SERIES A CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
THIS SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this
"Agreement") is made and entered into as of May 9, 2000, by and between
WEBMODAL, INC., a Delaware corporation (the "Company") and NET VALUE HOLDINGS,
INC., a Delaware corporation (the "Investor").
RECITALS
The Company desires to sell to the Investor, and the Investor desires
to purchase from the Company, shares of the Company's Series A Convertible
Preferred Stock and Warrants to purchase shares of the Company's Common Stock on
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 Authorization. As of the Closing (as defined below), the
Company will have authorized the issuance, pursuant to the terms and conditions
of this Agreement, of (a) Five Hundred Sixty-Three Thousand (563,000) shares of
the Company's Series A Convertible Preferred Stock, $1.00 par value per share
(the "Series A Stock") having the rights, preferences, privileges and
restrictions set forth in the Certificate of Designation designating the Series
A Stock of the Company attached to this Agreement as Exhibit A (the "Series A
Certificate") and (b) warrants (the "Warrants") to purchase up to One Hundred
Seventy Thousand (170,000) shares of the Company's Common Stock, $.001 par value
per share (the "Common Stock"), substantially in the form attached to this
Agreement as Exhibit B.
1.2 Agreement to Purchase and Sell. The Company agrees to sell
to the Investor at the Closing, and the Investor agrees to purchase from the
Company at the Closing, Five Hundred Sixty-Three Thousand (563,000) shares of
Series A Stock and the Warrants for an aggregate purchase price of Five Million
Dollars ($5,000,000). The shares of Series A Stock purchased and sold pursuant
to this Agreement will be collectively referred to as the "Purchased Shares,"
the shares of Common Stock issuable upon conversion of the Purchased Shares will
be collectively referred to as the "Conversion Shares" and the shares of Common
Stock issuable upon exercise of the Warrants will be collectively referred to as
the "Warrant Shares."
2. CLOSING. The purchase and sale of the Purchased Shares and the
Warrants will take place at the offices of Klehr, Harrison, Xxxxxx, Xxxxxxxxx &
Xxxxxx LLP, counsel to the Investor, at 000 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 at 9:00 a.m. Eastern Time, on April __, 2000, or at such
other time and place as the Company and the Investor mutually agree upon (which
time and place are referred to in this Agreement as the "Closing"). At the
Closing, the Company will deliver to the Investor certificates representing the
Purchased Shares and the Warrants, against delivery to the Company by the
Investor of the full purchase price of the Purchased Shares, paid by (i) a wire
transfer of funds to the Company or certified bank check of Four Million Dollars
($4,000,000.00) in cash or immediately available funds and delivery to the
Company of a certificate representing that number shares of the Investor's
common stock (the "Investor Shares") having a value of One Million Dollars
($1,000,000), valued at the average closing price for the thirty (30) calendar
days preceding the Closing on the NASDAQ Over-The-Counter Bulletin Board
(collectively, the "Purchase Price").
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that the statements in the following
paragraphs of this Section 3 are all true and correct:
3.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to own its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted. The Company is duly
qualified and in good standing to do business as a foreign corporation in each
jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business, prospects or operations.
3.2 Capitalization. Upon filing the Series A Certificate,
immediately prior to the Closing, the capitalization of the Company will consist
of the following:
(a) Preferred Stock. A total of Three Million (3,000,000)
authorized shares of preferred stock, $1.00 par value per share, of which Five
Hundred Sixty-Three Thousand (563,000) shares are designated as Series A Stock,
none of which will be issued and outstanding. The rights, preferences and
privileges of the Series A Stock will be as stated in the Series A Certificate
and as provided by law.
(b) Common Stock. A total of Ten Million (10,000,000)
authorized shares of Common Stock, $0.0001 par value per share, of which One
Million Two Hundred Fourteen Thousand (1,214,000) shares are issued and
outstanding.
(c) Options, Warrants, Reserved Shares. Except as set
forth on Schedule 3.2(c), there are not outstanding any options, warrants,
rights (including conversion or preemptive rights) or agreements for the
purchase or acquisition from the Company of any shares of its capital stock or
any securities convertible into or ultimately exchangeable or exercisable for
any shares of the Company's capital stock. Except as set forth on Schedule
3.2(c), no shares of the Company's outstanding capital stock, or stock issuable
upon exercise or exchange of any outstanding options, warrants or rights, or
other stock issuable by the Company, are subject to any rights of first refusal
or other rights to purchase such stock (whether in favor of the Company or any
other person), pursuant to any agreement or commitment of the Company.
(d) Outstanding Security Holders. Attached to this
Agreement as Schedule 3.2(d) is a complete list of all outstanding stockholders,
option holders, warrant holders, convertible note holders and other security
holders of the Company as of immediately prior to the Closing, which schedule
lists the type of instruments, certificate numbers in sequential order (if
applicable), the dates of issuance, the names of holders and the number of
Shares held or to be held upon exercise of such instrument.
3.3 Subsidiaries. The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, association, or other entity.
3.4 Due Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery of, and the performance of all obligations of
the Company under, this Agreement, the Investor Rights Agreement (as defined in
Section 5.11), and the Stockholder's Agreement (as defined in Section 5.12)
(collectively, the "Related Agreements") and the authorization, issuance,
reservation for issuance and delivery of all of the Purchased Shares and the
Warrants being sold under this Agreement and of the Conversion Shares and the
Warrants Shares has been taken or will be taken prior to the Closing, and this
Agreement constitutes, and the Related Agreements, when executed, will
constitute, valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the effect of rules of law governing the availability of
equitable remedies.
