closing Date with the same force and
effect as if they had been made as of the Closing Date, and the Company shall
have performed all obligations and conditions herein required to be performed or
observed by it on or prior to the Closing.
(b) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement (except for such as may be properly
obtained subsequent to the Closing).
(c) FILING OF RESTATED ARTICLES. The Restated Articles shall
have been filed with the Secretary of State of the State of California.
(d) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
12.
13
(e) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(f) COMPLIANCE CERTIFICATE. The Company shall have delivered to
Purchasers a Compliance Certificate, executed by the President and the Chief
Financial Officer of the Company, dated the date of the Closing, to the effect
that the conditions specified in subsections (a) through (e) of this Section 5.1
have been satisfied.
(g) INVESTORS' RIGHTS AGREEMENT. An Investors' Rights Agreement
substantially in the form attached hereto as EXHIBIT D shall have been executed
and delivered by the parties thereto.
(h) CO-SALE AGREEMENT. The Co-Sale Agreement substantially in
the form attached hereto as EXHIBIT E shall have been executed and delivered by
Xxxxx Pack, Xxxxxxx XxXxxxxx and the Company.
(i) BOARD OF DIRECTORS. Upon the Closing, the authorized size of
the Board of Directors of the Company shall be nine members and the Board shall
consist of Xxxxx Pack, Xxxxxxx XxXxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxx
XxXxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and one
representative of the Series D Preferred Stock.
(j) LEGAL OPINION. The Purchasers shall have received from legal
counsel to the Company an opinion addressed to them, dated as of the Closing
Date, in substantially the form attached hereto as EXHIBIT I.
(k) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchasers and their
special counsel, and the Purchasers and their special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as they may reasonably request.
(l) SBA DOCUMENTS. The Company shall have executed and delivered
to each Purchaser that is a licensed Small Business Investment Company a Size
Status Declaration on SBA Form 480 and an Assurance of Compliance on SBA Form
652, and shall have provided to each such Purchaser information necessary for
the preparation of a Portfolio Financing Report on SBA Form 1031.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation
to issue and sell the Shares at each Closing is subject to the satisfaction, on
or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by Purchasers in Section 4 hereof shall be true and correct in
all material
13.
14
respects at the date of the Closing, with the same force and effect as if they
had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have performed
and complied with all agreements and conditions herein required to be performed
or complied with by Purchasers on or before the Closing.
(c) FILING OF RESTATED ARTICLES. The Restated Articles shall
have been filed with the Secretary of State of the State of California.
(d) INVESTORS' RIGHTS AGREEMENT. An Investors' Rights Agreement
substantially in the form attached hereto as EXHIBIT D shall have been executed
and delivered by the Purchasers.
(e) ESCROW AGREEMENT. An Escrow Agreement substantially in the
form attached hereto as EXHIBIT J shall have been executed and delivered by the
Purchasers.
(f) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement (except for such as may be properly
obtained subsequent to the Closing).
SECTION 6. MISCELLANEOUS.
6.1 USE OF PROCEEDS. The Company hereby covenants and agrees that the
proceeds from the sale of the Shares shall be used to finance working capital
requirements.
6.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in California.
6.3 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation and the closing of the transactions
contemplated hereby. All statements as to factual matters contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant hereto in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.
6.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
6.5 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules hereto,
the Investors' Rights Agreement, the Co-Sale Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties
14.
15
with regard to the subjects hereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements
except as specifically set forth herein and therein.
6.6 SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.7 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and holders of at least a majority of the Shares
(treated as if converted and including any Conversion Shares into which the
Shares have been converted that have not been sold to the public).
(b) The obligations of the Company and the rights of the holders
of the Shares and the Conversion Shares under the Agreement may be waived only
with the written consent of the holders of at least a majority of the Shares
(treated as if converted and including any Conversion Shares into which the
Shares have been converted that have not been sold to the public).
(c) Any amendment or waiver effected in accordance with this
Section 6.7 shall be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and the
Company.
