EXHIBIT 10.40
INVENTA CORPORATION
______________________________
SERIES C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
______________________________
May 28, 1999
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Series C Preferred Stock.......................................................... 1
1.1 Sale and Issuance of Series C Preferred Stock.................................................. 1
1.2 Closing Date; Delivery......................................................................... 1
2. Representations and Warranties of the Company.......................................................... 1
2.1 Organization, Good Standing and Qualification.................................................. 1
2.2 Capitalization................................................................................. 2
2.3 Subsidiaries................................................................................... 2
2.4 Authorization.................................................................................. 2
2.5 Valid Issuance of Securities................................................................... 2
2.6 Governmental Consents.......................................................................... 3
2.7 Litigation..................................................................................... 3
2.8 Patent and Trademarks.......................................................................... 3
2.9 Compliance with Other Instruments.............................................................. 4
2.10 Disclosure..................................................................................... 4
2.11 Registration Rights............................................................................ 4
2.12 Title to Property and Assets................................................................... 4
2.13 Financial Statements........................................................................... 5
2.14 Changes........................................................................................ 5
2.15 Minute Books................................................................................... 6
2.16 Labor Agreements and Actions................................................................... 6
2.17 Employee Plans................................................................................. 7
2.18 Employees...................................................................................... 7
2.19 Tax Returns and Payments....................................................................... 7
2.20 Agreements; Action............................................................................. 7
2.21 Obligations to Related Parties................................................................. 8
2.22 Real Property Holding Corporation.............................................................. 9
2.23 Insurance...................................................................................... 9
2.24 Investment Company Act......................................................................... 9
2.25 Qualified Small Business....................................................................... 9
3. Representations and Warranties of the Investors........................................................ 9
3.1 Authorization.................................................................................. 9
3.2 Purchase Entirely for Own Account.............................................................. 9
3.3 Disclosure of Information...................................................................... 10
3.4 Economic Risk.................................................................................. 10
3.5 Restricted Securities.......................................................................... 10
3.6 Further Limitations on Disposition............................................................. 10
3.7 Legends........................................................................................ 11
4. California Commissioner of Corporations................................................................ 11
4.1 Corporate Securities Law....................................................................... 11
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5. Conditions of Investor's Obligations at Closing......................................................... 11
5.1 Representations and Warranties.................................................................. 11
5.2 Performance..................................................................................... 12
5.3 Articles of Incorporation....................................................................... 12
5.4 Compliance Certificate.......................................................................... 12
5.5 Waiver, Consent and Amendment................................................................... 12
5.6 Opinion of Company's Counsel.................................................................... 12
5.7 Legal Expenses.................................................................................. 12
6. Conditions of the Company's Obligations at Closing...................................................... 12
6.1 Representations and Warranties.................................................................. 12
6.2 Payment of Purchase Price....................................................................... 12
6.3 Legal Matters................................................................................... 12
7. Covenants of the Company................................................................................ 12
7.1 Delivery of Financial Statements................................................................ 12
7.2 Inspection Rights............................................................................... 13
7.3 Reservation of Common Stock..................................................................... 13
7.4 Proprietary Information Agreement............................................................... 13
7.5 Termination of Information Covenant............................................................. 13
7.6 Key Man Life Insurance.......................................................................... 13
7.7 Qualified Small Business Stock.................................................................. 14
8. Miscellaneous........................................................................................... 14
8.1 Transfer; Successors and Assigns................................................................ 14
8.2 Governing Law................................................................................... 14
8.3 Counterparts.................................................................................... 14
8.4 Titles and Subtitles............................................................................ 14
8.5 Notices......................................................................................... 14
8.6 Finder's Fee.................................................................................... 14
8.7 Expenses........................................................................................ 15
8.8 Amendments and Waivers.......................................................................... 15
8.9 Severability.................................................................................... 15
8.10 Entire Agreement................................................................................ 15
8.11 Exculpation Among Investors..................................................................... 15
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SERIES C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT ("Agreement")
is made as of the 28th day of May 1999 by and between Inventa Corporation, a
California corporation (the "Company"), and the persons and entities listed on
the Schedule of Investors attached hereto as Exhibit A (the "Investors").
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THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Series C Preferred Stock
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1.1 Sale and Issuance of Series C Preferred Stock.
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(a) The Company shall adopt and file with the Secretary of State of
California on or before the Closing (as defined below) the Certificate of
Amendment of Restated Articles of Incorporation in the form attached hereto as
Exhibit B.
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(b) Subject to the terms and conditions of this Agreement, the
Investors agree to purchase at the Closing and the Company agrees to sell and
issue to the Investors at the Closing that number of shares of the Company's
Series C Preferred Stock (the "Shares") for the aggregate purchase price set
forth opposite each Investor's name on Exhibit A attached hereto, at a purchase
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price equal to $1.25 per share of Series C Preferred Stock.
1.2 Closing Date; Delivery. The purchase and sale of the Shares
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shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 9:00 a.m., on May 28, 1999, or at such
other time and place as the Company and the Investors mutually agree upon,
orally or in writing (which time and place are designated as the "Closing"). At
the Closing, the Company shall deliver to each Investor a certificate
representing the Shares which such Investor is purchasing against delivery to
the Company by such Investor of a check made payable to the Company or wire
transfer of the aggregate purchase price therefor.
2. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Investors that, except as set forth on a Schedule
of Exceptions attached hereto as Exhibit C, specifically identifying the
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relevant subparagraph hereof, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a material adverse
effect on its business or properties.
2.2 Capitalization. The authorized capital of the Company will
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consist, immediately prior to the Closing, of (i) 12,119,511 shares of Preferred
Stock, 1,000,000 shares of which are designated Series A Preferred Stock and of
which 800,000 are issued and outstanding, 2,560,000 shares of which are
designated Series B Preferred Stock and of which 2,560,000 are issued and
outstanding, and 8,059,511 shares of which are designated Series C Preferred
Stock of which 4,055,511 are issued and outstanding, and (ii) 25,000,000 shares
of Common Stock, of which 4,685,954 shares are issued and outstanding. The
Company has reserved 3,155,000 shares of its Common Stock for issuance pursuant
to its 1993 Stock Option Plan. Except as set forth in the Schedule of
Exceptions attached as Exhibit C hereto, there are no outstanding options,
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warrants, rights (including conversion or preemptive rights) or agreements,
orally or in writing, for the purchase or acquisition from the Company of any
shares of its capital stock.
2.3 Subsidiaries. Except as set forth in the Schedule of Exceptions,
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the Company does not presently own or control, directly or indirectly, any
interest in any other corporation, association, or other business entity.