3.5 Valid Issuance of Stock.
(a) The Purchased Shares and the Warrants, when issued,
sold and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly issued, fully paid
and nonassessable. The Conversion Shares and the Warrant Shares have been duly
and validly reserved for issuance and, upon issuance in accordance with the
terms of the Series A Certificate or the Warrants, as applicable, will be duly
and validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the
Investor in Section 4 hereof, the Purchased Shares and the Warrants and
(assuming no change in applicable law and no unlawful distribution of Purchased
Shares by the Investor or other parties) the Conversion Shares and the Warrant
Shares will be issued in full compliance with the registration and prospectus
delivery requirements of the U.S. Securities Act of 1933, as amended (the "1933
Act") or in compliance with applicable exemptions therefrom and the registration
and qualification requirements of all applicable state securities laws; provided
that, with respect to the Conversion Shares and the Warrant Shares, no
commission or other remuneration is paid or given, directly or indirectly, for
soliciting the issuance of Conversion Shares or the Warrant Shares upon the
conversion of the Purchased Shares or exercise of the Warrants, if applicable,
and no additional consideration is paid for the Conversion Shares or the Warrant
Shares other than surrender of the applicable Purchased Shares or the Warrants
upon conversion or exercise thereof in accordance with the Series A Certificate
or the Warrants, as applicable.
(c) The outstanding shares of the capital stock of the
Company are duly and validly issued, fully paid and nonassessable, and such
shares of capital stock, and all outstanding options, warrants, convertible
notes and other securities of the Company, have been issued in full compliance
with the registration and prospectus delivery requirements of the 1933 Act or in
compliance with applicable exemptions therefrom and the registration and
qualification requirements of all applicable state securities laws.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement and the Related Agreements, except for such
qualifications or filings under the 1933 Act and the regulations thereunder and
all other applicable securities laws of states of the United States as may be
required in connection with the transactions contemplated by this Agreement. All
such qualifications and filings will, in the case of qualifications, be
effective on the Closing and will, in the case of filings, be made within the
time prescribed by law.
3.7 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending or, to the best of the Company's
Knowledge (as defined below), currently threatened against the Company, its
activities, properties or assets or, to the best of the Company's Knowledge,
against any officer, director or employee of the Company in connection with such
officer's, director's or employee's relationship with, or actions taken on
behalf of, the Company. To the best of the Company's Knowledge, there is no
factual or legal basis for any such Action that might result, individually or in
the aggregate, in any material adverse change in the business, properties,
assets, financial condition, affairs or prospects of the Company. By way of
example but not by way of limitation, there are no Actions pending or, to the
best of the Company's Knowledge, threatened (or any factual or legal basis
therefor known to the Company) relating to the prior employment of any of the
Company's employees or consultants, their use in connection with the Company's
business of any information, technology or techniques allegedly proprietary to
any of their former employers, clients or other parties, or their obligations
under any agreements with prior employers, clients or other parties. The Company
is not a party to or subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality and
there is no Action by the Company currently pending or which the Company intends
to initiate. For the purposes of this Agreement, "Knowledge" means (i) the
actual knowledge of such party's officers and directors; and (ii) the knowledge
that any such officer or director acting as a prudent business person would have
obtained in the conduct of his or her business after making reasonable inquiry
and exercising reasonable diligence with respect to the particular matter in
question.
3.8 Status of Proprietary Assets.
(a) Ownership. Except as set forth on Schedule 3.8(a), the
Company has full title and ownership of, or has license to, all patents, patent
applications, trademarks, service marks, trade names, copyrights, moral rights,
mask works, trade secrets, confidential and proprietary information,
compositions of matter, formulas, designs, proprietary rights, know-how and
processes (all of the foregoing collectively referred to as the "Proprietary
Assets") necessary to enable it to carry on its business as now conducted and as
presently proposed to be conducted. A complete list of all the Company's
patents, patent applications, trademarks, service marks and trade names is set
forth on Schedule 3.8(a) to this Agreement. To the best of the Company's
Knowledge, no third party has any ownership right, title, interest, claim in or
lien on any of the Company's Proprietary Assets and the Company has taken, and
in the future the Company will use its best efforts to take, all steps
reasonably necessary to preserve its legal rights in, and the secrecy of, all
its Proprietary Assets, except those for which disclosure is required for
legitimate business or legal reasons.
(b) Licenses; Other Agreements. The Company has not
granted, and, there are not outstanding, any options, licenses or agreements of
any kind relating to any Proprietary Asset of the Company and the Company is not
obligated to pay any royalties or other payments to third parties with respect
to the marketing, sale, distribution, manufacture, license or use of any
Proprietary Asset or any other property or rights.
(c) No Infringement. To the best of the Company's
Knowledge, the Company has not violated or infringed, and is not currently
violating or infringing, and the Company has not received any communications
alleging that the Company (or any of its employees or consultants) has violated
or infringed or, by conducting its business as proposed, would violate or
infringe, any Proprietary Asset of any other person or entity.
