Exhibit 10.14
INSWEB CORPORATION
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
dated December 15, 1998
TABLE OF CONTENTS
(continued)
Page
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1. Authorization and Sale of Shares..........................................1
1.1 Authorization......................................................1
1.2 Sale of Shares.....................................................1
2. Closings..................................................................1
2.1 Delivery...........................................................1
3. Representations of the Company............................................2
3.1 Organization and Standing..........................................2
3.2 Capitalization.....................................................2
3.3 Subsidiaries.......................................................3
3.4 Issuance of Shares.................................................3
3.5 Authority for Agreement............................................3
3.6 Governmental Consents..............................................4
3.7 Litigation.........................................................4
3.8 Financial Statements...............................................4
3.9 Liabilities........................................................5
3.10 Changes............................................................5
3.11 Taxes..............................................................6
3.12 Property and Assets................................................7
3.13 Intellectual Property..............................................7
3.14 Insurance..........................................................8
3.15 Material Contracts and Obligations.................................9
3.16 Compliance.........................................................9
3.17 Employees..........................................................9
3.18 Books and Records.................................................10
3.19 Registration Rights...............................................10
3.20 Interested Party Transactions.....................................10
3.21 Offering Valid....................................................10
3.22 Disclosures.......................................................11
3.23 Operating Rights..................................................11
3.24 Brokers or Finders; Other Offers..................................11
3.25 Environmental Matters.............................................12
3.26 Section 83(b) Elections...........................................12
3.27 U.S. Real Property Holding Corporation............................12
3.28 Private Offering..................................................12
3.29 Use of Proceeds...................................................12
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TABLE OF CONTENTS
(continued)
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3.30 Margin Securities.................................................12
3.31 Absence of Foreign or Enemy Status; Sensitive Payments............13
4. Representations of the Purchaserss.......................................13
4.1 Representations and Warranties of the Purchasers..................13
4.2 Legend............................................................15
5. Conditions to the Obligations of the Purchaserss.........................15
5.1 Accuracy of Presentations and Warranties..........................15
5.2 Performance.......................................................15
5.3 Opinion of Counsel................................................15
5.4 Certificates and Documents........................................15
5.5 Amended Rights Agreement..........................................16
5.6 Joint Venture.....................................................16
5.7 Compliance Certificate............................................16
5.8 Third Party Consents..............................................16
5.9 No Adverse Changes................................................16
5.10 Other Matters.....................................................17
6. Condition of the Obligations of the Company..............................17
6.1 Accuracy of Representations and Warranties........................17
6.2 Amended Rights Agreement..........................................17
6.3 Joint Venture Agreement...........................................17
7. Covenants................................................................17
7.1 Commercially Reasonable Efforts...................................17
7.2 Notification; Updates to Disclosure Schedule......................17
7.3 Further Assurances................................................18
8. Termination..............................................................18
8.1 Right of Termination..............................................19
8.2 Effects of Termination............................................19
9. Miscellaneous............................................................19
9.1 Survival of Representations and Warranties........................19
9.2 Notices...........................................................19
9.3 Expenses..........................................................20
9.4 Entire Agreement..................................................20
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TABLE OF CONTENTS
(continued)
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9.5 Amendments and Waivers............................................20
9.6 Counterparts......................................................20
9.7 Section Headings..................................................20
9.8 Governing Law.....................................................20
9.9 Press Releases and Public Announcement............................21
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SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") dated
as of December 15, 1998 is entered into by and among InsWeb Corporation, a
Delaware corporation (the "Company"), and the entities listed on the Schedule of
Purchasers attached hereto as Exhibit A (individually a "Purchaser" or
collectively the "Purchasers").
RECITAL
The Company desires to sell and the Purchasers desire to purchase shares
of the Company's Series D Preferred Stock, $0.001 par value per share (the
"Series D Preferred"), on the terms set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Shares.
1.1 Authorization. The Company has, or before the Closing Date (as
defined in Section 2) will have, duly authorized the sale and issuance, pursuant
to the terms of this Agreement, of up to 190,621 shares of Series D Preferred
having the rights, restrictions, privileges and preferences set forth in the
form of Fourth Restated Certificate of Incorporation attached hereto as Exhibit
B (the "Fourth Restated Certificate"). The Company has, or before the Closing
Date will have, adopted and filed the Fourth Amended Certificate with the
Secretary of State of the State of Delaware and will have taken all necessary
corporate action for the purpose of authorizing the sale and issuance of 190,621
shares of Series D Preferred (the "Shares") pursuant hereto.
1.2 Issuance and Sale of Shares. Subject to the terms and conditions
of this Agreement, at the Closing (as defined in Section 2) the Company will
sell and issue to the Purchasers, and the Purchasers will severally buy from the
Company, the total number of Shares specified opposite such Purchaser's name on
the Schedule of Purchasers, at a purchase price of $162.875 per share, for the
aggregate purchase price set forth on the Schedule of Purchasers.
2. Closing; Delivery. The closing of the sale and purchase of the Shares
under this Agreement (the "Closing") shall take place at the offices of ▇▇▇▇
▇▇▇▇ ▇▇▇▇ & Freidenrich LLP, counsel to the Company ("GCW&F"), ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at 10:00 a.m. on December __, 1998, or at such
other time, date and place as are mutually agreeable to the Company and SOFTBANK
Corp. ("SOFTBANK"). The date of the Closing is hereinafter referred to as the
"Closing Date."
2.1 Delivery. Subject to the terms and conditions of this Agreement,
at the Closing the Company shall deliver to each of the Purchasers a stock
certificate representing the Shares to be purchased by such Purchaser (which
shall be issued in the Purchaser's name) against payment of the purchase price
therefor by check(s), payable to the order of the Company, or by wire
transfer(s) of immediately available funds to the bank account of the Company.
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3. Representations and Warranties of the Company. Subject to and except as
fully and fairly disclosed by the Company in the Schedule of Exceptions attached
hereto as Exhibit C, the Company hereby represents and warrants to the
Purchasers as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own and operate its
properties and to conduct its business as presently conducted. The Company and
each of its subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing in the State of California and in every
other jurisdiction in which the failure to so qualify would have a material
adverse effect on the operations or financial condition of the Company. The
Company and each of its subsidiaries has made available to the Purchasers true
and complete copies of its Certificate of Incorporation and Bylaws, each as
amended to date and presently in effect.
3.2 Capitalization.
(a) The authorized capital stock of Company as of the Closing
Date and immediately prior to the Closing will consist of (i) 50,000,000 shares
of the Company's Common Stock, $0.001 par value (the "Common Stock"), of which
9,982,276 shares will be issued and outstanding, and (ii) 2,000,000 shares of
the Company's Preferred Stock, $0.001 par value (the "Preferred Stock"), (A)
176,471 shares of which have been designated Series A Preferred Stock, all of
which will be issued and outstanding and which are convertible, in the
aggregate, into 1,764,710 shares of Common Stock, (B) 27,864 shares of which
have been designated Series A-1 Preferred Stock, all of which will be issued and
outstanding and which are convertible, in the aggregate, into 278,640 shares of
Common Stock, (C) 176,471 shares of which have been designated Series B
Preferred Stock, all of which will be issued and outstanding and which are
convertible, in the aggregate, into 1,764,710 shares of Common Stock, (D) 61,920
shares of which have been designated Series C Preferred Stock, all of which will
be issued and outstanding and which are convertible, in the aggregate, into
619,200 shares of Common Stock and (E) 190,621 shares of Series D Preferred,
none of which will be issued or outstanding. All such outstanding shares have
been duly authorized and validly issued, are fully paid and nonassessable and
free of liens and encumbrances created by the Company, have been issued in
accordance with all applicable state and federal securities laws, and are
subject to no pre-emptive rights, rights of first refusal, proxies, voting
agreements, shareholders agreements, registration rights agreements, or other
restrictions on the incidents of ownership or transfer, created by statute, the
charter documents of the Company or any agreement to which the Company is a
party or by which it is bound. The Company will have reserved 1,906,210 shares
of Common Stock for issuance upon conversion of the Shares. As of the date
hereof, an aggregate of 1,724,364 shares of the Company's Common Stock are
reserved for issuance under the Company's employee stock option plans (net of
exercises prior to the date hereof), 1,442,714 of which are subject to
outstanding options.
