EXHIBIT 10.29
AVANTGO, INC.
ADDENDUM TO SERIES D PREFERRED STOCK
PURCHASE AGREEMENT
------------------
This Addendum to Series D Preferred Stock Purchase Agreement (the
"Addendum") is made as of the 7th day of April, 2000 by and among AvantGo, Inc.,
--------
a Delaware corporation (the "Company"), and the entities listed on Exhibit A
-------
attached hereto (the "Additional Purchasers").
---------------------
RECITALS
On March 8, 2000, the Company entered into a Series D Preferred Stock
Purchase Agreement (the "Purchase Agreement") with certain investors set forth
------------------
on Exhibit A attached thereto, which provides that the Company may sell all of
---------
the shares of the Company's authorized but unissued Series D Preferred Stock
(the "Additional Shares") to the Additional Purchasers and that, under
-----------------
conditions set forth therein, the Additional Purchasers may become parties to
the Purchase Agreement and the Ancillary Agreements (as defined in the Purchase
Agreement). All terms not defined herein shall have the meaning ascribed
thereto in the Purchase Agreement.
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
1. Sale of Preferred Stock.
Subject to the terms and conditions hereof, at the Closing (as defined in
Section 2.1 hereof) the Company will issue and sell to each Additional
Purchaser, and each Additional Purchaser severally agrees to purchase from the
Company, that number of Additional Shares specified opposite such Additional
Purchaser's name on Exhibit A hereto, at a cash purchase price of $8.36 per
---------
share. Each of the Additional Purchasers, by their signatures hereto, shall
hereby (i) become parties to the Purchase Agreement, (ii) be considered a
"Purchaser" for all purposes under the Purchase Agreement and (iii) have all the
----------
rights and obligations of a Purchaser thereunder. The Additional Shares acquired
by the Additional Purchasers hereunder shall be considered "Series D Preferred
------------------
Stock" for all purposes under the Purchase Agreement, as amended.
-----
2. Closing; Delivery.
2.1 Closing.
The closing of the purchase and sale of the Additional Shares
hereunder (the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇ Coie LLP,
Menlo Park, California, at 1:00 PM., on April 7th, 2000, or at such other time
and place as the Company and the Additional Purchasers may agree.
2.2 Delivery.
At the Closing, the Company will deliver to each Additional Purchaser
a certificate representing the number of Additional Shares set forth opposite
such Additional Purchaser's name on Exhibit A, against payment of the purchase
---------
price therefor by each Additional Purchaser by check payable to the Company or
by wire transfer to the Company at its account maintained by ▇▇▇▇▇▇▇ Coie LLP,
or by any combination thereof.
3. Disclosure.
Each Additional Purchaser hereby acknowledges receipt of the Purchase
Agreement and the exhibits thereto. The Company affirms to each Additional
Purchaser that:
(i) The representations and warranties of the Company set forth in
Section 2 of the Purchase Agreement were true and accurate when made;
(ii) The representations and warranties set forth in Section 2 of the
Purchase Agreement, which are incorporated herein by reference and made a part
hereof, remain true and accurate as of the date hereof, except (A) for changes
resulting from the transactions contemplated in the Purchase Agreement and (B)
as set forth in the Schedule of Exceptions to Representations and Warranties
attached hereto as Exhibit B.
---------
(iii) The conditions to closing set forth in Section 4 of the
Purchase Agreement and in Section 5 hereof have been satisfied, provided that
the conditions set forth in Section 4.1 of the Purchase Agreement shall include
references to changes in the Company's representations and warranties and the
Company's status, respectively, as set forth herein and in the Exhibits attached
hereto, and resulting from the consummation of the transactions contemplated by
the Purchase Agreement.
4. Representations and Warranties of Additional Purchasers.
4.1 Incorporation of Representations.
Each Additional Purchaser acknowledges that such Additional Purchaser has
reviewed the representations and warranties set forth in Section 3 of the
Purchase Agreement and agrees with the Company that such representations and
warranties, which are incorporated herein by this reference and made a part
hereof, are true and correct as of the date hereof as they relate to such
Additional Purchaser's purchase of the Additional Shares hereunder.
