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EXHIBIT 10.3
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@PLAN. INC
Series A Convertible Preferred Stock
Series B Convertible Preferred Stock
SECURITIES PURCHASE AGREEMENT
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TABLE OF CONTENTS
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Exhibit A Articles of Amendment to the Amended and Restated Charter
Exhibit B Amended and Restated Charter and Bylaws of the Company
Exhibit C Shareholder's Agreement
Exhibit D Accredited Investor Exhibit
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INDEX OF SCHEDULES
Schedule 1.0 Schedule of Purchasers
Schedule 4.1(a) Organization, Standing, Capitalization, Etc.
Schedule 4.1(c) Issued and Outstanding Capital Stock
Schedule 4.6 Opening Balance Sheet
Schedule 4.8 Transactions
Schedule 4.9 Agreements
Schedule 4.13 Certain Transactions
Schedule 4.14 Absence of Liabilities
Schedule 4.15 Property and Assets
Schedule 4.16 Leases
Schedule 4.20 Intellectual Property
Schedule 4.24 Indebtedness
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@PLAN. INC
SECURITIES PURCHASE AGREEMENT
Ladies and Gentlemen:
@Plan. Inc, a Tennessee corporation (the "Company"), hereby agrees with
the Purchasers named in the Schedule of Purchasers attached hereto as Schedule 1
and who executed a counterpart of this agreement (individually the "Purchaser"
and collectively the "Purchasers") as set forth below:
1. Description of Services.
The Board of Directors of the Company has authorized the issuance and
sale of an aggregate of 2,750,000 shares of its convertible preferred stock (the
"Shares") to be sold in three tranches. Tranche 1 shall consist of 500,000
shares of the Company's Series A Convertible Preferred Stock (the "Series A
Preferred Stock") at a purchase price of $1.00 per Share. Tranche 2 shall
consist of 1,000,000 shares of the Company's Series B Convertible Preferred
Stock (the "Series B Preferred Stock") at a purchase price of $2.00 per share
(the "Tranche 2 Shares"). Tranche 3 shall consist of 1,250,000 shares of the
Series B Preferred Stock at a purchase price of $2.00 per share (the "Tranche 3
Shares"). The rights and preferences of the Series A Preferred Stock and the
Series B Preferred Stock are set forth in the form of the Articles of Amendment
to the Amended and Restated Charter of the Company attached hereto as Exhibit A
(the "Articles of Amendment").
2. Purchase and Sale of Securities.
The Company hereby agrees to sell to each Purchaser and each Purchaser
hereby severally agrees to purchase from the Company, in both cases subject to
the terms and conditions set forth herein and in reliance on the representations
and warranties of the parties contained herein, the number of Shares set forth
opposite the name of the Purchaser on Schedule 1, free and clear of all liens or
encumbrances imposed by or as a result of action by the Company. The Series A
Preferred Stock shall be purchased at the Tranche 1 Closing (as defined in
Section 3.2 hereof) and the Series B Preferred Stock shall be purchased at the
Tranche 2 Closing and Tranche 3 Closing (as defined in Sections 3.3 and 3.4
hereof).
3. Subscription and Closing.
3.1 The Purchaser shall execute and deliver to the Company at
its address set forth in Section 10 hereof, two counterparts of this Agreement.
This Agreement shall become the binding obligation of the parties upon
acceptance by the Company, and the date of this Agreement shall be the date the
Company executes this Agreement, as indicated on the signature page hereof.
3.2 The closing with respect to the purchase and sale of the
Series A Preferred Stock (the "Tranche 1 Closing") shall take place at the
offices of Xxxxxxxx & Xxx, PLC, at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx at 9:00 a.m. on July 24, 1996 (the "Tranche 1 Closing Date") or such
other date as shall be mutually determined by the Company and the Purchasers;
provided, however, that such closing may occur in two stages prior to the
Tranche 2
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Closing (as hereinafter defined) if the condition set forth in Section 7.1.8(a)
hereof has not been fulfilled and has been waived by (or on behalf of) the
Purchasers. Any such additional stages of the Tranche 1 Closing shall, for all
purposes hereunder, be effective as of the date of the initial Tranche 1
Closing.
3.3 The closing with respect to the purchase and sale of the
Tranche 2 Shares (the "Tranche 2 Closing") shall take place at the offices of
Xxxxxxxx & Xxx, PLC, at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx on
such date as shall be mutually determined by the Company and the Purchasers'
Representatives (as defined in Section 6.8 hereof) , and in any event no later
than five (5) business days after the satisfaction of the last to occur of the
conditions set forth in Section 7.3 below (the "Tranche 2 Closing Date").
3.4 The closing with respect to the purchase and sale of the
Tranche 3 Shares (the "Tranche 3 Closing") shall take place at the offices of
Xxxxxxxx & Xxx, PLC, at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx on
such date as shall be mutually determined by the Company and the Purchasers'
Representatives, and in any event no later than five (5) business days after the
occurrence of the events set forth in Section 7.4 below (the "Tranche 3 Closing
Date" which together with the Tranche 1 Closing Date and the Tranche 2 Closing
Date is sometimes referred to as the "Closing Date").
3.5 At each Closing, the Company will deliver to each
Purchaser certificates evidencing the Shares to be purchased by such Purchaser,
registered in such Purchaser's or its nominee's name, upon payment of the
purchase price therefor, by a cashier's check, or by wire transfer of
immediately available funds to First Union National Bank of Tennessee,
Nashville, Tennessee, ABA Routing No. 000000000, for credit to @PLAN. Inc
Account, Account No. 2020000151393, in the aggregate amount for the respective
Closing set forth opposite such Purchaser's name on Schedule 1 to this
Agreement.
4. Representations and Warranties of the Company.
Recognizing that the Purchasers will be relying on the information and
on the representations and warranties set forth herein, the Company hereby
represents and warrants to the Purchasers that:
Organization, Standing, Capitalization, Etc.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Tennessee.
