EXHIBIT 10.6
FLYCAST COMMUNICATIONS CORPORATION
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
DECEMBER 30, 1998
FLYCAST COMMUNICATIONS CORPORATION
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
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This Series C Preferred Stock Purchase Agreement (the "Agreement") is made
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as of the 30th day of December, 1998 by and between FlyCast Communications
Corporation, a California corporation (the "Company") and the investors listed
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on Exhibit A attached hereto (each 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 C PREFERRED STOCK.
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(a) The Company shall adopt and file with the Secretary of State
of the State of California on or before the Closing (as defined below) the
Fourth Amended and Restated Articles of Incorporation in the form attached
hereto as Exhibit B (the "Restated Articles").
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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 C
Preferred Stock indicated with respect to such Purchaser on Exhibit A attached
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hereto at a purchase price of $9.04 per share. The shares of Series C Preferred
Stock issued to the Purchasers pursuant to this Agreement shall be hereinafter
referred to as the "Stock." The Stock and the Common Stock issuable upon
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conversion of the Stock shall be hereinafter referred to as the "Securities."
1.2 CLOSING; DELIVERY.
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(a) The purchase and sale of the Stock shall take place at the
offices of Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, at
3:00 p.m., on January 22, 1999, or at such other time and place as the Company
and the Purchasers mutually agree upon, orally or in writing (which time and
place are designated as the "Closing").
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(b) At the Closing, the Company shall deliver to each Purchaser
a certificate representing the Stock being purchased thereby against payment of
the purchase price therefor by check, cancellation of indebtedness or by wire
transfer to the Company's bank account.
(c) If the full number of the authorized shares of Series C
Preferred Stock of the Company is not sold at the Closing, the Company shall
have the right, at any time prior to January 31, 1999, to sell the remaining
authorized but unissued shares of Series C Preferred Stock to one or more
additional purchasers as determined by the Company, or to any Purchaser
hereunder who wishes to acquire additional shares of Series C Preferred Stock at
the price and on the terms set forth herein, provided that any such additional
purchaser shall be
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required to execute this Agreement and all other agreements contemplated hereby.
Any additional purchaser so acquiring shares of Series C Preferred Stock shall
be considered a "Purchaser" for purposes of this Agreement, and any Series C
Preferred Stock so acquired by such additional purchaser shall be considered
"Stock" for purposes of this Agreement and all other agreements contemplated
hereby. The Purchasers and the Company agree that, after January 31, 1999,
Exhibit A may be restated to reflect the additional Purchasers that have been
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added to Exhibit A pursuant to this Section 1.2(c).
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
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hereby represents, warrants and covenants to each Purchaser that, except as set
forth on a Schedule of Exceptions attached hereto as Exhibit C, which exceptions
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shall be deemed to be representations and 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 California and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to 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) 9,320,000 shares of Preferred Stock, of which (i) 920,000
shares have been designated Series A Preferred Stock, 911,295 of which are
issued and outstanding immediately prior to the Closing, (ii) 5,500,000 shares
have been designated Series B Preferred Stock, 5,324,532 of which are issued and
outstanding immediately prior to the Closing, and (iii) 3,484,000 shares have
been designated Series C Preferred Stock, 1,994,132 of which are issued and
outstanding immediately prior to the Closing. The Company has reserved 7,500
shares of Series A Preferred Stock for issuance upon exercise of a warrant to
purchase 7,500 shares of Series A Preferred Stock issued to Cupertino National
Bank (the "Cupertino Warrant"), 43,854 shares of Series B Preferred Stock for
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issuance upon exercise of warrants to purchase 43,854 shares of Series B
Preferred Stock issued pursuant to the Company's July 11, 1997 Series B
Preferred Stock and Warrant Purchase Agreement (the "Series B Warrants") and
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33,834 shares of Series B Preferred Stock for issuance upon exercise of a
warrant to purchase 33,834 shares of Series B Preferred Stock issued to Venture
Lending (the "Venture Lending Warrant"). The rights, privileges and preferences
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of the Preferred Stock are as stated in the Restated Articles. All of the
outstanding shares of Preferred Stock have been duly authorized, fully paid and
are nonassessable and issued in compliance with all applicable federal and state
securities laws.
