EXHIBIT 10.18
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XXXxXXXX.XXX, INC.
PREFERRED STOCK PURCHASE AGREEMENT
May 12, 1999
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TABLE OF CONTENTS
Page
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SECTION 1 AUTHORIZATION AND SALE OF COMMON STOCK AND PREFERRED
STOCK
1.1 Authorization of Preferred Stock..................................... 2
1.2 Sale and Issuance of the Shares...................................... 2
1.3 Separate Agreements.................................................. 2
SECTION 2 CLOSING DATE; DELIVERY................................................. 2
2.1 Closing Date......................................................... 2
2.2 Delivery and Payment................................................. 2
2.3 Subsequent Sale of Common Stock and Preferred Stock.................. 2
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................... 2
3.1 Organization and Standing; Certificate of Incorporation and Bylaws... 2
3.2 Corporate Power...................................................... 2
3.3 Subsidiaries......................................................... 2
3.4 Capitalization....................................................... 2
3.5 Authorization........................................................ 2
3.6 Proprietary Rights................................................... 2
3.7 Registration Rights.................................................. 2
3.8 Governmental Consent, etc............................................ 2
3.9 Offering............................................................. 2
3.10 Permits.............................................................. 2
3.11 Compliance with Other Instruments.................................... 2
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS....................... 2
4.1 Business and Financial Experience.................................... 2
4.2 Investment Intent; Blue Sky.......................................... 2
4.3 Rule 144............................................................. 2
4.4 No Public Market..................................................... 2
4.5 Restrictions on Transfer; Restrictive Legends........................ 2
4.6 Access to Data....................................................... 2
4.7 Authorization........................................................ 2
4.8 Brokers or Finders................................................... 2
4.9 Tax Liability........................................................ 2
4.10 Limited Operating History............................................ 2
SECTION 5 CONDITIONS TO CLOSING OF THE PURCHASERS................................ 2
5.1 Representations and Warranties Correct............................... 2
5.2 Covenants............................................................ 2
5.3 Blue Sky............................................................. 2
5.4 Certificate.......................................................... 2
5.5 Investor Rights Agreement............................................ 2
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TABLE OF CONTENTS
(continued)
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5.6 Voting Agreement..................................................... 2
5.7 Compliance Certificate............................................... 2
5.8 Board of Directors................................................... 2
5.9 Legal Opinion........................................................ 2
5.10 License Agreement.................................................... 2
5.11 Strategic Relationship Terms......................................... 2
5.12 Restricted Stock Purchase Agreements................................. 2
5.13 Warrants............................................................. 2
5.14 Rodale Warrant....................................................... 2
5.15 Investment........................................................... 2
5.16 Board Observer....................................................... 2
SECTION 6 CONDITIONS TO CLOSING OF THE COMPANY................................... 2
6.1 Representations and Warranties Correct............................... 2
6.2 Covenants............................................................ 2
6.3 Certificate.......................................................... 2
6.4 Investor Rights Agreement............................................ 2
6.5 Voting Agreement..................................................... 2
6.6 License Agreement.................................................... 2
6.7 Strategic Relationship Terms......................................... 2
6.8 Restricted Stock Purchase Agreements................................. 2
SECTION 7 MISCELLANEOUS.......................................................... 2
7.1 Governing Law........................................................ 2
7.2 Entire Agreement; Amendment.......................................... 2
7.3 Notices, etc......................................................... 2
7.4 Delays or Omissions.................................................. 2
7.5 Counterparts......................................................... 2
7.6 Severability......................................................... 2
7.7 Titles and Subtitles................................................. 2
7.8 Survival of Warranties............................................... 2
7.9 Successors and Assigns............................................... 2
7.10 Further Assurances................................................... 2
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XXXxXXXX.XXX, INC.
PREFERRED STOCK PURCHASE AGREEMENT
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This Preferred Stock Purchase Agreement (this "Agreement") is made as of
May 12, 1999, by and among XXXxXXXX.xxx, Inc., a Delaware corporation (the
"Company"), the purchaser of the Company's Series A Preferred Stock who are
signatories to this Agreement (the "Series A Purchaser"), the purchasers of the
Company's Series B Preferred Stock who are signatories to this Agreement (the
"Series B Purchasers"), the purchasers of the Company's Series C Preferred Stock
who are signatories to this Agreement (the "Series C Purchasers" and, together
with the Series A Purchaser and the Series B Purchasers, the "Purchasers"). The
Purchasers are listed on Exhibit A hereto.
