EXHIBIT 10.07
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is made and entered
into as of November 15, 2000 by and among Kintana, Inc., a Delaware corporation
(the "Company"), and the parties listed on the Schedule of Investors attached to
this Agreement as Exhibit A (each hereinafter individually referred to as an
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"Investor" and collectively referred to as the "Investors").
Whereas, the Company desires to sell to the Investors, and the Investors
desire to purchase from the Company, shares of the Company's Series B
Convertible Participating Preferred Stock and/or shares of the Company's Series
B-1 Convertible Participating Preferred Stock on terms and conditions set forth
in this Agreement;
Whereas, the Company desires to sell to Camelot Ventures/ Kintana, L.L.C.
("Camelot"), and Camelot desires to purchase from the Company a warrant to
purchase shares of the Company's Series B Convertible Participating Preferred
Stock on the terms and conditions set forth in this Agreement;
Now, therefore, the parties hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
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1.1 Authorization. As of the Closing (as defined below) the Company
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will have authorized the sale and issuance, pursuant to the terms and conditions
of this Agreement, of up to 3,500,000 shares of the Company's Series B
Convertible Participating Preferred Stock, par value $0.001 per share (the
"Series B Stock"), and up to 900,000 shares of the Company's Series B-1
Convertible Participating Preferred Stock, par value $0.001 per share (the
"Series B-1 Stock"), each such series having the rights, preferences, privileges
and restrictions set forth in the Amended and Restated Certificate of
Incorporation of the Company attached to this Agreement as Exhibit B (the
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"Restated Certificate").
1.2 Agreement to Purchase and Sell. The Company agrees to sell to
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each Investor at the Closing, and each Investor agrees, severally and not
jointly, to purchase from the Company at the Closing, the number of shares of
Series B Stock and/or Series B-1 Stock set forth beside such Investor's name on
Exhibit A, each at a price of $6.95 per share. The shares of Series B Stock and
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Series B-1 Stock and the Warrant (as defined below) purchased and sold pursuant
to this Agreement will be collectively hereinafter referred to as the "Purchased
Securities" and the shares of Common Stock or Series B Stock, as applicable,
issuable upon conversion or exercise of the Purchased Securities, as applicable,
will be collectively hereinafter referred to as the "Conversion Shares".
1.3 Warrant. At the Closing, the Company shall issue to Camelot a
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warrant in the form attached hereto as Exhibit J (the "Warrant") exercisable for
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719,425 shares of Series B Stock on the terms and conditions set forth therein.
2. CLOSING.
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2.1 The Closing. The purchase and sale of the Purchased Securities
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will take place at the offices of Fenwick & West LLP, Two Palo Alto Square, Palo
Alto, California, at 10:00 a.m. Pacific Time, on November 15, 2000 or at such
other time and place as the Company and Investors who have agreed to purchase a
majority of the Purchased Securities listed on Exhibit A mutually agree upon
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(which time and place are referred to in this Agreement as the "Closing"). At
the Closing, the Company will deliver to each Investor a certificate
representing the number of Purchased Securities that such Investor has agreed to
purchase hereunder as shown on Exhibit A against delivery to the Company by such
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Investor of the full purchase price of such Purchased Securities, paid by (a) a
check payable to the Company's order, (b) wire transfer of funds to the Company,
or (c) any combination of the foregoing.
2.2 Additional Closing(s).
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(a) Conditions of Additional Closing(s). At any time and from
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time to time during the one hundred twenty (120) day period immediately
following the Closing (the "Additional Closing Period"), the Company may, at one
or more additional closings (each an "Additional Closing"), without obtaining
the signature, consent or permission of any of the Investors, offer and sell to
other investors (the "New Investors"), at a price of $6.95 per share, additional
shares of Series B Stock and/or Series B-1 Stock; provided, however, that the
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number of shares of Series B Stock and/or Series B-1 Stock that may be so sold
may not exceed the lesser of (i) the aggregate number of shares of Series B
Stock and Series B-1 Stock authorized by the Restated Certificate and (ii)
3,597,123; less in each case (A) the aggregate number of shares of Series B
Stock and Series B-1 Stock actually issued and sold by the Company at the
Closing and prior Additional Closings, (B) the number of shares of Series B
Stock issued upon exercise of the Warrant, and (C) the number of shares of
Series B Stock then subject to the unexercised portion of the Warrant. New
Investors may include persons or entities who are already Investors under this
Agreement.
(b) Amendments. The Company and the New Investors purchasing
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Series B Stock and/or Series B-1 Stock, as the case may be, at each Additional
Closing will execute counterpart signature pages to this Agreement, Restated
Rights Agreement (as defined in Section 5.8), the Restated Stockholders'
Agreement (as defined in Section 5.9) and the Restated Voting Agreement (as
defined in Section 5.10) (the Restated Rights Agreement, the Restated
Stockholders' Agreement and the Restated Voting Agreement hereafter collectively
referred to as the "Related Agreements") and such New Investors will, upon
delivery to the Company of such signature pages, become parties to, and bound
by, this Agreement and the Related Agreements, each to the same extent as if
they had been Investors at the Closing. Immediately after each Additional
Closing, Exhibit A to this Agreement will be amended to list the New Investors
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hereunder and the number of shares of Series B Stock and/or Series B-1 Stock, as
the case may be, purchased by each New Investor under this Agreement at each
such Additional Closing. The Company will promptly furnish to each Investor
copies of the amendments to Exhibit A referred to in the preceding sentence.
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(c) Status of New Investors. Upon the completion of each Additional
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Closing as provided in this Section 2, each New Investor will be deemed to be an
"Investor" for all purposes of this Agreement and the Related Agreements.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
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represents and warrants to each Investor that, except as set forth in the
Schedule of Exceptions ("Schedule of Exceptions") attached to this Agreement as
Exhibit C (which Schedule of Exceptions shall be deemed to be representations
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and warranties to the Investors by the Company under this Section 3), the
statements in the following paragraphs of this Section 3 are all true and
complete immediately prior to the Closing (or such other dates as may be
indicated in such statements):
3.1 Organization, Good Standing and Qualification. The Company has
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been duly incorporated and organized, and is validly existing in good standing,
under the laws of the State of Delaware. The Company has the corporate power
and authority to enter into and perform this Agreement and the Related
Agreements, to own and operate it properties and assets and to carry on its
business as currently conducted and as presently proposed to be conducted. The
Company is duly qualified to do business as a foreign corporation in good
standing in all jurisdictions where the nature of the Company's business or its
assets require such qualification, except for jurisdictions in which the failure
to so qualify does not have a Material Adverse Effect. For purposes of this
Agreement, the term "Material Adverse Effect" means (a) a material adverse
effect upon the business, operations, properties, assets or financial condition
of the Company or (b) the impairment of the ability of the Company to perform
its obligations under this Agreement or the Related Agreements to which it is a
party. In determining whether any individual event would result in a Material
Adverse Effect, notwithstanding that such event does not of itself have such
effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other then existing events subject to
representations and warranties of the Company set forth herein would result in a
Material Adverse Effect.
3.2 Capitalization. The capitalization of the Company immediately
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prior to the Closing consists of the following:
(a) Preferred Stock. A total of 8,573,636 authorized shares of
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preferred stock, par value $0.001 per share (the "Preferred Stock"), consisting
of 2,782,424 shares designated as Series A Convertible Participating Preferred
Stock ("Series A Stock"), all of which are issued and outstanding and which are
convertible into 2,782,424 shares of Common Stock, 3,500,000 shares designated
as Series B Convertible Participating Preferred Stock, none of which are issued
and outstanding, 900,000 shares designated as Series B-1 Convertible
Participating Preferred Stock, none of which are issued and outstanding, and
1,391,212 shares designated as Redeemable Preferred Stock, all of which are
issued and outstanding. Upon the Closing, the rights, preferences and
privileges of each series of Preferred Stock will be as stated in the Restated
Certificate and as provided by law.
