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EXHIBIT 10.2
PRINTCAFE, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
FEBRUARY 9, 2000
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TABLE OF CONTENTS
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1. Purchase and Sale of Preferred Stock..................................................1
1.1 Sale and Issuance of Series B Preferred Stock...................................1
1.2 Closing; Delivery...............................................................1
2. Representations and Warranties of the Company.........................................1
2.1 Organization, Good Standing and Qualification...................................2
2.2 Capitalization..................................................................2
2.3 Rights of Registration and Voting Rights........................................2
2.4 Subsidiaries; Joint Ventures....................................................3
2.5 Authorization...................................................................3
2.6 Valid Issuance of Securities....................................................3
2.7 Governmental Consents...........................................................4
2.8 Litigation......................................................................4
2.9 Intellectual Property...........................................................4
2.10 Confidential Information and Invention Assignment Agreements....................4
2.11 Compliance with Other Instruments...............................................5
2.12 Agreements; Action..............................................................5
2.13 No Conflict of Interest.........................................................6
2.14 Title to Property and Assets....................................................6
2.15 Financial Statements............................................................7
2.16 Changes.........................................................................7
2.17 Distributions...................................................................8
2.18 Tax Returns and Payments........................................................8
2.19 Insurance.......................................................................8
2.20 Employee Benefit Plans..........................................................8
2.21 Labor Agreements and Actions....................................................9
2.22 Compliance with Environmental Requirements......................................9
2.23 Permits.........................................................................9
2.24 Private Offering................................................................9
2.25 Brokers and Finders............................................................10
2.26 Certificate of Incorporation...................................................10
2.27 Bylaws and Minutes.............................................................10
2.28 Disclosure.....................................................................10
2.29 Compliance with Other Laws.....................................................10
2.30 Year 2000 Compliance...........................................................10
3. Interpretation.......................................................................11
4. Representations and Warranties of the Purchasers.....................................11
4.1 Authorization..................................................................11
4.2 Purchase Entirely for Own Account..............................................11
4.3 Disclosure of Information......................................................12
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TABLE OF CONTENTS
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4.4 Restricted Securities..........................................................12
4.5 No Public Market...............................................................12
4.6 Legends........................................................................12
4.7 Accredited Investor............................................................13
4.8 Foreign Investors..............................................................13
5. Covenants of the Company.............................................................13
5.1 Compliance.....................................................................13
5.2 Performance....................................................................13
5.3 Books and Records..............................................................13
5.4 Renewals and Good Standing.....................................................13
5.5 Principal Business.............................................................13
5.6 Proprietary Information and Assignment Agreement...............................14
5.7 Stock Options..................................................................14
5.8 Securities Filings.............................................................14
5.9 Survival of Company's Covenants................................................14
6. Conditions of the Purchasers' Obligations at the Closing.............................14
6.1 Representations and Warranties.................................................14
6.2 Performance....................................................................14
6.3 Compliance Certificate.........................................................15
6.4 Qualifications.................................................................15
6.5 Written Consents...............................................................15
6.6 Stock Certificates.............................................................15
6.7 Restated Certificate...........................................................15
6.8 Investors' Rights Agreement....................................................15
6.9 Co-Sale Agreement..............................................................15
6.10 Voting Agreement...............................................................15
6.11 Confidential Information and Invention Assignment Agreement....................15
6.12 No Material Adverse Change.....................................................15
6.13 Due Diligence..................................................................16
6.14 Company Legal Opinions.........................................................16
6.15 Closing of PSI Transaction.....................................................16
6.16 No Litigation..................................................................16
6.17 Proceedings and Documents......................................................16
6.19 Closing Documents..............................................................16
6.20 General........................................................................17
7. Conditions of the Company's Obligations at the Closing...............................17
7.1 Representations and Warranties.................................................17
7.2 Performance....................................................................17
7.3 Qualifications.................................................................17
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TABLE OF CONTENTS
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8. Miscellaneous........................................................................17
8.1 Survival of Warranties.........................................................17
8.2 Entire Agreement...............................................................17
8.3 Transfer; Successors and Assigns...............................................18
8.4 Governing Law..................................................................18
8.5 Counterparts...................................................................18
8.6 Titles and Subtitles...........................................................18
8.7 Notices........................................................................18
8.8 Finder's Fee...................................................................18
8.9 Attorney's Fees................................................................18
8.10 Amendments and Waivers of Agreement............................................19
8.11 Severability...................................................................19
8.12 Delays or Omissions............................................................19
8.13 Confidentiality................................................................19
8.14 Exculpation Among Purchasers...................................................20
8.15 Indemnification................................................................20
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PRINTCAFE, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This Series B Preferred Stock Purchase Agreement (this "Agreement") is
made as of February 9, 2000 by and among printCafe, Inc., a Delaware corporation
(the "Company"), and the investors listed on Exhibit A attached hereto (each a
"Purchaser" and together the "Purchasers").
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 SALE AND ISSUANCE OF SERIES B PREFERRED STOCK.
(a) The Company shall adopt and file with the Secretary of
State of the State of Delaware on or before the Closing (as defined in Section
1.2(a) below) the Amended and Restated Certificate of Incorporation in the form
attached hereto as Exhibit B (the "Restated Certificate").
(b) Subject to the terms and conditions of this Agreement,
each Purchaser agrees to purchase at the Closing, and the Company agrees to sell
and issue to each Purchaser at the Closing, that number of shares of the
Company's Series B Preferred Stock, $0.0001 par value per share ("Series B
Preferred Stock"), set forth opposite each such Purchaser's name on Exhibit A
attached hereto at a purchase price of $0.802 per share. The shares of Series B
Preferred Stock issued to the Purchasers pursuant to this Agreement shall be
hereinafter referred to as the "Stock."