2.4 Authorization. All corporate action on the part of the Company,
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its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder and the authorization, issuance and delivery of the Shares
has been taken or will be taken prior to the Closing, and this Agreement
constitutes a valid and legally binding obligation of the Company, enforceable
in accordance with its terms. The Agreement and the Waiver, Consent and
Amendment attached hereto as Exhibit E (the "Waiver, Consent and Amendment"),
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when executed and delivered, will be valid and binding obligations of the
Company enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights; (ii) general
principles of equity that restrict the availability of equitable remedies; and
(iii) to the extent that the enforceability of the indemnification provisions in
Section 10 of the Restated Registration Rights Agreement dated May 11, 1998, as
amended by the Waiver, Consent and Amendment (the "Registration Rights
Agreement") may be limited by applicable laws. The sale of the Shares and the
subsequent conversion of the Shares into Common Stock are not and will not be
subject to any preemptive rights or rights of first refusal that have not been
properly waived or complied with.
2.5 Valid Issuance of Securities.
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(a) The Shares that are being issued to the Investors 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. The shares of Common Stock issuable upon conversion of the
Shares have been duly and validly reserved for issuance.
(b) The shares of Common Stock and Preferred Stock outstanding prior
to the Closing are all duly and validly authorized and issued, fully paid and
nonassessable and were issued in compliance with all applicable state and
federal laws concerning the issuance of securities.
2.6 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for (a) the filing pursuant to Section
25102(f) of the California Corporate Securities Law of 1968, as amended, and the
rules thereunder, which filing will be effected in accordance with such section,
and (b) compliance with the Blue Sky Laws of the various states in which the
Investors may reside, which compliance will be effected in accordance with such
laws. The Company currently holds all licenses, permits, franchises,
registrations and qualifications which may be required to conduct its business,
and all such licenses, permits, franchises, registrations and qualifications are
valid and in full force and effect.
2.7 Litigation. Except as set forth in the Schedule of Exceptions,
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there is no action, suit, proceeding or investigation pending or currently
threatened against the Company that questions the validity of this Agreement or
the right of the Company to enter into it, or to consummate the transactions
contemplated hereby, or that might result, either individually or in the
aggregate, in any material adverse changes in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for the foregoing. 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 techniques allegedly proprietary to
any of their former employers, or their obligations under any agreements with
prior employers. The Company is not 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 currently pending or which the Company intends to initiate.
2.8 Patent and Trademarks. To its knowledge, the Company owns or
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possesses sufficient legal rights to all patents, trademarks, service marks,
trade names, copyrights, trade secrets, information and other proprietary rights
and processes necessary for its business as now conducted and as proposed to be
conducted, without any known infringement of the rights of others. There are no
outstanding options, licenses or agreements of any kind relating 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 patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity other than such
licenses or agreements arising from the purchase or sale of "off the shelf" or
standard products. The Company has not received any 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
or trade secrets or other proprietary rights of any other person or entity. The
Company is not aware that any of its employees 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 their duties to the Company or that would
conflict with the Company's business as proposed to be conducted. Neither the
execution nor 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 with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. The Company
does not believe it is or will be necessary to utilize any inventions, trade
secrets or proprietary information of any of its employees made prior to their
employment by the Company, except for inventions, trade secrets or proprietary
information that have been assigned to the Company.
2.9 Compliance with Other Instruments.
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(a) The Company is not in violation or default of any provisions of
its Restated Articles of Incorporation or Bylaws or of any instrument, 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. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
will not result in any such violation 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, instrument, judgment, order, writ, decree, contract, rule, or
statute, or of the Company's Restated Articles of Incorporation or Bylaws, or an
event which results in the creation of any lien, charge or encumbrance upon any
assets of the Company.
(b) The Company has avoided every condition, and has not performed any
act, the occurrence of which would result in the Company's loss of any right
granted under any license, distribution or other agreement.
2.10 Disclosure. The Company has fully provided the Investors with
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all the information which the Investors have requested for deciding whether to
acquire the Shares and all information which the Company believes is reasonably
necessary to enable the Investors to make such decision. There is no
information known to the Company which materially adversely affects the business
or operations of the Company which has not been disclosed to the Investors.
Neither this Agreement nor any other statements or certificates made or
delivered in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
or therein not misleading, except that, with respect to financial projections,
the Company represents only that such projections were prepared in good faith
and that the Company believes there is a reasonable basis for such projections.
2.11 Registration Rights. Except as set forth in the Registration
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Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.12 Title to Property and Assets. The Company owns its property and
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assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens which arise in the ordinary course of business and
do not materially impair the Company's ownership or use of such property or
assets. With respect to the property and assets it leases, the Company is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances. All facilities,
machinery, equipment, fixtures, vehicles and other properties owned, leased or
used by the Company are in good operating condition and repair (normal wear and
tear accepted) and are reasonably fit and usable for the purposes for which they
are being used.
2.13 Financial Statements. The Company has delivered to the
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Investors its unaudited financial statements (balance sheet and profit and loss
statement and statement of shareholders equity) at December 31, 1998 and for the
fiscal year then ended and a balance sheet and statement of operations 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 and with each other. The Financial
Statements accurately set out and describe the financial condition and operating
results of the Company as of the dates, and for the periods, indicated therein.
Except as set forth in the Financial Statements, the Company has no liabilities,
contingent or otherwise, of a nature required by generally accepted accounting
principles to be reflected in a balance sheet or disclosed in the notes thereto,
other than liabilities incurred in the ordinary course of business subsequent to
March 31, 1999
2.14 Changes. Since March 31, 1999, there has not been:
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(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business which have not
been, in the aggregate, materially adverse.
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a 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 which is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(e) any change or amendment to a material contract or arrangement by
which the Company or any of its assets or properties is bound or to which the
Company or any of such assets or properties is subject;
(f) any resignation or termination of any key officers of the Company;
and the Company, to its knowledge, does not know of the impending resignation or
termination of employment of any such officer;
(g) to the knowledge of the Company any material change, except in the
ordinary course of business, in the contingent obligations of the Company by way
of guaranty, endorsement, indemnity, warranty or otherwise;
(h) any direct or indirect loans made by the Company to any
shareholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business or loans to purchase Common Stock;
(i) any material change in any compensation arrangement or agreement
with any employee, officer, director or shareholder other than in the ordinary
course of business;
(j) any declaration or payment of any dividend or other distribution
of the assets of the Company;
(k) any labor organization activity;
(l) any debt, obligation or liability incurred, assumed or guaranteed
by the Company, except those for immaterial amounts and for current liabilities
incurred in the ordinary course of business;
(m) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets; or
(n) to the Company's knowledge, any other event or condition of any
character which might materially and adversely affect the assets, properties,
financial condition, operating results or business of the Company (as such
business is presently conducted and as it is proposed to be conducted).
2.15 Minute Books. The Company has offered to provide to the
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Investors the minute books of the Company, which contain a complete summary of
all meetings of directors and shareholders since the time of incorporation and
reflect all transactions referred to in such minutes accurately in all material
respects.
2.16 Labor Agreements and Actions. The Company is not bound by or
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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 assets, properties, financial condition,
operating results, or business of the Company (as such
business is presently conducted and as it is proposed to be conducted), nor is
the Company aware of any labor organization activity involving its employees.