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RECITALS
WHEREAS, PETsMART and PetJungle, Inc., a Delaware corporation ("PetJungle")
are currently engaged, in part, in the business of selling pet products over the
Internet (the "Business");
WHEREAS, the Company, Pittsburg, PetJungle and the Purchasers desire to
form a single entity that will engage in the Business whereby (i) PETsMART will
contribute $2,000,000 cash and certain costs associated with creating the
"XXXxXXXX.xxx" web site valued at $3,010,000, (ii) the Series B Purchasers (as
defined herein) will contribute $3,006,000 in cash, (iii) the Series C
Purchasers (as defined herein) will contribute $4,008,000 in cash and (iv)
PetJungle will merge with and into the Company, thereby transferring all of its
assets to the Company (the "Merger"); and
WHEREAS, the Company and the Purchasers desire to effect the contribution
of their capital into the Company pursuant to this Agreement (the "Financing"),
and immediately after the closing of the Financing, the Company and PetJungle
will effect the Merger.
AGREEMENT
In consideration of the mutual promises and covenants herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
AUTHORIZATION AND SALE OF COMMON STOCK AND PREFERRED STOCK
1.1 Authorization of Preferred Stock. The Company has authorized the
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sale and issuance to the Purchasers of up to (a) 3,000,000 shares of its Series
A Preferred Stock, par value $0.001 per share (the "Series A Preferred"), (b)
1,800,000 shares of its Series B Preferred Stock, par
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value $0.001 per share (the "Series B Preferred") and (c) 2,400,000 shares of
its Series C Preferred Stock, par value $0.001 per share (the "Series C
Preferred" and, together with the Series A Preferred and Series B Preferred, the
"Shares"), having the rights, preferences, privileges and restrictions as set
forth in the Amended and Restated Certificate of Incorporation in substantially
the form attached hereto as Exhibit B (the "Certificate").
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1.2 Sale and Issuance of the Shares. Subject to the terms and
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conditions hereof, the Company will severally issue and sell:
(a) to the Series A Purchaser and the Series A Purchaser will buy
from the Company up to 3,000,000 shares at a per share purchase price of $1.67
(the "Series A Per Share Price"), and at the aggregate purchase price of up to
$5,010,000, in the amount of shares specified opposite the name of the Series A
Purchaser in the column designated "Number of Shares" on Exhibit A.
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(b) to the Series B Purchasers and the Series B Purchasers will
severally buy from the Company up to 1,800,000 shares at a per share purchase
price of $1.67 (the "Series B Per Share Price"), and at the aggregate purchase
price of up to $3,006,000, in the amount of shares specified opposite the name
of each Series B Purchaser in the column designated "Number of Shares" on
Exhibit A.
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(c) to the Series C Purchasers and the Series C Purchasers will
severally buy from the Company up to 2,400,000 shares at a per share purchase
price of $1.67 (the "Series C Per Share Price"), and at the aggregate purchase
price of up to $4,008,000, in the amount of shares specified opposite the name
of each Series C Purchaser in the column designated "Number of Shares" on
Exhibit A.
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1.3 Separate Agreements. The Company's agreement with each of the
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Purchasers hereunder is a separate agreement, the obligations of each of the
Purchasers hereunder are several and not joint, and the sale of the Shares to
each of the Purchasers is a separate transaction.
SECTION 2
CLOSING DATE; DELIVERY
2.1 Closing Date. It is anticipated that purchase and sale of the Shares
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hereunder shall be consummated at a closing (the" Closing") held at the offices
of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
on May 12, 1999, at 4:00 p.m., local time, or at such other date, time and place
upon which the Company and the Purchasers shall agree (the date and time of the
Closing is hereinafter referred to as the "Closing Date").
2.2 Delivery and Payment. At the Closing, the Company will deliver to
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each Purchaser a certificate or certificates, registered in the Purchaser's
name, representing the number of Shares to
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be purchased by the Purchaser at the Closing, against payment of the purchase
price therefor, by (i) check payable to the Company, (ii) by wire transfer per
the Company's instructions, (iii) by any combination of (i) and (ii) above or
(iv) with respect to the Series A Purchaser, a combination of (i) and (ii) above
and by the delivery to the Company, at the time of execution of this Agreement,
of the General Assignment of Assets by and between the Company and the Series A
Purchaser, in the form attached hereto as Exhibit M, whereby the Purchaser shall
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assign to the Company all of its rights in the property listed as an exhibit
thereto.
