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EXHIBIT 10.08
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PORTABLE SOFTWARE CORPORATION
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
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1. PURCHASE AND SALE OF SERIES E PREFERRED STOCK...........................................................1
1.1 Sale and Issuance of Series E Preferred Stock..................................................1
1.2 Closing........................................................................................1
2. DEFINITIONS.............................................................................................1
2.1 Material Adverse Event.........................................................................1
2.2 Subsidiary.....................................................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO INVESTORS..............................................2
3.1 Corporate Organization and Authority...........................................................2
3.2 Capitalization.................................................................................3
3.3 Subsidiaries...................................................................................3
3.4 Authorization..................................................................................3
3.5 Corporate Power................................................................................3
3.6 Validity of Shares.............................................................................4
3.7 No Conflict with Other Instruments.............................................................4
3.8 Litigation.....................................................................................4
3.9 Title to Properties; Liens and Encumbrances....................................................5
3.10 Patents and Other Proprietary Rights...........................................................5
3.11 Taxes..........................................................................................6
3.12 Financial Statements...........................................................................6
3.13 Changes........................................................................................6
3.14 Company's Contracts............................................................................7
3.15 No Defaults, Violations, or Contracts..........................................................8
3.16 Insurance......................................................................................8
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TABLE OF CONTENTS (Continued)
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3.17 Private Offering...............................................................................8
3.18 Prior Registration Rights......................................................................8
3.19 Disclosure.....................................................................................8
3.20 Distributions..................................................................................8
3.21 Employee Compensation Plans....................................................................8
3.22 Employee Relations.............................................................................8
3.23 Employee Proprietary Information and Inventions Agreement......................................9
3.24 Brokers and Finders............................................................................9
3.25 Corporate Documents............................................................................9
3.26 Governmental Consents..........................................................................9
3.27 Permits........................................................................................9
3.28 Environmental and Safety Laws..................................................................9
3.29 Returns and Complaints........................................................................10
3.30 Manufacturing and Marketing Rights............................................................10
3.31 Section 83(b) Elections.......................................................................10
3.32 Stock Restriction Agreements..................................................................10
3.33 Real Property Holding Company.................................................................10
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS;
RESTRICTIONS ON TRANSFERABILITY........................................................................10
4.1 Authorization.................................................................................10
4.2 Brokers and Finders...........................................................................10
4.3 Investment....................................................................................10
4.4 No Public Market..............................................................................10
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TABLE OF CONTENTS (Continued)
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4.5 Limitations on Transferability................................................................11
4.6 Experience....................................................................................11
4.7 Legends.......................................................................................12
4.8 Accredited Investor...........................................................................12
5. CONDITIONS OF INVESTORS' OBLIGATIONS AT CLOSING........................................................12
5.1 Representations and Warranties................................................................12
5.2 Performance...................................................................................12
5.3 Qualifications................................................................................12
5.4 Opinion of Company's Counsel..................................................................12
5.5 Board of Directors............................................................................12
5.6 Proceedings Satisfactory; Compliance Certificate..............................................13
5.7 Information and Registration Rights Agreement.................................................13
5.8 Restated Articles.............................................................................13
5.9 Stock Restriction and Co-Sale Agreement.......................................................13
5.10 Voting Agreement..............................................................................13
5.11 Certificate of Existence/Authority............................................................13
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.....................................................13
6.1 Representations and Warranties................................................................13
6.2 Blue Sky Compliance...........................................................................13
6.3 Restated Articles.............................................................................13
6.4 Legal Matters.................................................................................14
6.5 Information and Registration Rights Agreement.................................................14
6.6 Stock Restriction and Co-Sale Agreement.......................................................14
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TABLE OF CONTENTS (Continued)
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6.7 Voting Agreement..............................................................................14
7. POST-CLOSING COVENANTS OF THE COMPANY..................................................................14
7.1 Securities Laws Compliance....................................................................14
7.2 Employee Proprietary Information and Inventions Agreement.....................................14
7.3 Stock Purchase and Restriction Agreements.....................................................14
7.4 Stock Plans...................................................................................14
7.5 Key Person Insurance..........................................................................14
7.6 Board Committees..............................................................................15
7.7 Reincorporation in Delaware...................................................................15
8. MISCELLANEOUS...........................................................................................15
8.1 Entire Agreement; Successors and Assigns......................................................15
8.2 Governing Law.................................................................................15
8.3 Counterparts..................................................................................15
8.4 Headings......................................................................................15
8.5 Notices.......................................................................................15
8.6 Survival of Warranties........................................................................16
8.7 Amendment of Agreement........................................................................16
8.8 California Securities Laws....................................................................16
8.9 Finders Fees..................................................................................16
8.10 Expenses......................................................................................16
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SERIES E PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES E PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of May 29, 1998, by and among Portable Software Corporation, a
Washington corporation (the "Company"), and the Investors listed in Schedule 1.1
attached hereto (the "Investors").
R E C I T A L S
A. The Board of Directors of the Company has adopted the Amended and
Restated Articles of Incorporation ("Restated Articles") in the form attached
hereto as Exhibit A which, among other matters, establish the rights,
preferences and privileges of the Company's no par value Series E Preferred
Stock (the "Series E Preferred Stock") and Series E1 Preferred Stock (the
"Series E1 Preferred Stock").
B. The Company desires to sell shares of Series E Preferred Stock to
the Investors, and the Investors desire to purchase that number of shares of
Series E Preferred Stock set forth on Schedule 1.1, on the terms and subject to
the conditions set forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of Series E Preferred Stock.
1.1. Sale and Issuance of Series E Preferred Stock. The
Company shall sell to the Investors and the Investors shall purchase from the
Company, at a purchase price of $3.10 per share, a total of up to 4,200,000
shares of Series E Preferred Stock (the "Shares").
1.2. Closing. The purchase and sale of the Shares shall
take place at the offices of the Company, 0000 000xx Xxxxxx XX, Xxxxxxx, XX
00000 on May 29, 1998, at 11:00 a.m. (the "Closing") or at such other place and
time as the Company and the Investors mutually agree either orally or in
writing; the date of the Closing is hereinafter referred to as the "Closing
Date". At the Closing, the Company will deliver to each Investor purchasing
Shares a certificate representing the number of Shares which such Investor is
purchasing against delivery to the Company by such Investor at the Closing of
(a) an executed counterpart of this Agreement, and (b) the purchase price of
such Shares by wire transfer, cancellation of indebtedness, or by a check
payable to the Company, all as set forth in Schedule 1.1
2. Definitions. For purposes of this Agreement.
2.1. "Material Adverse Event" shall mean an occurrence
having a consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or materially
changes the equity ownership of the Company, or (b) is reasonably foreseeable or
is more likely to occur than not, and if it were to occur might materially
adversely affect the business, properties, prospects, or financial condition of
the Company.