1.2 DELIVERY.
(a) The purchase and sale of the Stock shall take place at
the executive offices of the Company, at 10:00 a.m., on February 9, 2000, or at
such other time and place as the Company and the Purchasers mutually agree upon,
orally or in writing (which time and place are designated as the "Closing").
(b) At the Closing, the Company shall deliver to each
Purchaser a certificate representing the Stock being purchased by such Purchaser
against payment of the purchase price therefor by check payable to the Company
or by wire transfer to the Company's bank account.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that (acknowledging that each
Purchaser is relying on the representations and warranties set forth in this
Section 2 in connection with the purchase of Stock by such Purchaser), except as
set forth on the Schedule of Exceptions attached hereto as Exhibit C:
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2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business. The Company is duly qualified as a foreign
corporation or is otherwise duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would, either
individually or in the aggregate, have a material adverse effect on its business
or properties.
2.2 CAPITALIZATION. Immediately prior to the Closing, the
authorized capital of the Company shall consist of:
(a) 44,000,000 shares of Preferred Stock, of which (i)
2,500,000 shares have been designated Series A Preferred Stock, 2,455,798 of
which will be issued and outstanding immediately prior to the Closing, (ii)
10,250,000 shares have been designated Series A-1 Preferred Stock, 9,725,096 of
which will be issued and outstanding immediately prior to the Closing, and (iii)
31,250,000 have been designated Series B Preferred Stock, none of which will be
issued and outstanding immediately prior to the Closing. The rights, privileges
and preferences of the Preferred Stock are as stated in the Restated
Certificate. All of the outstanding shares of Preferred Stock have been duly
authorized, fully paid and nonassessable and issued in compliance with all
applicable federal and state securities laws.
(b) 150,000,000 shares of Common Stock, of which (i)
118,750,000 have been designated Class A Common Stock, 5,886,656 shares of which
are issued and outstanding immediately prior to the Closing, and (ii) 31,250,000
have been designated Class B Common Stock, no shares of which are issued and
outstanding immediately prior to the Closing. All of the outstanding shares of
Common Stock have been duly authorized, fully paid and are nonassessable and
issued in compliance with all applicable federal and state securities laws.
(c) The Company has reserved 382,215 shares of Common
Stock and 516,976 shares of Series A-1 Preferred Stock (collectively, "Option
Stock") for issuance to officers, directors, employees and consultants of the
Company pursuant to its 1999 Revised Stock Plan duly adopted by the Board of
Directors and approved by the Company's stockholders (the "Stock Plan"). Of such
reserved shares of Option Stock, no shares have been issued pursuant to
restricted stock purchase agreements, options to purchase 382,215 shares of
Common Stock and 516,976 shares of Series A-1 Preferred Stock have been granted
and are currently outstanding, and no shares of Common Stock remain available
for issuance to officers, directors, employees and consultants pursuant to the
Stock Plan.
(d) Except for outstanding options issued pursuant to the
Stock Plan, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal or similar rights)
or agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
2.3 RIGHTS OF REGISTRATION AND VOTING RIGHTS. Except as
contemplated in the Investors' Rights Agreement, in the form attached hereto as
Exhibit D (the "Investors' Rights Agreement"), the Company has not granted or
agreed to grant any registration rights, including
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piggyback registration rights, to any person or entity. To the Company's
knowledge, except as contemplated in the Voting Agreement, in the form attached
hereto as Exhibit E (the "Voting Agreement"), no stockholder of the Company has
entered into any agreements with respect to the voting of capital stock of the
Company. Except as contemplated by the Restated Certificate, the Voting
Agreement and the Right of First Refusal and Co-Sale Agreement, in the form
attached hereto as Exhibit F (the "Co-Sale Agreement"), there are no
stockholders agreements, pledge agreements, buy-sell arrangements, rights of
first refusal or proxies related to any securities of the Company to which the
Company is subject or a party or to which, to the Company's knowledge, any
stockholder, officer, director or affiliate of the Company is a party or
subject.
2.4 SUBSIDIARIES; JOINT VENTURES. The Company does not
currently own or control, directly or indirectly, any interest in any other
corporation, association, or other business entity other than the subsidiaries
set forth on Schedule 2.4 of the Schedule of Exceptions (the "Subsidiaries").
The Company is not a participant in any joint venture, partnership or similar
arrangement.
2.5 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the Investors' Rights
Agreement, the Voting Agreement and the Co-Sale Agreement (collectively, the
"Transaction Documents"), the performance of all obligations of the Company
hereunder and thereunder and the authorization, issuance and delivery of the
Stock and the Common Stock issuable upon conversion of the Stock (together, the
"Securities") has been taken or will be taken prior to the Closing, and the
Transaction Documents, when executed and delivered by the Company, shall
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors' rights generally, as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies, or (ii) to
the extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
2.6 VALID ISSUANCE OF SECURITIES. The Stock that is being issued
to the Purchasers hereunder, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free and clear of all
preemptive rights, rights of first refusal, liens, charges, restrictions, claims
and any other encumbrances imposed by or through the Company other than
restrictions on transfer under this Agreement, the Investors' Rights Agreement,
the Co-Sale Agreement and applicable state and federal securities laws of the
United States and, where applicable, provincial securities laws of Canada. Based
in part upon the representations of the Purchasers in this Agreement and subject
to the provisions of Section 2.7 below, the Stock will be issued in compliance
with all applicable federal and state securities laws. The Common Stock issuable
upon conversion of the Stock has been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Restated Certificate,
shall be duly and validly issued, fully paid and nonassessable and free and
clear of all preemptive rights, rights of first refusal, liens, charges,
restrictions, claims and any other encumbrances imposed by or through the
Company
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other than restrictions on transfer under this Agreement, the Investors' Rights
Agreement, the Co-Sale Agreement and applicable federal and state securities
laws and will be issued in compliance with all applicable federal and state
securities laws of the United States and, where applicable, provincial
securities laws of Canada.