2.3 Subsequent Sale of Common Stock and Preferred Stock. If less than all
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of the authorized number of shares of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock are sold at the Closing, then,
subject to the terms and conditions of this Agreement, the Company may sell up
to the balance of the authorized but unissued Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock, as the case may be, to such persons
as the Board of Directors of the Company may determine at the same price per
share as the Shares sold at the Closing. Any such sale shall be made upon the
same terms and conditions as those contained herein, and such persons or
entities shall become parties to this Agreement, the Voting Agreement and the
Investor Rights Agreement (each as defined herein), and shall have the rights
and obligations of a Purchaser hereunder or thereunder.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Schedule of Exceptions (the "Schedule of
Exceptions") attached hereto as Exhibit C, the Company represents and warrants
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to the Purchasers that, as of the Closing Date at which the Purchasers
consummate their purchase of Shares hereunder:
3.1 Organization and Standing; Certificate of Incorporation and Bylaws.
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The Company is a corporation duly organized and validly existing under, and by
virtue of, the laws of the State of Delaware and is in good standing under such
laws. The Company has requisite corporate power and authority to own and operate
its properties and assets and to carry on its business as presently conducted
and as proposed to be conducted. The Company is presently qualified to do
business as a foreign corporation in California and there is no other
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the business or financial condition of the Company. The
Company has furnished counsel for the Purchasers with copies of its Certificate
and Bylaws. Said copies are true, correct and complete and reflect all
amendments now in effect.
3.2 Corporate Power. The Company has all requisite legal and corporate
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power and authority to execute and deliver this Agreement, the Investor Rights
Agreement in substantially the form attached hereto as Exhibit D (the "Investor
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Rights Agreement"), the Voting Agreement in substantially the form attached
hereto as Exhibit E (the "Voting Agreement" and, together with this Agreement
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and the Investor Rights Agreement, the "Investment Agreements"), to sell and
issue the Shares hereunder, to issue the underlying Common Stock (the
"Conversion Stock") in accordance
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with the provisions of the Certificate, and to carry out and perform its
obligations under the terms of the Investment Agreements.
3.3 Subsidiaries. Except as provided in the Schedule of Exceptions, the
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Company has no subsidiaries or affiliated companies and does not otherwise own
or control, directly or indirectly, any equity interest in any corporation,
association or business entity.
3.4 Capitalization. The authorized capital stock of the Company will,
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upon the filing of the Certificate, consist of 50,000,000 shares of Common Stock
and 7,905,770 shares of Preferred Stock, 3,300,000 of which have been designated
Series A Preferred, 1,800,000 of which have been designated Series B Preferred
Stock, 2,805,770 of which have been designated Series C Preferred Stock. As of
the Closing Date, no shares of Common Stock, Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock will be outstanding. The Shares
shall have the rights, preferences, privileges and restrictions set forth in the
Certificate. The Company has reserved (i) 3,000,000 shares of Series A Preferred
for issuance hereunder and 300,000 shares for issuance upon exercise of a
warrant granted to PETsMART on the date hereof, (ii) 1,800,000 shares of Series
B Preferred for issuance hereunder, (iii) 2,400,000 shares of Series C Preferred
for issuance hereunder and 405,668 shares for issuance upon exercise warrants
granted to Rodale Press, Inc. and idealab! Holdings, L.L.C. on the date hereof,
(iv) 26,802,247 shares of Common Stock for issuance upon conversion of the
Preferred and (v) 1,430,394 shares of Common Stock for issuance to the Company's
executives pursuant to certain restricted stock purchase agreements entered into
between the Company and certain executives as of the date hereof. Except as set
forth above and as provided in the Company's Certificate and the Schedule of
Exceptions, there are no options, warrants or other rights to purchase or
acquire any of the Company's authorized and unissued capital stock.