(b) 20,000,000 shares of Common Stock, 2,487,262 shares of which
are issued and outstanding immediately prior to the Closing. All of the
outstanding shares of Common Stock have been duly authorized, fully paid and are
nonassessable and issued in compliance with all applicable federal and state
securities laws. The Company has reserved 6,321,015 shares of Common Stock for
issuance upon conversion of the Preferred Stock, 33,333
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shares of Common Stock for issuance upon exercise of a warrant issued to
Bessemer Venture Partners IV, LP (the "Bessemer Warrant") and an aggregate of
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7,143 shares of Common Stock for issuance upon exercise of warrants issued to
individuals affiliated with Bialla & Associates (the "Bialla Warrants").
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(c) The Company has reserved 2,800,000 shares of Common Stock
for issuance to officers, directors, employees and consultants of the Company
pursuant to its 1997 Stock Option Plan duly adopted by the Board of Directors
and approved by the Company shareholders (the "Stock Plan"). Of such reserved
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shares of Common Stock, options to purchase 1,715,453 shares are currently
outstanding, options to purchase 754,096 shares have been exercised and 330,451
shares of Common Stock remain available for issuance to officers, directors,
employees and consultants pursuant to the Stock Plan.
(d) Except for (i) the Warrants, (ii) conversion privileges of
the Preferred Stock, (ii) the Series B Warrants, (iii) the Cupertino Warrant,
(iv) the Venture Lending Warrant, (v) the Bessemer Warrant and (vi) the Bialla
Warrants, and except as set forth in the Investors' Rights Agreement (as defined
below), there are no outstanding options, warrants, rights (including conversion
or preemptive rights and rights of first refusal or similar rights) or
agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
(e) Except as set forth in the Restated Articles, and as may be
required under its responsibility to the shareholders and creditors of the
Company with respect to repurchases of unvested shares of stock upon termination
of employees, consultants and directors, the Company is under no duty to redeem
or to repurchase any shares of any class or series of 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 CORPORATE POWER; AUTHORIZATION. All corporate action on the part
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of the Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the Amended and
Restated Investors' Rights Agreement, in the form attached hereto as Exhibit D
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(the "Investors' Rights Agreement"), the Amended and Restated Right of First
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Refusal and Co-Sale Agreement in the form attached hereto as Exhibit E (the "Co-
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Sale Agreement"), and the Amended and Restated Voting Agreement in the form
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attached hereto as Exhibit F (the "Voting Agreement" and collectively with this
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Agreement, the Investors' Rights Agreement and the Co-Sale Agreement, the
"Agreements"), the performance of all obligations of the Company hereunder and
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thereunder and the authorization, issuance and delivery of the Securities has
been taken or will be taken prior to the Closing. The Company has all requisite
legal and corporate power to execute and deliver the Agreements, to sell and
issue the Stock and to carry out and perform all of its obligations hereunder
and under the other Agreements. The Agreements, 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,
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reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies, or (ii) 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 that is being issued to
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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 Investors' Rights
Agreement and applicable state and federal securities laws. Based in part upon
the representations of the Purchasers in this Agreement and subject to the
provisions of Section 2.6 below, the Stock will be issued in compliance with all
applicable federal and state securities laws. The Common Stock issuable upon
conversion of the Stock has been duly and validly reserved for issuance, and
upon issuance in accordance with the terms of the Restated Articles, 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
Investors' Rights Agreement and applicable federal and state securities laws and
will be issued in compliance with all 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, 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
the 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 changes in the assets,
condition, prospects, business 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. 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. There is no action, suit, proceeding or
investigation by the Company or any of its subsidiaries currently pending or
which the Company or any of its subsidiaries intends to initiate.
2.8 PATENTS AND TRADEMARKS. The Company owns or possesses sufficient
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legal rights to all patents, trademarks, service marks, tradenames, copyrights,
trade secrets, licenses, information and proprietary rights and processes
necessary for its business as now conducted and as proposed to be conducted
without any conflict with, or infringement of, the
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rights of others. The Company has not received any communications alleging that
the Company has violated or, by conducting its business as proposed, 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. 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 as currently conducted or as proposed to be conducted.
Neither the execution or delivery of this Agreement, nor the carrying on of the
Company's business by the employees of the Company, nor the conduct of the
Company's business as proposed, will, 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 such employee is now obligated. 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.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS.
