EXHIBIT 10.8
AVENUE A, INC.
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Agreement is made as of May 4, 1999 by and among Avenue A, Inc., a
Washington corporation (the "Company"), and the investors listed on the Schedule
of Investors attached as Exhibit A (the "Investors").
1. Authorization and Sale of Preferred Shares.
1.1 Authorization. The Company has authorized the issuance and sale
pursuant to this Agreement of shares of its Series C Preferred Stock (the
"Shares") having the rights, restrictions, privileges and preferences set forth
in the Company's Restated Articles of Incorporation attached as Exhibit B (the
"Restated Articles"). The total amount of Common Stock or other securities
issuable upon conversion of the Shares is referred to as the "Conversion Stock."
1.2 Sale of Series C Shares. Subject to the terms and conditions
hereof, the Company will issue and sell to the Investors, and each Investor will
purchase from the Company, severally and not jointly, the total number of Shares
specified opposite such Investor's name on the Schedule of Investors for the
purchase price of $1.94 per share at the Closing (as defined hereafter).
2. Closing; Delivery.
2.1 Closing. The closing of the sale and purchase of the Shares
under this Agreement (the "Closing") shall be held at 10:00 a.m. on May 4, 1999
(the "Closing Date"), at the offices of Xxxxxxx Xxxx, LLP, 0000 Xxxxx Xxxxxx,
Xxx. 0000, Xxxxxxx, XX 00000-0000 or at such other time and place as the Company
and the Investors may agree.
2.2 Delivery. At the Closing, subject to the terms and conditions
hereof, the Company shall deliver to each Investor a certificate, representing
the Shares purchased by the Investor from the Company, against payment of the
purchase price therefor by wire transfer of immediately available funds.
3. Representations and Warranties of the Company. Except as otherwise set
forth on the Schedule of Exceptions attached as Exhibit C setting forth the
exceptions which correspond to the numbered sections contained in this Section
3, the Company represents and warrants to the Investors as follows:
3.1 Organization and Standing; Certificate and By-laws. The Company
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Washington. The Company has all requisite corporate
power and authority to own and operate its properties and assets and to carry on
its business as presently conducted and as proposed to be
conducted. The Company is not qualified to do business as a foreign corporation
in any jurisdiction and the failure to be so qualified would not reasonably be
expected to have a material adverse effect on the assets, condition (financial
or otherwise), operating results, or business of the Company (as such business
is presently conducted and as it is proposed to be conducted) (a "Material
Adverse Effect"). The Company has furnished the Investors with copies of its
Articles of Incorporation, all amendments thereto, and Bylaws. Said copies are
true, correct and complete and include all amendments through the Closing Date.
3.2 Corporate Power. The Company has all requisite legal and
corporate power to execute and deliver this Agreement and to adopt the Restated
Articles and the Investors Rights Agreement in the form attached as Exhibit E
(the "Investors Rights Agreement"), to sell and issue the Shares hereunder, to
issue the Conversion Stock, and to carry out and perform its obligations under
the terms of this Agreement, the Restated Articles and the Investors Rights
Agreement.
3.3 Capitalization.
(a) The authorized capital stock of the Company consists of 50,000,000
shares of Common Stock, $0.01 par value, and 17,500,000 shares of Preferred
Stock, $0.01 par value, of which 4,000,000 shares have been designated Series A
Preferred Stock, 2,580,000 shares have been designated Series B Preferred Stock
and 10,000,000 shares have been designated Series C Preferred Stock.
(b) Immediately prior to the Closing, 12,407,332 shares of Common
Stock, 3,998,474 shares of Series A Preferred Stock, 2,580,000 shares of Series
B Preferred Stock and no shares of Series C Preferred Stock are issued and
outstanding. The holders of record of the presently issued and outstanding
shares of capital stock of the Company immediately prior to the Closing Date are
as set forth in shareholder lists included in Section 3.3(b) of the Schedule of
Exceptions. All issued and outstanding shares of the Company's capital stock are
duly authorized and validly issued, fully paid and nonassessable, and were
issued in compliance with applicable federal and state securities laws. The
rights, privileges and preferences of each series of Preferred Stock will be as
set forth in the Restated Articles.
(c) Except for (i) the conversion privileges of the Preferred
Stock, (ii) 6,750,000 shares of Common Stock reserved for issuance pursuant to
the Company's 1998 Stock Incentive Compensation Plan, of which 407,332 shares
have been issued upon exercise of options, 3,639,768 shares are subject to
outstanding options, and 2,702,900 shares are available for future grant, (iii)
a warrant to purchase 451,807 shares of Common Stock, (iv) the rights set forth
in the Investors Rights Agreement, and (v) the rights of first refusal of the
Company and the rights of the Company to purchase upon involuntary transfer as
set forth in each of the Share Purchase Agreements entered into between the
Company and each purchaser of the Company's Series A Preferred Stock and in each
of the Series B Preferred Stock Share Purchase Agreements entered into between
the Company and each purchaser of the Company's Series B Preferred Stock, there
are no outstanding shares of capital stock or outstanding rights of first
refusal, preemptive rights or other rights, options, warrants, conversion
rights, or other agreements either directly or indirectly for the purchase or
acquisition from the Company of any shares of its capital stock.
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3.4 Subsidiaries. The Company has no subsidiaries or affiliated
companies and does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business entity.
3.5 Authorization. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution, delivery and performance by the Company of this Agreement and the
Investors Rights Agreement, the authorization, issuance, sale and delivery of
the Shares and the Conversion Stock, and the performance of all of the Company's
obligations hereunder and thereunder have been taken or will be taken prior to
the Closing. This Agreement and the Investors Rights Agreement are valid and
legally binding obligations of the Company enforceable in accordance with their
respective terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies. The Shares and the
Conversion Stock, when issued in compliance with the provisions of this
Agreement, will be duly authorized and validly issued, fully paid and
nonassessable, will be issued in compliance with applicable federal and state
securities laws, and will have the rights, preferences and privileges described
in the Restated Articles; and the Shares and the Conversion Stock will be free
of any liens or encumbrances caused or created by the Company, other than any
liens or encumbrances created by the holders; provided, however, that the Shares
and the Conversion Stock may be subject to restrictions on transfer under
applicable securities laws as set forth herein. The Shares, the Conversion Stock
and the issuance thereof are not subject to any preemptive rights, rights of
first refusal or similar rights.