2.17 Employee Plans. The Company has no "employee welfare benefit
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plans" as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974 ("ERISA"). The Company (i) has not been required to contribute to, (ii)
has not terminated or withdrawn from, and (iii) is not aware of any withdrawal
liability assessed against the Company with respect to any defined benefit plan
as defined in Section 3(35) of ERISA or multi employer plan as defined in
Section 4001 of ERISA in which employees or former employees of the Company have
participated.
2.18 Employees. The Company has not knowingly violated any
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employment-related laws, including, without limitation, laws relating to equal
employment opportunity, overtime pay and collective bargaining. The Company is
not aware that any officer or key employee, or that any group of key employees,
intends to terminate their employment with the Company, nor does the Company
have a present intention to terminate the employment of any of the foregoing.
Except as set forth in the Schedule of Exceptions, the employment of each
officer and employee of the Company is terminable at the will of the Company.
Each former and current United States employee and consultant of the Company
with access to confidential or proprietary information has executed a
Proprietary Information Agreement, the form of which is attached hereto as
Exhibit D. To the Company's knowledge, no employee of the Company, nor any
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consultant with whom the Company has contracted, is in violation of any term of
any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company because of the nature of the business to be conducted
by the Company; and to the Company's knowledge the continued employment by the
Company of its present employees, and the performance of the Company's contracts
with its independent contractors, will not result in any such violation. The
Company has not received any notice alleging that any such violation has
occurred. The Company's relations with its employees is good.
2.19 Tax Returns and Payments. The Company has timely filed all tax
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returns (federal, state and local) required to be filed by it. All taxes shown
to be due and payable on such returns, any assessments imposed, and to the
Company's knowledge all other taxes due and payable by the Company on or before
the Closing have been paid or will be paid prior to the time they become
delinquent. The Company has not been advised except as set forth in the
Schedule of Exceptions (i) that any of its returns, federal, state or other,
have been or are being audited as of the date hereof, or (ii) of any deficiency
in assessment or proposed judgment to its federal, state or other taxes. The
Company has no knowledge of any liability of any tax to be imposed upon its
properties or assets as of the date of this Agreement that is not adequately
provided for.
2.20 Agreements; Action.
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(a) Except for agreements explicitly contemplated hereby including
proprietary agreements and agreements between the Company and its employees with
respect to the sale of the Company's Common Stock, and agreements between the
Company and the Investors with
respect to their investment, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates
or any affiliate thereof.
(b) There are no agreements, understandings, instruments, contracts,
proposed transactions, judgments, orders, writs or decrees to which the Company
is a party or to its knowledge by which it is bound which may involve (i)
obligations (contingent or otherwise) of, or payments to, the Company in excess
of $25,000 (other than obligations of, or payments to, the Company arising from
purchase or sale agreements entered into in the ordinary course of business), or
(ii) the license of any patent, copyright, trade secret or other proprietary
right to or from the Company (other than licenses arising from the purchase or
sale of "off the shelf" or other standard products), or (iii) provisions
restricting or affecting the development, manufacture or distribution of the
Company's products or services, or (iv) indemnification by the Company with
respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business).
(c) 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) incurred any indebtedness for money borrowed or any
other liabilities except as set forth in the Schedule of Exceptions (other than
with respect to dividend obligations, distributions, indebtedness and other
obligations incurred in the ordinary course of business or as disclosed in the
Financial Statements) individually in excess of $25,000 or, in the case of
indebtedness and/or liabilities individually less than $25,000, in excess of
$50,000 in the aggregate, (iii) made any loans or advances to any person, other
than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise
disposed of any material amount of its assets or rights, other than the sale of
its inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) Except as set forth in the Schedule of Exceptions, the Company has
not engaged in the past three (3) months in any material 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.
2.21 Obligations to Related Parties. There are no obligations of the
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Company to officers, directors, shareholders or employees of the Company other
than (a) for payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Company
and (c) for other standard employee benefits made generally available to all
employees (including stock option agreements outstanding under any stock option
plan approved by the Board of Directors of the Company). Except as set forth in
the Schedule of Exceptions none of the officers, directors or shareholders of
the Company, or any members of their immediate families, are indebted to the
Company 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, except that officers, directors and/or shareholders of the Company may
own stock in publicly traded companies which may compete with the Company. No
officer, director or shareholder, or any member of their immediate families, is,
directly or indirectly, interested in any material contract with the Company
(other than such contracts as relate to any such person's ownership of capital
stock or other securities of the Company). Except as may be disclosed in the
Financial Statements, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
2.22 Real Property Holding Corporation. The Company is not a real
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property holding corporation within the meaning of Internal Revenue Code Section
897(c)(2) and any regulations promulgated thereunder.
2.23 Insurance. The Company has or will obtain promptly following
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Closing fire and casualty insurance policies with coverage customary for
companies similarly situated to the Company.
2.24 Investment Company Act. The Company is not an "investment
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company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
2.25 Qualified Small Business. The Company represents and warrants
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to the Investors that, to its knowledge, the Shares should qualify as "Qualified
Small Business Stock" as defined in Section 1202(c) of the Internal Revenue Code
of 1986, as amended (the "Code") as of the date hereof.
3 Representations and Warranties of the Investors. Each Investor for
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itself hereby represents and warrants to the Company that:
3.1 Authorization. This Agreement constitutes its valid and legally
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binding obligation, enforceable in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made with
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the Investor in reliance upon the Investor's representation to the Company,
which by the Investor's execution of this Agreement the Investor hereby
confirms, that the Shares will be acquired for investment for the Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that the Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same.
By executing this Agreement, the Investor further represents that the Investor
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
Shares. The Investor represents that it has full power and authority to enter
into this Agreement.
3.3 Disclosure of Information. The Investor believes it has received
-------------------------
information that it considers necessary or appropriate for deciding whether to
acquire the Shares. The Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Shares. The foregoing, however,
does not limit or modify the representations and warranties of the Company in
Section 2 of this Agreement or the right of the Investor to rely thereon.
3.4 Economic Risk. The Investor has the capacity to protect his own
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interests in connection with the purchase of the Shares, is capable of
evaluating the merits and risks of investment in the Company, can make an
informed investment decision by reason of (i) his preexisting personal or
business relationship with the Company or any of its officers, directors, or
control persons, or (ii) his business and financial knowledge and experience or
the business and financial knowledge and experience of my professional advisers,
if any, and is able to bear the substantial economic risks of an investment in
the Shares for an indefinite period of time.
3.5 Restricted Securities. It understands that the shares of Common
---------------------
Stock sold hereunder are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such shares may be resold without registration under the
Securities Act of 1933, as amended (the "Act"), only in certain limited
circumstances. In this connection, the Investor represents that he is familiar
with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
3.6 Further Limitations on Disposition. Without in any way limiting
----------------------------------
the representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a Registration Statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
(b) (i) The Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, the Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration under the Act.
