EXHIBIT 10.13
XXXXXXX.XXX, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
May 4, 1999
Table of Contents
1. Purchase and Sale of Preferred Stock.......................................... 1
1.1 Sale and Issuance of Series A Preferred Stock............................ 1
1.2 Closing; Delivery........................................................ 1
2. Representations and Warranties of the Company................................. 2
2.1 Organization, Good Standing and Qualification............................ 2
2.2 Capitalization........................................................... 2
2.3 Subsidiaries............................................................. 3
2.4 Authorization............................................................ 3
2.5 Valid Issuance of Securities............................................. 3
2.6 Governmental Consents.................................................... 4
2.7 Litigation............................................................... 4
2.8 Intellectual Property.................................................... 4
2.9 Compliance with Other Instruments........................................ 5
2.10 Agreements; Action....................................................... 5
2.11 No Conflict of Interest.................................................. 6
2.12 Rights of Registration and Voting Rights................................. 6
2.13 Title to Property and Assets............................................. 6
2.14 No Financial Statements.................................................. 7
2.15 Changes.................................................................. 7
2.16 Employee Benefit Plans................................................... 8
2.17 Tax Returns and Payments................................................. 8
2.18 Labor Agreements and Actions............................................. 8
2.19 Employee Matters......................................................... 8
2.20 Permits.................................................................. 9
2.21 Corporate Documents...................................................... 9
2.22 Insurance Coverage....................................................... 9
2.23 Qualified Small Business Stock........................................... 9
2.24 Disclosure............................................................... 9
2.25 Year 2000 Compatability.................................................. 9
3. Representations and Warranties of the Purchasers.............................. 9
3.1 Authorization............................................................ 9
3.2 Purchase Entirely for Own Account........................................ 10
3.3 Disclosure of Information................................................ 10
3.4 Restricted Securities.................................................... 11
3.5 No Public Market......................................................... 10
3.6 Legends.................................................................. 11
3.7 Accredited Investor...................................................... 11
4. Conditions of the Purchasers' Obligations at Closing.......................... 11
4.1 Representations and Warranties........................................... 11
4.2 Performance.............................................................. 11
4.3 Compliance Certificate................................................... 11
4.4 Qualifications........................................................... 11
4.5 Opinion of Company Counsel............................................... 11
4.6 Board of Directors....................................................... 12
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4.7 Investors' Rights Agreement............................................... 12
4.8 Co-Sale Agreement......................................................... 12
4.8 Voting Agreement.......................................................... 12
4.10 Restated Articles......................................................... 12
4.11 Confidential Information and Invention Assignment Agreement............... 12
4.12 IPO Allocation Agreement.................................................. 12
5. Conditions of the Company's Obligations at Closing............................ 12
5.1 Representations and Warranties............................................ 12
5.2 Performance............................................................... 12
5.3 Qualifications............................................................ 12
5.4 Director Indemnification Agreements....................................... 13
5.5 Voting Agreement.......................................................... 13
6. Covenants of the Company...................................................... 13
6.1 Use of Proceeds........................................................... 13
6.2 Compensation Committee.................................................... 13
6.3 Audit Committee........................................................... 13
6.4 Vesting of Founders Stock................................................. 13
6.5 Key Man Life Insurance.................................................... 13
6.6 Qualified Small Business Stock............................................ 13
6.7 Termination of Covenants.................................................. 14
7. Miscellaneous................................................................. 14
7.1 Survival of Warranties.................................................... 14
7.2 Transfer; Successors and Assigns.......................................... 14
7.3 Governing Law............................................................. 14
7.4 Counterparts.............................................................. 14
7.5 Titles and Subtitles...................................................... 14
7.6 Notices................................................................... 14
7.7 Finder's Fee.............................................................. 15
7.8 Fees and Expenses......................................................... 15
7.9 Attorney's Fees........................................................... 15
7.10 Amendments and Waivers.................................................... 15
7.11 Severability.............................................................. 15
7.12 Delays or Omissions....................................................... 15
7.13 Entire Agreement.......................................................... 16
7.14 Corporate Securities Law.................................................. 16
7.15 Confidentiality........................................................... 16
7.16 Exculpation Among Purchasers.............................................. 16
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XXXXXXX.XXX, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
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This Series A Preferred Stock Purchase Agreement (the "Agreement") is made
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as of May 4, 1999 by and between Xxxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), and each of the investors listed on Exhibit A attached hereto (each
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a "Purchaser" and together the "Purchasers").
