Exhibit 10.16
EXECUTION VERSION
PRINTCAFE, INC.
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
FIRST CLOSING:
OCTOBER 30, 2000
TABLE OF CONTENTS
-----------------
PAGE
1. PURCHASE AND SALE OF PREFERRED STOCK....................................................................1
1.1 Sale and Issuance of Series E Preferred Stock..................................................1
1.2 Closing; Delivery..............................................................................1
1.3 Subsequent Sales of Series E-1 Preferred Stock.................................................2
1.4 Acknowledgements of the Company to Creo........................................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................3
2.1 Organization, Good Standing and Qualification..................................................3
2.2 Capitalization.................................................................................3
2.3 Rights of Registration and Voting Rights.......................................................5
2.4 Subsidiaries; Joint Ventures...................................................................5
2.5 Authorization..................................................................................5
2.6 Valid Issuance of Securities...................................................................5
2.7 Governmental Consents..........................................................................6
2.8 Litigation.....................................................................................6
2.9 Intellectual Property..........................................................................6
2.10 Confidential Information and Invention Assignment Agreements...................................7
2.11 Compliance with Other Instruments..............................................................7
2.12 Agreements; Action.............................................................................8
2.13 No Conflict of Interest........................................................................8
2.14 Title to Property and Assets...................................................................9
2.15 Financial Statements...........................................................................9
2.16 Changes........................................................................................9
2.17 Distributions.................................................................................10
2.18 Tax Returns and Payments......................................................................11
2.19 Insurance.....................................................................................11
2.20 Employee Benefit Plans........................................................................11
2.21 Labor Agreements and Actions..................................................................11
2.22 Compliance with Environmental Requirements....................................................11
2.23 Permits.......................................................................................12
2.24 Private Offering..............................................................................12
2.25 Brokers and Finders...........................................................................12
2.26 Certificate of Incorporation..................................................................12
2.27 Bylaws........................................................................................12
2.28 Disclosure....................................................................................12
2.29 Compliance with Other Laws....................................................................13
2.30 Aggregate Acquisition Cost....................................................................13
2.31 Manner of Offering of Creo Shares.............................................................13
2.32 Qualified Institutional Buyer or Accredited Investor..........................................13
2.33 Legends.......................................................................................13
3. INTERPRETATION.........................................................................................14
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.......................................................14
4.1 Authorization.................................................................................14
4.2 Purchase Entirely for Own Account.............................................................14
4.3 Disclosure of Information.....................................................................14
i
TABLE OF CONTENTS
-----------------
PAGE
4.4 Restricted Securities.........................................................................15
4.5 No Public Market..............................................................................15
4.6 Legends.......................................................................................15
4.7 Qualified Institutional Buyer or Accredited Investor..........................................15
4.8 Foreign Investors.............................................................................15
4.9 Manner of Offering............................................................................16
4.10 Nature of Purchaser...........................................................................16
5. COVENANTS OF THE COMPANY...............................................................................16
5.1 Compliance....................................................................................16
5.2 Performance...................................................................................16
5.3 Books and Records.............................................................................16
5.4 Renewals and Good Standing....................................................................17
5.5 Principal Business............................................................................17
5.6 Proprietary Information and Assignment Agreement..............................................17
5.7 Stock Options.................................................................................17
5.8 Securities Filings............................................................................17
5.9 Investment of Funds...........................................................................17
5.10 Compliance with Other Transaction Documents...................................................17
5.11 Survival of Company's Covenants...............................................................17
6. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT THE CLOSING...............................................18
6.1 Representations and Warranties................................................................18
6.2 Performance...................................................................................18
6.3 Compliance Certificate........................................................................18
6.4 Qualifications................................................................................18
6.5 Written Consents..............................................................................18
6.6 Stock Certificates............................................................................18
6.7 Restated Certificate..........................................................................18
6.8 Restated Investors' Rights Agreement..........................................................18
6.9 Restated Co-Sale Agreement....................................................................19
6.10 Restated Voting Agreement.....................................................................19
6.11 Confidential Information and Invention Assignment Agreement...................................19
6.12 No Material Adverse Change....................................................................19
6.13 Company Legal Opinions........................................................................19
6.14 No Litigation.................................................................................19
6.15 Proceedings and Documents.....................................................................19
6.16 Closing Documents.............................................................................20
6.17 Debt Restructuring............................................................................21
6.18 General.......................................................................................21
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING.................................................21
7.1 Representations and Warranties................................................................21
7.2 Performance...................................................................................21
7.3 Qualifications................................................................................21
7.4 Creo Legal Opinion............................................................................21
7.5 Tender and Cancellation of Notes..............................................................22
ii
TABLE OF CONTENTS
-----------------
PAGE
7.6 Delivery of Creo Shares.......................................................................22
8. MISCELLANEOUS..........................................................................................22
8.1 Survival of Warranties........................................................................22
8.2 Entire Agreement..............................................................................22
8.3 Transfer; Successors and Assigns..............................................................22
8.4 Governing Law.................................................................................22
8.5 Counterparts..................................................................................22
8.6 Titles and Subtitles..........................................................................22
8.7 Notices.......................................................................................23
8.8 Finder's Fee..................................................................................23
8.9 Attorneys' Fees...............................................................................23
8.10 Amendments and Waivers of Agreement...........................................................23
8.11 Severability..................................................................................23
8.12 Delays or Omissions...........................................................................23
8.13 Confidentiality...............................................................................24
8.14 Exculpation Among Purchasers..................................................................24
8.15 Indemnification...............................................................................24
8.16 Press Release.................................................................................24
8.17 Use of Proceeds...............................................................................25
8.18 Expenses......................................................................................25
iii
PRINTCAFE, INC.
SERIES E PREFERRED STOCK PURCHASE AGREEMENT
-------------------------------------------
This Series E Preferred Stock Purchase Agreement (this "AGREEMENT") is
made as of October 30, 2000 by and among printCafe, Inc., a Delaware corporation
(the "COMPANY"), Creo Products, Inc, a corporation incorporated under the laws
of Canada ("Creo") and the investors listed on EXHIBIT A attached hereto (each a
"PURCHASER" and together the "PURCHASERS").
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 SALE AND ISSUANCE OF SERIES E PREFERRED STOCK.
(a) The Company shall adopt and file with the Secretary of State
of the State of Delaware on or before the Closing (as defined in Section 1.2(a)
below) the Fifth Amended and Restated Certificate of Incorporation in the form
attached hereto as EXHIBIT B (the "RESTATED CERTIFICATE").
(b) Subject to the terms and conditions of this Agreement, each
Purchaser identified as an "INITIAL PURCHASER" on EXHIBIT A hereto agrees to
purchase at the Closing (as defined below), and the Company agrees to sell and
issue to each Purchaser at the Closing, that number of shares of the Company's
Series E-1 Preferred Stock, Series E-2 Preferred Stock and/or Series E-3
Preferred Stock (collectively, "SERIES E PREFERRED STOCK"), $0.0001 par value
per share, set forth opposite each such Initial Purchaser's name on Exhibit A
attached hereto at a purchase price of $4.00 per share. The shares of Series E-1
Preferred Stock, Series E-2 Preferred Stock and Series E-3 Preferred Stock
issued to the Purchasers pursuant to this Agreement shall be hereinafter
referred to as the "STOCK."
