Exhibit 10.10
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE
AGREEMENT
This Series D-4 Convertible Preferred Stock and Warrant Purchase
Agreement (the "Agreement") is entered into as of July 19, 2002, by and among
InPhonic, Inc., a Delaware corporation (the "Company") and each of those persons
and entities, severally and not jointly, whose names are set forth on the
Schedule of Purchasers attached hereto as Exhibit A ("Exhibit A") (which persons
and entities are hereinafter collectively referred to as "Purchasers" and each
individually as a "Purchaser").
Recitals
Whereas, the Company has authorized the sale and issuance of an
aggregate of 970,000 shares (the "Shares") of its Series D-4 Convertible
Preferred Stock, par value $0.01 per share (the "Series D-4 Stock"); and
Whereas, the Company has authorized the sale and issuance of warrants
in substantially the form attached hereto as Exhibit B (the "Warrants") to
acquire up to an aggregate of 960,556 shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"); and
Whereas, the Company desires to sell and issue the Shares and Warrants
to the Purchasers, on the terms and conditions set forth herein, and the
Purchasers desire to purchase the Shares and Warrants, on the terms and
conditions set forth herein.
Now, Therefore, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Agreement To Sell And Purchase.
1.1 Authorization of Shares and Warrants. On or prior to the Closing
(as defined in Section 2 below), the Company shall have authorized (a) the sale
and issuance to the Purchasers of the Shares, (b) the sale and issuance to the
Purchasers of the Warrants, and (c) the issuance of such shares of Common Stock
to be issued upon conversion of the Shares and exercise of the Warrants
(together, the "Conversion Shares"). The Shares and the Conversion Shares shall
have the rights, preferences, privileges and restrictions set forth in the
Eighth Amended and Restated Certificate of Incorporation, in the form attached
hereto as Exhibit C (the "Certificate of Incorporation").
1.2 Sale and Purchase. Subject to the terms and conditions hereof,
the Company hereby agrees to issue and sell to each Purchaser, severally and not
jointly, and each Purchaser agrees to purchase from the Company, severally and
not jointly, the number of Shares and Warrants set forth opposite such
Purchaser's name on Exhibit A at a purchase price of $5.2053141 per share (the
"Series D-4 Price").
1.3 Covenant to Issue Additional Warrant if No Initial Public
Offering.
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(a) Warrants to acquire an aggregate of 243,142 shares of
Common Stock are being issued to the Purchasers at Closing (with each Purchaser
receiving a Warrant to acquire such number of shares of Common Stock set forth
opposite such Purchaser's name on Exhibit A under the heading "Number of Initial
Warrants"). In the event that the Company does not consummate its initial
underwritten public offering ("IPO") on before June 30, 2003, then, within ten
(10) business days thereafter, additional Warrants to acquire an aggregate of
194,873 shares of Common Stock will be issued to the Purchasers (with each
Purchaser receiving a Warrant to acquire such number of shares of Common Stock
set forth opposite such Purchaser's name on Exhibit A under the heading "Number
of 2nd Tranche Warrants"). In the event that the Company does not consummate the
IPO on or before December 31, 2004, then, within ten (10) business days
thereafter, additional Warrants to acquire an aggregate of another 292,008
shares of Common Stock will be issued to the Purchasers (with each Purchaser
receiving a Warrant to acquire such number of shares of Common Stock set forth
opposite such Purchaser's name on Exhibit A under the heading "Number of 3rd
Tranche Warrants").
2. Closing.
2.1 Closing. The sale and purchase of the Shares and Warrants
under this Agreement shall take place at a closing (the "Closing") to be held at
the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ at 10:00 a.m. Eastern Time on the date hereof (the "Closing Date"). At the
Closing, the Company shall deliver to each Purchaser listed on Exhibit A such
number of Shares and Warrants to be purchased by such Purchaser at the Closing
as set forth on Exhibit A opposite such Purchaser's name by delivery to each
Purchaser of a certificate representing the number of Shares to be purchased and
a Warrant to acquire such number of shares of Common Stock as set forth on
Exhibit A, against payment of the purchase price therefor by check, wire
transfer made payable to the order of the Company, cancellation of indebtedness
or any combination of the foregoing. If at the Closing any of the applicable
conditions specified in Section 5.1 shall not have been fulfilled, each
Purchaser shall, at its election, be relieved of all of its obligations under
this Agreement without thereby waiving any other rights it may have by reason of
such failure or such non-fulfillment.