(b) Except as set forth in this Section 3.2 or Exhibit C,
there are (i) no equity securities of any class of the Company, or any security
exchangeable into or exercisable for such equity securities, issued, reserved
for issuance or outstanding or authorized and (ii) no
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authorized or outstanding subscriptions, options, warrants, puts, calls, rights
or other commitments or agreements of any character to which the Company is a
party or by which it is bound obligating the Company to issue, deliver, sell,
repurchase or redeem or cause to be issued, delivered, sold, repurchased or
redeemed any equity securities of the Company or obligating the Company to
grant, extend, accelerate the vesting of, change the exercise price of or
otherwise amend or enter into any such option, warrant, call, right
3.3 Subsidiaries. Except as set forth in Exhibit C, the Company has
no subsidiaries and does not own, or control, directly or indirectly, any shares
of capital stock of any other corporation or any interest in any partnership,
joint venture or other non-corporate entity or business enterprise. Each
subsidiary identified on Exhibit C (a "Subsidiary") is a wholly-owned
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has full corporate power and
authority to own and operate its properties and to conduct its business as
presently conducted.
3.4 Issuance of Shares. The issuance, sale and delivery of the
Shares in accordance with this Agreement, and the issuance and delivery of the
shares of Common Stock issuable upon conversion of the Shares, have been duly
authorized by all necessary corporate action on the part of the Company, and all
such shares have been duly reserved for issuance. The Shares, when so issued,
will have the rights, preferences, privileges, and restrictions described in the
Fourth Restated Certificate. The Shares when so issued, sold and delivered
against payment therefor in accordance with the provisions of this Agreement,
and the shares of Common Stock issuable upon conversion of the Shares, when
issued upon such conversion, will be duly and validly issued, fully paid and
non-assessable.
3.5 Authority for Agreement. The execution, delivery and performance
by the Company of this Agreement and the Amended and Restated Investor Rights
Agreement in the form attached hereto as Exhibit D (the "Amended Rights
Agreement"), and the consummation by the Company of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate and stockholder action. This Agreement and the Amended Rights
Agreement have been duly executed and delivered by the Company and constitute
valid and binding obligations of the Company enforceable in accordance with
their respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and rules
or laws concerning equitable remedies and except as the indemnification
provisions set forth in Section 3.6 of the Amended Rights Agreement may be
limited by principles of public policy. The execution of and performance of the
transactions contemplated by this Agreement and the Amended Rights Agreement and
compliance with their provisions by the Company and the issuance of the Shares
and the Common Stock issuable upon conversion of the Shares will not violate any
provision of law, will not result in the creation of, any mortgage, pledge,
lien, encumbrance, or charge upon any of the properties or assets of the Company
or any Subsidiary, and will not conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, or
require a consent or waiver under, the Certificate of Incorporation or Bylaws
(each as amended to date) of the Company or any Subsidiary or any indenture,
lease, agreement or other instrument to which the Company or any Subsidiary is a
3
party or by which it or any of its properties is bound, or any decree, judgment,
order, statute, rule or regulation applicable to the Company or any Subsidiary.
3.6 Governmental Consent. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company
or any Subsidiary in connection with the execution and delivery of this
Agreement and the Amended Rights Agreement, the offer, issuance, sale and
delivery of the Shares, or the other transactions to be consummated at the
Closing, as contemplated by this Agreement, except such filings as shall have
been made prior to and shall be effective on and as of the Closing.
3.7 Litigation. There is no litigation, action, suit or proceeding,
or governmental inquiry or investigation, pending, or, to the best of the
Company's knowledge, any threat thereof, against the Company or any Subsidiary,
which questions the validity of this Agreement or the Amended Rights Agreement
or the right of the Company to enter into them, or to consummate the
transactions contemplated hereby or thereby, or which could reasonably be
expected to result, either individually or in the aggregate, in any material
adverse change in the business, prospects, assets or condition, financial or
otherwise, of the Company, or a change in the current equity ownership of the
Company, nor has the Company or any Subsidiary instituted any such litigation,
action, suit, proceeding or governmental inquiry or investigation. 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.
3.8 Financial Statements. The Company has delivered to the
Purchasers copies of (i) its audited consolidated financial statements as of,
and for the years ended, December 31, 1996 and 1997, and (ii) its unaudited
consolidated financial statements as of, and for the nine-month period ended,
September 30, 1998 (collectively, the "Company Financial Statements"). The
Company Financial Statements have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved, except (in the case of the unaudited financial
statements) for the absence of required footnotes. The Company Financial
Statements present fairly in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates and the
consolidated results of the Company's operations and cash flows for the periods
indicated, except that the interim Company Financial Statements are subject to
normal and recurring year-end audit adjustments which will not be material in
amount. The Company maintains a standard system of accounting established and
administered in accordance with GAAP. All accounts receivable are bona fide and
arose out of transactions made in the ordinary course of business; are payable
in accordance with their terms, and to the best of Company's knowledge, subject
to no valid counterclaims or setoffs. Any reserve for bad debts stated in the
Company Financial Statements is adequate in the light of the previous
receivables collection history of the Company and its Subsidiaries.
3.9 Liabilities. The Company and its Subsidiaries do not have any
liabilities, either accrued or contingent (whether or not required to be
reflected in financial statements in accordance with GAAP), and whether due or
to become due, which individually or in the
4
aggregate would be reasonably likely to have a material adverse effect on
Company and its Subsidiaries taken as a whole, other than (i) liabilities
reflected or provided for on Company's consolidated balance sheet as of
September 30, 1998 (the "Company Balance Sheet"), (ii) liabilities specifically
described in this Agreement, or in Exhibit C, and (iii) normal or recurring
liabilities incurred since September 30, 1998 in the ordinary course of business
consistent with past practices.
3.10 Changes. Since September 30, 1998, each of the Company and its
Subsidiaries has conducted its business in the ordinary course and in a manner
consistent with past practices and, since such date, except as disclosed in
Exhibit C, there has not been:
(a) any material change in the accounting methods or practices
it follows, whether for general financial or tax purposes, or any change in
depreciation or amortization policies or rates;
(b) any material commitment or transaction (including without
limitation any borrowing or capital expenditure) other than in the ordinary
course of business;
(c) any material liability or transaction, except in the
ordinary course of business and consistent with past practice;
(d) any change in the assets, liabilities, financial condition
or operating results of the Company and its Subsidiaries from that reflected in
the Company Financial Statements, except changes in the ordinary course of
business which have not been in the aggregate materially adverse;
(e) any declaration or making of any payment or distribution
of cash or other property to a stockholder with respect to its stock or
otherwise, except for normal salaries and expense reimbursement, or any purchase
or redemption of any shares of its capital stock;
(f) any mortgage or pledge of any of its properties or assets
or any subjecting of them to any lien, security interest, charge, or other
encumbrance, except liens or current property taxes not yet due and payable;
(g) any sale, assignment, or transfer of any patents,
trademarks, service marks, trade names, copyrights, trade secrets, or other
intangible assets or, to the best of the Company's knowledge, unauthorized
disclosure of any proprietary confidential information;
(h) 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 (as such business
is presently conducted and as it is proposed to be conducted);
(i) any waiver of any valuable right or of any material debt;
5
(j) any discharge or satisfaction of any lien, claim, or
encumbrance, or payment of any of its obligations, except in the ordinary course
of business and which is not material to its assets, properties, financial
condition, operating results, or business (as such business is presently
conducted and as it is proposed to be conducted);
(k) any change or amendment of or default under any material
contract or arrangement by which the Company or any Subsidiary or any of the
assets or properties of the Company or any Subsidiary are bound or subject;
(l) any material change in any compensation arrangement or
agreement with any executive officer or key employee;
(m) any default under any material contract or agreement or
any indenture or debt;
(n) any loans or advances to, or guarantees for the benefit
of, any person; or
(o) to the best of the Company's knowledge, any other event or
condition of any character which could reasonably be expected to materially and
adversely affect the assets, properties, financial condition, operating results,
or business of the Company and its Subsidiaries, taken together (as such
business is presently conducted and as it is proposed to be conducted).