1.2 CLOSING; DELIVERY.
(a) The purchase and sale of the Stock shall take place at the
executive offices of the Company, at 10:00 a.m., on October 30, 2000, or at such
other time and place as the Company and the Purchasers mutually agree upon,
orally or in writing (which time and place are designated as the initial
"Closing" and the date of which is designated the "CLOSING DATE").
(b) At the Closing, the Company shall deliver to each Initial
Purchaser a certificate representing the Stock being purchased by such Initial
Purchaser against payment of the purchase price therefor by check payable to the
Company, by wire transfer to the Company's bank account, by cancellation of
outstanding indebtedness to the Company or combination thereof, or, in
combination with the foregoing, by the delivery to the Company of 692,433 shares
of Common Stock of Creo. (the "Creo Shares"). Creo and Creo SRL acknowledge that
the Series E Preferred Stock purchased under this Agreement in exchange for the
Creo Shares will be registered in the name of Creo SRL.
1.3 SUBSEQUENT SALES OF SERIES E-1 PREFERRED STOCK. On or prior to
thirty (30) days after the initial Closing, the Company may issue and sell
additional shares of Series E-1 Preferred Stock, on the same terms as set forth
herein, to one or more additional investors (the "Additional Purchasers"). The
shares of Series E-1 Preferred Stock sold pursuant to this Section 1.3 shall be
deemed to be "Series E Preferred Stock" and shall be deemed to be "Stock" sold
pursuant to this Agreement, the Additional Purchasers and the Initial Purchasers
shall each be deemed to be "Purchasers" for all purposes under this Agreement,
and such subsequent sales shall be deemed to occur at a "Closing" and the date
of any such Closing shall be deemed to be a "Closing Date." The Additional
Purchasers shall become a party to this Agreement, the Restated Investors'
Rights Agreement (as defined below), the Restated Co-Sale Agreement (as defined
below) and the Restated Voting Agreement (as defined below) in each case by
signing a counterpart signature page hereto and thereto. EXHIBIT A to this
Agreement shall be updated to reflect the sale of Series E Preferred Stock
pursuant to this Section 1.3. In no event shall the addition of such additional
Purchasers be deemed to be an amendment of this Agreement, the Restated
Investors' Rights Agreement or the Restated Co-Sale Agreement which, in any such
case, requires the consent of parties to those agreements other than the
Company.
1.4 ACKNOWLEDGEMENTS OF THE COMPANY TO CREO. The Company hereby
acknowledges to Creo that:
(a) As the sale of the Creo Shares to the Company is being
completed pursuant to exemptions from the requirements to provide the Company
with a prospectus and to sell the securities subscribed for herein through a
person registered to sell securities under the Securities Act (British
Columbia), as amended (the "BC Securities Act") and the Securities Rules, BC
Reg. 194/97, as amended (the "BC Rules"):
(i) certain protections, rights and remedies provided by the
Act, including statutory rights of rescission or damages, will not be available
to the Company and the Company may not receive information that it would be
entitled to under BC Securities, the Act and BC Rules if no prospectus exemption
was available;
(ii) Creo is relieved of certain obligations which would
otherwise apply under applicable securities legislation; and
(iii) various filings must be completed and disclosures made
to the securities regulatory authorities in British Columbia.
(b) No securities commission or similar regulatory authority has
reviewed or passed on the merits of the securities subscribed for herein;
(c) There is no government or other insurance covering the Creo
Shares subscribed for herein.
(d) The Creo Shares subscribed for herein are subject to
restrictions on the Company's ability to resell such Creo Shares and it is the
responsibility of the Company to comply all applicable restrictions before
selling any such Creo Shares and that, in particular, the
2
Creo Shares are subject to a four month hold period in British Columbia (the
"British Columbia Hold Period").
(e) Certain representations and warranties in this Agreement of
the Company will be relied upon by Creo in determining, among other things,
whether this Agreement and the issuance of the Creo Shares is in compliance with
applicable securities laws.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that (acknowledging that each
Purchaser is relying on the representations and warranties set forth in this
Section 2 in connection with the purchase of the Stock by such Purchaser),
except as set forth on the Schedule of Exceptions attached hereto as EXHIBIT C:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business. The Company is duly qualified as a foreign corporation or
is otherwise duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would, either individually or in
the aggregate, have a material adverse effect on its business or properties.
2.2 CAPITALIZATION. Immediately prior to the Closing, the authorized
capital of the Company shall consist of:
(a) 115,698,205 shares of Preferred Stock, of which (i)
2,500,000 shares have been designated Series A Preferred Stock, 2,455,798 of
which will be issued and outstanding immediately prior to the Closing, (ii)
10,250,000 shares have been designated Series A-1 Preferred Stock, 9,618,842 of
which will be issued and outstanding immediately prior to the Closing, (iii)
31,250,000 have been designated Series B Preferred Stock, 31,186,312 of which
will be issued and outstanding immediately prior to the Closing, (iv) 31,250,000
have been designated Series B-1 Preferred Stock, none of which will be issued
and outstanding immediately prior to the Closing, (v) 1,905,080 have been
designated Series C Preferred Stock, 1,765,080 of which will be issued and
outstanding immediately prior to the Closing, (vi) 160,000 have been designated
Series C-1 Preferred Stock, all of which will be issued and outstanding
immediately prior to the Closing, (vii) 253,125 shares of Series D Preferred
Stock, 58,125 of which will be issued and outstanding immediately prior to the
Closing, (viii) 255,000 shares of Series D-1 Preferred Stock, 225,000 of which
will be issued and outstanding immediately prior to the Closing, (ix) 18,750,000
shares of Series E-1 Preferred Stock, none of which will be issued and
outstanding immediately prior to the Closing, (x) 3,125,000 shares of Series E-2
Preferred Stock, none of which will be issued and outstanding immediately prior
to the Closing, (xi) 8,000,000 shares of Series E-3 Preferred Stock, none of
which will be issued and outstanding immediately prior to the Closing, and (xii)
8,000,000 shares of Series E-4 Preferred Stock, none of which will be issued and
outstanding prior to the Closing. The rights, privileges and preferences of the
Preferred Stock are as stated in the Restated Certificate. All of the
outstanding shares of Preferred Stock have been duly authorized, fully paid and
nonassessable and issued in compliance with all applicable federal and state
Stock laws.
3
(b) 329,632,502 shares of Common Stock, of which (i) 250,000,000
have been designated Class A Common Stock, 9,709,046 of which are issued and
outstanding immediately prior to the Closing, (ii) 31,250,000 have been
designated Class B Common Stock, none of which are issued and outstanding
immediately prior to the Closing, (iii) 31,250,000 have been designated Class
B-1 Common Stock, none of which are issued and outstanding immediately prior to
the Closing, (iv) 9,132,000 have been designated Class C Common Stock, 9,132,502
of which will be issued and outstanding prior to the Closing and (v) 8,000,000
have been designated Class C-1 Common Stock, none of which will be issued and
outstanding prior to the Closing. All of the outstanding shares of Common Stock
have been duly authorized, fully paid and are nonassessable and issued in
compliance with all applicable federal and state securities laws.