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The parties hereby agree as follows:
1. Purchase and Sale of Preferred Stock.
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1.1 Sale and Issuance of Series A Preferred Stock.
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(a) The Company shall adopt and file with the Secretary of State
of the State of Delaware on or before the Closing (as defined below) the Amended
and Restated Certificate of Incorporation in the form attached hereto as Exhibit
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B (the "Restated Certificate").
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(b) Subject to the terms and conditions of this Agreement, each
Purchaser agrees to purchase at the Closing and the Company agrees to sell and
issue to each Purchaser at the Closing that number of shares of Series A
Preferred Stock set forth opposite each such Purchaser's name on Exhibit A
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attached hereto at a purchase price of $1.00 per share (the "Original Purchase
Price"). The shares of Series A Preferred Stock issued to the Purchasers
pursuant to this Agreement shall be hereinafter referred to as the "Stock."
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(c) In connection with the sale and purchase of the Stock, the
Company agrees to sell warrants to purchase such number of shares of Series A
Preferred Stock set forth opposite each Purchaser's name on Exhibit A attached
hereto (the "Warrants"), at a purchase price of $0.001 per share, with an
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exercise price of $1.75 per share. The Company is valuing each Warrant at the
price of $0.001 per share for all purposes, including with respect to financial
statement and/or tax purposes. The Stock, the Common Stock issuable upon
conversion of the Stock, the Warrants and the Common Stock issuable upon the
exercise of the Warrants (the "Warrant Stock") shall be collectively referred to
herein as the "Securities."
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1.2 Closing; Delivery.
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(a) The purchase and sale of the Stock and the Warrants shall
take place at the offices of Xxxxxxx Coie LLP, 250 Xxxxxxxxxx Xxxxxx, 00/xx/
Xxxxx, California, at 10:00 a.m., on May 4, 1999, or at such other time and
place as the Company and the Purchasers of a majority of the Stock mutually
agree upon, orally or in writing (which time and place are designated as the
"Closing").
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(b) Subject to the terms of this Agreement, at the Closing, the
Company shall deliver to each Purchaser a certificate representing the Stock and
the Warrants being purchased thereby against payment of the purchase price
therefor by check payable to the
1
Company, by wire transfer to the Company's bank account, by cancellation of
indebtedness, or by any combination thereof.
2. Representations and Warranties of the Company. The Company hereby
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represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions attached hereto as Exhibit C (the "Schedule of
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Exceptions"), which exceptions shall be deemed to be representations and
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warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
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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 to carry on its business. The Company is duly qualified
to transact business and is in good standing as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business or properties.
2.2 Capitalization. The authorized capital of the Company consists,
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or will consist, immediately prior to the Closing, of:
(a) 9,900,000 shares of Preferred Stock, all of which shares
have been designated Series A Preferred Stock, none of which are issued and
outstanding immediately prior to the Closing. The rights, privileges and
preferences of the Series A Preferred Stock are as stated in the Restated
Certificate.
(b) 25,000,000 shares of Common Stock, 8,203,500 shares of which
are issued and outstanding immediately prior to the Closing. The holders of
record of the currently issued and outstanding shares of Common Stock
immediately prior to the Closing are set forth in Section 2.2 of the Schedule of
Exceptions. All of the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable, and were issued
in compliance with all applicable federal and state securities laws.
(c) The Company has (i) reserved 5,062,500 shares of Common
Stock for issuance to officers, directors, employees and consultants of the
Company pursuant to its 1999 Stock Option Plan duly adopted by the Board of
Directors and approved by the Company's stockholders (the "Stock Plan") (ii)
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reserved 9,000,000 shares of its Common Stock for issuance upon conversion of
the Stock, and (iii) reserved 900,000 shares of its Series A Preferred Stock for
issuance upon exercise of the Warrants. Of such reserved shares of Common Stock,
no options to purchase shares have been granted, and 5,062,500 shares of Common
Stock remain available for issuance to officers, directors, employees and
consultants pursuant to the Stock Plan.
