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EXHIBIT 10.7
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of July, 1998, by and among REQUISITE TECHNOLOGY, INC., a
Delaware corporation (the "Company"), and X.X. Xxxxxxxx, Inc., an Illinois
corporation (the "Stockholder").
WITNESSETH:
WHEREAS, in connection with the sale of the Company's Series D
Preferred Stock to the Stockholder pursuant to that certain Series D Preferred
Stock Purchase Agreement of even date herewith (the "Purchase Agreement"), the
Company and the Stockholder desire to enter into this Agreement to provide for
certain transfer and other restrictions on such shares as set forth below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
CERTAIN DEFINITIONS
1.1 COMMON STOCK. Common Stock shall mean the Company's Common Stock,
$.001 par value per share.
1.2 QUALIFIED PUBLIC OFFERING. Qualified Public Offering shall mean the
Company's first firm commitment underwritten public offering of its Common Stock
registered under the Securities Act in which (i) the per share price is at least
$8.00 per share (as adjusted for stock splits, combinations and the like) and
(ii) the gross cash proceeds to the Company before deducting underwriting,
discounts, commissions, and fees) are at least $7,500,000.
1.3 SALE. A Sale shall mean (i) any consolidation or merger of the
Company with or into any other corporation or other entity or person, or any
other corporate reorganization, in which the stockholders of the Company
immediately prior to such consolidation, merger or reorganization, own less than
50% of the Company's voting power immediately after such consolidation, merger
or reorganization, or any transaction or series of related transactions in which
in excess of fifty percent (50%) of the Company's voting power is transferred,
or (ii) a sale, lease or other disposition of all or substantially all of the
assets of the Company.
1.4 SECURITIES ACT. Securities Act shall mean the Securities Act of
1933, as amended.
1.5 STOCKHOLDER SHARES. Stockholder Shares shall mean all shares of
voting capital stock of the Company now owned or hereinafter acquired by the
Stockholder registered in its names or beneficially owned by it as of the date
hereof (and any and all other securities of the Company legally or beneficially
acquired by the Stockholder after the date hereof). In the event that subsequent
to the date of this Agreement any shares or other securities (other than any
shares or securities of another corporation issued to the Company's stockholders
pursuant to a plan of merger) are issued on, or in exchange for, any of the
Stockholder Shares by reason of any stock
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dividend, stock split, consolidation of shares, reclassification or
consolidation involving the Company, such shares or securities shall be deemed
to be Stockholder Shares, as the case may be, for purposes of this Agreement.
ARTICLE 2
STANDSTILL PROVISION
2.1 STANDSTILL. Other than pursuant to the exercise of its rights
pursuant to Section 4 of the Second Amended and Restated Investor Rights
Agreement, dated as of the date hereof, as such agreement may be supplemented,
modified or amended from time to time, the Stockholder will not, and will cause
each of its subsidiaries, parents and other affiliates not to, purchase, acquire
or own, or offer or agree to purchase, acquire or beneficially own, directly or
indirectly, any Common Stock (or any securities convertible, exercisable or
exchangeable into shares of Common Stock), or enter into any arrangements or
understandings with any third party to do any of the foregoing, without the
prior written consent of the Company.
2.2 RIGHTS OF FIRST REFUSAL. The Company and the Stockholder
acknowledge that the Stockholder is a party to that certain Second Amended and
Restated Investor Rights Agreement, of even date herewith (as amended from time
to time, the "Investor Rights Agreement"), pursuant to which Stockholder is
entitled to certain Rights of First Refusal set forth in Section 4 thereof for
so long as Stockholder is a "Major Investor" thereunder. The Company and the
Stockholder agree that the Stockholder shall not be entitled to exercise its
right to acquire any unsubscribed shares pursuant to the first two sentences of
Section 4.3 of the Investor Rights Agreement unless such acquisition has been
approved in writing by the Company's Board of Directors.