(c) The Company has reserved (i) 380,915 shares of Class A
Common Stock and 525,822 shares of Series A-1 Preferred Stock (collectively,
"OPTION STOCK") for issuance to officers, directors, employees and consultants
of the Company pursuant to its 1999 Revised Stock Plan duly adopted by the Board
of Directors and approved by the Company's stockholders (the "1999 REVISED STOCK
PLAN"), and (ii) 10,000,000 shares of Class A Common Stock for issuance to
officers, directors, employees and consultants of the Company pursuant to its
2000 Incentive Stock Plan duly adopted by the Board of Directors and approved by
the Company's stockholders (the "2000 INCENTIVE STOCK PLAN" and, together with
the 1999 Revised Stock Plan, the "STOCK PLANS"). Of such reserved shares of
Option Stock under the 1999 Revised Stock Plan, no shares have been issued
pursuant to restricted stock purchase agreements, options to purchase 380,915
shares of Class A Common Stock and 525,822 shares of Series A-1 Preferred Stock
have been granted, of which options to purchase 375,268 shares of Class A Common
Stock and 477,091 shares of Series A-1 Preferred Stock are currently
outstanding, and no shares of Class A Common Stock remain available for issuance
to officers, directors, employees and consultants pursuant to the 1999 Revised
Stock Plan. Of such reserved shares of Class A Common Stock under the 2000
Incentive Stock Plan, no shares have been issued pursuant to restricted stock
purchase agreements, options to purchase 4,343,635 shares of Class A Common
Stock have been granted, of which 4,285,465 are currently outstanding, and
5,714,535 shares of Class A Common Stock remain available for issuance to
officers, directors, employees and consultants pursuant to the 2000 Incentive
Stock Plan.
(d) Except for outstanding options issued pursuant to the Stock
Plans and the warrants listed in Section 2.2 of the Schedule of Exceptions,
there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal or similar rights) or agreements,
orally or in writing, for the purchase or acquisition from the Company of any
shares of its capital stock.
(e) As of the date hereof, Creo SRL has not exercised the Series
B Preferred Stock Voting Conversion Right (as defined in the Restated
Certificate).
2.3 RIGHTS OF REGISTRATION AND VOTING RIGHTS. Except as contemplated
in the Third Amended and Restated Investors' Rights Agreement, in the form
attached hereto as EXHIBIT D (the "RESTATED INVESTORS' RIGHTS AGREEMENT"), the
Company has not granted or agreed to grant any registration rights, including
piggyback registration rights, to any person or entity.
4
To the Company's knowledge, except as contemplated in the Third Amended and
Restated Voting Agreement, in the form attached hereto as EXHIBIT E (the
"RESTATED VOTING Agreement"), no stockholder of the Company has entered into any
agreements with respect to the voting of capital stock of the Company. Except as
contemplated by the Restated Certificate, the Restated Voting Agreement and the
Third Amended and Restated Right of First Refusal and Co-Sale Agreement, in the
form attached hereto as EXHIBIT F (the "RESTATED CO-SALE AGREEMENT"), there are
no stockholders agreements, pledge agreements, buy-sell arrangements, rights of
first refusal or proxies related to any securities of the Company to which the
Company is subject or a party or to which, to the Company's knowledge, any
stockholder, officer, director or affiliate of the Company is a party or
subject.
2.4 SUBSIDIARIES; JOINT VENTURES. The Company does not currently own
or control, directly or indirectly, any interest in any other corporation,
association, or other business entity other than the subsidiaries set forth on
Schedule 2.4 of the Schedule of Exceptions (the "SUBSIDIARIES"). The Company
holds all of the issued any outstanding capital stock of each of the
Subsidiaries. The Company is not a participant in any joint venture, partnership
or similar arrangement.
2.5 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the Restated Investors' Rights
Agreement, the Restated Voting Agreement and the Restated Co-Sale Agreement
(collectively, the "TRANSACTION DOCUMENTS"), the performance of all obligations
of the Company hereunder and thereunder and the authorization, issuance and
delivery of the Stock and the Common Stock issuable upon conversion of the Stock
(together, the "SECURITIES") has been taken or will be taken prior to the
Closing, and the Transaction Documents, when executed and delivered by the
Company, shall constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and other laws of general application
affecting enforcement of creditors' rights generally, as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, or (ii) to the extent the indemnification provisions
contained in the Restated Investors' Rights Agreement may be limited by
applicable federal or state securities laws. All corporate action on the part of
the Company and its predecessors, officers, directors, stockholders and
subsidiaries necessary for the authorization, execution and/or delivery, as
applicable, for all past corporate actions was obtained.
2.6 VALID ISSUANCE OF SECURITIES. The Stock that is being issued to
the Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free and clear of all preemptive
rights, rights of first refusal, liens, charges, restrictions, claims and any
other encumbrances imposed by or through the Company other than restrictions on
transfer under this Agreement, the Restated Investors' Rights Agreement, the
Restated Co-Sale Agreement and applicable state and federal securities laws of
the United States. Based in part upon the representations of the Purchasers in
this Agreement and subject to the provisions of Section 2.7 below, the Stock
will be issued in compliance with all applicable federal and state
5
securities laws. The Common Stock issuable upon conversion of the Stock has been
duly and validly reserved for issuance and, upon issuance in accordance with the
terms of the Restated Certificate, shall be duly and validly issued, fully paid
and nonassessable and free and clear of all preemptive rights, rights of first
refusal, liens, charges, restrictions, claims and any other encumbrances imposed
by or through the Company other than restrictions on transfer under this
Agreement, the Restated Investors' Rights Agreement, the Restated Co-Sale
Agreement and applicable federal and state securities laws and will be issued in
compliance with all applicable federal and state securities laws of the United
States and, where applicable, provincial securities laws of Canada.
2.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority of the United
States is required in connection with the consummation of the transactions
contemplated by this Agreement, except for filings pursuant to applicable state
securities laws and Regulation D of the Securities Act of 1933, as amended (the
"SECURITIES ACT"). Based in part on the representations of the Purchasers set
forth in Section 4 hereof, the offer, sale and issuance of the Stock, in
accordance with the terms hereof for the consideration expressed herein, are
exempt from the registration requirements of Section 5 of the Securities Act and
from the qualification requirements of applicable state securities laws.
2.8 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of the Subsidiaries, or any basis therefor known to
the Company, that questions the validity of the Transaction Documents or the
right of the Company to enter into them, or to consummate the transactions
contemplated hereby or thereby, or that might result, either individually or in
the aggregate, in any material adverse change in the financial condition,
assets, liabilities, operations or financial performance of the Company,
financially or otherwise, or any change in the current equity ownership of the
Company. Neither the Company nor any of the Subsidiaries is a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company or any of the Subsidiaries currently
pending or which the Company or any of the Subsidiaries intends to initiate. The
foregoing includes, without limitation, actions pending or threatened (or any
basis therefor known to the Company) involving the prior employment of any of
the Company's employees, their use in connection with the Company's business of
any information or technologies allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers.
2.9 INTELLECTUAL PROPERTY. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, tradenames, copyrights,
trade secrets, licenses, information and proprietary rights and processes
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary for its business
without any conflict with, or infringement of, the rights of others. To the
Company's knowledge, no third party is infringing or violating any of the
Company's Intellectual Property Rights. The Company has not received any written
communications alleging that the Company has violated or, by conducting its
business, would violate any of the Intellectual Property Rights of any other
person or entity. There are no outstanding options, licenses or agreements of
any kind related to the foregoing, nor is the Company bound by, or a
6
party to, any options, licenses or agreements of any kind with respect to
Intellectual Property of any other forms.
2.10 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENTS.