(d) No Breach by Employee. The Company is not aware that
any employee or consultant of the Company is obligated under any agreement
(including licenses, covenants or commitments of any nature) or subject to any
judgment, decree or order of any court or administrative agency, or any other
restriction that would interfere with the use of his or her best efforts to
carry out his or her duties for the Company or to promote the interests of the
Company or that would conflict with the Company's business as proposed to be
conducted. The carrying on of the Company's business by the employees and
consultants of the Company and the conduct of the Company business as presently
proposed, will not, to the best of 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 or consultants or the Company is now obligated. The Company does not
believe it is or will be necessary to utilize any inventions of any employees of
the Company (or persons the Company currently intends to hire) made prior to
their employment by the Company which have not otherwise become property of the
Company. To the best of the Company's knowledge, at no time during the
conception of or reduction of any of the Proprietary Assets to practice was any
developer, inventor or other contributor to such patents operating under any
grants from any governmental entity or agency or private source, performing
research sponsored by any governmental entity or agency or private source or
subject to any employment agreement or invention assignment or nondisclosure
agreement or other obligation with any third party that could adversely affect
the Company's rights in such Proprietary Assets.
3.09 Compliance with Law and Charter Documents. The Company is
not in violation or default of any provisions of its Certificate of
Incorporation or Bylaws, both as amended, and to the best of the Company's
Knowledge, the Company is in compliance with all applicable statutes, laws,
regulations and executive orders of the United States of America and all states,
foreign countries or other governmental bodies and agencies having jurisdiction
over the Company's business or properties. The Company has not received any
notice of any violation of such statutes, laws, regulations or orders which has
not been remedied prior to the date hereof. The execution, delivery and
performance of this Agreement and the Related Agreements and the consummation of
the transactions contemplated hereby or thereby will not be in conflict with or
constitute, with or without the passage of time or the giving of notice or both,
either a default under the Company's Certificate of Incorporation or Bylaws, or
any agreement or contract of the Company, or, to the best of the Company's
Knowledge, violate any statutes, laws, regulations or orders, or result in the
creation of any lien, charge or encumbrance upon any asset of the Company.
3.10 Material Agreements.
(a) List of Material Agreements. Attached to this
Agreement as Schedule 3.10 is a complete list of all agreements, contracts,
leases, licenses, instruments and commitments (oral or written) to which the
Company is a party or is bound that, individually or in the aggregate, are
material to the business, properties, financial condition, results of operation,
affairs or prospects of the Company ("Material Agreements"); provided that for
purposes of this Section 3.10 only, no agreement under which the only remaining
obligation of the Company is to make a payment of money in the amount of $5,000
or less will be deemed to be material to its business, properties, financial
condition, results of operations, affairs or prospects if the failure to make
such payment will not result in the loss by the Company of any rights that are
material to the conduct of its business.
(b) No Breach. The Company has not breached, nor does the
Company have any Knowledge of any claim or threat that the Company has breached,
any term or condition of any Material Agreement set forth in Schedule 3.10. Each
Material Agreement set forth in Schedule 3.10 is in full force and effect and,
to the Company's Knowledge, no other party to such Material Agreement is in
default thereunder. The Company is not a party to any agreement that restricts
its ability to market or sell any of its products (whether by territorial
restriction or otherwise).
3.11 Registration Rights. Except as set forth on Schedule
3.11, the Company has not granted or agreed to grant to any person or entity any
rights (including piggyback registration rights) to have any securities of the
Company registered with the United States Securities and Exchange Commission
("SEC") or any other governmental authority.
3.12 Charter Documents; Minutes. The Certificate of
Incorporation and the Bylaws of the Company are in the form previously provided
to the Investor. The minute books of the Company made available to the Investor
for inspection contain a complete summary of all meetings, consents and actions
of the board of directors and the stockholders of the Company since the time of
its incorporation, accurately reflecting all transactions referred to in such
minutes in all material respects.
3.13 Title to Property and Assets. The Company owns its
properties and assets free and clear of all mortgages, deeds of trust, liens,
encumbrances, security interests and claims except for statutory liens for the
payment of current taxes that are not yet delinquent and liens, encumbrances and
security interests which arise in the ordinary course of business and which do
not affect in any material respect the properties and assets of the Company.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to the best of the Company's Knowledge, the Company holds
valid leasehold interests in such assets free of any liens, encumbrances,
security interests or claims of any party other than the lessors of such
property and assets.
3.14 Financial Statements. Attached to this Agreement as
Schedule 3.14 is an unaudited balance sheet of the Company dated December 31,
1999 (the "Balance Sheet Date") and an unaudited income, statement of changes in
stockholder equity and statement of cash flows of the Company for the period
ended December 31,1999 together with an unaudited balance sheet dated March 31,
2000 and related statements of income, changes in stockholder's equity and cash
flows for the three-month period ended March 31, 2000 (all such financial
statements being collectively referred to herein as the "Financial Statements").
Such Financial Statements (a) are in accordance with the books and records of
the Company; (b) are true, correct and complete in all material respects and
present fairly in all material respects the financial condition of the Company
at the date or dates therein indicated and the results of operations for the
period or periods therein specified and (c) have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis,
except, as to the unaudited financial statement, for the omission of notes
thereto and normal year-end audit adjustments. The Company has good and
marketable title to all assets set forth on the balance sheets of the Financial
Statements, except for such assets as have been spent, sold or transferred in
the ordinary course of business since the Balance Sheet Date.