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2.2. "Subsidiary" means any corporation more than 50% of
whose stock (measured by virtue of voting rights) in the aggregate is owned by
the Company.
3. Representations and Warranties of the Company to Investors. Except
as set forth in the Schedule of Exceptions attached as Exhibit 3, the Company
hereby represents and warrants to the Investors that:
3.1. Corporate Organization and Authority. The Company:
(a) is a corporation duly organized, validly
existing, authorized to exercise all its corporate powers, rights and
privileges, and in good standing in the State of Washington;
(b) has the corporate power and corporate authority
to own and operate its properties and to carry on its business as now conducted
and as proposed to be conducted; and
(c) is qualified as a foreign corporation in all
jurisdictions in which such qualification is required; provided, however, that
the Company need not be qualified in a jurisdiction in which its failure to
qualify would not have a material adverse effect on the business, properties,
prospects or financial condition of the Company.
3.2. Capitalization. Immediately prior to the Closing, the
authorized capital of the Company shall consist of (i) Sixty Million
(60,000,000) shares of Common Stock, of which Five Million Eight Hundred
Twenty-Five Thousand Eight Hundred Four (5,825,804) are issued and outstanding
as of the Closing Date and held by the persons and in the amounts set forth in
Exhibit 3, and (ii) Fifty-Three Million (53,000,000) shares of Preferred Stock
(the "Preferred") of which (a) Three Million Eight Hundred Twenty-Four Thousand
and Ninety Two (3,824,092) shares have been designated Series A Preferred Stock
all of which is issued and outstanding, (b) Three Million Eight Hundred
Twenty-Four Thousand Ninety-Two (3,824,092) have been designated Series Al
Preferred Stock, none of which is issued and outstanding, (c) Four Million Six
Hundred Eighty-Seven Thousand Five Hundred (4,687,500) shares have been
designated Series B Preferred Stock, all of which are issued and outstanding,
(d) Four Million Six Hundred Eighty-Seven Thousand Five Hundred (4,687,500)
shares have been designated Series B 1 Preferred Stock, none of which is issued
or outstanding, (e) Nine Million Seven Hundred Seventy-Four Thousand Eight
Hundred and One (9,774,801) shares have been designated Series C Preferred
Stock, 9,712,301 of which are issued and outstanding, (f) Nine Million Seven
Hundred Seventy-Four Thousand Eight Hundred and One (9,774,801) shares have been
designated Series C1 Preferred Stock, none of which is issued or outstanding,
(g) Three Million Three Hundred Fifty-Seven Thousand Eight Hundred Ninety-Seven
(3,357,897) shares have been designated Series D Preferred Stock, 3,188,357 of
which are issued and outstanding, (h) Three Million Three Hundred Fifty-Seven
Thousand Eight Hundred Ninety-Seven (3,357,897) shares have been designated
Series D1 Preferred Stock, none of which is issued or outstanding, (i) Four
Million Five Hundred Thousand (4,500,000) shares have been designated Series E
Preferred Stock, none of which is issued or outstanding, and (j) Four Million
Five Hundred Thousand (4,500,000) shares have been designated Series E1
Preferred Stock, none of which is issued or outstanding. The Series E Preferred,
the Series E1 Preferred, the Series D Preferred
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Stock, the Series D1 Preferred Stock, the Series C Preferred Stock, the Series
C1 Preferred Stock, the Series B Preferred Stock, the Series B1 Preferred Stock,
the Series A Preferred Stock, and the Series Al Preferred Stock have the
respective rights, preferences, privileges, and restrictions set forth in the
Restated Articles. The outstanding shares of Common Stock, Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D
Preferred Stock have been duly authorized and validly issued (including, without
limitation, issued in compliance with applicable federal and state securities
laws), fully paid, and non-assessable. The Company has reserved 3,824,092 shares
of Common Stock for issuance upon conversion of Series A Preferred Stock and
Series Al Preferred Stock, 4,687,500 shares of Common Stock for issuance upon
conversion of Series B Preferred Stock and Series B1 Preferred Stock, 9,774,801
shares of Common Stock for issuance upon conversion of Series C Preferred Stock
and Series C1 Preferred Stock, 3,188,357 shares of Common Stock for issuance
upon conversion of Series D Preferred Stock and Series D1 Preferred Stock, and
an additional 4,200,000 shares of Common Stock for issuance upon conversion of
the Shares (or the Series E1 Preferred Stock into which the Shares may be
converted). The Company has options outstanding to its employees for the
purchase of 3,257,093 shares of Common Stock and has reserved an additional
834,007 shares of Common Stock for issuance to officers, directors, employees,
or consultants of the Company. Except as set forth above, in the Restated
Articles, and on Exhibit 3, there are no outstanding warrants, options,
conversion privileges, preemptive rights, or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of the Company, nor
has the issuance of any of the aforesaid rights to acquire securities of the
Company been authorized. The Company is not a party or subject to any agreement
or understanding, and, to the Company's knowledge, there is no agreement or
understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company other than as set forth in Section 5.5, Section 5.10,
and in Exhibit A.
3.3. Subsidiaries. The Company does not presently own,
have any investment in, or control, directly or indirectly, any Subsidiaries,
associations, or other business entities. The Company is not a participant in
any joint venture or partnership.
3.4. Authorization. All corporate action on the part of
the Company, its officers, directors and shareholders necessary for the
authorization, execution, delivery, and performance of all obligations under
this Agreement, the Restated Information and Registration Rights Agreement, (the
"Rights Agreement") attached hereto as Exhibit 5.7, and the Amended and Restated
Stock Restriction and Co-Sale Agreement, (the "Co-Sale Agreement") attached
hereto as Exhibit 5.9, and for the authorization, issuance and delivery of the
Shares and the Series E1 Preferred Stock and of the Common Stock issuable upon
conversion of the Shares and the Series E1 Preferred Stock has been taken, and
this Agreement, the Rights Agreement, and the Co-Sale Agreement (collectively,
the "Transactional Agreements") constitute legally binding and valid obligations
of the Company enforceable in accordance with their terms.