3.11 Taxes.
(a) The Company and each of its Subsidiaries has accurately
prepared and timely filed all returns, estimates, information statements and
reports required to be filed by it with any taxing authority ("Company Returns")
relating to any and all taxes concerning or attributable to the Company and each
of its Subsidiaries or its, or their operations and such Company Returns are
true and correct in all material respects and have been completed in all
material respects in accordance with applicable law. There are no audits pending
with respect to the Company or any of its Subsidiaries by any governmental
authority. The Company and each of its Subsidiaries has paid all taxes and other
assessments due on or before the date hereof, and such payments were made prior
to the time that penalties would accrue thereon. The Company knows of no new tax
assessments.
(b) There is no tax deficiency outstanding or assessed or, to
the best of the Company's knowledge, proposed against the Company or any
Subsidiary that is not reflected as a liability on the Company Balance Sheet nor
has the Company or any Subsidiary executed any agreements or waivers extending
any statute of limitations on or extending the period for the assessment or
collection of any tax.
(c) Neither the Company nor any of its Subsidiaries has any
material liabilities for unpaid taxes that have not been accrued for or reserved
on the Company Balance Sheet, whether asserted or unasserted, contingent or
otherwise.
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(d) The Company is not a party to any tax-sharing agreement or
similar arrangement with any other party, or any contractual obligation to pay
any tax obligations of, or with respect to any transaction relating to, any
other person or to indemnify any other person with respect to any tax.
(e) The Company has withheld or collected from each payment to
each of its employees the amount of all taxes (including, but not limited to,
federal income taxes and Federal Insurance Contribution Act taxes) required to
be withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositories.
(f) Neither the Company nor any of its stockholders has ever
filed (a) an election pursuant to Section 1362 of the Internal Revenue Code of
1986, as amended (the "Code"), that the Company be taxed as an S Corporation or
(b) a consent pursuant to Section 341(f) of the Code relating to collapsible
corporations.
3.12 Properties and Assets. The Company has good and marketable
title to all of its material properties and assets, and good title to its
leasehold estates, and none of such properties or assets is subject to any
mortgage, pledge, lien, security interest, lease, charge or encumbrance other
than liens resulting from taxes which have not yet become delinquent, liens and
encumbrances which have arisen in the ordinary course of business that do not in
any case materially detract from the value of the property subject thereto or
materially impair the operations of the Company and those the material terms of
which are described in Exhibit C. The tangible and intangible assets and
properties owned or leased by the Company and its Subsidiaries include all
properties, assets, and rights necessary to conduct the business of the Company
and its Subsidiaries as currently conducted or as presently proposed to be
conducted. All tangible assets and properties owned or leased by the Company and
its Subsidiaries that are material or necessary to the Company's business as
currently conducted are in good condition and repair, ordinary wear excepted.
3.13 Intellectual Property. Set forth on Exhibit C is a true and
complete list of all patents, patent applications, trademarks and service marks,
trademark and service ▇▇▇▇ applications, trade names, copyright registrations
and applications and material licenses of third party software (other than
licenses of "off the shelf" or standard software products) presently used by the
Company or any of its Subsidiaries. To the best of the Company's knowledge, the
Company and its Subsidiaries together own or possess sufficient legal rights to
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
information and other proprietary rights and processes (collectively,
"Intellectual Property Rights") necessary for the Company's business as now
conducted or as presently proposed to be conducted without any known
infringement of the right or others. There are no outstanding options, licenses
or agreements of any kind relating to the Intellectual Property Rights, nor is
the Company or any of its Subsidiaries bound by or a party to any options,
licenses or agreements of any kind with respect to the Intellectual Property
Rights of any other person or entity other than such licenses or agreements
arising from the purchase of "off the shelf" or standard products. Neither the
Company nor any of its Subsidiaries has received any notice that it is
infringing upon, violating or otherwise acting adversely to, or by conducting
its business as proposed would infringe upon,
7
violate or otherwise act adversely to, and, to the best of the Company's
knowledge, neither the Company nor any of its Subsidiaries is violating the
right or claimed right of any person or entity under or with respect to any
Intellectual Property Rights. Except as disclosed in Exhibit C, to the best of
its knowledge, neither the Company nor any of its Subsidiaries is obligated or
under any liability to make payments by way of royalties, fees or otherwise to
any owner, licensor of, claimant to, or other party to any option, license or
agreement of any kind with respect to, any Intellectual Property Rights, or
other intangible assets material to the conduct of the Company's or any
Subsidiary's business. The Company is not aware that any of its or its
Subsidiaries' employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with their
duties to the Company or any Subsidiary or that would conflict in any material
respect with the Company's or any Subsidiary's business as currently conducted
or as proposed to be conducted. Neither the execution nor delivery of the
Agreement, nor the conduct of the Company's or any Subsidiary's business, as
currently conducted or as proposed to be conducted, will, to the best of the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any 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 or any Subsidiaries' employees
made prior to their employment by the Company or any Subsidiary, except for
inventions, trade secrets or proprietary information that have been assigned to
the Company or any Subsidiary.
3.14 Insurance. The Company and each of its Subsidiaries maintains
valid policies of workers' compensation insurance and of insurance with respect
to its properties and business of the kinds and in the amounts not less than are
customarily obtained by corporations of established reputation engaged in the
same or similar business and similarly situated, including, without limitation,
insurance against loss, damage, fire, theft, public liability, products
liability and other risks. The Company has in full force and effect term life
insurance, payable to the Company, on the life of Hussein A. Enan in the amount
of Two Million Dollars ($2,000,000). To the best knowledge of the Company,
neither the Company nor any of its Subsidiaries is in default with respect to
its obligations under any insurance policy maintained by it.
3.15 Material Contracts and Obligations. Exhibit C sets forth a list
of all material agreements or commitments of any nature to which the Company or
any Subsidiary is a party or by which it is bound, including without limitation
(a) each agreement which requires future expenditures by the Company in excess
of $100,000 in the aggregate or which might result in payments to the Company in
excess of $100,000 in the aggregate, (b) all employment and consulting
agreements, employee benefit, bonus, pension, profit-sharing, stock option,
stock purchase and similar plans and arrangements, and distributor and sales
representative agreements, and (c) any agreement with any stockholder, officer
or director of the Company, or any "affiliate" or "associate" of such persons
(as such terms are defined in the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act")), including without
limitation any agreement or other arrangement providing for the furnishing of
services by, rental of real or personal property from, or otherwise requiring
payments to, any
8
such person or entity. All the material agreements or commitments of any nature
to which the Company or any Subsidiary is a party or by which it is bound are
valid, binding, and in full force and effect in all material respects, and are
valid, binding, and enforceable by the Company or such Subsidiary in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency, and the relief of debtors and the rules of law governing
specific performance, injunctive relief, or other equitable remedies.
3.16 Compliance. The Company and each of its Subsidiaries has, in
all material respects, complied with its Certificate of Incorporation and
Bylaws, as amended, and all laws, regulations and orders applicable to its
business. The Company and each of its Subsidiaries has complied with any term or
provision of any mortgage, indebtedness, indenture, contract, agreement, or
instrument to which it is a party where the failure to so comply would have a
material adverse effect on the Company's business, prospects or results of
operations.
3.17 Employees. 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 or any Subsidiary, nor does the Company or any
Subsidiary have a present intention to terminate the employment of any officer,
key employee or group of key employees. None of the employees of the Company or
any Subsidiary is represented by any labor union or covered by any collective
bargaining agreement, and there is no labor strike, organizational drive or
other labor trouble pending, or to the best of the Company's knowledge
threatened, with respect to the Company or any Subsidiary. To the Company's
knowledge, the Company and each of its Subsidiaries has complied with all
applicable state and federal equal employment opportunity and other laws related
to employment. To the best of the Company's knowledge, no employee or consultant
of the Company or any Subsidiary is in violation of any term of any employment
contract, patent disclosure agreement, or any other contract or agreement
relating to the relationship of any such person with the Company or any
Subsidiary or any other party because of the nature of the business conducted or
proposed to be conducted by the Company and its Subsidiaries. All employees and
consultants of the Company and each of its Subsidiaries involved in the
technical development of the Company's or any Subsidiary's software have
executed proprietary information agreements, copies of which will have been made
available to the Purchasers or its counsel prior to the Closing. The Company
does not anticipate the necessity to acquire rights to any inventions of any
employees, or people it currently intends to hire, made prior to their
employment by the Company or any Subsidiary. Neither the Company nor any of its
Subsidiaries is a party to or bound by any currently effective employment
contract, deferred compensation agreement, bonus plan, incentive plan, profit
sharing plan, retirement agreement, or other employee compensation agreement,
except as set forth on Exhibit C. Subject to applicable law, the employment of
each officer and employee of the Company and of each of its Subsidiaries is
terminable at will by the Company or such Subsidiaries, except as set forth on
Exhibit C.