4.2 Additional Representations by Foreign Purchasers.
If an Additional Purchaser is not a United States person, such Additional
Purchaser hereby represents that he or she has satisfied himself or herself as
to the full observance of the laws of his or her jurisdiction in connection with
any invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within his jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax
-2-
and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale, or transfer of the Securities. Such Additional
Purchaser's subscription and payment for, and his or her continued beneficial
ownership of the Securities, will not violate any applicable securities or other
laws of his or her jurisdiction.
5. Conditions to Additional Purchasers' Obligations at Closing.
The obligation of each Additional Purchaser to purchase the Additional
Shares at the Closing is subject to the fulfillment to such Additional
Purchaser's satisfaction at or prior to the Closing of the following conditions:
5.1 Representations and Warranties Correct: Performance of Obligations.
The representations and warranties made by the Company in Section 3
hereof, including the representations and warranties incorporated by reference
from Section 2 of the Purchase Agreement, were true and correct in all material
respects when made, and shall be true and correct in all material respects on
and as of the date of the Closing with the same force and effect as if they had
been made on and as of said date; and the Company shall have performed all
obligations and conditions herein required to be performed or observed by it at
or prior to the Closing.
5.2 Legal Opinion.
Each of the Additional Purchasers shall have received from ▇▇▇▇▇▇▇
Coie LLP, legal counsel for the Company, an opinion, dated as of the Closing, in
substantially the form of Exhibit C.
5.3 Compliance Certificate.
The President of the Company shall deliver to the Purchasers at the
Closing a certificate certifying that the conditions specified in Section 5.1
have been fulfilled.
6. Conditions to Company's Obligations at Closing.
The obligations of the Company under Section 1 of this Addendum are
subject to the fulfillment at or before the Closing of each of the following
conditions:
6.1 Representations and Warranties.
The representations and warranties of each Additional Purchaser
contained in Section 4 hereof shall be true at the Closing.
7. Miscellaneous.
7.1 Survival of Warranties.
-3-
Unless otherwise set forth in this Addendum the warranties,
representations and covenants of the Company and the Purchasers contained in or
made pursuant to this Addendum shall survive the execution and delivery of this
Addendum and the Closing.
7.2 Incorporation by Reference.
The provisions set forth in Section 6 of the Purchase Agreement (other
than Sections 6.1 and 6.6) are incorporated herein by this reference and made a
part hereof.
7.3 Notices.
Any notice required or permitted by this Addendum 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 forty-eight (48) hours 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 below or on Exhibit A hereto, or as subsequently modified by written
---------
notice, and if to the Company, with a copy to ▇▇▇▇▇▇▇ Coie LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ fax (▇▇▇) ▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ III.
7.4 Counterparts.
This Addendum may be executed in any number of counterparts, each of
which may be executed by less than all of the Additional Purchasers, each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
[Signature Page Follows]
-4-
The parties hereto have executed this Addendum as of the date first set
forth above.
AVANTGO, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇▇▇, Chairman of the Board
PURCHASER:
RESEARCH IN MOTION USA CORPORATION
25227 ▇▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
By: /s/ Illegible for
--------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
ADDITIONAL PURCHASER:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇▇▇▇ Family Revocable Trust
-------------------------------------------------
(Purchaser Name) u/a/d 12-16-94 amended 9-30-99
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Trustee
-------------------------------------------
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
/s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
(Purchaser Name)
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
(Purchaser Name)
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Title:
-------------------------------------------
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
TWB Investment Partnership L.P.
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Title: Managing Director
-------------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
Broadway SLP
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: CFO of its GP Broadway Scottish LLC
-------------------------------------------
Address:
-----------------------------------------
-------------------------------------------------
Fax:
---------------------------------------------
ADDITIONAL PURCHASER:
SKGF Investments-2000-1, L.L.C.
-------------------------------------------------
(Purchaser Name)
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Manager
-------------------------------------------
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇
-----------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
-------------------------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------
-5-
ADDITIONAL PURCHASER:
▇▇▇▇▇ & Company Incorporated
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: CFO & Managing Director
-------------------------------------------
Address: ▇▇ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
Write Image Limited
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Director
-------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇
-------------------------------------------------
Fax: ▇▇(▇) ▇▇ ▇▇▇▇ ▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
ANGEL (0) INVESTORS II, L.P.