3.5. Corporate Power. The Company will have at the Closing
Date all requisite legal and corporate power and authority to execute and
deliver the Transactional Agreements, to sell and issue the Shares hereunder, to
issue the Series E1 Preferred Stock and the
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Common Stock issuable upon conversion of the Shares and the Series E1 Preferred
Stock, and to carry out and perform its obligations under the terms of the
Transactional Agreements.
3.6. Validity of Shares. The Shares, when issued, sold,
and delivered in accordance with the terms and for the consideration expressed
in this Agreement, will be duly and validly issued (including, without
limitation, issued in compliance with applicable federal and state securities
laws), fully paid and non-assessable and will be owned free and clear of any
adverse claims (within the meaning of Section 8-102(1)(a) of Article 8 of the
Washington Uniform Commercial Code), assuming that the Investors are "protected
purchasers" within the meaning of Section 8-303 of Article 8 of the Washington
Uniform Commercial Code. The Common Stock and the Series E1 Preferred Stock
issuable upon conversion of the Shares have been duly and validly reserved and,
assuming such shares are issued to the Investors, upon issuance in accordance
with the Restated Articles will be duly and validly issued (including, without
limitation, issued in compliance with all applicable federal and state
securities laws), fully-paid, and non-assessable and will be free of any liens
or encumbrances other than any liens or encumbrances created by or imposed
thereon by the holders; provided, however, that the Shares (and the Series E1
Preferred Stock and Common Stock issuable upon conversion thereof) shall be
subject to restrictions on transfer under state and/or federal securities laws.
The Shares and the Series E1 Preferred Stock, and the Common Stock issuable upon
conversion of the Shares and the Series E1 Preferred Stock, are not subject to
any preemptive rights or rights of first refusal except as specified in Exhibit
A.
3.7. No Conflict with Other Instruments. The execution,
delivery, and performance of the Transactional Agreements will not: (a) result
in any violation of, be in conflict with, or constitute a default under, with or
without the passage of time or the giving of notice: (i) any provision of the
Company's Restated Articles or Bylaws; (ii) any provision of any judgment,
decree, or order to which the Company is a party or by which it is bound; (iii)
any material contract, obligation, or commitment to which the Company is a party
or by which it is bound; or (iv) any material statute, rule, or governmental
regulation applicable to the Company, or (b) result in the creation or
acceleration of any lien, charge or encumbrance upon any assets of the Company
or the suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization, or approval applicable to the Company, its
business or operations, or any of its assets or properties.
3.8. Litigation. There is no action, proceeding, or
investigation pending or threatened, or any basis therefor known to the Company,
that questions the validity of the Transactional Agreements or the right of the
Company to enter into the Transactional Agreements or to consummate the
transactions contemplated hereby and thereby, or that would result, either
individually or in the aggregate, in any Material Adverse Event, including,
without limitation, any action, proceeding, or investigation involving the prior
employment or consultancy of any of the Company's employees or consultants or
their use of any information or techniques alleged to be proprietary to any
former employer of any such employee or consultant or their obligations under
any agreements with prior employers. There is no judgment, decree, or order of
any court in effect against the Company and the Company is not in default with
respect to any order of any governmental authority to which the Company is a
party or by which it is
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bound. There is no action, suit, proceeding, or investigation by the Company
currently pending or which the Company presently intends to initiate.
3.9. Title to Properties; Liens and Encumbrances. The
Company has good and marketable title to all of its properties and assets, both
real and personal, and has good title to all its leasehold interests, in each
case subject to no mortgage, pledge, lien, security interest, conditional sale
agreement, encumbrance, or charge, other than (i) the lien of current taxes not
yet due and payable, and (ii) liens and encumbrances which do not materially
detract from the value of the property subject thereto or materially impair the
operations of the Company. With respect to the property and assets it leases,
the Company is not in default under such leases in any material respect.
3.10. Patents and Other Proprietary Rights.
(a) The Company has sufficient title and ownership of
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights, and processes (collectively, "Intellectual
Property") necessary for its business as now conducted, and believes it can
obtain, on commercially reasonable terms, any additional rights necessary for
its business as proposed to be conducted, and the Company's Intellectual
Property does not, and, to the knowledge of the Company, would not, conflict
with or constitute an infringement of the rights of any other party;
(b) There are no outstanding options, licenses, or
agreements of any kind relating to the matters listed in subsection 3.10(a) or
that grant rights to any other person to manufacture, license, produce,
assemble, market, or sell the Company's products, nor is the Company bound by or
a party to any options, licenses, or agreements of any kind with respect to the
Intellectual Property rights of any other person or entity;
(c) The Company has not received nor is the Company
on notice of any communications alleging that the Company or its employees or
agents has violated or infringed or, by conducting its business as proposed,
would violate or infringe any of the Intellectual Property rights of any other
person or entity;
(d) The Company is not aware that any of its
employees or consultants 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
cause the Company to infringe upon the Intellectual Property rights of any other
person or entity, that would interfere with the use of such employee's and
consultant's best efforts to promote the interests of the Company, or that would
conflict with the Company's business as proposed to be conducted; and
(e) Neither the execution nor delivery of the
Transactional Agreements, nor the carrying on of the Company's business by the
employees and consultants of the Company, nor the conduct of the Company's
business as proposed, will, to the Company's knowledge, conflict with or result
in a breach of the terms, conditions, or provisions of, or constitute a default
under, any contract, covenant or instrument under which any of such
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employees or consultants is now obligated. The Company does not believe it is or
will be necessary to utilize any inventions of any of its employees (or people
it currently intends to hire) made prior to their employment by the Company.
3.11. Taxes. All federal, state, local, and foreign tax
returns required to be filed by the Company have been filed and are true in all
material respects, and all taxes, assessments, fees, and other governmental
charges upon the Company, or upon any of its properties, income, or franchises,
shown in such returns to be due and payable have been paid except those
contested by the Company in good faith as described in Exhibit 3 and for which
adequate reserves have been set up; or if any of such tax returns have not been
filed or if any such taxes have not been paid or so reserved for, the failure so
to file or to pay would not in the aggregate constitute a Material Adverse
Event. The Company has not elected to be treated as a "consenting corporation"
pursuant to Section 341(f) of the Internal Revenue Code of 1986, as amended (the
"Code").