The Company has all requisite corporate power and authority and holds all
licenses, permits and other required authorizations from governmental
authorities necessary to own its properties and assets and to conduct its
business as it is now being conducted and will obtain as expeditiously as
possible all required authorizations of governmental authorities necessitated by
the operation of the Company in the future. The Company is qualified to do
business as a foreign corporation in jurisdictions set forth in Schedule 4.1(a)
and is not currently required to be qualified or licensed to do business as a
foreign corporation in any other jurisdiction.
(b) The copies of the Amended and Restated Charter
(the "Charter") and Bylaws of the Company that have been included herewith
collectively as Exhibit B are true and correct copies of such documents as
amended to date. There will not be any changes or amendments
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to the Charter, except the Articles of Amendment in the form of Exhibit A
creating the Preferred Stock, or Bylaws between the date hereof and the Closing
Date.
(c) At the date hereof the Company's authorized
capital stock consists of 20,000,000 shares of common stock, no par value per
share ("Common Stock"), of which 500,000 shares are issued and outstanding and
held of record by the persons and in the amounts set forth in Schedule 4.1(c),
and 10,000,000 shares of undesignated preferred stock, with rights and
preferences to be fixed by the Board of Directors in accordance with the laws of
the State of Tennessee and the Charter. As of the Tranche 1 Closing Date, the
Company's authorized capital stock will consist of 20,000,000 shares of Common
Stock and 10,000,000 shares of preferred stock, of which 500,000 shares will be
designated as Series A Convertible Preferred Stock, none of which will be
outstanding, and 2,250,000 shares of preferred stock will have been designated
as Series B Convertible Preferred Stock, of which no shares will be issued and
outstanding as of the Tranche 1 Closing Date. All shares of Common Stock
outstanding are duly and validly authorized and issued, fully paid and
nonassessable, and issued in compliance with all applicable state and federal
laws concerning the issuance of securities. No shareholder of the Company has
any statutory or other preemptive rights with respect to the issuance of the
Shares.
(d) The Shares being sold and purchased hereunder
have been duly and validly authorized, will be validly issued, fully paid and
nonassessable after issuance and sale to the Purchasers pursuant to this
Agreement and will be free of any liens or encumbrances created by or as the
result of action by the Company. The Shares of Common Stock issuable upon
conversion of the Preferred Stock have been duly and validly authorized and,
upon conversion of the Preferred Stock, will be validly issued, fully paid,
nonassessable and free of any liens or encumbrances created by or as a result of
action by the Company. No further approval or authorization of the shareholders
of the Company is required for the issuance and sale of the Shares as
contemplated herein or the issuance of the shares of Common Stock upon the
conversion of the Preferred Stock.
(e) The Company has not granted or issued, or agreed
to grant or issue, any option, warrant or other rights, commitments or
arrangements to issue, purchase or acquire any shares of its capital stock or
any securities giving any right to acquire from the Company or sell to the
Company, any shares of its capital stock, except for (i) an option for the
purchase of 150,000 shares of the Company's Common Stock issued to Xxxx X.
Xxxxxx pursuant to the Company's 1996 Employee Stock Option Plan (the "1996
Option Plan"); (ii) up to 850,000 additional shares of Common Stock reserved for
issuance pursuant to the 1996 Option Plan; (iii) 500,000 shares of the Series A
Preferred Stock which may be sold to the Purchasers pursuant to this Agreement;
(iv) 2,250,000 shares of the Series B Preferred Stock which may be sold to the
Purchasers pursuant to this Agreement; and (v) 2,750,000 shares of Common Stock
reserved for issuance upon conversion of the Shares.
(f) The Company does not own or control any
subsidiaries. The Company does not hold, directly or indirectly, 5% or more of
the outstanding shares of any class or capital stock of any other corporation
nor does it hold, directly or indirectly, a 5% or more equity interest in any
partnership, limited liability company, joint venture, or other entity.
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Authorization, Validity and Enforceability of this Agreement.
The Company has full corporate power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and approved by all necessary corporate action. The execution and delivery of
this Agreement and the issuance of the Shares hereunder will not violate any
provision of law and will not conflict with, or result in a breach of any of the
terms of, or constitute a default under, the Company's Charter, its Bylaws, or
any agreement, instrument, or other restriction to which the Company is a party
or by which it is bound. This Agreement, when executed, will constitute the
legal, valid, and binding obligation of the Company, enforceable against it in
accordance with its terms.
Information Available Respecting the Company.
The Company has provided each Purchaser with the opportunity
to (a) ask questions of and receive answers from the Company and its
representatives concerning the Company and the terms and conditions of the sale
of the Shares, and (b) obtain any additional information that the Company
possesses or can reasonably obtain that is necessary to verify the accuracy of
the information furnished by the Company in connection herewith.
Governmental Consents, Etc.
No consent, approval, or authorization of, or declaration,
registration or filing with, any person, entity, or governmental authority on
the part of the Company is required for the valid execution, delivery, and
performance of this Agreement or the valid consummation of the transactions
contemplated hereby, except as may be required under the Securities Act of 1933,
as amended (the "Securities Act"), or under applicable state "Blue Sky" laws.
Securities Laws.
Subject to the Purchaser's representations set forth in
Section 6 hereof, the offer, sale and issuance of the Shares, as provided in
this Agreement, are and are intended to be exempt from: (a) the registration
requirements of the Securities Act pursuant to one or more of Sections 3(b),
4(2) and 4(6) thereof and Regulation D promulgated thereunder; and (b) the
registration or qualification requirements of certain state Blue Sky laws.
Neither the Company nor anyone acting on its behalf has directly or indirectly
offered the Shares or any part thereof for sale to, or solicited any offer to
buy the Shares from, any person other than the Purchasers, or other persons
believed by the Company to meet the qualifications set forth in Section 6 below,
nor will the Company or anyone authorized to act on its behalf take any action
hereafter that would cause the loss of such exemption.
Financial Statements.