6.8 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Investors'
Rights Agreement, the Co-Sale Agreement or the Restated Articles, shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Purchaser's part of any breach, default or noncompliance under this
Agreement or under the Restated Articles or any waiver on such party's part of
any provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, the Restated Articles, Bylaws, or
otherwise afforded to any party, shall be cumulative and not alternative.
6.9 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 sent by confirmed telex; (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 Company at the address as set
forth on the signature page hereof and to Purchaser at the address set forth on
EXHIBIT A attached hereto or at such other
15.
16
address as the Company or Purchaser may designate by ten days advance written
notice to the other parties hereto.
6.10 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
6.11 TITLES AND SUBTITLES. The titles of the sections and subsections of
the Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.
6.12 PRONOUNS. All pronouns contained herein and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the parties hereto may require.
6.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.14 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein, except that the Company shall be obligated
to pay BT Alex. Xxxxx Incorporated its fees pursuant to its engagement letter
with the Company related to this transaction and a warrant to purchase shares of
Common Stock of the Company upon the Closing. Each party hereto further agrees
to indemnify each other party for any claims, losses or expenses incurred by
such other party as a result of the representation in this Section 6.14 being
untrue.
6.15 CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
WHICH 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 THEREFOR
PRIOR TO SUCH QUALIFICATION OR IN THE ABSENCE OF AN EXEMPTION FROM SUCH
QUALIFICATION IS UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH CONSIDERATION BY THE
COMPANY, THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION FROM SUCH QUALIFICATION
BEING AVAILABLE.
[THIS SPACE INTENTIONALLY LEFT BLANK]
16.
17
IN WITNESS WHEREOF, the parties hereto have executed this SERIES D
PREFERRED STOCK PURCHASE AGREEMENT as of the date first above written.
COMPANY: XXXXX.XXX NETWORKS
By:/s/ Xxxxxxx XxXxxxxx
---------------------------------
Xxxxxxx XxXxxxxx, President
INVESTORS:
By:
---------------------------------
(Signature)
Title:
------------------------------
SIGNATURE PAGE
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
18
================================================================================
XXXXX.XXX NETWORKS
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
FIRST CLOSING ON JUNE 5TH, 0000 XXX XXXXXX XXXXXXX XX JULY 24TH, 1998
================================================================================
19
TABLE OF CONTENTS
PAGE
SECTION 1. AGREEMENT TO SELL AND PURCHASE................................................1
1.1 Authorization of Shares.......................................................1
1.2 Sale and Purchase.............................................................1
SECTION 2. CLOSING, DELIVERY AND PAYMENT.................................................2
2.1 Closing Date..................................................................2
2.2 Delivery......................................................................2
2.3 Subsequent Sales of Shares....................................................2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................2
3.1 Organization, Good Standing and Qualification.................................2
3.2 Capitalization; Voting Rights.................................................2
3.3 Authorization; Binding Obligations............................................3
3.4 Financial Statements..........................................................4
3.5 Liabilities...................................................................4
3.6 Agreements; Action............................................................4
3.7 Obligations to Related Parties................................................5
3.8 Changes.......................................................................5
3.9 Title to Properties and Assets; Liens, etc....................................6
3.10 Patents and Trademarks........................................................7
3.11 Compliance with Other Instruments.............................................7
3.12 Litigation....................................................................8
3.13 Tax Returns and Payments......................................................8
3.14 Employees.....................................................................8
3.15 Proprietary Information and Inventions Agreements.............................8
3.16 Obligations of Management.....................................................9
3.17 Registration Rights...........................................................9
3.18 Compliance with Laws; Permits.................................................9
3.19 Environmental and Safety Laws.................................................9
3.20 Offering Valid................................................................9
3.21 Full Disclosure...............................................................9
i.