3.18 Books and Records. The minute books of the Company contain
complete and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock ledger
of the Company is complete and reflects all issuances, transfers, repurchases
and cancellations of shares of capital stock of the Company.
9
3.19 Registration Rights. Except as set forth on Exhibit C, the
Company is not under any obligation, and has not granted any rights, to register
(as defined in the Amended Rights Agreement) any of the Company's presently
outstanding securities or any of its securities that may hereafter be issued.
3.20 Interested Party Transactions. To the best of the Company's
knowledge, no director, officer or stockholder of the Company, or any member of
his or her immediate family, has any interest in (i) any material equipment or
other property or asset, real or personal, tangible or intangible, including,
without limitation, any of the Intellectual Property Rights, used in connection
with or pertaining to the business of the Company, (ii) any creditor, supplier,
customer, manufacturer, agent, representative, or distributor of any of the
Company's products, (iii) any entity that competes with the Company or with
which the Company is affiliated or has a business relationship, or (iv) any
agreement, obligation or commitment, written or oral, to which Company is a
party; provided, however, that no such person shall be deemed to have such an
interest solely by virtue of ownership of less than five percent (5%) of the
outstanding stock or debt securities of any publicly held company, the stock or
debt securities of which are traded on a recognized stock exchange or on the
Nasdaq National Market. Neither the Company nor any of its Subsidiaries is a
guarantor or indemnitor of any indebtedness of any other person or entity.
3.21 Offering Valid. Assuming the accuracy of the representations
and warranties of the Purchasers contained in Section 4 hereof, the offer, sale
and issuance of the Shares and the shares of Common Stock issuable upon
conversion of the Shares are and will be exempt from the registration
requirements of the Securities Act and exempt from registration and
qualification under the registration, permit or qualification requirements of
all applicable state securities laws. Neither the Company nor any agent on its
behalf has solicited or will solicit any offers to sell or has offered to sell
or will offer to sell all or any part of the Shares to any person or persons so
as to bring the sale of such Shares by the Company within the registration
provisions of the Securities Act or any state securities law.
3.22 Disclosures. Neither this Agreement nor the Amended Rights
Agreement nor any Exhibit hereto or thereto, nor any certificate or instrument
furnished to the Purchasers in connection with the transactions contemplated by
this Agreement, when read together, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading. The Company has
fully provided the Purchasers with all the information which the Purchasers have
requested for deciding whether to purchase the Shares, including true and
complete copies of all documentation affecting rights of any kind that exist or
may have existed, to which the Company is a party or of which it is aware, with
respect to holders of securities of the Company. All underlying documents
incorporated or referred to in any exhibit hereto or to the Amended Rights
Agreement, or in documents furnished to the Purchasers pursuant to this
Agreement by the Company, are true and correct copies thereof, as the same have
been or shall be amended or modified. All information relating to the Company
and its Subsidiaries which, to the best of the Company's knowledge, could
reasonably be anticipated to have a material adverse effect on the existing or
expected
10
financial condition, indebtedness, operating results, customer relations,
employee relations, business or properties of the Company has been disclosed to
the Purchasers.
3.23 Operating Rights. To the best of the Company's knowledge, the
Company and each of its Subsidiaries has all operating authority, licenses,
franchises, permits, certificates, consents, rights, and privileges
(collectively, the "Licenses") as are necessary to the operation of its
business, as now conducted or as presently proposed to be conducted, the absence
of which would have a material and adverse effect on the business of the Company
and its Subsidiaries, taken as a whole. Such Licenses are in full force and
effect, no material violations have been or are expected by the Company to have
been recorded in respect of any such Licenses, and no proceeding is pending or,
to the best knowledge of the Company, threatened that could result in the
revocation or limitation of any of such Licenses. The Company and each of its
Subsidiaries has conducted its business so as to comply in all material respects
with all such material Licenses. The Company and each of its Subsidiaries has
not granted rights or licenses to develop, produce, assemble, license, market,
or sell its products to any person other than in the ordinary course of its
business, and is not bound by any other agreement that affects the Company's or
any Subsidiary's exclusive right to develop, produce, assemble, license, market,
or sell its products.
3.24 Brokers or Finders. Neither the Company nor any of its
Subsidiaries has incurred or will incur, directly or indirectly, as a result of
any action taken by the Company or any Subsidiary, any liability for brokerage
or finders' fees or agents' commissions or any similar charges in connection
with this Agreement, except as described in Exhibit C (which liability shall be
solely the liability of the Company).
3.25 Environmental Matters. The Company and each of its
Subsidiaries, and the uses made by each of its properties and assets, are in
compliance in all material respects with all environmental laws, regulations,
rules, orders and ordinances, and the Company and each of its Subsidiaries, to
the best of the Company's knowledge, holds all permits and licenses required to
conduct its business thereunder. To the best of the Company's knowledge, all
properties and assets leased or owned by the Company and each of its
Subsidiaries, including, without limitation, all structures, contents, soil,
sub-soil, and groundwater, do not contain hazardous substances in quantities
that could reasonably be expected to have a material adverse effect on the
Company and each of its Subsidiaries. To the best of the Company's knowledge,
the Company and each of its Subsidiaries has no liability or obligation, whether
to any governmental authority or to any other person or entity, for damages,
claims, penalties, forfeitures, or otherwise, as a consequence of the
generation, transportation, or disposal of any such hazardous substance or any
"hazardous waste," as defined in 42 U.S.C. 6901, et seq.
3.26 Section 83(b) Elections. To the best of the Company's
knowledge, all individuals who have purchased shares of the Company's Common
Stock have timely filed elections under Section 83(b) of the Internal Revenue
Code of the United States and any analogous provisions of applicable state tax
laws.
11
3.27 U.S. Real Property Holding Corporation. Neither the Company nor
any of its Subsidiaries is now or has ever been a "United States Real Property
Holding Corporation," as defined in Section 897(c)(2) of the Internal Revenue
Code of the United States and Section 1.897-2(b) of the Treasury Regulations
promulgated by the Internal Revenue Service thereunder, and the Company and each
of its Subsidiaries has filed with the Internal Revenue Service all statements,
if any, with its United States income tax returns which are required under
Section 1.897-2(h) of such Regulations.
3.28 Private Offering. The Company has not offered any of the Shares
or any similar security of the Company for sale to, or solicited offers to buy
any thereof from, or otherwise approached or negotiated with respect thereto
with, any prospective purchasers, other than the Purchasers, persons who qualify
as "accredited investors," as such term is defined in SEC Regulation D, and up
to ten (10) other prospective purchasers who are "qualified institutional
buyers" within the meaning of SEC Rule 144A.
3.29 Use of Proceeds. The Company intends to apply the net proceeds
from the sale of Shares for general corporate purposes.
3.30 Margin Securities. None of the transactions contemplated herein
and in the Shares (including, without limitation, the use of the proceeds from
the sale of the Shares) violates, will violate, or will result in a violation of
Section 7 of the Securities Exchange Act of 1934, as amended, or any regulations
issued pursuant thereto, including, without limitation, Regulation G, Regulation
T, and Regulation X of the Board of Governors of the Federal Reserve System, 12
C.F.R., Chapter II. Neither the Company nor any of its Subsidiaries owns, or
with the proceeds of the sale of the Shares intends to own, carry, or purchase,
or refinance borrowings that were used to own, carry, or purchase, any margin
security, including margin securities originally issued by the Company. The
obligations of the Company under this Agreement and the Shares are not and will
not be secured by any margin sold on the basis of any such collateral.