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(b) Common Stock. A total of 100,000,000 authorized shares of
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common stock, par value $0.001 per share (the "Common Stock"), of which
28,550,279 shares are issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except for (i) the
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conversion privileges of the Series A Stock, the Series B Stock and the Series
B-1 Stock; (ii) the 7,660,506 shares of Common Stock reserved for issuance under
the Company's 1997 Equity Incentive Plan (the "Plan"), under which options to
purchase 4,184,742 shares are outstanding; (iii) the 160,000 shares of Common
Stock reserved for issuance under the Company's Company Share Option Scheme for
its United Kingdom subsidiary ("UK Option Scheme"), under which options to
purchase 68,500 shares are outstanding, (iv) the rights of first refusal granted
to certain investors under Section 3 of that certain Stockholders' Agreement
dated June 11, 1999, by and among the Company, such investors and certain other
stockholders of the Company (the "Existing Refusal Rights"), (v) the Warrant,
and (vi) warrants to purchase 825,834 shares of Common Stock, there is no
outstanding option, warrant, right (including conversion or preemptive rights)
or agreement for the purchase or acquisition from the Company of any shares of
its capital stock or any securities convertible into or ultimately exchangeable
or exercisable for any shares of the Company's capital stock. Apart from the
exceptions noted in this Section 3.2(c), no shares of the Company's outstanding
capital stock, or stock issuable upon exercise or exchange of any outstanding
options, warrants or rights, or other stock issuable by the Company, are subject
to any preemptive rights, rights of first refusal or other rights to purchase
such stock (whether in favor of the Company or any other person), pursuant to
any agreement or commitment of the Company. Apart from that certain Voting
Agreement dated June 11, 1999, by and among the Company and certain of its
stockholders (which agreement will be superseded by the Restated Voting
Agreement), the Company is not a party or subject to any agreement or
understanding, and, to the Company's knowledge, there is no agreement or
understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company.
(d) The outstanding shares of the capital stock of the Company
are duly authorized and validly issued, fully paid and nonassessable, and have
been approved by all requisite stockholder action.
3.3 Subsidiaries. The Company does not presently own or control,
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directly or indirectly, any interest in any other corporation, partnership,
limited liability company, trust, joint venture, association, or other entity.
3.4 Due Authorization. All corporate action on the part of the
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Company's directors and stockholders necessary for (i) the authorization,
execution, delivery of, and the performance of all obligations of the Company
under, this Agreement, the Related Agreements the Board Observation Side Letter
in the form attached hereto as Exhibit K (the "Board Observation Side Letter")
and the SBA Side letter in the form attached hereto as Exhibit L (together with
the Board Observation Side Letter, the "Side Letters"); (ii) the authorization,
issuance, reservation for issuance and delivery of all of the Purchased
Securities being sold under this Agreement, the Series B Preferred Stock to be
issued upon exercise of the Warrant, and of
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the Conversion Shares; and (iii) the filing of the Restated Certificate has been
taken or will be taken prior to the Closing. This Agreement constitutes, along
with the Related Agreements and the Side Letters, when executed and delivered,
will constitute, valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization or others laws of
general application relating to or affecting the enforcement of creditors'
rights generally, (ii) the effect of rules of law governing the availability of
equitable remedies and (iii) applicable federal or state securities laws with
respect to the indemnification provisions contained in the Restated Rights
Agreement.
3.5 Valid Issuance of Stock.
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(a) The Purchased Securities, when issued and paid for as
provided in this Agreement, will be duly authorized and validly issued, fully
paid and nonassessable and will be free of restrictions on transfer other than
restrictions under this Agreement and the Restated Rights Agreement and under
applicable state and federal securities laws. The Conversion Shares and the
shares of Common Stock issuable upon conversion of the Series B Stock and the
Series B-1 Stock and the shares of Series B Stock issuable upon exercise of the
Warrant, have been duly and validly reserved for issuance upon conversion and/or
exercise, respectively, thereof and, when issued upon such conversion in
accordance with the Restated Certificate (assuming no change in the Restated
Certificate or in applicable law), or when issued upon exercise of the Warrant
pursuant to the term set forth therein will be duly authorized and validly
issued, fully paid and nonassessable and, to the Company's knowledge, will be
free of restrictions on transfer other than restrictions under this Agreement
and the Related Agreements and under applicable state and federal securities
laws.
(b) Based in part on the representations made by the Investors
in Section 4 hereof, the offer and sale of the Purchased Securities solely to
the Investors in accordance with this Agreement and (assuming no change in
currently applicable law or the Restated Certificate, no transfer of Purchased
Securities by a holder thereof and no commission or other remuneration is paid
or given, directly or indirectly, for soliciting the issuance of Conversion
Shares upon conversion of the Purchased Securities ) the issuance of the
Conversion Shares and the issuance of Series B Stock upon exercise of the
Warrant are exempt from the registration and prospectus delivery requirements of
the U.S. Securities Act of 1933, as amended (the "1933 Act") and the securities
registration and qualification requirements of the currently effective
provisions of the securities laws of the States in which the Investors are
resident based upon their addresses set forth on the Schedule of Investors
attached hereto as Exhibit A.
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3.6 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 is required on
the part of the Company in order to enable the Company to execute, deliver and
perform its obligations under this Agreement and the Related Agreements except
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for (i) the filing of the Restated Certificate with the Secretary of State of
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Delaware and (ii) such qualifications or filings under applicable securities
laws as may be required in connection with the transactions contemplated by this
Agreement. All such qualifications and filings will, in
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the case of qualifications, be effective on the Closing and will, in the case of
filings, be made within the time prescribed by law.
3.7 Litigation. There is no action, suit, proceeding, claim,
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arbitration or investigation ("Action") pending (or, to the Company's knowledge,
currently threatened) against the Company, its activities, properties or assets
or, to the Company's knowledge, against any officer, director or employee of the
Company in connection with such officer's, director's or employee's relationship
with, or actions taken on behalf of, the Company. To the Company's knowledge,
there is no Action pending or threatened involving the prior employment of any
of the Company's employees, their use in connection with the Company's business
of any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party to or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no Action by the Company currently pending or which
the Company presently intends to initiate. None of the matters listed on the
Schedule of Exceptions with respect to this Section 3.7 could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.
3.8 Proprietary Rights Agreements. Each officer, employee and
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contractor of the Company has entered into and executed an Employee Invention
Assignment Agreement in the form attached to this Agreement as Exhibit D or an
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employment or consulting agreement containing substantially similar terms.
3.9 Status of Proprietary Assets.
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(a) Status. The Company has sufficient title and ownership of,
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or is duly licensed under or otherwise authorized to use, all patents, patent
applications, trademarks, service marks, trade names, and copyrights, trade
secrets, confidential and proprietary information, and proprietary rights (all
of the foregoing collectively hereinafter referred to as the "Proprietary
Assets"), necessary to enable it to carry on its business as now conducted and
as proposed to be conducted and to its knowledge, its rights in Proprietary
Assets do not conflict with or infringe upon the rights of any third party.