3.5 Authorization. All corporate action on the part of the Company and
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its directors necessary for the authorization, execution, delivery and
performance of the Investment Agreements by the Company, the authorization,
sale, issuance and delivery of the Shares and the Conversion Stock and the
performance of the Company's obligations under the Investment Agreements has
been taken or will be taken prior to the Closing. The Investment Agreements,
when executed and delivered by the Company, shall constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies; provided, however, that the Company makes no
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representation as to the enforceability of the indemnification provisions
contained in the Investor Rights Agreement. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable, and will have the rights, preferences, privileges and
restrictions described in the Certificate; the Common Stock issuable upon
conversion of the Shares has been duly and validly reserved and, when issued in
compliance with the provisions of the Certificate, will be validly issued, fully
paid and nonassessable; and the Shares and the Conversion Stock will be free of
any liens or encumbrances (assuming the Purchaser takes the Shares with no
notice thereof) other than any liens or encumbrances created by or imposed upon
the holders; provided, however, that the Shares and the Conversion Stock may be
subject to restrictions on transfer under state or federal securities laws and
restrictions set forth in the Investor Rights
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Agreement. The issuance of the Shares is not subject to any preemptive rights or
rights of first refusal.
3.6 Proprietary Rights. The Company has title and ownership of, or full
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right to use, all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes necessary for its
business as now conducted and, to the Company's knowledge, without any conflict
with or infringement of the rights of others. There are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity. The Company has not received any communications alleging
that the Company has violated or, by conducting its business as currently
conducted, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade proprietary rights of any other person or entity. To
the knowledge of the Company, none 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 the use of his or her best
efforts to promote the interests of the Company or that would conflict with the
Company's business as currently conducted. Neither the execution and delivery of
the Investment Agreements, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as currently
conducted, 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 of such employees is now
obligated. The Company does not believe it is or will be necessary to utilize
any inventions of any of its employees (or people it currently intends to hire)
made prior to their employment by the Company.
3.7 Registration Rights. Except as set forth in the Investor Rights
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Agreement, the Company is not under any contractual obligation to register under
the Securities Act of 1933, as amended (the "Securities Act"), any of its
presently outstanding securities or any of its securities which may hereafter be
issued.
3.8 Governmental Consent, etc. No consent, approval order or
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authorization of or registration, qualification, designation, declaration or
filing with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of the Investment Agreements,
or the offer, sale or issuance of the Shares or the Conversion Stock, or the
consummation of any other transaction contemplated hereby, except (i) the filing
of the Certificate in the office of the Delaware Secretary of State prior to the
Closing and (ii) the qualification (or taking of such action as may be necessary
to secure an exemption from qualification, if available) of the offer and sale
of the Shares and the Conversion Stock under applicable Blue Sky laws, which
filings and qualifications, if required, will be accomplished in a timely
manner.
3.9 Offering. Subject to the accuracy of the Purchaser's representations
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in Section 4 hereof, the offer, sale and issuance of the Shares and the
Conversion Stock constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act.
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3.10 Permits. The Company has all franchises, permits, licenses, and any
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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, or financial condition of the Company, and the Company
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. To its knowledge,
the Company is not in default in any material respect under any of such
franchises, permits, licenses, or other similar authority.
3.11 Compliance with Other Instruments. The Company is not in violation
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of any term of the Certificate or Bylaws, or in any respect of any term or
provision of any mortgage, indenture, contract, agreement, instrument, judgment
or decree, and to its knowledge, is not in violation of any order, statute, rule
or regulation applicable to the Company, which violation reasonably would be
expected to have a material adverse effect on the Company's business. The
execution, delivery and performance of and compliance with this Agreement, and
the Investment Agreements and the consummation of the transactions contemplated
hereby and thereby, and the issuance of the Shares and the Conversion Shares,
have not resulted and will not result in any violation of, or conflict with, or
constitute a default under any such term or provision, or result in the creation
of, any mortgage, pledge, lien, encumbrance or charge upon any of the properties
or assets of the Company; and there is no such violation or default or event
which, with the passage of time or giving of notice or both, would constitute a
violation or default which would materially and adversely affect the business of
the Company or any of its properties or assets.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally (and not jointly) represents and warrants
to the Company as follows:
4.1 Business and Financial Experience. Its knowledge and experience in
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financial and business matters are such that its is capable of evaluating the
merits and risks of its purchase of the Shares and the underlying Conversion
Stock as contemplated by this Agreement. Its financial situation is such that it
can afford to bear the economic risk of holding the Shares and the underlying
Conversion Stock for an indefinite period of time and suffer complete loss of
its investment.
4.2 Investment Intent; Blue Sky. It is acquiring the Shares and the
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underlying Conversion Stock for investment for its own account, not as a nominee
or agent, and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the issuance of the Shares and the
underlying Conversion 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, the availability of which depends upon, among
other things, the bona fide nature of the Purchaser's investment intent and the
accuracy of the Purchaser's representations as expressed herein. The
Purchaser's address set forth on the Schedule of Purchasers attached hereto as
Exhibit A
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represents the Purchaser's true and correct state of domicile, upon which the
Company may rely for the purpose of complying with applicable Blue Sky laws.