(d) Except for (i) conversion privileges of the Series A
Preferred Stock and Warrant Stock, (ii) 5,062,500 shares of Common Stock
reserved for issuance pursuant to the Stock Plan, (iii) the rights of first
refusal set forth in the Investors Rights Agreement and Co-Sale Agreement and
(iv) the Sequoia Note and the Warrant to purchase up to 900,000 shares of Stock
to be issued to Purchaser in connection herewith, there are no outstanding
options, warrants, rights (including conversion or preemptive rights and rights
of first refusal or similar rights) or
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agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
2.3 Subsidiaries. The Company does not currently own or control,
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directly or indirectly, any interest in any other corporation, association, or
other business entity.
2.4 Authorization. All corporate action on the part of the Company,
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its officers, directors and stockholders necessary for the due authorization,
execution and delivery of this Agreement, the Investors' Rights Agreement, in
the form attached hereto as Exhibit D (the "Investors' Rights Agreement"), the
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Co-Sale Agreement in the form attached hereto as Exhibit E (the "Co-Sale
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Agreement"), the Voting Agreement in the form attached hereto as Exhibit F (the
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"Voting Agreement"), the IPO Allocation Agreement in the form attached hereto as
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Exhibit J (the "IPO Allocation Agreement" and collectively with the Investors'
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Rights Agreement, the Co-Sale Agreement and the Voting Agreement the "Related
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Agreements"), and any other agreements or instruments executed by the Company in
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connection herewith or therewith, the performance of all obligations of the
Company hereunder and thereunder and the authorization, issuance and delivery of
the Securities has been taken or will be taken prior to the Closing. This
Agreement, the Related Agreements and the other agreements and instruments
executed by the Company in connection herewith or therewith, when executed and
delivered by the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, or (iii) to the extent the indemnification provisions
contained in the Investors' Rights Agreement may be limited by applicable
federal or state securities laws.
2.5 Valid Issuance of Securities. The Stock and the Warrants being
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issued to the Purchasers hereunder, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and nonassessable and free of restrictions
on transfer other than restrictions on transfer under this Agreement, the Co-
Sale Agreement and applicable state and federal securities laws. Based in part
upon the representations of the Purchasers in Section 3 hereof and subject to
the provisions of Section 2.6 below, the Stock and the Warrants will be issued
in compliance with all applicable federal and state securities laws. The Common
Stock issuable upon conversion of the Stock (the "Conversion Stock") and the
Warrant Stock has been duly and validly reserved for issuance, and upon issuance
in accordance with the terms of the Restated Certificate, shall be duly and
validly issued, fully paid and nonassessable and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the Co-Sale
Agreement and applicable federal and state securities laws.
2.6 Governmental Consents. No consent, approval, order or
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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 and any other
agreements or instruments executed by the Company in connection herewith or
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therewith, or in connection with the issuance of the Stock and the Warrants,
except for filings pursuant to Section 25102(f) of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder, other applicable
state securities laws and Regulation D of the Securities Act of 1933, as amended
(the "Securities Act").
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2.7 Litigation. There is no action, suit, proceeding or
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investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its subsidiaries that questions the validity of
this Agreement or the Related Agreements or the right of the Company to enter
into them, or to consummate the transactions contemplated hereby or thereby, or
that might result, either individually or in the aggregate, in any material
adverse change in the assets, condition or affairs of the Company, financially
or otherwise, or any change in the current equity ownership of the Company, nor
is the Company aware that there is any basis for the foregoing. There is no
governmental investigation pending or, to the knowledge of the Company,
threatened against the Company or affecting any of the Company's properties or
assets, or against any officer, key employee or stockholder of the Company in
his or her capacity as such. Neither the Company, nor, to its knowledge, any
officer, key employee or stockholder of the Company, in his or her capacity as
such, is in default with respect to any order, writ, injunction, decree, ruling
or decision of any court, commission, board or other government agency which may
materially and adversely affect the business or assets of the Company. Neither
the Company nor any of its subsidiaries is a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality.
