EXHIBIT 10.8
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
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This Series D Preferred Stock Purchase Agreement (the "Agreement") is entered
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into as of January 29, 2000 by and between Xxxx.xxx Inc., a Delaware corporation
formerly known as Internet Technologies China Incorporated (the "Company"), and
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the persons and entities set forth on Exhibit A hereto (each an "Investor" and,
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collectively, the "Investors").
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In consideration of the mutual promises, covenants and conditions hereinafter
set forth, the parties hereto agree as follows:
1. DEFINITIONS.
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1.1 Certain Defined Terms. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Common Stock" shall mean the Company's Common Stock, $.001 par value.
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"Proceeds" shall mean whatever is received when assets, whether
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tangible or intangible, are sold, changed, collected or otherwise disposed of,
both cash and non-cash, including the Proceeds of insurance payable by reason of
loss or damage to Proceeds.
"Proprietary Assets" shall mean all patents, patent applications,
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trademarks, service marks, trade names, copyrights, moral rights, maskworks,
trade secrets, confidential and proprietary information, compositions of matter,
formulas, designs, proprietary rights, know-how, processes, domain names and
URLs.
1.2 Index of Other Defined Terms. In addition to the terms defined
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above, the following terms shall have the respective meanings given
thereto in the sections indicated below:
Defined Term Section
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"Agreement" Preamble
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"Business Plan" 4.25
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"Bylaws" 4.12
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"CERCLA" 4.22
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"Certificate" 2.1
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"Closing" 3.1
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"Code" 4.20
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"Company" Preamble
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"Confidential Information" 9.13
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"Conversion Shares" 4.2(c)
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"Disclosing Party" 9.13
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"Disclosure Schedule" 4.0
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"Financial Statements" 4.16
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"Hazardous Materials" 4.22
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"Investors", "Investor" Preamble
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"Investor Rights Agreement" 4.2(c)
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"ITC China" 4.3
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"Non-Disclosing Party" 9.13
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"Right of First Refusal and Co-Sale Agreement" 7.8
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"Stockholders' Voting Agreement" 7.8
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"SEC" 4.14
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"Securities Act" 4.5(b)
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"Series D Preferred Stock" 2.1
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"Shares" 2.2
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2. AGREEMENT TO PURCHASE AND SELL STOCK
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2.1. Authorization. As of the Closing (as defined below), the Company
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will have authorized the issuance, pursuant to the terms and conditions of this
Agreement and any one or more agreements entered into by the Company subsequent
to the date hereof on the same terms (provided that no such subsequent agreement
to sell Series D Preferred Stock may be entered into or closed more than 30 days
after the date hereof), of not less than 518,459 shares of the Company's Series
D Convertible Preferred Stock ("Series D Preferred Stock") having the rights,
preferences, privileges and restrictions set forth in the form of the Fourth
Amended and Restated Certificate of Incorporation of the Company attached to
this Agreement as Exhibit B (the "Certificate").
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2.2 Agreement to Purchase and Sell at the Closing. Subject to the
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terms and conditions hereof, on the Closing Date (as defined below), the Company
will issue and sell to each Investor and each Investor will purchase that number
of shares of Series D Preferred Stock (the "Shares") as is set forth opposite
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that Investors name on Exhibit A hereto, at a price of $38.576 per share, for an
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aggregate purchase price paid by all Investors of $20,000,074. The purchase
price for the Shares being purchased by each Investor shall be paid by such
Investor by wire transfer of funds to a designated account of the Company,
provided that wire transfer instructions are delivered to each Investor at least
one (1) business day prior to the Closing.
2.3 Currency. All monetary amounts set forth herein shall be in
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United States dollars.
3. CLOSING; DELIVERY.
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3.1. The Closing. The purchase and sale of the Shares hereunder (the
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"Closing") shall be held at the offices of Goulston & Storrs, P.C. on the date
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which is two business days after the date hereof or as soon thereafter as shall
be practicable, but in any event not later than February 3, 2000 (the
"Closing").
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3.2. Delivery. At the Closing, the Company will deliver to each
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Investor a certificate representing the Shares purchased by each Investor
hereunder against payment of the full purchase price therefor by wire transfer.
4. COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby represents
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and warrants to the Investors that, except as set forth in the Disclosure
Schedule ("Disclosure Schedule") attached to this Agreement as Exhibit E (which
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Disclosure Schedule shall be deemed to be representations and warranties to the
Investors), the statements in the following paragraphs of this Section 4 are all
true and correct:
4.1. Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under, and by
virtue of, the laws of the State of Delaware and has all requisite corporate
power and authority to own its properties and assets and to carry on its
business as now conducted and as presently proposed to be conducted. The
Company is qualified to do business as a foreign corporation in each
jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business, prospects or operations.
4.2. Capitalization. Immediately before the Closing, the authorized
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capital stock of the Company will consist of the following:
(a) Common Stock. A total of 11,500,000 authorized shares
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(11,000,000 shares as of the date hereof) of Common Stock ($0.001 par value) of
which 3,621,410 shares will be (and are as of the date hereof) issued and
outstanding.
(b) Preferred Stock. A total of 5,600,000 authorized shares
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(5,100,000 shares as of the date hereof) of Preferred Stock ($0.001 par value),
of which 1,125,000 will be (and are as of the date hereof) designated as Series
A Convertible Preferred Stock ("Series A Preferred Stock"), all of which will be
outstanding; 1,738,910 will be (and are as of the date hereof) designated as
Series B Convertible Preferred Stock ("Series B Preferred Stock"), all of which
will be outstanding; 338,295 will be (and are as of the date hereof) designated
as Series B-1 Convertible Preferred Stock ("Series B-1 Preferred Stock"), all of
which will be outstanding; 1,479,507 will be (1,848,885 as of the date hereof)
designated as Series C Convertible Preferred Stock ("Series C Preferred Stock"),
all of which will be outstanding; and 777,688 will be designated as Series D
Preferred, none of which will be issued or outstanding.