2.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority of the United
States, or, where applicable, any federal, provincial or local government
authority of Canada, on the part of the Company is required in connection with
the consummation of the transactions contemplated by this Agreement, except for
filings pursuant to applicable state and, where applicable, provincial
securities laws and Regulation D of the Securities Act of 1933, as amended (the
"Securities Act"). The offer, sale and issuance of the Stock, in accordance with
the terms hereof for the consideration expressed herein, are exempt from the
registration requirements of Section 5 of the Securities Act and from the
qualification requirements of applicable state securities laws.
2.8 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its subsidiaries, or any basis therefor known to
the Company, that questions the validity of the Transaction Documents or the
right of the Company to enter into them, or to consummate the transactions
contemplated hereby or thereby, or that might result, either individually or in
the aggregate, in any material adverse change in the financial condition,
assets, liabilities, operations or financial performance of the Company,
financially or otherwise, or any change in the current equity ownership of the
Company. Neither the Company nor any of its subsidiaries is a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company or any of its subsidiaries currently
pending or which the Company or any of its subsidiaries intends to initiate. The
foregoing includes, without limitation, actions pending or threatened (or any
basis therefor known to the Company) involving the prior employment of any of
the Company's employees, their use in connection with the Company's business of
any information or technologies allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employees.
2.9 INTELLECTUAL PROPERTY. To the Company's knowledge, (i) the
Company owns or possesses sufficient legal rights to all patents, trademarks,
service marks, tradenames, copyrights, trade secrets, licenses, information and
proprietary rights and processes (collectively, "Intellectual Property")
necessary for its business without any conflict with, or infringement of, the
rights of others; and (ii) no third party is infringing or violating any of the
Company's Intellectual Property. The Company has not received any written
communications alleging that the Company has violated or, by conducting its
business, would violate any of the Intellectual Property of any other person or
entity. There are no outstanding options, licenses or agreements of any kind
related to the foregoing, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the Intellectual Property of
any other forms.
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2.10 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT
AGREEMENTS. Each director, officer, independent contractor, consultant and
employee of the Company (collectively, "Service Providers") have entered into an
agreement with the Company, substantially in the form or forms delivered to the
Purchasers, regarding confidentiality, non-solicitation of employees and
customers and assignment of all Intellectual Property, technical information and
other information developed and/or worked on by such Service Provider while
employed or engaged with the Company (each, a "Confidentiality and Invention
Assignment Agreement"). To the Company's knowledge, (i) no past or present
Service Provider is in violation of any term of any Confidentiality and
Invention Assignment Agreement between the Company and such Service Provider;
and (ii) it is not nor will it be necessary to use any inventions of any of its
Service Providers (or persons it currently intends to hire) made prior to their
employment or engagement by the Company. Each Service Provider hired or engaged
by the Company after the date hereof shall, prior to their employment or
engagement with the Company, enter into a Confidentiality and Invention
Assignment Agreement with the Company.
2.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation in any material respect or default of any provisions of its Restated
Certificate or Bylaws or of any provision, instrument, agreement, commitment,
arrangement, license, judgment, order, writ, decree or contract to which it is a
party or by which it is bound or, to its knowledge, of any provision of federal
or state statute, rule or regulation applicable to the Company, which violation
or default is reasonably likely to result in a material adverse effect on the
financial condition, assets, liabilities, operations or financial performance of
the Company. No event has occurred which with the passage of time or the giving
of notice, or both, would constitute a material breach of or default under any
of the foregoing, which material violation or breach or default is reasonably
likely to result in a material adverse effect on the financial condition,
assets, liabilities, operations or financial performance of the Company. The
execution, delivery and performance of the Transaction Documents and the
consummation of the transactions contemplated thereby will not result in any
such violation or breach or be in conflict with or constitute, with or without
the passage of time and giving of notice, either a default under any such
provision, agreement, commitment, arrangement, license, instrument, judgment,
order, writ, decree or contract or an event which results in the creation of any
lien, charge or encumbrance upon any assets of the Company. Neither the
execution or delivery of this Agreement, nor the carrying on of the Company's
business by the employees of the Company, nor the conduct of the Company's
business as proposed, will, to the Company's knowledge, conflict in any material
respect with or result in a material breach of the terms, conditions, or
provisions of, or constitute a default under, any contract, covenant or
instrument under which any of the Company's employees is now obligated.
2.12 AGREEMENTS; ACTION.
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates
or any affiliate thereof.
(b) Except as explicitly contemplated by the Transaction
Documents, there are no agreements, understandings, instruments, contracts or
proposed transactions to
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which the Company or any of its subsidiaries is a party or by which it is bound
that involve (i) obligations (contingent or otherwise) of, or payments to, the
Company or any of its subsidiaries in excess of $50,000, (ii) the license of any
patent, copyright, trade secret or other proprietary right to or from the
Company or any of its subsidiaries, or (iii) the grant of rights to manufacture,
produce, assemble, license, market, or sell its products to any other person or
affect the Company's exclusive right to develop, manufacture, assemble,
distribute, market or sell its products.
(c) Neither the Company nor any of its subsidiaries has
(i) declared or paid any dividends, or authorized or made any distribution upon
or with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $50,000 or in excess of $100,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances to the Company's
employees for business expenses, or (iv) sold, exchanged or otherwise disposed
of any of its assets or rights, other than the sale of its inventory in the
ordinary course of business.