(c) Notwithstanding the provisions of paragraphs (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer by the Investor to a
shareholder, partner or other affiliate of the Investor, if the transferee or
transferees agree in writing to be subject to the terms hereof to the same
extent as if they were the Investor hereunder.
3.7 Legends. It is understood that the Shares, and the shares of
-------
Common Stock issuable upon conversion thereof and any securities issued in
respect thereof or exchanged therefor may bear one or all of the following
legends:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING
THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
(b) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations.
(c) Any legend required by the Blue Sky laws of any other state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
4. California Commissioner of Corporations.
---------------------------------------
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT IS THE
------------------------
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA, THE ISSUANCE OF SUCH SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON SUCH QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
5. Conditions of Investor's Obligations at Closing. The obligations of
-----------------------------------------------
the Investors under Section 1.1 of this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions:
5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 2 shall be true and correct in
all material respects as of the Closing.
5.2 Performance. The Company shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Articles of Incorporation. The Company shall have filed with,
-------------------------
and have had accepted for filing by, the California Secretary of State the
Certificate of Amendment of Restated Articles of Incorporation of the Company
attached as Exhibit B hereto.
---------
5.4 Compliance Certificate. The President of the Company shall
----------------------
deliver to the Investors at the Closing a certificate certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.5 Waiver, Consent and Amendment. The Company shall deliver to the
-----------------------------
Investors at the Closing copies of the Waiver, Consent and Amendment executed by
the necessary majority of the signatories thereto.
5.6 Opinion of Company's Counsel. The Purchasers shall have received
----------------------------
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Company, an opinion
addressed to them, dated the Closing Date, in substantially the form of Exhibit
-------
F.
-
5.7 Legal Expenses. The Company shall pay the legal expenses of the
--------------
Investors in connection with the Series C Preferred Stock financing in an
aggregate amount not to exceed $15,000.
6. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company to the Investors under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions by
the Investors:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of the Investors contained in Section 3 shall be true and correct in
all material respects as of the Closing.
6.2 Payment of Purchase Price. The Investors shall have delivered to
-------------------------
the Company the purchase price specified in Section 1.1 hereof.
6.3 Legal Matters. All material matters of a legal nature which
-------------
pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
7. Covenants of the Company.
------------------------
7.1 Delivery of Financial Statements. The Company shall deliver the
--------------------------------
following financial information to each Investor who continues to hold at least
50,000 Shares (or the Common Stock into which the Shares have been converted)
(as adjusted for any stock split, stock dividends, combinations,
recapitalizations and the like with respect to such Shares)(for purposes of
satisfying
the 50,000 share threshold herein, shares owned by partners, subsidiaries,
parents, shareholders or affiliates will be aggregated; provided, however, that
the Company shall only be required to deliver financial information to one
representative of each group of affiliated persons or entities), and as long as
such Investor or a principal, partner or manager of such Investor, is not
employed by or associated with a competitor of the Company:
(a) as soon as practicable after the end of each fiscal year of the
Company an income statement for such fiscal year, a balance sheet of the Company
as of the end of such year and in any event within 120 days thereafter, and a
schedule as to the sources and applications of funds for such year, such year-
end financial reports to be audited by a "Big Six" accounting firm and in
reasonable detail, prepared in accordance with generally accepted accounting
principles ("GAAP");
(b) prior to the commencement of each fiscal year of the Company, an
operating budget and updated three year strategic plan; and
(c) within thirty (30) days of the end of each month, an unaudited
balance sheet and statement of operations as of the end of such month.
7.2 Inspection Rights. Each Investor shall have the right to visit
-----------------
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company shall not be obligated under this
Section 7.2 with respect to a competitor of the Company or with respect to
information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
7.3 Reservation of Common Stock. The Company will at all times
---------------------------
reserve and keep available, solely for issuance and delivery upon the conversion
of the Preferred Stock, all Common Stock issuable from time to time upon such
conversion (the "Conversion Stock").
7.4 Proprietary Information Agreement. The Company shall require all
---------------------------------
employees and consultants to execute and deliver a Proprietary Information
Agreement in the form attached hereto as Exhibit D.
---------
7.5 Termination of Information Covenant. The covenant set forth in
-----------------------------------
Section 7.1 shall terminate as to the Investors and be of no further force or
effect at such time as the initial sale of securities pursuant to a registration
statement filed by the Company under the Securities Act in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated.
7.6 Key Man Life Insurance. The Company shall obtain and maintain a
----------------------
key man life insurance policy for $1,000,000 with respect to the Chief Executive
Officer of the Company with proceeds payable to the Company.
7.7 Qualified Small Business Stock. The Company shall submit to the
------------------------------
Investors and to the Internal Revenue Service any reports that may be required
to be submitted to such persons under Section 1202(d)(1)(C) of the Internal
Revenue Code of 1986, as amended (the "Code") and any related Treasury
Regulations. In addition, within fifteen (15) business days after any Investor
has delivered to the Company a written request for information regarding such
Investor's stock in reasonable contemplation of the Investor's sale, exchange or
other disposition of its stock, the Company shall provide the Investor with such
information as the Investor may reasonably request in order for the Investor to
determine whether the stock held by such Investor constitutes "qualified small
business stock" as defined in Section 1202(c) of the Code. The Company's
obligation to furnish such information pursuant to this Section 7.7 shall
continue notwithstanding the fact that a class of the Company's stock may be
traded on an established securities market.
8. Miscellaneous.
-------------
8.1 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.
8.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 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.
8.5 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address or
addresses indicated for such party on Exhibit A hereto, or at such other address
---------
or addresses as such party may designate by ten (10) days' advance written
notice to the other parties.
8.6 Finder's Fee. Except as elsewhere disclosed in this Agreement,
------------
or in Exhibit C hereto, each party represents that it neither is nor will be
---------
obligated for any finder's fee or commission in connection with this
transaction. The Investor 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 the Investor or any of its officers, employees, or
representatives are responsible.
The Company agrees to indemnify and hold harmless the Investor 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.
8.7 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, 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.
8.8 Amendments and Waivers. 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-in-interest of the Shares.
8.9 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.10 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements existing between the parties
hereto are expressly canceled.
8.11 Exculpation Among Investors. Each Investor 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 investor agrees that no Investor nor the respective
controlling persons, officers, directors, partners, agents or employees of any
Investor shall be liable for any action heretofore or hereafter taken or omitted
to be taken by any of them in connection with the Shares.
