EXHIBIT 10.2
REDENVELOPE, INC.
SERIES F PREFERRED STOCK PURCHASE AGREEMENT
APRIL 17, 2002
REDENVELOPE, INC.
SERIES F PREFERRED STOCK PURCHASE AGREEMENT
This Series F Preferred Stock Purchase Agreement (the "Agreement") is
made as of April 17, 2002 by and between RedEnvelope, Inc., a Delaware
corporation (the "Company"), and the investors listed on Exhibit A attached
hereto (the "Purchasers").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF STOCK.
1.1 SALE AND ISSUANCE OF SERIES F PREFERRED STOCK.
(a) The Company shall adopt and file with the
Secretary of State of the State of Delaware on or before the Closing (as defined
below) the Seventh Amended and Restated Certificate of Incorporation in the form
attached hereto as Exhibit B (the "Certificate").
(b) Subject to the terms and conditions of this
Agreement, each Purchaser agrees, severally but not jointly, to purchase at the
Closing and the Company agrees to sell and issue to the Purchasers at the
Closing that number of shares of Series F Preferred Stock, set forth opposite
each such Purchaser's name on Exhibit A attached hereto at a purchase price of
$0.63808 per share (as such price may be adjusted pursuant to Section 6.18
below). The shares of Series F Preferred Stock issued to each Purchaser pursuant
to this Agreement and the Common Stock issuable upon conversion of the Series F
Preferred Stock shall be hereinafter referred to as the "Shares."
1.2 CLOSING; DELIVERY.
(a) CLOSING DATE. The initial closing of the
purchase and sale of the Shares shall take place at the offices of Venture Law
Group, a Professional Corporation in Menlo Park, California, at 10:00 a.m., on
April 17, 2002 or at such other time and place as the Company and the Purchasers
mutually agree upon, orally or in writing (which time and place are designated
as the "Initial Closing"). The date of such Closing shall be referred to herein
as the "Closing Date."
(b) At the Closing, the Company shall deliver to
the Purchasers a certificate or certificates representing the Shares being
purchased thereby against payment of the purchase price therefor by check, wire
transfer to the Company's bank account, promissory note, cancellation of
indebtedness or any combination of the foregoing.
(c) Subsequent Issuance of Series F Preferred
Stock. The Company may issue up to 2,139,177 additional shares of Series F
Preferred Stock to such purchasers as it shall select (each, an "Additional
Purchaser"), provided the agreement for issuance is executed not later than
ninety (90) days following the date of the Initial Closing. Any such Additional
Purchaser shall become a party to this Agreement, that certain Amended and
Restated Investors' Rights Agreement of even date herewith, by and among the
Company, the Purchasers and the other
parties thereto, the form of which is attached hereto as Exhibit C (the
"Investors' Rights Agreement"), that certain Amended and Restated Right of First
Refusal and Co-Sale Agreement of even date herewith, by and among the Company,
the Purchasers and the other parties thereto, the form of which is attached as
Exhibit D (the "Co-Sale Agreement") and that certain Amended and Restated Voting
Agreement of even date herewith, by and among the Company, the Purchasers and
the other parties thereto, the form of which is attached hereto as Exhibit E
(the "Voting Agreement" and together with the Investors' Rights Agreement and
the Co-Sale Agreement, the "Related Agreements"), and shall have the rights and
obligations hereunder and thereunder, by executing and delivering to the Company
an additional counterpart signature page to this Agreement and the Related
Agreements. Any Additional Purchaser so acquiring shares of Series F Preferred
Stock shall be considered a "Purchaser" for purposes of this Agreement and any
Series F Preferred Stock so acquired by such Additional Purchaser shall be
considered "Shares" for purposes of this Agreement. In the event there is more
than one closing, the term "Closing" shall apply to each such closing unless
otherwise specified.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents, warrants and covenants to each Purchaser that, except
as set forth on a Schedule of Exceptions made available to the Purchasers, which
exceptions shall be deemed to be representations and warranties as if made
hereunder:
2.1 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 Delaware and has all requisite corporate power
and authority and legal right to own and operate its assets and to carry on its
business as now conducted and as proposed to be conducted, and to execute and
deliver this Agreement and all of the other agreements and instruments to be
executed and delivered by the Company, and to consummate the transactions
contemplated hereby and thereby. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure so to
qualify would reasonably be expected to have a material adverse effect on its
business or properties. True and accurate copies of the Certificate and the
Company's Bylaws, each as amended and in effect at the Closing, have been
delivered to the special counsel of Moussenvelope, L.L.C. designated in Section
6.17 below.
2.2 CAPITALIZATION. The authorized capital of the Company
consists, or will consist, immediately prior to the Closing, of:
(a) 62,569,576 shares of Preferred Stock, $0.001
par value per share, of which (i) 7,694,809 shares have been designated Series A
Preferred Stock, 7,337,634 of which will be issued and outstanding immediately
prior to the Initial Closing, (ii) 4,510,000 shares have been designated Series
B Preferred Stock, all of which will be issued and outstanding immediately prior
to the Initial Closing, (iii) 6,491,498 shares have been designated Series C
Preferred Stock, all of which will be issued and outstanding immediately prior
to the Initial Closing, (iv) 2,278,996 shares have been designated Series D
Preferred Stock, all of which will be issued and outstanding immediately prior
to the Initial Closing, (v) 17,636,249 shares have been designated Series E
Preferred Stock, 17,291,788 of which will be outstanding immediately prior to
the Initial Closing, and (vi) 23,958,024 shares have been designated Series F
Preferred Stock, none of which will be issued and outstanding immediately prior
to the Initial Closing. The rights, privileges and preferences of the Preferred
Stock are as stated in the Certificate. Immediately prior to the Initial
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Closing all of the outstanding Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock will be duly authorized, fully paid and nonassessable and issued in
compliance with all applicable federal and state securities laws.