2.8 Intellectual Property. There are no outstanding options,
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licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity, except, in either case, for end-user, object code,
internal-use software license and support/maintenance agreements. The Company
has not received any communications alleging that the Company has violated or,
by conducting its business, would violate any of the patents, trademarks,
service marks, tradenames, copyrights, trade secrets or other proprietary rights
or processes of any other person or entity. To the knowledge of the Company,
the use of any tradenames, trademarks, copyrights, software, technology, know-
how or processes by the Company in its business does not infringe on the rights
of any proprietary information or intangible property right of any third person
or entity, including, without limitation, any patent, trade secret, copyright,
trademark or tradename. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of such
employee's best efforts to promote the interest of the Company or that would
conflict with the Company's business. The Company does not believe it is or
will be necessary to use any inventions of any of its employees (or persons it
currently intends to hire) made prior to their employment by the Company. The
Company has at all times used commercially reasonable efforts to treat its trade
secrets as confidential and has not disclosed or otherwise dealt with such items
in such a manner as to cause the loss of such trade secrets by release into the
public domain.
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2.9 Compliance with Other Instruments.
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(a) The Company is not in violation or default of any
provisions of (i) its Restated Certificate or Bylaws, (ii) any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, (iii) any mortgage, indenture, lease, license, other agreement or
instrument by which it is bound or to which it or any of its properties are
subject or (iv) to its knowledge, of any provision of federal or state statute,
rule or regulation applicable to the Company. The execution, delivery and
performance of the Agreement and the Related Agreements and the consummation of
the transactions contemplated hereby or thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any lien, charge or encumbrance upon any assets of the
Company.
(b) To its knowledge, the Company has avoided every condition,
and has not performed any act, the occurrence of which would result in the
Company's loss of any right granted under any license, distribution agreement or
other agreement to which the Company is a party.
2.10 Agreements; Action.
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(a) All agreements, understandings, instruments or contracts to
which the Company or any of its subsidiaries is a party or by which it is bound
that involve (i) obligations (contingent or otherwise) of, or payments to, the
Company or any of its subsidiaries in excess of $15,000, (ii) the license of any
patent, copyright, trade secret or other proprietary right to or from the
Company or any of its subsidiaries, or (iii) the grant of rights to manufacture,
produce, assemble, license, market, or sell its products to any other person or
affect the Company's exclusive right to develop, manufacture, assemble,
distribute, market or sell its products, and all agreements between the Company
and its officers, directors, consultants and employees (collectively, the
"Contracts") are set forth in Section 2.10 of the Schedule of Exceptions. All of
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the Contracts are valid and binding obligations of the Company and in full force
and effect in all material respects and enforceable by the Company in accordance
with their respective terms in all material respects, subject to the effect of
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, usury or other laws of general application relating to or affecting
enforcement of creditors' rights and rules or laws concerning equitable
remedies. The Company is not in material default under any of such Contracts.
(b) Neither the Company nor any of its subsidiaries has (i)
declared or paid any dividends, or authorized or made any distribution upon or
with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $15,000 or in excess of $25,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances for travel
expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights, other than the sale of its inventory in the ordinary course of business.
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2.11 No Conflict of Interest. The Company is not indebted, directly
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or indirectly, to any of its officers or directors or to their respective
spouses or children, in any amount whatsoever other than in connection with
expenses or advances of expenses incurred in the ordinary course of business or
relocation expenses of employees. To the Company's knowledge, none of the
Company's officers or directors, or any members of their immediate families,
are, directly or indirectly, indebted to the Company (other than in connection
with purchases of the Company's stock) 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 which
competes with the Company except that officers, directors and/or stockholders of
the Company may own stock in (but not exceeding two percent of the outstanding
capital stock of) any publicly traded company that may compete with the Company.
To the Company's knowledge, none of the Company's officers or directors or any
members of their immediate families are, directly or indirectly, interested 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.
2.12 Rights of Registration and Voting Rights. Except as
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contemplated in the Investors' Rights Agreement, the Company has not granted or
agreed to grant any registration rights, including piggyback rights, to any
person or entity. To the Company's knowledge, except as contemplated in the
Voting Agreement, no stockholder of the Company has entered into any agreements
with respect to the voting of capital shares of the Company.