-------------------------------------------------
(Purchaser Name)
By: ArchAngel II, LLC its general partner
----------------------------------------------
Name: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
-------------------------------------------
Address: c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
(Purchaser Name)
By: /s/ S Bonham
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Vice President, Capital Group
-------------------------------------------
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax:
---------------------------------------------
ADDITIONAL PURCHASER:
DRW VENTURE PARTNERS LP
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Director Finance & Administration
-------------------------------------------
Address: ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------
ADDITIONAL PURCHASER:
THE LEASING GROUP PLC
-------------------------------------------------
(Purchaser Name)
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Group Director
-------------------------------------------
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
-------------------------------------------------
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
-6-
EXHIBIT A
SCHEDULE OF ADDITIONAL PURCHASERS
Name and Address of
-------------------
Additional Purchaser
--------------------
RIM USA Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Broadview SLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
DRW Venture Partners L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ & Company Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Angel (Q) Investors II, L.P.
C/O J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Leasing Group, plc
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Write Image Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Name and Address of Number of Shares Total Purchase Price
------------------- ---------------- --------------------
Additional Purchaser
--------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Family Revocable Trust
u/a/d 12/16/94, amended 9/30/99
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TWB Investment Partnership
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SKGF Investments-2000-1, L.L.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ #▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
-2-
Exhibit C
[LETTERHEAD OF ▇▇▇▇▇▇▇ COIE LLP]
April 7, 200O
To the Additional Purchasers Listed on the
Schedule of Investors to the AvantGo, Inc.
Addendum to Series D Preferred Stock
Purchase Agreement dated as of April 7, 200O
Ladies and Gentlemen:
We have acted as counsel for AvantGo, Inc., a Delaware corporation
(the "Company"), in connection with the issuance and sale of an additional
436,599 shares of its Series D Preferred Stock pursuant to the AvantGo, Inc.
Addendum to Series D Preferred Stock Purchase Agreement dated as of April 7,
2000 (the "Addendum") between the Company and you. This opinion is being
rendered to you pursuant to Section 5.2 of the Addendum in connection with the
Additional Closing of the sale of the Series D Preferred Stock. Capitalized
terms not otherwise defined in this opinion have the meaning given them in that
certain Series D Preferred Stock Purchase Agreement dated as of March 8/th/,
2000.
In connection with the opinions expressed herein we have made such
examination of matters of law and of fact as we considered appropriate or
advisable for purposes hereof. As to matters of fact material to the opinions
expressed herein, we have relied upon the representations and warranties as to
factual matters contained in and made by the Company pursuant to the Addendum, a
certificate of officers of the Company (the "Officers' Certificate") and other
certificates and statements of government officials. We have also examined
originals or copies of such corporate documents or records of the Company as we
have considered appropriate for the opinions expressed herein. We have assumed
for the purposes of this opinion that the signatures on documents and
instruments examined by us are authentic, that each document is what it purports
to be, and that all documents submitted to us as copies or facsimiles conform
with the originals, which facts we have not independently verified. We have not
conducted a docket search in any jurisdiction with respect to litigation that
may be pending against the Company or any of its officers or directors or
undertaken any further inquiry other than as stated herein.
In rendering this opinion we have also assumed: (A) that the Addendum,
the Third Amended and Restated Investor Rights Agreement (the "Investor Rights
Agreement"), the Third
ANCHORAGE BELLEUVE BOISE DENVER HONG KONG LOS ANGELES MENLO PARK PORTLAND SAN
FRANCISCO SEATTLE SPOKANE TAIPEI WASHINGTON, D.C.