(b) 110,000,000 shares of Common Stock, $0.001
par value per share, 3,610,145 shares of which are issued and outstanding. All
of the outstanding shares of Common Stock have been duly authorized, fully paid
and are nonassessable and issued in compliance with all applicable federal and
state securities laws. The Company has reserved 62,475,115 shares of Common
Stock for issuance upon conversion of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock and the Series F Preferred Stock.
(c) The Company has reserved 17,115,632 shares
of Common Stock for issuance to officers, directors, employees and consultants
of the Company pursuant to its 1999 Stock Plan duly adopted by the Board of
Directors and approved by the Company stockholders (the "Stock Plan"). Of such
reserved shares of Common Stock, options to purchase 4,659,159 shares have been
granted and are currently outstanding, 4,259,921 shares of Common Stock have
been issued upon exercise of options, and 8,196,552 shares of Common Stock
remain available for issuance to officers, directors, employees and consultants
pursuant to the Stock Plan.
(d) Except as set forth above and as set forth
in the Investors' Rights Agreement, there are no outstanding options, warrants,
rights (including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock.
(e) No stock plan, stock purchase, stock option,
or other agreement or understanding between the Company and any holder of any
equity securities of the Company or rights to purchase equity securities of the
Company provides for acceleration or other changes in the vesting provisions or
other terms of such securities, as the result of any merger, sale of stock or
assets, change in control or other similar transaction by the Company. Except
for the Voting Agreement (as defined in Section 2.4 below), the Company is not a
party or subject to any agreement or understanding and, to the best of the
Company's knowledge, there is no agreement or understanding between any persons
that affects or relates to the voting or giving of written consents with respect
to any security or the voting by a director of the Company.
2.3 SUBSIDIARIES. The Company does not currently own or
control, directly or indirectly, any interest in any other corporation,
association, or other business entity and the Company has never had any
subsidiaries. The Company is not a participant in any joint venture, partnership
or similar arrangement.
2.4 AUTHORIZATION. All corporate action on the part of
the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Related
Agreements (collectively, the "Agreements"), the performance of all obligations
of the Company hereunder and thereunder and the authorization, issuance and
delivery of the Shares has been taken or will be taken prior to the Closing, and
the Agreements, when
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executed and delivered by the Company, shall constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, or (ii) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 VALID ISSUANCE OF SECURITIES. The Series F Preferred
Stock that is being issued to the Purchasers hereunder, when issued, sold and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable and free
of restrictions on transfer other than restrictions on transfer under the
Agreements, and applicable state and federal securities laws and will have the
rights, preferences, and privileges described in the Certificate. Based in part
upon the representations of the Purchasers in this Agreement and subject to the
provisions of Section 2.6 below, the Series F Preferred Stock issued to each
Purchaser pursuant to this Agreement will be issued in compliance with all
applicable federal and state securities laws. The Common Stock issuable upon
conversion of the Series F Preferred Stock has been duly and validly reserved
for issuance, and upon issuance in accordance with the terms of the Certificate
shall be duly and validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under the
Agreements, and applicable federal and state securities laws and will be issued
in compliance with all applicable federal and state securities laws.
2.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for filings pursuant to Section 25102(f)
of the California Corporate Securities Law of 1968, as amended, and the rules
thereunder, and any other state securities laws.
2.7 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the best of the Company's knowledge, currently
threatened against the Company that questions the validity of the Agreements or
the right of the Company to enter into them, or to consummate the transactions
contemplated hereby or thereby, or that might result, either individually or in
the aggregate, in any material adverse changes in the assets, condition or
affairs of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for the foregoing. The foregoing includes, without limitation, actions,
suits, proceedings or investigations pending or, to the best of the Company's
knowledge, threatened (or any basis therefor known to the Company) 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 or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
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2.8 PATENTS AND TRADEMARKS. Set forth on the Schedule of
Patents and Trademarks is a true and complete list of all patents, patent
applications, trademarks, service marks, trademark and service ▇▇▇▇ applications
and registered copyrights presently owned or held by the Company. The Company
owns or possesses sufficient legal rights to all patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses, information and
proprietary rights and processes necessary for its business as now conducted
and, as proposed to be conducted, without any conflict with, or infringement of,
the rights of others. There are no outstanding options, licenses or agreements
of any kind relating to the foregoing, nor is the Company bound by or a party to
any options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity. The
Company has not received any communications alleging that the Company has
violated or, by conducting its business as currently conducted and as proposed
would violate any of the patents, trademarks, service marks, tradenames,
copyrights, trade secrets or other proprietary rights or processes of any other
person or entity. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of such
employee's best efforts to promote the interest of the Company or that would
conflict with the Company's business as proposed to be conducted. Neither the
execution or delivery of the Agreements, 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 such employee is now
obligated. The Company does not believe it is or will be necessary to use any
inventions of any of its employees (or persons it currently intends to hire)
made prior to their employment by the Company.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS.
(a) The Company is not in violation or default
of any provisions of its Certificate or Bylaws, each as amended and in effect on
and as of the Closing, or 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 federal or state statute, rule or regulation
applicable to the Company. The execution, delivery and performance of the
Agreements and the consummation of the transactions contemplated hereby or
thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
(b) To the best of its knowledge, after
reasonable investigation, the Company has avoided every condition, and has not
performed any act, the occurrence of which would result in the Company's loss of
any right granted under any license, distribution or other agreement.