(Remainder of page left intentionally blank)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVENTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By:
______________________________
Name:
Title:
BOSTON MILLENNIA PARTNERS BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP LIMITED PARTNERSHIP
By: ▇▇▇▇ Partners Limited Partnership, By: ▇▇▇▇ Partners Limited
its General Partner Partnership,
its General Partner
By: By:
______________________________ ______________________________
General Partner General Partner
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ G. AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CHARITABLE ANNUITY TRUST, U/D/T
By:
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVENTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By:
______________________________
Name:
Title:
BOSTON MILLENNIA PARTNERS BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP LIMITED PARTNERSHIP
By: ▇▇▇▇ Partners Limited Partnership, By: ▇▇▇▇ Partners Limited
its General Partner Partnership,
its General Partner
By: By:
______________________________ ______________________________
General Partner General Partner
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ G. AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CHARITABLE ANNUITY TRUST, U/D/T
By:
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVENTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By:
______________________________
Name:
Title:
BOSTON MILLENNIA PARTNERS BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP LIMITED PARTNERSHIP
By: ▇▇▇▇ Partners Limited Partnership, By: ▇▇▇▇ Partners Limited
its General Partner Partnership,
its General Partner
By: By:
______________________________ ______________________________
General Partner General Partner
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ G. AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CHARITABLE ANNUITY TRUST, U/D/T
By:
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
EXHIBIT A
---------
SCHEDULE OF INVESTORS
Name and Address Shares Amount
Battery Ventures III, L.P. 776,000 $ 970,000.00
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Boston Millennia Associates I Partnership 28,900 $ 36,125.00
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Boston Millennia Partners Limited Partnership 1,523,100 $1,903,875.00
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 75,000 $ 93,750.00
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ G. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 45,000 $ 56,250.00
Charitable Annuity Trust, u/d/t
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TCV II (Q), L.P. 570,795 $ 713,493.75
c/o Technology Crossover Ventures
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
c/o Technology Crossover Ventures
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Jr.
TCV II Strategic Partners, L.P. 101,296 $ 126,620.00
c/o Technology Crossover Ventures
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
c/o Technology Crossover Ventures
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Jr.
TCV II, V.O.F. 24,118 $ 30,147.50
c/o Technology Crossover Ventures
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
c/o Technology Crossover Ventures
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Jr.
Technology Crossover Ventures II, C.V. 113,355 $ 141,693.75
c/o Technology Crossover Ventures
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
c/o Technology Crossover Ventures
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Jr.
Technology Crossover Ventures II, L.P. 742,436 $ 928,045.00
c/o Technology Crossover Ventures
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
c/o Technology Crossover Ventures
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Jr.
TOTAL 4,000,000 $5,000,000.00
EXHIBIT B
---------
CERTIFICATE OF AMENDMENT OF
RESTATED ARTICLES OF INCORPORATION
[LETTERHEAD OF THE STATE OF CALIFORNIA]
SECRETARY OF STATE
I, ▇▇▇▇ ▇▇▇▇▇, Secretary of State of the State of California, hereby
certify:
That the attached transcript of 2 page(s) has been compared with the record
on file in this office, of which it purports to be a copy, and that it is full,
true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix
the Great Seal of the State
[THE GREAT SEAL OF THE STATE OF CALIFORNIA] of California this day of
May 26, 1999
------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇
Secretary of State
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION OF
INVENTA CORPORATION
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇, hereby certify
that:
1. They are the duly elected and acting President and Assistant Secretary,
respectively, of Inventa Corporation, a California corporation.
2. Article III of the Restated Articles of Incorporation of this
corporation is hereby amended in its entirety to read as follows:
"This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the Corporation is authorized to issue is 37,119,511
shares, of which 25,000,000 shares shall be Common Stock with a par value
of $0.001 per share and of which 12,119,511 shares shall be Preferred
Stock, 1,000,000 of which are designated Series A Preferred Stock with a
par value of $0.001 per share, 2,560,000 of which are designated Series B
Preferred Stock with a par value of $0.001 per share and 8,059,511 of which
are designated Series C Preferred Stock with a par value of $0.001 per
share. The Board of Directors is authorized to fix the number of shares of
any series of Preferred Stock and to determine or alter the rights,
preferences, privileges, and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, within the limits and
restrictions stated in any resolution or resolutions of the Board of
Directors originally fixing the number of shares constituting any series of
Preferred Stock, to increase or decrease (but not below the number of
shares of any such series then outstanding) the number of shares of any
such series subsequent to the issue of shares of that series."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Sections 902
and 903 of the California Corporations Code. The total number of outstanding
shares of each class entitled to vote with respect to the amendment was
4,685,954 shares of Common
Stock, 800,000 shares of Series A Preferred Stock, 2,560,000 shares of Series B
Preferred Stock, and 4,055,511 shares of Series C Preferred Stock. The number of
shares voting in favor of the amendment equaled or exceeded the vote required,
such required vote being a majority of the outstanding shares of the Common
Stock, Preferred Stock, and Series C Preferred Stock, voting as separate
classes.
The undersigned further declare under penalty of perjury that the matters set
forth in the foregoing Certificate of Amendment of Articles of Incorporation are
true and correct of our own knowledge.
Executed at Redwood Shores, California this 24th day of May, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇,
Assistant Secretary
[SEAL OF THE SECRETARY OF STATE]
EXHIBIT C
---------
SCHEDULE OF EXCEPTIONS
EXHIBIT C
---------
SCHEDULE OF EXCEPTIONS
This Schedule of Exceptions, dated as of the Closing Date, is made and
given pursuant to Section 2 of the Inventa Corporation Series C Convertible
Preferred Stock Purchase Agreement dated May 28, 1999 (the "Agreement").
The section numbers in this Schedule of Exceptions correspond to the
section numbers in the Agreement; however, any information disclosed herein
under any section number shall be deemed to be disclosed and incorporated into
any other section number under the Agreement where such disclosure would be
appropriate. Unless the context otherwise requires, all capitalized terms shall
have the same meanings assigned to them in the Agreement.
2.2 Capitalization.
--------------
On July 8, 1994, the Company granted warrants to purchase 100,000
shares of Series A Preferred Stock of the Company (200,000 shares after taking
into account the Company's 2-for-1 stock split effective as of January 29,
1997). The Series A Preferred Stock warrants are exercisable at $0.50 per
share. The Company has reserved a total of 3,155,000 shares of common stock
under the Company's 1993 Stock Option Plan (the "Plan"). As of the Closing,
options for 2,308,634 shares were outstanding under the Plan and 660,412 shares
remained available for future issuance under the Plan.
2.3 Subsidiaries.
------------
The Company has a wholly-owned subsidiary in Singapore called ICG
Systems (Far East) Pte. Ltd. and two wholly-owned subsidiaries in Malaysia
called ICG Systems Sdn. Bhd and Baktimaka Sdn. Bhd. The Company is currently in
the process of liquidating all three subsidiaries.
2.7 Litigation.
----------
The Internal Revenue Service ("IRS") has made assessments on the
Company's former Indian subsidiary called Inventa Software India Pvt. Ltd. (now
called Ventura Data Systems Pvt. Ltd. since the Company's divestiture of its
ownership) with respect to federal tax returns filed by the Company for tax
years 1990 and 1991 which included payments of certain expenses (the "Disputed
Payments") for work done for the Company in the United States by employees of
the Company's former subsidiary. The Company has appealed the assessments. No
determination has yet been made by the IRS. Should the IRS determine that the
Company has a tax liability with respect to the Disputed Payments, the Company
expects that such tax liability, including penalties will not exceed $150,000.