(b) Licenses; Other Agreements. The Company has not granted, any
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options, licenses or agreements of any kind relating to any Proprietary Asset of
the Company other than normal nonexclusive end use customer licenses entered
into in the ordinary course, nor is the Company bound by or a party to any
option, license or agreement of any kind with respect to any of its Proprietary
Assets.
3.10 Infringement. The Company has not received any communications
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alleging that the Company or its employees has violated or infringed or, by
conducting its business as proposed, would violate or infringe any of the
patents, trademarks, service marks, trade names, copyrights, or trade secrets,
or any proprietary rights 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
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of his or her best efforts to promote the interests of the Company or that would
conflict with the Company's business as currently conducted and proposed to be
conducted. Neither the execution nor delivery of this Agreement, the Related
Agreements or the Restated Certificate 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 Company's knowledge, conflict with or result
in a breach of the terms, conditions or provisions of, or constitute a default
under, any contract, covenant or instrument under which any of such employees is
now obligated. The Company does not believe it is or will be necessary to
utilize any inventions, trade secrets or proprietary information of any of its
employees made prior to their employment by the Company, except for inventions,
trade secrets or proprietary information that have been assigned to the Company.
3.11 Compliance with Law and Documents. The Company is not in
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violation or default of any provisions of its Restated Certificate or Bylaws,
both as amended, or of any instrument, judgment, order , writ, decree or
contract to which it is a party or by which it or any of its assets is bound,
and is in compliance with all applicable statutes, laws, regulations or orders
of any governmental authority having jurisdiction over the Company or its
assets, except for any violations, defaults or noncompliance which, individually
or in the aggregate, do not have a Material Adverse Effect. The Company has not
received any notice of any violation of any such statute, law, regulation or
order which has not been remedied prior to the date hereof. The execution,
delivery and performance of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby or thereby will not result
in any such violation or default, or be in conflict with or result in a
violation or breach of, with or without the passage of time or the giving of
notice or both, the Company's Restated Certificate or Bylaws, any judgment,
order or decree of any court or arbitrator to which the Company is a party or is
subject, any material agreement or contract of the Company, or, to the Company's
knowledge, a violation of any statute, law, regulation or order, or an event
which results in the creation of any lien, charge or encumbrance upon any asset
of the Company or the suspension, revocation, impairment, forfeiture, or
nonrenewal of any material permit.
3.12 Registration Rights. Except as provided in the Restated Rights
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Agreement and Warrant, the Company is not under any obligation to register under
the 1933 Act any of its currently outstanding securities or any securities
issuable upon exercise or conversion of its currently outstanding securities nor
is the Company obligated to register or qualify any such securities under any
state securities or blue sky laws.
3.13 Title to Property and Assets. The properties and assets the
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Company owns are owned by the Company free and clear of all mortgages, deeds of
trust, liens, encumbrances and security interests except for statutory liens for
the payment of current taxes that are not yet delinquent and liens, encumbrances
and security interests which arise in the ordinary course of business and which
do not affect material properties and assets of the Company. With respect to
the property and assets it leases, the Company is in compliance with such leases
in all material respects, and to its knowledge, holds a valid leasehold interest
free and clear of any liens, claims or encumbrances.
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3.14 Financial Statements. Attached to this Agreement as Exhibit E is
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the Company's unaudited balance sheet and statement of operations and statement
of cash flows of the Company for the period ended June 30, 2000 (the "Balance
Sheet Date") (all such financial statements being collectively referred to
herein as the "Financial Statements"). Such Financial Statements (i) are in
accordance with the books and records of the Company, (ii) are true, correct and
complete and present fairly the financial condition of the Company at the date
or dates therein indicated and the results of operations for the period or
periods therein specified, and (iii) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis, except
(A) that the Financial Statements may not contain all footnotes required by
generally accepted accounting principles and (B) for normal year-end audit
adjustments. Except as noted on the Schedule of Exceptions by reference to this
Section 3.14 or Section 3.15 hereof, there has been no change in the condition,
financial or otherwise, or operations of the Company since the Balance Sheet
Date that constitutes a Material Adverse Effect.
3.15 Activities Since Balance Sheet Date. Since the Balance Sheet
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Date, the Company has not:
(a) declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its capital stock;
(b) incurred any indebtedness for money borrowed or incurred any
other liabilities individually in excess of $100,000, or in case of indebtedness
and/or liabilities individually less than $100,000, in excess of $500,000 in the
aggregate;
(c) made any loans or advances to any person, other than
ordinary advances for travel expenses;
(d) sold, exchanged or otherwise disposed of any material
tangible or intangible assets or rights other than the sale of inventory in the
ordinary course of its business;
(e) incurred any damage, destruction or loss of property,
whether or not covered by insurance, materially and adversely affecting the
assets, properties, financial condition, operating results, prospects or
business of the Company (as such business is presently conducted and as it is
proposed to be conducted);
(f) waived a valuable right or a material debt owed to it;
(g) satisfied or discharged any lien, claim or encumbrance or
payment of any obligation of the Company, except in the ordinary course of
business;
(h) made any material change or amendment to a material contract
or arrangement by which the Company or any of its assets or properties is bound
or subject;
(i) received notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
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(j) entered into any material transactions with any of its
officers, directors or employees or any entity controlled by any of such
individuals; or
(k) made any agreement or commitment to do any of the things
described in this Section 3.15.
3.16 Agreements.
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(a) No employee, officer, or director of the Company or member
of his or her immediate family is indebted to the Company, nor is the Company
indebted (or committed to make loans or extend or guarantee credit) to any of
them. To the Company's knowledge, none of such persons has any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation that competes with the Company, except that employees, officers, or
directors of the Company and members of their immediate families may own stock
representing a non-controlling interest in publicly traded companies that may
compete with the Company.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company is a party or, to its knowledge, by which it is bound which may
involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $250,000 (other than transactions involving the sale or
license of the Company's software products and/or services arising in the
ordinary course of business), (ii) the transfer or license of any patent,
copyright, trade secret or other proprietary right to or from the Company (other
than licenses arising from the purchase of "off the shelf" software or other
standard products in the ordinary course of business or the license of the
Company's software products in the ordinary course of business), or (iii)
indemnification by the Company with respect to infringements of proprietary
rights (other than indemnification obligations arising from purchase or license
agreements entered into in the ordinary course of business).
3.17 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 its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation.
3.18 Insurance. The Company maintains, with financially sound,
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reputable and solvent companies, insurance policies (a) insuring its assets
against loss by fire, explosion, theft and other risks and casualties as are
customarily insured against by companies engaged in the same or a similar
business in the same or similar geographic region, (b) insuring it against
liability for personal injury and property damages relating to its assets, in
such amounts and covering such risks as are usually insured against by companies
engaged in the same or similar business in the same or similar geographic
region, and (c) insuring it against liability for personal injury, death or
property damage resulting from the use of products sold by the Company in such
amounts as are maintained by responsible companies engaged in the same or
similar business.
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3.19 Employee Compensation and Benefit Plans; Obligations of
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Management. The Company is not a party to or bound by any currently effective
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employment contracts, deferred compensation agreements, bonus plans, incentive
plans, profit sharing plans, retirement agreements, or other employee
compensation agreements. Subject to general principles related to wrongful
termination of employees, the employment of each officer and employee of the
Company is terminable at the will of the Company without any obligation on the
part of the Company to make any payment in connection therewith or to accelerate
the vesting of any rights or securities.
3.20 Disclosure. This Agreement and the Exhibits hereto do not
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contain any untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein or herein in view of the
circumstances under which they were made not misleading.