3.31 Absence of Foreign or Enemy Status; Sensitive Payments. Neither
the Company nor any of its Subsidiaries is in violation of and neither the issue
and sale of the Shares by the Company, nor its use of the proceeds thereof as
contemplated by this Agreement, will violate the Trading With the Enemy Act, as
amended, or any executive orders, proclamations, or regulations issued pursuant
thereto, including without limitation, regulations administered by the Office of
Foreign Asset Control of the Department of the Treasury (31 C.F.R., Subtitle B,
Chapter V). To the best knowledge of the Company, none of the Company or any
Subsidiary or any director, officer, agent, employee, or other person associated
with or acting on behalf of the Company or any Subsidiary has used any corporate
funds for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activity or otherwise; made any direct or
indirect unlawful payment to government officials or employees from corporate
funds, or has been reimbursed from corporate funds for any such payment
theretofore made; established or maintained any unlawful or any unrecorded fund
of corporate moneys or other asset; made any false or fictitious entries on the
books or records of the Company or any Subsidiary; made any bribe, rebate,
payoff, influence payment, kickback, or other unlawful payment; or made any
material favor or gift which is not deductible for federal income tax purposes.
12
4. Representations of the Purchasers and Restrictions on Transfer.
4.1 Representations and Warranties of the Purchasers. Each of the
Purchasers hereby severally represents and warrants to the Company as follows:
(a) The Shares, and the shares of Common Stock into which the Shares
may be converted (collectively, the "Securities") are being acquired for such
Purchaser's own account, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act or California law.
(b) Such Purchaser understands that the Securities have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, that the Company has no present
intention of registering the Securities, that the Securities must be held by the
Purchaser indefinitely, and that the Purchaser must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from registration. Such
Purchaser further understands that the Securities have not been qualified under
California law by reason of their issuance in a transaction exempt from the
qualification requirements of California law pursuant to Section 25102(f), which
exemption depends upon, among other things, the bona fide nature of the
Purchasers' investment intent expressed above.
(c) During the negotiation of the transactions contemplated herein,
such Purchaser and its representatives and legal counsel have been afforded full
and free access to corporate books, financial statements, records, contracts,
documents and other information concerning the Company and to its offices and
facilities, have been afforded an opportunity to ask such questions of the
Company's officers, employees, agents, accountants and representatives
concerning the Company's business, operations, financial condition, assets,
liabilities and other relevant matters as they have deemed necessary or
desirable, and have been given all such information as has been requested in
order to evaluate the merits and risks of the prospective investments
contemplated herein. The foregoing does not limit or modify the right of each of
the Purchasers to rely on the representations and warranties of the Company set
forth in Section 3 hereof.
(d) Such Purchaser has such knowledge and experience in financial
and business matters that such Purchaser is capable of evaluating the merits and
risks of the purchase of the Securities pursuant to the terms of this Agreement
and of protecting such Purchaser's interest in connection therewith. Such
Purchaser and its representatives has been solely responsible for such
Purchaser's own "due diligence" investigation of the Company and its management
and business, for its own analysis of the merits and risks of this investment,
and for its own analysis of the fairness and desirability of the terms of the
investment. The foregoing does not limit or modify the right of each of the
Purchasers to rely on the representations and warranties of the Company set
forth in Section 3 hereof.
(e) Such Purchaser is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act. Such
Purchaser is able to bear
13
the economic risk of the purchase of the Securities pursuant to the terms of
this Agreement, including a complete loss of such Purchaser's investment in the
Securities.
(f) Such Purchaser has the full right, power and authority to enter
into and perform such Purchaser's obligations under this Agreement and the
Amended Rights Agreement. This Agreement and the Amended Rights Agreement
constitute the valid and binding obligations of such Purchaser, enforceable in
accordance with their respective terms except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and rules
or laws concerning equitable remedies and except as the indemnification
provisions set forth in Section 3.6 of the Amended Rights Agreement may be
limited by principles of public policy.
(g) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of such
Purchaser is required in connection with the valid execution and delivery of
this Agreement.
4.2 Legend. Each certificate representing the Shares, or the Common
Stock issuable upon conversion of the Shares, may be endorsed with legends in
substantially the following form:
(i) "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES,
THE TRANSFER IS MADE IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH
ACT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
(ii) Any other legends required by California law or other
applicable state securities laws.
The Company need not register a transfer of any such securities and may
also instruct its transfer agent not to register the transfer of any such
securities, unless the conditions specified in the foregoing legends are
satisfied.
5. Conditions to the Obligations of the Purchasers. The obligation of each
of the Purchasers to purchase the Shares at the Closing is subject to the
fulfillment, or the waiver by such Purchaser, of each of the following
conditions on or before the Closing:
5.1 Accuracy of Representations and Warranties. Each representation
and warranty of the Company contained in Section 3 hereof shall be true and
correct when made, and
14
shall be true and correct on and as of the Closing Date with the same effect as
though such representation and warranty had been made on and as of that date.
5.2 Performance. The Company shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by the Company prior to or at the Closing.
5.3 Opinion of Counsel. The Purchasers shall have received an
opinion from GCW&F, dated the Closing Date, addressed to each of the Purchasers,
in substantially the form attached hereto as Exhibit E.
5.4 Certificates and Documents. The Company shall have delivered to
the Purchasers:
(a) The Fourth Amended Certificate of the Company, as in
effect as of the Closing Date, certified by and filed with the Secretary of
State of the State of Delaware;
(b) Certificates, as of the most recent practicable dates, as
to the corporate good standing of the Company issued by the Secretary of State
of the State of Delaware and the Secretary of State of the State of California;
(c) Bylaws of the Company, certified by its Secretary or
Assistant Secretary as of the Closing Date; and
(d) Resolutions of the Board of Directors of the Company,
authorizing and approving all matters in connection with this Agreement and the
transactions contemplated hereby, certified by the Secretary or Assistant
Secretary of the Company as of the Closing Date.
5.5 Amended Rights Agreement. The Company and the other parties to
the Amended Rights Agreement (other than the Purchasers) shall have executed and
delivered the Amended Rights Agreement.
5.6 Joint Venture Agreement. The Company shall have executed and
delivered SOFTBANK the Joint Venture Agreement, in the form attached hereto as
Exhibit F (the "Joint Venture Agreement") and shall not be in material default
themselves.
5.7 Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate, executed by the President or Chief Executive Officer
of the Company, dated the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 5.1 and 5.2 herein.
5.8 Third Party Consents. The Company shall have obtained all
consents, approvals, permits and waivers necessary for consummation of the
transactions contemplated by this Agreement which need to be obtained prior to
the Closing Date.
5.9 No Adverse Changes. During the period from the date hereof to
the Closing Date, (i) the business of the Company and its Subsidiaries shall
have been conducted
15
only in, and the Company and its Subsidiaries shall not have taken any action
except in, the ordinary course of business and in a manner consistent with past
practice, (ii) there shall have been no material adverse change in the
operations or the business of the Company and its Subsidiaries and no material
deterioration of or damage to the assets of the Company and its Subsidiaries
taken as a whole, and (iii) there shall have been no injunction, writ,
preliminary restraining order or other order in effect of any nature issued by a
court or governmental agency of competent jurisdiction prohibiting the
consummation of the transactions contemplated by this Agreement or otherwise
directing that the transactions contemplated by this Agreement not be
consummated in the manner provided for in this Agreement..
5.10 Other Matters. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to each of the Purchasers, and each of the
Purchasers shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
6. Conditions to Obligations of the Company. The obligations of the
Company under Section 1.2 hereof are subject to the fulfillment, or the waiver,
of the following conditions on or before the Closing:
6.1 Accuracy of Representations and Warranties Each representation
and warranty of the Purchasers contained in Section 4 hereof shall be true and
correct when made, and shall be true and correct on and as of the Closing Date
with the same effect as though such representation and warranty had been made on
and as of that date.
6.2 Amended Rights Agreement. The Purchasers and the other parties
to the Amended Rights Agreement (other than the Company) shall have executed and
delivered the Amended Rights Agreement.
6.3 Joint Venture Agreement. SOFTBANK shall have executed and
delivered to the Company the Joint Venture Agreement and shall not be in
material breach themselves.