3.12. Financial Statements. The Company has delivered to
each Investor its audited financial statements (balance sheet and statements of
operations, stockholders' equity, and cash flows) for the fiscal year ended
September 30, 1997, and, has provided each Investor with a statement of cash
flow in addition to a balance sheet and income statement for each month
thereafter through April 30, 1998, (together, the "Financial Statements"). The
Financial Statements are complete and correct in all material respects. The
Financial Statements accurately set out and describe the financial condition 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 April 30,
1998 which, individually or in the aggregate, do not constitute a Materially
Adverse Event and (ii) obligations under contracts and commitments incurred in
the ordinary course of business not in excess of $25,000 individually.
3.13. Changes. Since April 30, 1998, there has not been,
except as contemplated herein:
(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 which
have not constituted, in the aggregate, a Material Adverse Event;
(b) any damage, destruction or loss, whether or not
covered by insurance, constituting a Material Adverse Event;
(c) any waiver by the Company of a valuable right or
of a material debt owed to it;
(d) any satisfaction or discharge or any lien, claim
or encumbrance or payment of any obligation by the Company, except in the
ordinary course of business and which
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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 change or amendment to any 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; or
(g) to the Company's knowledge, any other event or
condition of any character which constitutes a Material Adverse Event or impairs
the ability of the Company to conduct its business as it is now being conducted
or proposed to be conducted.
3.14. Company's Contracts.
(a) All of the contracts and agreements (i) with
expected receipts or expenditures in excess of $100,000, (ii) involving a
license or grant of rights to or from the Company involving patents, trademarks,
copyrights, or other proprietary information applicable to the business of the
Company, (iii) with provisions restricting or affecting the development,
manufacture or distribution of the Company's products or services, or (iv) that
provide indemnification by the Company with respect to infringements of
proprietary rights to which the Company is a party as of the date of the Closing
are listed on Exhibit 3. All such contracts and agreements are legally binding,
valid, and in full force and effect in all material respects, and there is no
indication of reduced activity relating to such contract or agreement (other
than in the ordinary course of business) by any of the parties to any such
contract or agreement.
(b) The Company has not (i) incurred any indebtedness
for money borrowed, or guaranteed borrowings, in excess of $50,000 in the
aggregate, (ii) made any loans or advances to any person, other than ordinary
advances for travel expenses, or (iii) 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.
(c) The Company is not party to and is not bound by
any contract, agreement or instrument, or subject to any restriction under its
Restated Articles or Bylaws, which adversely affects its business as now
conducted or as proposed to be conducted, its properties, or its financial
condition.
(d) Except for (i) transactions relating to the
purchase of shares of the Company's Common Stock, or options therefor, as listed
on Exhibit 3, and (ii) regular salary payments and fringe benefits under an
individual's compensation package with the Company, no officer, director, Xxxxxx
Xxxxx, Xxxxxxx Xxxx, or spouse, parent, sibling or child of any such person, or
any other employee has any agreement, understanding, proposed transaction or is
indebted to the Company, nor is the Company indebted (or committed to make loans
or extend or guarantee credit) to any of them. To the best of the Company's
knowledge, no officer, director, Xxxxxx Xxxxx, Xxxxxxx Xxxx or spouse, parent,
sibling or child of any such person has any direct or indirect ownership
interest in any firm or corporation with which the Company is affiliated or
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with which the Company has a business relationship, or any firm or corporation
that competes with the Company, except that any such person may own stock in
publicly traded companies that may compete with the Company. No spouse, parent,
sibling or child of any officer or director of the Company is directly or
indirectly interested in any material contract with the Company.
3.15 No Defaults, Violations, or Conflicts. The Company is
not in violation of any term or provision of any charter provision, bylaw, or
any term or provision of any indebtedness, mortgage, indenture, contract,
agreement, judgment, or to the Company's knowledge, any decree, order, statute,
rule, or regulation applicable to the Company where such violation, or
violations in the aggregate, is a Material Adverse Event.
3.16 Insurance. The Company has in effect insurance
covering risks associated with its business in such amounts as are customary in
its industry. The Company is not aware of any pending or threatened claims
against the Company for personal injuries or property damages.
3.17 Private Offering. The Company agrees that neither the
Company nor anyone acting on its behalf will offer any of the Shares or any
similar securities for issuance or sale to, or solicit any offer to acquire any
of the same from, anyone or take any other action so as to make the issuance and
sale of the Shares subject to the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act").
3.18 Prior Registration Rights. Except as provided in the
Rights Agreement, the Company is under no obligation to register under the
Securities Act any of its presently outstanding securities or any of its
securities that may subsequently be issued.
3.19 Disclosure. The Transactional Agreements and any
other documentation or written information furnished to the Investors by the
Company in connection with their decision to purchase the Shares, together with
any exhibits or appendices hereto do not contain any untrue statement of a
material fact or omit any material fact necessary to make the statements
contained therein or herein in view of the circumstances under which they were
made not misleading, except that, with respect to any projections that have been
furnished, the Company represents only that such projections were prepared in
good faith and that the Company reasonably believes that there is a reasonable
basis for such projections. The Company has provided each Investor with all the
information that the Investors or Investors' legal counsel has requested for
deciding whether to purchase the Shares.
3.20 Distributions. There has been no declaration or
payment by the Company of any dividend, nor any distribution by the Company of
any assets of any kind to any of its shareholders in redemption or as the
purchase price of any of the Company's securities.
3.21 Employee Compensation Plans. The Company is not party
to or bound by any currently effective employment contracts, deferred
compensation agreements, bonus plans, incentive plans, profit sharing plans,
retirement agreements, or other employee compensation agreements.
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3.22 Employee Relations. The Company believes its
relations with its employees are satisfactory. The Company's employees are not
represented by any labor unions nor, to the Company's knowledge, is any union
organization campaign in progress. The Company is not aware that any of its
officers or employees intends to terminate employment nor does the Company have
any present intention to terminate the employment of any of the foregoing.
Subject to general principles related to wrongful termination of employees, the
employment of each officer and employee of the Company is terminable at the will
of the Company.