(c) Options, Warrants, Reserved Shares. The Company will have
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reserved sufficient shares of its Common Stock to permit the conversion of all
outstanding shares of the Series D Preferred (the "Conversion Shares"). Except
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as set forth in Section 4.2(d) of the Disclosure Schedule and except for (i) the
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conversion privileges of the Series A Preferred, the Series B Preferred, the
Series B-1 Preferred and the Series C Preferred, (ii) the conversion privileges
of the Series D Preferred to be issued hereunder and one or more similar
agreements, (iii) the 807,500 shares of Common Stock reserved for issuance upon
the exercise of options granted or contemplated to be granted to employees,
directors, and consultants of the Company, under which options to purchase
381,149 shares of Common Stock are outstanding, and (iv) warrants to purchase
17,345 shares of Common Stock of the Company issued in connection with the
Company's bridge financing in December 1997, there will be no options, warrants,
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conversion privileges or other rights, or agreements with respect to the
issuance thereof, outstanding to purchase any of the capital stock of the
Company. Apart from the exceptions noted in this Section 4.2, no shares
(including the Shares and Conversion Shares) of the Company's outstanding
capital stock, or stock issuable upon exercise or exchange of any outstanding
options or other stock issuable by the Company, will be subject to any rights of
first refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement or commitment of the
Company, except as set forth in the Third Amended and Restated Investor Rights
Agreement dated as of the Closing Date (the "Investor Rights Agreement") to be
entered into on the Closing Date between the Company and the persons listed in
Exhibit A thereto.
(d) Outstanding Security Holders. Section 4.2(d) of the
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Disclosure Schedule sets forth a complete and accurate list of all outstanding
shareholders, option holders and other security holders of the Company
immediately prior to the date hereof.
4.3. Subsidiaries. The Company owns all of the issued and
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outstanding stock of Sohu ITC Information Technology (Beijing) Co., Ltd. ("ITC
China"), a company duly organized under the laws of the People's Republic of
China and in good standing under such laws. ITC China is a wholly foreign owned
enterprise (WFOE) authorized by the government of China and has all government
permits, approvals, authorizations and licenses necessary to engage in the
business currently conducted and currently proposed to be conducted by ITC
China. Various officials of the Ministry of Information Industry ("MII") of the
People's Republic of China (the "PRC") recently have stated publicly, however,
that foreign investment is prohibited in the PRC Internet sector, including in
Internet content providers. The Company's PRC counsel has indicated that it
does not believe, however, that the Company's operations violate or breach any
of the existing laws, rules, or regulations of the PRC.
No other person or entity other than the Company has any right to
acquire any equity or other ownership interest of ITC China. Except for the
Company's ownership of ITC China, the Company does not presently own or control,
directly or indirectly, any interest in any other corporation, partnership,
limited liability company, trust, joint venture, association, or other entity.
4.4. Due Authorization. All corporate action on the part of the
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Company and ITC China, their officers, directors and shareholders necessary for
the authorization, execution and delivery of, and the performance of all
obligations of the Company under, this Agreement, the Investor Rights Agreement,
the Right of First Refusal and Co-Sale Agreement (as defined in Section 7.8
hereof) and any other agreements contemplated hereby to which the Company is or
is to be a party and the authorization, issuance, reservation for issuance and
delivery of all of the Shares being sold under this Agreement has been taken or
will be taken before the Closing. This Agreement, the Investor Rights
Agreement, the Right of First Refusal and Co-Sale Agreement and any other
agreements contemplated hereby to which the Company is or is to be a party are
or will be when entered into valid and binding obligations of the Company
enforceable in accordance with their respective terms, subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, moratorium,
reorganization and similar laws affecting creditors' rights generally and to
general equitable principles. The Shares are not subject to any preemptive
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rights or rights of first refusal, except such as have been waived or are being
accommodated under the terms of this Agreement.
4.5. Valid Issuance of Stock.
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(a) The Shares, when issued, sold and delivered in accordance
with the terms of this Agreement, will be duly and validly issued, fully paid
and nonassessable and will be free of restrictions on transfer other than
restrictions under in this Agreement, the Investor Rights Agreement, the Right
of First Refusal and Co-Sale Agreement, and applicable securities laws. The
Conversion Shares have been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Certificate, will be duly and
validly issued, fully paid and nonassessable, and will be free of restrictions
on transfer other than restrictions under in this Agreement, the Investor Rights
Agreement, the Right of First Refusal and Co-Sale Agreement, and applicable
securities laws
(b) The outstanding shares of the capital stock of the Company
and ITC China are duly and validly issued, fully paid and nonassessable, and
such shares of such capital stock, and all outstanding stock, options and other
securities of the Company and ITC China have been issued in full compliance with
the registration and prospectus delivery requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the registration and qualification
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requirements of all applicable state securities laws, or in compliance with
applicable exemptions therefrom, and all other provisions of applicable federal
and state securities laws, including, without limitation, anti-fraud provisions.
4.6. Liabilities. Neither the Company nor ITC China has any
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indebtedness for borrowed money that the Company or ITC China has directly or
indirectly created, incurred, assumed, or guaranteed, or with respect to which
the Company or ITC China has otherwise become directly or indirectly liable.