3.6 Outstanding Indebtedness. The Company has no indebtedness for
borrowed money which the Company has directly or indirectly created, incurred,
assumed or guaranteed, or with respect to which the Company has become directly
or indirectly liable. Except for liabilities and obligations with respect to the
purchase advertising from publisher web-sites which have arisen in the ordinary
course of business, the Company has no liability or obligation, absolute or
contingent, other than liabilities or obligations of less than $50,000 each and
in the aggregate less than $250,000, under purchase orders, sales contracts,
real property leases, equipment leases or similar obligations, all incurred in
the ordinary course of business.
3.7 Financial Statements. The Company has delivered to each Investor
its audited balance sheet and statement of shareholder's equity at December 31,
1998, its audited consolidated statements of operations and cash flows for the
year ended December 31, 1998, its unaudited consolidated statements of
operations and cash flows for the quarter ended March 31, 1999, and its
unaudited balance sheet at March 31, 1999 (collectively, the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated
(subject, in the case of unaudited financial statements, to normal nonmaterial
year end audit adjustments and the omission of footnotes). The Financial
Statements accurately set out and describe the financial condition and operating
results of the Company as of the dates, and during the periods, indicated
therein. Since December 31, 1998, there has been no material adverse change in
the business, financial condition or results of operations of the Company.
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3.8 Title to Properties and Assets. The Company has good and
marketable title to its properties and assets, and has good title to all its
leasehold interests, in each case subject to no mortgage, pledge, lien, lease,
loan, encumbrance or charge, except (i) the lien of current taxes not yet due
and payable, and (ii) possible minor liens and encumbrances (of which the
Company has no knowledge) which do not in any case have a Material Adverse
Effect, and which have not arisen otherwise than in the ordinary course of
business. With respect to property it leases as lessee or subleases as
sublessee, the Company is in compliance with such leases or subleases, as the
case may be, in all material respects. The Company does not lease any property
as lessor.
3.9 Patents, Trademarks. The Company has full and complete title or
ownership of, or license rights to, all patents, patent applications, licenses,
trademarks, service marks, trade names, inventions, franchises, copyrights,
trade secrets, information and other proprietary rights or processes
(collectively, "Proprietary Rights"), including Proprietary Rights which
comprise trade secret rights (hereinafter, "Trade Secrets"), necessary for the
operation of its business as now conducted with no known conflict with or
infringement of the rights of others. Except as set forth in Section 3. 9 of the
Schedule of Exceptions, there are no outstanding material options, material
licenses, or material agreements of any kind related to the foregoing, nor is
the Company bound by or a party to any material options, material licenses or
material agreements with respect to the patents, patent applications, licenses,
trade marks, service marks, trade names, inventions, franchises, copyrights,
trade secrets, information, proprietary rights or processes of any other person
or entity. No patents or patent applications are owned or licensed by the
Company. The Company has taken all reasonable actions and made all reasonably
necessary or appropriate applications and filings pursuant to applicable laws to
perfect or protect its interests in all Proprietary Rights. The execution,
delivery and performance of this Agreement, the Investors Rights Agreement and
the Restated Articles and the consummation of the transactions contemplated
hereby and thereby will not (A) cause the forfeiture or termination or give rise
to a right of forfeiture or termination of any Proprietary Right, or (B) in any
way impair the right of the Company to use, sell, license or dispose of or to
bring any action for the infringement of, any Proprietary Right or any products
or technology being designed or developed by the Company (collectively,
"Products"). There is no claim or litigation pending or, to the Company's
knowledge, threatened contesting the validity, ownership or right to use, sell,
license or dispose of any Proprietary Right. To the Company's knowledge, no
third party is infringing on any Proprietary Right where such infringement could
materially limit the protection afforded by the Proprietary Rights to the use,
sale, license, sublicense or disposition of Products or prevent the future
enforcement of such Proprietary Right. The Company has not received any written
or, to its knowledge, oral communications alleging that the Company has
violated, or by conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights, trade secrets or
other proprietary rights of any other person or entity. To the Company's
knowledge, none of its employees or consultants (sometimes collectively referred
to as "service providers") is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of the service provider's best efforts to promote the
interests of the Company or that would conflict with the Company's business as
proposed to be conducted. To the Company's knowledge, neither the execution nor
delivery of this Agreement, nor the operation of the Company's business by the
service providers of the Company, nor the conduct of the Company's business as
now conducted or as currently proposed to be conducted, will conflict with or
result in a
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breach of the terms, conditions or provisions of, or constitute a default under,
any contract, covenant or instrument under which any of such service providers
is now obligated.
3.10 Compliance with Other Instruments, None Burdensome. The Company
is not in violation of any term of its Restated Articles or Bylaws nor is the
Company in violation of or in default in any material respect under the terms of
any contract, agreement, mortgage, indebtedness, indenture, instrument,
judgment, decree, or order or, to the Company's knowledge, any statute, rule or
regulation applicable to the Company, its business, operations, properties or
assets which violation or default would have a Material Adverse Effect. The
execution, delivery, and performance of and compliance with this Agreement and
the Investors Rights Agreement and the consummation of the transactions
contemplated hereby and thereby, have not resulted and will not (i) result in
any such violation, (ii) be in conflict with or constitute a default under any
such term, (iii) result in the creation of any lien, mortgage, pledge,
encumbrance or charge upon any of the properties or assets of the Company, (iv)
result in the suspension, revocation, impairment, forfeiture, or nonrenewal of
any material permit, license, authorization, or approval applicable to the
Company, its business or operations or any of its assets or properties or (v)
result in or give to any person or entity any additional rights or entitlement
to increased, additional, accelerated or guaranteed payments under, or any right
of termination, cancellation, acceleration or modification in or with respect to
any contract to which it is a party. The Company is not a party to and is not
bound by any judgment, order or injunction, which would reasonably be expected
to likely result in a Material Adverse Effect.