4.3 Rule 144. It acknowledges that the Shares and the underlying
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Conversion Stock must be held indefinitely unless subsequently registered under
the Securities Act or unless an exemption from such registration is available.
It is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, 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 effected through a "broker's transaction" or in a transaction directly
with a "market maker," and the number of shares being sold during any three-
month period not exceeding specified limitations.
4.4 No Public Market. It understands that no public market now exists for
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any of the securities issued by the Company and that the Company has made no
assurances that a public market will ever exist for the Company's securities.
4.5 Restrictions on Transfer; Restrictive Legends. It understands
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that the transfer of the Shares and the Conversion Stock, if applicable, is
restricted by applicable state and Federal securities laws and by the provisions
of the Investor Rights Agreement and the Voting Agreement, and that the
certificates representing the Shares and the Conversion Stock will be imprinted
with legends restricting transfer except in compliance therewith.
4.6 Access to Data. It has had an opportunity to discuss the Company's
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business, management and financial affairs with the Company's management. It has
also had an opportunity to ask questions of officers of the Company. It
understands that such discussions, as well as any written information issued by
the Company, were intended to describe the material aspects of the Company's
business and prospects but were not a thorough or exhaustive description.
4.7 Authorization. All action on the part of the Purchaser's partners,
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board of directors, and stockholders, as applicable, necessary for the
authorization, execution, delivery and performance of the Investment Agreements
by the Purchaser, the purchase of and payment for the Shares and the Conversion
Stock, if applicable, and the performance of all of the Purchaser's obligations
under the Investment Agreements has been taken or will be taken prior to the
Closing. The Investment Agreements, when executed and delivered by the
Purchaser, shall constitute valid and binding obligations of the Purchaser,
enforceable in accordance with their terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies; provided, however, that the Purchaser makes no
representation as to the enforceability of the indemnification provisions
contained in the Investor Rights Agreement.
4.8 Brokers or Finders. The Company has not and will not incur,
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directly or indirectly, as a result of any action taken by the Purchaser, any
liability for brokerage or finders' fees or agents'
7
commissions or any similar charges in connection with this Agreement or the
transactions contemplated hereby.
4.9 Tax Liability. It has reviewed with its own tax advisors the tax
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consequences of the transactions contemplated by this Agreement. It relies
solely on such advisors and not on any statements or representations of the
Company or any of the Company's agents with respect to such tax consequences. It
understands that it, and not the Company, shall be responsible for its own tax
liability that may arise as a result of the transactions contemplated by this
Agreement.
4.10 Limited Operating History. It acknowledges that the Company was
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incorporated on May 6, 1999 and has a limited operating history.
SECTION 5
CONDITIONS TO CLOSING OF THE PURCHASERS
Each Purchaser's obligation to purchase the Shares is, unless waived in
writing by the Purchaser, subject to the fulfillment as of the date of Closing
of the following conditions:
5.1 Representations and Warranties Correct. The representations and
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warranties made in Section 3 hereof by the Company shall be true and correct in
all material respects as of the date of the Closing.
5.2 Covenants. All covenants, agreements and conditions contained in this
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Agreement to be performed or complied with by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
5.3 Blue Sky. The Company shall have obtained all necessary Blue Sky law
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permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Shares and the underlying
Conversion Stock.
5.4 Certificate. The Certificate shall have been properly filed in the
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office of the Delaware Secretary of State.
5.5 Investor Rights Agreement. The Company shall have executed and
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delivered the Investor Rights Agreement in substantially the form attached
hereto as Exhibit D.
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5.6 Voting Agreement. The Company and each of the Purchasers shall
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have executed and delivered the Voting Agreement in substantially the form
attached hereto as Exhibit E.
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5.7 Compliance Certificate. The Company shall have delivered to the
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Purchasers a certificate of the Company in substantially the form attached
hereto as Exhibit F, executed by the President of the Company, dated as of the
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date of the Closing and certifying to the fulfillment of the conditions
specified in Sections 5.1 and 5.2 of this Agreement.
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5.8 Board of Directors. Upon the Closing, the number of directors
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constituting the Board of Directors shall be seven (7). Thereupon, the Board of
Directors shall consist of Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxx XxXxxxxx, Yves
Sisteron, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx and Xxxx Xxxxxxxx.
