EXHIBIT 10.1
XXXXXXXXX.XXX, INC.
-------------------
STOCK PURCHASE AGREEMENT
------------------------
This Stock Purchase Agreement (this "Agreement") is made as of July 30,
---------
2000 by and among xxxxxxxxx.xxx, inc., a Delaware corporation (the "Company"),
and the investors listed on Schedule I attached hereto (each a "Purchaser" and
---------
together the "Purchasers").
----------
The parties hereby agree as follows:
1. Purchase and Sale of Common Stock.
---------------------------------
1.1 Sale and Issuance of Common Stock.
---------------------------------
1.2 Subject to the terms and conditions of this Agreement, each of
the Purchasers agrees to purchase and the Company agrees to sell and issue to
such Purchaser that number of shares of Common Stock, par value $0.0001, of the
Company (the "Common Stock"), determined by dividing the Purchase Commitment
------------
listed opposite such Purchaser's name on Schedule I by $4.9375. The Company
shall have the right to amend Schedule I hereto to add additional Purchasers at
any time prior to the Closing, and any such Purchasers shall become parties to
this Agreement. The shares of Common Stock issued to the Purchasers pursuant to
this Agreement are hereinafter referred to as the "Stock."
----
(a) The Common Stock shall have the rights and restrictions as
set forth in the Amended and Restated Certificate of Incorporation of
xxxxxxxxx.xxx, inc. (the "Restated Certificate") attached hereto as Exhibit A.
-------------------- ---------
(b) The parties hereto acknowledge that, concurrently
herewith, the Company is entering into a Series 1 Preferred Stock Purchase
Agreement with the several purchasers listed on Schedule I thereto (the
"Preferred Stock Purchase Agreement"), pursuant to which such purchasers have
----------------------------------
agreed to purchase, subject to the terms and conditions of the Preferred Stock
Purchase Agreement, at least 45,939 shares of Series 1 Preferred Stock, par
value $0.0001 per share, of the Company (the "Series 1 Preferred Stock"), having
------------------------
the rights, privileges, preferences and restrictions set forth in the
Certificate of Designations of the Series 1 Preferred Stock attached hereto as
Exhibit B (the "Certificate of Designations.") Upon the receipt of the approval
--------- ---------------------------
of the stockholders of the Company, the shares of Series 1 Preferred Stock shall
be converted into shares of Common Stock.
1.3 Closing; Delivery.
-----------------
(a) The purchase and sale of the Stock shall take place at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx (or such other location mutually agreeable
to the parties hereto) no later than 5 business days after the satisfaction or
(subject to applicable law) waiver of the
conditions set forth in Sections 4 and 5 (excluding conditions that, by their
terms, cannot be satisfied until the Closing) (which time and place are
designated as the "Closing").
-------
(b) At the Closing, the Company shall deliver to each Purchaser
a certificate or certificates for the number of shares of the Stock to be
purchased by such Purchaser pursuant to this Agreement against delivery of the
consideration therefor, by wire transfer of immediately available funds to the
Company's bank account.
2. Representations and Warranties of the Company. The Company hereby
---------------------------------------------
represents and warrants to each Purchaser that:
2.1 Good Standing. Each of Company and its Subsidiaries (i) is a
-------------
a corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation; (ii) has the power and authority to own,
lease and operate its properties and carry on its business as now conducted; and
(iii) is duly qualified, licensed to do business and in good standing as a
foreign corporation in each jurisdiction where the failure to be so qualified
could reasonably be expected to have a material adverse effect on the business,
assets, operations or financial condition of the Company ("Material Adverse
----------------
Effect")
------
2.2 Capitalization.
--------------
(a) The authorized capital of the Company consists of
250,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock,
$0.0001 per share (the "Preferred Stock"). The Common Stock has the rights,
---------------
preferences and privileges set forth in the Company's Restated Certificate, and
the Preferred Stock has the rights, preferences and privileges set forth in the
Certificate of Designations.
(b) As of the date of this Agreement, 52,962,714 shares of
Common Stock and no shares of Preferred Stock are issued and outstanding. All of
the outstanding shares of Common Stock have been, and when issued and paid for
in accordance with the terms of this Agreement the Stock will be, validly
issued, duly authorized, fully paid and nonassessable, and issued in compliance
with all applicable federal and state securities laws (in the case of the
issuance of the Stock, based in part upon the representations of the Purchasers
in Sections 3.4, 3.5, 3.6, 3.7 and 3.8). All of the shares of Series 1 Preferred
Stock, when issued and paid for in accordance with the terms of the Preferred
Stock Purchase Agreement, will be validly issued, duly authorized, fully paid
and nonassessable, and issued in compliance with all applicable federal and
state securities laws (based in part upon the representations of the purchasers
thereof contained in the Preferred Stock Purchase Agreement).
(c) As of the date of this Agreement (i) 17,509,148 shares of
Common Stock are reserved for issuance under the Company's 1998 Stock Plan (of
which 8,000 shares have been issued pursuant to restricted stock agreements,
890,839 shares are issuable under outstanding options that are currently
exercisable, 10,367,423 shares are issuable under other outstanding options that
are not currently exercisable and 6,250,886 shares remain available for future
grants), (ii) 32,404 shares of Common Stock are reserved for issuance under the
Company's Xxxxxx.xxx Inc. Stock Plan (of which 9,606 shares are issuable under
outstanding options, all of which are currently exercisable and 22,798 remain
available for
2
future grants) and (iii) 1,000,000 shares of Common Stock are reserved for
issuance under the Company's 1999 Employee Stock Purchase Plan (of which 87,719
have been issued to date).