(d) Except as disclosed in Section 2.12 of the Schedule of
Exceptions or as set out in the Transaction Documents, the Company has not
entered into any binding letters of intent with any corporation, partnership,
association, other business entity or any individual regarding (i) the
consolidation or merger of the Company with or into any such corporation or
other business entity, (ii) the sale, conveyance or disposition of all or
substantially all of the assets of the Company or a transaction or series of
transactions in which more than 50% of the voting power of the company is
disposed of, or (iii) any other form of acquisition, liquidation, dissolution or
winding-up of the Company.
2.13 NO CONFLICT OF INTEREST. The Company is not indebted,
directly or indirectly, to any of its officers or directors, in any amount
whatsoever, other than in connection with expenses or advances of expenses
incurred in the ordinary course of business or relocation expenses of employees.
To the Company's knowledge, none of the Company's officers or directors are,
directly or indirectly, indebted to the Company (other than in connection with
purchases of the Company's stock) or have any direct or indirect ownership
interest in any firm or corporation with which the Company is affiliated or with
which the Company has a business relationship, or any firm or corporation which
competes with the Company (other than ownership of stock in, but not exceeding
two percent (2%) of the outstanding capital stock of, any publicly traded
company that competes with the Company). To the Company's knowledge, none of the
Company's officers or directors are, directly or indirectly, interested in any
material contract with the Company. The Company is not a guarantor of any
indebtedness of any other person, firm or corporation.
2.14 TITLE TO PROPERTY AND ASSETS. The Company has good and valid
title to all of its properties and assets, both real and personal, and has good
title to all its leasehold interests, in each case free and clear of all
mortgages, liens, pledges, loans, security interests, conditional sales
agreements, encumbrances or charges, except for Permitted Liens (as defined
below). The Company owns or leases all properties and assets reasonably
necessary to the operation of its business as now conducted. With respect to the
property and assets it leases, the
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Company is in compliance with such leases and, to the Company's knowledge, holds
a valid leasehold interest free of any liens, claims or encumbrances, except for
Permitted Liens. For purposes of this Agreement, "Permitted Liens" shall mean
any (a) mechanics', carriers', workers' and other similar liens arising in the
ordinary course of business which are not delinquent and which in the aggregate
are not material in amount, and do not interfere with the present use of the
assets of the Company to which they apply; (b) liens for current taxes and
assessments not yet due and payable; (c) liens and encumbrances that have arisen
in the ordinary course of business and that do not (in any case or in the
aggregate) materially detract from the value of the assets subject thereto or
materially impair the operations of the Company; and (d) with respect to any
asset of the Company which consists of a leasehold or other possessory interest
in real property, all encumbrances, covenants, imperfections in title,
easements, restrictions and other title matters (whether or not the same are
recorded) not known to the Company to which the underlying fee estate in such
real property is subject which were not created by or incurred by the Company.
2.15 FINANCIAL STATEMENTS. Attached hereto as Exhibit G are the
unaudited balance sheet of the Company as of September 30, 1999, together with
an unaudited statement of income and expenses and statement of cash flows for
the nine month period ended September 30, 1999 (collectively, the "Financial
Statements"). The Financial Statements are complete and in accordance with the
books and records of the Company and fairly present the financial position of
the Company on the dates thereof. The Financial Statements fairly set out and
describe the financial condition and operating results of the Company as of the
dates, and for the periods, indicated therein, subject to the lack of footnote
disclosures and normal year-end audit adjustments. Except as set forth in the
Financial Statements, the Company has no material liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to September 30, 1999, (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in the Financial
Statements, and (iii) performance obligations of the Company under the
Transaction Documents.
2.16 CHANGES. Since September 30, 1999 there has not been:
(a) any change in the assets, liabilities, financial
condition or operating results of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business that
have not been, in the aggregate, materially adverse;
(b) any damage, destruction, loss or other occurrence or
development materially and adversely affecting the business, properties or
financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable
right or any material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, business, properties
or financial condition or operating results of the Company;
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(e) any material change or amendment to a material
contract or agreement by which the Company or any of its assets or properties is
bound or subject;
(f) any material change or amendment in any compensation
arrangement or agreement with any employee, officer, director or stockholder;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any
officer or key employee of the Company; and the Company, is not aware of any
impending resignation or termination of employment of any such officer or key
employee;
(i) any mortgage, pledge, transfer of a security interest
in, or lien, created by the Company, with respect to any of its material
properties or assets, except for Permitted Liens;
(j) any loans or guarantees made by the Company to or for
the benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(k) any declaration, setting aside or payment or other
distribution in respect to any of the Company's capital stock, or any direct or
indirect redemption, purchase, or other acquisition of any of such stock by the
Company;
(l) to the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
business, properties or financial condition of the Company; or
(m) any arrangement or commitment by the Company to do any
of the things described in this Section 2.16.
2.17 DISTRIBUTIONS. There has been no declaration or payment by
the Company of any dividend, nor any distribution by the Company of any assets
of any kind, to any of its stockholders.
2.18 TAX RETURNS AND PAYMENTS. The Company has filed all tax
returns and reports as required by applicable law and such tax returns and
reports are true and correct in all material respects. The Company has paid all
taxes, fees, assessments and other governmental charges upon the Company, or
upon any of its properties, income, or franchises, shown in such returns and on
assessments received by the Company to be due as of the date hereof and no such
taxes or assessments are being contested.
2.19 INSURANCE. The Company has in full force and effect fire
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
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2.20 EMPLOYEE BENEFIT PLANS. The Company has previously provided
to the Purchasers or Purchasers' counsel copies of all currently effective
employment contracts, deferred compensation arrangements, bonus plans, incentive
plans, profit sharing plans, retirement agreements or other employee
compensation agreements, and disclosed the existence of such plans and
agreements in Section 2.20 of the Schedule of Exceptions. The Company does not
have any Employee Benefit Plan as defined in the Employee Retirement Income
Security Act of 1974, as amended.