5.9 Legal Opinion. The Purchasers shall have received an opinion of
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Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Company, in substantially the
form attached hereto as Exhibit G.
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5.10 License Agreement. The Company and PETsMART shall have executed and
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delivered the License Agreement in substantially the form attached hereto as
Exhibit H.
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5.11 Strategic Relationship Terms. The Company and PETsMART shall have
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executed and delivered the Strategic Relationship Terms in substantially the
form attached hereto as Exhibit I.
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5.12 Restricted Stock Purchase Agreements. The Company shall have executed
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and delivered to each of Xxx XxXxxxxx and Xxxxxx Xxxxxxxxx a Restricted Stock
Purchase Agreement in the form attached hereto as Exhibit J entitling them to
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purchase 1,043,111 and 387,283 shares of Common Stock, respectively, at a
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purchase price of $.20 per share.
5.13 Warrants. The Company shall have executed and delivered to (i) each
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of idealab! Holdings, L.L.C. and Rodale Press, Inc. a Series C Preferred Stock
Purchase Warrant to purchase 339,278 and 43,227 shares of Series C Preferred
Stock, respectively, and (ii) PETsMART a Series A Preferred Stock Purchase
Warrant to purchase 300,000 shares of Series A Preferred Stock, each in the form
attached hereto as Exhibit K.
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5.14 Rodale Warrant. The Company shall have executed and delivered to
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Rodale Press, Inc. a Series C Stock Purchase Warrant to purchase 23,163 shares
of Series C Preferred Stock in the form attached hereto as Exhibit L.
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5.15 Investment. Purchasers shall have tendered, in the aggregate, at the
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Closing, consideration of not less than $8,000,000.
5.16 Board Observer. The Company shall have executed and delivered to
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Rodale Press, Inc. a letter agreement regarding the grant of observer rights to
Rodale Press, Inc. on the Company's Board of Directors.
SECTION 6
CONDITIONS TO CLOSING OF THE COMPANY
The Company's obligation to sell and issue the Shares is, unless waived in
writing by the Company, subject to the fulfillment as of the date of Closing of
the following conditions:
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6.1 Representations and Warranties Correct. The representations and
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warranties made in Section 4 hereof by the Purchasers shall be true and correct
in all material respects as of the date of the Closing.
6.2 Covenants. All covenants, agreements, and conditions contained in
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this Agreement to be performed or complied with by the Purchasers on or prior to
the Closing Date shall have been performed or complied with in all material
respects.
6.3 Certificate. The Certificate shall have been filed in the office of
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the Delaware Secretary of State.
6.4 Investor Rights Agreement. The Purchasers shall have executed and
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delivered the Investor Rights Agreement in substantially the form attached
hereto as Exhibit D.
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6.5 Voting Agreement. The Purchasers shall have executed and delivered
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the Voting Agreement in substantially the form attached hereto as Exhibit E.
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6.6 License Agreement. The Company and PETsMART shall have executed and
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delivered the License Agreement in substantially the form attached hereto as
Exhibit H.
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6.7 Strategic Relationship Terms. The Company and PETsMART shall have
----------------------------
executed and delivered the Strategic Relationship Terms in substantially the
form attached hereto as Exhibit I.
---------
6.8 Restricted Stock Purchase Agreements. The Xxx XxXxxxxx and Xxxxxx
------------------------------------
Schaldach shall have executed and delivered to the Company a Restricted Stock
Purchase Agreement in the form attached hereto as Exhibit J entitling them to
---------
purchase 1,043,111 and 387,283 shares of Common Stock, respectively, at a
---------
purchase price of $.20 per share.
SECTION 7
MISCELLANEOUS
7.1 Governing Law. This Agreement shall be governed in all respects
-------------
by the internal laws of the State of California without regard to conflict of
laws provisions.
7.2 Entire Agreement; Amendment. This Agreement, the Investor Rights
---------------------------
Agreement, the Voting Agreement and the other documents delivered pursuant
hereto, including the exhibits hereto, constitute the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein or therein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought.
10
7.3 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(a) if to a Purchaser, to the address or fax number listed after such
Purchaser's name on the Schedule of Purchasers attached hereto as Exhibit A or
---------
at such other address as such Purchaser shall have furnished to the Company.