The unaudited opening balance sheet of the Company dated July
22, 1996 (the "Balance Sheet") is attached hereto as Schedule 4.6. Except for
the Balance Sheet, the Company has no other financial statements or budgets,
actual or projected, relating to the financial condition of the Company.
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No Defaults in Agreements.
The Company is not in violation of its Charter or Bylaws, or
in default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, indenture, mortgage, loan
agreement, lease, note, or other instrument to which it is a party or by which
it may be bound.
Transactions.
Except as disclosed in Schedule 4.8 hereto or as reflected on
the Balance Sheet, the Company has not: (a) borrowed any funds or incurred or
become subject to any obligations or liabilities (absolute or contingent); (b)
discharged or satisfied any lien or encumbrance or paid any obligation or
liability (absolute or contingent); (c) declared or paid any dividends or
distributions to its shareholders of any assets of any kind whatsoever; (d)
entered into any agreements or arrangements granting any preferential rights to
purchase any of the assets, properties, or rights of the Company (including
management and control thereof), or requiring the consent of any party to a
transfer or assignment of such assets, properties or rights (or change in the
management or control thereof), or providing for the merger or consolidation of
the Company into or with another corporation; (e) suffered any losses (including
but not limited to loss of customers, physical plant, property, equipment,
personnel considered by management to be a "key" employee, or the termination of
any material contracts), waived any rights or canceled any debts or claims; (f)
changed any accounting method or practice, including, without limitation, any
change in depreciation or amortization policies or rates; (g) made any loan to
any person or entity, including but not limited to any officer, director, or
employee of the Company, or increased the compensation or benefits payable, or
to become payable, to any of the officers, directors, or employees of the
Company, including but not limited to any bonus payment or deferred
compensation; or (h) entered into an agreement to do any of the things described
in clauses (a) through (g) above.
Agreements.
Except as disclosed in Schedule 4.9 hereto, the Company is not
a party to any written or oral contract. All contracts, agreements, and
understandings disclosed in Schedule 4.9 are in full force and effect, and
neither the Company nor, to the Company's knowledge, any other party thereto has
received any notice of default, nor is in default, nor does any condition now
exist which, with notice or the lapse of time or both, would render the Company
or, to the Company's knowledge, any other party in default under any contract,
understanding, or agreement in which the Company is a party. There are no
disputes or proceedings relating to any such contract, understanding, or
agreement, and the Company has not received any notice, written or oral,
indicating that any party to any such contract, understanding, or agreement
intends to cancel or terminate such contract, understanding or agreement or to
exercise or not exercise any options or rights under such contract,
understanding, or agreement.
No Adverse Changes.
Since the date of the Balance Sheet, there have been no
changes in the condition or prospects (financial or otherwise except as may
relate to economic or business conditions generally) of the Company that, in the
aggregate, would materially adversely affect the organization, business,
properties, operations, financial condition, or prospects of the Company (a
"Material Adverse Effect").
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No Litigation.
There is no action or proceeding at law or in equity pending
or, to the knowledge of the Company, threatened against the Company or any of
its property before any court or governmental commission, and there is no such
proceeding pending or, to the knowledge of the Company, threatened, in
arbitration or before any administrative agency, and, to the knowledge of the
Company, there are no facts, events or occurrences by reason of which any such
action or proceeding may be brought. There is no judgment, consent, decree,
injunction, rule, or other judicial or administrative order outstanding against
the Company.
Disclosure.
No representation or warranty by the Company contained in this
Agreement or any schedule or exhibit hereto, or any certificate or other
instrument referred to herein or otherwise furnished or to be furnished to the
Purchasers by the Company with respect to the transactions contemplated hereby
contains any untrue statement of a material fact, or omits or will omit to state
any material fact that is necessary in order to make the statements contained
herein or therein, not misleading. The Company is not aware of any fact relating
to the business, affairs, operations, condition or prospects of the Company that
materially adversely affects the same and that has not been set forth in this
agreement or otherwise disclosed in writing to the Purchasers by the Company in
connection with this transaction.
Certain Transactions.
Except as disclosed in Schedule 4.13 hereto or on the Balance
Sheet, the Company is not indebted, directly or indirectly, to any of its
officers or directors or to their respective spouses or children, in any amount
whatsoever; none of said officers or directors or any members of their immediate
families are indebted to the Company or have any direct or indirect ownership
interest in any firm or corporation with which the Company is affiliated or with
which the Company has a business relationship, or any firm or corporation that
competes with the Company, except that officers and/or directors of the Company
may own no more than 5% of the outstanding stock in publicly traded companies
that may compete with the Company. No officer or director or any member of their
immediate families is interested, directly or indirectly, in any material
contract with the Company. The Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm, or corporation.
Absence of Liabilities; Taxes.
Except as disclosed in Schedule 4.14 hereto, the Company has
no liabilities required to be disclosed under generally accepted accounting
principles that are not reflected on the Balance Sheet; since the date of the
Balance Sheet, except as disclosed in the Schedules, the Company has not
incurred or otherwise become subject to any such liabilities or obligations
except expenses incurred directly in connection with this offering. The amounts
shown on the Balance Sheet as provision for taxes are sufficient in all respects
for payment of all accrued and unpaid federal, state, county, and local taxes
for the period then ended and for all prior periods. The Company has filed all
federal, state, county and local tax returns that are required to be filed by
it, and such returns are true and correct and all taxes shown thereon to be due
have been timely paid with exceptions not material to the Company. The Company
has not been notified by the Internal Revenue Service that
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its federal income tax returns have or are being examined, and no controversy
with respect to taxes of any type is pending or, to the knowledge of the
Company, threatened.
Property and Assets.
Except as set forth in Schedule 4.15, Schedule 4.20 or on the
Balance Sheet, the Company has good and marketable title to all of its real and
personal property, free and clear of any and all claims, liens, encumbrances,
equities, and restrictions of every kind and nature whatsoever. The Company owns
no other significant personal property, except as set forth on Schedule 4.15.
Leases.