3.15 Certain Actions. Except as set forth on Schedule 3.15,
since the Balance Sheet Date, the Company has not: (a) declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock; (b) incurred any indebtedness for money
borrowed; (c) made any loans or advances to any person, other than ordinary
advances for travel expenses; (d) sold, exchanged or otherwise disposed of any
material assets or rights other than the sale of inventory in the ordinary
course of its business; or (e) entered into any transactions with any of its
officers, directors or employees or any entity controlled by any of such
individuals other than employment agreements in the ordinary course of business.
3.16 Activities Since Balance Sheet Date. Except as set forth
on Schedule 3.16, since the Balance Sheet Date, the Company has not:
(a) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture, or other entity;
(b) written up, written down, or written off the book
value of any amount of assets;
(c) declared, paid, or set aside for payment any dividend
or distribution with respect to its capital stock; or
(d) redeemed, purchased, or otherwise acquired, or sold,
granted, or otherwise disposed of, directly or indirectly, any of its capital
stock or securities or any rights to acquire such capital stock or securities,
or agreed to changes in the terms and conditions of any such rights.
In addition to the foregoing, since the Balance Sheet Date,
there has not been:
(e) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the assets, properties,
financial condition, operating results, prospects or business of the Company (as
presently conducted and as presently proposed to be conducted);
(f) any waiver by the Company of a valuable right or of a
material debt owed to it; or
(g) to the Company's Knowledge, any other event or
condition of any character which would materially and adversely affect the
assets, properties, financial condition, operating results or business of the
Company.
3.17 ERISA Plans. Schedule 3.17 identifies all employee
benefit plans or arrangements applicable to the employees of the Company, and
all material fixed or contingent liabilities or obligations of the Company with
respect to any person now or formerly employed by the Company, including pension
or thrift plans, individual or supplemental pension or accrued compensation
arrangements, contributions to hospitalization or other health or life insurance
programs, incentive plans, bonus arrangements, and vacation, sick leave,
disability, and termination arrangements or policies, including workers'
compensation policies. The Company shall furnish or make available to the
Investor true and complete copies of all written documents or information with
respect to employee matters and arrangements, including without limitation all
employee handbooks, rules, policies, plan documents, trust agreements,
employment agreements, summary plan descriptions, and descriptions of any
unwritten plans identified in Schedule 3.17. Any employee benefits and welfare
plans or arrangements identified in Schedule 3.17 were established and have been
executed, managed, and administered in all material respects in accordance with
all applicable requirements of the Internal Revenue Code of 1986, as amended
(the "Code"), and the Employee Retirement Income Security Act of 1974, as
amended, and other applicable laws. There is no governmental audit or
examination of any of such plans or arrangements pending, nor, to the Knowledge
of the Company, threatened. There exists no action, suit, or claim (other than
routine claims for benefits) with respect to any of such plans or arrangements
pending, or, to the Knowledge of the Company, threatened, against any of such
plans or arrangements, and the Company knows of no facts which could give rise
to any such action, suit, or claim.
3.18 Insurance. The Company has in full force and effect fire
and casualty insurance policies as is customary for the type of business engaged
in by the Company, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow it to replace any of its properties that might
be damaged or destroyed. True and complete copies of all such insurance policies
have previously been made available to the Investor for inspection and notice of
any termination or threatened termination of such policies has been made known
to the Investor.
3.19 Tax Returns and Payments. Neither the Company, nor any
entity to whose liabilities the Company has succeeded or assumed, has filed or
been included in a consolidated, unitary, or combined tax return with another
person. Except as set forth on Schedule 3.19, (a) the Company has filed all tax
returns and reports required to have been filed by or for it, including but not
limited to those with respect to income, payroll, property, employee
withholding, social security, unemployment, franchise, excise, use, and sales
taxes; (b) all material information set forth in such returns or reports is
accurate and complete; (c) the Company has paid or made adequate provision for
all taxes, additions to tax, penalties, and interest payable by the Company; (d)
to the best of the Company's Knowledge, no unpaid tax deficiency has been
asserted against or with respect to the Company by any taxing authority, and the
Company has not received written notice of any such assertion; (e) the Company
has collected or withheld all amounts required to be collected or withheld by it
for any taxes, and to the extent required by law, all such amounts have been
paid to the appropriate governmental agencies or set aside in appropriate
accounts for future payment when due; (f) the Company is in compliance with, and
its records contain all information and documents necessary to comply with, all
applicable information reporting and tax withholding requirements; (g) the
balance sheets contained in the Financial Statements fully and properly reflect,
as of the dates thereof, the liabilities of the Company for all accrued taxes,
additions to tax, penalties, and interest; (h) for periods ending after the date
of the most recent Financial Statements, the books and records of the Company
fully and properly reflect its liability for all accrued taxes, additions to
tax, penalties, and interest; (i) the Company has not granted, nor is it subject
to, any waiver of the period of limitations for the assessment of tax for any
currently open taxable period; (j) the Company has not made or entered into, and
holds no asset subject to, a consent filed pursuant to Section 341(f) of the
Code and the regulations thereunder or a "safe harbor lease" subject to former
Section 168(f)(8) of the Internal Revenue Code of 1954, as amended before the
Tax Reform Act of 1986, and the regulations thereunder; (k) the Company is not
required to include in income any amount for an adjustment pursuant to Section
481 of the Code or the regulations thereunder; and (l) the Company is not a
party to, or obligated under, any agreement or other arrangement providing for
the payment of any amount that would be an "excess parachute payment" under
Section 280G of the Code.