3.11 Litigation. There are no actions, suits, proceedings or
investigations pending against the Company or any of its officers or directors
in his or her capacity as an officer or director, as the case may be, of the
Company, which would reasonably be expected to likely result in a Material
Adverse Effect (nor, to the Company's knowledge, is there any threat thereof).
To the Company's knowledge, there are no actions pending or threatened involving
the prior employment of any of the Company's service providers or former service
providers or their obligations under any agreements with prior employers, the
use in connection with the Company's business of any information or techniques
allegedly proprietary to any of its former service providers, or obligations
under any agreements with the prior employers of such current or former service
providers which would reasonably be expected to likely result in a Material
Adverse Effect. The Company is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or governmental agency
or instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
3.12 Tax Returns. The Company has filed or obtained extensions for
all federal, state and other tax returns and reports which are required to have
been filed and has paid all taxes and other assessments which have become due
and payable. The Company has not elected pursuant to the Code to be treated as a
Subchapter S corporation or a collapsible corporation pursuant to Section
1362(a) or Section 341(f) of the Code, nor has it made any other elections
pursuant to the Code (other than elections that relate solely to methods of
accounting, depreciation or amortization) that would result in a Material
Adverse Effect. The Company has never had any tax deficiency proposed or
assessed against it and has not executed any waiver of any statute of
limitations on the assessment or collection of any tax or governmental charge.
None of the Company's federal income tax returns and none of its state income or
franchise tax or sales or use tax returns has ever been
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audited by governmental authorities, there is no pending dispute with any taxing
authority relating to any of such returns and the Company has no knowledge of
any proposed liability for any tax to be imposed upon the properties or assets
of the Company for which there is not an adequate reserve reflected in the
financial statements or, if adversely determined against the Company, would have
a Material Adverse Effect. The Company has withheld or collected from each
payment made to each of its employees, the amount of all taxes (including, but
not limited to, federal income taxes, Federal Insurance Contribution Act taxes
and Federal Unemployment Tax Act taxes) required to be withheld or collected
therefrom, and has, within the time frame required under applicable federal and
state withholding requirements, paid the same to the proper tax receiving
officers or authorized depositaries.
3.13 Employees. To the Company's knowledge, no employee of the
Company is in violation of any term of any employment contract, patent
disclosure agreement, invention assignment agreement, proprietary information
agreement or other contract or agreement relating to the relationship of such
employee with the Company or any other party because of the nature of the
business conducted or to be conducted by the Company. The Company does not have
any employment contracts, deferred compensation agreements or bonus, incentive
or profit sharing plans, either currently in effect or proposed, except the 1998
Stock Incentive Compensation Plan adopted by the Company's Board of Directors
and shareholders covering the sale of up to 6,750,000 shares of Common Stock to
employees, consultants, directors, officers, agents, advisors and independent
contractors. The Company has no collective bargaining agreements with any of its
service providers and there is no labor union organizing activity pending or, to
the Company's knowledge, threatened, with respect to the Company. All employees
of the Company have signed a Confidentiality, Inventions Assignment,
Noncompetition and Nonsolicitation Agreement in substantially the form furnished
to Special Counsel and all consultants to the Company have signed agreements
providing for maintenance of the confidentiality of the Company's proprietary
information. There is no strike or other labor dispute involving the Company
pending or, to the Company's knowledge, threatened, that would have a Material
Adverse Effect. The employment of each employee of the Company is terminable at
the will of the Company. The Company has complied in all material respects with
all applicable state and federal equal employment opportunity and other laws
related to employment.
3.14 Insurance. The Company maintains valid 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. None of such policies will terminate or lapse by reason
of the transactions contemplated by this Agreement. Each such policy is valid
and binding and in full force and effect, all premiums due thereunder have been
paid when due and neither the Company nor any other person or entity to which
such policy was issued has received any notice of cancellation or termination in
respect of any such policies or is in default thereunder, and the Company does
not know of any reason or state of facts that could lead to the cancellation of
such policies. Such policies, in light of the business, operations, assets, and
properties of the Company are in amounts and have coverages, including without
limitation, insurance against loss, damage, theft, general liability, and other
risks, that are reasonable and customary for entities engaged in such businesses
and operations and having such assets and properties. The Company has not
received
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notice that any insurer under any such policy is denying liability with respect
to a claim thereunder or defending under a reservation of rights clause.
3.15 Registration Rights. Except as provided in the Investors Rights
Agreement, the Company is not under any contractual obligation to register any
of its presently outstanding securities or any of its securities which may
hereafter be issued.
3.16 Consents.
(a) No consent, approval, order, action or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement or the Investors Rights Agreement or the offer, sale or
issuance of the Shares (and the Conversion Stock), or the consummation of any
other transaction contemplated hereby, except for the following: (i) the filing
of such notices as may be required under the Securities Act of 1933, as amended
(the " 1933 Act" or the "Act"), and (ii) qualification or registration (or
taking such action as may be necessary to secure an exemption from qualification
or registration, if available) of the offer and sale of the Shares (and the
Conversion Stock) under applicable Blue Sky laws, which filings and
qualifications, if required, will be accomplished in a timely manner.
(b) No consent, approval or authorization of any other third party is
required in connection with the consummation of the transactions contemplated by
this Agreement or the Investors' Rights Agreement.
(c) The Company has obtained all consents, approvals and
authorizations from the holders of its capital stock, including without
limitation the holders of Common Stock and Preferred Stock, as are necessary for
the consummation of the transactions contemplated by this Agreement and the
Investors' Rights Agreement.