(b) if to the Company, to:
XXXxXXXX.xxx, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx XxXxxxxx
Fax: (000) 000-0000
or at such other address as the Company shall have furnished to the Purchasers,
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when received if
delivered personally, if sent by facsimile, the first business day after the
date of confirmation that the facsimile has been successfully transmitted to the
facsimile number for the party notified, or, if sent by mail, at the earlier of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
7.4 Delays or Omissions. Except as expressly provided herein, no delay or
-------------------
omission to exercise any right, power or remedy accruing to any party, upon any
breach or default of another party under this Agreement, shall impair any such
right, power or remedy of such party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar breach
or default thereafter 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.
11
7.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, and all of which together
shall constitute one instrument.
7.6 Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision, which shall be replaced with an enforceable provision
closest in intent and economic effect as the severed provision; provided that no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
7.7 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.
7.8 Survival of Warranties. The warranties, representations and
----------------------
covenants of the Company and the Purchasers contained in or made pursuant to
this Agreement shall survive execution and delivery of this Agreement and the
Closing for a period of one hundred eighty (180) days and shall in no way be
affected by any investigation of the subject matter thereof made by or on behalf
of the Purchasers or the Company.
7.9 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, permitted assigns, heirs, executors and administrators of
the parties hereto.
7.10 Further Assurances. Each party hereto agrees to do all acts and
------------------
things, and to make, execute and delivery such written instruments, as shall
from time to time be reasonably required to carry out the terms and provisions
of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
The foregoing agreement is hereby executed effective as of the date first
set forth above.
"COMPANY"
XXXxXXXX.XXX, INC.
/s/ Xxx XxXxxxxx
-----------------------------
Xxx XxXxxxxx, Jr.
President
"SERIES A PURCHASER"
PETsMART, INC.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
"SERIES B PURCHASERS"
IDEALAB! CAPITAL PARTNERS I-B, L.P.
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx,
Managing member, idealab! Capital Management, I, LLC,
General Partner of idealab! Capital Partners I-B, L.P.
IDEALAB! CAPITAL PARTNERS I-A, L.P.
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx,
Managing member, idealab! Capital Management, I, LLC,
General Partner of idealab! Capital Partners I-A, L.P.
SIMBA, LLC
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name Xxxxxx Xxxxxxxxx
--------------------------------
Title:
------------------------------
WS INVESTMENT COMPANY 99A
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Adminstrator
------------------------------
------------------------------------
"SERIES B PURCHASERS"
/s/ Xxxxx X. Xxxxxxx
------------------------------------
XXXXX XXXXXXX
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX
"SERIES B PURCHASERS"
GLOBAL RETAIL PARTNERS, L.P.
BY: GLOBAL RETAIL PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
DLJ DIVERSIFIED PARTNERS, L.P.
BY: DLJ DIVERSIFIED PARTNERS, INC.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY: DLJ DIVERSIFIED PARTNERS, INC.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
GRP PARTNERS, L.P.
BY: GLOBAL RETAIL PARTNERS, INC.
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
"SERIES B PURCHASERS"
GLOBAL RETAIL PARTNERS FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
DLJ ESC II L.P.
BY: DLJ LBO PLANS MANAGEMENT CORPORATION
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
"SERIES B PURCHASERS"
/s/ Xxxxxxx Xxxx
------------------------------------
XXXX XXXX
/s/ Xxxx Xxxxxxxx
------------------------------------
XXXX XXXXXXXX
/s/ X. Xxxxxxxx
------------------------------------
XXXXXXX XXXXXXXX
/s/ Xxx XxXxxxxx
------------------------------------
XXX XXXXXXXX, JR.
"SERIES C PURCHASERS"
IDEALAB! HOLDINGS, L.L.C.
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx, Secretary
RODALE PRESS, INC.
/s/ Xxxxxxx X. Corpora
------------------------------------
Xxx Xxxxxxx, President
PORTOFINO INVESTMENTS LIMITED PARTNERSHIP I
By: /s/ Xxxxx Camel
--------------------------------------
Name: Xxxxx Camel
------------------------------------
Title: Vice President, General Partner
-----------------------------------
/s/ Xxxxxx Xxxxxx
------------------------------------------------------
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxxx
------------------------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
XXXXXXXX X. AND XXXXXXX XXXXXX
/s/ Xxx XxXxxxxx
------------------------------------------------------
XXX XxXXXXXX
"SERIES C PURCHASERS"
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
XXXXXX XXXXXXXXX
/s/ X. Xxxxxxxx
------------------------------------
XXXX XXXXXXXX
/s/ Xxxx Xxxxxx
------------------------------------
XXXX XXXXXX
EXHIBIT A
---------
(To Preferred Stock Purchase Agreement)
Schedule of Series A Purchasers
-------------------------------
Name and Address Number of Shares
PETsMART, Inc. 3,000,000
00000 X. 00XX Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Godward, LLP
Five Palo Alto Square
000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxx Xxxxxxx, Esq.