Each director, officer, independent contractor, consultant and employee of the
Company (collectively, "SERVICE PROVIDERS") have entered into an agreement with
the Company regarding confidentiality, non-solicitation of employees and
customers and assignment of all Intellectual Property Rights, technical
information and other information developed and/or worked on by such Service
Provider while employed or engaged with the Company (each, a "CONFIDENTIALITY
AND INVENTION ASSIGNMENT AGREEMENT"). To the Company's knowledge, (i) no past or
present Service Provider is in violation of any term of any Confidentiality and
Invention Assignment Agreement between the Company and such Service Provider;
and (ii) it is not nor will it be necessary to use any inventions of any of its
Service Providers (or persons it currently intends to hire) made prior to their
employment or engagement by the Company. Each Service Provider hired or engaged
by the Company after the date hereof shall, prior to their employment or
engagement with the Company, enter into a Confidentiality and Invention
Assignment Agreement with the Company.
2.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation in any respect or default of any provisions of its Restated
Certificate or Bylaws or of any provision, instrument, agreement, commitment,
arrangement, license, judgment, order, writ, decree or contract to which it is a
party or by which it is bound or of any provision of federal or state statute,
rule or regulation applicable to the Company, which violation or default is
reasonably likely to result in a material adverse effect on the financial
condition, assets, liabilities, operations or financial performance of the
Company. No event has occurred which with the passage of time or the giving of
notice, or both, would constitute a material breach of or default under any of
the foregoing, which material violation or breach or default is reasonably
likely to result in a material adverse effect on the financial condition,
assets, liabilities, operations or financial performance of the Company. The
execution, delivery and performance of the Transaction Documents and the
consummation of the transactions contemplated thereby will not result in any
such violation or breach or be in conflict with or constitute, with or without
the passage of time and giving of notice, either a default under any such
provision, agreement, commitment, arrangement, license, instrument, judgment,
order, writ, decree or contract or an event which results in the creation of any
lien, charge or encumbrance upon any assets of the Company. Neither the
execution or delivery of this Agreement, nor the carrying on of the Company's
business by the employees of the Company, nor the conduct of the Company's
business as proposed, will conflict in any material respect with or result in a
material breach of the terms, conditions, or provisions of, or constitute a
default under, any contract, covenant or instrument under which any of the
Company's employees is now obligated.
2.12 AGREEMENTS; ACTION.
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates
or any affiliate thereof.
7
(b) Except as explicitly contemplated by the Transaction
Documents, and agreements entered into in the ordinary course of business, there
are no agreements, understandings, instruments, contracts or proposed
transactions to which the Company or any of the Subsidiaries is a party or by
which it is bound that involve (i) obligations (contingent or otherwise) of, or
payments to, the Company or any of the Subsidiaries in excess of $50,000, (ii)
the license of any patent, copyright, trade secret or other proprietary right to
or from the Company or any of the Subsidiaries, or (iii) the grant of rights to
manufacture, produce, assemble, license, market, or sell its products to any
other person or affect the Company's exclusive right to develop, manufacture,
assemble, distribute, market or sell its products.
(c) Neither the Company nor any of the Subsidiaries has (i)
declared or paid any dividends, or authorized or made any distribution upon or
with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $50,000 or in excess of $100,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances to the Company's
employees for business expenses, or (iv) sold, exchanged or otherwise disposed
of any of its assets or rights, other than the sale of its inventory in the
ordinary course of business.
(d) Except as disclosed in Section 2.12 of the Schedule of
Exceptions or as set out in the Transaction Documents, the Company has not
entered into any binding letters of intent with any corporation, partnership,
association, other business entity or any individual regarding (i) the
consolidation or merger of the Company with or into any such corporation or
other business entity, (ii) the sale, conveyance or disposition of all or
substantially all of the assets of the Company or a transaction or series of
transactions in which more than 50% of the voting power of the company is
disposed of, or (iii) any other form of acquisition, liquidation, dissolution or
winding-up of the Company.
2.13 NO CONFLICT OF INTEREST. The Company is not indebted, directly
or indirectly, to any of its officers or directors, in any amount whatsoever,
other than in connection with expenses or advances of expenses incurred in the
ordinary course of business or relocation expenses of employees. None of the
Company's officers or directors are, directly or indirectly, indebted to the
Company (other than in connection with purchases of the Company's stock) or, to
the Company's knowledge, have any direct or indirect ownership interest in any
firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation which competes
with the Company (other than ownership of stock in, but not exceeding two
percent (2%) of the outstanding capital stock of, any publicly traded company
that competes with the Company). To the Company's knowledge, none of the
Company's officers or directors are, directly or indirectly, interested in any
material contract with the Company. The Company is not a guarantor of any
indebtedness of any other person, firm or corporation.
2.14 TITLE TO PROPERTY AND ASSETS. The Company has good and valid
title to all of its properties and assets, both real and personal, and has good
title to all its leasehold interests, in each case free and clear of all
mortgages, liens, pledges, loans, security interests, conditional sales
agreements, encumbrances or charges, except for Permitted Liens (as defined
below). The Company owns or leases all properties and assets reasonably
necessary to the
8
operation of its business as now conducted. With respect to the property and
assets it leases, the Company is in compliance with such leases and, to the
Company's knowledge, holds a valid leasehold interest free of any liens, claims
or encumbrances, except for Permitted Liens. For purposes of this Agreement,
"Permitted Liens" shall mean any (a) mechanics', carriers', workers' and other
similar liens arising in the ordinary course of business which are not
delinquent and which in the aggregate are not material in amount, and do not
interfere with the present use of the assets of the Company to which they apply;
(b) liens for current taxes and assessments not yet due and payable; (c) liens
and encumbrances that have arisen in the ordinary course of business and that do
not (in any case or in the aggregate) materially detract from the value of the
assets subject thereto or materially impair the operations of the Company; and
(d) with respect to any asset of the Company which consists of a leasehold or
other possessory interest in real property, all encumbrances, covenants,
imperfections in title, easements, restrictions and other title matters (whether
or not the same are recorded) not known to the Company to which the underlying
fee estate in such real property is subject which were not created by or
incurred by the Company.
2.15 FINANCIAL STATEMENTS. Attached hereto as EXHIBIT G are the
audited consolidated balance sheet, statement of operations and statement of
cash flows of the Company for the fiscal year ended December 31, 1999 and the
unaudited consolidated balance sheet, statement of operations and statement of
cash flows of the Company for the fiscal quarter ended June 30, 2000
(collectively, the "FINANCIAL STATEMENTS"). The Financial Statements have been
prepared in accordance with generally accepted accounting principles
consistently applied (except that the unaudited financial statements do no
contain footnotes and are subject to normal year-end audit adjustments). The
Financial Statements are complete in all material respects and in accordance
with the books and records of the Company and fairly present the financial
condition and operating results of the Company as of the dates, and for the
periods, indicated therein (except that the unaudited financial statements do no
contain footnotes and are subject to normal year-end audit adjustments). Except
as set forth in the Financial Statements, the Company has no material
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to June 30, 2000, (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in the
Financial Statements, and (iii) performance obligations of the Company under the
Transaction Documents.
2.16 CHANGES. Since June 30, 2000 there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
(b) any damage, destruction, loss or other occurrence or
development materially and adversely affecting the business, properties or
financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable right
or any material debt owed to it;
9
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, business, properties
or financial condition or operating results of the Company;
(e) any material change or amendment to a material contract or
agreement by which the Company or any of its assets or properties is bound or
subject;
(f) any material change or amendment in any compensation
arrangement or agreement with any employee, officer, director or stockholder;
(g) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any officer
or key employee of the Company; and the Company, is not aware of any impending
resignation or termination of employment of any such officer or key employee;
(i) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company, with respect to any of its material properties or
assets, except for Permitted Liens;
(j) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(k) any declaration, setting aside or payment or other
distribution in respect to any of the Company's capital stock, or any direct or
indirect redemption, purchase, or other acquisition of any of such stock by the
Company;
(l) to the Company's knowledge, any other event or condition of
any character that might materially and adversely affect the business,
properties or financial condition of the Company; or (m) any arrangement or
commitment by the Company to do any of the things described in this Section
2.16.