3.17 Securities Law Exemption. Subject to the accuracy of the
Investors' representations in Section 4 of this Agreement, the offer, sale and
issuance of the Shares and the issuance of the Conversion Stock constitute
transactions exempt from the registration and prospectus delivery requirements
of the 1933 Act, and have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
3.18 Conflict of Interest. Except for agreements explicitly
contemplated hereby, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, 5% or
greater shareholders (including affiliated shareholders holding an aggregate of
5% or more of the Company's outstanding voting securities) ("5% Shareholders"),
affiliates, or any affiliate thereof. The Company and, to the Company's
knowledge, its officers, directors and 5% Shareholders, have no interest (other
than as holders of less than 1% of any class of securities of a publicly-traded
company), either directly or indirectly, in any entity, including without
limitation thereto, any corporation, partnership, joint venture, proprietorship,
firm, licensee, business or association (whether as an employee, officer,
director, agent, independent contractor, security
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holder, creditor, consultant or otherwise) that presently (i) provides any
services or designs, produces and/or sells any products or product lines, or
engages in any activity which is the same, similar to or competitive with any
activity or business in which it is now engaged; (ii) is a supplier, customer,
creditor, or has an existing contractual relationship with any of its managing
employees; (iii) has any direct or indirect interest in any asset or property,
real or personal, tangible or intangible, of the Company or any property, real
or personal, tangible or intangible, that is necessary or desirable for the
conduct of its business.
3.19 Brokers or Finders: Other Offers. The Company has not incurred,
and will not incur, directly or indirectly, as a result of any action taken by
or on behalf of the Company, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement.
3.20 Disclosure. The copies of all instruments, agreements and other
documents delivered by the Company to the Investors or Special Counsel are and
will be complete and correct in all respects as of the date of delivery thereof.
Neither this Agreement nor written statements in the Exhibits hereto taken as a
whole contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary in order to make the statements
contained herein and therein not misleading in light of the circumstances under
which they were made.
3.21 Licenses. The Company has all franchises, licenses, permits and
other similar authority necessary to the conduct of its business as currently
being conducted (federal, state, foreign and local), the failure to obtain which
would have a Material Adverse Effect, and such franchises, licenses, permits and
other similar authorities are in full force and effect. The Company believes in
good faith that it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted.
3.22 Certain Actions.
(a) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) made any loans or advances to any person, other than
loans in connection with employee relocations and ordinary advances for travel
expenses, (iii) sold, exchanged or otherwise disposed of any of its assets or
rights other than in the ordinary course of business or (iv) redeemed or
obligated itself to redeem any of its capital stock, other than repurchases of
unvested shares of Common Stock from terminated employees and consultants at a
repurchase price equal to the original issue price for such repurchased shares.
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(b) The Company is not subject to any restrictions under its Restated
Articles or Bylaws, which could reasonably be expected to have a Material
Adverse Effect.
(c) The Company has not engaged in any discussion (i) with any
representative of any corporation or corporations regarding the consolidation or
merger of the Company with or into any such corporation or corporations, (ii)
with any corporation, partnership, association or other business entity or any
individual regarding the sale, conveyance or disposition of all or substantially
all of the assets of the Company or a transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Company is disposed of, or (iii) regarding any other form of acquisition,
liquidation, dissolution or winding up of the Company.
3.23 Changes. Since December 31, 1998, there has not been:
(a) any waiver by the Company of a valuable right or of a
material debt owed to it;
(b) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results, business or prospects of the Company (as such
business is presently conducted and as it is now proposed to be conducted);
(c) any change or amendment to a material contract or arrangement by
which the Company or any of its assets or properties is bound or subject which
would reasonably be expected to likely result in a Material Adverse Effect;
(d) any change in any compensation arrangement or agreement with
any executive officer;
(e) any change in the assets, liabilities, financial condition or
operations of the Company, except changes in the ordinary course of business
which have not, either in any case or in the aggregate, resulted in a Material
Adverse Effect;
(f) any change, except in the ordinary course of business, in the
contingent obligations of the Company (nor any contingent obligation of the
Company regarding any director, shareholder, key service provider or officer of
the Company) by way of guaranty, endorsement, indemnity, warranty or otherwise;
(g) any declaration or payment of any dividend or other distribution
of assets of the Company, any redemption, purchase or acquisition by the Company
of any of its outstanding capital stock, or the adoption or consideration of any
plan or arrangement with respect thereto other than the Series B Preferred Stock
Share Purchase Agreements entered into between the Company and each purchaser of
the Company's Series B Preferred Stock which provide to the Company, in respect
of the Series B Preferred Stock, certain rights of first refusal and certain
rights to purchase upon involuntary transfer;
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(h) any resignation or termination of employment of any key employee
or service provider of the Company, or to the Company's knowledge any plans with
respect thereto;
(i) to the Company's knowledge, any other event or condition of any
character which could reasonably be expected to have a Material Adverse Effect;
(j) any change in the Company's accounting or internal control
procedures and practices that affects the manner in which the Company's
financial statements are prepared or that would require disclosure in the
Company's financial statements;
(k) any transaction which was not in the ordinary course of
business; or
(l) any damage to, destruction of or loss of physical property
(whether or not covered by insurance) resulting or that could reasonably be
expected to result in a Material Adverse Effect.
3.24 Real Property Holding Company. The Company is not and has not
been at any time a "United States real property holding corporation" as defined
in Section 897 of the Internal Revenue Code of 1986, as amended.
3.25 Investment Company. The Company is not, and after the receipt
of the proceeds from the sale of the Shares hereunder will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
3.26 Employee Benefits Plans. Neither the Company nor any entity
required to be aggregated with the Company under Section 414 (b), (c), (m) or
(o) of the Code maintains, contributes to or has any liability with respect to
any Employee Benefit Plan as defined in Section 3(3), of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") that is covered by Title IV of
ERISA. To the Company's knowledge, the transactions contemplated hereby will not
involve any Prohibited Transaction (as defined in Section 4975 (c)(1)(A), (B),
(C) or (D) of the Code) or Section 406 (a) of ERISA (other than a transaction
that is exempted from the prohibitions of such sections by applicable provisions
of ERISA or the Code or administrative exemptions, or regulations issued
thereunder) with respect to any employee benefit plan maintained by the Company.