3.20 Employee Matters.
(a) The Company is not bound by or subject to any
contract, commitment or arrangement with any labor union, and to the Company's
Knowledge, no labor union has requested, sought or attempted to represent any
employees, representatives or agents of the Company. There is no strike or other
labor dispute involving the Company pending nor, to the Company's Knowledge,
threatened, nor is the Company aware of any labor organization activity
involving its employees.
(b) The Company is not aware that any officer or employee
intends to terminate his or her employment with the Company, nor does the
Company have any present intention to terminate the employment of any of its
officers or employees. Schedule 3.20(b) identifies all employees and consultants
of the Company and the title, term (if other than at will) and compensation of
each.
(c) To the Company's Knowledge, the Company (i) is in
full compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment, and wages and hours; (ii) is in
full compliance with all of its obligations under applicable workers
compensation laws, rules, and regulations; and (iii) is not engaged in any
unfair labor practice.
(d) To the Company's Knowledge, no current employee,
director or officer has been indicted or convicted of a felony or misdemeanor
(other than traffic violations).
3.21 Environmental Matters.
(a) During the period that the Company has leased or
owned its properties or owned or operated any facilities, there have been no
disposals, releases or threatened releases of Hazardous Materials (as defined
below) on, from or under such properties or facilities. The Company has no
Knowledge of any presence, disposals, releases or threatened releases of
Hazardous Materials on, from or under any of such properties or facilities,
which may have occurred prior to the Company having taken possession of any of
such properties or facilities. For purposes of this Agreement, the terms
"disposal", "release", and "threatened release" shall have the definitions
assigned thereto by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended ("CERCLA"). For
the purposes of this Section, "Hazardous Materials" shall mean any hazardous or
toxic substance, material or waste which is or becomes prior to the Closing
regulated under, or defined as a "hazardous substance", "pollutant",
"contaminant", "toxic chemical", "hazardous material", "toxic substance", or
"hazardous chemical" under (i) CERCLA; (ii) the Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. Section 11001 et seq.; (iii) the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; (iv) the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; (v) the Occupational
Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; (vi) regulations
promulgated under any of the above statutes; or (vii) any applicable state or
local statute, ordinance, rule, or regulation that has a scope or purpose
similar to those statutes identified above.
(b) None of the Company's properties or facilities is in
material violation of any federal, state, or local law, ordinance, regulation,
or order relating to industrial hygiene or to the environmental conditions on,
under or about such properties or facilities, including, but not limited to,
soil and ground water condition. During the time that the Company has owned or
leased its properties and facilities, neither the Company nor, to the Company's
Knowledge, any third party, has used, generated, manufactured or stored on,
under or about such properties or facilities or transported to or from such
properties or facilities any Hazardous Materials.
(c) During the time that the Company has owned or leased
its properties and facilities, there has been no litigation brought or
threatened against the Company, or any settlement reached by the Company with,
any party or parties alleging the presence, disposal, release or threatened
release of any Hazardous Materials on, from or under any of such properties or
facilities.
(d) During the period that the Company has owned or
leased its properties and facilities, no Hazardous Materials have been
transported from such properties or facilities to any site or facility now
listed or proposed for listing on the National Priorities List, at 40 C.F.R.
Part 300, or any list with a similar scope or purpose published by any state
authority.
3.22 Interested Party Transactions. Except as set forth on
Schedule 3.22, to the Company's Knowledge,
(a) no officer, employee or director of the Company or
any "affiliate" or "associate" (as those terms are defined in Rule 405 of the
0000 Xxx) has had, either directly or indirectly, a material interest in: (i)
any person or entity which purchases from or sells, licenses or furnishes to the
Company any goods, property, technology, intellectual or other property rights
or services; or (ii) any contract or agreement to which the Company is a party
or by which it may be bound or affected.
(b) the Company has no indebtedness to or with an
officer, employee, director, affiliate or associate.
3.23 Use of Proceeds. The Company shall use the proceeds from
the sale of the Purchased Shares for the purposes identified on Schedule 3.23.
3.24 Disclosure. This Agreement and the Schedules and Exhibits
hereto (when read together) do not contain any untrue statement of a material
fact and do not omit to state a material fact necessary to make the statements
therein or herein not misleading.
3.25 Real Property Holding Corporation Status. Since its
inception, the Company has not been a "United States real property holding
corporation", as defined in Section 897(c)(2) of the Code, and in Section
1.897-2(b) of the Treasury Regulations issued thereunder (the "Regulations"),
and the Company has filed with the Internal Revenue Service all statements, if
any, with its United States income tax returns which are required under Section
1.897-2(h) of the Regulations.
3.26 Tax Elections. The Company has not elected pursuant to
the Code to be treated as an "S" corporation under Section 1362(a) of the Code
or a collapsible corporation pursuant to Section 341(f) of the Code, nor has it
made any other elections pursuant to the Code (other than elections which relate
solely to matters of accounting, depreciation or amortization) which would have
a material affect on the Company, its financial condition, its business as
presently conducted or presently properties or material assets.