(d) Except for the conversion privileges of the Series 1 Preferred
Stock and except as set forth in (i) the warrant to purchase 500,000 shares of
Common Stock issued on June 26, 2000 to Tel-Drug, Inc. (the "Tel-Drug Warrant")
----------------
and (ii) the warrant to purchase 2,500,000 shares of Common Stock issued on July
30, 2000 to Xxxxxx.xxx, Inc. (the "Amazon Warrant"), as of the date of this
--------------
Agreement there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal or similar rights)
or agreements, oral or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
(e) The Stock shall constitute 14.25% of the Common Stock
outstanding as of the date of this Agreement, assuming (i) all warrants for
Common Stock outstanding as of the date of this Agreement have been exercised
for Common Stock, (ii) all options to purchase Common Stock outstanding as of
the date of this Agreement that are exercisable as of the date of this Agreement
have been exercised for Common Stock and (iii) all other rights outstanding as
of the date of this Agreement to acquire Common Stock or securities convertible
into Common Stock have been exercised for or converted into Common Stock. The
Company's only subsidiaries are DS Pharmacy, Inc., DS Non-Pharmaceutical Sales,
Inc., DS Distribution, Inc., DSGC Idaho, Inc., Xxxxxx.xxx, Inc. and Xxxxxx.xxx
Sales, Inc. (each a "Subsidiary" and together, the "Subsidiaries").
---------- ------------
2.3 Authorization. All corporate action on the part of the Company, its
-------------
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement and the Preferred Stock Purchase Agreement
(collectively, the "Agreements") and the performance of all obligations of the
----------
Company hereunder and thereunder and the authorization, issuance and delivery of
the Stock and the Series 1 Preferred Stock has been taken or will be taken prior
to the Closing (subject, in the case of the conversion of the Series 1 Preferred
Stock into Common Stock, to the receipt of the Stockholder Approval (as defined
herein)), and the Agreements, when executed and delivered by the Company, will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors' rights generally, as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies, and except
as may be limited by Section 6.2(c).
2.4 Valid Issuance of Stock. The Stock that will be issued to the
-----------------------
Purchaser at Closing will have been duly and validly reserved for issuance and,
when issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and nonassessable, and free of
restrictions on transfer other than restrictions on transfer under this
Agreement and applicable state and federal securities laws. Based in part upon
the representations of the Purchasers in this Agreement, the Stock will be
issued in compliance with all applicable federal and state securities laws. The
Common Stock issuable upon conversion of the Series 1 Preferred Stock has been
duly and validly reserved for issuance, and
3
upon issuance in accordance with the terms of the Certificate of Designations,
will be duly authorized, validly issued, fully paid and nonassessable and free
of restrictions on transfer other than restrictions on transfer under the
Preferred Stock Purchase Agreement and applicable federal and state securities
laws and will be issued in compliance with all applicable federal and state
securities laws.
2.5 Litigation. There is no action, suit, proceeding or
----------
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its subsidiaries that (i) questions the validity
of the Agreements or the right of the Company or any of its subsidiaries, as
applicable, to enter into them, or to consummate the transactions contemplated
hereby or thereby nor is the Company aware that there is any basis for the
foregoing or (ii) if adversely determined, would have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries is a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality that (i) challenges the validity of the
Agreements or the right of the Company or any of its subsidiaries, as
applicable, to enter into this Agreement, or to consummate the transactions
contemplated hereby and thereby or (ii) would have a Material Adverse Effect.
2.6 Liabilities. The Company and its subsidiaries, on a consolidated
-----------
basis, have no liabilities and there are no contingent liabilities, required by
generally accepted accounting principles to be disclosed on a balance sheet but
that are not disclosed on the Company's audited balance sheet as of January 2,
2000 and/or on the Company's unaudited balance sheet as of July 2, 2000 except
liabilities that would not have a Material Adverse Effect. Subsequent to July
2, 2000, the Company and its subsidiaries, on a consolidated basis, have not
incurred any liabilities or any contingent liabilities required by generally
accepted accounting principles to be disclosed on the Company's balance sheet
except liabilities that would not have a Material Adverse Effect.
2.7 Compliance with Other Instruments. The execution, delivery and
---------------------------------
performance of the Agreements and the consummation of the transactions
contemplated hereby and thereby will not result in any violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a default under or cause acceleration under any provision of the
Restated Certificate or the bylaws of the Company or any instrument, judgment,
order, writ, decree or contract to which the Company or any of its Subsidiaries
is a party or by which it is bound, or any provision of any federal or state
statute, rule or regulation applicable to the Company or any of its
Subsidiaries, the effect of which would (i) have a Material Adverse Effect, (ii)
materially and adversely affect the ability of the Company and its Subsidiaries
to perform their respective obligations under the Agreements or (iii) result in
the creation of any material lien, charge or encumbrance upon any assets of the
Company or any of its Subsidiaries.
2.8 Material Agreements. The Company has filed with the SEC all
-------------------
agreements in existence as of the date of this Agreement that (a) define or
affect the rights of security holders of the Company in their capacity as
security holders including, but not limited to, such security holders' voting
rights, registration rights or standstill rights or obligations, other than (i)
the Agreement dated June 23, 2000 between the Company and WellPoint Health
4
Networks Inc., (ii) the Tel-Drug Warrant and (iii) the Amazon Warrant or (b) are
required to be filed under Item 601 of Regulation S-K.