2.13 Title to Property and Assets. The Company owns its property and
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assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens which arise in the ordinary course of business and
do not materially impair the Company's ownership or use of such property or
assets, and, to the knowledge of the Company, there exists no material violation
by the Company of any law, regulation or ordinance (including, without
limitation, laws, regulations or ordinances relating to zoning, environmental,
city planning or similar matters) relating to any real property owned, leased or
subleased by the Company. With respect to the property and assets it leases,
the Company is in material compliance with such leases and, to its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances.
There are no defaults by the Company or, to the knowledge of the Company, by any
other party thereto, which might curtail in any material respect the current use
of the Company's property. The performance by the Company of this Agreement and
the Related Agreements will not result in the termination of, or in any increase
of any amounts payable under, any lease listed in the Schedule of Exceptions.
2.14 No Financial Statements. The Company has not prepared any
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historical balance sheet, income statement, statement of cash flows or
stockholders' equity or other financial statement. The Company has no material
liability obligation, absolute or contingent (individually or in the aggregate),
except (i) obligations and liabilities incurred after the date of incorporation
in the ordinary course of business that are not material, individually or in the
aggregate, and (ii) obligations under contracts and commitments incurred in the
ordinary course of business that would not be required to be reflected in
financial statements prepared in accordance with generally accepted accounting
principles.
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2.15 Changes. Since the inception of the Company's business, there
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has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Business Plan
dated February 1999 (the "Business Plan"), except changes in the ordinary course
of business that have not been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties,
prospects, or financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable right
or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the business, properties,
prospects or financial condition of the Company;
(e) any material change to a material contract or agreement by
which the Company or any of its assets is bound or subject;
(f) any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any officer
or key employee of the Company; and the Company, is not aware of any impending
resignation or termination of employment of any such officer or key employee;
(i) any mortgage, pledge, transfer of a security interest in,
or lien, created by the Company, with respect to any of its material properties
or assets, except liens for taxes not yet due or payable;
(j) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(k) any declaration, setting aside or payment or other
distribution in respect to any of the Company's capital stock, or any direct or
indirect redemption, purchase, or other acquisition of any of such stock by the
Company;
(l) to the Company's knowledge, any other event or condition of
any character that might materially and adversely affect the business,
properties, prospects or financial condition of the Company; or
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(m) any arrangement or commitment by the Company to do any of
the things described in this Section 2.15.
2.16 Employee Benefit Plans. The Company does not have any "Employee
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Benefit Plan" as such term is defined in the Employee Retirement Income Security
Act of 1974.
2.17 Tax Returns and Payments. The Company has filed all tax returns
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and reports as required by law. These returns and reports are true and correct
in all material respects and were filed within the applicable periods for such
filings. The Company has paid all taxes and other assessments due. The Company
has established adequate reserves (net of estimated tax payments already made)
for the payment of all taxes payable in respect of the period subsequent to the
last periods covered by such returns. There is no pending dispute with any
taxing authority relating to any of such returns and the Company has not
received notice of any proposed liability for any tax to be imposed upon the
properties or assets of the Company. No deficiencies for any tax are currently
assessed against the Company, and no tax returns of the Company have ever been
audited, and, to the knowledge of the Company, there is no such audit pending or
threatened. There is no tax lien, whether imposed by any federal, state or
local taxing authority, outstanding against the assets, properties or business
of the Company. The Company has no liabilities for taxes that are accrued
whether or not yet due and payable. For the purposes of this Agreement, the
term "tax" shall include all federal, state and local taxes, including income,
franchise, property, sales, withholding, payroll and employment taxes.
2.18 Labor Agreements and Actions. The Company is not bound by or
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subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company.
To its knowledge, the Company is in compliance in all material respects with all
applicable state and federal equal employment opportunity laws and regulations
and with other laws and regulations related to employment, labor, terms and
conditions of employment, and wages and hours.
2.19 Employee Matters. Each employee, consultant and officer of the
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Company has executed an agreement with the Company regarding confidentiality and
proprietary information substantially in the form attached hereto as Exhibit G.
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The Company is not aware that any of its employees or consultants is in
violation thereof. Except as set forth on the Schedule of Exceptions, the
Company does not have in effect, and its assets are not subject to, any
employment agreements, consulting agreements, deferred compensation, pension or
retirement agreements or arrangements, bonus, incentive or profit-sharing plans
or arrangements, or labor or collective bargaining agreements, written or oral.