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(a) The Company is not in violation, breach or default of any
provisions of its Restated Articles or Bylaws or of any instrument, judgment,
order, writ, decree license, indenture, lease, contract or other agreement to
which it is a party or by which it is bound or, 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 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.
2.10 AGREEMENTS; ACTION.
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(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates,
or any affiliate thereof.
(b) Except for agreements explicitly contemplated by the
Agreements, there are no agreements, understandings, instruments, contracts or
proposed transactions 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,
$50,000, (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
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the Company's exclusive right to develop, manufacture, assemble, distribute,
market or sell its products.
(c) 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 $50,000 or in excess of $100,000 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.
(d) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Restated Articles or Bylaws, that adversely affects its business as now
conducted or as proposed to be conducted, its properties or its financial
condition.
(e) The Company has not engaged in the past three (3) months in
any discussion (i) with any representative of any corporation or corporations
regarding the merger of the Company with or into any such corporation or
corporations, (ii) with any representative of any corporation, partnership,
association or other business entity or any individual regarding the sale,
conveyance or disposition of all or substantially all of the assets of the
Company or a transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of the Company would be disposed of, or
(iii) regarding any other form of liquidation, dissolution or winding up of the
Company.
2.11 DISCLOSURE. The Company has fully provided the Purchasers with
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all the information which the Purchasers have requested for deciding whether to
acquire the Stock and all information which the Company believes is reasonably
necessary to enable the Purchasers to make such a decision, including certain of
the Company's projections describing its business as currently conducted and as
proposed to be conducted (collectively, the "Business Plan"). No representation
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or warranty of the Company contained in this Agreement and the exhibits attached
hereto, any certificate furnished or to be furnished to Purchasers at the
Closing, or the Business Plan (when read together) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained herein or therein not misleading in light of the
circumstances under which they were made. The Business Plan and the financial
and other projections contained in the Business Plan were prepared in good
faith; however, the Company does not warrant that it will achieve such
projections.
2.12 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 best of 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
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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 shareholders 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.
None of the Company's officers or directors or any members of their immediate
families are directly or, to the Company's knowledge 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.
2.13 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. Except as contemplated in the Voting Agreement, the Company
is not a party to, and, to its knowledge no shareholders of the Company have
entered into, any agreements or trusts with respect to the voting of capital
shares of the Company.
2.14 PRIVATE PLACEMENT. Subject in part to the truth and accuracy of
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the Purchasers' representations set forth in this Agreement, the offer, sale and
issuance of the Securities as contemplated by this Agreement is exempt from the
registration requirements of the Securities Act, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption. The Company has not incurred, and will not
incur, directly or indirectly, as a result of any action taken by the Company,
any liability for brokerage or finders' or agents' commissions or any similar
charges in connection with this Agreement
2.15 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. With respect to the property and assets it leases, the Company is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances. To its knowledge,
there exists no material breach of any such lease.
2.16 FINANCIAL STATEMENTS. The Company has made available to each
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Purchaser its audited financial statements (including balance sheet and income
statement) as of March 31, 1998 and for the fiscal year ended as of such date
and as of October 31, 1998 and for the seven-month period ended as of such date
(collectively, the "Financial Statements"). The Financial Statements have been
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prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated, except that the unaudited
Financial Statements may not contain all footnotes required by generally
accepted accounting principles. The Financial Statements fairly present the
financial condition and operating results of the Company as of the dates, and
for the periods, indicated therein, subject to normal year-end audit
adjustments. Except as set forth in the Financial Statements, the Company has
no material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to October 31, 1998 and
(ii) obligations under contracts
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and commitments incurred in the ordinary course of business and not required
under generally accepted accounting principles to be reflected in the Financial
Statements, which, in both cases, individually or in the aggregate are not
material to the financial condition or operating results of the Company. Except
as disclosed in the Financial Statements, the Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation. The
Company maintains and will continue to maintain a standard system of accounting
established and administered in accordance with generally accepted accounting
principles.
2.17 CHANGES. Since October 31, 1998, there has not been:
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(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, 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 (as such business is presently
conducted and as it is proposed to be conducted);
(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 (as such business is presently
conducted and as it is proposed to be conducted);
(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 shareholder;
(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 does not know of any impending
termination or, to the best of its knowledge, resignation of employment of any
such officer or key employee;
(i) receipt of notice, formally or informally, or receipt of
knowledge that there has been, or will be, a loss of, or material order
cancellation by, any major customer of the Company;
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(j) 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;
(k) 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;
(l) 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;
(m) to the best of the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
business, properties, prospects or condition (financial or otherwise) of the
Company (as such business is presently conducted and as it is proposed to be
conducted); or
(n) any arrangement, intention or commitment by or of the
Company to do any of the things described in this Section 2.17.