4.7. Title to Properties and Assets. Each of the Company and ITC
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China has good and marketable title to its properties and assets held in each
case subject to no mortgage, pledge, lien (including without limitation any tax
lien), encumbrance, security interest or charge of any kind. With respect to
the property and assets it leases, each of the Company and ITC China is in
compliance with such leases and, to the best of the Company's knowledge, each of
the Company and ITC China holds valid leasehold interests in such assets free of
any liens, encumbrances, security interests or claims of any party other than
the lessors of such property and assets.
4.8. Status of Proprietary Assets.
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(a) Ownership. Each of the Company and ITC China has full
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title and ownership of, or has license to, all Proprietary Assets necessary to
enable it to carry on its business as now conducted and as presently proposed to
be conducted, including but not limited to those Proprietary Assets set forth in
Schedule 4.8(a) of the Disclosure Schedule, without any conflict with or
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infringement of the rights of others. No third party has any ownership right,
title, interest, claim in or lien on any of the Company's or ITC China's
Proprietary Assets and the Company and ITC China have taken, and in the future
will use their best efforts to take, all steps
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reasonably necessary to preserve their respective legal rights in, and the
secrecy of, all its Proprietary Assets, except those for which disclosure is
required for legitimate business or legal reasons.
(b) Licenses; Other Agreements. Neither the Company nor ITC
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China has granted, and there are not outstanding, any options, licenses or
agreements of any kind relating to any Proprietary Asset of the Company or ITC
China, nor is the Company or ITC China bound by or a party to any option,
license or agreement of any kind with respect to any of their respective
Proprietary Assets. Neither the Company nor ITC China is obligated to pay any
royalties or other payments to third parties with respect to the marketing,
sale, distribution, manufacture, license or use of any Proprietary Asset or any
other property or rights.
(c) No Infringement. Neither the Company nor ITC China has
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violated or infringed, and is not currently violating or infringing any
Proprietary Asset of any other person or entity. Except as set forth in Section
4.8(c) of the Disclosure Schedule, neither the Company nor ITC China has
received any communications alleging that the Company or ITC China (or any of
their respective employees or consultants) has violated or infringed or, by
conducting its business as proposed, would violate or infringe, any Proprietary
Asset of any other person or entity.
(d) No Breach by Employee. After due inquiry, neither the
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Company nor ITC China is aware that any employee or consultant of the Company or
ITC China is obligated under any agreement (including licenses, covenants or
commitments of any nature) or subject to any judgment, decree or order of any
court or administrative agency, or any other restriction that would interfere
with the use of his or her best efforts to carry out his or her duties for the
Company or ITC China or to promote the interests of the Company or ITC China or
that would conflict with the Company's or ITC China's business as proposed to be
conducted. The carrying on of each of the Company's and ITC China's business by
the employees and contractors of the Company and ITC China and the conduct of
the Company's and ITC China's business as presently proposed, will not, to the
best of 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 employees or contractors of the
Company or ITC China are now obligated. Neither the Company nor ITC China
believes it is or will be necessary to utilize any inventions of any employees
of the Company or ITC China (or persons the Company or ITC China currently
intends to hire) made prior to their employment by the Company or ITC China. To
the best of the Company's knowledge, at no time during the conception of or
reduction of any of the Company's or ITC China's Proprietary Assets to practice
was any developer, inventor or other contributor to such patents operating under
any grants from any governmental entity or agency or private source, performing
research sponsored by any governmental entity or agency or private source or
subject to any employment agreement or invention assignment or nondisclosure
agreement or other obligation with any third party that could adversely affect
the Company's or ITC China's rights in such Proprietary Assets.
4.9. Material Contracts and Obligations. All agreements, contracts,
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leases, licenses, instruments, commitments (oral or written), indebtedness,
liabilities and other obligations to which the Company or ITC China is a party
or by which they are bound that (i) are material to the conduct and operations
of the businesses and properties of the Company or ITC
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Xxxxx; (ii) involve any of the officers, consultants, directors, employees or
shareholders of the Company or ITC China; or (iii) obligate the Company or ITC
China to share, license or develop any product or technology are listed in
Section 4.9 of the Disclosure Schedule and have been made available for
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inspection by the Investors and their respective counsel. For purposes of this
Section 4.9, "material" shall mean any agreement, contract, indebtedness,
liability or other obligation having an aggregate value, cost or amount in
excess of $50,000 per year.
4.10. Litigation. Except as set forth in Section 4.10 of the
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Disclosure Schedule, there is no action, suit, proceeding, claim, arbitration or
investigation ("Action") pending (or, to the best of the Company's knowledge,
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currently threatened) against the Company or ITC China, their activities,
properties or assets or, to the best of the Company's knowledge, against any
officer, director or employee of the Company or ITC China in connection with
such officer's, director's or employee's relationship with, or actions taken on
behalf of the Company or ITC China. To the best of the Company's knowledge,
there is no factual or legal basis for any such Action that might result,
individually or in the aggregate, in any material adverse change in the
business, properties, assets, financial condition, affairs or prospects of the
Company or ITC China. By way of example but not by way of limitation, there are
no Actions pending or, to the best of the Company's knowledge, threatened (or
any basis therefor known to the Company or ITC China) relating to the prior
employment of any of the Company's or ITC China's employees or consultants,
their use in connection with the Company's or ITC China's business of any
information, technology or techniques allegedly proprietary to any of their
former employers, clients or other parties, or their obligations under any
agreements with prior employers, clients or other parties. Neither the Company
nor ITC China is a party to or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality and there is no Action by the Company or ITC China currently
pending or which the Company or ITC China intends to initiate.