3.21 Marketing Rights. The Company is not bound by any agreement that
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adversely affects its exclusive right to develop, distribute, market or sell its
products and services.
3.22 Tax Elections; Payments; and Withholdings. The Company has not
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elected pursuant to the Internal Revenue Code of 1986, as amended (the "Code"),
to be treated as an "S" corporation or a collapsible corporation pursuant to
Section 341(f) or Section 1362(a) of the Code, nor has it made any other
elections pursuant to the Code (other than elections which relate solely to
matters of accounting, depreciation or amortization) which would have a material
adverse effect on the business, properties or financial condition of the
Company. Since its inception, the Company has not incurred any taxes,
assessments or governmental charges other than in the ordinary course of
business and the Company has made adequate provisions on its books of account
for all taxes, assessments and governmental charges with respect to its
business, properties and operations for such period and the liability therefor
reflected in the Financial Statements is adequate under generally accepted
accounting principles. The Company has duly and timely filed, or will duly and
in a timely manner file, all tax returns and other filings in respect of any
such taxes, assessments and governmental charges which are required to be filed
by it and has in a timely manner paid (or will in a timely manner pay) all such
taxes, assessments and governmental charges shown to be due on such returns.
All such returns and other filings are or will be complete and were or will be
prepared in good faith and in accordance with all applicable rules and
regulations. The Company has withheld or collected from each payment made to
each of its employees, the amount of all taxes (including, but not limited to,
federal income taxes, Federal Insurance Contribution Act taxes and Federal
Unemployment Tax Act taxes) required to be withheld or collected therefrom, and
has paid the same to the proper tax receiving officers or authorized
depositories.
3.23 Employees. The Company is not aware that any officer or key
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employee intends to terminate his or her employment with the Company, nor does
the Company have a present intention to terminate the employment of any officer
or key employee.
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3.24 Permits. The Company has all business permits, licenses and any
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similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, assets or financial condition of the Company, and the Company believes
it can obtain on reasonable terms 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 business permits, licenses or other similar
authority.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each
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Investor, severally and not jointly, hereby represents and warrants to, and
agrees with, the Company that:
4.1 Authorization. This Agreement constitutes such Investor's valid
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and legally binding obligation, enforceable in accordance with its terms except
as may be limited by (i) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies and (iii) to the extent the indemnification
provisions contained in the Restated Rights Agreement may be limited by
applicable federal or state securities laws. Each Investor represents that such
Investor has full power and authority to enter into this Agreement and the
Related Agreements.
4.2 Purchase for Own Account. The Purchased Securities to be
------------------------
purchased by such Investor hereunder will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the 1933 Act, and
such Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. If not an individual, such Investor
also represents that such Investor has not been formed for the specific purpose
of acquiring Purchased Securities.
4.3 Disclosure of Information. Such Investor has received or has had
-------------------------
full access to all the information it considers necessary or appropriate to make
an informed investment decision with respect to the Purchased Securities to be
purchased by such Investor under this Agreement. Such Investor further has had
an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Purchased Securities and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Investor or to which such
Investor had access. The foregoing, however, does not in any way limit or
modify the representations and warranties made by the Company in Section 3.
4.4 Investment Experience. Such Investor understands that the
---------------------
purchase of the Purchased Securities involves substantial risk. Such Investor:
(i) has experience as an investor in securities of companies in the development
stage and acknowledges that such Investor is able to fend for itself, can bear
the economic risk of such Investor's investment in the Purchased Securities and
has such knowledge and experience in financial or business matters that such
Investor is capable of evaluating the merits and risks of this investment in the
Purchased
11
Securities and protecting its own interests in connection with this investment
and/or (ii) has a preexisting personal or business relationship with the Company
and certain of its officers, directors or controlling persons of a nature and
duration that enables such Investor to be aware of the character, business
acumen and financial circumstances of such persons.
4.5 Accredited Investor Status. Such Investor is an "accredited
--------------------------
investor" within the meaning of Regulation D promulgated under the 0000 Xxx.
4.6 Restricted Securities. Such Investor understands that the
---------------------
Purchased Securities are characterized as "restricted securities" under the 1933
Act inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. In this connection, such
Investor represents that such Investor is familiar with Rule 144 of the U.S.
Securities and Exchange Commission (the "SEC"), as presently in effect, and
understands the resale limitations imposed thereby and by the 1933 Act. Such
Investor understands that the Company is under no obligation to register any of
the securities sold hereunder except as provided in the Restated Rights
Agreement. Such Investor understands that no public market now exists for any
of the Purchased Securities and that it is uncertain whether a public market
will ever exist for the Purchased Securities or the Conversion Shares.
4.7 Further Limitations on Disposition. Without in any way limiting
----------------------------------
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Purchased Securities or the
Conversion Shares unless and until:
(a) there is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and, if reasonably
requested by the Company, at the expense of such Investor or its transferee,
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
transfer of any Purchased Securities or Conversion Shares in compliance with SEC
Rule 144 or Rule 144A, or (ii) for any transfer of Purchased Securities or
Conversion Shares by an Investor that is a partnership, limited liability
company or corporation to (A) a partner of such partnership or member of such
limited liability company or shareholder of such corporation, (B) a retired
partner of such partnership who retires after the date hereof, (C) the estate of
any such partner, member or shareholder, or (iii) for the transfer by gift, will
or intestate succession by any Investor to his or her spouse or lineal
descendants or ancestors or any trust for any of the foregoing, or (iv) for any
transfer by Camelot to its affiliates if Camelot can reasonably demonstrate to
the Company that all such transfers are
12
being effected in compliance with all applicable securities laws and will not
jeopardize the exemptions from registration and/or qualification provisions of
all applicable securities laws upon which the Company is relying in selling the
Purchased Securities and Conversion Shares to Camelot; provided that in each of
--------
the foregoing cases the transferee agrees in writing to be subject to the terms
of this Section 4 (other than Section 4.5) to the same extent as if the
transferee were an original Investor hereunder.
4.8 Legends. It is understood that the certificates evidencing the
-------
Purchased Securities and the Conversion Shares will bear the legends set forth
below:
(a) The securities represented hereby have not been registered
under the Securities Act of 1933, as amended (the "Act"), or under the
securities laws of certain states. These securities are subject to restrictions
on transferability and resale and may not be transferred or resold except as
permitted under the Act and the applicable state securities laws, pursuant to
registration or exemption therefrom. investors should be aware that they may be
required to bear the financial risks of this investment for an indefinite period
of time. The issuer of these securities may require an opinion of counsel in
form and substance satisfactory to the issuer to the effect that any proposed
transfer or resale is in compliance with the Act and any applicable state
securities laws.
(b) Any legends required by the laws of the State of Delaware
and any applicable state securities law, including a legend substantially in the
form of the following:
The shares evidenced by this certificate: (1) are convertible into
shares of common stock of the Company at the option of the holder at
any time prior to automatic conversion thereof; (2) automatically
convert into common stock of the Company in the event of a public
offering meeting certain requirements or upon certain consents of the
holders of the Company's preferred stock; and (3) are redeemable; all
pursuant to and upon the terms and conditions specified in the
Company's certificate of Incorporation. A copy of such certificate of
Incorporation may be obtained, without charge, at the Company's
principal office.
The legend set forth in (a) above shall be removed by the Company from any
certificate evidencing Purchased Securities or Conversion Shares upon delivery
to the Company of an opinion by counsel, reasonably satisfactory to the Company,
that a registration statement under the 1933 Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Purchased Securities or Conversion
Shares.