2.18 EMPLOYEE BENEFIT PLANS; STOCK PLANS. The Company does not have
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any Employee Benefit Plan as defined in the Employee Retirement Income Security
Act of 1974. The Company's stock and option agreements with its employees
provide for four year vesting of such stock or options.
2.19 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. The Company has paid all taxes and other assessments
due.
2.20 INSURANCE. The Company has in full force and effect fire and
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casualty insurance policies, 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.
2.21 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 (as such business is presently
conducted and as it is proposed to be conducted), 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 has complied in all material respects with
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all applicable state and federal equal employment opportunity laws and with
other laws related to employment.
2.22 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each
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employee, consultant and officer of the Company has executed an agreement with
the Company regarding confidentiality and proprietary information substantially
in the form or forms delivered to the counsel for the Purchasers. The Company,
after reasonable investigation, is not aware that any of its employees or
consultants is in violation thereof, and the Company will use its best efforts
to prevent any such violation. All consultants to or vendors of the Company
with access to confidential information of the Company are parties to a written
agreement substantially in the form or forms provided to counsel for the
Purchasers under which, among other things, each such consultant or vendor is
obligated to maintain the confidentiality of confidential information of the
Company. The Company, after reasonable investigation, is not aware that any of
its consultants or vendors are in violation thereof, and the Company will use
its best efforts to prevent any such violation.
2.23 PERMITS. The Company has all franchises, permits, licenses and
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any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Company and
believes that it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. The
Company is not in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
2.24 CORPORATE DOCUMENTS. The Restated Articles 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 shareholders and all actions by written consent
without a meeting by the directors and shareholders since the date of
incorporation and reflects all actions by the directors (and any committee of
directors) and shareholders with respect to all transactions referred to in such
minutes accurately in all material respects.
2.25 REAL PROPERTY HOLDING CORPORATION. The Company is not a United
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States real property holding corporation within the meaning of Internal Revenue
Code Section 897(c)(2) and any regulations promulgated thereunder.
2.26 ENVIRONMENTAL AND SAFETY LAWS. To its knowledge, the Company is
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not in violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to the best of its knowledge,
no material expenditures are or will be required in order to comply with any
such existing statute, law or regulation.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
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severally and not jointly, hereby represents and warrants to the Company for
itself only and not in relation to any other Purchaser that:
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3.1 AUTHORIZATION. The Agreements, when executed and delivered by
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the Purchaser, will constitute valid and legally binding obligations of the
Purchaser, 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 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. 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. The Purchaser does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has full power and authority to enter into this
Agreement. 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
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to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock with the Company's management and
has had an opportunity to review the Company's facilities. The Purchaser
understands that such discussions, as well as the written information issued by
the Company, 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.
-11-
3.6 LEGENDS. The Purchaser understands that the Securities, and any
-------
securities issued in respect thereof or exchange therefor, may bear one or all
of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION 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 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 Act.
3.8 FOREIGN INVESTORS. If the Purchaser is not a United States
-----------------
person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended), such Purchaser hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale, or transfer of the Securities. Such
Purchaser's subscription and payment for and continued beneficial ownership of
the Securities, will not violate any applicable securities or other laws of the
Purchaser's jurisdiction.
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 that are required to be performed or complied with by it on or before
the Closing.
-12-
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 and 4.2 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 Venture Law Group, counsel for the Company, an opinion, dated as of the
Closing, in substantially the form of Exhibit G.
---------
4.6 BOARD OF DIRECTORS. As of the Closing, the Bylaws of the Company
------------------
shall reflect that the size of the Board of Directors shall be set at six (6)
members, and the Board shall be comprised of Xxxxx Xxxxx, Xxx Xxxxxxxxxxx,
Xxxxxx Xxxxxxx, Xxxxx Xxxxx and Xxxxxxx Xxxxxxx, with one vacancy.