2.9. Financial Statements. The financial statements of Company that
--------------------
have been delivered to the Investors (including those for the period ended July
2, 2000), (i) are in accordance with the books and records of Company and its
Subsidiaries, which have been maintained in accordance with good business
practice; (ii) have been prepared in conformity with GAAP (except as discussed
therein, the absence of footnotes for all unaudited periods and, in the case of
audited financial statements, as approved by the relevant firm of accountants);
and (iii) fairly present the consolidated financial position of Company as of
the dates presented therein and the results of operations, changes in financial
positions or cash flows, as the case may be, for the periods presented therein
(except, in the case of financial statements for the period ended July 2, 2000,
for normal year-end audit adjustments). None of the Company or any of the
Company's Subsidiaries has any contingent obligations, liability for taxes or
other outstanding obligations that are material in the aggregate, except as
disclosed in the unaudited financial statements for the period ended July 2,
2000 (except for normal year-end audit adjustments). None of the Company or its
Subsidiaries has any contingent obligations or liability for taxes that are
material in the aggregate and that would be required to be reflected or reserved
against in the latest balance sheet of the Company, except as disclosed in the
unaudited financial statements for the period ended July 2, 2000 (except for
normal year-end audit adjustments).
2.10. Investment Company. None of Company or its Subsidiaries is
------------------
subject to regulation under the Investment Company Act of 1940, or to any
federal or state statute or regulation limiting its ability to incur
indebtedness.
2.11. SEC Reporting; Information Provided. As of the date each was
-----------------------------------
filed, none of the Company's registration statements, reports or other filings
made with the Securities and Exchange Commission, contained any untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Neither this agreement nor any document, certificate or
instrument furnished to any of the Purchasers by or on behalf of the Company
when taken in conjunction with any supplemental or revised information furnished
to any of the Purchasers in writing prior to the date hereof contains any untrue
statement of a material fact or omits, or will omit, to state a material fact
necessary to make the statements in such documents, certificates, instruments or
other information provided, in light of the circumstances in which they were
made, not misleading, except that with respect to any projected financial
information, the Company only represents that it was prepared in good faith and
the Company reasonably believes that the assumptions made in preparing such
projections were reasonable as of the date of such projections.
2.12. Absence of Certain Changes. Since July 2, 2000, no event has
--------------------------
occurred and no condition exists which would have a Material Adverse Effect,
other than (i) any change in the price of the Common Stock or (ii) changes in
general economic conditions or conditions affecting the Company's industry
generally.
5
2.13. Real Property Holding Company. The Company is not, and has
-----------------------------
not been, a "United States real property holding corporation" within the meaning
of Section 897(c)(2) of the Internal Revenue Code of 1986, as amended (the
"Code"), during the applicable period described in Section 897(c)(1)(A)(ii) of
----
the Code.
2.14 Form S-3 Eligibility. The Company and the transactions
---------------------
contemplated by Section 6.2 of this Agreement meet the requirements for using
Form S-3 under the Securities Act for resale.
3. Representations and Warranties of the Purchasers. Each Purchaser
------------------------------------------------
hereby represents and warrants to the Company with respect to itself that:
3.1 Authorization. Such Purchaser has full power and authority to
-------------
enter into and deliver this Agreement, and this Agreement, when executed and
delivered by the Purchaser, will constitute a valid and legally binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and except as may be limited by Section 6.2(c)..
3.2 Litigation. There is no action, suit, proceeding or
----------
investigation pending or, to the Purchaser's knowledge, currently threatened
against the Purchaser or any of its subsidiaries that questions the validity of
this Agreement or the right of the Purchaser or any of its subsidiaries, as
applicable, to enter into this Agreement, or to consummate the transactions
contemplated hereby nor is the Purchaser aware that there is any basis for the
foregoing. Neither the Purchaser nor any of its subsidiaries is a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality that challenges the validity
of this Agreement or the right of the Purchaser or any of its subsidiaries, as
applicable, to enter into this Agreement, or to consummate the transactions
contemplated hereby.
3.3 Compliance with Other Instruments. The execution, delivery and
---------------------------------
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any provision of the governing documents of the Purchaser or any
instrument, judgment, order, writ, decree or contract to which the Purchaser or
any of its subsidiaries is a party or by which it is bound, or any provision of
any federal or state statute, rule or regulation applicable to the Purchaser or
any of its subsidiaries, the effect of which would have a material adverse
effect on the ability of the Purchaser and its subsidiaries to perform their
respective obligations under this Agreement or result in the creation of any
lien, charge or encumbrance upon any assets of the Purchaser or any of its
subsidiaries.
3.4 Purchase Entirely for Own Account. This Agreement is made with
---------------------------------
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by
6
the Purchaser's execution of this Agreement, the Purchaser hereby confirms, that
the Stock to be acquired by the Purchaser will be acquired for investment for
the Purchaser's own account, not as a nominee or agent, and not with a view to
the resale or public distribution of any part thereof in violation of any
requirements of the Securities Act of 1933, as amended (the Securities Act") or
--------------
applicable state securities laws. The Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing any Stock
purchased hereunder, including, without limitation, entering into any
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Stock, whether any such transaction is to be
settled by delivery of Common Stock or other securities, in cash or otherwise.
By executing this Agreement, the Purchaser further represents that the Purchaser
does not presently have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to such person or to any
third person, with respect to any of the Stock.