ARTICLE 3
DRAG ALONG PROVISION
3.1 DRAG ALONG. In the event that (i) the Board of Directors of the
Company and (ii) the holders of a majority of the outstanding shares (other than
the Stockholder Shares) of the Company (the "Requisite Holders") approve a Sale
of the Company (an "Approved Sale"), then the Stockholder shall consent to and
raise no objections against the Approved Sale. If the Approved Sale is
structured as a merger or consolidation of the Company, or a sale of all or
substantially all of the Company's assets, the Stockholder shall waive any
dissenters' rights, appraisal rights or similar rights in connection with such
merger, consolidation or asset sale. If the Approved Sale is structured as a
sale of the stock of the Company, the Stockholder shall sell the Stockholder
Shares on the terms and conditions approved by the Requisite Holders. The
Stockholder shall take all necessary and desirable actions approved by the
Requisite Holders in connection with the consummation of the Approved Sale to
effectuate the allocation and distribution of the aggregate consideration upon
the Approved Sale.
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ARTICLE 4
LEGEND AND OTHER MATTERS
4.1 LEGEND.
(a) Concurrently with the execution of this Agreement, there
shall be imprinted or otherwise placed, on certificates representing the
Stockholder Shares a restrictive legend in substantially the following form (the
"Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN INVESTMENT AGREEMENT WHICH PLACES
CERTAIN RESTRICTIONS ON THE SHARES REPRESENTED HEREBY. ANY
PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED
TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SUCH AGREEMENT. A COPY OF SUCH INVESTMENT AGREEMENT WILL BE
FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE UPON WRITTEN REQUEST TO REQUISITE TECHNOLOGY, INC. AT
ITS PRINCIPAL PLACE OF BUSINESS."
(b) The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed (upon
registration of transfer, reissuance of otherwise), the Legend from any such
certificate and will place or cause to be placed the Legend on any new
certificate issued to represent Stockholder Shares therefore represented by a
certificate carrying the Legend.
4.2 SUCCESSORS. The provisions of this Agreement shall be binding upon
the successors in interest to any of the Stockholder Shares. The Company shall
not permit the transfer of any of the Stockholder Shares on its books or issue a
new certificate representing any of the Stockholder Shares unless and until the
person to whom such security is to be transferred shall have executed a written
Agreement, substantially in the form of this Agreement, or a counterpart
signature page hereto, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if such person
were a Stockholder.
4.3 OTHER RIGHTS. Except as provided by this Agreement, the Stockholder
shall exercise the full rights of a stockholder with respect to the Stockholder
Shares.
ARTICLE 5
TERMINATION
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5.1 Except as provided below, this Agreement shall continue in full
force and effect from the date hereof through the earliest of the following
dates, on which it shall terminate in its entirety:
(a) ten (10) years from the date of this Agreement; or
(b) the date as of which the Company and the Stockholders
hereto terminate this Agreement by written consent.
Notwithstanding the foregoing, Section 2 hereof shall terminate in its
entirety upon the earlier to occur of (i) the date of the closing of the
Qualified Public Offering and (ii) July 1, 2003.
ARTICLE 6
MISCELLANEOUS
6.1 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
6.2 GOVERNING LAW. This Agreement, and the rights of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of Colorado as such laws apply to agreements among Colorado residents made
and to be performed entirely within the State of Colorado, except that the
General Corporation Law of the State of Delaware shall govern as to matters of
corporate law.
6.3 AMENDMENT. This Agreement may be amended only by an instrument in
writing signed by the Company and the Stockholders.
6.4 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
6.5 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
6.6 ENTIRE AGREEMENT. This Agreement, the exhibits and schedules
hereto, the Purchase Agreement and the other documents delivered pursuant
thereto, constitute the full and entire understanding and agreement between the
parties with regard to the subject hereof.
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6.7 COUNTERPARTS. This Agreement may be delivered via facsimile and may
be executed in one or more counterparts, each of which will be deemed an
original but all of which together shall constitute one and the same agreement.
6.8 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
6.9 ATTORNEY'S FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party shall be
entitled to all costs and expenses of maintaining such suit or action, including
reasonable attorneys' fees.
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IN WITNESS WHEREOF, the parties hereto have executed this INVESTMENT
AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY: STOCKHOLDER:
REQUISITE TECHNOLOGY, INC. X.X. XXXXXXXX, INC.
By: /s/ XXXXXXX XXXXX By: /s/ XXXX X. XXXXXXX
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Xxxxxxx Xxxxx Name: Xxxx X. Xxxxxxx
President and Chief Executive Officer ---------------------------------------------
Title: Senior Vice President, Business
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Development & International
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Address: 0000 Xxxxx Xxxx Xxxxxx Address: 000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxx 000X Xxxxxxxxxxxx, XX 00000-0000
Xxxxxxx, XX 00000
Investment Agreement