4.7 INVESTORS' RIGHTS AGREEMENT. The Company, each Purchaser, the
---------------------------
holders of the Series A Preferred Stock and the holders of the Series B
Preferred Stock shall have executed and delivered the Investors' Rights
Agreement in substantially the form attached as Exhibit D.
---------
4.8 RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT. The Company, each
--------------------------------------------
Purchaser, certain holders of Common Stock, certain holders of the Series A
Preferred Stock and the holders of the Series B Preferred Stock shall have
executed and delivered the Co-Sale Agreement in substantially the form attached
as Exhibit E.
---------
4.9 VOTING AGREEMENT. The Company, each Purchaser, certain holders
----------------
of Common Stock, the holders of the Series A Preferred Stock and the holders of
the Series B Preferred Stock shall have executed and delivered the Voting
Agreement in substantially the form attached as Exhibit F.
---------
4.10 RESTATED ARTICLES. The Company shall have filed the Restated
-----------------
Articles with the Secretary of State of California on or prior to the Closing
Date, which shall continue to be in full force and effect as of the Closing
Date.
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.
-13-
5.2 PERFORMANCE. All covenants, agreements and conditions contained
-----------
in this Agreement to be performed by the Purchasers on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 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.
6. MISCELLANEOUS.
-------------
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
6.6 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 below or on Exhibit A hereto, or as subsequently
---------
modified by written notice, and (a) if to the Company, with a copy to Venture
Law Group, Attn: Xxxxxxx X. Xxxx, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, XX 00000 or
(b) if to the Purchasers, with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Attn:
Xxxx X. Xxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000-0000.
-14-
6.7 FINDER'S FEE. Each party represents that it neither is nor will
------------
be obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Purchaser or any of its officers, employees,
or representatives is responsible (but not for which any other Purchaser 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.
6.8 FEES AND EXPENSES. The Company shall pay the reasonable fees and
-----------------
expenses of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, the counsel for the Purchasers,
incurred with respect to this Agreement, the documents referred to herein and
the transactions contemplated hereby and thereby, provided such fees and
expenses do not exceed $10,000.
6.9 ATTORNEY'S FEES. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
6.10 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
----------------------
amended with the written consent of the Company and the holders of at least two-
thirds (2/3) of the Common Stock issued or issuable upon conversion of the
Stock. Any amendment or waiver effected in accordance with this Section 6.10
shall be binding upon the Purchasers and each transferee of the Securities, each
future holder of all such Securities, and the Company. Any such amendment or
waiver that adversely affects any party hereto requires written consent of such
adversely-affected party.
6.11 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.
6.12 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any holder of any of the Securities, upon any breach
or default of the Company under this Agreement, shall impair any such right,
power or remedy of such holder 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 holder of any breach or default under this
Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
-15-
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
6.13 ENTIRE AGREEMENT. This Agreement, the Agreement to Amend of even
----------------
date herewith, and the documents referred to herein, constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements existing between the parties
hereto are expressly canceled.
6.14 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.
6.15 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 purchased hereunder, except to business, accounting and legal
advisors who have been informed of the foregoing obligation of confidentiality.
The provisions of this Section 6.15 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.
6.16 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 for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Securities.
6.17 WAIVER OF CONFLICTS. Each party to this Agreement acknowledges
-------------------
that Venture Law Group, counsel for the Company, has in the past performed and
may continue to perform legal services for certain of the Purchasers in matters
unrelated to the transactions described in this Agreement, including the
representation of such Purchasers in venture capital financings and other
matters. Accordingly, each party to this Agreement hereby (a) acknowledges that
they have had an opportunity to ask for information relevant to this disclosure;
and (b) gives its informed consent to Venture Law Group's representation of
certain of the Purchasers in such unrelated matters and to Venture Law Group's
representation of the Company in connection with this Agreement and the
transactions contemplated hereby.
-16-
[Signature Pages Follow]
-17-
The parties have executed this Series C Preferred Stock Purchase Agreement
as of the date first written above.
COMPANY:
FLYCAST COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_______________________________________
Xxxxxx Xxxxxxx, President
Address: 000 Xxxxxxx Xxxxxx; Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
BESSEMER VENTURE PARTNERS IV LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
____________________________________
Xxxxxx X. Xxxxxxxx, Manager
BESSEMER VENTURE INVESTORS LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
____________________________________
Xxxxxx X. Xxxxxxxx, Manager
Address: 0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX RIVER PARTNERSHIP
VIII, A LIMITED PARTNERSHIP
By: Xxxxxxx River VIII GP Limited
Partnership, General Partner
By: /s/
____________________________________
General Partner
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
COMDISCO, INC.