20
TABLE OF CONTENTS
(CONTINUED)
PAGE
3.22 Qualified Small Business.....................................................10
3.23 Minute Books.................................................................10
3.24 Real Property Holding Corporation............................................10
3.25 Insurance....................................................................10
3.26 Small Business Concern.......................................................10
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.............................10
4.1 Requisite Power and Authority................................................10
4.2 Consents.....................................................................11
4.3 Investment Representations...................................................11
4.4 Transfer Restrictions........................................................12
SECTION 5. CONDITIONS TO CLOSING........................................................12
5.1 Conditions to Purchasers' Obligations at the Closing.........................12
5.2 Conditions to Obligations of the Company.....................................13
SECTION 6. MISCELLANEOUS................................................................14
6.1 Use of Proceeds..............................................................14
6.2 Governing Law................................................................14
6.3 Survival.....................................................................14
6.4 Successors and Assigns.......................................................14
6.5 Entire Agreement.............................................................14
6.6 Separability.................................................................15
6.7 Amendment and Waiver.........................................................15
6.8 Delays or Omissions..........................................................15
6.9 Notices......................................................................15
6.10 Attorneys' Fees..............................................................16
6.11 Titles and Subtitles.........................................................16
6.12 Pronouns.....................................................................16
6.13 Counterparts.................................................................16
6.14 Broker's Fees................................................................16
6.15 California Corporate Securities Law..........................................16
ii.
21
LIST OF EXHIBITS
Schedule of Purchasers Exhibit A
Restated Articles Exhibit B
Schedule of Exceptions Exhibit C
Amended and Restated Investors' Rights Agreement Exhibit D
Amended and Restated Co-Sale and Voting Agreement Exhibit E
List of Shareholders Exhibit F
Financial Statements Exhibit G
Proprietary Information and Inventions Agreement Exhibit H
Form of Legal Opinion Exhibit I
Escrow Agreement Exhibit J
iii.
22
EXHIBIT A
SCHEDULE OF PURCHASERS
SERIES D PREFERRED STOCK FINANCING
1ST CLOSING - JUNE 5, 1998 AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
ABS EMPLOYEES' VENTURE FUND LIMITED PARTNERSHIP 152,196 $500,724.84
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
ACHIEVER, INC. 30,395 $99,999.55
x/x Xxxxxxxxxxxxx Xxxxx & Xxxxxxxxxx
Xxx X-0000-Xxxxxxxxxxx Hse
Cumberland St.
Nassau, Bahamas
Attn: Xxx Xxxxxxxx
XXXXXX X. XXXXXXXX LIMITED FAMILY PARTNERSHIP 30,000 $98,700.00
0000 Xxxx Xxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
AVI CAPITAL L.P. 129,058 $424,600.82
Xxx Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
AVI SILICON VALLEY PARTNERS 1,474 $4,849.46
Xxx Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
ASSOCIATED VENTURE INVESTORS III 21,444 $70,550.76
Xxx Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
EXHIBIT A
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXXX X. XXXX 48,000 $157,920.00
c/o United Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
XXXXX FAMILY, L.C. 6,079 $19,999.91
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxx III
W. XXXXX XXXXX III 6,079 $19,999.91
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
XXXXXXXX XXXX XXXXX, TRUSTEE XXXXXXXX XXXX XXXXX 15,200 $50,008.00
FAMILY TRUST U/D/T DTD. 10/30/87
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXXX XXXXX 15,197 $49,998.13
00 Xxxxx Xxx Xxxxx
Xxxxxxxx, XX 00000-0000
XXXXXXX XXXXXX 15,197 $49,998.13
C/o Standard Mortgage Holding Company
