EXHIBIT 10.15
SERIES D PREFERRED
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STOCK PURCHASE AGREEMENT
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THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT is made as of
November 1, 1999, by and between CacheFlow Inc., a Delaware corporation (the
"Company"), and The Andreessen 1996 Living Trust (the "Investor.")
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series D Preferred Stock. Subject to
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the terms and conditions of this Agreement, the Company agrees to sell and issue
to Investor 280,953 shares of the Company's Series D Preferred Stock (the
"Stock") for an aggregate purchase price of $3,090,483. The Company shall adopt
and file with the Secretary of State of Delaware on or before the Closing (as
defined below) the Amended and Restated Certificate of Incorporation in the form
attached hereto as Exhibit A (the "Restated Certificate"). The rights,
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preferences and privileges of the Series D Preferred Stock will be as stated in
the Restated Certificate.
1.2 Closing. The purchase and sale of the Stock shall take
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place at the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, at 10:00 A.M.,
on November 1, 1999 (which time and place are designated as the "Closing"). At
the Closing the Company shall deliver to each Investor a certificate
representing the Stock that such Investor is purchasing against payment of the
purchase price therefor by check or wire transfer.
2. Representations and Warranties of the Company. The Company
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hereby represents and warrants that as of the Closing:
2.1 Organization, Good Standing and Qualification. The Company
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is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on its
business or properties.
2.2 Authorization. All corporate action on the part of the
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Company necessary for the authorization, execution and delivery of this
Agreement has been taken. This Agreement constitutes a valid and legally binding
obligation, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.3 Compliance with Other Instruments. The Company is not in
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violation or default in any material respect of any provision of its Certificate
of Incorporation or Bylaws, or in any material respect of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, or, to the best of its knowledge, of any provision of any federal or
state statute, rule or regulation applicable to the Company. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree or contract or an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any material permit,
license, authorization, or approval applicable to the Company, its business or
operations or any of its assets or properties.
3. Representations and Warranties of the Investor. Investor hereby
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represents and warrants that:
3.1 Authorization. This Agreement constitutes a valid and
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legally binding obligation, enforceable in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made
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with the Investor in reliance upon the Investor's representation to the Company,
which by Investor's execution of this Agreement the Investor hereby confirms,
that the Stock to be received by the Investor will be acquired for investment
for the Investor's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Investor further
represents that the Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Stock.
3.3 Disclosure of Information. The Investor believes it as
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received all the information he considers necessary or appropriate for deciding
whether to purchase the Stock. The Investor further represents that it has had
an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Stock and the business,
properties, prospects and financial condition of the Company.
3.4 Investment Experience. The Investor is an investor in
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securities of companies in the development stage and acknowledges that he is
able to fend for himself, can bear the economic risk of his investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Stock.
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3.5 Accredited Investor. The Investor is an "accredited
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investor" within the meaning of Securities and Exchange Commission ("SEC") Rule
501 of Regulation D, as presently in effect.
3.6 Restricted Securities. The Investor understands that the
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Stock it is purchasing is characterized as "restricted securities" under the
federal securities laws inasmuch as it is being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Stock may be resold without registration under the
Securities Act of 1933, as amended (the "Securities Act") only in certain
limited circumstances. In this connection, the Investor represents that it is
familiar with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
3.7 Further Limitations on Disposition. Without in any way
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limiting the representations set forth above, the Investor further agrees not to
make any disposition of all or any portion of the Stock unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and Section 5.2 hereof provided and to the extent such sections
are then applicable, and:
(a) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) (i) The Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, the Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act.
3.8 Legends. It is understood that the certificates evidencing
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the Stock may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(b) "The securities represented by this certificate are
subject to sale, transfer and other restrictions in connection with the
Company's filing of a registration statement under the Securities Act of 1933,
as amended."
(c) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
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4. California Commissioner of Corporations. THE SALE OF THE
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SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH
THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR
SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
5. Miscellaneous.
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5.1 Survival of Warranties. The warranties, representations
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and covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and shall
in no way be affected by any investigation of the subject matter thereof made by
or on behalf of the Investor or the Company.
5.2 "Market Stand-Off" Agreement. In connection with the
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initial underwritten public offering by the Company of its equity securities
pursuant to an effective registration statement filed under the Securities Act,
the Investor shall not, without the prior written consent of the Company's
managing underwriter, (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of common stock or any securities convertible
into or exercisable or exchangeable for common stock (whether such shares or any
such securities are then owned by the Investor or are thereafter acquired)
(collectively, "Common Stock"), or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. Such restriction (the "Market Stand-
Off") shall be in effect for such period of time following the date of the final
prospectus for the offering as may be requested by the Company or such
underwriters. In no event, however, shall such period exceed 180 days. In the
event of the declaration of a stock dividend, a spin-off, a stock split, an
adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company's outstanding securities without receipt of consideration,
any new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Common Stock subject to the Market
Stand-Off, or into which such Common Stock thereby becomes convertible, shall
immediately be subject to the Market Stand-Off. In order to enforce the Market
Stand-Off, the Company may impose stop-transfer instructions with respect to the
Common Stock until the end of the applicable stand-off period. The Company's
underwriters shall be beneficiaries of the agreement set forth in this
Subsection 5.2. This Subsection 5.2 shall not apply to Common Stock registered
in the public offering under the Securities Act or to shares acquired after the
offering in the public market in a broker transaction.
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5.3 Successors and Assigns. Except as otherwise provided
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herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any Stock). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.4 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of California as such laws
are applied to contracts entered into and to be performed entirely within such
State.
5.5 Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.6 Titles and Subtitles. The titles and subtitles used in
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this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.7 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
5.8 Expenses. If any action at law or in equity is necessary
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to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
5.9 Amendments and Waivers. Any term of this Agreement may be
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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
a majority of the Common Stock issuable or issued upon conversion of the Series
D Preferred Stock. Any amendment or waiver effected in accordance with this
paragraph 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.
5.10 Severability. If one or more provisions of this Agreement
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are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
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5.11 Entire Agreement. This Agreement and the documents
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referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Series D Preferred
Stock Purchase Agreement as of the date first above written.
CACHEFLOW INC.
By: /s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx
President
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Signature Page to Series D Preferred Stock Purchase Agreement
INVESTOR:
THE ANDREESSEN 1996 LIVING TRUST
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Address:_____________________________________
_____________________________________
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Signature Page to Series D Preferred Stock Purchase Agreement
Exhibit A
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Amended and Restated Certificate of Incorporation