STRATEGIC ALLIANCE: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, VANCOUVER, CANADA
To the Additional Purchasers Listed on the April 7 ,200O
Schedule of Investors to the AvantGo, Inc. Addendum Page 2
to Series D Preferred Stock Purchase Agreement
Amended and Restated Voting Agreement (the "Voting Agreement") and the Third
Amended and Restated Right of First Refusal and Co-Sale Agreement (the "Co-Sale
Agreement") (collectively, the "Transaction Documents") have been duly and
validly executed and delivered by you or on your behalf and constitute valid,
binding and enforceable obligations upon you; (B) that the representations and
warranties made in the Addendum by you are true and correct; (C) that any wire
transfers, drafts or checks tendered by you will be honored; (D) there are no
facts or circumstances relating to you that might prevent you from enforcing any
of the rights to which our opinion relates; and (E) that there are no extrinsic
agreements or understandings among the parties to the Transaction Documents that
would modify or interpret the terms of the Transaction Documents or the
respective rights or obligations of the parties thereunder.
Our opinions in paragraphs 1 and 2 below are based solely upon our
review of certificates of public officials in the relevant states.
In connection with the opinion expressed in paragraph 4 below, we have
examined the Certificate of Incorporation, as amended and restated, the Bylaws,
the stock record books and journals of the Company in our possession, the
Company's stock certificate books and the Company's minute books in our
possession. The Company has represented to us that these records are complete
and accurate and constitute all of the Company's documents with respect to the
issuance of shares of its capital stock, options, warrants or other rights to
purchase shares of its capital stock. We have relied on the Company's
representation to us that the information expressed in paragraph 4 below with
respect to the outstanding options, warrants or other rights is true and
complete. We have also relied on the Company's representations to us as to the
nature of the consideration received for such shares. Although we have no
knowledge that the information as to outstanding stock, options, warrants and
other rights provided by the Company and reflected in paragraph 4 is incorrect,
based on the examination referred to above, we are not in a position to verify
its accuracy or completeness, other than to say that our records are not
inconsistent with such information.
With respect to our opinion in paragraph 6 below, the term "Material
Agreements" is limited to agreements specifically identified on the Schedule of
Exceptions. In connection with our opinion relating to the Material Agreements
set forth on the Schedule of Exceptions, we express no opinion on parol evidence
bearing on interpretation or construction of such agreements. Moreover, to the
extent that any of the Material Agreements is governed by the laws of any
jurisdiction other than the federal laws of the United States or the laws of the
State of California, our opinion relating to those agreements and instruments is
based solely upon the plain meaning of their language without regard to
interpretation or construction that might be indicated by the laws governing
those agreements or instruments. In connection with our opinion relating to
violations of federal or California laws, rules or regulations applicable to the
Company, such
To the Additional Purchasers Listed on the April 7, 2000
Schedule of Investors to the AvantGo, Inc. Addendum Page 3
to Series D Preferred Stock Purchase Agreement
opinion is limited to such laws, rules or regulations that in our experience are
typically applicable to a transaction of the nature contemplated by the
Transaction Documents.
As used in this opinion, the expression "we are not aware" or the
phrase "to our knowledge" means as to matters of fact that, based on the actual
knowledge of individual attorneys within the firm principally responsible for
handling current matters for the Company and after an examination of documents
referred to herein and after inquiries of certain officers of the Company, we
find no reason to believe that the opinions expressed are factually incorrect,
but beyond that we have made no factual investigation for the purposes of
rendering this opinion. Specifically, but without limitation, we have made no
inquiries of securities holders or employees (other than obtaining
representations from certain officers of the Company as described above) of the
Company.
This opinion relates solely to the laws of the State of California,
the General Corporation Law of the State of Delaware and the federal law of the
United States, and we express no opinion with respect to the effect or
application of any other laws.
Based upon our examination of and reliance upon the foregoing and
subject to the limitations, exceptions, qualifications and assumptions set forth
below and except as set forth in the Addendum or the Schedule of Exceptions
thereto, we are of the opinion that as of the date hereof
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with the requisite
corporate power and authority to own its properties and to conduct its business
as presently conducted.
2. The Company is qualified to do business in the State of
California.
3. The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Transaction Documents.
The execution, delivery and performance of the Transaction Documents have been
duly authorized by all necessary corporate action of the Company, and the
Transaction Documents have been duly executed and delivered by the Company. Each
of the Transaction Documents constitutes a legally valid and binding obligation
of the Company, enforceable against the Company according to its terms;
provided, however, that no opinion is expressed with respect to the
enforceability of the Voting Agreement or the indemnity obligations of Section
1.10 of the Investors' Rights Agreement.