3.27 No Material Undisclosed Liabilities.
(a) There is no liability or obligation of the Company of
any nature, whether absolute, accrued, contingent, or otherwise, in the amount
of $5,000 or more individually, or $10,000 or more in the aggregate, other than:
(i) the liabilities and obligations that are fully
reflected, accrued or reserved against on the balance sheets of the Financial
Statements, for which the reserves are appropriate and reasonable, or incurred
in the ordinary course of business and consistent with past practices;
(ii) the contractual obligations disclosed on
Schedules 3.10; and
(iii) the liabilities and obligations disclosed on
Schedule 3.27.
(b) The Company is not signatory to, and is not in any
manner a guarantor, endorser, assumptor or otherwise primarily or secondarily
liable for or responsible for the payment of, any notes payable or other
obligations other than those set forth in the Financial Statements.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR. The
Investor hereby represents and warrants to, and agrees with, the Company that:
4.1 Authorization. This Agreement constitutes, and the Related
Agreements, when executed will constitute, the Investor's valid and legally
binding obligation, enforceable in accordance with its terms except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies. The Investor represents that it has full power and
authority to enter into this Agreement and the Related Agreements. All corporate
action on the part of the Investor, its officers, directors and stockholders
necessary for the authorization, execution, delivery of and the performance of
all obligations of the Investor under, this Agreement and the Related Agreements
and the authorization, issuance and delivery of the Investor Shares has been
taken or will be taken prior to the Closing.
4.2 Purchase for Own Account. The Purchased Shares and the
Warrants to be purchased by the Investor hereunder will be acquired for
investment for the Investor's own account, not as a nominee or agent, and not
with a view to the public resale or distribution thereof within the meaning of
the Act, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor has not been
formed for the specific purpose of acquiring the Purchased Shares or the
Warrants.
4.3 Disclosure of Information. The Investor has received or
has had full access to all the information it considers necessary or appropriate
to make an informed investment decision with respect to the Purchased Shares and
the Warrants to be purchased by the Investor under this Agreement. The Investor
further has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Purchased
Shares and the Warrants and to obtain additional information (to the extent the
Company possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to the Investor
or to which the Investor had access. The foregoing, however, does not in any way
limit or modify the representations and warranties made by the Company in
Section 3.
4.4 Accredited Investor Status. The Investor is an "accredited
investor" within the meaning of Regulation D promulgated under the Act.
4.5 Investment Experience. The Investor understands that the
acquisition of the Purchased Shares and the Warrants involves substantial risk.
The Investor: (i) has experience as an investor in securities of companies in
the development stage and acknowledges that it is able to fend for itself, can
bear the economic risk of its acquisition of the Purchased Shares and the
Warrants and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of this acquisition of the
Purchased Shares and the Warrants and protecting its own interests in connection
with this acquisition and/or (ii) has a preexisting personal or business
relationship with the Company and certain of its officers, directors or
controlling persons of a nature and duration that enables the Investor to be
aware of the character, business acumen and financial circumstances of such
persons.
4.6 Restricted Securities. The Investor understands that the
Purchased Shares and the Warrants are characterized as "restricted securities"
under the Act inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under the Act and
applicable rules and regulations thereunder such securities may be resold
without registration under the Act only in certain limited circumstances. In
this connection, the Investor represents that it is familiar with Rule 144 of
the rules and regulations promulgated under the Act ("Rule 144"), as presently
in effect, and understands the resale limitations imposed thereby and by the
Act. The Investor understands that the Company is under no obligation to
register any of the securities sold hereunder except as provided in the Investor
Rights Agreement. The Investor understands that no public market now exists for
any of the Purchased Shares or the Warrants and that it is uncertain whether a
public market will ever exist for the Purchased Shares, the Warrants, the
Conversion Shares or the Warrant Shares.
4.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, the Investor further agrees not to
make any disposition of all or any portion of the Purchased Shares, the
Warrants, the Conversion Shares or the Warrant Shares unless and until:
(a) there is then in effect a registration statement under
the 1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) the Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a statement
of the circumstances surrounding the proposed disposition, and (ii) the Investor
shall have furnished the Company, at the expense of the Investor or its
transferees, with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such securities under the
Act.
4.8 Legends. It is understood that the certificates evidencing
the Purchased Shares, the Warrants, the Conversion Shares, the Warrant Shares
and the Investor Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
(b) Any legend required by state securities laws,
including a legend on the Purchased Shares substantially in the form of the
following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE: (1) ARE CONVERTIBLE
INTO SHARES OF COMMON STOCK OF THE COMPANY AT THE OPTION OF THE HOLDER
AT ANY TIME PRIOR TO AUTOMATIC CONVERSION THEREOF; AND (2)
AUTOMATICALLY CONVERT INTO COMMON STOCK OF THE COMPANY IN THE EVENT OF
A PUBLIC OFFERING MEETING CERTAIN REQUIREMENTS PURSUANT TO AND UPON THE
TERMS AND CONDITIONS SPECIFIED IN THE COMPANY'S CERTIFICATE OF
DESIGNATION. A COPY OF SUCH CERTIFICATE OF DESIGNATION MAY BE OBTAINED,
WITHOUT CHARGE, AT THE COMPANY'S PRINCIPAL OFFICE.