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2.10 AGREEMENTS; ACTION. Except as explicitly contemplated
by the Agreements:
(a) There are no written or oral agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, employees, consultants, affiliates, or any affiliate
thereof.
(b) There are no written or oral agreements,
understandings, instruments, contracts, proposed transactions, judgments,
orders, writs or decrees to which the Company is a party or by which it is bound
that involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $25,000, (ii) the license of any patent, copyright, trade
secret or other proprietary right to or from the Company, (iii) the grant of
rights to manufacture, produce, assemble, license, market, or sell its products
to any other person or that restrict or affect the Company's exclusive right to
develop, manufacture, assemble, license, distribute, market or sell its
products, or (iv) indemnification by the Company with respect to infringements
of proprietary rights.
(c) The Company has not (i) declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock, (ii) incurred any indebtedness for money
borrowed or incurred any other liabilities individually in excess of $25,000 or
in excess of $100,000 in the aggregate, (iii) made any loans or advances to any
person, other than ordinary advances for travel or other standard business
expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights, other than the sale of its inventory in the ordinary course of business.
(d) To its knowledge, the Company is not a party
to and is not bound by any contract, agreement or instrument, or subject to any
restriction under its Certificate or Bylaws, that materially adversely affects
its business as now conducted or as proposed to be conducted, its properties or
its financial condition.
2.11 DISCLOSURE. The Company has fully provided each
Purchaser with all the information which such Purchaser has requested for
deciding whether to acquire the Shares and all information which the Company
believes is reasonably necessary to enable such Purchaser to make such a
decision. Assuming the accuracy of the Purchasers' representations regarding
their sophistication with respect to investments in companies similar to the
Company, neither the Agreements (including any representation or warranty
therein) and the exhibits attached hereto, nor any written statement or
certificate made, delivered or furnished or to be furnished to each Purchaser or
their attorneys or agents in connection with the purchase of the Shares contains
any untrue statement of a material fact or, when taken as a whole, omits to
state a material fact necessary to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
2.12 NO CONFLICT OF INTEREST. The Company is not indebted,
directly or indirectly, to any of its employees, officers or directors or to
their respective spouses or children, in any amount whatsoever, other than in
connection with expenses or advances of expenses incurred in the ordinary course
of business or relocation expenses of employees. To the Company's
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knowledge, none of the Company's employees, officers or directors, or any
members of their immediate families, are, directly or indirectly, indebted to
the Company or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship, or any firm or corporation which competes with the
Company except that employees, officers, directors and/or stockholders of the
Company may own stock in (but not exceeding two percent of the outstanding
capital stock of) any publicly traded companies that may compete with the
Company. To the Company's knowledge, none of the Company's employees, officers
or directors or any members of their immediate families are, directly or
indirectly, interested in any material contract with the Company.
2.13 RIGHTS OF REGISTRATION. Except as contemplated in the
Investors' Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.14 PRIVATE PLACEMENT. Subject in part to the truth and
accuracy of the Purchaser's representations set forth in this Agreement, the
offer, sale and issuance of the Shares, as contemplated by this Agreement, is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and neither the Company nor any authorized agent
acting on its behalf will take any action hereafter that would cause the loss of
such exemption.
2.15 TITLE TO PROPERTY AND ASSETS. The Company has good
and marketable title to all property and assets free and clear of all mortgages,
liens, loans and encumbrances, except such encumbrances and liens which arise in
the ordinary course of business and do not materially impair the Company's
ownership or use of such property or assets. With respect to the property and
assets it leases, the Company is in compliance with such leases and, to the best
of its knowledge, holds a good and valid leasehold interest free of any liens,
claims or encumbrances. The Company's properties and assets are in good
operating condition and repair and are reasonably fit and usable for the
purposes for which they are being used, reasonable wear and tear excepted. The
Company is in compliance with all material terms of each lease to which it is a
party or is otherwise bound.
2.16 FINANCIAL STATEMENTS. The Company has delivered or
made available to each Purchaser an unaudited balance sheet dated February 24,
2002, an unaudited statement of cash flows for the period ended February 24,
2002, and an unaudited income statement for the period ended February 24, 2002,
(the "Financial Statements"). The Company maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with generally accepted accounting principles. The Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the period indicated and
with each other, except that the Financial Statements may not contain all
footnotes required by generally accepted accounting principles. The Financial
Statements fairly present the financial condition and operating results of the
Company as of the dates, and for the periods, indicated therein, subject to
normal year-end adjustments. Except as set forth in the Financial Statements,
the Company has no material liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to February
24, 2002, and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted accounting
principles to be reflected in the Financial
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Statements, which, in both cases, individually or in the aggregate, are not
material to the financial condition or operating results of the Company. Except
as disclosed in the Financial Statements, the Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.17 NO CHANGES. Since February 24, 2002, there has not
been:
(a) any change in the assets, liabilities,
financial condition or operating results of the Company from that reflected in
the Financial Statements, except changes in the ordinary course of business that
have not had, in the aggregate, a materially adverse effect on such assets,
liabilities, financial condition or operations of the Company;
(b) any damage, destruction or loss, 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);
(c) any waiver by the Company of a valuable
right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien,
claim or encumbrance or payment of any obligation by the Company, except in the
ordinary course of business and that is not material to the assets, properties,
financial condition, operating results or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(e) any material change to a material contract
or arrangement by which the Company or any of its assets or properties is bound
or subject;
(f) any material change in any compensation
arrangement or agreement with any employee, officer, director or consultant;
(g) any sale, assignment or transfer of any
patents, trademarks, copyrights, trade secrets, or other intangible assets;
(h) any resignation or termination of employment
of any key officer of the Company; and the Company, to the best of its
knowledge, does not know of the impending resignation or termination of
employment of any such officer;
(i) any mortgage, pledge, transfer of a security
interest in, or lien, created by the Company, with respect to any of its
material properties or assets, except liens for taxes not yet due or payable;
(j) any loans or guarantees made by the Company
to or for the benefit of its employees, officers or directors, or any members of
their immediate families, other than travel advances and other advances made in
the ordinary course of its business;
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(k) any declaration, setting aside or payment or
other distribution in respect of any of the Company's capital stock, or any
direct or indirect redemption, purchase or other acquisition of any of such
stock by the Company other than the repurchase of unvested stock at cost from
employees or consultants in connection with the termination of their employment
or consulting relationship with the Company;
(l) to the best of the Company's knowledge, any
other event or condition of any character that reasonably could be expected to
materially and adversely affect the assets, properties, financial condition,
operating results or business of the Company (as such business is presently
conducted and as it is proposed to be conducted); or
(m) any agreement or commitment by the Company
to do any of the things described in this Section 2.17.