Except as set forth in Schedule 4.16 hereto, the Company is
not a party to any lease. As of the date hereof, all leases are in full force
and effect without any default or material breach thereof by the Company or, to
the knowledge of the Company, any other party thereto. The Company enjoys
peaceful and undisturbed possession under all leases under which it is operating
as lessee and all such leases are valid and subsisting and in full force and
effect. No consent of any lessor is required under any such lease in order to
keep such lease in full force and effect after the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
Regulatory Compliance.
The Company has complied with all laws, regulations, and
orders applicable to its business, and the present uses by the Company of its
properties and conduct by the Company of its business do not in any material
respect violate any laws, regulations, or orders. The Company has obtained or
will obtain as expeditiously as possible all certificates and other regulatory
approvals necessary for the operation of its business.
Registration Rights.
Except as provided for in the Shareholders Agreement in the
form attached hereto as Exhibit C, to be executed at the Tranche 1 Closing (the
"Shareholders Agreement"), the Company is not under any obligation to register
under the Securities Act any of the Company's presently outstanding securities
or any of its securities that subsequently may be issued.
Insurance.
The Company will following the Closing maintain, with respect
to its properties and business, and with financially sound and reputable
insurers, life, fire, liability and other forms of insurance, as the Board of
Directors of the Company reasonably deems to be sufficient to provide adequate
protection to the Company and its business from the risks associated with its
business and as is customary for companies similarly situated in reasonably
comparable industries.
Intellectual Property.
(a) The Company owns or possesses, or will acquire
prior to use, adequate licenses or other rights to use all patents, trademarks,
service marks, trade names or other intangible
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property rights and know-how (hereinafter referred to as "Intellectual
Property") necessary to entitle the Company to conduct the business now or
subsequently operated by it. Schedule 4.20 sets forth all licenses and other
arrangements (other than standard licenses for the use of typical
"off-the-shelf" commercial software applications) pursuant to which the Company
has a right to use any Intellectual Property not owned by the Company. Except as
set forth in Schedule 4.20, the Company is the lawful owner, free and clear, to
the knowledge of the Company, of any claim, right, trademark, patent or
copyright protection of any third party, of all Intellectual Property used or
planned to be used by the Company in the conduct of its business.
(b) The Company has not received any notice of
infringement or conflict with (and knows of no infringement with or conflict
with) asserted rights of others with respect to any Intellectual Property which
could result in a Material Adverse Effect upon the Company. To the knowledge of
the Company, no products or processes of the Company infringe or conflict with
any trade secret or patent or any patent application.
(c) The Company has taken adequate steps, and has in
place and enforces appropriate policies and procedures, to protect its
proprietary information. The Company has not disclosed any of its proprietary
information to third parties without appropriate restrictions on use or
disclosure thereof. As used herein, "proprietary information" means any
information that the Company considers confidential or secret material
information of the Company, including without limitation, whether verbal,
written or embodied in any other medium, confidential technical data and
information of the Company (including but not limited to systems, practices,
plans, processes, procedures, drawings, databases, computer hardware, firmware,
and software whether in the form of object codes, source codes, or otherwise,
inventions, improvements, manufacturing techniques or systems, formulas,
development or experimental work, work in process, research data used by the
Company); all passwords, entry codes, access sequences, and the like; and all
other items of trade secret, trade knowledge, and trade know-how of Company.
(d) The Company has taken adequate steps, and has in
place and enforces appropriate policies and procedures, to protect any
confidential information disclosed to or obtained by the Company through
confidential relationships with any third parties.
Sensitive Payments.
Neither the Company nor, to the knowledge of the Company, any
of its officers or directors nor anyone acting on behalf of any of them has made
or received any "sensitive" payments, and no such person has or will maintain
any unrecorded cash or noncash assets out of which any "sensitive" payments
might be made. "Sensitive" payments means, whether legal or illegal, (a)
payments to or from government officials or employees, (b) commercial bribes or
kickbacks, (c) amounts paid with an understanding that rebates or refunds will
be made in contravention of the laws of any jurisdiction, either directly or
through a third party, and (d) payments or commitments (whether made in the form
of commission, payments of fees for goods or services received, or otherwise)
made with the understanding or under circumstances that would indicate that all
or part thereof is to be paid by the recipient to government officials or
employees or as a commercial bribe, influence payment or kick-back, provided,
however, that "sensitive" payments shall not include contributions to political
campaigns or organizations that are permissible under federal and state election
laws.
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Books and Records.
The books and records of the Company, including but not
limited to, its stock and minute books, are complete and correct and have been
maintained in accordance with good business practices and contain a true and
complete record of all meetings or proceedings of its Board of Directors and
shareholders. No action has been taken that requires the approval of the Board
of Directors or the shareholders of the Company that is not reflected accurately
in the minute book.
Environmental Matters.
Neither the real property or the buildings, improvements,
fixtures or equipment, forming a part of the real property owned or operated by
the Company (the "Facilities"), nor the Company is, to the Company's knowledge,
in violation of or the subject of any investigation or inquiry or enforcement
action by any governmental authority for the recovery or environmental response
costs or for compliance with remedial obligations under any applicable law
pertaining to "Hazardous Substances" as the term is defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1990, as amended, as
codified at 42 U.S.C. ss. 9601 et seq. ("CERCLA"), the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1801 et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq.; and any applicable state or local
governmental statutes, ordinances or regulations (referred to hereafter
collectively as "Environmental Laws"). As of the date of this Agreement, the
Company has obtained and is in compliance with all environmental permits
required by the applicable Environmental Laws to construct, occupy, operate and
use the Facilities; the Company has taken reasonable steps to determine that no
Hazardous Substances have been disposed of or otherwise released on or from the
Facilities during the period of the Company's ownership or operation thereof;
and the uses that the Company has made, makes, or intends to make of the
Facilities has not and will not result in the generation, storage, disposal or
release of any Hazardous Substances in violation of the Environmental Laws.
Indebtedness.