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
-----------------------------------------------
each Investor under Section 2 of this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
to such waiver, which consent may be given by written, oral or telephonic
communication to the Company or its counsel:
13
5.1 Representations and Warranties True. Each of the representations
-----------------------------------
and warranties of the Company contained in Section 3 shall be true and complete
on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.
5.2 Performance. The Company shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Restated Certificate Effective. The Restated Certificate shall
------------------------------
have been duly adopted by the Company by all necessary corporate action of its
Board of Directors and stockholders, and shall have been duly filed with and
accepted by the Secretary of State of the State of Delaware.
5.4 Compliance Certificate. The Company shall have delivered to each
----------------------
Investor at the Closing a certificate signed on its behalf by its President,
Chief Executive Officer, or Chief Financial Officer certifying that the
conditions specified in Sections 5.1, 5.2 and 5.3 have been fulfilled.
5.5 Securities Exemptions. The offer and sale of the Purchased
---------------------
Securities to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act, the qualification requirements of the
California Corporate Securities Law of 1968, as amended (the "Law") and the
registration and/or qualification requirements of all other applicable state
securities laws.
5.6 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor, and they shall each have received all such
counterpart originals and certified or other copies of such documents as they
may reasonably request. Such documents shall include (but not be limited to)
the following:
(a) Certified Charter Documents. A copy of the Restated
---------------------------
Certificate (certified by the Delaware Secretary of State) and a copy of the
Bylaws of the Company (as amended through the date of the Closing), each
certified by the Secretary or Assistant Secretary of the Company as true and
correct copies thereof as of the Closing.
(b) Corporate Actions. A copy of the resolutions of the Board of
-----------------
Directors and the stockholders of the Company evidencing the amendment to the
Company's Certificate of Incorporation providing for the authorization of the
Series B Stock, the Series B-1 Stock and the Warrant, the approval of this
Agreement and the Related Agreements, the issuance of the Purchased Securities
and the other matters contemplated hereby, each certified by the Secretary or
Assistant Secretary of the Company to be true and correct as of the Closing.
14
5.7 Opinion of Company Counsel. Each Investor shall have received an
--------------------------
opinion from Fenwick & West LLP, counsel for the Company, dated as of the date
of the Closing, in the form attached hereto as Exhibit F.
---------
5.8 Restated Rights Agreement. The Company; Xxx Xxxx, Xxx Xxxx and
-------------------------
Xxxxxxx Xxxxx Xxxx, as Trustees of the Jain Family Trust UDT, RSJ Investment
Partners, Xxxxxxxx X. Xxxxxx, Ram and Xxxxxxx Xxxxxxxxxx as Trustees of the
Xxxxxxxxxx Family Living Trust, Ram Xxxxxxxxxx as Trustee of Grantor Retained
Annuity Trust, and Xxxxxxx Xxxxxxxxxx as Trustee of the Grantor Retained Annuity
Trust (the "Founders"); TA/Advent VIII L.P., Advent Atlantic & Pacific III L.P.,
TA Executives Fund LLC, and TA Investors LLC (the "TA Entities"); and each
Investor shall have executed and delivered the Amended and Restated Registration
Rights Agreement in the form attached to this Agreement as Exhibit G (the
---------
"Restated Rights Agreement").
5.9 Restated Stockholders' Agreement. The Company, the Founders, the
--------------------------------
TA Entities and each Investor shall have executed and delivered the Amended and
Restated Stockholders' Agreement in the form attached to this Agreement as
Exhibit H the "Restated Stockholders' Agreement").
---------
5.10 Restated Voting Agreement. The Company, the Founders, the TA
-------------------------
Entities and each of the Investors shall have executed the Amended and Restated
Voting Agreement in the form attached to this Agreement as Exhibit I the
---------
"Restated Voting Agreement").
5.11 Minimum Shares Purchased. Investors shall be purchasing at the
------------------------
Closing a number of Purchased Securities sufficient to result in at least
$12,000,000 in aggregate proceeds to the Company from such sale (including
cancellation of indebtedness of the Company).
5.12 Existing Refusal Rights. The Existing Refusal Rights (as defined
-----------------------
in Section 3.2) as they apply to the issuance and sale of the Purchased
Securities shall have been waived and released in writing or shall have been
satisfied in full.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
--------------------------------------------------
of the Company to each Investor under this Agreement are subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions by such Investor:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of such Investor contained in Section 4 shall be true and complete on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. Each Investor shall have delivered to
-------------------------
the Company the purchase price specified for such Investor on Exhibit A in
---------
accordance with the provisions of Section 2.
15
6.3 Restated Certificate Effective. The Restated Certificate shall
------------------------------
have been duly adopted by the Company by all necessary corporate action of its
Board of Directors and stockholders, and shall have been duly filed with and
accepted by the Secretary of State of the State of Delaware.
6.4 Securities Exemptions. The offer and sale of the Purchased
---------------------
Securities to the Investors pursuant to this Agreement and the securities
issuable upon exercise of the Warrant shall be exempt from the registration
requirements of the 1933 Act, the qualifications requirements of the Law and the
registration and/or qualification requirements of all other applicable state
securities laws.
6.5 Restated Rights Agreement. The Company, the Founders, the TA
-------------------------
Entities and each Investor shall have executed and delivered the Restated Rights
Agreement.
6.6 Restated Stockholders' Agreement. The Company, the Founders, the
--------------------------------
TA Entities and each Investor shall have executed and delivered the Restated
Stockholders' Agreement.
6.7 Restated Voting Agreement. The Company, the Founders, the TA
-------------------------
Entities and each of the Investors shall have executed the Restated Voting
Agreement.
6.8 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel, and the Company
shall have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request.
6.9 Minimum Shares Purchased. Investors shall be purchasing at the
------------------------
Closing a number of Purchased Securities sufficient to result in at least
$12,000,000 in aggregate proceeds to the Company from such sale (including
cancellation of indebtedness of the Company).
6.10 Existing Refusal Rights. The Existing Refusal Rights (as defined
-----------------------
in Section 3.2) as they apply to the issuance and sale of the Purchased
Securities shall have been waived and released in writing or shall have been
satisfied in full.
16
7. COVENANTS OF THE COMPANY. The Company agrees with the Investors that
------------------------
it shall comply with the following covenants from and after the Closing except
as shall otherwise be expressly agreed pursuant to a written consent or consents
executed by Investors holding not less than a majority of the Series B Stock and
Conversion Shares held by the Investors as a group. The following covenants
shall terminate immediately prior to the closing of the earliest to occur of the
following: (a) the initial public offering of the Company's securities; (b) any
sale or exchange of the capital stock of the Company by the stockholders of the
Company in one transaction or series of related transactions where more than 50%
of the outstanding voting power of the Company is acquired by a person or entity
or group of related persons or entities; (c) any reorganization, consolidation
or merger of the Company where the outstanding voting securities of the Company
immediately before the transaction represent or are converted into less than
fifty percent (50%) of the outstanding voting power of the surviving entity (or
its parent corporation) immediately after the transaction; or (d) the sale or
exclusive license of all or substantially all of the Company's assets.