2.17 DISTRIBUTIONS. There has been no declaration or payment by the
Company of any dividend, nor any distribution by the Company of any assets of
any kind, to any of its stockholders.
2.18 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns
and reports as required by applicable law and such tax returns and reports are
true and correct in all material respects. The Company has paid all taxes, fees,
assessments and other governmental charges upon the Company, or upon any of its
properties, income, or franchises, shown in such returns and on assessments
received by the Company to be due as of the date hereof and no such taxes or
assessments are being contested.
10
2.19 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed, and the Company has such other insurance
policies and coverages as are customary in the Company's industry.
2.20 EMPLOYEE BENEFIT PLANS. Section 2.20 of the Schedule of
Exceptions sets forth all currently effective employment contracts, deferred
compensation arrangements, bonus plans, incentive plans, profit sharing plans,
retirement agreements or other employee compensation agreements. The Company
does not have any Employee Benefit Plan as defined in the Employee Retirement
Income Security Act of 1974, as amended.
2.21 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the financial condition, assets, liabilities,
operations or financial performance of the Company, nor is the Company aware of
any labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company.
The services of each consultant and independent contractor is terminable by the
Company upon not more than thirty (30) days prior written notice. To its
knowledge, the Company has complied in all material respects with all applicable
state and federal equal employment opportunity laws and with other laws related
to employment.
2.22 COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. To the Company's
knowledge, it has obtained all material permits, licenses and other
authorizations required under federal, state and local laws relating to
pollution or protection of the environment. The Company has not violated any
applicable Environmental Law, the violation of which is reasonably likely to
result in a material adverse change in the financial condition, assets,
liabilities, operations or financial performance of the Company. To the
knowledge of the Company, there are no present requirements of any applicable
Environmental Law which is due to be imposed upon it which will materially
increase its cost of complying with the Environmental Laws. All past on-site
generation, treatment, storage and disposal of Waste, including Hazardous Waste,
by the Company and, to its knowledge, by its predecessors have been done in
compliance with the currently applicable Environmental Laws, and all past
off-site treatment, storage and disposal of Waste, including Hazardous Waste,
generated by the Company and, to its knowledge, by its predecessors have been
done in compliance with the currently applicable Environmental Laws. As used in
this Agreement, the terms (i) "Environmental Laws" include, but are not limited
to, any federal, state, local or foreign law, statute, charter or ordinance, and
any rule, regulation, binding interpretation, binding policy, permit, order,
court order or consent decree issued pursuant to any of the foregoing, which
pertains to, governs or otherwise regulates any of the following activities,
including, without limitation, (a) the emission, discharge, release or spilling
of any substance into the air, surface water, groundwater, soil or substrata;
(b) the manufacturing, processing, sale, generation, treatment, storage,
disposal labeling or other management of any
11
Waste, Hazardous Substance or Hazardous Waste, and (ii) "Waste," "Hazardous
Substance," and "Hazardous Waste" include any substance defined as such by any
applicable Environmental Law.
2.23 PERMITS. The Company and each of the Subsidiaries has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business, the lack of which could materially and adversely affect
the business, properties or financial condition of the Company and, to its
knowledge, it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Company is not
in default in any material respect under any of such franchises, permits,
licenses or other similar authority.
2.24 PRIVATE OFFERING. Neither the Company nor anyone acting on its
behalf has offered any of the Stock or similar securities for issuance or sale
to, or solicited any offer to acquire any of the same from, anyone so as to make
the issuance and sale of the Stock subject to registration requirements of
Section 5 of the Securities Act.
2.25 BROKERS AND FINDERS. Other than ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation (hereafter "DLJ"), the Company has not retained any
investment banker, broker, finder or any other third party in connection with
the transactions contemplated by this Agreement.
2.26 CERTIFICATE OF INCORPORATION. At the time of Closing, the
Company's certificate of incorporation on file with the Secretary of the State
of Delaware shall be in the form of the Restated Certificate, and no action
shall have been taken to amend or modify such Restated Certificate.
2.27 BYLAWS. The Bylaws of the Company are in the form attached
hereto as EXHIBIT H and no action has been taken to amend or modify such Bylaws.
2.28 DISCLOSURE. The Company has provided the Purchasers with all
the information that the Purchasers have requested in writing for deciding
whether to acquire the Stock. This Agreement, including all representations
herein by the Company, and any exhibits hereto or any certificate furnished or
to be furnished to Purchasers at the Closing, taken together, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made.
2.29 COMPLIANCE WITH OTHER LAWS. The Company has complied in all
material respects with all laws, statutes, rules, regulations and orders of
federal, state, local and foreign agencies and authorities, applicable to its
business, properties and operations.
2.30 AGGREGATE ACQUISITION COST. The Company is purchasing the Creo
Shares as principal, and the aggregate acquisition cost of the Creo Shares is
not less than Cdn.$97,000.
12
2.31 MANNER OF OFFERING OF CREO SHARES. To the best of the Company's
knowledge, the offer and sale of the Creo Shares is not being accompanied by an
advertisement and no selling or promotional expenses have been paid or incurred
in connection with the offer and sale. No "offering memorandum" within the
meaning of the BC Securities Act has been delivered to the Company in connection
with the offering of the Creo Shares. The Company confirms that Creo has made
available to the Company the opportunity to ask questions of their officers and
management employees and to acquire additional information about the business
and financial condition of Creo in connection with the Company's decision to
acquire the Creo Shares.
2.32 QUALIFIED INSTITUTIONAL BUYER OR ACCREDITED INVESTOR. The
Company is a "Qualified Institutional Buyer" as defined in Rule 144A under the
Securities Act (a "QIB") or an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
2.33 LEGENDS. The Company acknowledges that the certificates
evidencing the Creo Shares will bear, in addition to any legend required by the
other Transaction Documents and any other agreements among the parties hereto
and by law of any applicable jurisdiction, substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE
SUCH A REGISTRATION IS IN EFFECT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A HOLD
PERIOD AND MAY NOT BE TRADED IN BRITISH COLUMBIA UNTIL THE EXPIRY
OF THAT HOLD PERIOD AT 12:00 A.M. ON FEBRUARY 28, 2001, OR EXCEPT
AS PERMITTED BY THE SECURITIES ACT (BRITISH COLUMBIA) AND THE
SECURITIES RULES THERETO. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO A HOLD PERIOD IN ONTARIO.
ACCORDINGLY THE SHARES MAY ONLY BE RESOLD IN ACCORDANCE WITH
APPLICABLE U.S. AND CANADIAN SECURITIES REGULATORY REQUIREMENTS
PENDING THE EXPIRATION OF SUCH HOLD PERIODS.
THE HOLDER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN OBLIGATIONS CONTAINED IN A DEBT SETTLEMENT
AGREEMENT DATED AS OF OCTOBER 30, 2000, A COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE ISSUER
HEREOF, AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF
SUCH SHARES UPON WRITTEN REQUEST.