The Company has filed a legal petition for the liquidation of the
Malaysian company Inventa Software (M) SDN. BHD which petition has been
approved.
2.8 Patents.
-------
The Company does not currently have the legal right to the name
"Inventa" in Singapore. Further, the Company does not currently have the legal
right to the name "Inventa" in Malaysia subject to liquidation of the Malaysian
company Inventa Software (M) SDN.BHD (see Section 2.7). A Company trademark
status report is attached hereto as Exhibit A.
2.9 Compliance with Other Instruments.
---------------------------------
(a) As of December 31, 1998, the Company was in violation of certain
financial covenants and ratios under the Company's revolving credit facility
with Silicon Valley Bank. The bank has agreed to waive such defaults as set
forth in a modification agreement dated March 3, 1999.
2.13 Financial Statements.
--------------------
The Company's auditors have conducted audit procedures regarding the
Company's financial statements for the fiscal year ended December 31, 1998. The
Company and its auditors are currently engaged in discussions related to expense
recognition associated with the issuance of options under the Company's 1993
Stock Option Plan.
2.14 Changes.
-------
(f) The Company has notified ▇▇▇▇ ▇▇▇▇▇▇▇, its Director of Eastern
Region Sales, that his services are no longer required by the Company. The
parties are currently involved in transitional discussions.
2.17 Employee Plans.
--------------
The Company has adopted a 401(k) savings plan (the "401(k) Plan").
Participants in the 401(k) Plan may defer compensation in an amount not in
excess of the annual statutory limit. The Company makes matching contributions
in an amount equal to twenty five percent (25%) of the first four percent (4%)
of an individual employee's salary contributed to the 401(k) Plan.
The Company maintains performance incentive bonus plans which provide
for bonus payments to employees upon the attainment of specific performance
criteria.
2.18 Employees.
---------
Subsequent to July 8, 1994, every United States employee and
consultant with access to confidential or proprietary information of the Company
has executed a Proprietary Information Agreement ("Proprietary Information
Agreement"), substantially in the form attached to the Agreement as Exhibit D.
Prior to July 8, 1994, the Company did not require its employees or
-2-
consultants to sign a Proprietary Information Agreement. Certain employees and
consultants of the Company's foreign subsidiaries have not signed a Proprietary
Information Agreement.
In January 1999, the Company entered into an Employment and
Noncompetition Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇▇ for a term of three years. The
agreement provides for severance payments and accelerated vesting of stock
options in the event of termination under certain circumstances and upon a
change of control of the Company.
The Company has notified ▇▇▇▇ ▇▇▇▇▇▇▇, its Director of Eastern Region
Sales, that his services are no longer required by the Company. The parties are
currently involved in transitional discussions.
The Company currently has severance agreements with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ which provide
for severance payments upon a "change of control" of the Company (as such term
is defined in such agreement).
2.19 Tax Returns and Payments.
------------------------
See Section 2.7 above regarding the examination of the Company by the
Internal Revenue Service.
2.20 Agreements; Action.
------------------
(a) The Company currently has severance agreements with ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
which provide for severance payments upon a "change of control" of the Company
(as such term is defined in such agreement).
The Company entered into an Employment and Noncompetition Agreement
with ▇▇▇▇▇ ▇▇▇▇▇▇▇ as described in Section 2.18 above.
In November, 1996, the Company entered into a thirty six (36) month
automobile lease agreement for the benefit of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the Company's
President. The lease agreement is personally guaranteed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(b) The Company entered into a Master Services Agreement with ADP,
Inc. in December 1998, pursuant to which the Company has agreed that (i) for a
period of twenty-four (24) months following the termination of such agreement,
the Company will not provide any Deliverable (as defined in the agreement) to
any provider of payroll software, payroll or payroll related services, and (ii)
for a period of twelve (12) months following the termination of such agreement,
the
-3-
Company will not build or develop an Internet-enabling application/program which
contains similar functionality to the applications/programs developed pursuant
to the agreement.
The Company entered into a Software Development Agreement with Cal-
Surance Associates, Inc. in February 1999, pursuant to which the Company has
agreed that for a period of twenty-four (24) months following completion of the
Engagement (as defined in the agreement), the Company will not undertake an
engagement for any brokerage firms that sell professional liability insurance,
insurance companies that sell professional liability insurance, or other
insurance companies selling, marketing or intending to sell or market
professional liability insurance, where the deliverables of such engagement are
substantially similar in the purpose to or substantially competitive with those
provided under the Engagement.
The Company leases office space for its headquarters at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ under a lease agreement expiring in March
2001, with monthly lease payments of approximately $56,778, and additional space
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ under a lease agreement
expiring in February 2000, with monthly lease payments of approximately $6,524.
In addition, the Company leases office space in New Brunswick, New Jersey;
Plymouth Meeting, Pennsylvania; and New York, New York under three lease
agreements expiring, respectively, in October 2003, December 1999 and September
1999. The monthly lease payments under such agreements are approximately
$11,266, $6,500 and $2,200, respectively.
The Company leases various equipment under operating lease
arrangements. At December 31, 1998, the minimum aggregate payments under
operating equipment leases for the 1999 and 2000 fiscal years are, respectively,
$20,742 and $11,974.
The Company leases various equipment under capital lease arrangements.
At December 31, 1998, the minimum aggregate payments under capital equipment
leases for the 1999 and 2000 fiscal years are, respectively, $131,496 and
$60,308.
(c) On May 30, 1995, the Company entered into an agreement for a
$200,000 revolving credit facility with Silicon Valley Bank. On July 29, 1996,
the parties signed a loan modification agreement increasing the revolving credit
facility to $500,000. In July 1997, the agreement was modified to increase the
revolving credit facility to $1.2 million. This credit facility expires on July
27, 1999 and as of March 31, 1999, no balance was outstanding on the credit
facility. The credit facility bears interest at the bank's prime rate plus 2
percent (2%). On July 27, 1998, the Company also obtained a $300,000 equipment
line from Silicon Valley Bank. The line was fully drawn down as of March 31,
1999 and bears interest at the bank's prime rate plus one percent (1%).
2.23 Insurance.
---------
The Company is in the process of obtaining directors and officers
liability insurance and "key man" life insurance policies.
-4-
EXHIBIT D
---------
FORM OF PROPRIETARY INFORMATION AGREEMENT
EXHIBIT D
----------
INVENTA CORPORATION
EMPLOYMENT, CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Inventa Corporation, its subsidiaries,
affiliates, successors or assigns (the "Company"), and in consideration of my
employment with the Company and my receipt of the compensation now and hereafter
paid to me by the Company, I agree to the following:
(a) At-Will Employment. I understand and acknowledge that my employment
------------------
with the Company is for an unspecified duration and constitutes "at-will"
employment. I acknowledge that this employment relationship may be
terminated at any time, with or without good cause or for any or no cause,
at the option either of the Company or myself, with or without notice.
