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EXHIBIT 10.20
XXXXX.XXX NETWORKS
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES E PREFERRED STOCK PURCHASE AGREEMENT (the "AGREEMENT") is
entered into as of May 7, 1999, by and among XXXXX.XXX NETWORKS, a California
corporation (the "COMPANY"), and each of those persons and entities, severally
and not jointly, whose names are set forth on the Schedule of Purchasers
attached hereto as EXHIBIT A (which persons and entities are hereinafter
collectively referred to as "PURCHASERS" and each individually as a
"PURCHASER").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of up to one
million (1,000,000) shares of its Series E Preferred Stock (the "SHARES");
WHEREAS, Purchasers desire to purchase the Shares on the terms and
conditions set forth herein;
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
SECTION 1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized (a) the sale and issuance to
Purchasers of the Shares and (b) the issuance of the shares of common stock to
be issued on conversion of the Shares (the "CONVERSION SHARES"). The Shares and
the Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Amended and Restated Articles of Incorporation of
the Company, in the form attached hereto as EXHIBIT B (the "RESTATED ARTICLES").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as hereinafter defined) the Company hereby agrees to issue and sell
to each Purchaser and each Purchaser agrees to purchase from the Company, the
number of Shares set forth opposite such Purchaser's name on EXHIBIT A, at a
purchase price of $10.00 per Share.
SECTION 2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "CLOSING") shall take place on the date of this Agreement, at the
offices of Xxxxxx Godward LLP.
2.2 DELIVERY. At the Closing, subject to the terms and conditions
hereof, the Company will deliver to the Purchasers certificates representing the
number of Shares to be purchased at the Closing by
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each Purchaser, against payment of the purchase price therefor by check or wire
transfer made payable to the order of the Company, cancellation of indebtedness
or any combination of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Amended and Restated Investors' Rights Agreement in
substantially the form attached hereto as EXHIBIT D (the "INVESTORS' RIGHTS
AGREEMENT') and the Amended and Restated Co-Sale and Voting Agreement in
substantially the form attached hereto as EXHIBIT E (the "CO-SALE AGREEMENT"),
to issue and sell the Shares, to issue the Conversion Shares, to carry out the
provisions of this Agreement, the Investors' Rights Agreement, the Co-Sale
Agreement and the Restated Articles and to carry on its business as presently
conducted and as presently proposed to be conducted. The Company is duly
qualified and is authorized to do business and is in good standing as a foreign
corporation in all jurisdictions in which the nature of its activities and of
its properties (both owned and leased) makes such qualification necessary,
except for those jurisdictions in which failure to do so would not have a
material adverse effect on the Company or its business.
3.2 CAPITALIZATION. As of April 20, 1999, the authorized capital stock
of the Company consisted of (a) 30,000,000 shares of common stock, (i) 1,826,799
shares of which are issued and outstanding and (ii) 8,822,500 shares of which
are reserved for future issuance to employees, consultants and directors upon
the exercise of options to purchase the Company's common stock pursuant to the
Amended and Restated 1994 Stock Option Plan and the Amended and Restated 1998
Equity Incentive Plan and (b) 18,286,810 shares of preferred stock, (i)
2,707,403 shares of which are designated Series A Preferred Stock, of which
2,685,181 shares are issued and outstanding, (ii) 579,407 shares of which are
designated Series B Preferred Stock, of which 579,407 shares are issued and
outstanding, (iii) 7,000,000 shares of which are designated Series C Preferred
Stock, of which 3,626,922 shares are issued and outstanding and (iv) 8,000,000
shares of which are designated Series D Preferred Stock, of which 6,546,369 are
issued and outstanding. All issued and outstanding shares of the Company's
common stock, Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (A) have been duly authorized and
validly issued and (B) are fully paid and nonassessable. The rights,
preferences, privileges and restrictions of the Shares are as stated in the
Restated Articles. The Conversion Shares have been duly and validly reserved for
issuance. When issued in compliance with the provisions of this Agreement and
the Restated Articles, the Shares and the Conversion Shares will be validly
issued, fully paid and nonassessable, and will be free of any liens or
encumbrances; provided, however, that the Shares and the Conversion Shares may
be subject to restrictions on transfer under state and/or federal securities
laws as set forth herein or as otherwise required by such laws at the time a
transfer is proposed.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the part
of the Company, its officers, directors and shareholders necessary for the
authorization of this Agreement, the Investors' Rights Agreement and the Co-Sale
Agreement, the performance of all obligations of the Company hereunder and
thereunder at the Closing and the authorization, sale, issuance and delivery of
the Shares pursuant hereto and the Conversion Shares pursuant to the Restated
Articles, has been taken or will be taken prior to the Closing. The Agreement,
the Investors' Rights Agreement and the Co-Sale Agreement, when executed and
delivered, will be valid and binding obligations of the Company
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enforceable in accordance with their terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights, (b) general principles
of equity that restrict the availability of equitable remedies, and (c) to the
extent that the enforceability of the indemnification provisions in Section 3.9
of the Investors' Rights Agreement may be limited by applicable laws. The sale
of the Shares and the subsequent conversion of Shares into Conversion Shares are
not and will not be subject to any preemptive rights or rights of first refusal
other than the right of first refusal set forth in the Investors' Rights
Agreement, which has been waived in accordance with that agreement.