13
3. INTERPRETATION.
(a) For the purposes of the representations and warranties contained
in Section 2, whenever "to the Company's knowledge" or "to its knowledge" is
used, it means to the knowledge of the officers and directors of the Company
after making such diligent inquiry as may be reasonable under the circumstances.
(b) For the purposes of the representations and warranties contained
in Section 2, all references to the "Company" shall be deemed to include the
Subsidiaries.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company that:
4.1 AUTHORIZATION. Such Purchaser has full power and authority to
enter into the Transaction Documents. The Transaction Documents, when executed
and delivered by the Purchaser, will constitute valid and legally binding
obligations of the Purchaser, enforceable in accordance with their respective
terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors' rights generally, and as limited
by laws relating to the availability of a specific performance, injunctive
relief, or other equitable remedies, or (b) to the extent the indemnification
provisions contained in the Restated Investors' Rights Agreement may be limited
by applicable federal or state securities laws.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representations to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof in violation
of the Securities Act, and that the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the same in
violation of the Securities Act. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
4.3 DISCLOSURE OF INFORMATION. The Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock with the Company's management and
has had an opportunity to review the Company's facilities. The Purchaser
understands that such discussions, as well as any other written information
delivered by the Company to the Purchaser, were intended to describe the aspects
of the Company's business which it believes to be material.
4.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations
14
as expressed herein. The Purchaser understands that the Securities are
"restricted securities" under applicable U.S. federal and state securities laws
and that, pursuant to these laws, the Purchaser must hold the Securities
indefinitely unless they are registered with the Securities and Exchange
Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements is available. The Purchaser
acknowledges that the Company has no obligation to register or qualify the
Securities for resale except as set forth in the Restated Investors' Rights
Agreement. The Purchaser further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements, including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of the Purchaser's control, and which the Company is under no
obligation and may not be able to satisfy except as specifically provided in the
Restated Investors' Rights Agreement.
4.5 NO PUBLIC MARKET. The Purchaser understands that no public
market now exists for any of the securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Securities.
4.6 LEGENDS. The Purchaser understands that the Securities, and any
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Transaction Documents.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
4.7 QUALIFIED INSTITUTIONAL BUYER OR ACCREDITED INVESTOR. The
Purchaser is a "Qualified Institutional Buyer" as defined in Rule 144A under the
Securities Act (a "QIB") or an "accredited investor" as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
4.8 FOREIGN INVESTORS. If the Purchaser is not a United States
person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended), such Purchaser hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any
15
governmental or other consents that may need to be obtained, and (iv) the income
tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale, or transfer of the Securities. Such Purchaser's
subscription and payment for and continued beneficial ownership of the
Securities, will not violate any applicable securities or other laws of the
Purchaser's jurisdiction. Furthermore, if the Purchaser is not a "U.S. person"
as defined in Regulation S under the Securities Act, Purchaser hereby represents
and warrants that it is not acquiring the Shares for the account or benefit of
any U.S. person and no offer to purchase the Shares was made to the undersigned
while the undersigned was in the United States. If the Purchaser is not a "U.S.
person" as defined in Regulation S under the Securities Act, Purchaser agrees to
resell the Shares only in accordance with the provisions of Rule 903(b)(3) of
Regulation S under the Securities Act, pursuant to registration under the
Securities Act, or pursuant to an available exemption from registration; and the
undersigned agrees not to engage in hedging transactions with regard to the
Shares unless in compliance with the Securities Act.
4.9 MANNER OF OFFERING. The offer to sell the Stock was communicated
to such Purchaser by the Company in such a manner that such Purchaser was able
to ask questions of and receive answers from the Company concerning the terms
and conditions of this transaction and that at no time was such Purchaser
presented with or solicited by any leaflet, public promotional meeting,
newspaper or magazine article, radio or television advertisement or any other
form of advertising or general solicitation.
4.10 NATURE OF PURCHASER. By reason of the Purchaser's business or
financial experience, such Purchaser has the capacity to protect its own
interest in connection with this transaction.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
Purchaser that:
5.1 COMPLIANCE. The Company shall comply with all laws, rules,
regulations and orders, the non-compliance with which could materially and
adversely affect the financial condition, assets, liabilities, operations or
financial performance of the Company or its obligations under this Agreement or
any other agreement with each Purchaser.
5.2 PERFORMANCE. The Company shall diligently observe and perform or
cause to be observed all covenants to be observed or performed under the
Transaction Documents and under any other agreement between the Company and each
Purchaser.
5.3 BOOKS AND RECORDS. The Company shall maintain complete and
accurate records and books of account in which entries shall be made in
accordance with generally accepted accounting principles consistently applied,
reflecting all transactions of the Company and its subsidiaries, if any.
5.4 RENEWALS AND GOOD STANDING. The Company shall (a) do all things
necessary to obtain, promptly renew and maintain in good standing from time to
time, all approvals, leases, licenses, permits and consents as are required to
own, develop and operate the business, assets or operations of the Company and
undertaking, except where the failure to
16
obtain, renew or maintain in good standing such approvals, leases, licenses,
permits and consents is not reasonably likely to result in a material adverse
change in the Company's financial condition, assets, liabilities, operations or
financial performance and (b) perform its obligations under this Agreement and
all other agreements between the Company and each Purchaser.
5.5 PRINCIPAL BUSINESS. Prior to the initial public offering of the
Company's Common Stock, the Company shall not change its principal business or
engage in any other business from that which it is engaged on the date of this
Agreement without the written consent of at least two-thirds of the holders of
shares of Stock converted or convertible into Common Stock.
5.6 PROPRIETARY INFORMATION AND ASSIGNMENT AGREEMENT. The Company
shall require all future officers, directors and employees of the Company and
each subsidiary of the Company to execute and deliver a proprietary information
and assignment agreement and shall require all future consultants and
independent contractors to the Company to execute and deliver a consulting
agreement which provides substantially similar protection from misappropriation
to the intellectual property of the Company.
5.7 STOCK OPTIONS. All stock options granted by the Company shall
have a term of ten (10) years and shall be exercisable, over time, based upon
continued employment over a vesting period to be determined by the Company's
Board of Directors. The per share exercise price of all options granted by the
Company will be no less than the fair market value on the date of grant as
determined by the Board of Directors in good faith. Unless otherwise
specifically approved by the Board of Directors, options granted by the Company
will not accelerate upon a change of control of the Company or any subsidiary of
the Company.
5.8 SECURITIES FILINGS. Within the prescribed time after the
Closing, the Company shall file all documents and take all proceedings required
to be taken by it to permit the Stock to be distributed to each Purchaser in
compliance with applicable federal and state securities laws and the applicable
securities legislation in Canada.
5.9 INVESTMENT OF FUNDS. The Company shall not make any investments
in any securities, other than high grade commercial paper or other form of
comparable security.
5.10 COMPLIANCE WITH OTHER TRANSACTION DOCUMENTS. The Company shall
not sell, transfer, offer for sale, pledge, hypothecate or otherwise dispose of
the Creo Shares except pursuant to the terms of the Debt Settlement Agreement
other Transaction Documents.
5.11 SURVIVAL OF COMPANY'S COVENANTS. The covenants of the Company
set forth in this Section 5 will survive the completion of the transactions
contemplated by this Agreement and will continue in full force and effect for
the benefit of each Purchaser until the earlier to occur of (a) five (5) years
from the Closing, or (b) the consummation of a IPO (as defined in the Restated
Certificate).