As of the date hereof, the Company is not indebted, directly
or indirectly, to any person or entity except as indicated on the Balance Sheet
(other than as to accrued but unpaid interest on indebtedness indicated on the
Balance Sheet from the date of the Balance Sheet through the date hereof) or as
set forth on Schedule 4.24. Schedule 4.13 sets forth all persons to whom the
Company is indebted for moneys borrowed, reflecting the principal amount of such
indebtedness and interest accrued to the date hereof. All indebtedness reflected
on Schedule 4.24 or on the Balance Sheet was incurred pursuant to loans or
advances to the Company by such persons of cash equal to the original principal
amounts of such indebtedness.
Survival of Representations and Warranties.
The representations and warranties of the Company contained
herein shall survive the execution and delivery of this Agreement and the
purchase of the Shares for the period of the applicable statute of limitation.
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5. Covenants of the Company.
The Company covenants and agrees with the Purchasers as follows:
Use of Proceeds.
The Company will apply the net cash proceeds from the sale of
the Shares received by it as follows:
(a) Tranche 1 proceeds: Payment of organizational expenses,
payment of a portion of the legal fees and expenses described in
Section 8 hereof, funding of initial operations of the Company, and
funding to undertake recruitment of a chief executive officer or chief
operating officer for the Company as contemplated herein;
(b) Tranche 2 proceeds: Funding of the survey contemplated in
Section 7.1.3(b) hereof, payment of additional start-up expenses,
payment of the balance of legal fees and expenses owing by the Company
pursuant to Section 8 hereof, and working capital;
(c) Tranche 3 proceeds: Working capital to fund operations of
the Company.
ERISA Plan.
At all such times that the Company has in effect, or hereafter
institutes a pension plan, ("a Plan") that is subject to the requirements of
Title IV of the Employee Retirement Income Security Act of 1974, Pub. L. No.
93-406, September 2, 1974, 00 Xxxx. 000, 00 X.X.X.X. ss. 1001 et seq. (1975), as
amended from time to time ("ERISA"), the Company hereby covenants that (i)
throughout the existence of the Plan, the Company's contributions under the Plan
will meet the minimum funding standards required by ERISA and the Company will
not institute a distress termination of the Plan, and (ii) the Company will send
to each Purchaser a copy of any notice of a reportable event (as defined in
ERISA) required PBGC Reg. Section P2615.1 et seq., 29 CFR Part P 2615.1 et seq.,
to be filed with the Pension Benefit Guaranty Corporation, at the time that such
notice is so filed.
Survival of Covenants of the Company.
The obligations of the Company set forth in Sections 5.1
through 5.2 above are continuing covenants of the Company and shall survive
until terminated as provided in such provisions.
6. Representations, Warranties and Covenants of the Purchasers.
Recognizing that the Company will be relying on the information and on
the representations and warranties set forth herein, each Purchaser hereby
severally represents and warrants to the Company as follows:
Accredited Investor.
The Purchaser currently is, and at each Closing Date will be:
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(a) An accredited investor who meets the requirements of at
least one of the categories set forth on Exhibit D attached hereto and
incorporated herein by reference as indicated by the Purchaser's
initials thereon;
(b) A person, either alone or with his purchaser
representative, who has such knowledge and experience in financial and
business matters that he or it, is capable of evaluating the merits and
risks of the purchase of the Shares, who is able to bear the economic
risk of the investment, and who can afford the complete loss of the
investment; and
(c) If an individual residing at the address specified on the
signature page hereof, or if a corporation, partnership or other form
of entity, has its principal office at the address set forth on the
signature page hereof.
Purchase for Investment.
The Purchaser represents that it is purchasing the Shares for
its own account for investment and not with a view to the resale or distribution
in whole or in part thereof in violation of the Securities Act or applicable
state law. The Purchaser represents that it will not transfer the Shares without
registration under the federal and any applicable state securities laws unless
it submits an opinion of counsel acceptable to the Company to the effect that
the intended transfer complies with one or more exemptions under such laws. The
Purchaser, if it is an entity, represents that it was not formed for the purpose
of acquiring an interest in the Company. Nothing herein contained, however,
shall prevent a Purchaser from requesting the Company to register the Shares so
issued in the name of the Purchaser's nominee, and if a Purchaser submits such a
request, the Company will not withhold its consent unreasonably.
No General Solicitation.
The Purchaser acknowledges that it has not received nor is it
aware of any general solicitation or general advertising of the Shares,
including without limitation, (a) any communication published in any newspaper
or magazine or broadcast over television or radio, or (b) any seminar or meeting
to which people were invited by means of a general solicitation or general
advertising.
Authority.
If the Purchaser is an individual, he is over the age of
majority in the applicable jurisdiction. If the Purchaser is a corporation,
partnership, or other form of entity, such Purchaser is properly organized and
existing under the laws of its respective jurisdiction, with the requisite
power, and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, and has taken all necessary corporate or
organizational action execute this agreement, the Shareholders Agreement and to
acquire and pay for the Shares, and this Agreement, when executed and delivered,
will constitute a valid and legally binding obligation of such Purchaser.
Access to Information.
The Purchaser has had access during the course of the
transaction and prior to its purchase of the Shares to such information relating
to the Company as it has desired, and has been
16
given the opportunity to (a) ask questions of, and receive answers from, the
Company and its representatives concerning the Company and the terms and
conditions of the sale of the Shares, and (b) obtain any additional information
that the Company possesses or can reasonably obtain that is necessary to verify
the accuracy of the information furnished by the Company in connection herewith.
Restrictions on Transfer of the Shares.