4.11. Governmental Consents. All consents, approvals, orders,
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authorizations or registrations, qualifications, designations, declarations or
filings with any federal, state or local governmental authority on the part of
each of the Company and ITC China required in connection with the consummation
of the transactions contemplated herein, including without limitation the
execution and delivery of this Agreement, the Investor Rights Agreement and the
Right of First Refusal and Co-Sale Agreement, the issuance and sale of the
Shares and the issuance of shares of Common Stock upon conversion of the Shares,
will have been obtained prior to and will be effective as of the Closing. Based
in part on the representations of the Investors set forth in Section 5 below,
the offer, sale and issuance of the Shares in conformity with the terms of this
Agreement are exempt from the registration and prospectus delivery requirements
of the Securities Act.
4.12. Compliance with Other Instruments. Neither the Company nor ITC
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China is in, nor will the conduct of their businesses as proposed to be
conducted result in, any violation, breach or default of any term of the
Company's Certificate or ITC China's charter or the Company's or ITC China's
bylaws (together, the "Bylaws") or in any material respect of any term or
provision of any mortgage, indenture, contract, agreement or instrument to which
the Company or ITC China is a party or by which it may be bound, or of any
provision of any foreign or domestic state or federal judgment, decree, order,
statute, rule or regulation applicable to or binding upon the Company or ITC
China, except that various officials of MII recently have
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stated publicly that foreign investment is prohibited in the PRC Internet
sector, including in Internet content providers. Further, a WFOE, such as ITC
China, is prohibited from engaging in the businesses of providing or
distributing advertisements as defined in the 1994 PRC Advertising Law. The
relevant law is silent as to whether online advertising is covered by the law.
The Company's PRC counsel has indicated that it does not believe, however, that
the Company's operations violate or breach any of the existing laws, rules, or
regulations of the PRC.. The execution, delivery and performance of and
compliance with this Agreement and the consummation of the transactions
contemplated hereby will not result in any such violation or default, or be in
conflict with or constitute, with or without the passage of time or the giving
of notice or both, either a default under the Company's Certificate or Bylaws or
ITC China's charter or Bylaws, or any agreement or contract of the Company or
ITC China, or, to the best of the Company's knowledge, a violation of any
statutes, laws, regulations or orders, or an event which results in the creation
of any lien, charge or encumbrance upon any asset of the Company or ITC China.
4.13. Disclosure. No representation or warranty by the Company in this
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Agreement or in any statement or certificate signed by any officer of the
Company or ITC China furnished or to be furnished to the Investors pursuant to
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances in which they are made, not misleading.
4.14. Registration Rights. Except as provided in the Investor Rights
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Agreement, neither the Company nor ITC China has granted or agreed to grant any
person or entity any rights (including piggyback registration rights) to have
any securities of the Company or ITC China registered with the United States
Securities and Exchange Commission ("SEC") or any other governmental authority.
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4.15. Insurance. Each of the Company and ITC China has obtained and
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will maintain, 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.
4.16. Financial Statements. The Company has supplied to the
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Investors (i) the audited balance sheet of the Company as at December 31, 1998
and the related audited statements of income, changes in stockholders' equity
and cash flow of the Company for the fiscal year then ended, accompanied by the
report thereon by Coopers & Xxxxxxx CIEC, the Company's independent certified
public accountants (together with the related schedules and notes thereto, the
"Audited Financial Statements") and (ii) the unaudited balance sheet of the
Company as at September 30, 1999 and the related unaudited statements of income,
changes in stockholders' equity and cash flow of the Company for the quarter
then ended (the "Interim Financial Statements"). The Financial Statements
present fairly the financial condition of the Company as of the respective dates
thereof, and the income, changes in stockholders' equity and cash flow of the
Company for the year and period then ended and have been prepared in accordance
with United States generally accepted accounting principles ("GAAP") applied
consistently throughout the periods involved, except that some or all footnotes
required by GAAP for year-end financial statements are not included in the
Interim Financial Statements.
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Other than as set forth in the Disclosure Schedule, neither the Company nor ITC
China has any material indebtedness or other material liability. Except as
disclosed in the Audited Financial Statements or the Interim Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation. The Company maintains and will continue
to maintain a standard system of accounting established and administered in
accordance with US generally accepted accounting principles.
4.17. Certain Actions. Since the date of the Interim Financial
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Statements, neither the Company nor ITC China has: (a) declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock; (b) incurred any indebtedness for money
borrowed or incurred any other liabilities individually in excess of $50,000 or
in excess of $250,000 in the aggregate other than in the ordinary course of
business; (c) made any loans or advances to any person, other than ordinary
advances for travel expenses; (d) sold, exchanged or otherwise disposed of any
material assets or rights other than the sale of inventory in the ordinary
course of its business; or (e) entered into any transactions with any of its
officers, directors or employees or any entity controlled by any of such
individuals, other than payments of compensation in the ordinary course of
business based solely on such individuals' status and functions as officers,
directors or employees.
4.18. Activities Since Interim Financial Statement Date. Since the
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date of the Interim Financial Statements, there has not been:
(a) 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 or ITC China (as presently conducted
and as presently proposed to be conducted);
(b) any waiver by the Company or ITC China of a valuable right or
of a material debt owed to it;
(c) any satisfaction or discharge of any lien, claim or encumbrance
or payment of any obligation by the Company or ITC China,
except such a satisfaction, discharge or payment made in the
ordinary course of business that is not material to the assets,
properties, financial condition, operating results or business
of the Company or ITC China;
(d) any material change or amendment to a material contract or
arrangement by which the Company or ITC China or any of their
assets or properties is bound or subject, except for changes or
amendments which are expressly provided for or disclosed in
this Agreement;
(e) any material change in any compensation arrangement or
agreement with any present or prospective employee, contractor
or director not approved by the Company's or ITC China's Board
of Directors; or
(f) to the Company's knowledge, any other event or condition of any
character which would materially and adversely affect the
assets,
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properties, financial condition, operating results or business
of the Company or ITC China.