2.21 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by
or subject to (and none of its assets or properties is bound by or subject to)
any written or oral, express or implied, contract, commitment or arrangement
with any labor union, and no labor union has requested or, to the knowledge of
the Company, has sought to represent any of the employees, representatives or
agents of the Company. There is no strike or other labor dispute involving the
Company pending, or to the knowledge of the Company threatened, which could have
a material adverse effect on the financial condition, assets, liabilities,
operations or financial performance of the Company, nor is the Company aware of
any labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company. To
its knowledge, the Company has complied in all material respects with all
applicable state and federal equal employment opportunity laws and with other
laws related to employment.
2.22 COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. To the
Company's knowledge, it has obtained all material permits, licenses and other
authorizations required under federal, state and local laws relating to
pollution or protection of the environment. The Company has not violated any
applicable Environmental Law, the violation of which is reasonably likely to
result in a material adverse change in the financial condition, assets,
liabilities, operations or financial performance of the Company. To the
knowledge of the Company, there are no present requirements of any applicable
Environmental Law which is due to be imposed upon it which will materially
increase its cost of complying with the Environmental Laws. All past on-site
generation, treatment, storage and disposal of Waste, including Hazardous Waste,
by the Company and, to its knowledge, by its predecessors have been done in
compliance with the currently applicable Environmental Laws, and all past
off-site treatment, storage and disposal of Waste, including Hazardous Waste,
generated by the Company and, to its knowledge, by its predecessors have been
done in compliance with the currently applicable Environmental Laws. As used in
this Agreement, the terms (i) "Environmental Laws" include, but are not limited
to, any federal, state or local law, statute, charter or ordinance, and any
rule, regulation, binding interpretation, binding policy, permit, order, court
order or consent decree issued pursuant to any of the foregoing, which pertains
to, governs or otherwise regulates any of the following activities, including,
without limitation, (a) the emission, discharge, release or spilling of any
substance into the air, surface water, groundwater, soil or substrata; (b) the
manufacturing, processing, sale, generation, treatment, storage, disposal
labeling or other management of any Waste, Hazardous Substance or Hazardous
Waste, and (ii) "Waste," "Hazardous Substance," and "Hazardous Waste" include
any substance defined as such by any applicable Environmental Law.
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2.23 PERMITS. The Company and each of its subsidiaries has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business, the lack of which could materially and adversely affect
the business, properties or financial condition of the Company and, to its
knowledge, it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Company is not
in default in any material respect under any of such franchises, permits,
licenses or other similar authority.
2.24 PRIVATE OFFERING. Neither the Company nor anyone acting on
its behalf has offered any of the Stock or similar securities for issuance or
sale to, or solicited any offer to acquire any of the same from, anyone so as to
make the issuance and sale of the Stock subject to registration requirements of
Section 5 of the Securities Act.
2.25 BROKERS AND FINDERS. The Company has not retained any
investment banker, broker, finder or any other third party in connection with
the transactions contemplated by this Agreement, except that the Company has
retained McDonald Investments to act as its agent with respect to certain
placements of the Stock offered hereby.
2.26 CERTIFICATE OF INCORPORATION. At the time of Closing, the
Company's certificate of incorporation on file with the Secretary of the State
of Delaware shall be in the form of the Restated Certificate, and no action
shall have been taken to amend or modify such Restated Certificate.
2.27 BYLAWS. The Bylaws of the Company are in the form attached
hereto as Exhibit H and no action has been taken to amend or modify such Bylaws.
2.28 DISCLOSURE. The Company has provided the Purchasers with
all the information that the Purchasers have requested for deciding whether to
acquire the Stock. This Agreement, including all representations herein by the
Company, and any exhibits hereto and the historical and factual information
contained in the Company's Confidential Information Memorandum dated December,
1999 (the "Memorandum") or any certificate furnished or to be furnished to
Purchasers at the Closing, taken together, do not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein or therein not misleading in light of the
circumstances under which they were made. The projections set forth in the
Memorandum were prepared by the Company in good faith based upon assumptions
which the Company deemed reasonable.
2.29 COMPLIANCE WITH OTHER LAWS. The Company has complied in
all material respects with all laws, statutes, rules, regulations and orders of,
and, to its knowledge, has secured all necessary permits and authorizations and
licenses issued by, federal, state, local and foreign agencies and authorities,
applicable to its business, properties and operations.
2.30 YEAR 2000 COMPLIANCE. To the Company's knowledge, each item
of software and hardware that has been developed by the Company is Year 2000
Compliant (as defined below). For purposes of this Section 2.30, an item of
software or hardware shall be deemed to be "Year 2000 Compliant" only if
operating on a stand-alone basis without reference
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to dates supplied by third party software or hardware: (i) the functions,
calculations, and other computing processes of such item of software or hardware
(collectively, "Processes") perform without interruption related to the
processing of date data representing calendar dates before, on or after January
1, 2000; (ii) such item of software or hardware accepts, calculates, compares,
sorts, extracts, sequences and otherwise processes date inputs and date values,
and returns and displays date values, without interruption related to the
processing of date data representing calendar dates before, on or after January
1, 2000; (iii) such item of software or hardware stores and displays date
information without interruption related to the processing of date data
representing calendar dates before, on or after January 1, 2000; and (iv) such
item of software or hardware determines leap years without interruption related
to the processing of date data representing calendar dates before, on or after
January 1, 2000, unless, in each case, such interruption related to the
processing of date data representing calendar dates before, on or after January
1, 2000 is caused by external sources, such as in third party operating systems,
data, or other applications not supplied by the Company, or with respect to
incorrect or two-digit date information provided by the user, third party
operating systems or from any other external product, source or interface.