2.18 EMPLOYEE BENEFIT PLANS. The Company does not have any
Employee Benefit Plan as defined in the Employee Retirement Income Security Act
of 1974.
2.19 TAX RETURNS AND PAYMENTS. The Company has timely
filed all tax returns and reports as required by law. These returns and reports
are true and correct in all material respects. The Company has timely paid all
taxes owed by it or which it is obligated to withhold from amounts owing to an
employee, creditor or third party and other assessments due. The Company has not
been advised (a) that any of its returns, federal, state or other, have been or
are being audited as of the date hereof or (b) of any deficiency in assessment
or proposed judgment to its federal, state or other taxes. The Company is not
aware of any tax liability to be imposed upon its properties or assets as of the
date of this Agreement that would have a material adverse effect upon the
Company's business.
2.20 INSURANCE. The Company has in full force and effect
fire and casualty insurance policies, with extended coverage, sufficient in
amount (subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed.
2.21 LABOR AGREEMENTS AND ACTIONS. The Company is not
bound by or subject to (and none of its assets or properties is bound by or
subject to) any written or oral, express or implied, contract, commitment or
arrangement with any labor union, and no labor union has requested or, to the
knowledge of the Company, after diligent inquiry, has sought to represent any of
the employees, representatives or agents of the Company. There is no strike or
other labor dispute involving the Company pending, or to the knowledge of the
Company, after diligent inquiry, threatened, which could have a material adverse
effect on the assets, properties, financial condition, operating results, or
business of the Company (as such business is presently conducted and as it is
proposed to be conducted), nor is the Company aware of any labor organization
activity involving its employees. The Company is not aware, after diligent
inquiry, that any officer or key employee, or any group of employees, intends to
terminate their employment with the Company, nor does the Company have a present
intention to terminate the employment of any officer, or key employee or any
group of employees. The employment of each officer and employee of the Company
is terminable at the will of the Company. To its knowledge, the Company has
complied
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in all material respects with all applicable state and federal equal employment
opportunity laws and with other laws related to employment.
2.22 EMPLOYEES; EMPLOYEE COMPENSATION. Each former and
current employee, consultant and officer of the Company, has executed an
agreement with the Company regarding confidentiality and proprietary information
substantially in the form or forms delivered to the counsel for Moussenvelope,
L.L.C. Except as set forth in the Schedule of Exceptions, no former or current
employee, officer or consultant of the Company has excluded works or inventions
made prior to his or her employment with the Company from his or her assignment
of inventions pursuant to such employee, officer or consultant's Confidential or
Proprietary Information and Inventions Agreement. The Company, after reasonable
investigation, is not aware that any of its former or CURRENT employees or
consultants is in violation thereof, and the Company will use its best efforts
to prevent any such violation. All former or current consultants to or vendors
of the Company, with access to confidential information of the Company are
parties to a written agreement substantially in the form or forms provided to
counsel for the Purchasers under which, among other things, each such consultant
or vendor is obligated to maintain the confidentiality of confidential
information of the Company. The Company, after reasonable investigation, is not
aware that any of its former or current consultants or vendors are in violation
thereof, and the Company will use its best efforts to prevent any such
violation. The Company is not a party to or bound by any currently effective
employment contract, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement or other employee compensation
agreement or arrangement with any collective bargaining agent. The Company is
not aware that any of its employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employee's best efforts to promote the
interest of the Company or that would conflict with the Company's business.
Neither the execution or delivery of this Agreement, nor the carrying on of the
Company's business by the employees of the Company, nor the conduct of the
Company's business as proposed, will, to the Company's knowledge, conflict with
or result in a breach of the terms, conditions, or provisions of, or constitute
a default under, any contract, covenant or instrument under which any such
employee is now obligated.
2.23 PERMITS. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company and believes that it can obtain, without undue burden or expense, any
similar authority for the conduct of its business as planned to be conducted.
The Company is not in default in any material respect under any of such
franchises, permits, licenses or other similar authority.
2.24 CORPORATE DOCUMENTS. The minute books of the Company
contain minutes of all meetings of directors and stockholders and all actions by
written consent without a meeting by the directors and stockholders since the
date of incorporation and reflect all actions by the directors (and any
committee of directors) and stockholders with respect to all transactions
referred to in such minutes accurately in all material respects.