7.1 Financial Statements. The Company will maintain a system of
--------------------
accounts in accordance with generally accepted accounting principles, keep full
and complete financial records and furnish to Investors holding at least 75,000
shares of Series B Stock and/or Series B-1 Stock and/or Conversion Shares the
following reports: (a) within one hundred twenty (120) days after the end of
each fiscal year commencing with the year ending December 31, 2000, a copy of
the consolidated balance sheet of the Company as at the end of such year,
together with consolidated statements of income, retained earnings and cash
flows of the Company for such year, audited and certified by independent public
accountants of recognized national standing reasonably satisfactory to the Board
of Directors, prepared in accordance with generally accepted accounting
principles and practices consistently applied; and (b) within forty-five (45)
days after the end of each fiscal quarter commencing with the quarter ended
September 30, 2000, a consolidated unaudited balance sheet of the Company as at
the end of such quarter and unaudited statements of income for the Company for
such quarter and for the year to date, each of the foregoing balance sheets and
statements to set forth in comparative form the corresponding figures for the
prior fiscal period.
7.2 Board of Directors. The Company shall pay or reimburse a
------------------
director nominated only by the holders of Series B Stock and Series B-1 Stock
for his or her reasonable travel expenses incurred in connection with attending
meetings or other functions of the Board of Directors and committees thereof and
for other reasonable costs incurred by him or her in connection with any other
work on behalf of the Company (if such other reasonable costs are approved by
the chief executive officer or chief financial officer of the Company).
8. GENERAL PROVISIONS.
------------------
8.1 Survival of Warranties. The representations, warranties and
----------------------
covenants of the Company and the Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of any of the Investors, their counsel or
the Company, as the case may be.
17
8.2 Successors and Assigns. Except as otherwise provided in this
----------------------
Agreement, this Agreement, and the rights and obligations of the parties
hereunder, will be binding upon and inure to the benefit of their respective
successors, assigns, heirs, executors, administrators and legal representatives.
8.3 Governing Law. This Agreement will be governed by and construed
-------------
in accordance with the laws of the State of California, without giving effect to
that body of laws pertaining to conflict of laws.
8.4 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same agreement.
8.5 Headings. The headings and captions used in this Agreement are
--------
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
8.6 Notices. Any and all notices required or permitted to be given
-------
to a party pursuant to the provisions of this Agreement will be in writing and
will be effective and deemed to provide such party sufficient notice under this
Agreement on the earliest of the following: (i) at the time of personal
delivery, if delivery is in person; (ii) one (1) business day after deposit with
an express overnight courier for United States deliveries, or two (2) business
days after such deposit for deliveries outside of the United States, with proof
of delivery from the courier requested; or (iii) three (3) business days after
deposit in the United States mail by certified mail (return receipt requested)
for United States deliveries.
All notices for delivery outside the United States will be sent
by express courier. All notices not delivered personally will be sent with
postage and/or other charges prepaid and properly addressed to the party to be
notified at the address as follows, or at such other address as such other party
may designate by one of the indicated means of notice herein to the other
parties hereto as follows:
(a) if to an Investor, at such Investor's respective address as
set forth on Exhibit A hereto.
(b) if to the Company, marked "Attention: President", at 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000.
8.7 No Finder's Fees. Each party represents that it neither is nor
----------------
will be obligated for any finder's or broker's fee or commission in connection
with this transaction, except that the Company may be obligated to pay finder's
or broker's fees as set forth on the Schedule of Exceptions. Each Investor
agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's or broker's fee (and any
asserted liability) for which the Investor or any of its officers, partners,
employees, or
18
representatives is responsible. The Company agrees to indemnify and hold
harmless each Investor from any liability for any commission or compensation in
the nature of a finder's or broker's fee (and any asserted liability) for which
the Company or any of its officers, employees or representatives is responsible.
8.8 Costs, Expenses. The Company shall pay in connection with the
---------------
preparation, execution and delivery of this Agreement and the issuance of the
Purchased Securities, the fees and out-of-pocket expenses of Xxxx Xxxxxx &
Xxxxxx and Xxxxxxxx & Xxxxx, special counsels to the Investors, with respect
thereto, such fees and expenses not to exceed Twenty-Five Thousand Dollars
($25,000.00) in the aggregate.
8.9 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of Purchased Securities
and/or Conversion Shares representing at least a majority of the total votes to
which such holders are entitled on account of their Purchased Securities and/or
Conversion Shares as determined in accordance with the provisions of the
Restated Certificate (excluding any of such shares that have been sold to the
public or pursuant to SEC Rule 144). Any amendment or waiver effected in
accordance with this Section shall be binding upon each holder of any Purchased
Securities and/or Conversion Shares at the time outstanding, each future holder
of such securities, and the Company; provided, however, that no condition set
-------- -------
forth in Section 5 may be waived with respect to any Investor who does not
consent thereto. No delay or failure to require performance of any provision of
this Agreement shall constitute a waiver of that provision as to that or any
other instance. No waiver granted under this Agreement as to any one provision
herein shall constitute a subsequent waiver of such provision or of any other
provision herein, nor shall it constitute the waiver of any performance other
than the actual performance specifically waived.
8.10 Severability. If any provision of this Agreement is determined
------------
by any court or arbitrator of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such provision will be enforced to the maximum
extent possible given the intent of the parties hereto. If such clause or
provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such
invalid, illegal or unenforceable clause or provision had (to the extent not
enforceable) never been contained in this Agreement. Notwithstanding the
forgoing, if the value of this Agreement based upon the substantial benefit of
the bargain for any party is materially impaired, which determination as made by
the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith
negotiations.
8.11 Entire Agreement. This Agreement, the Related Agreements and the
----------------
documents referred to herein, together with all the Exhibits hereto, constitute
the entire agreement and understanding of the parties with respect to the
subject matter of this Agreement, and supersede any and all prior understandings
and agreements, whether oral or written, between or among the parties hereto
with respect to the specific subject matter hereof (including, without
19
limitation, all terms of that certain letter agreement dated September 27, 2000,
by and between the Company and Camelot Ventures, LLC).
8.12 Further Assurances. The parties agree to execute such further
------------------
documents and instruments and to take such further actions as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
8.13 Adjustments for Stock Splits, Etc. Wherever in this Agreement
----------------------------------
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
8.14 Facsimile Signatures. This Agreement may be executed and
--------------------
delivered by facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had been delivered
to the other party.
8.15 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
8.16 Waiver of Notice. The Investors hereby waive any rights to
----------------
notice of, and any rights to purchase with respect to the issuance of the
Purchased Securities and all securities directly and indirectly issuable on
account thereof contained in Article III of that certain Stockholders' Agreement
dated as of June 11, 1999, by and among the Company and certain investors and
stockholders of the Company. Such waiver is given on behalf of the Investors
and all other persons or entities that may possess such rights of first refusal
pursuant to such agreement.
8.17 Costs And Attorneys' Fees. In the event that any action, suit or
-------------------------
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
8.18 Waiver of Conflict of Interest. F&W Investments LLC, an
------------------------------
affiliate of Fenwick & West LLP, may invest as an Investor under the terms of
this Agreement. By signing this Agreement, each Investor and the Company hereby
acknowledges that the terms of this Agreement were negotiated between the
Investors and the Company and are fair and reasonable and consents to the
investment by F&W Investments LLC. Each Investor and the Company further
represents that it has had the opportunity to be, or has been, represented by
independent counsel in giving the waivers contained in this Section 8.18.
[Remainder of this page intentionally left blank]
20
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
THE COMPANY:
-----------
Kintana, Inc.
By:/s/ Xxxx XxXxxxxxx
-----------------------------------
Xxxx XxXxxxxxx
Chief Financial Officer
SIGNATURE PAGE TO KINTANA, INC
SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
Camelot Ventures/Kintana, L.L.C.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
--------------------------
Title: President
-------------------------
SIGNATURE PAGE TO KINTANA, INC
SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
By: /s/ Xxxxx X. Plug
----------------------------
Xxxxx X. Plug
SIGNATURE PAGE TO KINTANA, INC
SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
TA/Advent VIII L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
Advent Atlantic & Pacific III L.P.