TOTAL 3,000,000
Schedule of Series B Purchasers
-------------------------------
Name and Address Number of Shares
idealab! Capital Partners I-A, L.P. 72,000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
idealab! Capital Partners I-B, L.P. 378,000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Strategic Law Partners
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Simba, L.L.C. 63,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WS Investment Company 99A 8,100
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name and Address Number of Shares
Xxxxx Xxxxxxx 6,450
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxx 450
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxx 15,000
PETsMART, Inc.
00000 X. 00XX Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxxxx 15,000
PETsMART, Inc.
00000 X. 00XX Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxx XxXxxxxx, Jr. 30,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx Xxxxxxxx 12,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name and Address Number of Shares
Global Retail Partners, L.P. 769,365
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Global Retail Partners, L.P.
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DLJ Diversified Partners, L.P. 229,261
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
DLJ Diversified Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name and Address Number of Shares
DLJ Diversified Partners-A, L.P. 85,137
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
DLJ Diversified Partners-A, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GRP Partners, L.P. 50,016
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
GRP Partners, L.P.
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Name and Address Number of Shares
Global Retail Partners Funding, Inc. 52,978
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Global Retail Partners Funding, Inc.
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DLJ ESC II L.P. 13,243
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TOTAL 1,800,000
Schedule of Series C Purchasers
-------------------------------
Name and Address Number of Shares
idealab! Holdings, L.L.C. 1,968,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Rodale Press, Inc. 240,000
000 X. 00xx Xx.
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Gross, McGinley, XxXxxxx & Xxxxx, LLP
00 Xxxxx 0xx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. XxXxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxx 38,400
00000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx 19,200
00 Xxxxx Xxxx Xxxxx
Xxxxxx, XX0X 0XX, Xxxxxxx
Telephone: 000 00 000 000 0000
Facsimile: 011 44 171 245 0882
Xxxxxxxx X. & Xxxxxxx Xxxxxx 14,400
0000 Xxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Name and Address Number of Shares
Xxx XxXxxxxx, Jr. 48,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxxx 28,800
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Portofino Investments I Limited Partnership 19,200
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Xxxxxxx Xxxxxxxx 12,000
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxx 12,000
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TOTAL 2,400,000
EXHIBIT B
---------
(To Preferred Stock Purchase Agreement)
Amended and Restated Certificate of Incorporation
-------------------------------------------------
EXHIBIT C
---------
(To Preferred Stock Purchase Agreement)
Schedule of Exceptions
----------------------
The following are the exceptions to the representations and warranties of
XXXxXXXX.xxx, Inc. (the "Company") set forth in Section 3 of the Preferred Stock
Purchase Agreement dated as of May 12, 1999 (the "Agreement") to which this is
an exhibit. All capitalized terms used and not otherwise defined herein shall
have the meanings given them in the Agreement. The section numbers below
correspond to the section numbers in the Agreement. Anything disclosed under a
section specified below that is applicable to any other section is deemed to be
disclosed under the other such sections.
None.
EXHIBIT D
---------
(To Preferred Stock Purchase Agreement)
Investor Rights Agreement
-------------------------
EXHIBIT E
---------
(To Preferred Stock Purchase Agreement)
Voting Agreement
----------------
EXHIBIT F
---------
(To Preferred Stock Purchase Agreement)
Compliance Certificate
----------------------
EXHIBIT G
---------
(To Preferred Stock Purchase Agreement)
Opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
-------------------------------------------
EXHIBIT H
---------
(To Preferred Stock Purchase Agreement)
License Agreement
-----------------
EXHIBIT I
---------
(To Preferred Stock Purchase Agreement)
Strategic Relationship Terms
----------------------------
EXHIBIT J
---------
(To Preferred Stock Purchase Agreement)
Restricted Stock Purchase Agreements
------------------------------------
EXHIBIT K
---------
(To Preferred Stock Purchase Agreement)
Warrants
--------
EXHIBIT L
---------
(To Preferred Stock Purchase Agreement)
Rodale Warrant
--------------
EXHIBIT M
---------
(To Preferred Stock Purchase Agreement)
General Assignment of Assets
----------------------------