7. Covenants.
7.1 Commercially Reasonable Efforts. Subject to the terms and
conditions of this Agreement, during the period prior to Closing, each party
agrees to use all commercially reasonable efforts to insure that the conditions
to any of the other parties' obligations under Section 5 and 6, insofar as such
matters are within the control of such party, are satisfied as promptly as
practicable, and shall not take any action which would reasonably be expected to
result in any of the representations and warranties of such party becoming
untrue or in any of the conditions to Closing set forth in Sections 5 and 6 not
being satisfied. Subject to the terms and conditions of this Agreement, each
party will use commercially reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary or desirable
under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. Notwithstanding anything herein to the contrary,
the Purchasers shall in no event be
16
required to take any action with respect to obtaining the execution and delivery
of any documents by the Company or its stockholders.
7.2 Notification; Updates to Disclosure Schedule.
(a) During the period prior to the Closing Date, the Company,
on the one hand, and each of the Purchasers, on the other hand, shall promptly
notify the other parties in writing of:
(i) the discovery by any of them of any event,
condition, fact or circumstance that occurred or existed on or prior to the date
of this Agreement and that caused or constitutes a breach of any representation
or warranty made by them in this Agreement;
(ii) any event, condition, fact or circumstance that
occurs, arises or exists after the date of this Agreement and that would cause
or constitute a breach of any representation or warranty made by any of them in
this Agreement if such event, condition, fact or circumstance had occurred,
arisen or existed on or prior to the date of this Agreement;
(iii) any breach of any covenant or obligation of any of
them; or
(iv) any event, condition, fact or circumstance that may
make the timely satisfaction of any of the conditions set forth in Section 5 or
Section 6 impossible or unlikely.
(b) The Company may, no later than five (5) business days
prior to the Closing, deliver to the Purchasers a written update to the
Company's Schedule of Exceptions attached hereto as Exhibit C specifying a
change to such Schedule of Exceptions arising as a result of developments
occurring after the date of this Agreement. No later than one (1) business day
prior to the Closing, the Purchasers shall provide written notice to the
Company, which written notice shall specify whether the Purchasers have, in
their sole discretion, accepted or rejected such update. In the event such
update is accepted, such update shall be deemed to supplement and amend the
Company's Schedule of Exceptions attached hereto as Exhibit C. Notwithstanding
anything therein to the contrary, no such update that is not otherwise accepted
by the Purchasers in the manner described above shall be deemed to supplement or
amend the Company's Schedule of Exceptions attached hereto as Exhibit C for the
purpose of (A) determining the accuracy of any of the representations and
warranties made by the Company in this Agreement, or (B) determining whether any
of the conditions set forth in Section 5 have been satisfied unless the parties
agree to proceed with the Closing, in which case the update shall be deemed to
supplement or amend the Company's Schedule of Exceptions attached hereto.
7.3 Further Assurances. Each party shall execute and deliver such
additional instruments, documents or other writings as may be reasonably
requested by any other party, before or after the Closing, in order to confirm
and carry out and to effectuate fully the intent and purposes of this Agreement
and the other transactions contemplated by this Agreement. Without limitation of
the foregoing, the parties hereto hereby agree to use all reasonable efforts to
prevent
17
any order or other action described in clause (iii) of Section 5.9 from becoming
final and unappealable.
8. Termination.
8.1 Right of Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by the written agreement of the Company and Purchasers who
have agreed to purchase more than 50% of the Shares in the aggregate, as set
forth on the Schedule of Purchasers;
(b) by the Company as to any Purchaser if such Purchaser
breaches any material term or condition of this Agreement and there is no
reasonable possibility of cure prior to the Closing;
(c) by any Purchaser, as to such Purchaser, if the Company
breaches any material term or condition of this Agreement and there is no
reasonable possibility of cure prior to the Closing;
(d) by the Company if the Closing has not taken place on or
before February 15, 1999 (other than as a result of any failure on the part of
the Company to comply with or perform its covenants and obligations under this
Agreement);
(e) by any Purchaser, as to such Purchaser, if the Closing has
not taken place on or before February 15, 1999 (other than as a result of any
failure on the part of the Purchasers to comply with or perform its covenants
and obligations under this Agreement); or
(f) by any of the Company or the Purchasers in the event any
court or governmental authority of competent jurisdiction shall have issued any
order or taken any other action restricting, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order or other action
shall have become final and unappealable.
8.2 Effects of Termination. If this Agreement shall be terminated
pursuant to the preceding Section 8.1, all obligations of the parties hereto
under this Agreement that relate to any Closing (or the transactions
contemplated thereby or in connection therewith) that have not been consummated
shall terminate, provided that nothing in this Section 8 shall relieve any party
of liability for breach of any representation, warranty, covenant or agreement
herein or in the other transactions contemplated by this Agreement.
9. Miscellaneous.
9.1 Survival of Representations and Warranties. All agreements,
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the closing of the transactions contemplated
hereby, regardless of any investigation made by any party.
18
9.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt), addressed (a)
if to a Purchaser, at the address or addresses set forth on Exhibit A or at such
other address as such Purchaser shall have furnished the Company in writing, or
(b) if to the Company, at the address of its principal place of business, or at
such other address as the Company shall have furnished to the Purchaser in
writing, with a copy to ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax ▇▇▇-▇▇▇-▇▇▇▇, Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
9.3 Expenses. The Company and the Purchasers each shall pay all
costs and expenses that it incurs with respect to the negotiation, execution,
delivery and performance of this Agreement and the transactions contemplated
hereby. In the event of an action to resolve a dispute regarding interpretation
of this Agreement, the expenses of the prevailing party shall be paid by the
party which does not prevail.
9.4 Entire Agreement. This Agreement, the exhibits to the Agreement
and other documents delivered pursuant hereto embody the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
9.5 Amendments and Waivers. Except as otherwise expressly set forth
in this Agreement, 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), with the written consent of
the Company and the holders of more than a majority of the Shares and the shares
of Common Stock issued upon conversion of any Shares. Any amendment or waiver
effected in accordance with this Section 9.5 shall be binding upon each holder
of any Shares (including shares of Common Stock into which such Shares have been
converted), each future holder of all such securities and the Company. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
9.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
9.7 Section Headings. The Section headings in this Agreement are for
the convenience of the parties and in no way alter, modify, amend, limit, or
restrict the contractual obligations of the parties.
9.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, U.S.A., as such laws are
applied to agreements between California residents entered into and to be
performed entirely within California.
19
9.9 Press Releases and Public Announcement. No party shall issue any
press release or public announcement relating to the subject matter of this
Agreement without the prior written approval of the other parties hereto;
provided, however, that any party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case, the disclosing party
will use its best efforts to advise the other parties prior to making the
disclosure).
[The remainder of this page is intentionally blank]
20
COUNTERPART SIGNATURE PAGE TO INSWEB SERIES D PREFERRED STOCK PURCHASE AGREEMENT
COMPANY: INSWEB CORPORATION
By: /s/ Hussein A. Enan
------------------------------------
Printed:
-------------------------------
Title:
---------------------------------
PURCHASERS: SOFTVEN NO. 2 INVESTMENT ENTERPRISE
PARTNERSHIP
By: /s/ Yoshitaka Kitao
------------------------------------
Printed:
-------------------------------
Title:
---------------------------------
SOFTBANK VENTURES, INC.
By: /s/ Yoshitaka Kitao
------------------------------------
Printed:
-------------------------------
Title:
---------------------------------
CENTURY CAPITAL PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Managing Partner
---------------------------------
21
EXHIBIT A
SCHEDULE OF PURCHASERS
Name and Address Number of Shares Purchase Price
---------------- ---------------- --------------
SOFTVEN No. 2 Investment Enterprise 141,213 $23,000,067.00
Partnership
1-16-8 ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
AIG Building
7th Floor ▇-▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
SOFTBANK Ventures, Inc. 42,978 $7,000,041.80
1-16-8 ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
AIG Building
7th Floor ▇-▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
1
Name and Address Number of Shares Purchase Price
---------------- ---------------- --------------
Century Capital Partners, L.P. 6,430 $1,047,286.30
c/o Century Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL 190,621 $31,772,269.10
2
EXHIBIT B
FOURTH RESTATED CERTIFICATE OF INCORPORATION
EXHIBIT C
SCHEDULE OF EXCEPTIONS
EXHIBIT D
AMENDED RIGHTS AGREEMENT
EXHIBIT E
GCW&F LEGAL OPINION
EXHIBIT F
JOINT VENTURE AGREEMENT
AMENDMENT NO. 1
TO
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to SERIES D PREFERRED STOCK PURCHASE AGREEMENT (this
"Amendment") dated as of December ___, 1998 is entered into by and among InsWeb
Corporation, a Delaware corporation (the "Company"), and the other entities
whose names appear on the signature page hereto (the "Purchasers").