By: TA Associates AAP III Partners, its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
TA Executives Fund LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
TA Investors LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO KINTANA, INC
SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of July 6, 2001, as amended by that certain Amendment to
Securities Purchase Agreement dated April 5, 2001, that certain Second Amendment
to Securities Purchase Agreement dated June 20, 2001, and that certain Third
Amendment to Securities Purchase Agreement dated June 26, 2001.
INVESTORS:
----------
MCP Global Corp. Ltd.
By: /s/ Xxx X. Xxxxx
--------------------------
Name: Xxx X. Xxxxx
------------------------
Its: Director
-------------------------
Coditec International Ltd.
By: /s/ Xxx X. Xxxxx
--------------------------
Name: Xxx X. Xxxxx
------------------------
Its: Investment Manager
-------------------------
SIGNATURE PAGE TO KINTANA, INC., SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
Xxxxxxxx New Technologies Fund II, Inc.
By: J. & X. Xxxxxxxx & Co. Incorporated, its investment advisor
By: /s/ Storm Boswick
--------------------------
Name: Storm Boswick
------------------------
Title: Managing Director
-----------------------
Xxxxxxxx Technologies Venture Fund LLC
By: J. & X. Xxxxxxxx & Co. Incorporated, its investment advisor
By: /s/ Storm Boswick
--------------------------
Name: Storm Boswick
------------------------
Title: Managing Director
-----------------------
SIGNATURE PAGE TO KINTANA, INC., SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
Fenwick & West Investments LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Partner
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I, LLC
By: /s/ illegible
Name: illegible
Title: Partner
U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I - Investors 02, LLC
By: /s/ illegible
Name: illegible
Title: Partner
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of the date first written above.
INVESTORS:
---------
DRW Venture Partners LP
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Its: Director, DRW Finance and Administration
In Witness Whereof, the parties hereto have executed this Securities
Purchase Agreement as of June 28, 2001, as amended by that certain Amendment to
Securities Purchase Agreement dated April 5, 2001, that certain Second Amendment
to Securities Purchase Agreement dated June 20, 2001, and that certain Third
Amendment to Securities Purchase Agreement dated June 26, 2001.
INVESTORS:
---------
Granite Global Ventures L.P.
By: Granite Global Ventures, L.L.C., its General Partner
By: /s/ Hany Nada
------------------------------------
Hany Nada, Managing Director
SIGNATURE PAGE TO KINTANA, INC. SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT
LIST OF EXHIBITS
----------------
Exhibit A - Schedule of Investors
Exhibit B - Restated Certificate of Incorporation
Exhibit C - Schedule of Exceptions
Exhibit D - Employment Agreement
Exhibit E - Financial Statements
Exhibit F - Opinion of Company Counsel
Exhibit G - Restated Rights Agreement
Exhibit H - Restated Stockholders' Agreement
Exhibit I - Restated Voting Agreement
Exhibit J - Warrant to Camelot
Exhibit K - Board Observation Side Letter
Exhibit L - SBA Side Letter
EXHIBIT A
Schedule of Investors
---------------------
EXHIBIT B
Restated Certificate of Incorporation
EXHIBIT C
Schedule of Exceptions
EXHIBIT D
Employee Invention Assignment Agreement
EXHIBIT E
Financial Statements
EXHIBIT F
Opinion of Company Counsel
EXHIBIT G
Restated Rights Agreement
EXHIBIT H
Restated Stockholders' Agreement
EXHIBIT I
Restated Voting Agreement
EXHIBIT J
Warrant to Camelot
EXHIBIT K
Board Observation Side Letter
EXHIBIT L
SBA Side Letter
AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
This Amendment to the Securities Purchase Agreement (the "Amendment") is
made and entered into as of April 5, 2001 by and among Kintana, Inc., a Delaware
corporation (the "Company"), and the parties listed on the Schedule of Investors
attached to this Amendment as Exhibit A (each hereinafter individually referred
---------
to as an "Investor" and collectively referred to as the "Investors").
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Agreement (as defined below).
R E C I T A L S
- - - - - - - -
A. The Company and the Investors are parties to that certain Securities
Purchase Agreement dated November 15, 2000 (the "Agreement").
B. The Company the Investors desire to amend the Agreement to facilitate
the sale by the Company of additional shares of its Series B Stock and Series B-
1 Stock pursuant to the Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the Company and
the Investors hereby agree as follows:
1. Section 2.2(a) of the Agreement is hereby amended to read in its
entirety:
(a) Conditions of Additional Closing(s). At any time and from time to
-----------------------------------
time immediately following the Closing until 5:00 p.m. Pacific Time on May
15, 2001 (the "Additional Closing Period"), the Company may, at one or more
additional closings (each an "Additional Closing"), without obtaining the
signature, consent or permission of any of the Investors, offer and sell to
other investors (the "New Investors"), at a price of $6.95 per share,
additional shares of Series B Stock and/or Series B-1 Stock; provided,
--------
however, that the number of shares of Series B Stock and/or Series B-1
-------
Stock that may be so sold may not exceed the lesser of (i) the aggregate
number of shares of Series B Stock and Series B-1 Stock authorized by the
Restated Certificate and (ii) (3,597,123); less in each case (A) the
aggregate number of shares of Series B Stock and Series B-1 Stock actually
issued and sold by the Company at the Closing and prior Additional
Closings, (B) the number of shares of Series B Stock issued upon exercise
of the Warrant, and (C) the number of shares of Series B Stock then subject
to the unexercised portion of the Warrant. New Investors may include
persons or entities who are already Investors under this Agreement.
2. All other provisions of the Agreement shall remain in full force and
effect.
This Amendment may be executed in any number of counterparts, each of which
when so executed and delivered will be deemed an original, and all such
counterparts together will constitute one and the same agreement.
[Remainder of this page intentionally left blank.]
In Witness Whereof, the parties hereto have executed this Amendment to
Securities Purchase Agreement as of the date first written above.
THE COMPANY:
-----------
Kintana, Inc.
By: /s/ Xxxx XxXxxxxxx
-------------------------
Xxxx XxXxxxxxx
Chief Financial Officer
SIGNATURE PAGE TO KINTANA, INC.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Amendment to
Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
Camelot Ventures/Kintana, L.L.C.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------
Title: Member
----------------------------
SIGNATURE PAGE TO KINTANA, INC.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Amendment to
Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
By: /s/ Xxxxx X. Plug
-------------------------
Xxxxx X. Plug
SIGNATURE PAGE TO KINTANA, INC.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Amendment to
Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
TA/Advent VIII L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
Advent Atlantic & Pacific III L.P.
By: TA Associates AAP III Partners, its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
TA Executives Fund LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
TA Investors LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO KINTANA, INC.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
EXHIBIT A
Schedule of Investors
---------------------
SECOND AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
This Second Amendment to Securities Purchase Agreement (this "Amendment")
is made and entered into as of June 20, 2001 by and among Kintana, Inc., a
Delaware corporation (the "Company"), and the parties listed on the Schedule of
Investors attached to this Amendment as Exhibit A (each hereinafter individually
---------
referred to as an "Investor" and collectively referred to as the "Investors").
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Agreement (as defined below).
R E C I T A L S
- - - - - - - -
A. The Company and the Investors are parties to that certain Securities
Purchase Agreement dated November 15, 2000, as amended by that certain Amendment
to Securities Purchase Agreement dated April 5, 2001 (such agreement as so
amended, the "Agreement").