4.19. Tax Matters. The Company has made sufficient provision for,
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and has adequate resources to pay, all accrued and unpaid federal, state,
provincial, foreign, county and local taxes of each of the Company and ITC
China, whether or not assessed or disputed as of the date hereof. There have
been no examinations or audits of any tax returns or reports by any applicable
federal, state or local governmental agency. Each of the Company and ITC China
has duly filed all federal, state, county and local tax returns required to have
been filed by it and paid all taxes shown to be due on such returns. There are
in effect no waivers of applicable statutes of limitations with respect to taxes
for any year.
4.20. Tax Elections. Neither the Company nor ITC China has elected
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pursuant to the Internal Revenue Code of 1986, as amended (the "Code"), to be
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treated as an "S" corporation or a collapsible corporation pursuant to Section
341(f) or Section 1362(a) of the Code, nor has the Company or ITC China made
any other elections pursuant to the Code (other than elections which relate
solely to matters of accounting, depreciation or amortization) which would have
a material affect on the Company or ITC China, their financial conditions, their
businesses as presently conducted or presently proposed to be conducted or any
of their properties or material assets.
4.21. Invention Assignment and Confidentiality Agreement. The
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Company has caused each employee, officer, consultant and contractor of each of
the Company and ITC China to enter into and execute an agreement as to
assignment to the Company of inventions made during employment and the
confidentiality of proprietary information of the Company.
4.22. Environmental Matters. During the period that each of the
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Company and ITC China has owned or leased its properties and facilities, (a)
there have been no disposals, releases or threatened releases of Hazardous
Materials (as defined below) on, from or under such properties or facilities,
and (b) neither the Company nor ITC China, nor to the Company's knowledge any
third party, has used, generated, manufactured or stored on, under or about such
properties or facilities or transported to or from such properties or facilities
any Hazardous Materials. Neither the Company nor ITC China has knowledge of any
presence, disposals, releases or threatened releases of Hazardous Materials on,
from or under any of such properties or facilities, which may have occurred
prior to the Company or ITC China having taken possession of any of such
properties or facilities. For purposes of this Agreement, the terms "disposal",
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"release", and "threatened release" shall have the definitions assigned thereto
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by the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 et seq., as amended ("CERCLA"). For the purposes
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of this Section, "Hazardous Materials" shall mean any hazardous or toxic
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substance, material or waste which is regulated under, or defined as a
"hazardous substance", "pollutant", "contaminant", "toxic chemical", "hazardous
material", "toxic substance", or "hazardous chemical" under (1) CERCLA; (2) the
Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et
--
seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
--- --
seq.; (4) the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; (5)
--- -- ---
the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.;
-- ---
(6) regulations promulgated under any of the above
-10-
statutes; or (7) any applicable state or local statute, ordinance, rule, or
regulation that has a scope or purpose similar to those statutes identified
above.
4.23. Interested Party Transactions. To the best knowledge of the
-----------------------------
Company, no officer or director of the Company or ITC China or any "affiliate"
or "associate" (as those terms are defined in Rule 405 promulgated under the
Securities Act) of any such person has had, either directly or indirectly, a
material interest in: (i) any person or entity which purchases from or sells,
licenses or furnishes to the Company or ITC China any goods, property,
technology, intellectual or other property rights or services; or (ii) any
contract or agreement to which the Company or ITC China is a party or by which
it may be bound or affected, except that Xxxxxxx Xxxxx is a stockholder of a
Chinese entity popularly referred to as "Sohu."
4.24. Stock Restriction Agreements. Each person who, pursuant to any
----------------------------
benefit, bonus or incentive plan of the Company or ITC China, holds any
currently outstanding shares of Common Stock or other securities of either the
Company or ITC China or any option, warrant or right to acquire such shares or
other securities, has entered into or is otherwise bound by, an agreement
granting the Company or ITC China the right to repurchase the shares for the
original purchase price, or to cancel the unvested portion of the option,
warrant or right, in the event the holder's employment or services with the
Company or ITC China terminate for any reason, subject to release of such
repurchase or cancellation right on terms and conditions specified by the Board
of Directors of the Company.
4.25 Year 2000 Compatibility. All of the Company's and ITC China's
-----------------------
systems will record, store, process and calculate and present calendar dates
falling on and after January 1, 2000, and will calculate any information
dependent on or relating to such dates in the same manner and with the same
functionality, data integrity and performance as the products recorded, stored,
processed, calculated and presented calendar dates on or before December 31,
1999, or calculated any information dependent on or relating to such dates
(collectively "Year 2000 Compliant"). All of the Company's and ITC China's
systems will lose no functionality with respect to the introduction of records
containing dates falling on or after January 1, 2000. All of the Company's and
ITC China's internal computer systems, including without limitation, its
accounting systems, are Year 2000 Compliant.
4B. REPRESENTATIONS AND WARRANTIES OF XXXXXXX XXXXX. Xxxxxxx Xxxxx
-----------------------------------------------
represents and warrants to the Investors as follows:
4B.1 Conflicting Agreements. He is not, as a result of the nature of
----------------------
the business conducted or proposed to be conducted by the Company or for any
other reason, in violation of (i) any fiduciary or confidential relationship,
(ii) any term of any contract or covenant (either with the Company or with
another entity) relating to employment, patents, proprietary information
disclosure, non-competition or non-solicitation, or (iii) any other contract or
agreement, or any judgment, decree or order of any court or administrative
agency relating to or affecting the right of Xx. Xxxxx to be employed by the
Company. No such relationship, term, judgment, decree, or order conflicts with
Xx. Xxxxx'x obligations to use his best efforts to promote the interests of the
Company nor does the execution and delivery of this Agreement and the
transactions contemplated hereby, nor the carrying on of the Company's business
as an
-11-
officer or key employee of the Company, conflict with any such relationship,
term, judgment, decree or order.