3.4 SMALL BUSINESS CONCERN. The Company, together with its affiliates
(as that term is defined in 13 C.F.R. Section121.103), is a "small business
concern" within the meaning of the Small Business Investment Act of 1958, as
amended, and the regulations promulgated thereunder (the "SMALL BUSINESS
INVESTMENT ACT") and Part 121 of Title 13 of the United States Code of Federal
Regulations ("CFR"). The information provided by the Company to each Purchaser
that is a licensed Small Business Investment Company (an "SBIC PURCHASER") on
SBA Forms 480, 652 and 1031 delivered in connection herewith is accurate and
complete.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents and warrants to the Company as follows
(such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power and
authority under all applicable provisions of law to execute and deliver this
Agreement, the Investors' Rights Agreement and the Co-Sale Agreement and to
carry out their provisions. All action on Purchaser's part required for the
lawful execution and delivery of this Agreement, the Investors' Rights Agreement
and the Co-Sale Agreement has been or will be effectively taken prior to the
Closing. Upon their execution and delivery, this Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement will be valid and binding obligations
of Purchaser, enforceable in accordance with their terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application affecting enforcement of creditors' rights, (b) general
principles of equity that restrict the availability of equitable remedies, and
(c) to the extent that the enforceability of the indemnification provisions of
Section 3.9 of the Investors' Rights Agreement may be limited by applicable
laws.
4.2 CONSENTS. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of Purchaser required in
connection with the consummation of the transactions contemplated in the
Agreement, the Investors' Rights Agreement or the Co-Sale Agreement have been or
shall have been obtained prior to and be effective as of the Closing.
4.3 INVESTMENT REPRESENTATIONS. Purchaser understands that neither the
Shares nor the Conversion Shares have been registered under the Securities Act.
Purchaser also understands that the Shares are being offered and sold pursuant
to an exemption from registration contained in the Securities Act based in part
upon Purchaser's representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the
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Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
Purchaser must bear the economic risk of this investment indefinitely unless the
Shares (or the Conversion Shares) are registered pursuant to the Securities Act
or an exemption from registration is available. Purchaser understands that the
Company has no present intention of registering the Shares, the Conversion
Shares or any shares of its common stock. Purchaser also understands that there
is no assurance that any exemption from registration under the Securities Act
will be available and that, even if available, such exemption may not allow
Purchaser to transfer all or any portion of the Shares or the Conversion Shares
under the circumstances, in the amounts or at the times Purchaser might propose.
(b) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents that
by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement, the Investors' Rights Agreement and
the Co-Sale Agreement. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(c) ACCREDITED INVESTOR. Purchaser represents that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act as such term is defined under Rule 501 of Regulation D as indicated on
EXHIBIT C hereto.
(d) INVESTMENT. Purchaser is acquiring the Shares (or any of the
common stock into which the Shares are convertible) for investment for its own
account and not with a view to, or for resale in connection with, any
distribution thereof, and Purchaser has no present intention of selling or
distributing the Shares (or any of the common stock into which the Shares are
convertible). Purchaser understands that the Shares (and the common stock into
which the Shares are convertible) to be purchased by it have not been registered
under the Securities Act which depends upon, among other things, the bona fide
nature of the investment intent as expressed herein.