The Purchaser understands that the Shares have not been
registered under the Securities Act or any applicable state securities law, the
Shares have the status of "Restricted Securities" as defined under Commission
Rule 144(a)(3) and may be required to be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available and that the Company is under no obligation to
register the Shares other than as set forth in the Shareholders Agreement. The
Purchaser also understands that Rule 144 (or any successor rule) promulgated
under the Act, which provides for certain limited routine sales of unregistered
securities, is not available with respect to the Shares, that except as set
forth in Section 1.2 of the Shareholders Agreement, the Company has not
covenanted to satisfy the conditions for resale pursuant to Rule 144 (or any
successor rule), and that compliance with Regulation A (or any successor rule)
promulgated under the Act or some other disclosure exemption may be required for
a sale or other disposition of Shares that are not registered under the Act. The
Purchaser further acknowledges that presently there is no market for the
purchase and sale of the Shares.
Legends on Certificates.
The Purchaser understands that the certificates representing
the Shares (or the Common Stock issued upon conversion of the Share) shall bear
the following or similar legend and that appropriate stop transfer instructions
will be entered in the stock records of the Company:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY APPLICABLE STATE SECURITIES LAW. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSITION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR (ii) AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
DISPOSITION WITHOUT REGISTRATION IS IN COMPLIANCE WITH THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAW.
Purchasers' Representatives.
Solely for the purposes of determining whether the conditions
precedent to the Purchasers' obligations set forth in Section 7 hereof, have
been satisfied, each Purchaser hereby appoints as its representatives Xxxxxx X.
Xxxxxxxx (or a substitute appointed by the general partner of the Southern
Venture Fund II L.P.) and W. Xxxxxxx Xxxxxx, III (or a substitute appointed by
the general partner of Richland Ventures L.P.) (as such, the "Purchasers'
Representatives"). The Purchasers' Representatives shall have the right, in
their sole discretion, to determine whether or not
17
such conditions precedent have been satisfied, and if not, whether to waive such
condition. Each Purchaser hereby agrees to indemnify and hold harmless
Purchasers' Representatives from all claims, losses and expenses which any
Purchaser may suffer as a result of any actions taken, or omitted to be taken,
by the Purchasers' Representatives.
Survival.
The representations, warranties and covenants of the
Purchasers contained herein shall survive the execution and delivery of this
Agreement and the purchase of the Shares.
7. Conditions to the Closing.
Conditions of the Purchasers' Obligations.
The obligations of the Purchasers to purchase and pay for the
Shares to be delivered at the Tranche 1 Closing are subject to the satisfaction
of the following conditions:
Representations and Warranties Correct.
The representations and warranties of the Company set
forth in Article 4 hereof shall be true and correct as of the date hereof and as
of the Tranche 1 Closing Date, provided that the Company shall supplement the
representations and warranties as of the Tranche 2 Closing Date, and the Company
shall have complied with all agreements and satisfied all conditions on its part
to be performed or satisfied prior to the Closing Date.
No Adverse Change.
Except as disclosed in this Agreement, and in any
schedule hereto, there shall have been no material adverse change in the
business or financial condition or results of operations or prospects of the
Company since the date of the Balance Sheet, and no material litigation or other
proceeding shall have been commenced by any person, including, without
limitation, any governmental agency, relating to any of the proposed
transactions, or against the Company or any of its properties that is material
to its business or operations, actual or proposed.
Compliance Certificate.
The Company shall have delivered a certificate
executed by the Chairman or President, dated the Closing Date, certifying that
the conditions specified in Subsections 7.1.1 and 7.1.2, and on the Tranche 2
Closing Date, Section 7.3.2, have been satisfied and as to such other matters
reasonably requested by the Purchasers.
Articles of Amendment.
The Company shall have filed the Articles of
Amendment with the Tennessee Secretary of State.
18
Shareholders' Agreement.
The Company and each of Xxxx X. Xxxxxx and Xxxx X.
Xxxxxx shall have executed the Shareholders' Agreement in the form of Exhibit C
hereto.
Assignments of Rights and Waivers of Claims.
The Company shall have received assignments of
rights, waivers and releases, in each instance in form and substance
satisfactory to counsel to the Purchasers, with respect to all intellectual
property aspects of the Company's proposed business, including, without
limitation, from Xxxxxxx Marketing Communications, Xxxx X. Xxxxxx and Xxxxx
Xxxxx.
Legal Opinion.
The Purchasers, at the Closing, shall have received
the opinion of Bass, Xxxxx & Xxxx, PLC, issued pursuant to the Legal Opinion
Accord of the ABA Section of Business Law (1991), counsel to the Company, in
form and substance satisfactory to Xxxxxxxx & Xxx, PLC, special counsel to the
Purchasers, dated the Closing Date, to the effect that:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Tennessee, and is qualified to do business in every
jurisdiction in which the business presently conducted by it
makes such qualification necessary.
(b) The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock, no par value,
of which 500,000 shares are currently outstanding and all of
which are duly and validly authorized and issued and are fully
paid and nonassessable, and 10,000,000 shares of undesignated
preferred stock, with rights and preferences to be fixed by
the Board of Directors as provided by law and the Charter, of
which (i) 500,000 shares have been designated Series A
Convertible Preferred Stock, of which no shares were
outstanding prior to the sale of the Tranche 1 Shares to the
Purchaser; and (ii) 2,250,000 shares have been designated
Series B Convertible Preferred Stock, of which no shares were
outstanding prior to the sale of any Shares to the Purchasers.
The Series A Preferred Stock and the Series B Preferred Stock
have the rights and preferences set forth in the Charter, as
amended. Except for (i) 1,000,000 shares of common stock
reserved for issuance pursuant to the 1996 Option Plan, and
(ii) 2,750,000 shares of Common Stock reserved for issuance
upon conversion of the Shares, to such counsel's knowledge
there are no outstanding rights or agreements for the purchase
or acquisition from the Company of any shares of its capital
stock and no stockholder of the Company has any statutory or,
to the knowledge of such counsel, other preemptive rights with
respect to the issuance of the Shares.
(c) Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby or thereby will result in violation of, or
be in conflict with, the Charter or Bylaws of the Company, and
will not (i) constitute a default under any agreement, lease,
mortgage, note, bond, indenture, license, or other document or
agreement known to such counsel to which the Company is a
party or by which it is bound or (ii) violate any order, rule,
regulation, writ, injunction or decree of any court,
administrative agency, or
19
governmental body known to such counsel to which the Company
is subject or by which it is bound.