RECITALS:
A. The Company and the Purchasers have entered into that certain Series D
Preferred Stock Purchase Agreement dated December 15, 1998 (the "Agreement");
and
B. The Company and the Purchasers now wish to amend certain provisions of
the Agreement and certain of the exhibits thereto as set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Amendment of Agreement.
1.1 Section 2 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"2. Closing Dates; Delivery.
2.1 Closings. The purchase and sale of the Shares hereunder shall
take place at two closings (individually, a "Closing" and, collectively,
the "Closings") at the offices of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 2:00 p.m., California
time, on the dates hereinafter provided.
2.2 First Closing. The Closing of the purchase and sale of the
Shares designated for issuance at the first Closing as set forth on the
Schedule of Purchasers (the "First Closing") shall be held on the later to
occur of (i) December 30, 1998, (ii) the date on which the last to be
fulfilled or waived of the conditions to closing set forth in Sections 5
and 6 hereof have been fulfilled or waived in accordance with this
Agreement, or (iii) such other date as is mutually agreed to by the
Company and SOFTBANK Corp. ("SOFTBANK"). The date of the First Closing is
hereinafter referred to as the "First Closing Date."
2.3 Second Closing. The Closing of the purchase and sale of the
Shares designated for issuance at the second Closing as set forth on the
Schedule of Purchasers
(the "Second Closing") shall be held on the later to occur of (i) first
business day following the date on which the last to be fulfilled or
waived of the conditions to the Second Closing set forth in Sections 5 and
6 hereof have been fulfilled or waived in accordance with this Agreement,
or (ii) such other date as is mutually agreed to by the Company and
SOFTBANK. Should the Series D Preferred be converted automatically into
shares of Common Stock pursuant to the terms of the Fourth Restated
Certificate prior to the Second Closing, the Purchasers shall purchase, in
lieu of the Shares specified on the Schedule of Purchasers, the number of
shares of Common Stock into which such Shares would have been converted
had they been issued and sold immediately prior to such automatic
conversion. The date of the Second Closing is hereinafter referred to as
the "Second Closing Date," and the First Closing Date and the Second
Closing Date are hereinafter collectively referred to as the "Closing
Dates."
2.4 Delivery. Subject to the terms and conditions of this Agreement,
at each Closing the Company shall deliver to each of the Purchasers a
stock certificate representing the Shares to be purchased by such
Purchaser at such Closing (which shall be issued in such Purchaser's name)
against payment of the purchase price therefor by check(s), payable to the
order of the Company, or by wire transfer(s) of immediately available
funds to the bank account of the Company."
1.2 Section 3.2 of the Agreement is hereby amended as follows:
(a) The words "Closing Date" and "Closing" in the first sentence of
Section 3.2(a) are changed to "First Closing Date" and "First Closing,"
respectively.
(b) A new Section 3.2(b) is hereby added to the Agreement, as
follows:
"(b) The authorized capital stock of the Company as of the Second
Closing Date and immediately prior to the Second Closing shall be as set
forth in Section 3.2(a), subject, however, to (i) the prior sale and
issuance of the Shares to be issued and sold at the First Closing, (ii)
the issuance of shares of Common Stock and options to purchase Common
Stock in connection with the Company's pending acquisition of Benelytics,
Inc., as described in the Schedule of Exceptions, (iii) the grant of
options to purchase shares of Common Stock under the Company's employee
stock option plans and the exercise of options outstanding as of the date
hereof and such additional options, (iv) the sale and issuance of Common
Stock by the Company in an underwritten public offering pursuant to an
effective registration under the Securities Act of 1933, as amended, at an
aggregate public offering price of at least $20,000,000 and a per share
price of at least $16.2875 (appropriately adjusted for stock splits,
reverse stock splits and stock dividends from and after the date hereof),
and (v) any other issuance of the Company's capital stock, or securities
convertible into such capital stock, as may be approved by SOFTBANK."
(c) Current Section 3.2(b) is hereby re-designated Section 3.2(c).
2
1.3 Section 3.6 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"3.6 Governmental Consent. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or filing with, any governmental authority is required on the part of the
Company or any Subsidiary in connection with the execution and delivery of
this Agreement and the Amended Rights Agreement, the offer, issuance, sale
and delivery of the Shares, or the other transactions to be consummated at
the Closings, as contemplated by this Agreement, except pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended from time
to time, and the rules promulgated thereunder (the "HSR Act"), and except
such other filings as shall have been made prior to and shall be effective
on and as of the applicable Closing."
1.4 Section 4.1(g) of the Agreement is hereby amended and restated
to read in its entirety as follows:
"(g) No consent, approval, order or authorization of, or
designation, declaration or filing with, any governmental authority is
required on the part of such Purchaser in connection with the execution
and delivery of this Agreement and the Amended Rights Agreement, the
purchase of the Shares, or the other transactions to be consummated at the
Closings, as contemplated by this Agreement, except (with respect to
SOFTBANK Ventures, Inc. and SOFTVEN No. 2 Investment Enterprise
Partnership) pursuant to the HSR Act."
1.5 Section 5.1 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"5.1 Accuracy of Representation and Warranties. Each representation
and warranty of the Company contained in Section 3 hereof shall have been
true and correct when made, and shall be true and correct on and as of
each Closing Date, with the same effect as though such representation and
warranty had been made on and as of such date, except to the extent that
any such representation and warranty speaks specifically as of an earlier
date and except for changes contemplated by this Agreement."
1.6 Section 5.8 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"5.8 Third Party Consents. The Company shall have obtained all
consents, approvals, permits and waivers necessary for consummation of the
transactions contemplated by this Agreement which need to be obtained
prior to each Closing Date, including without limitation, if applicable,
all required filings and the expiration or early termination of all
applicable waiting periods under the HSR Act; provided, however, that such
required filings and the expiration or early termination of all applicable
waiting periods under the HSR Act shall only be a condition to the
obligations of the Purchasers with respect to the Second Closing."
3
1.7 A new Section 6.4 is hereby added to the Agreement as follows:
"6.4 Third Party Consents. The Purchasers shall have obtained all
consents, approvals, permits and waivers necessary for consummation of the
transactions contemplated by this Agreement which need to be obtained
prior to each Closing Date, including without limitation, if applicable,
all required filings and the expiration or early termination of all
applicable waiting periods under the HSR Act; provided, however, that such
required filings and the expiration or early termination of all applicable
waiting periods under the HSR Act shall only be a condition to the
obligations of the Company with respect to the Second Closing."
1.8 A new Section 7.3 is hereby added to the Agreement as follows,
and current Section 7.3 of the Agreement is hereby re-designated Section 7.4:
"7.3 Filings and Consents. To the extent applicable, the Company and
the Purchasers shall make all filings required under the HSR Act relating
to the transactions contemplated by this Agreement (and shall use their
best efforts to cause their parent companies to make any such required
filings) and shall each use their best efforts to cause any such required
filings to be made as promptly as practicable after the date hereof. If a
filing is required under the HSR Act, the Company and the Purchasers will
each use commercially reasonable efforts to promptly furnish (and to cause
their parent companies, as applicable, to promptly furnish) any
information that may be required by the Federal Trade Commission (the
"FTC") or the Department of Justice (the "DOJ") under the HSR Act in order
for the requisite approvals for the purchase and sale of the Shares at the
Second Closing, and the consummation of the related transactions
contemplated by this Agreement, to be obtained or any applicable waiting
periods to be terminated or expire; provided, however, that in the event
the FTC or the DOJ issues a "second request" in connection with any such
filing, the parties will consult with each other in good faith regarding
appropriate further action, which shall be taken only to the extent agreed
by the parties. Each party hereto will cooperate with each other with
respect to obtaining, as promptly as practicable, all necessary consents,
approvals, authorizations and agreements of, and the giving of all notices
and making of all other filings with, any third parties, including
governmental authorities, necessary to authorize, approve or permit the
consummation of the transactions contemplated by this Agreement."