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2.20 Permits. The Company has all franchises, permits, licenses and
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any similar authority necessary for the conduct of its business, the lack of
which could materially and adversely affect the business, properties, or
financial condition of the Company. The Company is not in default in any
material respect under any of such franchises, permits, licenses or other
similar authority and, to the knowledge of the Company, no suspension or
cancellation of any of them is threatened.
2.21 Corporate Documents. The Restated Certificate and Bylaws of the
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Company are in the form provided to counsel for the Purchasers. The copy of the
minute books of the Company provided to the Purchasers' counsel contains minutes
of all meetings of directors and stockholders and all actions by written consent
without a meeting by the directors and stockholders since the date of
incorporation and reflects all actions by the directors (and any committee of
directors) and stockholders with respect to all transactions referred to in such
minutes accurately in all material respects.
2.22 Insurance Coverage. The Schedule of Exceptions contains an
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accurate summary of the insurance policies currently maintained by the Company,
if any. There are currently no claims pending against the Company under any
insurance policies currently in effect and covering the property, business or
employees of the Company, and all premiums due and payable with respect to the
policies maintained by the Company have been paid to date.
2.23 Qualified Small Business Stock. As of the Closing, the Company
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will meet the requirement to be a "Qualified Small Business as defined in
Section 1202(d) of the Internal Revenue Code (the "Code").
2.24 Disclosure. The Company has fully provided each Purchaser with
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all the information that such Purchaser has requested for deciding whether to
purchase the Stock. To its knowledge, neither this Agreement, nor any other
statements or certificates made or delivered in connection herewith or therewith
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein not misleading.
2.25 Year 2000 Compatibility. To the Company's knowledge, all of the
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Company's and any of its subsidiary's products (including products currently
under development) record, store, process, calculate and present calendar dates
falling on or after January 1, 2000, and calculate any information dependent on
or relating to such dates in the same manner and with the same functionality,
data, integrity and performance as the products record, store, process,
calculate and present calendar dates on or before December 31, 1999, or
calculate any information dependent on or relating to such dates (collectively,
"Year 2000 Compliant").
3. Representations and Warranties of the Purchasers. Each Purchaser
------------------------------------------------
hereby represents and warrants to the Company that:
3.1 Authorization. Such Purchaser has full power and authority to
-------------
enter into this Agreement. This Agreement, the Related Agreements, and any
other agreements or instruments executed by the Purchaser in connection herewith
or therewith, when executed and delivered by the Purchaser, will constitute
valid and legally binding obligations of the Purchaser,
-9-
enforceable in accordance with their terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
any other laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies, or (b) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with
---------------------------------
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
3.3 Disclosure of Information. The Purchaser has had an opportunity
-------------------------
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock and the Warrants with the Company's
management and has had an opportunity to review the Company's facilities. The
Purchaser understands that such discussions, as well as the Business Plan and
any other written information delivered by the Company to the Purchaser, were
intended to describe the aspects of the Company's business which it believes to
be material.
3.4 Restricted Securities. The Purchaser understands that the
---------------------
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Purchaser must hold the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale
except as set forth in the Investors' Rights Agreement. The Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy.
3.5 No Public Market. The Purchaser understands that no public
----------------
market now exists for any of the securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Securities.
-10-
3.6 Legends. The Purchaser understands that the Securities, and any
-------
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the Related Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
3.7 Accredited Investor. The Purchaser is an accredited investor as
-------------------
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4. Conditions of the Purchasers' Obligations at Closing. The obligations
----------------------------------------------------
of each Purchaser to the Company under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 2 shall be true and correct in
all material respects 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.
4.2 Performance. The Company shall have performed and complied with
-----------
all covenants, agreements, obligations and conditions contained in this
Agreement and the Related Agreements that are required to be performed or
complied with by it on or before the Closing.
4.3 Compliance Certificate. The President of the Company shall
----------------------
deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 4.1, 4.2 and 4.10 have been fulfilled.
4.4 Qualifications. All authorizations, approvals or permits, if
--------------
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock and the Warrants pursuant to this Agreement shall be obtained and
effective as of the Closing.