3.5 Disclosure of Information. The Purchaser (i) has had an
-------------------------
opportunity to discuss the Company's business, management, financial affairs and
the terms and conditions of the offering of the Stock with the Company's
management and (ii) has had an opportunity to review the Company's facilities.
The Purchaser understands that such discussions and reviews, as well as any
written information delivered by the Company to the Purchaser, were intended to
describe the aspects of the Company's business that it believes to be material.
3.6 Restricted Securities. The Purchaser understands that the Stock
---------------------
has not been, and will not be, registered under the Securities Act, by reason of
a specific exemption from the registration provisions of the Securities Act that
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations as expressed herein. The
Purchaser understands that the shares of Stock are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the shares of Stock indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Purchaser acknowledges that the Company has no
obligation to register or qualify the Stock for resale except as set forth in
Section 6.2 hereof. The Purchaser further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Stock, and on requirements relating to the Company that
are outside of the Purchaser's control, and that the Company is under no
obligation, and may not be able, to satisfy.
3.7 Legends. The Purchaser understands that the Stock, and any
-------
securities issued in respect thereof, may bear one or all of the following
legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM
7
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(b) Any legend required by the "Blue Sky" laws of any state to
the extent such laws are applicable to the shares represented by the certificate
so legended.
3.8 Accredited Investor. The Purchaser is an accredited investor as
-------------------
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4. Conditions of the Purchasers' Obligations at Closing. The obligations
----------------------------------------------------
of the Purchasers to the Company under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived by each Purchaser:
4.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company shall be true and correct on and as of the date of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing (except with respect to the
representations and warranties contained in Section 2.2(b), 2.2(c) and the first
sentence of Section 2.2(e), which shall be true and correct in all material
respects as of the date of the Closing).
4.2 Performance. The Company shall have performed and complied with
-----------
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing and the Company shall have obtained any and all consents, permits
and waivers necessary or appropriate for consummation of the transactions
contemplated by the Agreements.
4.3 Reservation of Shares. The Stock issuable pursuant to this
---------------------
Agreement shall have been duly authorized and reserved for issuance at the
Closing.
4.4 Compliance Certificate. The President of the Company shall
----------------------
deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 4.1, 4.2 and 4.3 have been fulfilled.
4.5 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 Stock pursuant to this Agreement shall be obtained and effective as of the
Closing including, without limitation, the expiration or termination of all
waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976,
as amended (the "HSR Act").
-------
4.6 Opinion of Company Counsel. The Purchasers at the Closing shall
--------------------------
have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, an
opinion dated as of the Closing covering the matters set forth on Exhibit C.
---------
4.7 Preferred Stock Purchase Agreement. The Company and the
----------------------------------
purchasers parties thereto shall have executed and delivered the Preferred Stock
Purchase Agreement covering the purchase of at least 45,939 shares of Series 1
Preferred Stock.
8
4.8 Delivery of Lockup Agreements. Each person listed on Exhibit D
----------------------------- ---------
hereto shall have executed and delivered to the Company a lockup agreement in
the form attached hereto as Exhibit F (each, a "Lockup Agreement.")
--------- ----------------
4.9 Delivery of Voting Agreements. Each person listed on Exhibit E
----------------------------- ---------
hereto shall have executed and delivered to the Purchasers a voting agreement in
the form attached hereto an Exhibit G (each, a "Voting Agreement") to the effect
--------- ----------------
that such person will vote its shares of Common Stock at the Stockholder Meeting
(as defined) in favor of the approval of the issuance of the Common Stock
issuable upon conversion of the Series A Preferred Stock. The persons
delivering Voting Agreements shall represent a majority of the Common Stock.
4.10. Minimum Investment at Closing. At the Closing, Purchasers
-----------------------------
investing at least $62,682,825 in the aggregate in the Company under the
Agreements shall have wired their respective investments in the Company into an
escrow account maintained by Xxxxxxx, Phleger & Xxxxxxxx or an escrow agent
mutually agreeable to the Company and purchasers of a majority of the Stock for
delivery to the Company (or with respect to amounts to be wired by Hearst
Communications Corp., as may be mutually agreed between Hearst Communications
Corp. and the Purchasers), before any Purchaser is obligated to close.
4.11 Opinion of General Counsel to the Company. The Purchasers at
-----------------------------------------
the Closing shall have received from the General Counsel of the Company an
opinion dated as of the Closing covering the matters set forth on Exhibit H.
---------
5. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company to the Purchasers under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Purchasers contained in Section 3 shall be true and correct in
all material respects on and as of the date of the Closing with the same effect
as though such representations and warranties had been made on and as of the
date of the Closing (except to the extent such representations and warranties
speak as of the date of this Agreement, in which case they shall be true and
correct in all material respects on and as of the date of this Agreement).
5.2 Performance. All covenants, agreements and conditions contained
-----------
in this Agreement to be performed by the Purchasers on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 Compliance Certificate. A senior executive officer of each of the
----------------------
Purchasers shall deliver to the Company at the Closing a certificate certifying
that the conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.4 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
Stock pursuant to this Agreement shall be obtained and effective as of the
Closing including, without limitation, the expiration or termination of all
waiting periods under the HSR Act.
9
5.5 Preferred Stock Purchase Agreement. The Company and the purchasers
----------------------------------
parties thereto shall have executed and delivered the Preferred Stock Purchase
Agreement covering the purchase of at least 45,939 shares of Series 1 Preferred
Stock.