000 Xxxxx, Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
XXXX X. XXXXX, XX. 30,395 $99,999.55
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
J&T INVESTMENTS 30,395 $99,999.55
c/o Xxxx X. Xxxxxxxx and Xxxxxx Xxxxx
00000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
XXXX XXXX 30,395 $99,999.55
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXX X. XXXX 19,000 $62,510.00
0 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
XXXXX XXXXXXXX 45,595 $150,007.55
00 Xxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000-0000
XXXXX XXXXXXX & ASSOCIATES, INC. 9,118 $29,998.22
c/o Dauphin Capital Partners
0000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
3GT INVESTMENT PARTNERSHIP 60,790 $199,999.10
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxxx
XXXXXX X. XXXX 30,395 $99,999.55
00000 Xxxxxxxx Xxxx
Xx. Xxxx, XX 00000-0000
THE XXXXX XXXXXXX FAMILY TRUST 30,395 $99,999.55
0000-X Xxxxxxxxx Xxxx Xxxxxxxxx
Xxx Xxx Xxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
D.W.B. ASSOCIATES 3,039 $9,998.31
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxx III
XXXXXX XXXX AND XXXXX XXXX 40,000 $131,600.00
0 Xxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
ESSEX HIGH TECHNOLOGY FUND, L.P. 34,350 $113,011.50
C/o Essex Investment Management Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxx
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
ESSEX HIGH TECHNOLOGY FUND (BERMUDA), L.P. 148,020 $486,985.80
C/o Essex Investment Management Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxx
FANAROFF INVESTMENT PARTNERSHIP 30,395 $99,999.55
0000 Xxxxxxxxx Xxxx, Xxx. 0000
Xxxxxxxxx, XX 00000
XXXXXXXX X. XXXXXX, XX. 49,665 $163,397.85
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXXX X. XXXXXXXX, TRUSTEE, 1993 REVOCABLE TRUST 22,796 $74,998.84
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
XXX X. XXXXXXXXX 30,395 $99,999.55
c/o Bagel Bros.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000-0000
XXXXXX X. XXXXXXXXX 30,395 $99,999.55
c/o Bagel Bros.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000-0000
XXXXXXX XXXXXX 3,040 $10,001.60
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
MARESOL L.P. 30,395 $99,999.55
c/o Xxxxx Xxxxxxxxx
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
GREENWOOD EQUITIES, LLC 48,632 $159,999.28
c/o Piper & Marbury
00 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxxx
26
1ST CLOSING - JUNE 5, 1998 AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXXX X. XXXX, XX. 20,000 $65,800.00
c/x Xxxx & Xxxxxxx
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
H & K PARTNERSHIP 30,395 $99,999.55
c/o Xxxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
JPK PARTNERS 258,359 $850,001.11
c/o Argonaut Securities Co.
0000 Xxxxxxx Xxxxxx, XX0
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx, Jr.
XXXXX X. XXXXXXXX 30,395 $99,999.55
c/o Stonemaker Ent., Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx-Xxxxx, XX 00000
XXXXX XXXXXXXXXX 30,395 $99,999.55
00 Xxxxx Xxx
Xxxxxxxx, XX 00000
XXXXXX XXXXX 30,395 $99,999.55
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
LINCOLN TRUST COMPANY 30,000 $98,700.00
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
H. XXXX LUNENBURG 30,000 $98,700.00
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
XXX XXXXX 30,395 $99,999.55
00000 Xx Xxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXXXX-XXXXX COMPANY 24,316 $79,999.64
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxx III
XXXXXX XXXXXX, XX. 50,000 $164,500.00
000 Xxxxxx Xxx
Xxxxxxxx, XX 00000
XXXXXXX X. XXXXXX 15,197 $49,998.13
c/x Xxxxxx Associates
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
XXXXXX AND PEARL NIPON 30,395 $99,999.55
00 X. Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
NORTHPORT PRIVATE EQUITY, LLC 30,395 $99,999.55
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
XXXXX PACK 30,395 $99,999.55
000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
XXXXX X. XXXXX 15,197 $49,998.13
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
XXXXXXX AND XXXXXX XXXXXXX, AS COMMUNITY PROPERTY 15,197 $49,998.13
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
G. XXXXXXX XXXXXX 6,079 $19,999.91
0000 Xx. Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
PHOENIX SMALL CAP FUND 455,930 $1,500,009.70
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXX X. XXXXXX 10,000 $32,900.00