4.5 Opinion of Company Counsel. The Purchasers shall have received
--------------------------
from Xxxxxxx Coie LLP, counsel for the Company, an opinion, dated as of the
Closing, in substantially the form of Exhibit H.
---------
-11-
4.6 Board of Directors. As of the Closing, the Board shall be
------------------
comprised of (i) two directors nominated by the Common Stock who shall initially
be Xxxxxx Xxxxxxx and Xxxxx Xxxxx (the "Common Stock Directors"), (ii) two
----------------------
directors nominated by a majority of the holders of Series A Preferred Stock
(the "Series A Directors"), who shall initially be Xxx X. Xxxx and Xxxxxxx X.
------------------
Xxxxxxx and (iii) one director mutually agreeable to the holders of Common Stock
and Series A Preferred Stock, which shall initially be vacant (the "Outside
-------
Director"). The Company shall enter into Indemnification Agreements with each
--------
director, in a form reasonably acceptable to each such director.
4.7 Investors' Rights Agreement. The Company and each Purchaser
---------------------------
shall have executed and delivered the Investors' Rights Agreement.
4.8 Co-Sale Agreement. Xxxxxx X. Xxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx
-----------------
and Xxxxxx Xxxxxxxxx (collectively the "Founders"), the Company and each
--------
Purchaser shall have executed and delivered the Co-Sale Agreement.
4.9 Voting Agreement. The Company, the Founders and each Purchaser
-----------------
shall have executed and delivered the Voting Agreement.
4.10 Restated Certificate. The Company shall have filed the Restated
--------------------
Certificate with the Secretary of State of Delaware on or prior to the date of
the Closing, which shall continue to be in full force and effect as of the date
of the Closing.
4.11 Confidential Information and Invention Assignment Agreement. The
-----------------------------------------------------------
Company and each of its employees, consultants and officers shall have entered
into the Company's standard form Confidential Information and Invention
Assignment Agreement, in substantially the form attached hereto as Exhibit G.
---------
4.12 IPO Allocation Agreement. The Company and the Purchasers shall
------------------------
have entered into the IPO Allocation Agreement in substantially the form
attached hereto as Exhibit J.
---------
5. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company to each Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 Representations and Warranties. The representations and
------------------------------
warranties of each Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
5.2 Performance. All covenants, agreements and conditions contained
-----------
in this Agreement and the Related Agreements to be performed by the Purchasers
on or prior to the Closing shall have been performed or complied with in all
material respects.
5.3 Qualifications. All authorizations, approvals or permits, if
--------------
any, of any governmental authority or regulatory body of the United States or of
any state that are required in
-12-
connection with the lawful issuance and sale of the Stock and the Warrants
pursuant to this Agreement shall be obtained and effective as of the Closing.
5.4 Director Indemnification Agreements. The Company shall have
-----------------------------------
authorized indemnification agreements with its directors, which agreements shall
be substantially in the form set forth as Exhibit I hereto, and shall have
---------
entered into such agreements with each of the directors referenced in Section
4.6 hereof.
5.5 Voting Agreement. The Company, the Founders and each Purchaser
-----------------
shall have executed and delivered the Voting Agreement.
6. Covenants of the Company.
-------------------------
6.1 Use of Proceeds. The proceeds from the sale of the Stock and the
---------------
Warrants shall be used by the Company for working capital and general corporate
purposes.
6.2 Compensation Committee. The Board shall appoint and maintain a
----------------------
Compensation Committee, which shall contain no more than three persons, one of
whom shall be a Series A Director, to administer the Company's stock option
plans and make recommendations to the Board of Directors with respect to
compensation of executive officers, Company benefit plans and employment
matters. The Board of Directors shall have the power to accept or reject any
recommendation of the Compensation Committee, but shall not approve the
compensation in amounts which differ from the amounts recommended by the
Compensation Committee.
6.3 Audit Committee. The Company will maintain an Audit Committee
---------------
composed of no more than three (3) and shall include at least one Series A
Director.
6.4 Vesting of Founders' Stock. Prior to the closing, the Founders
--------------------------
shall each have entered into an agreement with the Company providing that 40% of
the Founder's stock options and common stock equivalents shall be immediately
exerciseable and 60% of such stock shall vest monthly over a three (3) year
period. The vesting restrictions on the Founders' stock shall be accelerated
following an acquisition, merger, sale of assets or other change of control of
the Company, or if the Founder is terminated without cause or constructively
terminated.