3. INTERPRETATION.
(a) For the purposes of the representations and warranties
contained in Section 2, whenever "to the Company's knowledge" or "to its
knowledge" is used, it means to the knowledge of the officers and directors of
the Company after making such diligent inquiry as may be reasonable under the
circumstances.
(b) For the purposes of the representations and warranties
contained in Section 2, all references to the "Company" shall be deemed to
include Programmed Solutions, Inc. and the Subsidiaries.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company that:
4.1 AUTHORIZATION. Such Purchaser has full power and authority
to enter into the Transaction Documents. The Transaction Documents, when
executed and delivered by the Purchaser, will constitute valid and legally
binding obligations of the Purchaser, enforceable in accordance with their
respective terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors' rights generally, and as limited
by laws relating to the availability of a specific performance, injunctive
relief, or other equitable remedies, or (b) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with the Purchaser in reliance upon the Purchaser's representations to the
Company, which by the Purchaser's execution of this Agreement, the Purchaser
hereby confirms, that the Securities to be acquired by the Purchaser will be
acquired for investment for the Purchaser's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof in
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violation of the Securities Act, and that the Purchaser has no present intention
of selling, granting any participation in, or otherwise distributing the same in
violation of the Securities Act. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
4.3 DISCLOSURE OF INFORMATION. The Purchaser has had an
opportunity to discuss the Company's business, management, financial affairs and
the terms and conditions of the offering of the Stock with the Company's
management and has had an opportunity to review the Company's facilities. The
Purchaser understands that such discussions, as well as any other written
information delivered by the Company to the Purchaser, were intended to describe
the aspects of the Company's business which it believes to be material.
4.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Purchaser must hold the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale
except as set forth in the Investors' Rights Agreement. The Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements, including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy except as specifically provided in the Investors' Rights Agreement.
4.5 NO PUBLIC MARKET. The Purchaser understands that no public
market now exists for any of the securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Securities.
4.6 LEGENDS. The Purchaser understands that the Securities,
and any securities issued in respect of or exchange for the Securities, may bear
one or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM
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SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Transaction
Documents.
(c) Any legend required by the Blue Sky laws of any state
to the extent such laws are applicable to the shares represented by the
certificate so legended.
4.7 ACCREDITED INVESTOR. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
4.8 FOREIGN INVESTORS. If the Purchaser is not a United States
person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended), such Purchaser hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale, or transfer of the Securities. Such
Purchaser's subscription and payment for and continued beneficial ownership of
the Securities, will not violate any applicable securities or other laws of the
Purchaser's jurisdiction.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
Purchaser that:
5.1 COMPLIANCE. The Company shall comply with all laws, rules,
regulations and orders, the non-compliance with which could materially and
adversely affect the financial condition, assets, liabilities, operations or
financial performance of the Company or its obligations under this Agreement or
any other agreement with each Purchaser.
5.2 PERFORMANCE. The Company shall diligently observe and
perform or cause to be observed and performed all covenants to be observed or
performed under the Transaction Documents and under any other agreement between
the Company and each Purchaser.
5.3 BOOKS AND RECORDS. The Company shall maintain complete and
accurate records and books of account in which entries shall be made in
accordance with generally accepted accounting principles consistently applied,
reflecting all transactions of the Company and its subsidiaries, if any.
5.4 RENEWALS AND GOOD STANDING. The Company shall (a) do all
things necessary to obtain, promptly renew and maintain in good standing from
time to time, all approvals, leases, licenses, permits and consents as are
required to own, develop and operate the business, assets or operations of the
Company and undertaking, except where the failure to obtain, renew or maintain
in good standing such approvals, leases, licenses, permits and consents
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is not reasonably likely to result in a material adverse change in the Company's
financial condition, assets, liabilities, operations or financial performance
and (b) perform its obligations under this Agreement and all other agreements
between the Company and each Purchaser.
5.5 PRINCIPAL BUSINESS. Prior to the initial public offering of
the Company's Common Stock, the Company shall not change its principal business
or engage in any other business from that which it is engaged on the date of
this Agreement without the written consent of at least two-thirds of the holders
of shares of Stock converted or convertible into Common Stock.
5.6 PROPRIETARY INFORMATION AND ASSIGNMENT AGREEMENT. The
Company shall require all future officers, directors and employees of the
Company and each subsidiary of the Company to execute and deliver a proprietary
information and assignment agreement and shall require all future consultants
and independent contractors to the Company to execute and deliver a consulting
agreement which provides substantially similar protection from misappropriation
to the intellectual property of the Company.
5.7 STOCK OPTIONS. All stock options granted by the Company
shall have a term of ten (10) years and shall be exercisable, over time, based
upon continued employment over a vesting period to be determined by the
Company's Board of Directors. The per share exercise price of all options
granted by the Company will be no less than the fair market value on the date of
grant as determined by the Board of Directors in good faith. Unless otherwise
specifically approved by the Board of Directors, options granted by the Company
will not accelerate upon a change of control of the Company or any subsidiary of
the Company.
5.8 SECURITIES FILINGS. On Closing or within the prescribed
time after Closing, the Company shall file all documents and take all
proceedings required to be taken by it to permit the Stock to be distributed to
each Purchaser in compliance with applicable federal and state securities laws
and the applicable securities legislation in Canada.