4. The authorized capitalization of the Company is as follows:
(a) Preferred Stock. 16,472,082 shares of Preferred Stock (the
---------------
"Preferred Stock"), (i) 4,434,156 of which shares have been designated Series A
Preferred Stock,
To the Additional Purchasers Listed on the April 7, 2000
Schedule of Investors to the AvantGo, Inc. Addendum Page 4
to Series D Preferred Stock Purchase Agreement
all of which are issued and outstanding; (ii) 3,301,886 of which shares have
been designated Series B Preferred Stock, all of which are issued and
outstanding; (iii) 3,736,040 of which shares have been designated Series C
Preferred Stock, all of which are issued and outstanding prior to the Closing,
and (iv) 5,000,OOO of which shares have been designated Series D Preferred
Stock, 3,289,495 of which are issued and outstanding immediately prior to the
Closing. The shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock have been duly authorized
and validly issued, and, to our knowledge, are fully paid and nonassessable.
(b) Common Stock. 40,000,OOO shares of Common Stock, 9,840,562
------------
shares of which are issued and outstanding immediately prior to the Closing. All
of the outstanding shares of Common Stock have been duly authorized, fully paid
and are, to our knowledge, nonassessable and issued in compliance with all
applicable federal and state securities laws. The Company has reserved (i)
16,472,082 shares of Common Stock for issuance upon conversion of the Preferred
Stock and (ii) 9,213,600 shares of Common Stock for issuance to officers,
directors, employees and consultants of the Company under the Company's 1997
Stock Option Plan (the "1997 Plan"), of which (A) options to purchase 4,311,958
shares of Common stock are issued and outstanding, (B) options to purchase
3,278,562 shares of Common Stock have been exercised and are included in the
Company's outstanding Common Stock, (C) options to purchase 1,187,080 shares are
available for future issuance under the 1997 Plan and (D) 436,000 shares were
exercised and subsequently repurchased by the Company and are not available for
reissuance under the 1997 Plan.
(C) Except for (i) conversion privileges of the Preferred Stock,
(ii) outstanding options issued pursuant to the 1997 Plan, (iii) a Warrant to
purchase 117,558 shares of Series D Preferred Stock, (iv) a Warrant to purchase
117,558 shares of (A) the class of Preferred Stock issued in the Company's most
recent financing round prior to the date on which certain contractual
obligations of the Company occur (the "Trigger Date"); or (B) Common Stock if
the most recent financing round prior to the Trigger Date is the Company's
initial underwritten public offering pursuant to the Securities Act of 1933, as
amended (the "IPO"); (v) a Warrant to purchase 358,851 shares of Series D
Preferred Stock; (vi) certain rights held by each of (A) Ford Motor Company; (B)
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇
Special Opportunity Fund 2000, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investments Limited,
collectively; and (C) and Imagine Health, Inc. to purchase $5M, $3M and $3M of
shares of Common Stock, respectively, in a private financing to occur
contemporaneous with an IPO (if at all); (vii) the IPO participation right set
forth in Section 2.4 of the Investor Rights Agreement; and (viii) the rights of
first refusal set forth in the Investors Rights Agreement and Co-Sale Agreement,
there are, to our knowledge, 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.
To the Additional Purchasers Listed on the April 7, 2000
Schedule of Investors to the AvantGo, Inc. Addendum Page 5
to Series D Preferred Stock Purchase Agreement
5. The shares of Series D Preferred Stock when issued in compliance
with the provisions of the Stock Purchase Agreement, will be duly authorized,
validly issued, nonassessable and fully paid. The Common Stock issuable upon
conversion of the Series D Preferred Stock has been duly and validly reserved
for issuance and, when and if issued upon such conversion in accordance with the
Company's Certificate of Incorporation, as amended and restated, will be validly
issued, fully paid and nonassessable. The issuance of the Series D Preferred
Stock and the Common Stock issuable upon conversion of the Series D Preferred
Stock is not subject to any preemptive rights set forth in the Company's
Certificate of Incorporation, as amended and restated, or, to our knowledge, or
any rights of first refusal or other similar rights created by the Company.