1.9 Section 8.1 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"8.1 Right of Termination. This Agreement may be terminated prior to
the First Closing, and, as to the obligations of the parties at the Second
Closing, prior to the Second Closing, in each case as follows:
(a) by the written agreement of the Company and Purchasers who
have agreed to purchase more than 50% in aggregate of the Shares to be
purchased and sold at
4
the First Closing or the Second Closing, as applicable, as set forth on
the Schedule of Purchasers;
(b) by the Company, as to any Purchaser, if such Purchaser
breaches any material term or condition of this Agreement and there is no
reasonable possibility of cure prior to the First Closing or the Second
Closing, as applicable;
(c) by any Purchaser, as to such Purchaser, if the Company
breaches any material term or condition of this Agreement and there is no
reasonable possibility of cure prior to the First Closing or the Second
Closing, as applicable;
(d) by the Company if both Closings have not taken place on or
before February 28, 1999 (other than as a result of any failure on the
part of the Company to comply with or perform its covenants and
obligations under this Agreement);
(e) by any Purchaser, as to such Purchaser, if both Closings
have not taken place on or before February 28, 1999 (other than as a
result of any failure on the part of the Purchasers to comply with or
perform its covenants and obligations under this Agreement); or
(f) by any of the Company or the Purchasers in the event any
court or governmental authority of competent jurisdiction shall have
issued any order or taken any other action restricting, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, and
such order or other action shall have become final and unappealable."
1.10 Section 9.3 of the Agreement is hereby amended and restated in
its entirety to read as follows:
"9.3 Expenses. The Company and the Purchasers each shall pay all
costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement and the transactions
contemplated hereby, except that the Company and/or its parent company
shall pay all of the filing fees (including those of the Purchasers and/or
their parent companies, if applicable) required in connection with the
applications under the HSR Act with respect to the transactions
contemplated by this Agreement. In the event of an action to resolve a
dispute regarding interpretation of this Agreement, the expenses of the
prevailing party shall be paid by the party which does not prevail."
1.11 The term "Closing Date" as it appears in Sections 1.1 of the
Agreement shall be deemed to refer to the "First Closing Date."
1.12 Except as specified herein, the conditions set forth in Section
5 and 6 of the Agreement shall apply to the obligations of the parties at each
Closing with respect to the Shares to be purchased and sold at such Closing, and
the terms "Closing" and "Closing Date" as
5
they appear in Sections 5 and 6 of the Agreement shall be deemed to refer either
to the "First Closing" and the "First Closing Date," respectively, or the
"Second Closing" and the "Second Closing Date," respectively, as the context
requires.
1.13 Except as specified herein, the covenants set forth in Section
7 of the Agreement shall apply and remain in effect through and including the
Second Closing, and, in the case of Section 7.3 ("Further Assurances"), shall
apply after each of the First and Second Closing with respect to the
transactions consummated at such Closing. The terms "Closing" and "Closing Date"
as they appear in Section 7 of the Agreement shall be deemed to refer either to
the "First Closing" and the "First Closing Date," respectively, or the "Second
Closing" and the "Second Closing Date," respectively, as the context requires.
1.14 The Schedule of Purchasers attached to the Agreement as Exhibit
A thereto is hereby replaced in its entirety by the Schedule of Purchasers
attached hereto as Exhibit A (Revised).
1.15 The form of Fourth Restated Certificate of Incorporation
attached to the Agreement as Exhibit B thereto is hereby replaced in its
entirety by the form of the Fourth Restated Certificate of Incorporation
attached hereto as Exhibit B (Revised).
1.16 The form of Amended and Restated Rights Agreement attached to
the Agreement as Exhibit D thereto is hereby replaced in its entirety by the
form of Amended and Restated Rights Agreement attached hereto as Exhibit D
(Revised).
1.17 The form of legal opinion attached to the Agreement as Exhibit
E thereto shall be modified for delivery in connection with each Closing as
appropriate to reflect the provisions of this Amendment.
2. Miscellaneous.
2.1 Survival of Other Provisions of the Agreement. Except as
specifically amended hereby, all provisions of the Agreement shall remain in
full force and effect.
2.2 Expenses. Except as otherwise provided in the Agreement, as
amended hereby, the Company and the Purchasers each shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of this Amendment and the transactions contemplated hereby. In the
event of an action to resolve a dispute regarding interpretation of this
Amendment, the expenses of the prevailing party shall be paid by the party which
does not prevail.
2.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
2.4 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California, U.S.A., as such laws are
applied to
6
agreements between California residents entered into and to be performed
entirely within California.
2.5 Waiver of Conflicts. The Company and the Purchasers affiliated
with SOFTBANK acknowledge that each has been made aware that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel for SOFTBANK and its affiliates in connection with the transactions
contemplated in the Agreement, has previously been retained by the Company in
connection with certain of its transactions. The Company, on its own behalf and
on behalf of its subsidiaries and affiliates, hereby agrees to waive any
conflict of interest which may be deemed to arise or have arisen as a result of
the current or future representation of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP of SOFTBANK or
its subsidiaries and affiliates, and will not seek to disqualify ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP from representing SOFTBANK or its subsidiaries and affiliates in
connection with the transactions contemplated by this Agreement; provided,
however, that such waiver shall not extend to any litigation or arbitration
proceeding arising out of any such transaction. The Purchasers affiliated with
SOFTBANK, on their own behalf and on behalf of their subsidiaries and
affiliates, hereby agree to waive any conflict of interest which may be deemed
to arise or have arisen as a result of the past representation of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP of InsWeb, and will not seek to disqualify ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
from representing InsWeb or is subsidiaries and affiliates in connection with
any matter substantially unrelated to the transactions contemplated in the
Agreement.
[The remainder of this page is intentionally blank]
7
COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 to SERIES D
PREFERRED STOCK PURCHASE AGREEMENT
COMPANY: INSWEB CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Secretary
---------------------------------
PURCHASERS: ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
PARTNERSHIP
By: /s/ Yoshitaka Kitao
------------------------------------
Printed: Yoshitaka Kitao
-------------------------------
Title:
---------------------------------
SOFTBANK VENTURES, INC.
By: /s/ Yoshitaka Kitao
------------------------------------
Printed: Yoshitaka Kitao
-------------------------------
Title:
---------------------------------
CENTURY CAPITAL PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Managing Partner
---------------------------------
8
EXHIBIT A (REVISED)
SCHEDULE OF PURCHASERS
First Closing Second Closing Total
------------------------ ------------------------- -----------------------
Shares Purchase Shares Purchase Shares Purchase
Purchased Price Purchased Price Purchased Price
--------- ----- --------- ----- --------- -----
Name and Address
SOFTVEN No. 2 Investment -- -- 141,213 $23,000,067.37 141,213 $23,000,067.37
Enterprise Partnership
1-16-8 ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention:
Messrs. Yoshitaka Kitao and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
AIG Building
7th Floor ▇-▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq
Fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
SOFTBANK Ventures, Inc. 42,978 $7,000,041.75 -- -- 42,978 7,000,041.75
1-16-8 ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: Messrs. Yoshitaka
Kitao and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
AIG Building
7th Floor ▇-▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Esq
Fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
1
First Closing Second Closing Total
------------------------ ------------------------- -----------------------
Shares Purchase Shares Purchase Shares Purchase
Purchased Price Purchased Price Purchased Price
--------- ----- --------- ----- --------- -----
Name and Address
Century Capital Partners, L.P. 6,430 1,047,286.25 -- -- 6,430 $ 1,047,286.25
c/o Century Capital ------ ------------- ------- -------------- ------- --------------
Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL 49,408 $8,047,328.00 141,213 $23,000,067.37 190,621 $31,047,395.37
====== ============= ======= ============== ======= ==============
2
EXHIBIT B (REVISED)
FOURTH RESTATED CERTIFICATE OF INCORPORATION
1
EXHIBIT C (REVISED)
AMENDED AND RESTATED RIGHTS AGREEMENT
1