5.9 SURVIVAL OF COMPANY'S COVENANTS. The covenants of the
Company set forth in this Section 5 will survive the completion of the
transactions contemplated by this Agreement and will continue in full force and
effect for the benefit of each Purchaser until the earlier to occur of (a) five
(5) years from the Closing, or (b) the consummation of a firm commitment
underwritten public offering by the Company of shares of its Common Stock
pursuant to a registration statement under the Securities Act, the public
offering price of which is not less than $11.50 per share (appropriately
adjusted for any stock split, dividend, combination or other recapitalization)
and which results in aggregate gross cash proceeds to the Company of at least
$30,000,000 (before underwriting discounts and commissions).
6. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT THE CLOSING. The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of
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the Closing with the same effect as though such representations and warranties
had been made on and as of the date of the Closing.
6.2 PERFORMANCE. The Company shall have performed and complied
in all material respects with all covenants, agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.
6.3 COMPLIANCE CERTIFICATE. The President or CEO of the
Company shall deliver to the Purchasers at the Closing a certificate certifying
that the conditions specified in Sections 6.1 and 6.2 have been fulfilled.
6.4 QUALIFICATIONS. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required to be obtained prior to the Closing in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
be obtained and effective as of the Closing.
6.5 WRITTEN CONSENTS. The Company shall have obtained and
delivered to the Purchasers any and all written waivers, permits, consents and
approvals required to be obtained prior to the Closing in connection with the
consummation of the transactions contemplated by the Transaction Documents in a
form and content reasonably acceptable to the Purchasers.
6.6 STOCK CERTIFICATES. The Company shall have delivered to
the Purchasers stock certificates in form and content acceptable to the
Purchasers and sufficient to transfer to and vest in each Purchaser good and
valid title to the purchased Stock free of any lien created by or through the
Company.
6.7 RESTATED CERTIFICATE. The Company shall have filed the
Restated Certificate with the Department of State of the State of Delaware on or
prior to the Closing, which shall continue to be in full force and effect as of
the Closing.
6.8 INVESTORS' RIGHTS AGREEMENT. The Company and each
Purchaser shall have executed and delivered the Investors' Rights Agreement in
substantially the form attached as Exhibit D.
6.9 CO-SALE AGREEMENT. The Company, each Purchaser and the
holders of Common Stock, Series A Preferred Stock and Series A-1 Preferred Stock
identified therein shall have executed and delivered the Co-Sale Agreement in
substantially the form attached as Exhibit F
6.10 VOTING AGREEMENT. The Company, each Purchaser and the
holders of Common Stock, Series A Preferred Stock and Series A-1 Preferred Stock
identified therein shall have executed and delivered the Voting Agreement in
substantially the form attached as Exhibit E
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6.11 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT
AGREEMENT. The Company and each of its Service Providers (other than as set
forth on Section 2.10 of the Schedule of Exceptions) shall have entered into a
Confidential Information and Invention Assignment Agreement, in substantially
the form provided to the Purchasers.
6.12 NO MATERIAL ADVERSE CHANGE. Except as set forth on the
Schedule of Exceptions, there shall have been no material adverse change in the
Company's financial condition, assets, liabilities, operations or financial
performance since September 30, 1999 (it being understood that none of the
following shall be deemed, in and of itself, to constitute a material adverse
change in the financial condition, assets, liabilities, operations or financial
performance of the Company since September 30, 1999: (a) a change that results
from conditions generally affecting the U.S. economy or the world economy, (b) a
change that results from conditions generally affecting the Company's industry,
(c) a change that results from the announcement or pendency of the transactions
contemplated hereby and (d) a change that results from the taking of any action
required by this Agreement).
6.13 DUE DILIGENCE. The Purchasers shall have completed and be
satisfied with their due diligence investigation into the Company, in the
Purchasers' reasonable discretion.
6.14 COMPANY LEGAL OPINIONS. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP, special counsel for the Company, shall have delivered a legal opinion to
the Purchasers in the form attached hereto as Exhibit J, and ▇▇▇▇▇▇ D'▇▇▇▇▇▇,
in-house counsel for the Company, shall have delivered a legal opinion to the
Purchasers in the form attached hereto as Exhibit K.
6.15...CLOSING OF PSI TRANSACTION. The purchase of all of the
issued and outstanding shares of PSI, in accordance with a Stock Purchase
Agreement dated as of January 13, 2000 between the Company and PSI, shall close
simultaneously with the closing of the transactions contemplated hereby.
6.16 NO LITIGATION. There shall be no action, suit or
proceeding or investigation instituted or threatened to set aside the
transactions provided for herein or to enjoin or prevent the consummation of the
transactions contemplated hereby.
6.17 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 in form and
substance satisfactory to each Purchaser and its counsel and each Purchaser
shall have received all such counterpart originals or certified or other copies
of such documents as it may reasonably request.
6.18 BOARD OF DIRECTORS. The Company shall have reconstituted
the Board of Directors of the Company in accordance with the Voting Agreement
and the Company shall have entered into indemnity agreements with each of the
directors in the form attached hereto as Exhibit I ..
6.19 CLOSING DOCUMENTS. The Company shall have delivered the
following documents to each of the Purchasers:
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(a) copies certified by the Secretary of the Company of
the resolutions duly adopted by the Company's board of directors authorizing and
approving: (i) the execution, delivery and performance of the Transaction
Documents and each of the other agreements contemplated hereby, (ii) the
Restated Certificate and the filing of the Restated Certificate with the
Secretary of the State of Delaware, (iii) the reservation for issuance upon
conversion of the Series B Preferred Stock of an aggregate number of shares of
Common Stock equal to the total number of shares initially issuable upon
conversion, (iv) the issuance and sale of the Series B Preferred Stock, and (v)
the consummation of all other transactions contemplated by the Transaction
Documents;
(b) copies certified by the Secretary of the Company of
the resolutions of the Company's stockholders authorizing and approving the
Restated Certificate and the filing of the Restated Certificate with the
Delaware Secretary of the State;
(c) copies certified by the Secretary of the Company of
the Restated Certificate (as filed with the Delaware Secretary of the State) and
the Company's Bylaws, each as in effect at the Closing; and
(d) such other documents relating to the transactions
contemplated by this Agreement as the Purchasers or their counsel may reasonably
request.