(d) Each of this Agreement and the Shareholders
Agreement has been duly authorized, executed and delivered by
or on behalf of the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws and subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(e) The issuance and delivery at the Closing of the
Shares that are the subject of this Agreement constitute an
exempt transaction under the Securities Act or regulations
thereunder as now in effect and do not require registration
under the Securities Act.
(f) The issuance and sale at the Closing of the
Shares that are the subject of this Agreement do not require
registration, qualification, or any other action under the
securities or "Blue Sky" laws of any state, or such
registration or other action as is required has been duly
effected or taken, or will be effected or taken in a timely
manner so as to comply with such securities or "Blue Sky"
laws.
(g) The Shares to be issued to the Purchasers by the
Company pursuant to this Agreement have been duly authorized
and, upon payment by the Purchasers of the purchase price for
such Shares, will be validly issued and outstanding, fully
paid and nonassessable. The Common Stock issuable upon
conversion of the Shares has been duly and validly authorized
and reserved for issuance upon conversation of the Shares, the
issuance of those shares has been duly and validly authorized
and those shares, when delivered upon the conversion of the
Shares, will be duly and validly authorized, validly issued
and outstanding, fully paid and nonassessable.
(h) Except with regard to the matter of federal and
state securities law compliance, which matter is addressed in
paragraphs (e) and (f) above, no consent, approval, authority,
or other order of any governmental agency or to the knowledge
of such counsel any other person or organization is legally
required for the issuance and sale of the Shares pursuant to
this Agreement.
(i) There is no litigation or proceeding pending, or,
to the knowledge of such counsel, threatened against the
Company.
In rendering such opinion, such counsel may (i) rely as to factual matters on
certificates of executive officers of the Company, governmental officials, and
information furnished by the Purchasers, (ii) make assumptions (which
assumptions shall be specifically set forth) as to matters not reasonably
independently verifiable by such counsel, and (iii) rely on opinions of other
counsel to the extent it reasonably deems appropriate, provided that reliance
upon all such documents, certificates, and opinions shall be specified in such
opinion. The opinion to be delivered at the Tranche 2 Closing shall contain
appropriate modifications to give effect to the prior sale of the Series A
Preferred Stock.
20
Size of Sale.
The Company shall have executed counterparts of this
Agreement providing for (a) the purchase and sale of a minimum of 500,000 shares
of the Series A Preferred Stock and (b) subject to the satisfaction of the
conditions set forth in this Section 7.1, Section 7.3 and Section 7.4, the
purchase and sale of a minimum of 2,250,000 shares of the Series B Preferred
Stock.
Conditions of the Company's Obligations.
The Company's obligation to sell and deliver the Shares to be
purchased by the Purchasers at the respective Closing is subject to the
satisfaction of the following conditions:
Representations and Warranties Correct.
The representations and warranties of the Purchasers
set forth in Section 6 hereof shall be true and correct on and as of the date
hereof and as of each Closing Date, and the Purchasers shall have performed and
complied with all agreements and conditions on their part to be performed or
complied with prior to the Closing.
This Agreement.
The Purchasers shall have entered into this Agreement
and shall have performed and complied with all agreements and conditions
contained herein required to be performed or complied with by the Purchasers,
including without limitation executing the Shareholders' Agreement and tendering
to the Company (a) on the Tranche 1 Closing Date, the aggregate purchase price
for the Series A Shares of $500,000, (b) on the Tranche 2 Closing Date, the
aggregate purchase price for the Tranche 2 Shares of $2,000,000, and (c) on the
Tranche 3 Closing Date, the aggregate purchase price for the Tranche 3 Shares of
$2,500,000.
Conditions to Tranche 2 Closing.
The obligations of Purchasers to purchase and pay for the
Series B Shares to be delivered at the Tranche 2 Closing are subject to the
satisfaction of the conditions set forth in Section 7.1.1 - .3 and 7.1.7, as of
such Closing Date, and to the following additional conditions:
Due Diligence Review.
The Purchasers and their representatives shall have
conducted a further review of the business and affairs of the Company, the
results of which shall be satisfactory to the Purchasers' Representatives in
their sole discretion.
Implementation of Initial Business Plan.
The Company shall have delivered evidence, in each
instance satisfactory to Purchasers' Representatives, as to each of the
following:
21
(a) completion of a final draft of a consumer survey
which will provide the basic and essential data for the
Company's market segmentation product;
(b) negotiation of a contract (bearing terms and
conditions satisfactory to the Purchaser's Representatives),
with Gallup or other nationally recognized and reputable
polling firm acceptable to the Purchaser's Representatives to
conduct the survey;
(c) completion of software development for the
survey;
(d) the engagement of a nationally recognized
executive placement firm, satisfactory to the Purchaser's
Representatives to recruit a chief executive officer and
management team, including marketing and sales professionals,
and preliminary indication from such firm as to the likelihood
of hiring suitable candidates.
Conditions to Tranche 3 Closing.
The Purchasers shall be obligated to purchase and pay
for the shares of Series B Preferred Stock to be delivered at the Tranche 3
Closing upon the earlier to occur of either (a) the commencement of employment
with the Company, on a full-time basis, of a Chief Executive Officer or Chief
Operating Officer recruited pursuant to Section 7.3.2(d) above, or (b) the
Company's cash balances at its depository bank have been reduced to $250,000 or
less, and subject to the satisfaction of the conditions set forth in Section
7.1.1 and 7.1.6, as of such Closing Date.
Defaulting Purchaser.