5.6 Delivery of Lockup Agreements. Each person listed on Exhibit D
-----------------------------
hereto shall have executed and delivered to the Company a Lockup Agreement.
5.7 Delivery of Voting Agreements. Each person listed on Exhibit D
----------------------------
hereto shall have executed and delivered to the Purchasers a Voting Agreement.
The persons delivering Voting Agreements shall represent a majority of the
Common Stock.
6. Covenants.
---------
6.1 HSR Act Filings. As soon as practicable after the execution of
---------------
this Agreement, the Company and each relevant Purchaser will separately file
with the Antitrust Division of the United States Department of Justice and the
United States Federal Trade Commission pursuant to the HSR Act all requisite
documents and notifications in order to provide for the issuance and sale of the
Stock pursuant to this Agreement. The parties will cooperate and coordinate with
one another in exchanging information and providing reasonable assistance as the
other party may request in connection with the foregoing.
6.2 Registration Rights. (a) The Company hereby agrees: (i) to use its
-------------------
best efforts to file a resale shelf registration statement (the "Registration
------------
Statement") under the Securities Act as soon as reasonably practicable covering
---------
resales of the Stock by the Purchasers and resales of the Common Stock issuable
upon conversion of the Series 1 Preferred Stock pursuant to the Preferred Stock
Purchase Agreement, (ii) to use its best efforts to cause the Registration
Statement to be declared effective as soon as reasonably practicable but in any
event within 60 days of the Closing and (iii) to maintain the effectiveness of
the Registration Statement until the earlier of (x) the eighteen month
anniversary of the effective date of the Registration Statement and (y) the date
on which all shares of Stock have been resold by the Purchasers. At any time
when the Registration Statement is effective, the Board of Directors of the
Company may determine, as indicated in a certificate signed by any Director of
the Company, the Chief Financial Officer of the Company or the Secretary of the
Company, to suspend offers and sales by Purchasers under the Registration
Statement if an event has occurred or is reasonably likely to occur that would
require additional disclosure by the Company and that the Company has a bona
fide business purpose for keeping confidential, and the nondisclosure of which
would reasonably be expected to cause the Registration Statement to fail to
comply with applicable disclosure requirements. The Company shall give the
Purchasers written notice of the Board of Directors' determination and the
Purchasers agree to suspend offers and sales under the Registration Statement
until the Company has delivered a subsequent notice to the Purchasers revoking
its prior notice; provided, however, that the eighteen month period during which
-------- -------
the Registration Statement is required to be effective shall be extended by the
number of days of such suspensions. The Company may not revoke the ability of
Purchasers to make offers and sales under the Registration Statement more than
three times or for more than 90 days in the aggregate.
(b) For the period during which the Registration Statement is effective,
the
10
Company shall:
(i) furnish to the Purchaser with respect to the Stock registered
under the Registration Statement (and to each underwriter, if any, of such
Stock) such reasonable number of copies of prospectuses in order to
facilitate the public sale or other disposition of all or any of the Stock
by the Purchaser; provided, however, that the obligation of the Company
-------- -------
to deliver copies of prospectuses to the Purchaser shall be subject to the
receipt by the Company of reasonable assurances from the Purchaser that
the Purchaser will comply with the applicable provisions of the Securities
Act and of such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses;
(ii) during the period when such prospectuses are required to be
delivered under the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), file all documents required to be filed
------------
with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations promulgated thereunder;
(iii) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser; provided,
--------
however, that the Company shall not be required to qualify to do business
-------
or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented;
(iv) authorize for listing on the Nasdaq National Market the
shares of Stock by filing with the Nasdaq National Market a Notification
of Listing of Additional Shares (or such other form, if any, as may be
required by the Nasdaq National Market) as soon as reasonably practicable
after the filing of the Registration Statement or otherwise in accordance
with the rules and regulations of the Nasdaq National Market; and
(v) bear all expenses in connection with the procedures in this
Section 6.2 and the registration of the Stock pursuant to the Registration
Statement, other than fees and expenses, if any, of counsel or other
advisers to the Purchaser or underwriting discounts, brokerage fees and
commissions incurred by the Purchaser, if any.
(c) For purposes of this Section 6.2(c), the term "Registration
------------
Statement" shall include any preliminary or final prospectus, exhibit,
---------
supplement or amendment included in or relating to the Registration Statement
referred to in Section 6.2(a).
(i) The Company agrees to indemnify and hold harmless each of the
Purchasers and each of their respective directors, officers, members and
partners, and each person, if any, who controls any Purchaser within the
meaning of the Securities Act, against any losses, claims, damages,
liabilities or expenses, joint or several, to which such Purchasers and
each of their respective directors, officers, members and partners, or
such controlling person may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation,
or at common law or otherwise (including in settlement of any litigation,
if such settlement is effected
11
with the written consent of the Company), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in or incorporated
by reference in the Registration Statement, including the prospectus,
financial statements and schedules, and all other documents filed as a part
thereof, as amended at the time of effectiveness of the Registration
Statement, including the preliminary or final prospectus any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the rules and
regulations of the Commission under the Securities Act (the "Regulations"),
-----------
or the prospectus, in the form first filed with the Commission pursuant to
Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required
(the "Prospectus"), or any amendment or supplement thereto, or arise out of
----------
or are based upon the omission or alleged omission to state in any of them
a material fact required to be stated therein or necessary to make the
statements in any of them, in light of the circumstances under which they
were made, not misleading, or arise out of or are based in whole or in part
on any failure of the Company to perform its obligations under or a
violation of the Securities Act, the Exchange Act or any state securities
law, and will reimburse each Purchaser and each of their respective
directors, officers, members and partners, and each such controlling person
for any legal and other expenses as such expenses are reasonably incurred
by such Purchaser or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
-------- -------
Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Purchaser expressly for use therein, or (ii) the failure of such Purchaser
to comply with the covenants and agreements contained in this Section 6.2
respecting the sale of the Stock, or (iii) any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was
delivered to the Purchaser prior to the pertinent sale or sales by the
Purchaser.