3.23 Employee Proprietary Information and Inventions
Agreement. Each officer, employee and consultant of the Company has executed and
delivered to the Company an Employee Proprietary Information and Inventions
Agreement substantially in the form of Exhibit 7.2. The Company, after
reasonable investigation, is not aware that any of its employees, officers or
consultants are in violation thereof, and the Company will use its best efforts
to prevent any such violation.
3.24 Brokers and Finders. The Company has not retained any
investment banker, broker, or finder in connection with the transactions
contemplated by this Agreement.
3.25 Corporate Documents. The Company has furnished the
Investors with copies of the Articles of Incorporation and Bylaws as currently
in effect and the minute books. Said copies are true, correct, and complete and
contain all amendments and all minutes (and resolutions adopted by the
shareholders and the Board of Directors) through the Closing Date.
3.26 Governmental Consents. Subject to the accuracy of
Investors' representations in Section 4 of this Agreement, no consent, approval,
order, or authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state, local, or provincial
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, Rule 460-44A of the Washington Administrative Code, and
other applicable state securities laws, which filings and qualifications, if
required, will be effected in a timely manner.
3.27 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 would constitute a Material Adverse
Event, and believes 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, license, or other similar authority.
3.28 Environmental and Safety Laws. To the best of its
knowledge, the Company is not in violation of any applicable statute, law, or
regulation relating to the environment or occupational health and safety as the
Company's business is conducted and is proposed to be conducted, 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 where such violation
would constitute a Material Adverse Event.
9
15
3.29 Returns and Complaints. The Company has received no
customer complaints concerning its products and/or services, nor has it had any
of its products returned by a purchaser thereof, other than minor, non-recurring
warranty problems.
3.30 Manufacturing and Marketing Rights. The Company is
not bound by any agreement that affects the Company's exclusive right to
develop, manufacture, assemble, distribute, market, or sell its products.
3.31 Section 83(b) Elections. All individuals who have
purchased shares of the Company's Common Stock have, if applicable, filed timely
elections under Section 83(b) of the Code and any analogous provisions of
applicable state tax laws.
3.32 Stock Restriction Agreements. Holders of all of the
shares of the Common Stock of the Company and of all of the outstanding options
to purchase Common Stock of the Company have executed and delivered to the
Company Stock Purchase and Restriction Agreements substantially in the form of
Exhibit 7.3 attached hereto.
3.33 Real Property Holding Company. The Company is not a "U.S.
real property holding corporation" within the meaning of Section 897 of the
Code.
4. Representations and Warranties of the Investors; Restrictions on
Transferability. Each Investor severally represents and warrants to the Company
as follows:
4.1 Authorization. When executed and delivered by the
Investor, and assuming execution and delivery by the Company, the Transactional
Agreements will each constitute a valid obligation of the Investor, enforceable
in accordance with their respective terms.
4.2 Brokers and Finders. Investor has not retained any
investment banker, broker, or finder in connection with the transactions
contemplated by this Agreement.
4.3 Investment. This Agreement is made with Investor in
reliance upon its representation to the Company, which by Investor's execution
of this Agreement Investor hereby confirms, that the Shares to be received by
Investor will be acquired for investment for Investor's own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and that Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, Investor further represents that it has no contract, undertaking,
agreement, or arrangement with any person to sell, transfer, or grant
participation to such person or to any third person, with respect to any of the
Shares.
4.4 No Public Market. Investor understands and
acknowledges that the offering of the Shares pursuant to this Agreement will not
be registered under the Securities Act on the grounds that the offering and sale
of securities contemplated by this Agreement are exempt from registration
pursuant to Section 4(2) of the Securities Act, and that the Company's reliance
upon such exemption is predicated upon Investor's representations set forth in
this Agreement. Investor further understands that no public market now exists
for any of the
10
16
securities issued by the Company, and that the Company has made no assurances
that a public market will ever exist for the Company's securities.
4.5 Limitations on Transferability. Investor covenants that in
no event will it dispose of any of the Shares (other than pursuant to Rule 144
promulgated by the Securities and Exchange Commission ("Commission") under the
Securities Act ("Rule 144") or any similar or analogous rule) unless and until
(i) Investor shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and (ii), if requested by the Company,
Investor shall have furnished the Company with an opinion of counsel
satisfactory in form and substance to the Company and the Company's counsel to
the effect that (x) such disposition will not require registration under the
Securities Act and (y) appropriate action necessary for compliance with the
Securities Act and any applicable state, local, or foreign law has been taken.
It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding the limitations set forth in the foregoing sentence, if Investor
is a partnership it may transfer Shares to its constituent partners or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner or transfer by gift, will, or intestate
succession to any such partner's spouse or lineal descendants or ancestors
without the necessity of registration or opinion of counsel if the transferee
agrees in writing to be subject to the terms of this Agreement to the same
extent if such transferee were an Investor; provided, however, that Investor
hereby covenants not to effect such transfer if such transfer either would
invalidate the securities laws exemptions pursuant to which the Shares were
originally offered and sold or would itself require registration under the
Securities Act or applicable state securities laws. Each certificate evidencing
the Shares transferred as above provided shall bear the appropriate restrictive
legend set forth in Section 4.7 below, except that such certificate shall not
bear such legend if the transfer was made in compliance with Rule 144 or if the
opinion of counsel referred to above is to the further effect that such legend
is not required in order to establish compliance with any provisions of the
Securities Act.
4.6 Experience. Investor represents that: (i) it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its prospective investment in the Shares;
(ii) it believes it has received all the information it has requested from the
Company and considers necessary or appropriate for deciding whether to purchase
the Shares; (iii) it has had the opportunity to discuss the Company's business
management, and financial affairs with its management, (iv) it has the ability
to bear the economic risks of its prospective investment; and (v) it is able,
without materially impairing its financial condition, to hold the Shares for an
indefinite period of time and to suffer a complete loss on its investment. The
foregoing, however does not modify the representations and warranties of the
Company in Section 3 of this Agreement or the right of the Investors to rely
thereon.
11
17
4.7 Legends.
(a) All certificates for the Shares shall bear the
following legend:
"The securities represented hereby have not been
registered under the Securities Act of 1933, as
amended ("Act"). Such securities may not be
transferred unless a Registration Statement under the
Act is in effect as to such transfer or, in the
opinion of counsel for the Company, registration
under the Act is unnecessary in order for such
transfer to comply with the Act or unless sold
pursuant to Rule 144 of the Act."