3.27 Minutes. The minute books of the Company provided to Special
Counsel contain a complete summary of all meetings of directors (including
committees thereof) and shareholders and all actions taken by written consent
since the time of incorporation.
3.28 Holding Company Status. The Company is not a "holding company,"
or a subsidiary or affiliate of a "holding company," or a "subsidiary company"
of a "holding company," or a "public utility," within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or a "public utility" within
the meaning of the Federal Power Act, as amended.
3.29 Accounting. The Company maintains and will continue to maintain
a system of accounting established and administered in accordance with generally
accepted accounting
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principles and has in place reasonable internal controls which are adequate and
appropriate for the Company.
3.30 Section 83(b Elections. To the knowledge of the Company, all
individuals who have purchased shares of the Company's Common Stock subject to
vesting restrictions or other substantial risks of forfeiture have filed timely
elections under Section 83(b) of the Code and any analogous provisions of
applicable state tax laws.
3.31 Environmental and Safety Laws. The Company is not in violation
of, or under investigation with respect to any applicable statute, law or
regulation relating to the environment or occupational health and safety, and to
its knowledge, it has obtained all necessary licenses, permits and other
authorizations under, and no material expenditures are or will be required for
the conduct of its business as planned to be conducted in order to comply with,
any such existing statute, law or regulation. The Company has not handled, or
transported or arranged for the transport of, any "hazardous material" on, to or
from any property now or previously owned or leased by the Company in violation
of applicable environmental laws and regulations. No oral or written
notification of a "release" of a "hazardous material" has been filed by or on
behalf of the Company and, to its knowledge, no property now or previously owned
or leased by the Company is listed or proposed for listing on the "National
Priorities List" or on any similar state list for sites requiring investigation
or clean-up. For purposes of this Section 3.31, the terms "hazardous material,"
"release," and "National Priorities List" shall have the meanings ascribed
thereto in applicable statutes, laws or regulations relating to the environment.
3.32 Manufacturing and Marketing Rights. The Company has not granted
rights to develop, manufacture, produce, assemble, license, distribute, market,
or sell its products and/or services to any other person or entity and is not
bound by any agreement that affects the Company's exclusive right to develop,
manufacture, produce, assemble, license, distribute, market or sell its products
and/or services.
3.33 Undisclosed Liabilities. Except as reflected or reserved
against in the Financial Statements, there are no obligations, indebtedness or
other liabilities (whether absolute, accrued, contingent, known or unknown,
fixed or otherwise, or whether due or to become due) of or relating to the
Company or any of its assets or properties, other than obligations, indebtedness
or other liabilities incurred in the ordinary course of business consistent with
past practice since the date of the most recent financial statements delivered
to the Investor and in accordance with the provisions of this Agreement and the
Investors' Rights Agreement and except for obligations, indebtedness or other
liabilities which in the aggregate do not exceed $50,000 and are not for tort or
breach of contract.
3.34 Qualified Small Business Stock. To the knowledge of the
Company, as of the Closing Date, the Shares and Conversion Stock are eligible to
qualify as "qualified small business stock" as defined in Section 1202(c) of the
Code.
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4. Representations and Warranties of the Investors. Each Investor,
as to itself only, hereby represents and warrants to the Company as follows:
4.1 Authorization. This Agreement when executed and delivered by
such Investor will constitute a valid and legally binding obligation of the
Investor, enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency, reorganization, moratorium,
relief of debtors, other laws relating to or affecting enforcement of creditors'
rights and rules of law governing specific performance, injunctive relief or
other equitable remedies.
4.2 Experience. Such Investor has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company and has such knowledge and experience in
financial and business matters so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
4.3 Investment. Such Investor is acquiring the Shares and the
Conversion Stock for investment for its own account, not as a nominee or agent,
and not with the view to, or for resale in connection with, any distribution
thereof. The Investor understands that the Shares and the Conversion Stock have
not been, and will not be, registered under the 1933 Act by reason of a specific
exemption from the registration provisions of the 1933 Act, the availability of
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of such Investor's representations as expressed herein.
Such Investor further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to any third person with respect to any of the Shares (or any
Conversion Stock acquired upon conversion thereof. Such Investor understands and
acknowledges that the offering of the Shares pursuant to this Agreement will
not, and any issuance of Conversion Stock may not, be registered under the 1933
Act on the ground that the sale provided for in this Agreement and the issuance
of securities hereunder is exempt from the registration requirement of the 0000
Xxx.
4.4 Rule 144. Such Investor acknowledges that the Shares and the
Conversion Stock must be held indefinitely unless subsequently registered under
the 1933 Act or unless an exemption from such registration is available. Such
Investor is aware of the provisions of Rule 144 promulgated under the 1933 Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the Shares, the availability of certain current
public information about the Company, the resale occurring not less than one
year after a party has purchased and paid for the security to be sold, the sale
being effected through a "broker's transaction" or in transactions directly with
a "market maker" and the number of shares being sold during any three-month
period not exceeding specified limitations.
4.5 Rule 144A. Such Investor acknowledges that it is familiar with
the provisions of Rule 144A promulgated under the 1933 Act, which permits
resales of securities acquired in a nonpublic offering to certain qualified
institutional buyers, subject to the satisfaction of certain conditions. Such
Investor understands that the conditions under Rule 144A include, among other
things, the right of the Investor and subsequent transferees of the Investor to
obtain from the
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Company certain information about the Company, if the Company has not been
required to file periodic reports pursuant to Section 13 or 1 5(d) of the
Securities Exchange Act of 1934. Such Investor's right to obtain such
information shall be as set forth in Section 2.15 of the Investors Rights
Agreement.
4.6 No Public Market. Such Investor understands that no public
market now exists for any of the securities issued by the Company and that the
Company has made no assurances that a public market will ever exist for the
Company's securities.