4B.2 Litigation. There is no action, suit or proceeding, or
----------
governmental inquiry or investigation, pending or, to the best of Xx. Xxxxx'x
knowledge, threatened against Xx. Xxxxx and, to the best of his knowledge, there
is no basis for any such action, suit, proceeding, or governmental inquiry or
investigation.
4B.3 Stockholder Agreements. Except as contemplated by or disclosed
----------------------
in this Agreement, Xx. Xxxxx is not a party to and has no knowledge of any
agreements, written or oral, relating to the acquisition, disposition,
registration under the Securities Act, or voting of the capital stock of the
Company.
5. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor
-----------------------------------------------
represents and warrants to the Company as follows:
5.1. Authorization. This Agreement when executed and delivered by
-------------
the Investor will constitute a valid and legally binding obligation of the
Investor, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting creditors'
rights generally and to general equitable principles.
5.2. Investigation; Economic Risk. The Investor acknowledges that it
----------------------------
is an "accredited investor" within the meaning that term as defined in Rule
50l(a) of Regulation D of the Securities Act (meaning that, in the case of a
corporation, partnership, or limited liability company, it either has total
assets in excess of $5,000,000 and was not formed for the specific purpose of
acquiring the Shares, or each of its equity owners are "accredited investors"
and, in the case of an individual, that the Investor has either (a) net worth
(or net worth with the Investor's spouse) in excess of $1 million, or net income
(not including any net income of the Investor's spouse) in excess of $200,000,
or joint income with the Investor's spouse in excess of $300,000, in each of the
two most recent years, with a reasonable expectation of reaching the same income
level in the current year). The Investor's address as set forth on Exhibit A
hereto represents its state or other jurisdiction of domicile, upon which the
Company may rely for the purpose of complying with applicable state "Blue Sky"
laws. The Investor acknowledges that it has had an opportunity to discuss the
business, affairs and current prospects of the Company with its officers. The
Investor further acknowledges having had access to information about the Company
that it has requested. The Investor acknowledges that it is able to fend for
itself in the transactions contemplated by this Agreement and has the ability to
bear the economic risks of its investment pursuant to this Agreement.
5.3. Purchase for Own Account. The Shares and the Conversion Shares
------------------------
will be acquired for the Investor's own account, not as a nominee or agent, and
not with a view to or in connection with the sale or distribution of any part
thereof.
5.4. Exempt from Registration; Restricted Securities. The Investor
-----------------------------------------------
understands that the Shares and the Conversion Shares will not be registered
under the Securities Act, on the ground that the sale provided for in this
Agreement is exempt from registration under the Securities Act, and that the
reliance of the Company on such exemption is predicated in part
-12-
on the Investor's representations set forth in this Agreement. The Investor
understands that the Shares and the Conversion Shares being purchased hereunder
are restricted securities within the meaning of Rule 144 under the Securities
Act; that the Shares and the Conversion Shares are not registered and must be
held indefinitely unless they are subsequently registered or an exemption from
such registration is available.
5.5. Restrictive Legends. It is understood that each certificate
-------------------
representing (a) the Shares, (b) the Conversion Shares, and (c) any other
securities issued in respect of the any of the foregoing upon any stock split,
stock dividend, recapitalization, merger or similar event shall be stamped or
otherwise imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
5.6 Removal of Restrictive Legend. The legend set forth above shall
-----------------------------
be removed by the Company from any certificate evidencing Shares or Conversion
Shares upon delivery to the Company of an opinion of counsel, reasonably
satisfactory to the Company, that a registration statement under the Securities
Act is at that time in effect with respect to the legended security or that such
security can be freely transferred in a public sale without such a registration
statement being in effect and that such transfer will not jeopardize the
exemption or exemptions from registration pursuant to which the Company issued
the Shares or Conversion Shares.
5.7 No Transfer to PRC Entities. No Investor will transfer any of
---------------------------
its Shares to any entity that is organized or domiciled in the PRC.
6. COVENANTS OF THE COMPANY. The Company covenants to each Investor as
------------------------
follows:
6.1 Use of Proceeds. The Company will use the Proceeds from the
---------------
sale of the Shares for business expansion, capital expenditures and general
working capital.
6.2 Initial Public Offering. The Company will use its reasonable
-----------------------
efforts to conduct a firm commitment underwritten public offering of its Common
Stock within twelve months after the date hereof.
6.3 Subsequent Sales. The Company will not sell or enter into any
---------------
agreements to sell shares of Series D Preferred Stock except on terms the same
as those set forth
-13-
in this Agreement and any such sale must occur not later than thirty (30) days
after the date hereof.
7. CONDITIONS TO THE INVESTORS' OBLIGATIONS AT THE CLOSING. The
--------------------------------------------------------
obligations of each Investor to purchase the Shares at the Closing are subject
to the fulfillment, to the satisfaction each Investor, on or before Closing, of
the following conditions:
7.1. Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by the Company in Section 4 hereof shall be true and correct as
of the date of the Closing; and the Company shall have performed all obligations
and conditions herein required to be performed or observed by it on or before
the Closing, with respect to the issuance and sale of the Shares.
7.2. Performance of Obligations. The Company shall have performed
--------------------------
and complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing, with respect to the issuance and sale of the Shares; and the
Company shall have obtained all approvals, consents and qualifications necessary
to complete the purchases and sales described herein.
7.3. Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to the Investor, and the Investor shall have received all such counterpart
originals or certified or other copies of such documents as it may reasonably
request.