(b) The certificates evidencing the Shares shall also
bear any legend required by the Commissioner of Corporations of the State of
California or the Washington State Administrator of Securities or required
pursuant to any state, local, or foreign law governing such securities.
4.8 Accredited Investor. Investor presently qualifies,
and will as of the Closing Date qualify, as an "accredited investor" within the
meaning of Regulation D of the rules and regulations promulgated under the
Securities Act of 1933.
5. Conditions of Investors' Obligations at Closing. The obligations of
each Investor under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by such Investor:
5.1 Representations and Warranties. The representations
and warranties of the Company contained in Section 3 shall be true on and as of
the Closing with the same effect as if made on and as of the Closing.
5.2 Performance. The Company shall have performed or
fulfilled all agreements, obligations, and conditions contained herein required
to be performed or fulfilled by the Company before the Closing.
5.3 Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or any state that are required in connection with the lawful issuance and
sale of the Shares pursuant to this Agreement shall be duly obtained effective
as of the Closing.
5.4 Opinion of Company's Counsel. The Investors shall
have received from Fenwick & West, LLP, counsel to the Company, an opinion
addressed to them, dated the Closing Date, in substantially the form of Exhibit
5.4.
5.5 Board of Directors. All requisite proceedings shall have
been taken so that immediately following the Closing, Xxxxx X. Xxxxxxxx III, the
initial RRE Designee to the Board of Directors, will have been elected to the
Board of Directors which will consist of the persons listed on Schedule 5.5.
"RRE Designee" shall mean the individual designated by XXX
00
00
Xxxxxxxxx, X.X. and RRE Investors Fund, L.P. to serve as a director of the
Company in respect of the Series E Preferred Stock board seat.
5.6 Proceedings Satisfactory; Compliance Certificate. All
corporate and legal proceedings taken by the Company in connection with the
transactions contemplated by this Agreement and all documents and papers
relating to such transactions shall be satisfactory in all material respects to
the Investors, in the reasonable exercise of its judgment. The Company shall
have delivered to the Investors a certificate dated as of such Closing, signed
by the Company's President, certifying that the conditions set forth in Sections
5.1, 5.2, 5.3 and 5.5 have been satisfied.
5.7 Information and Registration Rights Agreement. The Company
and the Investors shall have entered into the Rights Agreement attached as
Exhibit 5.7.
5.8 Restated Articles. The Company shall have filed its
Restated Articles with the Secretary of State of the State of Washington, which
Restated Articles shall be in full force and effect on the Closing Date.
5.9 Stock Restriction and Co-Sale Agreement. The Company, S.
Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxx, and the Investors shall have entered into the
Co-Sale Agreement attached as Exhibit 5.9.
5.10 Voting Agreement. The Investors and the Company shall
have entered into the Voting Agreement attached as Exhibit 5.10.
5.11 Certificate of Existence/Authority. The Company shall
have delivered to the Investors a Certificate of Existence/Authority relating to
the Company issued by the Washington Secretary of State dated no earlier than
five (5) days prior to the Closing.
6. Conditions of the Company's Obligations at Closing. The obligations
of the Company under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by the Company:
6.1 Representations and Warranties. The representations
and warranties of the Investors contained in Section 4 shall be true on and as
of the Closing with the same effect as though said representations and
warranties had been made on and as of the Closing.
6.2 Blue Sky Compliance. The Company shall have complied
with and be effective under the securities laws of the State of California, the
State of Washington, and any other applicable states as necessary to offer and
sell the Shares to the Investors.
6.3 Restated Articles. The Restated Articles shall have
been filed with the Secretary of State of the State of Washington and shall be
in full force and effect on the Closing Date.
13
19
6.4 Legal Matters. All material matters of a legal nature
which pertain to this Agreement, the Co-Sale Agreement, and the Rights
Agreement, and the transactions contemplated hereby, shall have been reasonably
approved by counsel to the Company.
6.5 Information and Registration Rights Agreement. The
Investors shall have entered into the Company's Rights Agreement attached as
Exhibit 5.7.
6.6 Stock Restriction and Co-Sale Agreement. The Investors
shall have entered into the Co-Sale Agreement attached as Exhibit 5.9.
6.7 Voting Agreement. The Investors shall have entered into
the Voting Agreement attached as Exhibit 5.10.
7. Post Closing Covenants of the Company.
7.1 Securities Laws Compliance. The Company shall within
15 days of the Closing file a notice of the sale of the Shares to the Investors
pursuant to Section 25102(f) of the California Corporations Code, and shall make
any other filings required by Rule 460-44A of the Washington Administrative Code
and the securities or Blue Sky laws of any other applicable jurisdiction.
7.2 Employee Proprietary Information and Inventions
Agreement. Unless otherwise determined by the Board of Directors, the Company
shall require all future officers, directors, and employees of, and consultants
to, the Company and its Subsidiaries to execute and deliver an Employee
Proprietary Information and Inventions Agreement in substantially the form of
Exhibit 7.2.
7.3 Stock Purchase and Restriction Agreements. The
Company shall cause all future purchasers of, and all future holders of options
to purchase, shares of the Company's Common Stock to execute and deliver Stock
Purchase and Restriction Agreements (or Stock Option Agreements) substantially
in the form set forth in Exhibit 7.3, but with vesting over four (4) years.
7.4 Stock Plans. The Company may sell shares of stock and
grant options to employees, advisors, officers, and directors of, and
consultants to, the Company and its Subsidiaries only pursuant to such
arrangements, contracts, or plans as are recommended by management and approved
by the Board of Directors, which arrangements, contracts or plans shall provide
for vesting of options, or lapsing of repurchase rights in the case of shares,
over a four (4) year period, 25% after the first year and ratably thereafter on
a monthly basis, subject to acceleration under certain circumstances in the
event of an acquisition or merger.
7.5 Key Person Insurance. The Company shall continue to
maintain on the life of Xxxxxxx X. Xxxxxx and the life of S. Xxxxxx Xxxxx key
person life insurance, each in the amount of $1,000,000, with proceeds payable
to the Company, until the Board of Directors of the Company determines
otherwise.
14
20
7.6 Board Committees. The Company agrees that each member
of its Board of Directors shall be eligible to serve on each committee of the
Board. The Company shall reimburse each member of its Board of Directors and
each advisor to the Board for costs incurred by such member and advisor in
attending the Board of Directors and other Company meetings.