4.7 Access to Data. Such Investor has had an opportunity to discuss
the Company's business, management and financial affairs with the Company's
management and has also had an opportunity to ask questions of the Company's
officers, which questions were answered to its satisfaction.
4.8 Accredited Investor. Such Investor acknowledges that such
Investor is an "accredited investor" as defined in Rule 501 of Regulation D as
promulgated by the Securities and Exchange Commission under the 1933 Act and
shall submit to the Company such further assurances of such status as may be
reasonably requested by the Company. For state securities law purposes, the
principal address of such Investor is that set forth under such Investor's name
on Exhibit A.
4.9 Brokers or Finders. The Investor has not engaged any brokers,
finders or agents and has not incurred, and will not incur, directly or
indirectly, any liability for brokerage or finder's fee or agents' commissions
or any similar charges in connection with this Agreement and the transactions
contemplated hereby.
5. Conditions To Closing Of Investors.
5.1 Conditions to Investors' Obligations at the Closing. Each
Investor's obligation to purchase Shares at the Closing under this Agreement is
subject to the fulfillment on or prior to the Closing Date of the following
conditions, any of which may be waived in whole or in part by such Investor:
(a) Representations and Warranties True. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct on
the Closing Date with the same force and effect as if they had been made on and
as of said date.
(b) Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with.
(c) Consents. The Company shall have obtained all consents, permits
and waivers necessary to consummate the transactions contemplated by this
Agreement.
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(d) Opinion of the Company's Counsel. The Investors shall have
received from Xxxxxxx Coie, counsel to the Company, an opinion letter addressed
to the Investors in the form attached as Exhibit D.
(e) Compliance Certificate. The Company shall have delivered to the
Investors a certificate of the Company, executed by the President or a Vice
President of the Company and dated as of the Closing Date, certifying to the
fulfillment of the conditions specified in Sections 5.1 (a), (b) and (c) and
stating that there shall have been no material adverse change in the business,
affairs, operations, properties, assets, prospects or condition (financial or
otherwise) of the Company since December 31, 1998.
(f) Articles of Incorporation. The Restated Articles in substantially
the form attached as Exhibit B shall have been filed with the Secretary of State
of the State of Washington.
(g) Ancillary Agreements. The Investors Rights Agreement shall have
been executed by the Company, and, for purposes of Section 4 thereof, Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and X.X. Xxx. The Investors affiliated
with Oak Investment Partners and the Company shall have entered into a Share
Allocation Agreement in form and substance acceptable to the Oak-affiliated
Investors and the Company.
(h) Minimum Aggregate Purchase Price. At the Closing, the Investors
shall purchase Shares having an aggregate purchase price of at least
$19,000,000, provided that no Investor that has not paid for the Shares to be
purchased by it hereunder may use the failure of this condition to be achieved
as a reason for failure to tender the purchase price for the Shares to be
purchased by such Investor.
(i) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing hereby and all
documents and instruments incident to such transactions shall have be reasonably
satisfactory to Special Counsel, and the Investors and Special Counsel shall
have received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
(j) Reservation of Conversion Stock. The shares of the Conversion
Stock issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(k) Compliance with Laws. The purchase of the Shares by the Investors
hereunder shall be legally permitted by all laws and regulations to which the
Investors or the Company are subject.
(l) Board of Directors. The Company's board of directors at the
Closing shall consist of the following three members: Xxxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxx and Xxxxx Xxxxx.
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(m) Good Standing Certificates. The Company shall have delivered to
Special Counsel certificates dated as of a recent date issued by the Secretary
of State of Washington to the effect that the Company is validly existing.
(n) Secretary's Certificate. The Company shall have delivered to
Special Counsel a certificate executed by the Secretary of the Company dated as
of the Closing, certifying the following matters: (a) resolutions adopted by the
Company's Board of Directors and shareholders relating to the transactions
contemplated by this Agreement; (b) Restated Articles; (c) Bylaws of the
Company; (d) incumbency of officers of the Company; and (e) such other matters
as Special Counsel may reasonably request.
6. Conditions to Company's Obligations.
6.1 Conditions to Company's Obligations at the Closing. The
Company's obligation to sell and issue the Shares at the Closing is subject to
the fulfillment on or prior to the Closing Date of the following conditions, any
of which may be waived in whole or in part by the Company (unless the Company
shall have contributed in whole or in part to the nonoccurrence or
nonfulfillment of such condition):
(a) Representations and Warranties True. The representations and
warranties made by the Investors herein shall be true and correct on the Closing
Date with the same force and effect as if they had been made on and as of the
same date.
(b) Consents. The Company shall have obtained all consents, permits
and waivers necessary or appropriate for consummation of the transactions
contemplated by this Agreement which need to be obtained prior to the Closing.
(c) Articles of Incorporation. The Company shall have filed the
Restated Articles in substantially the form attached as Exhibit B with the
Secretary of State of the State of Washington on or prior to the Closing Date.
(d) Ancillary Agreements. The Investors Rights Agreement shall have
been executed by the Company and the Investors, and, for purposes of Section 4
thereof, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and X.X. Xxx.
(e) Minimum Aggregate Purchase Price; Payment. At the Closing, the
Investors shall purchase Shares having an aggregate purchase price of at least
$19,000,000. Each Investor shall have delivered the purchase price specified in
Section 1.2 against delivery by the Company to such Investor of the Shares set
forth in the Schedule of Investors attached hereto as Exhibit A.
(f) Compliance with all Laws. At the Closing, the purchase of the
Shares by the Investors hereunder shall be legally permitted by all laws and
regulations to which the Investors or the Company are subject.
(g) Proceedings and Documents. All corporate and other proceedings in
connection with the transaction contemplated at the Closing hereby, and all
documents and
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instruments incident to these transactions, shall be reasonably satisfactory in
substance to the Company and its counsel.