17
6. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT THE CLOSING. The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing, it being understood that, where any such representation or warranty
includes a materiality or material adverse effect exception, this Section 6.1
shall not abrogate such exception.
6.2 PERFORMANCE. The Company shall have performed and complied in
all material respects with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before the Closing.
6.3 COMPLIANCE CERTIFICATE. The President or CEO of the Company
shall deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 6.1 and 6.2 have been fulfilled.
6.4 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required to be obtained prior to the Closing in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
be obtained and effective as of the Closing.
6.5 WRITTEN CONSENTS. The Company shall have obtained and delivered
to the Purchasers any and all written waivers, permits, consents and approvals
required to be obtained prior to the Closing in connection with the consummation
of the transactions contemplated by the Transaction Documents in a form and
content reasonably acceptable to the Purchasers.
6.6 STOCK CERTIFICATES. The Company shall have delivered to the
Purchasers executed stock certificates in form and content acceptable to the
Purchasers ("STOCK CERTIFICATES") and sufficient to transfer to and vest in each
Purchaser good and valid title to the purchased Stock free of any lien created
by or through the Company.
6.7 RESTATED CERTIFICATE. The Company shall have filed the Restated
Certificate with the Secretary of State of the State of Delaware on or prior to
the Closing, which shall continue to be in full force and effect as of the
Closing.
6.8 RESTATED INVESTORS' RIGHTS AGREEMENT. The Company, each
Purchaser and the existing parties to the Second Amended and Restated Investors'
Rights Agreement necessary to amend such agreement pursuant to Section 3.2
thereof shall have executed and delivered the Restated Investors' Rights
Agreement in substantially the form attached as EXHIBIT D.
18
6.9 RESTATED CO-SALE AGREEMENT. The Company, each Purchaser and the
existing parties to the Second Amended and Restated Right of First Refusal and
Co-Sale Agreement necessary to amend such agreement pursuant to Section 4.2
thereof shall have executed and delivered the Restated Co-Sale Agreement in
substantially the form attached as EXHIBIT F.
6.10 RESTATED VOTING AGREEMENT. The Company, each Purchaser and the
existing parties to the Second Amended and Restated Voting Agreement necessary
to amend such agreement pursuant to Section 5.6 thereof shall have executed and
delivered the Restated Voting Agreement in substantially the form attached as
EXHIBIT E.
6.11 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT.
The Company and each of its Service Providers (other than as set forth on
Section 2.10 of the Schedule of Exceptions) shall have entered into a
Confidential Information and Invention Assignment Agreement, in substantially
the form provided to the Purchasers.
6.12 NO MATERIAL ADVERSE CHANGE. Except as set forth on the Schedule
of Exceptions, there shall have been no material adverse change in the Company's
financial condition, assets, liabilities, operations or financial performance
since June 30, 2000 (it being understood that none of the following shall be
deemed, in and of itself, to constitute a material adverse change in the
financial condition, assets, liabilities, operations or financial performance of
the Company since June 30, 2000: (a) a change that results from conditions
generally affecting the U.S. economy or the world economy, (b) a change that
results from conditions generally affecting the Company's industry, (c) a change
that results from the announcement or pendency of the transactions contemplated
hereby and (d) a change that results from the taking of any action required by
this Agreement).
6.13 COMPANY LEGAL OPINIONS. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
special counsel for the Company, shall have delivered a legal opinion to the
Purchasers in the form attached hereto as EXHIBIT I, and ▇▇▇▇▇▇ D'▇▇▇▇▇▇,
counsel for the Company, shall have delivered a legal opinion to the Purchasers
in the form attached hereto as EXHIBIT J.
6.14 NO LITIGATION. There shall be no action, suit or proceeding or
investigation instituted or threatened to set aside the transactions provided
for herein or to enjoin or prevent the consummation of the transactions
contemplated hereby.
6.15 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be in form and substance
satisfactory to each Purchaser and its counsel and each Purchaser shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
6.16 CLOSING DOCUMENTS. The Company shall have delivered the
following documents to each of the Purchasers:
19
(a) copies certified by the Secretary of the Company of the
resolutions duly adopted by the Company's board of directors authorizing and
approving: (i) the execution, delivery and performance of the Transaction
Documents and each of the other agreements contemplated hereby, (ii) the
Restated Certificate and the filing of the Restated Certificate with the
Secretary of the State of Delaware, (iii) the reservation for issuance upon
conversion of the Series E-1 Preferred Stock of an aggregate number of shares of
Class A Common Stock equal to the total number of shares initially issuable upon
conversion, (iv) the reservation for issuance upon conversion of the Series E-2
Preferred Stock and Series E-3 Preferred Stock of an aggregate number of shares
of Series E-1 Preferred Stock equal to the total number of shares initially
issuable upon conversion, (v) the reservation for issuance upon conversion of
the Series E-3 Preferred Stock of an aggregate number of shares of Series E-4
Preferred Stock equal to the total number of shares initially issuable upon
conversion, (vi) the reservation for issuance upon conversion of the Series E-4
Preferred Stock of an aggregate number of shares of Class C-1 Common Stock equal
to the total number of shares initially issuable upon conversion, (vii) the
issuance and sale of the Series E Preferred Stock, and (viii) the consummation
of all other transactions contemplated by the Transaction Documents;
(b) copies certified by the Secretary of the Company of the
resolutions of the Company's stockholders authorizing and approving the Restated
Certificate and the filing of the Restated Certificate with the Delaware
Secretary of the State;
(c) copies certified by the Secretary of the Company of the
Restated Certificate (as filed with the Delaware Secretary of the State) and the
Company's Bylaws, each as in effect at the Closing;
(d) a good standing certificate with respect to the Company from
the Delaware Secretary of State; and
(e) such other documents relating to the transactions
contemplated by this Agreement as the Purchasers or their counsel may reasonably
request.
20
6.17 DEBT RESTRUCTURING. The Company shall have affected the
following transactions prior to or contemporaneous with the Closing:
(a) those certain Subordinated Non-Negotiable Promissory Notes A by
and between the Company and Constellation Software, Inc. ("Constellation"),
dated April 7, 2000, with a face value of $22,000,000 shall have been fully paid
and satisfied and Constellation shall have executed and delivered a receipt
acknowledging full satisfaction, accord and payment for, and cancellation of,
such indebtedness; and
(b) the Company and each of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇ Noteholders") shall have entered into agreements
amending those certain Subordinated Non-Negotiable Promissory Notes by and
between the Company and each of the ▇▇▇▇▇ Noteholders, dated March 8, 2000,
extending the first principal payment due under each of the notes to a date not
earlier than December 31, 2001.
6.18 WAIVER OF 8.89% WARRANTS. The Company shall have obtained from
each of Mellon Ventures II, L.P. and Creo SRL (together, the "Warrant Holders")
a waiver, in a form satisfactory to the Purchasers, of all rights granted to any
8.89% Warrants issued by the Company to the Warrant Holders in connection with
that certain Note Purchase Agreement dated as of July 14, 2000 among the Company
and the Warrants Holders (the "Note Purchase Agreement"); provided, however,
that the Warrants Holders shall not be required to waive any rights each such
party possesses pursuant to the 20% Warrants issued by the Company in connection
with the Note Purchase Agreement or any other warrants to purchase shares of the
Company's capital stock held by the Warrant Holders.
6.19 GENERAL.
(a) Each Purchasers' obligations under Section 1 shall be
contingent upon the performance by each other Purchaser of its obligations under
Section 1.