The legend set forth in (a) above shall be removed by the Company from
any certificate evidencing Purchased Shares, Conversion Shares or Warrant Shares
in connection with any transfer of such shares upon delivery to the Company of
an opinion by counsel, reasonably satisfactory to the Company, that a
registration statement under the Act is at that time in effect with respect to
the legended security or that such security can be freely transferred in a
public sale pursuant to Rule 144.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING. The
obligations of the Investor to the Company under this Agreement are subject to
the fulfillment or waiver, on or before the Closing, of each of the following
conditions, the waiver of which shall not be effective against the Investor if
the Investor does not consent to such waiver, which consent may be given by
written communication to the Company or its counsel:
5.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
5.2 Due Diligence. The Investor shall have completed, to its
sole satisfaction, its due diligence of the Company.
5.3 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.4 Series A Certificate. The Series A Certificate shall have
been duly adopted by the Company by all necessary corporate action of its Board
of Directors and stockholders, and shall have been duly filed with and accepted
by the Delaware Secretary of State.
5.5 Compliance Certificate. The Company shall have delivered
to the Investor at the Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Section 5.1 and Sections 5.3 through 5.5 have been
fulfilled and stating that there shall have been no material adverse change in
the business, affairs, prospects, operations, properties, assets or condition of
the Company since the date of this Agreement.
5.6 Securities Exemptions. The offer and sale of the Purchased
Shares to the Investor pursuant to this Agreement shall be exempt from the
registration requirements of the Act and the registration and/or qualification
requirements of all other applicable state securities laws.
5.7 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Investor and to the counsel for the Investor, and they shall
each have received all such counterpart originals and certified or other copies
of such documents as they may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) Certified Charter Documents. A copy of the Certificate
of Incorporation, Series A Certificate and Bylaws of the Company (as amended
through the date of the Closing), certified by the Secretary of the Company as
true and correct copies thereof as of the Closing.
(b) Secretary's Incumbency Certificate. A certificate of
the Secretary or an Assistant Secretary or other officer of the Company
certifying the names of the officers of the Company authorized to sign this
Agreement, the Related Agreements, the certificates for the Purchased Shares and
the other documents, instruments or certificates to be delivered pursuant to
this Agreement by the Company or any of its officers, together with the true
signatures of such officers.
(c) Corporate Actions. A copy of the resolutions of the
Board of Directors and the stockholders of the Company evidencing the approval
of the Series A Certificate, the approval of this Agreement, the Related
Agreements, the issuance of the Purchased Shares and the other matters
contemplated hereby, certified by the Secretary of the Company to be true,
complete and correct.
(d) Good Standing Certificates. A certificate of good
standing of the Company issued by the Delaware Secretary of State, dated no
earlier than ten (10) days prior to the date of Closing.
5.8 Board of Directors. All appropriate action shall be taken
to ensure that the Company's Board of Directors consists of five (5) directors
and that the directors are Xxxxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxxxx and two vacancies to be elected by the holders of Common Stock
following the Closing.
5.9 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company since the date of this Agreement.
5.10 Opinion of Company Counsel. The Investor shall have
received an opinion from Xxxxx, Xxxxx & Xxxxx, counsel for the Company, dated as
of the date of the Closing, in form reasonably satisfactory to the Investor and
its counsel.
5.11 Investor Rights Agreement. The Company and the Investor
shall have executed and delivered the Investor Rights Agreement in the form
attached to this Agreement as Exhibit B (the "Investor Rights Agreement").
5.12 Stockholders' Agreement. The Company, the stockholders of
the Company named therein and the Investor shall have executed and delivered the
Stockholders' Agreement in the form attached as Exhibit C (the "Stockholder's
Agreement").
5.13 Payment of Expenses. The Company shall have paid the
commissions, fees, costs and expenses identified in Section 7.11 of this
Agreement.
5.14 Key Man Insurance. The Company shall obtain and maintain,
for a period of three (3) years, term life insurance on the life of Xxxxxxxxxxx
Xxxxxx for an amount of no less than $2.0 million with the Company and
beneficiary.
5.15 Directors and Officers Insurance. The Company shall
obtain and maintain for the period that precedes a Qualified IPO and provide
evidence of such prior to Closing Directors and Officers Insurance with coverage
limits that are customary for similarly situated companies, but in no event less
than $2.0 million per occurrence.
5.16 Cancellation of Common Stock. Xxxxxxxxxxx Xxxxxx shall
have delivered to the Company for cancellation certificates representing Fifty
Thousand (50,000) shares of the Company's Common Stock, and receipt by Investor
of evidence satisfactory to it of such cancellation on the stock records of the
Company.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment or waiver, on or before the Closing, of each of the following
conditions, the waiver of which shall not be effective against the Company if
the Company does not consent to such waiver, which consent may be given by
written communication to the Investor or its counsel:
6.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 4 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. The Investor shall have
delivered to the Company the Purchase Price in accordance with Section 2.
6.3 Series A Certificate. The Series A Certificate shall have
been duly adopted by the Company by all necessary corporate action of its Board
of Directors and stockholders, and shall have been duly filed with and accepted
by the Delaware Secretary of State.