7.4. Consents and Waivers. The Company shall have obtained any and
--------------------
all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
7.5. Compliance Certificate. At the Closing, the Company shall
----------------------
deliver to each Investor a certificate, dated as of the Closing, signed by the
Company's President certifying that the conditions specified in Paragraphs 7.1
and 7.2 have been fulfilled.
7.6. Securities Laws. The offer and sale of the Shares to the
---------------
Investors pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act and the registration and/or qualification
requirements of all applicable state securities laws.
7.7. Amendment to Certificate. The Certificate shall have been duly
------------------------
adopted by the Company by all necessary corporate action of its Board of
Directors and stockholders and shall have been duly filed with and accepted by
the Secretary of State of the State of Delaware.
7.8 Execution and Delivery of Other Agreements. Execution and
------------------------------------------
delivery of (a) the Investor Rights Agreement (as defined in Section 4.2(c)),
substantially in the form of Exhibit C hereto and (b) a Third Amended and
Restated Right of First Refusal and Co-Sale Agreement, substantially in the form
of Exhibit D hereto, dated as of the Closing between the Company, the persons
listed on Exhibit B thereto, Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxxx
and Xxxxxx X. Xxxxxxx (the "Right of First Refusal and Co-Sale Agreement") in
-14-
each case by the parties whose participation is necessary to effectuate such
respective amendments.
7.9. Opinion of Company's Counsel. At the Closing each Investor
----------------------------
shall have received from counsel to the Company an opinion addressed to the
Investor, dated the date of the Closing, in form and substance reasonably
acceptable to the Investor.
7.10 Due Diligence. Completion of due diligence to the reasonable
-------------
satisfaction of the Investor.
8. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSINGS. The obligations
---------------------------------------------------
of the Company under this Agreement are subject to the fulfillment, on or before
the Closing, of the following conditions:
8.1. Representations and Warranties. The representations and
------------------------------
warranties of the Investors contained in Section 5 hereof shall be true as of
the Closing.
8.2. Payment of Purchase Price. Each Investor shall have delivered
-------------------------
to the Company the purchase price in accordance with the provisions of Section
3.
8.3. Certificate Effective. The Certificate shall have been duly
---------------------
adopted by the Company by all necessary corporate action of its Board of
Directors and shareholders, and shall have been duly filed with and accepted by
the Secretary of State of the State of Delaware.
8.4. Securities Exemptions. The offer and sale of the Shares to the
---------------------
Investors pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act, and the registration and/or qualification
requirements of all applicable state securities laws.
8.5 Execution of Other Agreements. Execution and delivery by the
-----------------------------
Investors of amendments to accommodate and include the Series D therein and the
Investors as parties thereto or beneficiaries of rights equivalent to those set
forth in (a) the Investor Rights Agreement and (b) the Right of First Refusal
and Co-Sale Agreement.
9. MISCELLANEOUS.
-------------
9.1. Governing Law. This Agreement shall be governed in all respects
-------------
by the laws of the State of Delaware without regard to provisions regarding
choice of laws.
9.2. Survival. The representations, warranties, covenants and
--------
agreements made herein shall survive any investigation made by any party hereto
and the closing of all the transactions contemplated hereby.
9.3. Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto whose rights or obligations hereunder are affected by such
amendments. This Agreement and the rights and obligations herein may not be
assigned by any Investor without the written consent of the Company except to a
parent
-15-
corporation, a subsidiary or an affiliate. This Agreement and the rights and
obligations herein may not be assigned by the Company.
9.4. Entire Agreement. This Agreement and the exhibits hereto which
----------------
are hereby expressly incorporated herein by this reference constitute the entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof; provided, however, that nothing in this Agreement shall be
-------- -------
deemed to terminate or supersede the provisions of any confidentiality and
nondisclosure agreements executed by the parties hereto prior to the date
hereof, which agreements shall continue in full force and effect until
terminated in accordance with their respective terms.
9.5. Notices. Except as may be otherwise provided herein, all
-------
notices, requests, waivers and other communications made pursuant to this
Agreement shall be in writing and shall be conclusively deemed to have been duly
given (a) when hand delivered to the other party; (b) when received when sent by
facsimile at the address and number set forth below; (c) for notices between
parties both of which are located in the United States, three business days
after deposit in the U.S. mail with first class or certified mail return receipt
requested postage prepaid and addressed to the other party as set forth below;
or (d) when received, if sent by a national overnight delivery service, postage
prepaid, addressed to the parties as set forth below, provided that the sending
party receives a confirmation of delivery from the delivery service provider.
Each person making a communication hereunder by facsimile shall promptly confirm
by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given below, or designate additional
addresses, for purposes of this Section 9.5 by giving the other party written
notice of the new address in the manner set forth above.
If to the Company:
Xxxx.xxx Inc.
7 Jianguomen Nei Avenue
Bright China Xxxxx Xx Xxxxxxxx
Xxxxx 0 Xxxx 000
Xxxxxxx, Xxxxx 000000
Phone: 000 0000 0000 0000
Fax: 000 0000 0000 0000
with a copy to:
Goulston & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Investors to the address of such Investors set forth on
Exhibit A hereto.
-16-
9.6. Amendments and Waivers. Any term of this Agreement may be
----------------------
amended only with the written consent of the Company and the holders of a
majority of the shares of Series D Preferred Stock.
9.7. Delays or Omissions. No delay or omission to exercise any
-------------------
right, power or remedy accruing to the Company or to any Investor, upon any
breach or default of any party hereto under this Agreement, shall impair any
such right, power or remedy of the Company, or the Investor nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach of default thereafter occurring; nor shall any
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of the
Company or any Investor of any breach of default under this Agreement or any
waiver on the part of the Company or any Investor of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to the Company or any Investor
shall be cumulative and not alternative.
