Exhibit 10.38
INVENTA CORPORATION
PRIVATE PLACEMENT AGREEMENT
This Agreement is made as of January 28, 2000, among Inventa Corporation
(the "Company") and the entities listed on Schedule A hereto (individually, a
"Purchaser" and, collectively, the "Purchasers").
Reference is made to the letter agreement (the "Letter Agreement") dated
as of January 14, 2000, among the Company and the Purchasers. Capitalized terms
used herein but not defined herein shall have the meanings given to them in the
Letter Agreement.
1. Sale of Shares. The Company shall issue and sell to each Purchaser
listed on Schedule A, and each Purchaser shall purchase, the number of shares of
the Company's unregistered common stock (the "Shares") having the aggregate
purchase price set forth opposite such Purchaser's name on Schedule A, which
number represents such Purchaser's "pro rata share" of the Private Placement as
defined in the Letter Agreement, or such other number as agreed to by the
Company and the Purchaser. The price per share shall be equal to the price (the
"IPO Price") at which the Company offers its common stock to the public in its
initial firm commitment underwritten public offering (the "IPO"), less the
underwriting discount.
2. Registration Rights. Each Purchaser that has purchased Shares pursuant
to the terms of this Agreement shall become a party to the Investor Rights
Agreement between the Company and the holders of the Company's preferred stock
and shall be a "Holder" thereunder with respect to such Shares, all of which
shall be deemed "Registrable Securities" for all purposes thereunder. All
consents required to be obtained in connection with the granting of these rights
have been or will be obtained by the Company prior to the closing of the IPO.
3. Binding Agreement. This agreement represents a binding commitment by
the Company and the Purchasers. The closing of the sale, and the issuance of the
Shares hereunder, are subject to no conditions other than (a) the closing of the
IPO; (b) each Purchaser's payment for the shares shall occur contemporaneously
with the closing of the IPO; (c) no objection by regulatory authorities to this
Private Placement after full discussion and negotiation with the Company and its
legal counsel (with the participation of one legal counsel representing
Investors, if desired by Investors); (d) that no law, regulation, or regulatory
order requires that recission rights or other specific liability be assumed by
the Company or the underwriters or that special risks related to the Private
Placement be included in the prospectus filed in connection with the IPO; or (e)
that no delay in the IPO process be caused by resolution of matters related to
this Private Placement beyond delays caused by comments from regulatory
authorities with respect to other issues, provided that the Company has used its
good faith efforts (with the participation of one legal counsel representing
Investors, if desired by Investors) to timely resolve any regulatory issues that
arise in connection with this arrangement
4. Counterparts. This agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
COMPANY:
INVENTA CORPORATION
By:
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Xxxxx X. Xxxxxxx
President
PURCHASERS:
BANCBOSTON VENTURES INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Director
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By:
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Name: Xxxx Xxxxxxx
Title: Vice President
BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP
By: Xxxx Partners Limited Partnership,
its General Partner
By:
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General Partner
BOSTON MILLENNIA ASSOCIATES I,
LIMITED PARTNERSHIP
By:
-------------------------------
Title:
----------------------------
ESSEX PRIVATE PLACEMENT FUND II,
LIMITED PARTNERSHIP
By: Essex Investment Mgt. Company LLC
Its General Partner
By:
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Title:
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EXHIBIT A
SCHEDULE OF PURCHASERS
Name and Address Amount
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BancBoston Ventures Inc. $1,596,700
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Private Equity Portfolio II, LLC 228,100
c/o BancBoston Capital
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Boston Millennia Associates I, Limited 14,400
Partnership
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Boston Millennia Partners Limited Partnership 704,600
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Essex Private Placement Fund II, 456,200
Limited Partnership
c/o Essex Investment Mgt. Company
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
TOTAL $3,000,000