In the event that as of either the Tranche 2 Closing Date or
the Tranche 3 Closing Date any Purchaser shall either (a) fail to tender the
purchase price for the Series B Preferred Stock to be purchased by it at such
Closing, or (b) not qualify as an "accredited investor" as of such date (each, a
"Defaulting Purchaser"), then the Company shall offer to each non-defaulting
Purchaser the opportunity to purchase that number of shares which equals its
proportional share of the Tranche 2 or Tranche 3 Shares reserved for the
Defaulting Purchaser, and the Company shall continue to offer the Defaulting
Purchaser's shares (in each instance, in proportional amounts) until all the
Tranche 2 or Tranche 3 Shares of the Defaulting Purchaser shall have been
purchased by one or more of the non-defaulting purchasers.
8. Expenses.
Regardless of whether the transactions contemplated herein shall be
consummated, the Company will: (a) pay all the costs and expenses of the
reproduction of this Agreement, of all agreements referred to herein, and of the
certificates for the Shares to be purchased by the Purchaser hereunder; (b) pay
the reasonable fees and out-of-pocket expenses of Xxxxxxxx & Xxx, PLC,
Nashville, Tennessee, as special counsel for the Purchasers, including the
reasonable fees and expenses incurred in connection with any subsequent proposed
modification of this Agreement or consent hereunder; (c) pay all original issue
taxes (including any interest and penalties in respect thereof); (d) pay all
reasonable costs and expenses of counsel for the Company; and (e) pay the cost
of complying with the securities or Blue Sky laws of any jurisdiction with
respect to the offering or
22
sale of the Shares; and (f) pay all reasonable fees for any consultants or
advisors retained by the Purchasers in connection with its due diligence
investigation.
9. Finder's Fees.
(a) The Company (i) represents and warrants that it has retained no
finder, agent or broker in connection with the transactions contemplated by this
Agreement, and (ii) hereby agrees to indemnify and hold harmless the Purchasers
of and from any liability for commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which the Company
or any of its employees or representatives is responsible.
(b) Each Purchaser (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold harmless the Company
and the other Purchasers of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or asserted
liability) for which such Purchaser, or any of such Purchaser's employees or
representatives, is responsible.
10. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be personally delivered or mailed by first-class
registered or certified mail, postage prepaid (return receipt requested):
(a) if to the Purchaser, at his address as set forth at the end of this
Agreement, marked for attention as there indicated, or at such other address as
may have been furnished to the Company by him in writing, with a copy to:
Xxxxxxxx & Xxx, PLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx I.N. XxXxxxxx, Esq.
(b) if to the Company,
@Plan. Inc
c/x Xxxxxxx Marketing Communications
0000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(c) with a copy to:
Bass, Xxxxx & Xxxx, PLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: J. Page Davidson, Esq.
23
11. Integration; Amendment and Waiver.
This Agreement embodies the entire agreement and understanding between
the Purchasers and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged, or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) with (but only with) the
written consent of the Company and Purchasers purchasing in the aggregate, at
least 66 2/3% of the Shares then outstanding.
12. Reorganization, Reclassification, Merger, and Consolidation.
The Company will not effect any consolidation, merger, exchange of
shares of capital stock, or sale of its assets, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation, merger, or exchange, or the company purchasing such assets
shall assume, by written instrument executed and mailed or delivered to the
Purchasers, an express assumption of the terms, conditions and obligations of
this Agreement as if it has been a party hereto.
13. Severability.
Should any one or more of the provisions of this Agreement or any
agreement entered into pursuant hereto be determined to be illegal or
unenforceable, all other provisions of this Agreement and such other agreements
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
14. Miscellaneous.
14.1 This Agreement shall be constructed and enforced in
accordance with the laws of the State of Tennessee without regard to its
principles of conflicts of laws.
14.2 All of the terms of this Agreement, whether so expressed
or not, shall be binding upon the respective personal representatives,
successors and assigns of the parties hereto and shall inure to the benefit of
and be enforceable by the respective personal representative, successors and
assigns of the parties hereto; provided, however, that this Agreement may not be
assigned by either party hereto without the prior written consent of the other.
14.3 Each Exhibit and Schedule to this Agreement is made a
part of this Agreement as though set forth in full herein. The headings in this
Agreement are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
14.4 Whenever the masculine gender is used herein, it shall be
deemed to include the feminine and the neuter.
14.5 This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[TO BE COMPLETED BY PURCHASER]
@PLAN. INC
---------------------------
(Purchaser's Name -- please print)
By:
--------------------------------
Xxxx X. Xxxxxx, Chairman
[IF AN ENTITY, PLEASE CHECK THE APPROPRIATE BOX BELOW]
_____ corporation
_____ general partnership
_____ limited partnership
_____ limited liability company organized under the laws of ____________ [STATE]
By:
------------------------------------
(Signature)
Title:
---------------------------------
(Complete with your title if
signing on behalf of an entity)
-------------------------------
-------------------------------
Address
-------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated: _______________________
25
SCHEDULE 1
SCHEDULE OF PURCHASERS
===============================================================================================================
NAME TOTAL TRANCHE ONE TRANCHE TWO TRANCHE THREE
COMMITMENT
---------------------------------------------------------------------------------------------------------------
The Southern Venture Fund,
II, L.P. $ 2,000,000 $ 200,000 $ 800,000 $ 1,000,000
---------------------------------------------------------------------------------------------------------------
Richland Ventures
L.P. $ 2,000,000 $ 200,000 $ 800,000 $ 1,000,000
---------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx $ 85,000 $ 8,500 $ 34,000 $ 42,500
---------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxx $ 50,000 $ 5,000 $ 20,000 $ 25,000
---------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxx $ 200,000 $ 20,000 $ 80,000 $ 100,000
---------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx $ 100,000 $ 10,000 $ 40,000 $ 50,000
---------------------------------------------------------------------------------------------------------------
Additional Inv. $ 565,000 $ 56,500 $ 226,000 $ 282,500
---------------------------------------------------------------------------------------------------------------
TOTAL: $ 5,000,000 $ 500,000 $ 2,000,000 $ 2,500,000
===============================================================================================================
[INSERT NAMES OF ADDITIONAL INVESTORS AS IDENTIFIED.]