(e) COMPANY INFORMATION. Purchaser has received and read the
financial statements of the Company and of Hearst HomeArts, Inc. and has had an
opportunity to discuss the Company's business, management and financial affairs
with directors, officers and management of the Company and has had the
opportunity to review the Company's operations and facilities. Purchaser has
also had the opportunity to ask questions of and receive answers from the
Company and its management regarding the terms and conditions of this
investment.
(f) RESTRICTED SECURITIES. Purchaser acknowledges and agrees that
the Shares and the Conversion Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being through an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the number of
shares being sold during any three-month period not exceeding specified
limitations.
4.4 TRANSFER RESTRICTIONS. Each Purchaser acknowledges and agrees that
the Shares and the Conversion Shares are subject to restrictions on transfer as
set forth in the Investors' Rights Agreement.
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SECTION 5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Purchasers'
obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the Closing Date
with the same force and effect as if they had been made as of the Closing Date,
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing.
(b) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement (except for such as may be properly
obtained subsequent to the Closing).
(c) FILING OF RESTATED ARTICLES. The Restated Articles shall have
been filed with the Secretary of State of the State of California.
(d) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
(e) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(f) INVESTORS' RIGHTS AGREEMENT. An Investors' Rights Agreement
substantially in the form attached hereto as EXHIBIT D shall have been executed
and delivered by the parties thereto.
(g) CO-SALE AGREEMENT. The Co-Sale Agreement substantially in the
form attached hereto as EXHIBIT E shall have been executed and delivered by the
parties thereto.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation
to issue and sell the Shares at each Closing is subject to the satisfaction, on
or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by Purchasers in Section 4 hereof shall be true and correct at
the date of the Closing, with the same force and effect as if they had been made
on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have performed
and complied with all agreements and conditions herein required to be performed
or complied with by Purchasers on or before the Closing.
(c) FILING OF RESTATED ARTICLES. The Restated Articles shall have
been filed with the Secretary of State of the State of California.
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(d) INVESTORS' RIGHTS AGREEMENT. An Investors' Rights Agreement
substantially in the form attached hereto as EXHIBIT D shall have been executed
and delivered by the parties thereto.
(e) CO-SALE AGREEMENT. The Co-Sale Agreement substantially in the
form attached hereto as EXHIBIT E shall have been executed and delivered by the
parties thereto.
(f) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement, the Investors'
Rights Agreement and the Co-Sale Agreement (except for such as may be properly
obtained subsequent to the Closing).
SECTION 6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in the State of
California.
6.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation and the closing of the transactions
contemplated hereby. All statements as to factual matters contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant hereto in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
6.4 ENTIRE AGREEMENT. This Agreement, the Exhibits, the Investors'
Rights Agreement, the Co-Sale Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
6.5 SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.6 AMENDMENT AND WAIVER.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and holders of at least a majority of the Shares
(treated as if converted and including any Conversion Shares into which the
Shares have been converted that have not been sold to the public).
(b) The obligations of the Company and the rights of the holders
of the Shares and the Conversion Shares under the Agreement may be waived only
with the written consent of the holders of at least a majority of the Shares
(treated as if converted and including any Conversion Shares into which the
Shares have been converted that have not been sold to the public).
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(c) Any amendment or waiver effected in accordance with this
Section 6.6 shall be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and the
Company.
6.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Investors'
Rights Agreement, the Co-Sale Agreement or the Restated Articles, shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
any Purchaser's part of any breach, default or noncompliance under this
Agreement or under the Restated Articles or any waiver on such party's part of
any provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, the Restated Articles, Bylaws, or
otherwise afforded to any party, shall be cumulative and not alternative.
6.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified; (b) when sent by confirmed telex; (c) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (d) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the Company at the address as set
forth on the signature page hereof and to Purchaser at the address set forth on
EXHIBIT A attached hereto or at such other address as the Company or Purchaser
may designate by ten days advance written notice to the other parties hereto.