6.20 GENERAL.
(a) Each Purchasers obligations under Section 1 shall be
contingent upon the performance by each other Purchaser of its obligations under
Section 1.
(b) In any event the Purchasers may in their sole
discretion waive any conditions to the Closing and close. No such waiver shall
be effective unless it shall be in writing and signed by each Purchaser.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Section 4 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
7.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to the
Closing shall have been performed or complied with in all material respects.
7.3 QUALIFICATIONS. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in
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connection with the lawful issuance and sale of the Stock pursuant to this
Agreement shall be obtained and effective as of the Closing.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties and representations of the Company contained in
Section 2 hereof shall survive the execution and delivery of this Agreement and
the Closing for a period of two (2) years following the Closing.
8.2 ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents constitute the entire agreement between the Company and the Purchasers
relative to the subject matter hereof and thereof. Any previous agreement or
negotiations between the Company and the Purchasers concerning the subject
matter hereof is superseded by this Agreement and the Transaction Documents
except for any agreements relating to confidentiality.
8.3 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
8.4 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law.
8.5 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.6 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.7 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or five
(5) days after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at such
party's address as set forth on the signature page or Exhibit A hereto, or as
subsequently modified by written notice, and if to the Company, with a copy (not
constituting notice) to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇.
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8.8 FINDER'S FEE. Each party represents that it neither is nor
will be obligated for any finder's fee or commission in connection with this
transaction except as set forth on the Schedule of Exceptions. Each Purchaser
agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
such Purchaser or any of its officers, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Purchaser
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
8.9 ATTORNEY'S FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of any of
the Transaction Documents, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.10 AMENDMENTS AND WAIVERS OF AGREEMENT. Any term of this
Agreement may be amended or waived only with the written consent of the Company
and at least two-thirds of the holders of shares of Stock converted or
convertible into the Common Stock. Any amendment or waiver effected in
accordance with this Section 8.10 shall be binding upon the Purchasers and each
transferee of the Stock (or the Common Stock issuable upon conversion thereof),
each future holder of all such securities, and the Company.
8.11 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of
this Agreement shall be interpreted as if such provision were so excluded and
(c) the balance of this Agreement shall be enforceable in accordance with its
terms.
8.12 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and signed
by the party charged with such waiver and such waiver 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 any party, shall be cumulative
and not alternative.
8.13 CONFIDENTIALITY. Each party hereto agrees that,
except with the prior written permission of the other party, it shall at all
times keep confidential and not divulge,
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furnish or make accessible to anyone any confidential information, knowledge or
data concerning or relating to the business or financial affairs of the other
parties to which such party has been or shall become privy by reason of this
Agreement, discussions or negotiations relating to this Agreement, the
performance of its obligations hereunder or the ownership of Stock purchased
hereunder; provided, however, that the receiving party may disclose such
information (i) on a confidential basis to its attorneys, accountants,
consultants and other professionals to the extent necessary to obtain their
services in connection with its investment in the Company, (ii) to any
prospective purchaser of Stock from the such receiving party as long as such
prospective purchaser agrees in writing to be bound by the provisions of this
Section 8.13, (iii) on a confidential basis to any affiliate or partner of such
receiving party and (iv) as required by judicial decree or applicable law. The
provisions of this Section 8.13 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 transactions contemplated hereby.
8.14 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges
that it is not relying upon any person, firm or corporation, other than the
Company and its officers and directors, in making its investment or decision to
invest in the Company. Each Purchaser agrees that no Purchaser nor the
respective controlling persons, officers, directors, partners, agents, or
employees of any Purchaser shall be liable to any other Purchaser for any action
heretofore or hereafter taken or omitted to be taken by any of them in
connection with the purchase of the Securities.
8.15 INDEMNIFICATION. The Company shall defend, indemnify and
hold the Purchasers harmless from and against any and all claims, liabilities,
damages, losses and expenses, including reasonable attorney's fees and expenses
and costs of suit, arising out of any breach of the representations and
warranties, and out of any and all breaches of covenants, warranties,
stipulations, agreements and certifications made by or on behalf of the Company,
in the Transaction Documents or in any document delivered hereunder or
thereunder.
[Signature Pages Follow]
20
25
The parties have executed this Series B Preferred Stock Purchase
Agreement as of the date first written above.
COMPANY:
PRINTCAFE, INC.
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASERS:
CREO SRL
By:
--------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
-----------------------------------------
▇▇▇▇▇▇ International Services SRL,
Secretary, by its authorized signatory
SIGNATURE PAGE TO PURCHASE AGREEMENT
26
EXHIBITS
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Amended and Restated Certificate of
Incorporation
Exhibit C - Schedule of Exceptions to Representations and
Warranties
Exhibit D - Form of Investors' Rights Agreement
Exhibit E - Voting Agreement
Exhibit F - Form of Co-Sale Agreement
Exhibit G - Financial Statements
Exhibit H - Form of Bylaws
Exhibit I - Form of Indemnification Agreement
Exhibit J - Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP
Exhibit K - Form of Opinion of ▇▇▇▇▇▇ D'▇▇▇▇▇▇
27
EXHIBIT A
SCHEDULE OF PURCHASERS
NAME/ADDRESS/FAX NO. NO. OF SHARES OF SERIES B PREFERRED STOCK
-------------------- -----------------------------------------
Creo SRL
▇▇▇ ▇▇▇▇▇▇ 31,186,312
Holetown
St. ▇▇▇▇▇
Barbados