(ii) Each Purchaser will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims,
damages, liabilities or expenses to which the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of such Purchaser)
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained
in the Registration Statement, including the prospectus, financial
statements and
12
schedules, and all other documents filed as a part thereof, as amended at
the time of effectiveness of the Registration Statement, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434 of the
Regulations, or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements in any of them, in light of the circumstances under which
they were made, not misleading, or arise out of or are based in whole or in
part on any failure of such Purchaser to perform its obligations under the
Securities Act, the Exchange Act or any state securities law, and will
reimburse the Company, each of its directors, each of its officers who
signed the Registration Statement and each such controlling person for any
legal and other expenses as such expenses are reasonably incurred by such
Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Purchaser expressly for use therein.
(iii) Promptly after receipt by an indemnified party under this
Section 6.2(c) of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section 6.2(c) promptly notify the
indemnifying party in writing thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 6.2(c) or to the extent it is
not prejudiced as a result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with all other indemnifying parties similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section
6.2(c) for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption
13
of legal defenses in accordance with the proviso to the preceding sentence
(it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by such
indemnifying party, representing all of the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of action, in each of which cases the reasonable fees and
expenses of counsel shall be at the expense of the indemnifying party.
(iv) If the indemnification provided for in this Section 6.2 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under
paragraphs (i), (ii) or (iii) of this Section 6.2(c) in respect to any
losses, claims, damages, liabilities or expenses referred to herein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, claim, damage,
liability or expense as well as any other relevant equitable
considerations. The relative fault of the Company and such Purchaser shall
be determined by reference to, among other things, whether the untrue or
alleged statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by
such Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed
to include, subject to the limitations set forth in paragraph (iii) of this
Section 6.2(c), any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or
claim. The provisions set forth in paragraph (iii) of this Section 6.2(c)
with respect to the notice of the threat or commencement of any threat or
action shall apply if a claim for contribution is to be made under this
paragraph (iv); provided, however, that no additional notice shall be
-------- --------
required with respect to any threat or action for which notice has been
given under paragraph (iii) for purposes of indemnification.
Notwithstanding the provisions of this Section 6.2(c)(iv), no Purchaser
shall be required to contribute any amount in excess of the net proceeds of
the offering received by such Purchaser, except in the case of willful
fraud by such Purchaser. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute
pursuant to this Section 6.2(c)(iv) are several and not joint.
6.3 Stockholder Meeting. The Company shall cause (i) a special
-------------------
meeting of its common stockholders (the "Stockholder Meeting") to be held as
-------------------
soon as practicable but in no event later than three months from the Closing,
for the purpose of approving the conversion of the Series 1 Preferred Stock
issued pursuant to the Preferred Stock Purchase Agreement into Common Stock or
(ii) holders of the requisite number of shares of Common
14
Stock to deliver written consents approving the conversion of the Series 1
Preferred Stock issued pursuant to the Preferred Stock Purchase Agreement into
Common Stock (the action called for in (i) and (ii), the "Stockholder
-----------
Approval").
--------
6.4 No Waiver of Lockup Agreement. The Company shall not waive any
-----------------------------
provision of any Lockup Agreement without having obtained the prior consent of
the holders of at least sixty-seven percent (67%) of the shares of Stock
purchased hereunder; provided, that any Stock purchased hereunder by persons who
--------
have signed a Lockup Agreement shall not be deemed to be shares of Stock for
purposes of this Section 6.4; and provided, further, that the Company shall not
-------- -------
in any event waive any provision of any Lockup Agreement with respect to any
person listed on Exhibit D without concurrently waiving the Lockup Agreement
with respect to all persons listed on Exhibit D.
7. Miscellaneous.
-------------
7.1 Survival of Warranties. The warranties and representations of
----------------------
the Company and the Purchasers contained herein shall terminate on the second
anniversary of the Closing.
7.2 Transfer; No Third Party Beneficiaries. This Agreement and each
--------------------------------------
party's rights and obligations hereunder shall not be assigned without the prior
written consent of the other party; provided, that a Purchaser may transfer its
--------
rights hereunder to an affiliate, so long as such affiliate agrees in writing to
be bound by all obligations under this Agreement. 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.
7.3 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto and the rights and obligations of the parties hereto shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of laws.
7.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one 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.
7.6 Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page hereto, or as subsequently
modified by written notice, and if to the Company, with copies to the General
Counsel of the Company at the address of the Company set forth below and Xxxxxxx
Xxxxxxx & Xxxxxxxx, 3373
00
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx,
telecopy no: (000)-000-0000), and if to any of Integral Capital Partners IV,
L.P., Integral Capital Partners IV MS Side Fund, L.P., Integral Capital Partners
V, L.P. and Integral Capital Partners V Side Fund, L.P. with a copy to Xxxxxxx,
Xxxxxxx & Xxxxxxxx, Xxxxx Street Tower, One Market, Xxx Xxxxxxxxx, XX 00000,
Attention: Xxxxxx Xxxxxxxxx, telecopy no: (415-442-1010), and if to the Baron
Asset Fund or Baron Capital Funds Trust, with a copy to the Baron Asset Fund,
000 Xxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X.
Xxxxxxxxx, Esq.