7.7 Reincorporation in Delaware. The Company agrees that,
in connection with any reincorporation in Delaware while it is not subject to
the requirements of the Securities Exchange Act of 1934, it will not modify the
rights, preferences, or privileges of any series of Preferred Stock, except as
required by the Delaware General Corporation Law.
8. Miscellaneous.
8.1 Entire Agreement; Successors and Assigns. This
Agreement constitutes the entire contract between the Company and the Investors
relative to the subject matter hereof. Any previous agreement between the
Company and the Investors is superseded by this Agreement. Subject to the
exceptions specifically set forth in this Agreement, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors, and assigns of the parties. By
their execution of this Agreement, each of Brentwood Associates VI, L.P., U.S.
Venture Partners IV, L.P., Second Ventures II, L.P., USVP Entrepreneur Partners
II, L.P., Institutional Venture Partners VII, IVP Founders Fund 1, Institutional
Venture Management VII, Xxxxxxxx VIII, and Xxxxxxxx Associates Fund III waive,
with respect to the issuance of the Shares (including for this purpose the
shares issuable upon exercise of those warrants issued to ComDisco, Inc. in
connection with the establishment and/or extension of certain credit
facilities), the Right of First Refusal granted to them under Section 5 of that
Restated Information and Registration Rights Agreement dated as of July 12, 1996
(as amended). By its execution of this Agreement, the Company acknowledges and
confirms that it has requested that such Investors waive their Right of First
Offer for purposes of Section 6 of Article 5 of the Company's Restated Articles
of Incorporation.
8.2 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California, excluding
those laws that direct the application of another jurisdiction's laws.
8.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.4 Headings. The headings of the Sections of this Agreement
are for convenience and shall not by themselves determine the interpretation of
this Agreement.
8.5 Notices. Any notice required or permitted hereunder
shall be given in writing and shall be conclusively deemed effectively given
upon personal delivery or delivery by courier, or five days after deposit in the
United States mail, by registered or certified mail, postage prepaid, addressed
to the Company or an Investor, as the case may be, as set forth below its name
on the signature page of this Agreement, or at such other address as the Company
or such Investor may designate by ten (10) days' advance written notice to the
other.
15
21
8.6 Survival of Warranties. The warranties and
representations of the parties contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing and
any investigation by or on behalf of any party; provided, however, that such
representations and warranties need only be accurate as of the date of such
execution and delivery and as of the Closing.
8.7 Amendment of Agreement. Any provision of this
Agreement may be amended by a written instrument signed by the Company and by
persons holding at least a seventy-five percent (75%) majority of the aggregate
of (a) the then outstanding Shares and (b) the then outstanding shares of Common
Stock into which the Shares have been converted, other than shares of Common
Stock which have been sold to the public.
8.8 California Securities Laws. 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
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES
IS EXEMPT PROM 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 SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
8.9 Finders Fees. Each of the Company and the Investors
will indemnify the other against all liabilities incurred by the indemnifying
party with respect to claims related to investment banking or finders fees in
connection with the transactions contemplated by this Agreement, arising out of
arrangements between the party asserting such claims and the indemnifying party,
and all costs and expenses (including reasonable fees of counsel) of
investigating and defending such claims.
8.10 Expenses. The Company and the investors will each
bear their respective legal and other fees and expenses with respect to this
Agreement and the transactions contemplated hereby, provided, however, that the
Company will pay at the Closing upon submission of appropriate invoices (i) the
reasonable fees and expenses of RRE Investors, and of counsel to and accountants
for RRE Investors, and (ii) of counsel to and accountants for the American
Express Company, each of which shall not exceed (in the aggregate) Twenty
Thousand Dollars ($20,000).
16
22
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By /s/ S. XXXXXX XXXXX
-----------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: RRE INVESTORS, L.P.
By RRE Investors II, LLC,
its General Partner
By _________________________________
Name:
Title:
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By _________________________________
Name:
Title:
23
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By
-----------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: RRE INVESTORS, L.P.
By RRE Investors II, LLC,
its General Partner
By /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member, General Partner
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member, General Partner
24
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _________________________________
S. Xxxxxx Xxxxx, President
INVESTOR: INSTITUTIONAL VENTURE
PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By: /s/ T. XXXXX XXXXXX
-----------------------------------
T. Xxxxx Xxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR: IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: /s/ T. XXXXX XXXXXX
-----------------------------------
T. Xxxxx Xxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR: INSTITUTIONAL VENTURE MANAGEMENT
VII, L.P.
By: /s/ T. XXXXX XXXXXX
-----------------------------------
T. Xxxxx Xxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
25
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-----------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: BRENTWOOD AFFILIATES FUND II, L.P.
By: Brentwood VIII Ventures, LLC
Its General Partner
By: /s/ XXXXXXX XXXXX
-----------------------------------------
Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
1. /s/ XXXXXXX XXXXX
------------------------------------
(Signature)
Xxxxxxx Xxxxx
------------------------------------
(Print Name)
2. /s/ XXXXX XXXXXXXXX
------------------------------------
(Signature)
Xxxxx Xxxxxxxxx
------------------------------------
(Print Name)
3. /s/ XXXX XXXX
------------------------------------
(Signature)
Xxxx Xxxx
------------------------------------
(Print Name)
26
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-------------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: XXXXXXXX ASSOCIATES FUND III
A California Limited Partnership
XXXXXXXX VIII
A California Limited Partnership
By: XXXXXXXX VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Their General Partner
By: /s/ XXXXXXX XXXXXXXXX
--------------------------------------
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
27
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _________________________________
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: COMDISCO, INC.