6.9 ATTORNEYS' FEES. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
6.10 WAIVER OF CONFLICTS. Each party to this Agreement acknowledges that
legal counsel for the Company, Xxxxxx Godward LLP ("XXXXXX GODWARD"), has in the
past and may continue in the future to perform legal services for one or more of
the Purchasers or their affiliates in matters unrelated to the transactions
contemplated by this Agreement, including, but not limited to, the
representation of the Purchasers in matters of a similar nature to the
transactions contemplated herein. Each party to this Agreement hereby (a)
acknowledges that they have had an opportunity to ask for and have obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation, (b)
acknowledges that with respect to the transactions contemplated herein, Xxxxxx
Godward has represented the Company and not any individual Purchaser or any
individual shareholder, director or employee of the Company and (c) gives its
informed consent to Xxxxxx Godward's representation of the Company in the
transactions contemplated by this Agreement and Xxxxxx Godward's representation
of one or more of the Purchasers or their affiliates in matters unrelated to
such transactions.
6.11 TITLES AND SUBTITLES. The titles of the sections and subsections of
the Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.
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6.12 PRONOUNS. All pronouns contained herein and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the parties hereto may require.
6.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.14 EXPENSES. Each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement, the Investors' Rights Agreement and the Co-Sale Agreement.
6.15 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein, except that the Company shall be obligated
to pay BT Alex. Xxxxx Incorporated its fees pursuant to its agreement with the
Company related to this transaction. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 6.15 being untrue.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this SERIES E
PREFERRED STOCK PURCHASE AGREEMENT as of the date first above written.
COMPANY: XXXXX.XXX NETWORKS
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
By: /s/ XXXXXXX XXXXXXXX
--------------------------------
Xxxxxxx XxXxxxxx, President
PURCHASERS:
(Name of Entity, if applicable)
By:
--------------------------------
(Signature)
Title:
--------------------------------
SIGNATURE PAGE
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
10
===============================================================================
XXXXX.XXX NETWORKS
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
DATED: MAY 7, 1999
===============================================================================
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TABLE OF CONTENTS
PAGE
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SECTION 1. Agreement to Sell and Purchase................................................1
1.1 Authorization of Shares.......................................................1
1.2 Sale and Purchase.............................................................1
SECTION 2. Closing, Delivery and Payment.................................................1
2.1 Closing Date..................................................................1
2.2 Delivery......................................................................1
3.1 Organization, Good Standing and Qualification.................................2
3.2 Capitalization................................................................2
3.3 Authorization; Binding Obligations............................................2
3.4 Small Business Concern........................................................3
SECTION 4. Representations and Warranties of the Purchasers..............................3
4.1 Requisite Power and Authority.................................................3
4.2 Consents......................................................................3
4.3 Investment Representations....................................................3
4.4 Transfer Restrictions.........................................................4
SECTION 5. Conditions to Closing.........................................................5
5.1 Conditions to Purchasers' Obligations at the Closing..........................5
5.2 Conditions to Obligations of the Company......................................5
SECTION 6. Miscellaneous.................................................................6
6.1 Governing Law.................................................................6
6.2 Survival......................................................................6
6.3 Successors and Assigns........................................................6
6.4 Entire Agreement..............................................................6
6.5 Separability..................................................................6
6.6 Amendment and Waiver..........................................................6
6.7 Delays or Omissions...........................................................7
6.8 Notices.......................................................................7
6.9 Attorneys' Fees...............................................................7
6.10 Waiver of Conflicts...........................................................7
6.11 Titles and Subtitles..........................................................7
6.12 Pronouns......................................................................8
i.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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6.13 Counterparts..................................................................8
6.14 Expenses......................................................................8
6.15 Broker's Fees.................................................................8
ii.
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LIST OF EXHIBITS
Schedule of Purchasers Exhibit A
Amended and Restated Articles of Incorporation Exhibit B
Definition of an "Accredited Investor" Exhibit C
Amended and Restated Investors' Rights Agreement Exhibit D
Amended and Restated Co-Sale and Voting Agreement Exhibit E
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EXHIBIT A
SCHEDULE OF PURCHASERS
SERIES E PREFERRED STOCK FINANCING
---------------------------------------------------------------------------------------------
AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
---------------------------------------------------------------------------------------------
$
TOTALS:
EXHIBIT A
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
15
EXHIBIT B
AMENDED AND RESTATED ARTICLES OF INCORPORATION
EXHIBIT B
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
16
EXHIBIT C
DEFINITION OF AN "ACCREDITED INVESTOR"
EXHIBIT C
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
17
EXHIBIT D
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT D
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
18
EXHIBIT E
AMENDED AND RESTATED CO-SALE AND VOTING AGREEMENT
EXHIBIT E
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