7.7 Finder's Fee. Each party represents that it neither is nor will
------------
be obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless each Purchaser from any liability for any commission or compensation in
the nature of a finder's 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 Fees and Expenses. The Company and the Purchasers shall pay
-----------------
their respective fees and other expenses in connection with the negotiation,
execution, delivery and performance of the Agreements, provided that if the
Closing occurs the Company will pay the reasonable fees and expenses of counsel
for the Purchasers up to $20,000 in the aggregate.
7.9 Attorney's Fees. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, 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.
7.10 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or waived only with the written consent of the Company and each of the
Purchasers. Any amendment or waiver effected in accordance with this Section
7.10 shall be binding upon each Purchaser and each transferee of the Stock, each
future holder of all such Stock, and the Company.
7.11 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
7.12 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter
16
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this 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 or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
7.13 Entire Agreement. This Agreement, and the documents referred to
----------------
herein, constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
7.14 Confidentiality. Except as provided below, each party hereto
---------------
agrees that, except with the prior written permission of the other party, it
shall at all times keep confidential and not divulge, furnish or make accessible
to anyone any confidential information, knowledge or data concerning or relating
to the business or financial affairs of the other party to which such party has
been or shall become privy by reason of the Agreements, discussions or
negotiations relating to the Agreements, the performance of its obligations
thereunder or the ownership of Stock purchased hereunder. Notwithstanding the
foregoing, nothing herein shall prevent any party from disclosing (i) such
information that has been publicly disclosed, (ii) such information that becomes
available to the party on a non-confidential basis from a source other than the
other party hereto, provided that such source is not bound by a confidentiality
agreement with such other party, (iii) information required to be disclosed
pursuant to subpoena or other court process or otherwise required to be
disclosed by law or the regulations of any securities exchange (provided that,
to the extent practicable, advance notice is given to the party whose
confidential information is to be disclosed so that such party can attempt to
obtain a protective order) and (iv) such information that was known to the party
prior to its first receipt from the other party. Notwithstanding the foregoing,
the provisions of this Section 7.14 shall not be applicable to any Purchaser
that has executed a separate Non-Disclosure Agreement with the Company (such
agreement, a "Separate Agreement"), in which case the obligations of such
------------------
Purchaser shall continue in accordance with the provisions of such Separate
Agreement; provided, that the definition of "Confidential Information" in such
--------
Separate Agreement shall be deemed to include all non-public information
received by the Purchaser to which such Purchaser shall become privy by reason
of its ownership of Stock purchased hereunder. In the event of an express
inconsistency between a Separate Agreement and this Agreement, then this
Agreement shall govern.
7.15 Publicity. After the execution of this Agreement, any of the
---------
parties may issue a press release disclosing that the Purchasers have agreed to
invest in the Company and the terms of the future relationship between the
parties in a form approved by the other party, which approval will not be
unreasonably withheld, conditioned or delayed. In addition, any party may
disclose such information regarding the Purchasers' investment and the
relationship between the parties as required by law or the regulations of any
securities exchange.
17
7.16 Termination. This Agreement may be terminated and the transactions
-----------
contemplated hereby may be abandoned at any time prior to the Closing:
(i) at any time by mutual written consent of the Company and each of
the Purchasers; or
(ii) by any party hereto if the Closing does not occur on or prior to
October 31, 2000; (provided, that if on October 31, 2000 any
authorization, approval or permit of any governmental authority or
regulatory body of the United States or of any state that is required in
connection with the lawful issuance and sale of the Stock pursuant to this
Agreement has not been obtained, then no party shall be entitled to
terminate this Agreement pursuant to this clause (ii) until December 15,
2000 and then only if the Closing has not occurred on or prior to such
date).
Upon any such termination, this Agreement shall become void and of no
further effect, except for Sections 7.3, 7.7, 7.8, 7.9, 7.14 and this Section
7.16 which shall survive such termination.
[Signature Pages Follow]
18
The parties have executed this Stock Purchase Agreement as of the date
first written above.
COMPANY:
XXXXXXXXX.XXX, INC.
By:/s/ Xxxxx Rostov
______________________________________
Name: Xxxxx Rostov
Title: Chief Financial Officer
Address: 00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
Signature Page to the Common Stock Purchase Agreement
PURCHASERS:
Integral Capital Partners IV, L.P.
By: Integral Capital Management IV, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
_______________________________________
Title: Manager
_______________________________________
Address: 0000 Xxxx Xxxx Xxxx
_____________________________________
Xxxxx Xxxx, XX 00000
_____________________________________
Integral Capital Partners IV MS Side Fund, L.P.
By: Integral Capital Partners NBT, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
______________________________________
Title: Manager
_______________________________________
Address: 0000 Xxxx Xxxx Xxxx
_____________________________________
Xxxxx Xxxx, XX 00000
_____________________________________
Integral Capital Partners V, L.P.
By: Integral Capital Management V, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
______________________________________
Title: Manager
_______________________________________
Address: 0000 Xxxx Xxxx Xxxx
_____________________________________
Xxxxx Xxxx, XX 00000
_____________________________________
Integral Capital Partners V Side Fund, L.P.