7. Covenants of the Company. The Company hereby covenants and agrees as
follows:
7.1 Financial Information. The Company will provide each Investor
with the reports specified in subsection (a) below and, for so long as the
Investor is a holder of a minimum of 250,000 Shares or an equivalent amount of
Conversion Stock or of an equivalent combination of Shares and Conversion Stock,
including for purposes of this Section 7 any such Shares or Conversion Stock
transferred to a constituent partner of an Investor, the reports specified in
subsections (b) and (c) below:
(a) As soon as practicable after the end of each fiscal year, and in
any event within ninety (90) days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such fiscal year, and
consolidated statements of operations, shareholders' equity and cash flows of
the Company and its subsidiaries, if any, for such year, prepared in accordance
with generally accepted accounting principles and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and audited (without qualification) by independent auditors of national
standing selected by the Company.
(b) As soon as practicable after the end of each quarter and in any
event within forty-five (45) days thereafter, a consolidated balance sheet of
the Company and its subsidiaries, if any, as of the end of each such quarter,
and consolidated statements of operations and cash flows of the Company and its
subsidiaries for such period and for the current fiscal year to date, and
setting forth in comparative form the figures for the comparable prior year
period and for the current fiscal year to date then reported, prepared in
accordance with generally accepted accounting principles (other than for
accompanying notes), subject to changes resulting from year-end audit
adjustments, all in reasonable detail.
(c) As soon as practicable after the end of each month and in any
event within thirty (30) days thereafter, a consolidated balance sheet of the
Company and its subsidiaries, if any, as of the end of each such month, and
consolidated statements of operations and cash flows of the Company and its
subsidiaries for such period and for the current fiscal year to date, and
setting forth in comparative form the budgeted figures for such period and for
the current fiscal year then reported, prepared in accordance with generally
accepted accounting principles (other than for accompanying notes), subject to
changes resulting from year-end audit adjustments, all in reasonable detail.
(d) A copy of the annual operating plan of the Company for the next
fiscal year and an annual budget for the next fiscal year of the Company
containing profit and loss projections, cash flow projections and capital
expenditures, all on a monthly basis, in the form approved by the Company's
board of directors, as soon as it is available but in any event prior to the end
of the current fiscal year.
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(e) The obligation of the Company to furnish financial information
under this Section 7.1 shall terminate upon a public offering or when the
Company becomes subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended.
7.2 Additional Information. For so long as an Investor is a holder
of at least 100,000 Shares, Conversion Stock or a combination thereof including
for the purposes of this Section 7 any such Shares or Conversion Stock
transferred to a constituent partner, the Company will deliver or provide to
such Investor with reasonable promptness, such other information and data,
including access to books, records, officers and accountants, with respect to
the Company and its subsidiaries as any such Investor may from time to time
reasonably request; provided, however, that the Company shall not be obligated
to provide any information that it considers in good faith to be a trade secret
or to contain confidential or classified information unless such Investor is a
member of the Company's Board of Directors or agrees to execute a reasonable
covenant or agreement regarding the maintenance of the confidentiality of such
information.
7.3 Assignment of Rights to Financial Information. Subject to the
limitations set forth in Sections 7.1 and 7.2, the rights granted pursuant to
Sections 7.1 and 7.2 may be assigned or otherwise conveyed by the Investors or
by any subsequent transferee to an investor who acquires a minimum of 100,000
Shares, Conversion Stock or a combination thereof, other than a competitor of
the Company, as reasonably determined by the Board of Directors of the Company,
excluding any director with an interest in such transferee, provided that
written notice of such assignment or conveyance is given to the Company.
7 4 Corporate Existence, Licenses and Permits; Maintenance of
Properties. So long as any of the Shares shall remain outstanding, the Company
will at all times cause to be done all things necessary to maintain, preserve
and renew its existence as a corporation organized under the laws of a state of
the United States of America (except in connection with a merger or
consolidation in which the Company is not the surviving corporation) and will do
all things reasonably necessary to preserve and keep in force and effect, and
cause each of its subsidiaries (if any) to preserve and keep in force and
effect, all patents, trademarks, service marks, trade names, copyrights, trade
secrets, proprietary rights, licenses and permits necessary and material to the
conduct of its and their respective businesses, and will maintain and keep, and
cause each of its subsidiaries (if any) to maintain and keep, its and their
properties in good repair, working order and condition (except for normal wear
and tear), and from time to time make all needful and proper repairs, renewals
and replacements.
7.5 Taxes. So long as any of the Shares shall remain outstanding,
the Company will duly pay and discharge, and will cause each of its subsidiaries
(if any) duly to pay and discharge, all taxes, assessments and governmental
charges upon or against the Company, its subsidiaries (if any) or their
respective properties, in each case before the same become delinquent and before
penalties accrue thereon, unless and to the extent that the same are being
contested in good faith by appropriate proceedings and the Company and its
subsidiaries (if any) shall have set aside on its books adequate reserves with
respect thereto.
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7.6 Insurance. So long as any of the Shares shall remain
outstanding, the Company will apply for and continue in full force and effect
adequate insurance covering the respective risks of the Company and its
subsidiaries (if any) of such types and in at least such amounts and with such
deductibles as are customary for other corporations engaged in similar lines of
business and with good and responsible insurance companies.
7.7 Books and Accounts. So long as any of the Shares shall remain
outstanding, the Company will, and will cause each subsidiary (if any) to,
maintain proper books of record and account in which full, true and correct
entries shall be made of its transactions and set aside on its books from its
earnings for each fiscal year all such proper reserves as in each case shall be
required in accordance with generally accepted accounting principles.
7.8 Rights of First Refusal, Etc. The Company will not waive any
right of first refusal of the Company on transfers of Common Stock by executive
officers, directors or founders without the approval of its board of directors.