(b) Confidential Information.
------------------------
(i) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm
or corporation without written authorization of the Board of Directors of
the Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any of the Company's proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customer lists and
customers (including, but not limited to, customers of the Company on whom
I called or with whom I became acquainted during the term of my
employment), markets, software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other business
information disclosed to me by the Company either directly or indirectly in
writing, orally or by drawings or observation of parts or equipment. I
further understand that Confidential Information does not include any of
the foregoing items which has become publicly known and made generally
available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(ii) Former Employer Information. I agree that I will not, during my employment
---------------------------
with the Company, improperly use or disclose any proprietary information or
trade secrets of any former or concurrent employer or other person or
entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such
employer, person or entity unless consented to in writing by such employer,
person or entity.
(iii) Third Party Information. I recognize that the Company has received and
-----------------------
in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain
the confidentiality of such information and to use it only for certain
limited purposes. I agree to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any
person, firm or corporation or to use it except as necessary in carrying
out my work for the Company consistent with the Company's agreement with
such third party.
(c) Inventions.
----------
(i) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a
-------------------------------- ---------
list describing all inventions, original works of authorship, developments,
improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior
Inventions"), which belong to me, which relate to the Company's proposed
business, products or research and development, and which are not assigned
to the Company hereunder; or, if no such list is attached, I represent that
there are no such Prior Inventions. If in the course of my employment with
the Company, I incorporate into a the Company product, process or machine a
Prior Invention owned by me or in which I have an interest, the Company is
hereby granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license to make, have made, modify, use and sell such
Prior Invention as part of or in connection with such product, process or
machine.
(ii) Assignment of Inventions. I agree that I will promptly make full written
------------------------
disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee,
all my right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements or trade
secrets, whether or not patentable or registrable under copyright or
similar laws, which I may solely or jointly conceive or develop or reduce
to practice, or cause to be conceived or developed or reduced to practice,
during the period of time I am in the employ of the Company (collectively
referred to as "Inventions"), except as provided in Section 3(f) below. I
further acknowledge that all original works of authorship which are made by
me (solely or jointly with others) within the scope of and during the
period of my employment with the Company and which are protectible by
copyright are "works made for hire," as that term is defined in the United
States Copyright Act.
(iii) Inventions Assigned to the United States. I agree to assign to the
----------------------------------------
United States government all my right, title, and interest in and to any
and all Inventions whenever such full title is required to be in the United
States by a contract between the Company and the United States or any of
its agencies.
(iv) Maintenance of Records. I agree to keep and maintain adequate and current
----------------------
written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records
will be in the form of notes, sketches, drawings, and any other format that
may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(v) Patent and Copyright Registrations. I agree to assist the Company, or its
----------------------------------
designee, at the Company's expense, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments
which the Company shall deem necessary in order to apply for and obtain
such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. I further
agree that my obligation to execute or cause to be executed, when it is in
my power to do so, any such instrument or papers shall continue after the
termination of this Agreement. If the Company is unable because of my
mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States
or foreign patents or copyright registrations covering Inventions or
original works of authorship assigned to the Company as above, then I
hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for
and in my behalf and stead to execute and file any such applications and to
do all other lawfully permitted acts to further the prosecution and
issuance of letters patent or copyright registrations thereon with the same
legal force and effect as if executed by me.
(vi) Exception to Assignments. I understand that the provisions of this
------------------------
Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California
Labor Code Section 2870 (attached hereto as Exhibit B). I will advise the
---------
Company promptly in writing of any inventions that I believe meet the
criteria in California Labor Code Section 2870 and not otherwise disclosed
on Exhibit A.
---------
(d) Conflicting Employment. I agree that, during the term of my employment
----------------------
with the Company, I will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in
which the Company is now involved or becomes involved during the term of my
employment, nor will I engage in any other activities that conflict with my
obligations to the Company.
(e) Returning the Company Documents. I agree that, at the time of leaving the
-------------------------------
employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices,
records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items
developed by me pursuant to my employment with the Company or otherwise
belonging to the Company, its successors or assigns. In the event of the
termination of my employment, I agree to sign and deliver the "Termination
Certification" attached hereto as Exhibit C.
---------
(f) Notification of New Employer. In the event that I leave the employ of the
----------------------------
Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
(g) Solicitation of Employees. I agree that for a period of twelve (12) months
-------------------------
immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly
or indirectly solicit, induce, recruit or encourage any of the Company's
employees to leave their employment, or take away such employees, or
attempt to solicit, induce, recruit, encourage or take away employees of
the Company, either for myself or for any other person or entity.
(h) Conflict of Interest Guidelines. I agree to diligently adhere to the
-------------------------------
Conflict of Interest Guidelines attached as Exhibit D hereto.
---------
(i) Representations. I agree to execute any proper oath or verify any proper
---------------
document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any oral or written
agreement in conflict herewith.
(j) Arbitration and Equitable Relief.
--------------------------------
(i) Arbitration. Except as provided in Section 10(b) below, I agree that any
-----------
dispute or controversy arising out of or relating to any interpretation,
construction, performance or breach of this Agreement, shall be settled by
arbitration to be held in San Francisco County, California, in accordance
with the rules then in effect of the American Arbitration Association. The
arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction. The Company and I
shall each pay one-half of the costs and expenses of such arbitration, and
each of us shall separately pay our counsel fees and expenses.
(ii) Equitable Remedies. I agree that it would be impossible or inadequate to
------------------
measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 2, 3, and 5 herein. Accordingly, I agree
that if I breach any of such Sections, the Company will have available, in
addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such breach
or threatened breach and to specific performance of any such provision of
this Agreement. I further agree that no bond or other security shall be
required in obtaining such equitable relief and I hereby consent to the
issuance of such injunction and to the ordering of specific performance.
(k) General Provisions.
------------------
(i) Governing Law; Consent to Personal Jurisdiction. This Agreement will be
-----------------------------------------------
governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts
located in California for any lawsuit filed there against me by the Company
arising from or relating to this Agreement.
(ii) Entire Agreement. This Agreement sets forth the entire agreement and
----------------
understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this
agreement, will be effective unless in writing signed by the party to be
charged. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this Agreement.
(iii) Severability. If one or more of the provisions in this Agreement are
------------
deemed void by law, then the remaining provisions will continue in full force
and effect.
(iv) Successors and Assigns. This Agreement will be binding upon my heirs,
----------------------
executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
Date: _________________
___________________________________
Signature
___________________________________
Name of Employee (typed or printed)
________________________
Witness
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
---------- ------------ --------------------------
____ No inventions or improvements
____ Additional Sheets Attached
Signature of Employee: __________________________
Print Name of Employee: _________________________
Date: _________________
EXHIBIT B
---------
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
(l) "Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention
to his or her employer shall not apply to an invention that the employee
developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for
those inventions that either:
(i) Relate at the time of conception or reduction to practice of the invention
to the employer's business, or actual or demonstrably anticipated research
or development of the employer.