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2.25 REAL PROPERTY HOLDING CORPORATION. The Company is not
a United States real property holding corporation within the meaning of Internal
Revenue Code Section 897(c)(2) and any regulations promulgated thereunder.
2.26 ENVIRONMENTAL AND SAFETY LAWS. To the best of its
knowledge, the Company is not in violation of any applicable statute, law,
ordinance or regulation relating to the environment or occupational health and
safety, and, to the best of its knowledge, no material expenditures are or will
be required in order to comply with any such existing statute, law or
regulation.
2.27 STOCKHOLDER AGREEMENTS. Except as contemplated by the
Agreements, there are no agreements between the Company and any of the Company's
stockholders, or to the best knowledge of the Company, among any of the
Company's stockholders, which in any way affect any stockholder's ability or
right to freely transfer or vote such shares (except restrictions designed to
provide compliance with securities laws).
2.28 BROKERS OR FINDERS. The Company has not agreed to
incur, directly or indirectly, any liability for brokerage or finders' fees,
agents' commissions or other similar charges in connection with this Agreement
or any of the transactions contemplated hereby. The Company shall pay, and hold
each Purchaser harmless against, any liability, loss or expense (including,
without limitation, reasonable attorney's fees and out-of-pocket expenses)
arising in connection with any such claim.
2.29 COMPLIANCE WITH LAWS. The Company, to the best of its
knowledge, has complied and continues to be in compliance in all material
respects with all Federal and state laws, ordinances, rules, regulations and
orders applicable to the conduct of its business or the ownership of its
properties, other than any non-compliance that would not materially and
adversely affect the business assets, liabilities, financial condition,
operations or prospects of the Company and its business.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each
Purchaser, severally and not jointly, hereby represents and warrants to the
Company as of the Closing Date that:
3.1 AUTHORIZATION. The Agreements, when executed and
delivered by the Purchaser, will constitute valid and legally binding
obligations of such Purchaser, enforceable in accordance with their terms,
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors' rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, or
other equitable remedies, or (b) to the extent the indemnification provisions
contained in the Investors' Rights Agreement may be limited by applicable
federal or state securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with the Purchaser in reliance upon such Purchaser's representation to the
Company, which by such Purchaser's execution of this Agreement, such Purchaser
hereby confirms, that the Shares to be acquired by such Purchaser will be
acquired for investment for such Purchaser's own account, not
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as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that such Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, such Purchaser further represents that such Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Shares. Such Purchaser represents that it has
full power and authority to enter into this Agreement.
3.3 DISCLOSURE OF INFORMATION. Such Purchaser has had an
opportunity to discuss the Company's business, management, financial affairs and
the terms and conditions of the offering of the Shares with the Company's
management. Such Purchaser understands that such discussions, as well as the
written information issued by the Company, were intended to describe the aspects
of the Company's business which the Company believes to be material. The
foregoing does not limit or modify in any way the representations and warranties
of the Company contained in Section 2 of this Agreement or the right of such
Purchaser to rely thereon.
3.4 RESTRICTED SECURITIES. Such Purchaser understands
that the Shares have not been, and will not be, registered under the Securities
Act, by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser's representations as
expressed herein. Such Purchaser understands that the Shares are characterized
as "restricted securities" under the federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations such Shares may be
resold without registration under the Securities Act only in certain limited
circumstances. Such Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. Such Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than a specified number of
years after a party has purchased and paid for the security to be sold, the sale
being effected through a "broker's transaction" or in transactions directly with
a "market maker" (as provided by Rule 144(f)) and the number of shares being
sold during any three-month period not exceeding specified limitations.
3.5 NO PUBLIC MARKET. Such Purchaser understands that no
public market now exists for any of the securities issued by the Company, and
that the Company has made no assurances that a public market will ever exist for
the Shares.
3.6 INVESTMENT EXPERIENCE. Such Purchaser has experience
with respect to investments in early-stage companies and understands the high
degree of risk associated with such investments, such Purchaser acknowledges
that it is able to fend for itself, can bear the economic risk of its investment
(including the loss of a portion or all of the money to be invested), and has
such knowledge and experience in financial or business matters 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.
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3.7 LEGENDS. Such Purchaser understands that the Shares,
and any securities issued in respect thereof or exchange therefor, may bear one
or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933."
(b) Any legend required by the blue sky laws of
any state or other jurisdiction to the extent such laws are applicable to the
shares represented by the certificate so legended.
3.8 ACCREDITED INVESTOR. Such Purchaser is an "accredited
investor" as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act, which definition is attached hereto as Exhibit G.
3.9 FOREIGN INVESTORS. If the Purchaser is not a United
States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended), such Purchaser hereby represents that it has satisfied itself
as to the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Stock or any use of this Agreement, including
(i) the legal requirements within its jurisdiction for the purchase of the
Stock, (ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv) the
income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, or transfer of the Stock. Such Purchaser's
subscription and payment for and continued beneficial ownership of the Stock,
will not violate any applicable securities or other laws of the Purchaser's
jurisdiction.
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 NO INJUNCTION, ETC. No preliminary or permanent
injunction or other binding order, decree or ruling issued by a court or
governmental agency shall be in effect which shall have the effect or preventing
the consummation of the transactions contemplated by this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 2 shall be true and correct
on and as of the Initial Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Initial Closing.
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4.3 PERFORMANCE. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
4.4 COMPLIANCE CERTIFICATE. The President of the Company
shall deliver to each Purchaser at the Closing a certificate certifying that the
conditions specified in Sections 4.1, 4.2 and 4.3 have been fulfilled.