By: /s/
Name:
Title:
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
ST. XXXX VENTURE CAPITAL IV, LLC
By: /s/ Xxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxx, General Partner
ST. XXXX VENTURE CAPITAL AFFILIATES FUND I,
LLC
By: St. Xxxx Venture Capital, Inc.
Its: Manager
By: /s/ Xxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxx,
Executive Vice President
Address: St. Xxxx Venture Capital
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 1940
INTELLIGENT MEDIA VENTURES, INC.
By: /s/ Xxxxxxx Xxxxxx
________________________________________
Xxxxxxx Xxxxxx
Attorney in Fact
Address: 59 Executive Park Dr. South
N. E. Atlanta, GA 30329
U.S. DEVELOPMENT CAPITAL INVESTMENT COMPANY
By: /s/
________________________________________
Name:
Title:
Address:
PACIFIC TELESIS GROUP
By: /s/ Xxxxxx X. Xxxxxxx
________________________________________
Xxxxxx X. Xxxxxxx,
Executive Vice President, Chief Financial
Officer
Address: Pacific Telesis Group
000 X. Xxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
ATTN: General Attorney, M & A
Legal
Facsimile: 000-000-0000
XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
________________________________________
Name: Xxxxx X. Xxxxxxx
Address: 00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
By: ________________________________________
Address:
Facsimile:
ABS EMPLOYEE VENTURE FUND, LP
By: /s/
Name: ______________________________________
Title: _____________________________________
Address:
Facsimile:
U.S. DEVELOPMENT CAPITAL INVESTMENT COMPANY
By: /s/
________________________________________
Name:
Title:
Address:
XXXXXX XXXXX
By: /s/ Xxxxxx Xxxxx
________________________________________
Name: Xxxxxx Xxxxx
Address: 000 X. Xx. Xxxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxxx, XX 00000
EXHIBITS
--------
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Amended and Restated Articles of Incorporation
Exhibit C - Schedule of Exceptions to Representations and Warranties
Exhibit D - Form of Amended and Restated Investors' Rights Agreement
Exhibit E - Form of Amended and Restated Right of First Refusal and Co-
Sale Agreement
Exhibit F - Form of Amended and Restated Voting Agreement
Exhibit G - Form of Legal Opinion of Venture Law Group
EXHIBIT A
---------
SCHEDULE OF PURCHASERS
EXHIBIT A
---------
SCHEDULE OF PURCHASERS
[TO BE MODIFIED]
INVESTOR TOTAL DOLLAR AMOUNT SHARES ACCRUED INTEREST
Intelligent Media Ventures $3,999,992.08 442,477
00 Xxxxxxxxx Xxxx Xx. Xxxxx X.X.
Xxxxxxx, XX 00000
Bessemer Venture Partners IV LP $1,555,136.41 172,028
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000 (*)
Xxxxxxx River Partnership VIII $1,528,039.44 169,030
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 (*)
St. Xxxx Venture Capital IV, LLC (*) $ 891,611.53 98,629
St. Xxxx Venture Capital Affiliates $ 25,212.62 2,789
Fund I, LLC (*)
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Comdisco $ 499,993.36 55,309
Pacific Telesis Group $4,999,996.88 553,097
Xxxxx X. Xxxxxxx $ 24,995.60 2,765
US West Dex Holdings, Inc. $2,999,996.32 331,858
DF L.L.C. $ 50,000.24 5,531
Attn: Xxxxxx Xxxxx
ABS Employee Venture Fund, LP $ 452,000 50,000
US Development Capital Investment Company $ 999,995.76 110,619
(*) Indicates conversion of debt.
EXHIBIT B
---------
FORM OF AMENDED AND RESTATED_
ARTICLES OF INCORPORATION
EXHIBIT C
---------
SCHEDULE OF EXCEPTIONS TO
REPRESENTATIONS AND WARRANTIES
EXHIBIT D
---------
FORM OF AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT E
---------
FORM OF AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
EXHIBIT F
---------
FORM OF AMENDED AND RESTATED VOTING AGREEMENT
EXHIBIT G
---------
FORM OF LEGAL OPINION
OF__
VENTURE LAW GROUP