By: ICP Management V, LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxx
______________________________________
Title: Manager
_______________________________________
Address: 0000 Xxxx Xxxx Xxxx
_____________________________________
Xxxxx Xxxx, XX 00000
_____________________________________
Signature Page to the Common Stock Purchase Agreement
HEARST COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, Vice President
Address: 000 Xxxxxx Xxxxxx
-------------------------------------
Xxx Xxxx, XX 00000
-------------------------------------
Signature Page to the Common Stock Purchase Agreement
BARON ASSET FUND, on behalf of the Baron
iOpportunity Fund series
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: President
------------------------------------
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
BARON ASSET FUND, on behalf of the Baron
Growth Fund series
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: President
------------------------------------
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
BARON CAPITAL FUNDS TRUST, on behalf of the
Baron Capital Asset Fund series
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------
Title: V.P. & General Counsel
------------------------------------
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Signature Page to the Common Stock Purchase Agreement
MAVERON EQUITY PARTNERS, L.P., a Delaware Limited Partnership
By: MAVERON GENERAL PARTNERS LLC,
a Delaware Limited Liability Company
/s/ Xxx Xxxxxxx
____________________________________
By: Xxx Xxxxxxx
Its: Manager
Address: 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
Signature Page to the Common Stock Purchase Agreement
XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
___________________________________
Name: Xxxx Xxxxxx
___________________________________
Title: VP
___________________________________
Address: X.X. Xxx 00000
_________________________________
Xxxxxxx, XX 00000-0000
_________________________________
Signature Page to the Common Stock Purchase Agreement
SCHEDULE I
Purchaser Purchase Commitment
--------- -------------------
Integral Capital Partners IV, L.P. $10,620,700.75
Integral Capital Partners IV MS $ 50,165.00
Side Fund, L.P.
Integral Capital Partners V, L.P. $ 4,278,067.25
Integral Capital Partners V Side $ 51,068.57
Fund, X.X.
Xxxxxx Communications, Inc. $ 5,000,000
Baron Asset Fund, on behalf of the $ 2,000,000
Baron iOpportunity Fund series
Baron Asset Fund, on behalf of the $ 11,000,000
Baron Growth Fund series
Baron Capital Funds Trust, on $ 2,000,000
behalf of the Baron Capital Asset
Fund Series
Maveron Equity Partners, L.P. $ 2,000,000
Xxxxxx.xxx, Inc. $ 3,000,000
Total
-----
EXHIBITS
--------
Exhibit A-Amended and Restated Certificate of Incorporation of the Company
Exhibit B-Certificate of Designation of Series 1 Preferred Stock
Exhibit C-Matters to be covered in legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit D-Persons that will deliver Lockup Agreements
Exhibit E-Persons that will deliver Voting Agreements
Exhibit F-Form of Lockup Agreement
Exhibit G-Form of Voting Agreement
Exhibit H-Matters to be covered in opinion of General Counsel to the Company
EXHIBIT A
---------
AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF THE COMPANY
EXHIBIT B
---------
CERTIFICATE OF DESIGNATIONS OF SERIES 1 PREFERRED STOCK
EXHIBIT C
---------
MATTERS TO BE COVERED BY LEGAL OPINION OF
XXXXXXX XXXXXXX & XXXXXXXX
EXHIBIT D
---------
PERSONS THAT WILL SIGN LOCKUP AGREEMENTS
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, L.P.
KPCB Life Sciences Zaibatsu Fund II, L.P.
KPCB VIII Founders Fund, L.P.
Xxxxxx.xxx, Inc. (except in respect of 1,066,667 shares of Common Stock)
Maveron Equity Partners, L.P.
Vulcan Ventures Incorporated
Rite Investments Corp.
General Nutrition Investment Company
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx and Xxxxxx Xxxxxxx, Tenants in Common
Xxx Xxxxx
Xxxxx Rostov (other than in respect of 40,000 shares)
Xxxxx Rostov, as custodian
Xxxxxx X. XxXxxxx (other than in respect of 40,000 shares)
Xxxxxxxxx.xxx Foundation
L. Xxxx Xxxxx
EXHIBIT E
---------
PERSONS THAT WILL SIGN VOTING AGREEMENTS
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, L.P.
KPCB Life Sciences Zaibatsu Fund II, L.P.
KPCB VIII Founders Fund, L.P.
Xxxxxx.xxx, Inc.
Maveron Equity Partners, L.P.
Vulcan Ventures Incorporated
Rite Investments Corp.
General Nutrition Investment Company
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx and Xxxxxx Xxxxxxx, Tenants in Common
Xxx Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxx Rostov
Xxxxx Rostov, as custodian
Xxxxxx X. XxXxxxx
Xxxxxxxxx.xxx Foundation
Hearst Communications, Inc.
Integral Capital Partners IV, L.P.
Integral Capital Partners IV MS Side Fund, L.P.
Integral Capital Partners V, L.P.
Integral Capital Partners V Side Fund, X.X.
Xxxxx Asset Fund
Exhibit E (Continued)
---------------------
Baron Capital Funds Trust
L. Xxxx Xxxxx
EXHIBIT F
---------
FORM OF LOCKUP AGREEMENT
EXHIBIT G
---------
FORM OF VOTING AGREEMENT
EXHIBIT H
---------
MATTERS TO BE COVERED BY THE OPINION OF GENERAL COUNSEL
TO THE COMPANY