B. The Company the Investors desire to amend the Agreement to facilitate
the sale by the Company of additional shares of its Series B Stock and Series B-
1 Stock pursuant to the Agreement until July 31, 2001.
NOW, THEREFORE, in consideration of the foregoing recitals, and for other
consideration, the adequacy of which is hereby acknowledged, the Company and the
Investors hereby agree as follows:
1. Section 2.2(a) of the Agreement is hereby amended to read in its
entirety:
(a) Conditions of Additional Closing(s). At any time and from time to
-----------------------------------
time immediately following the Closing until 5:00 p.m. Pacific Time on July
31, 2001 (the "Additional Closing Period"), the Company may, at one or more
additional closings (each an "Additional Closing"), without obtaining the
signature, consent or permission of any of the Investors, offer and sell to
other investors (the "New Investors"), at a price of $6.95 per share,
additional shares of Series B Stock and/or Series B-1 Stock; provided,
--------
however, that the number of shares of Series B Stock and/or Series B-1
-------
Stock that may be so sold may not exceed the lesser of (i) the aggregate
number of shares of Series B Stock and Series B-1 Stock authorized by the
Restated Certificate and (ii) (3,597,123); less in each case the aggregate
number of shares of Series B Stock and Series B-1 Stock actually issued and
sold by the Company at the Closing and prior Additional Closings. New
Investors may include persons or entities who are already Investors under
this Agreement.
2. The provisions of this Amendment will be effective upon the execution
hereof of sufficient parties to amend the Agreement.
3. All other provisions of the Agreement shall remain in full force and
effect.
4. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered will be deemed an original, and all such
counterparts together will constitute one and the same agreement.
[Remainder of this page intentionally left blank.]
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
THE COMPANY:
-----------
Kintana, Inc.
By: /s/ Xxxx XxXxxxxxx
-----------------------------
Xxxx XxXxxxxxx
Chief Financial Officer
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
Xxxxxxxx New Technologies Fund II, Inc.
/s/ Xxxxxx X. Xxxxxxxxxx
By: _____________________________________
Xxxxxx X. Xxxxxxxxxx
Name: ___________________________________
Managing Director, Venture Capital Investments
Title: ________________________________________________
Xxxxxxxx Technologies Venture Fund LLC
/s/ Xxxxxx X. Xxxxxxxxxx
By: _____________________________________
Xxxxxx X. Xxxxxxxxxx
Name: ___________________________________
Managing Director, Venture Capital Investments
Title: ________________________________________________
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
Camelot Ventures/Kintana, L.L.C.
/s/ Xxxxx Xxxxxxx
By: _________________________________
Xxxxx Xxxxxxx
Name: _______________________________
Manager
Title: ______________________________
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
By: /s/ Xxxxx Plug
----------------------
Xxxxx X. Plug
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
TA/Advent VIII L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
Advent Atlantic & Pacific III L.P.
By: TA Associates AAP III Partners, its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
TA Executives Fund LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
TA Investors LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
F&W Investments LLC
By: /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, III, Member
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Second Amendment to
Securities Purchase Agreement as of the first date written above.
DRW Venture Partners LP
By: /s/ Xxxx Xxxxxx
_____________________
Name: Xxxx Xxxxxx
_____________________
Its: Director, DRW Finance and Administration
_________________________________________
SIGNATURE PAGE TO KINTANA, INC.
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIRD AMENDMENT TO
SECURITIES PURCHASE AGREEMENT
This Third Amendment to Securities Purchase Agreement (this "Amendment") is
made and entered into as of June 26, 2001 by and among Kintana, Inc., a Delaware
corporation (the "Company"), and the parties listed on the Schedule of Investors
attached to this Amendment as Exhibit A (each hereinafter individually referred
---------
to as an "Investor" and collectively referred to as the "Investors").
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Agreement (as defined below).
R E C I T A L S
- - - - - - - -
A. The Company and the Investors are parties to that certain Securities
Purchase Agreement dated November 15, 2000, as amended by both that certain
Amendment to Securities Purchase Agreement dated April 5, 2001 and that certain
Second Amendment to Securities Purchase Agreement dated June 20, 2001 (such
agreement as so amended, the "Agreement").
B. The Company and the Investors desire to amend the Agreement to
increase the number of additional shares of its Series B Stock and Series B-1
Stock that may be sold by the Company pursuant to the Agreement until July 31,
2001.
NOW, THEREFORE, in consideration of the foregoing recitals, and for other
consideration, the adequacy of which is hereby acknowledged, the Company and the
Investors hereby agree as follows:
1. Section 2.2(a) of the Agreement is hereby amended to read in its
entirety:
(a) Conditions of Additional Closing(s). At any time and from time to
-----------------------------------
time immediately following the Closing until 5:00 p.m. Pacific Time on July
31, 2001 (the "Additional Closing Period"), the Company may, at one or more
additional closings (each an "Additional Closing"), without obtaining the
signature, consent or permission of any of the Investors, offer and sell to
other investors (the "New Investors"), at a price of $6.95 per share,
additional shares of Series B Stock and/or Series B-1 Stock; provided,
--------
however, that the number of shares of Series B Stock and/or Series B-1
-------
Stock that may be so sold may not exceed 4,316,547, less the aggregate
number of shares of Series B Stock and Series B-1 Stock actually issued and
sold by the Company at the Closing and prior Additional Closings. New
Investors may include persons or entities who are already Investors under
this Agreement.
2. The provisions of this Amendment will be effective upon the execution
hereof of sufficient parties to amend the Agreement.
3. All other provisions of the Agreement shall remain in full force and
effect.
4. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered will be deemed an original, and all such
counterparts together will constitute one and the same agreement.
[Remainder of this page intentionally left blank.]
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
THE COMPANY:
-----------
Kintana, Inc.
By: /s/ Xxxx XxXxxxxxx
-------------------------------
Xxxx XxXxxxxxx
Chief Financial Officer
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
Xxxxxxxx New Technologies Fund II, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Title: Managing Director, Venture Capital Investments
-----------------------------------------------
Xxxxxxxx Technologies Venture Fund LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Title: Managing Director, Venture Capital Investments
-----------------------------------------------
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
Camelot Ventures/Kintana, L.L.C.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------
Title: Manager
------------------------------
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
By: /s/ Xxxxx Plug
---------------------------------
Xxxxx X. Plug
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
TA/Advent VIII L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its Manager
By: Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Advent Atlantic & Pacific III L.P.
By: TA Associates AAP III Partners, its General Partner
By: TA Associates, Inc., its General Partner
By: Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
TA Executives Fund LLC
By: TA Associates, Inc., its Manager
By: Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
TA Investors LLC
By: TA Associates, Inc., its Manager
By: Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
F&W Investments LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, III, Member
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the date first written above.
INVESTORS:
---------
U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I, LLC
By:__________________________________
Name:________________________________
Title:_______________________________
U.S. Bancorp Xxxxx Xxxxxxx ECM Fund I - Investors 02, LLC
By: /s/ [ILLEGIBLE]
----------------------------------
Name: [ILLEGIBLE]
--------------------------------
Title: Partner
-------------------------------
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
In Witness Whereof, the parties hereto have executed this Third Amendment
to Securities Purchase Agreement as of the first date written above.
INVESTORS:
---------
DRW Venture Partners LP
By: Xxxx Xxxxxx
--------------------------------------------
Name: /s/ Xxxx Xxxxxx
------------------------------------------
Title: Director, DRW Finance and Administration
-----------------------------------------
SIGNATURE PAGE TO KINTANA, INC.
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