6.4 Securities Exemptions. The offer and sale of the Purchased
Shares and the Warrants to the Investor pursuant to this Agreement shall be
exempt from the registration requirements of the Act and the registration and/or
qualification requirements of all other applicable state securities laws.
6.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel, and the Company
shall have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request.
6.6 Investor Rights Agreement. The Company and the Investor
shall have executed and delivered the Investor Rights Agreement.
6.7 Stockholder's Agreement. The Company, the stockholders of
the Company named therein and the Investor shall have executed and delivered the
Stockholder's Agreement.
7. MISCELLANEOUS.
7.1 Year 2000 Budget.Promptly following the Closing, the
Company shall provide the Investor with operating and capital budgets for the
calendar year 2000 which are reasonably acceptable to the Investor.
7.2 Survival of Warranties. The representations, warranties
and covenants of the Company and the Investor contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor, its counsel or the Company,
as the case may be.
7.3 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
7.4 Governing Law; Venue; Waiver of Jury Trial. This Agreement
and the Related Agreements shall be governed by and construed under the internal
laws of the State of Delaware, without reference to principles of conflict of
laws or choice of laws. The venue for any claim, controversy or dispute which
arises between the parties hereto (with respect to this Agreement or any Related
Agreement) shall be the United States District Court for the District of
Delaware (or state court if federal jurisdiction does not apply) and the parties
hereby consent to the jurisdiction of such courts and waive any objection to
such venue. THE PARTIES TO THIS AGREEMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY
JURY WITH RESPECT TO DISPUTES ARISING UNDER THIS AGREEMENT AND THE RELATED
AGREEMENTS AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE
FINDER OF FACT.
7.6 Counterparts. 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.
7.7 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.8 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the U.S. mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
If to the Investor: Net Value Holdings, Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy (which shall not constitute notice hereunder) to:
Klehr, Harrison, Xxxxxx,
Branzburg & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
If to the Company: Webmodal, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxx X
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
with a copy (which shall not constitute notice hereunder) to:
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esquire
Any party hereto (and such party's permitted assigns) may by notice so given
change its address for future notices hereunder. Notice shall conclusively be
deemed to have been given when personally delivered or when deposited in the
mail in the mail in the manner set forth above.
7.9 No Finder's Fees. Neither the Investor, the Company, or
any officer, director, or employee of the Investor or the Company (i) employed
any broker or finder, or (ii) incurred any liability whatsoever, for any
brokerage fees, commissions, or finders' fees in connection with the
transactions contemplated hereby. The Investor agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finders' or broker's fee (and any asserted liability) for which
the Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless the Investor from
any liability for any commission or compensation in the nature of a finder's or
broker's fee (and any asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
7.10 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the Related
Agreements or the Series A Certificate, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
7.11 Costs, Expenses. The Company shall pay, or reimburse the
Investor, for all costs and out-of pocket expenses of the Investor reasonably
incurred in connection with (i) the Investor's due diligence performed in
connection with its proposed investment in the Company; and (ii) the
negotiation, preparation, execution and delivery of this Agreement, the Related
Agreements, the Warrant and the Series A Certificate (including without
limitation, the fees and expenses of counsel to the Investor), such fees and
expenses not to exceed $20,000.
7.12 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this Section 7.12 shall be
binding upon each holder of any Purchased Shares and/or Conversion Shares at the
time outstanding, each future holder of such securities, and the Company.
7.13 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
7.14 Entire Agreement. This Agreement, together with all
exhibits and schedules hereto, constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings duties or obligations between the parties with respect to the
subject matter hereof.
7.15 Further Assurances. From and after the date of this
Agreement, upon the request of the Investor or the Company, the Company and the
Investor shall execute and deliver such instruments, documents or other writings
as may be reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
7.16 Mutual Drafting. This Agreement is the result of the
joint efforts of the Company and the Investor, and each provision hereof has
been subject to the mutual consultation, negotiation and agreement of the
parties and there shall be no construction against any party based on any
presumption of the party's involvement in the drafting thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Series A
Convertible Preferred Stock Purchase Agreement as of the date first above
written.
THE COMPANY:
------------
WEBMODAL, INC.
a Delaware corporation
By:________________________________
Xxxxxxxxxxx X. Xxxxxx, President
THE INVESTOR:
-------------
NET VALUE HOLDINGS, INC.,
a Delaware corporation
By:________________________________
Xxxxxx X. Xxxxx, President
LIST OF SCHEDULES AND EXHIBITS
------------------------------
SCHEDULES
---------
Schedule 3.2(c) Outstanding Warrants, Options and Reserved Shares
Schedule 3.2(d) Outstanding Security Holders
Schedule 3.8(a) Ownership of Proprietary Assets
Schedule 3.8(b) Licenses, Other Agreements relating to Proprietary Assets
Schedule 3.10 List of Material Contracts
Schedule 3.14A Year End Financial Statements
Schedule 3.14B Interim Financial Statements
Schedule 3.15 Certain Actions
Schedule 3.16 Activities Since Balance Sheet Date
Schedule 3.17 ERISA Plans
Schedule 3.19 Tax Matters
Schedule 3.20(b) Employee Matters
Schedule 3.23 Use of Proceeds
EXHIBITS
--------
Exhibit A Series A Certificate
Exhibit B Form of Investor Rights Agreement
Exhibit C Form of Stockholders' Agreement