4.5 QUALIFICATIONS. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Shares pursuant to this Agreement shall be obtained and
effective as of the Closing.
4.6 OPINION OF COMPANY COUNSEL. The Purchasers shall have
received from Venture Law Group, counsel for the Company, an opinion, dated as
of the Closing, in form and substance reasonably satisfactory to counsel to the
Purchasers.
4.7 BOARD OF DIRECTORS. The Bylaws of the Company shall
provide for a board of up to eight (8) directors. Immediately following the
Closing, the Board shall be comprised of ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Gruppo.
4.8 AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT. The
Company, the holders of at least 55% of the Series B Preferred Stock, the Series
C Preferred Stock, the Series D Preferred Stock, and the Series E Preferred
Stock and the Purchasers shall have executed and delivered the Amended and
Restated Investors' Rights Agreement in substantially the form attached hereto
as Exhibit C, which shall be in full force and effect as of the Closing.
4.9 CERTIFICATE. The Company shall have filed the
Certificate with the Secretary of State of Delaware on or prior to the Closing,
which shall continue to be in full force and effect as of the Closing.
4.10 AMENDED AND RESTATED CO-SALE AGREEMENT. The Company,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, the holders of a majority the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock, voting
together, shall have executed and delivered the Amended and Restated Co-Sale
Agreement in substantially the form attached hereto as Exhibit D which shall be
in full force and effect as of the Closing.
4.11 AMENDED AND RESTATED VOTING AGREEMENT. The Company
and the holders of a majority of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, and the
Series E Preferred Stock, voting together, shall have executed and delivered the
Amended and Restated Voting Agreement substantially in the form attached hereto
as Exhibit E which shall be in full force and effect as of the Closing.
-14-
4.12 CORPORATE PROCEEDINGS. All corporate and other
proceedings required to carry out the transactions shall be reasonably
satisfactory in form and substance to the counsel to Moussenvelope, L.L.C., and
the Purchasers shall have been furnished with such instruments and documents as
such counsel shall have reasonably requested.
4.13 SECRETARY CERTIFICATE. The Secretary of the Company
shall deliver to Purchasers at the Closing (i) certified copies of the
resolutions adopted by the Company's board of directors and stockholders
authorizing the execution, delivery and performance of the transactions
contemplated by this Agreement (ii) a certified copy of the Company's bylaws as
in effect at the Closing and (iii) a certificate certifying that the Company is
in good standing in the state of Delaware and in each jurisdiction where
qualification to do business is required.
4.14 MINIMUM CLOSING. The Company shall sell and the
Purchasers shall purchase at least an aggregate of 21,157,221 Shares at the
Initial Closing.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company to the Purchasers under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchasers contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to the
Closing shall have been performed or complied with in all material respects.
5.3 QUALIFICATIONS. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Shares pursuant to this Agreement shall be obtained and effective as of
the Closing.
5.4 CORPORATE PROCEEDINGS. All corporate and other proceedings
required to carry out the transactions shall be reasonably satisfactory in form
and substance to the counsel to the Company, and the Company shall have been
furnished with such instruments and documents as such counsel shall have
reasonably requested.
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in
this Agreement, the warranties, representations and covenants of the Company and
the Purchasers contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
-15-
6.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
6.3 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law.
6.4 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon delivery, when
delivered personally, or 24 hours after prepaid deposit, by overnight courier or
sent by telegram or fax after confirmation of receipt of such transmission, or
as of 5 business days after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, addressed to the party to be notified at
such party's address as set forth below or on Exhibit A hereto, or as
subsequently modified by written notice, if such notice is sent to the Company,
with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Venture Law Group, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
6.7 FINDER'S FEE. Each party represents that it neither
is nor will be obligated for any finder's fee or commission in connection with
this transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless the Purchasers from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
6.8 ATTORNEY'S FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of any of
the Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement
may be amended or waived with the written consent of the Company and the holders
of at least a majority of the
-16-
Common Stock issued or issuable upon conversion of the Shares. Any amendment or
waiver effected in accordance with this Section 6.9 shall be binding upon the
Purchasers and each transferee of the Shares (or the Common Stock issuable upon
conversion thereof), each future holder of all such securities, and the Company.
6.10 SEVERABILITY. Any provision of this Agreement which
is held to be invalid or unenforceable in any jurisdiction shall be ineffective
to the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable the remaining provisions hereof, and any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any provision is held
to be invalid or unenforceable, such provision shall be construed by the
appropriate judicial body by limiting or reducing it to the minimum extent
necessary to make it legally enforceable.
6.11 DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power or remedy accruing to any holder of any of the Shares, upon any
breach or default of the Company under the Agreements, shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
before or thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any holder of any breach or default under the
Agreements, or any waiver on the part of any holder of any provisions or
conditions of the Agreements, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
the Agreements or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
6.12 ENTIRE AGREEMENT. This Agreement, and the documents
referred to herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and any and all other written or oral
agreements existing between the parties hereto are expressly canceled.
6.13 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
6.14 CONFIDENTIALITY. Each party hereto agrees that,
except with the prior written permission of the other party, and except as
required by law, it shall at all times keep confidential and not divulge,
furnish or make accessible to anyone any confidential information, knowledge or
data concerning or relating to the business or financial affairs of the other
parties to which such party has been or shall become privy by reason of this
Agreement, discussions or negotiations relating to this Agreement, the
performance of its obligations hereunder or the ownership of Shares
-17-
purchased hereunder. The provisions of this Section 6.14 shall be in addition
to, and not in substitution for, the provisions of any separate nondisclosure
agreement executed by the parties hereto with respect to the transactions
contemplated hereby.