9.8. Legal Fees. In the event of any action at law, suit in equity
----------
or arbitration proceeding in relation to this Agreement or any Shares or other
securities of the Company issued or to be issued, the prevailing party, shall be
paid by the other party a reasonable sum for attorney's fees and expenses for
such prevailing party.
9.9. Finder's Fees. Each party (a) represents and warrants to the
-------------
other party hereto that it has retained no finder or broker in connection with
the transactions contemplated by this Agreement, and (b) hereby agrees to
indemnify and to hold harmless the other party hereto from and against any
liability for any commission or compensation in the nature of a finder's fee of
any broker or other person or firm (and the costs and expenses of defending
against such liability or asserted liability) for which the indemnifying party
or any of its employees or representatives are responsible.
9.10. Titles and Subtitles. The titles of the paragraphs and
--------------------
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
9.11. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.12. Severability. Should any provision of this Agreement be
------------
determined to be illegal or unenforceable, such determination shall not affect
the remaining provisions of this Agreement.
9.13 Protection of Confidential Information. Confidential or
--------------------------------------
proprietary information disclosed by either party under this Agreement, as well
as the terms of this Agreement, other than the name and address of each Investor
and each Investor's investment in the Company, shall be considered confidential
information (the "Confidential Information") and shall not be disclosed by the
Company or any other party to this Agreement to any third party,
-17-
subject to Section 9.14 below. Each party shall immediately notify the other
parties of any information that comes to its attention which might indicate that
there has been a loss of confidentiality with respect to the Confidential
Information. In the event that the Company or any other party becomes legally
compelled (by statute or regulation or by oral questions, interrogatories,
request for information or documents, subpoena, criminal or civil investigative
demand or similar process, including without limitation, in connection with any
public or private offering of the Company's capital stock) to disclose any of
the Confidential Information, such party (the "Disclosing Party") shall provide
the other party (the "Non-Disclosing Party") with prompt written notice of that
fact so that the appropriate party may seek (with the cooperation and reasonable
efforts of the other parties) a protective order, confidential treatment or
other appropriate remedy. In such event, the Disclosing Party shall furnish only
that portion of the Confidential Information which is legally required and shall
exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information to the extent reasonably
requested by the Non-Disclosing Party. The provisions of this Section 9.13 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
transaction contemplated hereby.
9.14 Disclosure of Terms; Press Releases. Notwithstanding the
-----------------------------------
provisions of Section 9.13 above, from and after the Closing, the Company may
disclose the existence of this Agreement and the terms hereof, as well as each
Investor's investment in the Company solely to the Company's investors,
investment bankers, lenders, accountants, legal counsel, business partners, and
bona fide prospective investors, employees, lenders and business partners, in
each case only where such persons or entities are under appropriate
nondisclosure obligations. In addition, the Company may disclose the fact that
any Investor is an investor in the Company to third parties without the
requirement of nondisclosure obligations. The Company may issue a press release
disclosing that any Investor has invested in the Company; provided that the
release does not disclose the amount or other specific terms of the investment
and is approved in advance in writing by the Investors. Each Investor, at its
sole discretion, may provide an executive quote or other material regarding its
investment in the Company. No other announcement regarding an Investor's
investment in the Company in a press conference, in any professional or trade
publication, in any marketing materials or otherwise to the general public may
be made without the prior written consent of such Investor, which consent may be
withheld at the sole discretion of the Investor. Notwithstanding the foregoing,
an Investor may disclose its investment in the Company to third parties or to
the public at its discretion, and the Company shall have the right to disclose
to third parties any such information disclosed by the Investor in a press
release or other public announcement. If the Company or an Investor determines
that any disclosure not otherwise authorized by this Agreement is required by
law or regulation, then the provisions of Section 9.13 regarding disclosure of
Confidential Information by a Disclosing Party shall govern.
9.15 Dispute Resolution. The parties agree to negotiate in good
------------------
faith to resolve any dispute between them regarding this Agreement. If the
negotiations do not resolve the dispute to the reasonable satisfaction of both
parties, then each party shall nominate one senior officer of the rank of Vice
President or higher as its representative. These representatives shall, within
thirty (30) days of a written request by either party to call such a meeting,
meet in person and alone (except for one assistant for each party) and shall
attempt in good faith to resolve the dispute. If the disputes cannot be resolved
by such senior managers in such meeting, the parties
-18-
agree that they shall, if requested in writing by either party, meet within
thirty (30) days after such written notification for one day with an impartial
mediator and consider dispute resolution alternatives other than litigation. If
an alternative method of dispute resolution is not agreed upon within thirty
(30) days after the one day mediation, either party may begin litigation
proceedings. This procedure shall be a prerequisite before taking any additional
action hereunder.
[SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year herein above first written.
XXXX.XXX INC.
By: ____________________________
Printed Name: __________________
Title: _________________________
LEGEND NEW-TECH INVESTMENT LIMITED
By: ____________________________
Printed Name: __________________
Title: _________________________
INTERNET CREATIONS LIMITED
By: ____________________________
Printed Name: __________________
Title: _________________________
HIKARI TSUSHIN, INC.
By: ____________________________
Printed Name: __________________
Title: _________________________
SIGNATURE PAGES OF SERIES D PREFERRED STOCK PURCHASE AGREEMENT
-20-
XXXXXXX XXXXX
Executed solely for the purpose of making the representations and warranties set
forth in Section 4B hereof:
________________________________
Xxxxxxx X.X. Xxxxx
SIGNATURE PAGES OF SERIES D PREFERRED STOCK PURCHASE AGREEMENT
-21-