6.5 Key Man Life Insurance. The Company will use best efforts to
----------------------
maintain term life insurance in the amount of $2,000,000 on the Company's Chief
Executive Officer ("Key Man Life Insurance"). The beneficiary of the Key Man
----------------------
Life Insurance shall be the Company.
6.6 Qualified Small Business Stock. The Company covenants that so
------------------------------
long as the Stock, the Conversion Stock or the Warrant Stock (collectively, the
"Securities") are held by a Purchaser (or a transferee in whose hands the
Securities are eligible to qualify as Qualified Small Business Stock as defined
in Section 1202(c) of the Code), it will use its best efforts to cause the
Securities to qualify as Qualified Small Business Stock. In addition, the
Company shall submit to the Purchaser and to the Internal Revenue Service any
reports that may be required under Section 1202(d)(1)(C) of the Code and any
related Treasury Regulations. In
-13-
addition, after any Purchaser has delivered to the Company a written request
therefor (a "QSBS Certificate"), the Company shall deliver to such Purchaser a
QSBS Certificate informing the Purchaser whether such Purchaser's interest in
the Company constitutes "qualified small business stock" as defined in Section
1202(c) of the Code. The Company's obligation to furnish this QSBS Certificate
shall continue notwithstanding the fact that a class of the Company's stock may
be traded on an established securities market.
6.7 Termination of Covenants. Except for Sections 6.4 and 6.6, the
------------------------
covenants contained in this Section 6 will terminate upon the closing of the
Company's filing of a registration statement under the Securities Act in
connection with its initial public offering of securities.
7. Miscellaneous.
-------------
7.1 Survival of Warranties. Unless otherwise set forth in this
----------------------
Agreement, the warranties, representations and covenants of the Company and the
Purchasers contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
7.2 Transfer; 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. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
7.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
7.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page or Exhibit A hereto, or as
---------
subsequently modified by written notice, and (a) if to the Company, with a copy
to Xxxxxxx Coie LLP, 000
-00-
Xxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000, attn: Xxxxx X. Xxxxxx, or
(b) if to the Purchasers, to the address of record provided to the Company by
each Purchaser.
7.7 Finder's Fee. Each party represents that it neither is nor will
------------
be obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which each Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless each Purchaser from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
7.8 Fees and Expenses. The Company shall pay the reasonable,
-----------------
itemized fees and expenses of Xxxxxxxxx Xxxxxxx, LLP, the counsel for the
Purchasers, incurred with respect to this Agreement, the documents referred to
herein and the transactions contemplated hereby and thereby, not to exceed
$20,000 in the aggregate for all such costs and expenses.
7.9 Attorney's Fees. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of any of this
Agreement or the Related Agreements, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
7.10 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or waived only with the written consent of the Company and the holders
of at least a majority of the Common Stock issued or issuable upon conversion of
the Stock. Any amendment or waiver effected in accordance with this Section
7.10 shall be binding upon the Purchasers and each transferee of the Stock (or
the Common Stock issuable upon conversion thereof), each future holder of all
such securities, and the Company.
7.11 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
7.12 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and
-15-
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
7.13 Entire Agreement. This Agreement, the Related Agreements and the
----------------
documents and instruments referred to herein constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements relating to the subject matter hereof
existing between the parties hereto are expressly canceled.
7.14 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE
------------------------
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
7.15 Confidentiality. Each party hereto agrees that, except with the
---------------
prior written permission of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock and Warrants purchased hereunder. The provisions of this
Section 7.15 shall be in addition to, and not in substitution for, the
provisions of any separate nondisclosure agreement executed by the parties
hereto with respect to the transactions contemplated hereby.
7.16 Exculpation Among Purchasers. Each Purchaser acknowledges that
----------------------------
it is not relying upon any person, firm or corporation, other than the Company
and its officers and directors, in making its investment or decision to invest
in the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Securities.
[Remainder of page intentionally left blank]
-16-
The parties have executed this Series A Preferred Stock Purchase Agreement
as of the date first written above.
COMPANY:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
INVESTORS:
TCV III (GP)
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Mailing Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