6.15 EXCULPATION OF PURCHASERS. Each Purchaser
acknowledges that it is not relying upon any person, firm or corporation, other
than the Company and its officers and directors, in making its investment or
decision to invest in the Company.
6.16 WAIVER OF CONFLICTS. Each party to this Agreement
acknowledges that Venture Law Group, counsel for the Company, has in the past
performed and may continue to perform legal services for certain of the
Purchasers in matters unrelated to the transactions described in this Agreement,
including the representation of such Purchasers in venture capital financings
and other matters. Accordingly, each party to this Agreement hereby (a)
acknowledges that they have had an opportunity to ask for information relevant
to this disclosure; and (b) gives its informed consent to Venture Law Group's
representation of certain of the Purchasers in such unrelated matters and to
Venture Law Group's representation of the Company in connection with this
Agreement and the transactions contemplated hereby.
6.17 FEES AND EXPENSES. The Company shall at the Closing,
pay the reasonable fees and expenses of Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to
Moussenvelope, L.L.C., incurred with respect to this Agreement, the documents
referred to herein and the transactions contemplated hereby and thereby, up to
$25,000.
6.18 PURCHASE PRICE ADJUSTMENTS. The parties hereto
acknowledge that the price per share of the Series F Preferred Stock was
calculated based on a pre-financing valuation of $42,000,000 divided by the
total shares of Company capital stock, on a fully-diluted,
as-converted-to-Common Stock basis (including authorized, but unallocated shares
of stock available for issuance under the Company's Employee Stock Option Plan)
immediately prior to the Initial Closing, including additional shares of Common
Stock that will become issuable to the holders of Series C, Series D and Series
E Preferred Stock as a result of the issuance of the Shares by operation of the
antidilution provisions of Article IV, Section 4(d)(i) of the Certificate. The
parties further acknowledge that the price was calculated assuming 23,508,024
shares of Series F Preferred Stock would be sold in the Financing. As less than
23,508,024 shares of Series F Preferred Stock is to be sold in the Initial
Closing, in the event that, after any and all Subsequent Closings hereunder, the
aggregate amount of Series F Preferred Stock sold by the Company is less than
23,508,024 shares, the parties acknowledge and agree that the Company may
thereafter (a) re-calculate the purchase price for the Series F Preferred Stock
based on the number of shares of Series F Preferred Stock actually sold in the
Financing, which shall be effected by adjusting upward the Conversion Price for
the Series F Preferred Stock (as set forth in the Certificate) to such new price
and (b) amend the Restated Certificate to reflect such adjustment.
[SIGNATURE PAGES FOLLOW]
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The parties have executed this Series F Preferred Stock Purchase
Agreement as of the date first written above.
COMPANY:
REDENVELOPE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇▇▇
_______________________________
Title: President and CEO
_______________________________
SIGNATURE PAGE TO SERIES F PREFERRED STOCK PURCHASE AGREEMENT
PURCHASER:
MOUSSENVELOPE, L.L.C.
By: Moussescapade, L.P., Managing Member
By: Moussescribe, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
Address: c/o Mousse Partners Limited
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
WESTON PRESIDIO CAPITAL III, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Title: General Partner
___________________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
WPC ENTREPRENEUR FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Title: General Partner
___________________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
SEQUOIA CAPITAL IX
SEQUOIA CAPITAL ENTREPRENEURS FUND
SEQUOIA CAPITA IX PRINCIPALS FUND
By: SC IX Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: [Illegible]
-------------------------------------
Managing Member
Address:
SEQUOIA CAPITAL FRANCHISE FUND
SEQUOIA CAPITAL FRANCHISE PARTNERS
By: SCOFF Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: [Illegible]
-------------------------------------
Managing Member
Address:
ATRIUM VENTURE PARTNERS, L.P.
BY ATRIUM VENTURE LLC, GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Chief Operating Officer
----------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CAMELOT VENTURES LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: CFO
----------------------------------
Address:
SIPPL ▇▇▇▇▇▇▇▇▇ VENTURES II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: CFO
----------------------------------
Address: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SIPPL ▇▇▇▇▇▇▇▇▇ VENTURES III, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: CFO
----------------------------------
Address:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
Capital Research & Management
Company, on behalf of SMALL CAP
World Fund, Inc.
By: [Illegible]
Name:
Title:
Address:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
GCC RedEnvelope
By: /s/ R. ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: R. ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Partner
----------------------------------
Address: ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ VENTURES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Pres
--------------------------------------
Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
TRUSTEES FOR THE ▇▇▇▇▇▇▇ REVOCABLE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Trustee
--------------------------------------
Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR THE ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇. TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title:
--------------------------------------
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR THE ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Trustee
--------------------------------------
Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR THE ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Trustee
--------------------------------------
Address:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR THE ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ SEPARATE PROPERTY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Trustee
--------------------------------------
Address:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE OF THE ROLAPP
TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Trustee
--------------------------------------
Address:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: Crosslink Capital
#▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
THE ▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST,
▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AT TTEE
U/A/T DATED 5/12/99
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Trustee
-------------------------------
Address:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ LIVING TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust
Title: Trustee
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
W. ▇▇▇▇▇▇ ▇▇▇▇▇, III AND ▇▇▇▇▇ ▇. ▇▇▇▇▇,
TRUSTEES OF ▇▇▇▇▇ FAMILY TRUST, UDT
DATED 10/13/94, AS AMENDED
By: ▇▇▇▇▇ Family Trust
---------------------
Name: /s/ [ILLEGIBLE]
-------------------
Title: Trustee
------------------
Address:
▇▇▇▇▇▇▇▇-▇▇▇▇▇ SPECIALTY RETAIL GROUP III,
L.P.