(b) In any event the Purchasers may in their sole discretion
waive any conditions to the Closing and close. No such waiver shall be effective
unless it shall be in writing and signed by each Purchaser.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Section 4 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
7.2 PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to the
Closing shall have been performed or complied with in all material respects.
21
7.3 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock pursuant to this Agreement shall be obtained and effective as of the
Closing.
7.4 CREO LEGAL OPINION. ▇▇▇▇, Prince ▇▇▇▇▇, counsel for Creo,
shall have delivered a legal opinion to the Company in the form attached hereto
as EXHIBIT K.
7.5 TENDER AND CANCELLATION OF NOTES. Each Purchaser
surrendering outstanding indebtedness to the Company (a "TENDERING NOTEHOLDER")
as payment for Series E Preferred Stock shall have tendered all notes evidencing
such indebtedness. Each Tendering Noteholder shall execute a receipt
acknowledging full satisfaction, accord and payment for, and cancellation of,
such indebtedness.
7.6 DELIVERY OF CREO SHARES. At the Closing, Creo SRL shall have
delivered to the Company original executed stock certificates in form and
content acceptable to the Company and sufficient to transfer to and vest in the
Company good and valid title to the Creo Shares free of any lien created by or
through Creo.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties and representations of the Company contained in
Section 2 hereof shall survive the execution and delivery of this Agreement and
the Closing for a period of two (2) years following the Closing.
8.2 ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents together with all exhibits and schedules hereto and thereto constitute
the entire agreement between the Company and the Purchasers relative to the
subject matter hereof and thereof. Any previous agreement or negotiations
between the Company and the Purchasers concerning the subject matter hereof is
superseded by this Agreement and the Transaction Documents except for any
agreements relating to confidentiality.
8.3 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.4 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law.
22
8.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.6 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.7 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or five (5) days
after being deposited in the U.S. mail, as certified or registered mail, with
postage prepaid, addressed to the party to be notified at such party's address
as set forth on the signature page or EXHIBIT A hereto, or as subsequently
modified by written notice, and if to the Company, with a copy (not constituting
notice) to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇.
8.8 FINDER'S FEE. Each party represents that it neither is nor will
be obligated for any finder's fee or commission in connection with this
transaction except for the Company's fee payable to DLJ. Each Purchaser agrees
to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
such Purchaser or any of its officers, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Purchaser
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
8.9 ATTORNEYS' FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Transaction Documents, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.10 AMENDMENTS AND WAIVERS OF AGREEMENT. Any term of this Agreement
may be amended or waived only with the written consent of the Company and at
least eighty-one percent (81%) of the holders of shares of Stock converted or
convertible into the Common Stock. Any amendment or waiver effected in
accordance with this Section 8.10 shall be binding upon the Purchasers and each
transferee of the Stock (or the Common Stock issuable upon conversion thereof),
each future holder of all such securities, and the Company.
8.11 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of this
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of this Agreement shall be enforceable in accordance with its terms.
23
8.12 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and signed
by the party charged with such waiver and such waiver shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
8.13 CONFIDENTIALITY. Each party hereto agrees that, except with the
prior written permission of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock purchased hereunder; PROVIDED, HOWEVER, that the receiving
party may disclose such information (i) on a confidential basis to its
attorneys, accountants, consultants and other professionals to the extent
necessary to obtain their services in connection with its investment in the
Company, (ii) to any prospective purchaser of Stock from the such receiving
party as long as such prospective purchaser agrees in writing to be bound by the
provisions of this Section 8.13, (iii) on a confidential basis to any affiliate
or partner of such receiving party and (iv) as required by judicial decree or
applicable law. Notwithstanding the foregoing, any Holder may disclose summary
financial information and a narrative description of the Company's business to
partners or potential partners of such Holder. The provisions of this Section
8.13 shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby.
8.14 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that
it is not relying upon any person, firm or corporation, other than the Company
and its officers and directors, in making its investment or decision to invest
in the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Securities.
8.15 INDEMNIFICATION. The Company shall defend, indemnify and hold
the Purchasers harmless from and against any and all claims, liabilities,
damages, losses and expenses, including reasonable attorney's fees and expenses
and costs of suit, arising out of any breach of the representations and
warranties, and out of any and all breaches of covenants, warranties,
stipulations, agreements and certifications made by or on behalf of the Company,
in the Transaction Documents or in any document delivered hereunder or
thereunder.
24
8.16 PRESS RELEASE. Upon the consummation of the transactions
contemplated hereby, the Company may issue a press release identifying any
Purchaser by name, subject to the prior approval by such Purchaser of such press
release, which approval will not be unreasonably withheld.
8.17 USE OF PROCEEDS. The proceeds the Company shall receive upon
the consummation of the transactions contemplated hereby shall be solely used
for product development, working capital and other general corporate purposes
and not for investment purposes other than high grade commercial paper or other
instruments.
8.18 EXPENSES. Irrespective of whether the Closing is effected, the
Company shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If the
Closing is effected, the Company shall, at the Closing, pay the reasonable fees
and expenses of counsel to HarbourVest Partners VI - Direct Fund L.P., not to
exceed $35,000.
[Signature Pages Follow]
25
The parties have executed this Series E Preferred Stock Purchase
Agreement as of the date first written above.
COMPANY:
PRINTCAFE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
----------------------------------
Title: President
---------------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CREO PRODUCTS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Executive Vice-President
---------------------------------
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
PURCHASERS:
MELLON VENTURES II, L.P.
By its general partner
MVMA II L.P.
By its general partner MVMA
Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇, Senior Associate
CREO SRL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ International Services SRL,
Secretary, by its authorized signatory
HARBOURVEST PARTNERS VI -
DIRECT FUND L.P.
By: HarbourVest VI - Direct
Associates LLC
By: HarbourVest Partners, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
WPG SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
WPG INSTITUTIONAL SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
WPG RAYTHEON SOFTWARE FUND, L.P.
By: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
▇▇▇▇▇▇▇▇ NEW TECHNOLOGIES FUND II, INC.
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co.
Incorporated, its investment
adviser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
EXHIBIT A
---------
SCHEDULE OF PURCHASERS
INITIAL PURCHASERS
------------------
NO. OF SHARES OF NO. OF SHARES OF NO. OF SHARES OF
---------------- ----------------- ----------------
NAME/ADDRESS/FAX NO. SERIES E-1 SERIES E-2 SERIES E-3
-------------------- ---------- ---------- ----------
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
Mellon Ventures II, L.P. 3,125,000
c/o Mellon Ventures, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Creo SRL
▇▇▇ ▇▇▇▇▇▇ 8,000,000
Holetown
St. ▇▇▇▇▇
Barbados
HarbourVest VI - Direct Fund L.P.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 3,750,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 175,725
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Institutional Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 272,775
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Raytheon Software Fund, L.P.
Attn: ▇▇▇ ▇▇▇▇▇▇ 301,500
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A-1
SCHEDULE OF PURCHASERS
INITIAL PURCHASERS
------------------
NO. OF SHARES OF NO. OF SHARES OF NO. OF SHARES OF
---------------- ----------------- ----------------
NAME/ADDRESS/FAX NO. SERIES E-1 SERIES E-2 SERIES E-3
-------------------- ---------- ---------- ----------
PREFERRED STOCK PREFERRED STOCK PREFERRED STOCK
--------------- --------------- ---------------
Seligman New Technologies Fund II,
Inc. 1,750,000
c/o J&W ▇▇▇▇▇▇▇▇ Incorporated
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (212) ____________