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
PRISM IV INVESTMENT PARTNERSHIP 33,435 $110,001.15
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
RAINBOW TRADING PARTNERS, LTD. 49,665 $163,397.85
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
RAINBOW TRADING VENTURE PARTNERS, L.P. 52,640 $173,185.60
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
XXXXXX X. XXXXXXXXX 45,595 $150,007.55
c/o Regal Capital
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXXX X. XXXXXX, XX. 15,197 $49,998.13
Xxxx Xxxxxx Xxx 00000
Xxxxx Xxxxx, XX 00000
XXXX XXXXXX 15,197 $49,998.13
Xxxx Xxxxxx Xxx 00000
Xxxxx Xxxxx, XX 00000
RODALE PRESS, INC. 911,855 $3,000,002.95
00 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
XXXX ROME 30,395 $99,999.55
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
XXXXXXXX X. XXXXX 30,395 $99,999.55
x/x Xxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxx, XX 00000
XXXXX X. XXXXX 30,395 $99,999.55
000 Xxxxxxxxx Xxxx
Xxxx Xxxxxx Xxx 000
Xxxx Xxxxxxx, XX 00000
XXXXXXX XXXXX 30,395 $99,999.55
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
XXXXXX X. XXXXXX 45,595 $150,007.55
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
XXXXX XXXXXXX 10,000 $32,900.00
00000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX 23,000 $75,670.00
00000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
THE SPRINGS COMPANY 80,000 $263,200.00
P. O. Drawer 460
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
STANDARD MORTGAGE HOLDING CORPORATION 45,595 $150,007.55
000 Xxxxx, Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
XXXXXXX AND XXXXXXX XXXXXX III 30,395 $99,999.55
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
TECHNOLOGY FUNDING PARTNERS III, L.P. 121,581 $400,001.49
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
TECHNOLOGY FUNDING VENTURE PARTNERS, IV, AN 91,185 $299,998.65
AGGRESSIVE GROWTH FUND, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
TECHNOLOGY FUNDING VENTURE PARTNERS V, AN 15,199 $50,004.71
AGGRESSIVE GROWTH FUND, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
XXXXXXXX PRIVATE PLACEMENT OPPORTUNITY FUND, LLP 30,400 $100,016.00
c/x Xxxxxxx Smullian & Xxxxxxxxxx
00 Xxxx Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
XXXX XXXXXX 1,520 $5,000.80
C/o BT Alex. Xxxxx Incorporated
0000 Xxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
TRIVENTURES 30,395 $99,999.55
000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
TURTLE & COMPANY 30,396 $100,002.84
Xxxxxxxx Xxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
c/x Xxxxxx and Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
XXXX XXXXXXX XXXXXXXXX 30,395 $99,999.55
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
00
0XX XXXXXXX - XXXX 0, 0000 XXXXXXXXX
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
MEDIAONE INTERACTIVE SERVICES, INC. 607,903 $2,000,000.87
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
XXXXXXXXX PARTNERS, L.P. 60,000 $197,400.00
00 Xxxx Xxxxxx Xxxx
Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
XXXXXXX XXXXXX INSTITUTIONAL FUND, INC. - SMALL 455,927 $1,499,999.83
COMPANIES GROWTH PORTFOLIO
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
WARBURG PINCUS POST-VENTURE CAPITAL 227,964 $750,001.56
FUND, INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
XXXXXXX XXXXXX TRUST, INC. POST-VENTURE 75,988 $250,000.52
CAPITAL PORTFOLIO
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
WILLOU & CO. 121,976 $401,301.04
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
WOMEN, LLC 551,672 $1,815,000.88
000 Xxxxx Xxxxx Xxxxxxx
Xxxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
32
1ST CLOSING - JUNE 5, 1998 AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------- ------ --------------
WOMEN'S GROWTH CAPITAL FUND I, LLP 182,370 $599,997.30
0000 - 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
TOTALS: 6,515,974 $21,437,554.46
33
2ND CLOSING - JULY 24, 1998 AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
------------- ------ ----------
XXXX XXXXXXXX 30,395 $99,999.55
000 Xxx Xxxxx
Xxxx, XX 00000
------------------------------------------------------------------------------------------
2ND CLOSING TOTAL 30,395 $99,999.55
------------------------------------------------------------------------------------------
AGGREGATE TOTAL 6,546,369 $21,537,554.01
------------------------------------------------------------------------------------------