(ii) Result from any work performed by the employee for the employer.
(m) To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to
be assigned under subdivision (a), the provision is against the public
policy of this state and is unenforceable."
EXHIBIT C
---------
INVENTA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to the Company, its subsidiaries, affiliates, successors or
assigns (the "Company").
I further certify that I have complied with all the terms of the Company's
Employment Confidential Information and Invention Assignment Agreement signed by
me, including the reporting of any inventions and original works of authorship
(as defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not solicit, induce, recruit or
encourage any of the Company's employees to leave their employment.
Date: ___________________ ___________________________
(Employee's Signature)
___________________________
(Type/Print Employee's Name)
EXHIBIT D
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INVENTA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of the Company to conduct its affairs in strict compliance
with the letter and spirit of the law and to adhere to the highest principles of
business ethics. Accordingly, all officers, employees and independent
contractors must avoid activities which are in conflict, or give the appearance
of being in conflict, with these principles and with the interests of the
Company. The following are potentially compromising situations which must be
avoided. Any exceptions must be reported to the President and written approval
for continuation must be obtained.
(n) Revealing confidential information to outsiders or misusing confidential
information. Unauthorized divulging of information is a violation of this
policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and
Invention Assignment Agreement elaborates on this principle and is a
binding agreement.)
(o) Accepting or offering substantial gifts, excessive entertainment, favors or
payments which may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
(p) Participating in civic or professional organizations that might involve
divulging confidential information of the Company.
(q) Initiating or approving personnel actions affecting reward or punishment of
employees or applicants where there is a family relationship or is or
appears to be a personal or social involvement.
(r) Initiating or approving any form of personal or social harassment of
employees.
(s) Investing or holding outside directorship in suppliers, customers, or
competing companies, including financial speculations, where such
investment or directorship might influence in any manner a decision or
course of action of the Company.
(t) Borrowing from or lending to employees, customers or suppliers.
(u) Acquiring real estate of interest to the Company.
(v) Improperly using or disclosing to the Company any proprietary information
or trade secrets of any former or concurrent employer or other person or
entity with whom obligations of confidentiality exist.
(w) Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
(x) Making any unlawful agreement with distributors with respect to prices.
(y) Improperly using or authorizing the use of any inventions which are the
subject of patent claims of any other person or entity.
(z) Engaging in any conduct which is not in the best interest of the Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
EXHIBIT E
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WAIVER, CONSENT AND AMENDMENT
INVENTA CORPORATION
WAIVER, CONSENT AND AMENDMENT
1. The undersigned holders of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock (collectively the
"Preferred Stock") and Common Stock of Inventa Corporation (the "Company")
hereby consent to the issuance by the Company of a number of additional shares
of Common Stock having an aggregate purchase price of $3,000,000 (the "Shares")
in a private placement to certain investors (the "Purchasers") pursuant to the
Private Placement Agreement dated as of January 28, 2000 (the "Placement
Agreement").
2. The undersigned holders of Preferred Stock hereby (i) waive the right
of first refusal granted to such holders pursuant to the Company's Amended and
Restated Shareholders Agreement dated as of January 19, 2000, attached hereto as
Exhibit A (the "Shareholders Agreement"), and any other similar rights they may
---------
have, to purchase the Shares, and (ii) consent to the inclusion of the Shares
among the securities that are excluded from the definition of "New Securities"
as defined in Section 3.3 of the Shareholders Agreement.
3. The undersigned holders of Preferred Stock hereby (i) consent to the
inclusion of the Purchasers as parties to the Amended and Restated Registration
Rights Agreement dated as of January 26, 2000, attached hereto as Exhibit B (the
---------
"Rights Agreement"), and acknowledge that the Purchasers shall be treated as
"Holders" for purposes of the Rights Agreement, and (ii) consent to the
inclusion of the Shares as "Shares" as defined in Section 1 of the Rights
Agreement, and the inclusion of the shares of Common Stock issuable upon
conversion of the Shares as "Registrable Securities" as defined in Section 1 of
the Rights Agreement with the result that the holders of such shares shall be
entitled to exercise the registration rights set forth in the Rights Agreement
on the same basis as the other holders of Registrable Securities.
This Waiver, Consent and Amendment shall be effective with regard to all
holders of Preferred Stock for purposes of the Shareholders Agreement upon
execution by the Company and the holders of a majority in interest of each of
(i) the shares beneficially owned or deemed to be beneficially owned by the
Founder, (ii) the Series C Preferred Stock, and (iii) the Series A Preferred
Stock, Series B Preferred Stock and shares held by the Common Holders (as
defined in the Shareholders Agreement), voting together as a single class, as
provided in Section 9.3 of the Shareholders Agreement.
This Waiver, Consent and Amendment shall be effective with regard to all
holders of Preferred Stock for purposes of the Rights Agreement upon execution
by the Company and the holders of a majority in interest of the Common Stock
issuable upon conversion of the outstanding Preferred Stock as provided in
Section 22 of the Rights Agreement.
This Waiver, Consent and Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument. This Waiver, Consent and Amendment is
executed effective as of February ___, 2000.
THE COMPANY: INVENTA CORPORATION
a California corporation
By:
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"SHAREHOLDERS"
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BANCBOSTON VENTURES INC.
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By:
----------------------------------
Name:
Title:
BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP
By: ▇▇▇▇ Partners Limited Partnership,
its General Partner
By:
----------------------------------
General Partner
[Signature Page to Amended and Restated Registration Rights Agreement]
2
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE CHASE MANHATTAN BANK AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST
By:
----------------------------------
Title:
-------------------------------
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Electra ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ G. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Charitable Annuity Trust, u/d/t
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[Signature Page to Amended and Restated Registration Rights Agreement]
3
ESSEX PRIVATE PLACEMENT FUND II, LIMITED PARTNERSHIP
By: Essex Investment Mgt. Company LLC
Its General Partner
By:
----------------------------------
Its:
---------------------------------
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
PRIVATE EQUITY PORTFOLIO II, LLC
By:
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[Signature Page to Amended and Restated Registration Rights Agreement]
4
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
[Signature Page to Amended and Restated Registration Rights Agreement]
5
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
[Signature Page to Amended and Restated Registration Rights Agreement]
6
BOSTON MILLENNIA ASSOCIATES I PARTNERSHIP
By: ▇▇▇▇ Partners Limited Partnership,
its General Partner
By:
----------------------------------
General Partner
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Gauri ▇. ▇▇▇▇▇▇▇
[Signature Page to Amended and Restated Registration Rights Agreement]
7
EXHIBIT A
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RESTATED SHAREHOLDERS AGREEMENT
EXHIBIT B
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
2