6. The execution, delivery and performance of the obligations of the
Company under the Transaction Documents, do not (i) violate any provision of any
federal, Delaware corporate or California law, rule or regulation applicable to
the Company, (ii) violate any provision of the Company's Certificate of
Incorporation, as amended and restated, or Bylaws, or (iii) conflict with or
constitute a material default under the provisions of judgments, writs, decrees
or orders, if any, specifically identified in the Schedule of Exceptions or the
material provisions of any Material Agreement.
7. The execution, delivery and performance of the obligations of the
Company under the Transaction Documents do not require any consents, approvals,
permits, orders or authorizations of, or any qualifications, registrations,
designations, declarations or filings with, any federal, Delaware corporate or
California state governmental authority on the part of the Company except (i) as
have been obtained and are effective, and (ii) the filing of certain notices
with the Securities and Exchange Commission, and the appropriate governmental
authorities in the states of New York, Michigan, California, Washington Texas
and Minnesota.
8. Based in part upon the representations made by you in the Stock
Purchase Agreement, the offer and sale of the Series D Preferred Stock to you
pursuant to the terms of the Stock Purchase Agreement are exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as
amended, and from the qualification requirements of the California Corporate
Securities Law of 1968, as amended, and, under such securities laws as they
presently exist, the issuance of Common Stock to you upon conversion of the
Series D Preferred Stock would also be exempt from such registration and
qualification requirements.
9. To our knowledge, there is no action, suit, proceeding or
investigation pending against the Company before any court or governmental
agency, nor, to our knowledge, has the Company received any written threat
thereof that questions the validity of the Transaction Documents or the right of
the Company to enter into the Transaction Documents.
To the Additional Purchasers Listed on the April 7, 2000
Schedule of Investors to the AvantGo, Inc. Addendum Page 6
to Series D Preferred Stock Purchase Agreement
Our opinions expressed above are specifically subject to the following
limitations, exceptions, qualifications and assumptions:
(A) We express no opinion as to the effect of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting the relief of debtors or the rights and remedies of creditors
generally, including without limitation the effect of statutory or other law
regarding fraudulent conveyances and preferential transfers.
(B) We express no opinion as to the Company's compliance or
noncompliance with applicable federal or state antifraud or antitrust statutes,
laws, rules and regulations.
(c) Limitations imposed by state law, federal law or general
equitable principles upon the specific enforceability of any of the remedies,
covenants or other provisions of any applicable agreement and upon the
availability of injunctive relief or other equitable remedies, regardless of
whether enforcement of any such agreement is considered a proceeding in equity
or at law.
(D) The effect of court decisions, invoking statutes or
principles of equity, which have held that certain covenants and provisions of
agreements are unenforceable where enforcement of such covenants or provisions
under the circumstances would violate the enforcing party's implied covenant of
good faith and fair dealing.
(E) The effect of Section 1670.5 of the California Civil Code or
any other California law, federal law or equitable principle which provides that
a court may refuse to enforce, or may limit the application of, a contract or
any clause thereof which the court finds to have been unconscionable at the time
it was made or contrary to public policy.
(F) The unenforceability under certain circumstances of
provisions expressly or by implication waiving broadly or vaguely stated
rights, unknown future rights, or defenses to obligations or rights granted by
law, when such waivers are against public policy or prohibited by law.
(G) The unenforceability under certain circumstances of
provisions to the effect that rights or remedies are not exclusive, that rights
or remedies may be exercised without notice, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or
remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more remedies, or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such right or
remedy.
To the Additional Purchasers Listed on the April 7, 2000
Schedule of Investors to the AvantGo, Inc. Addendum Page 7
to Series D Preferred Stock Purchase Agreement
(H) Any provisions of the Transaction Documents requiring that
waivers must be in writing may not be binding or enforceable if a non-executory
oral agreement has been created modifying any such provision or an implied
agreement by trade practice or course of conduct has given rise to a waiver.
This opinion is rendered as of the date first written above solely for
your benefit in connection with the Stock Purchase Agreement and may not be
delivered to, quoted or relied upon by any person other than you, or for any
other purpose, without our prior written consent. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company. We
assume no obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinions expressed herein.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ Coie LLP
▇▇▇▇▇▇▇ COIE LLP