By: /s/ XXXXX X. XXXX
--------------------------------
Title: Xxxxx X. Xxxx, President
Comdisco Ventures Division
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
28
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _________________________________
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: CAMBRIDGE TECHNOLOGY CAPITAL
FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By: /s/ XXXXX XXXXXXXXX
----------------------------------
Xxxxx Xxxxxxxxx, Managing Director
Address: 00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
29
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _________________________________
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: CAMBRIDGE TECHNOLOGY CAPITAL
FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By:
----------------------------------
Xxxxx Xxxxxxxxx, Managing Director
Address: 00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
--------------------------------
Title: Controller
--------------------------------
Attorney-in-fact
--------------------------------
Address: Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
30
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
INVESTOR: _________________________________________
Name:____________________________________
_________________________________________
Name: Xxxxxxxx Xxxxxx
-----------------------------------
_________________________________________
Name: Xxx Xxxxx
-----------------------------------
/s/ XXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxx Xxxxxx
__________________________________________
Name: Xxxx Xxxxx
------------------------------------
Address: x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
31
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
--------------------------------------
S. Xxxxxx Xxxxx, President
INVESTOR:
-----------------------------------------
Name:
------------------------------------
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
-----------------------------------
/s/ XXX XXXXX
-----------------------------------------
Name: Xxx Xxxxx
-----------------------------------
-----------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------
-----------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Address: x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
32
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
INVESTOR: _________________________________________
Name:____________________________________
/s/ XXXXXXXXX XXXXXX
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
-----------------------------------
_________________________________________
Name: Xxx Xxxxx
-----------------------------------
------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------
__________________________________________
Name: Xxxx Xxxxx
------------------------------------
Address: x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
33
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
INVESTOR: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx
Address: c/o Brentwood Venture Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR:
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Address: c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
34
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
INVESTORS: /s/ XXXXX XXXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxxx
/s/ XXXX XXXX
-----------------------------------------
Xxxx Xxxx
Address: c/o Brentwood Venture Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
35
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: /s/ S. XXXXXX XXXXX
--------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: /s/ S. XXXXXX XXXXX
------------------------------------
S. Xxxxxx Xxxxx
/s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXXXXX XXXXXX
------------------------------------
Xxxxxxxx Xxxxxx
____________________________________
Xxx Xxxxxx
____________________________________
Xxx Xxxxx
____________________________________
Xxxx Xxxxxx
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
36
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
--------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS:
------------------------------------
S. Xxxxxx Xxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxxx Xxxxxx
/s/ XXX XXXXXX
------------------------------------
Xxx Xxxxxx
/s/ XXXXXX XXXXX
------------------------------------
Xxx Xxxxx
/s/ XXXXXXXXX X. XXXXXX
------------------------------------
Xxxx Xxxxxx
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
37
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
INVESTOR:
-----------------------------------------
Xxxxxxx X. Xxxxx
Address: c/o Brentwood Venture Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Address: c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
38
IN WITNESS WHEREOF, the parties hereto have executed this Series E Preferred
Stock Purchase Agreement as of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By: _____________________________________
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ XXX XXXXXXX
---------------------------------------
Name: Xxx Xxxxxxx
Title: President, American Express
Relationship Services
39
EXHIBITS AND SCHEDULES TO
PORTABLE SOFTWARE CORPORATION
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
SCHEDULES
1.1 Schedule of Investors
5.5 List of Directors of the Company
EXHIBITS
A Amended and Restated Articles of Incorporation
3. Schedule of Exceptions
5.4 Fenwick & West LLP opinion
5.7 Restated Information and Registration Rights Agreement
5.9 Amended and Restated Stock Restriction and Co-Sale Agreement
5.10 Voting Agreement
7.2 Form of Employee Proprietary Information and Inventions Agreement
7.3 Form of Stock Purchase and Restriction Agreements for Common Stock
Shareholders
40
SCHEDULE 1.1
Investors
FIRST CLOSING
Stock Number of
Name of Investor Cert. No. Shares of Stock Purchase Price
---------------- --------- --------------- --------------
RRE Investors, L.P. PE- 1 1,040,218 $ 3,224,675.80
RRE Investors Fund, L.P. PE-2 572,685 $ 1,775,323.50
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxx
Institutional Venture Partners VII, L.P. PE-4 174,821 $ 541,945.10
IVP Founders Fund I, L.P. PE-5
1,802 $5,586.20
Institutional Venture Management VII, L.P. PE-6 3,605 $ 11,175.50
0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Brentwood Affiliates Fund II, L.P. PE-7 170,632 $ 528,959.20
0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
Xxxxxxxx Associates Fund III PE-8 8,734 $ 27,075.40
Xxxxxxxx VIII PE-9 165,949 $ 514,441.90
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Comdisco, Inc. PE-10 80,645 $ 249,999.50
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx
Cambridge Technology Capital Fund I, L.P. PE-11 161,290 $ 499,999.00
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000-0000
1
41
American Express Company 1,612,903 $ 4,999,999.30
American Express Tower
World Financial Center
Xxx Xxxx, X.X, 00000
Attn: Xxxxx Xxxxx
Xxxxx X. Xxxxxxxx, Esq
Xxxxxxxxx & Xxxxx California 51,614 $ 160,003.40
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Xxxxxx Xxxxxx 806 $ 2,498.60
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx. XX 00000
Xxxx X. Xxxxx 645 $ 1,999.50
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx 4,839 $ 15,000.90
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx 6,613 $ 20,500.30
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 9,678 $ 30,001.80
c/o Brentwood Associates
0000 Xxx Xxxx Xxxx
Xxxx. Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Xxxxx Mongiellio 3,226 $ 10,000.60
c/o Brentwood Associates
0000 Xxx Xxxx Xxxx
Xxxx. Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
2
42
Xxxx Xxxx 3,226 $ 10,000.60
c/o Brentwood Associates
0000 Xxx Xxxx Xxxx
Xxxx. Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Xxxx Xxxxxx 6,452 $ 20,001.20
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 9,678 $ 30,001.80
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxx Xxxxxx 6,452 $ 20,001.20
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 3,226 $ 10,000.60
c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Xxxxxx Xxxxx 6,452 $ 20,001.20
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx. XX 00000
S. Xxxxxx Xxxxx 9,678 $ 30,001.80
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx. XX 00000
Xxxxxxxx Xxxxxx 6,452 $ 20,001.20
c/o Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx XX 00000
--------- ---------------
4,122,321 $ 12,779,195.10
3
43
SCHEDULE 1.1
Investors
SECOND CLOSING
Stock Number of
Name of Investor Cert. No. Shares of Stock Purchase Price
---------------- --------- --------------- --------------
American Express Travel Related PE-27 1,612,903 $4,999,999.30
Services Company, Inc.
American Express Tower
World Financial Center
New York, N.Y. 10285
Attn: Xxxxx Xxxxx
Xxxxx X. Xxxxxxxx, Esq.
1
44
SCHEDULE 5.5
DIRECTORS OF PORTABLE SOFTWARE CORPORATION
S. Xxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx III