7.9 Qualified Small Business Stock. The Company shall take all
reasonable efforts to avoid repurchasing any shares of the Company in a manner
that would cause the Shares purchased hereunder not to qualify as "Qualified
Small Business Stock" and comply with the reporting requirements of Section
1202(d) of the Code and any related Treasury regulations. In addition, within a
reasonable time (which shall not exceed 30 days) after any Investor delivers to
the Company a written request therefor, the Company shall deliver to such
Investor a written statement advising such Investor whether such Investor's
interest in the Company constitutes "qualified small business stock" as defined
n Section 1202(c) of the Code. The Company's obligation to furnish a written
statement pursuant to this Section 7.9 shall continue notwithstanding the fact
that a class of the Company's securities may be traded on an established
securities market.
7.10 Termination of Covenants. The covenants set forth in Sections
7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 and 7.4 (other than the Company's obligation
to furnish written statements pursuant to Code Section 1202(c) and the Treasury
Regulations thereunder) shall terminate and be of no further force or effect
upon the closing of the Company's initial underwritten public offering pursuant
to an effective registration statement filed by the Company under the 1933 Act
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan).
8. Miscellaneous.
8.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Washington as applied to agreements among
Washington residents, made and to be performed entirely within the State of
Washington.
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8.2 Survival. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by the Investors and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder as of the date of such certificate or instrument.
8.3 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.
8.4 Entire Agreement. This Agreement, the Exhibits and the other
documents delivered pursuant to this Agreement or contemplated hereby constitute
the full and entire understanding and agreement among the parties with regard to
the subjects hereof and thereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
8.5 Severability. In case any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided, however, that no such severability shall be effective if it
materially, changes the economic benefit of this Agreement to any party.
8.6 Amendment and Waiver. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of a majority of the
shares of the Conversion Stock (assuming for purposes of this Section 8.6
conversion of all then outstanding Shares), provided, however that any amendment
adversely affecting any individual holder only shall require the consent of such
holder. Any amendment or waiver effected in accordance with this Section 8.6
shall be binding upon each holder of any Shares or Conversion Stock purchased
under this Agreement at the time outstanding, each future holder of all such
securities and the Company.
8.7 Delays or Omissions. No delay or omission to exercise any right,
power, or remedy accruing to the Investors or any subsequent holder of any
Shares upon any breach, default or noncompliance of the Company under this
Agreement or under the Restated Articles, shall impair any such right, power, or
remedy, nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of any similar breach, default or
noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent, or approval of any kind or character on the Investors' part of
any breach, default or noncompliance under this Agreement or under the Restated
Articles or any waiver on the Investors' part 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, and that all remedies, either under this
Agreement, the Restated Articles, by law, or otherwise afforded to the
Investors, shall be cumulative and not alternative.
-19-
8.8 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon deposit with the United States Post Office, by
first class mail, postage prepaid, addressed: (a) if to an Investor, at such
Investor's address as set forth on the Schedule of Investors, or at such other
address as such Investor shall have furnished to the Company in writing, or (b)
if to the Company, at its address as set forth at the end of this Agreement, or
at such other address as the Company shall have furnished to the Investors in
writing.
8.9 Expenses. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
this Agreement. The Company shall also pay the fees and expenses of special
counsel ("Special Counsel") to the Investors in connection with the transactions
contemplated hereby up to a maximum aggregate amount of $20,000. If any action
at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the Investors Rights Agreement or the Restated Articles, the
prevailing party shall be entitled to reasonable attomey's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled at law or in equity.
8.10 Titles and Subtitles. The titles of the sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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The foregoing Series C Preferred Stock Purchase Agreement is executed
as of the date first above written.
COMPANY:
AVENUE A, INC.
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx, Chairman
Address: 0000 Xxxxx Xxx, Xxxxx 0000
Xxxxxxx, XX 00000
INVESTORS:
VOYAGER CAPITAL FUND I, L.P.
By: Voyager Capital Management, L.L.C.
Its General Partner
By:
----------------------------------
Xxxxxxx Xxxxxxx, Managing Director
VOYAGER CAPITAL FOUNDERS FUND, L.P.
By: Voyager Capital Management, L.L.C.
Its General Partner
By:
----------------------------------
Xxxxxxx Xxxxxxx, Managing Director
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The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
COMPANY:
AVENUE A, INC.
By:
-----------------------------------
Xxxxxxx Xxxxxxx, Chairman
Address: 0000 Xxxxx Xxx, Xxxxx 0000
Xxxxxxx, XX 00000
INVESTORS:
VOYAGER CAPITAL FUND I, L.P.
By: Voyager Capital Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx III
-----------------------------------
Xxxxxxx Xxxxxxx, Managing Director
VOYAGER CAPITAL FOUNDERS FUND, L.P.
By: Voyager Capital Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx Xxxxxxx III
-----------------------------------
Xxxxxxx Xxxxxxx, Managing Director
-22-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
OAK INVESTMENT PARTNERS VIII, L.P.
By: Oak Associates VIII, LLC
Its General Partners
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx, Managing Member
OAK VIII AFFILIATES FUND, L.P.
By: Oak VIII Affiliates Fund, L.L.C.
Its General Partner
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx, Managing Member
-23-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
U.S. VENTURE PARTNERS VI, L.P.
By: Presidio Management Group VI, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact
-24-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
KIRLAN VENTURE PARTNERS II, L.P.
By: Kirlan Venture Capital, Inc.
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx, President
-25-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
NORMAL H. NIE, TRUSTEE, XXXXXX X. XXX REVOCABLE
TRUST DATED 3/15/91
By: /s/ Xxxxxx Xxx
--------------------------
Xxxxxx Xxx, TRUSTEE
-26-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
MEDIA PARTNERS
By: /s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx, General Partner
-27-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
THE PHOENIX PARTNERS IV LIMITED PARTNERSHIP
By: Phoenix Management IV, L.L.C.
Its General Partner
By: /s/ D. B. J.
--------------------------------
Xxxxx X. Xxxxxxxx, Member
-28-
The foregoing Series C Preferred Stock Purchase Agreement is executed as of
the date first above written.
By: /s/ R. Xxxxxxx Xxx
--------------------------------
R. Xxxxxxx Xxx
-29-