By: ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Management
Company, L.P., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
-------------------------
Title: Managing General Partner
------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇
Address: ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SENIORTRAK, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------
Title: President
---------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: CROSSLINK CAPITAL
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ FAMILY SPRAY TRUST I
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title:
--------------------------------------
Address:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ FAMILY SPRAY TRUST II
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title:
--------------------------------------
Address:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ FAMILY SPRAY TRUST III
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Title:
--------------------------------------
Address:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇
Family Fund dated April 5, 1999
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Trustee, ▇▇▇▇▇▇ Family Fund
------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
SIGNATURE PAGE TO SERIES F PREFERRED STOCK
PURCHASE AGREEMENT
EXHIBITS
Exhibit A - Schedule of Series F Preferred Stock Purchasers
Exhibit B - Form of Seventh Amended and Restated Certificate of Incorporation
Exhibit C - Form of Amended and Restated Investors' Rights Agreement
Exhibit D - Form of Amended and Restated Right of First Refusal and Co-sale
Agreement
Exhibit E - Form of Amended and Restated Voting Agreement
Exhibit F - Form of Legal Opinion of Venture Law Group
Exhibit G - Definition of "accredited investors"
EXHIBIT A
SCHEDULE OF SERIES F PREFERRED STOCK PURCHASERS
NO. OF SHARES AGGREGATE
NAME OF PURCHASER TO BE PURCHASED PURCHASE PRICE
----------------------------------- -------------------- -------------------
Moussenvelope, L.L.C. 8,619,609 $5,500,000.11
Weston Presidio Capital III, L.P. 1,194,811 $762,385.00
WPC Entrepreneur Fund, L.P. 58,950 $37,614.82
Sequoia Capital Entrepreneurs Fund 186,292 $118,869.20
Sequoia Capital Franchise Fund 1,029,325 $656,791.70
Sequoia Capital Franchise Partners 140,362 $89,562.18
Sequoia Capital IX 1,210,251 $772,236.96
Sequoia Capital IX Principals Fund 223,389 $142,540.05
Atrium Venture Partners, L.P. 783,600 $499,999.49
Camelot Ventures LLC 250,000 $159,520.00
Sippl ▇▇▇▇▇▇▇▇▇ Ventures II, L.P. 156,720 $99,999.90
Sippl ▇▇▇▇▇▇▇▇▇ Ventures III, L.P. 470,160 $299,999.69
▇▇▇▇▇ ▇▇▇▇▇▇▇ 31,344 $19,999.98
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,000 $1,276.16
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 20,000 $12,761.60
Clipperbay & Co., Nominee for 1,018,681 $649,999.97
SMALLCAP World Fund, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 52,173 $33,290.55
GCC RedEnvelope 3,134,403 $1,999,999.87
▇▇▇▇▇ ▇▇▇▇▇ 119,555 $76,285.65
▇▇▇▇▇▇▇ Ventures 82,803 $52,834.94
NO. OF SHARES AGGREGATE
NAME OF PURCHASER TO BE PURCHASED PURCHASE PRICE
----------------- --------------- --------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 163,877 $104,566.64
Trustees for the ▇▇▇▇▇▇▇ Revocable Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee for the ▇▇▇▇ ▇. 22,604 $ 14,423.16
▇▇▇▇▇▇▇ Jr. Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee for the ▇▇▇▇▇▇▇ 22,604 $ 14,423.16
▇▇▇ ▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee for the ▇▇▇▇▇▇▇ 22,604 $ 14,423.16
▇▇▇▇▇▇▇ Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee for the 11,302 $ 7,211.58
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Separate Property
Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the 11,302 $ 7,211.58
Rolapp Trust
▇▇▇▇▇ ▇▇▇▇▇ 19,736 $ 12,593.15
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7,108 $ 4,535.47
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 9,403 $ 5,999.87
The ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust, 39,180 $ 24,999.97
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at TTEE
U/A/T dated 5/12/99
▇▇▇▇▇ ▇▇▇▇▇▇▇ 58,770 $ 37,499.96
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust 313,441 $200,000.43
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 78,361 $ 50,000.59
W. ▇▇▇▇▇▇ ▇▇▇▇▇, III and ▇▇▇▇▇ ▇. ▇▇▇▇▇, 56,747 $ 36,209.13
Trustees of ▇▇▇▇▇ Family Trust, UDT
dated 10/13/94, as amended
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Specialty Retail Group III, 274,260 $174,999.82
L.P.
▇▇▇▇ ▇▇▇▇▇ 39,180 $ 24,999.97
SeniorTrak, Inc. 49,195 $ 31,390.35
▇▇▇▇▇ ▇▇▇▇▇ 8,000 $ 5,104.64
▇▇▇▇▇▇▇ ▇▇▇▇▇ 8,078 $ 5,154.41
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 33,754 $ 21,537.75
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Family Spray Trust I 3,553 $ 2,267.10
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Family Spray Trust II 3,553 $ 2,267.10
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Family Spray Trust III 3,553 $ 2,267.10
▇▇▇▇▇▇ ▇▇▇▇▇▇ 24,254 $ 15,475.99
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,200,000 $765,696.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ 100,000 $ 63,808.00
Family Fund dated April 5, 1999
TOTALS 21,368,847 $13,635,033.89