3. Representations And Warranties Of The Company. Except as set
forth on a Schedule of Exceptions delivered by the Company to the Purchasers at
the Closing specifically identifying the relevant Section hereof, the Company
hereby represents and warrants to each such Purchaser as of the date of each
Closing as follows (such representations and warranties do not lessen or obviate
the representations and warranties of each of the Purchasers set forth in this
Agreement):
3.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Warrants in the form attached hereto as Exhibit B, the Fifth
Amended and Restated Investor Rights Agreement in the form attached hereto as
Exhibit D (the "Investor Rights Agreement"), the Fifth Amended and Restated
Right of First Refusal and Co-Sale Agreement in the form attached hereto as
Exhibit E (the "Co-Sale Agreement"), and the Fourth Amended and Restated Voting
Agreement in the form attached hereto as Exhibit F (the "Voting Agreement")
(collectively, the "Related
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Agreements"), and all other agreements required to be executed by the Company on
or prior to the Closing, to issue and sell the Shares, the Warrants and the
Conversion Shares, and to carry out the provisions of this Agreement, the
Related Agreements and the Certificate of Incorporation and to carry on its
business as presently conducted and as presently proposed to be conducted. The
Company is duly qualified and is authorized to do business and is in good
standing as a foreign corporation in all jurisdictions in which the nature of
its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those jurisdictions in which failure to do
so would not have a material adverse effect on the business, assets,
liabilities, financial condition, prospects or operations of the Company (a
"Material Adverse Effect").
3.2 Subsidiaries. The Company does not own or control any equity
security or other interest of any other corporation, limited partnership or
other business entity. The Company is not a participant in any joint venture,
partnership or similar arrangement.
3.3 Capitalization; Voting Rights.
(a) Immediately prior to the Closing, the authorized capital
stock of the Company will consist of: (i) 99,440,000 shares of Common Stock,
31,898,727 shares of which are issued and outstanding and 11,992,426 shares of
which are reserved for future issuance to employees pursuant to the Company's
1999 Stock Incentive Plan and (ii) 34,715,228 shares of Preferred Stock, (A)
668,782 of which have been designated as Series A Preferred Stock, par value
$0.01 per share, all of which are issued and outstanding, (B) 2,282,684 of which
have been designated as Series B Preferred Stock, par value $0.01 per share, all
of which are issued and outstanding, (C) 7,273,762 of which have been designated
as Series C Preferred Stock, par value $0.01 per share, 6,576,246 of which are
issued and outstanding, (D) 8,000,000 of which have been designated as Series D
Preferred Stock, par value $0.01 per share, 3,878,720 of which are issued and
outstanding, (E) 12,000,000 of which have been designated as Series D-1
Preferred Stock, par value $0.01 per share, 6,083,488 of which are issued and
outstanding, (F) 550,000 of which have been designated as Series D-2 Preferred
Stock, par value $0.01 per share, 416,667 of which are issued and outstanding,
(G) 2,000,000 of which have been designated as Series D-3 Preferred Stock, par
value $0.01 per share, 792,775 of which are issued and outstanding and (H)
1,940,000 of which have been designated Series D-4 Stock, none of which are
issued and outstanding.
(b) All issued and outstanding shares of the Company's Common
Stock and Preferred Stock (a) have been duly authorized and validly issued to
the persons listed on Exhibit G hereto, (b) are fully paid and nonassessable,
and (c) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities.
(c) The rights, preferences, privileges and restrictions of
the Shares and the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock, Series
D-2 Preferred Stock and Series D-3 Preferred Stock are as stated in the
Certificate of Incorporation. The Conversion Shares have been duly and validly
reserved for issuance. Other than as set forth in Section 3.3, there are no
outstanding options, warrants, rights (including registration, conversion or
preemptive rights and rights of first refusal), proxy or shareholder agreements,
or agreements of any kind for the purchase or
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acquisition from the Company of any of its securities. Of the shares of Common
Stock reserved for issuance under the Company's 1999 Stock Incentive Plan, (i)
options to purchase 11,066,015 shares have been granted and are currently
outstanding, and (ii) 926,411 shares of Common Stock remain available for
issuance to officers, directors, employees and consultants pursuant to such 1999
Stock Incentive Plan. When issued in compliance with the provisions of this
Agreement and the Certificate of Incorporation, the Shares and the Conversion
Shares will be validly issued, fully paid and nonassessable, and will be free of
any liens or encumbrances; provided, however, that the Shares and the Conversion
Shares may be subject to restrictions on transfer under state and/or federal
securities laws as set forth herein or as otherwise required by such laws at the
time a transfer is proposed and pursuant to any agreements entered into in
connection with this Agreement.
(d) No stock plan, stock purchase, stock option or other
agreement or understanding between the Company and any holder of any equity
securities or rights to purchase equity securities provides for acceleration or
other changes in the vesting provisions or other terms of such agreement or
understanding as the result of any merger, consolidated sale of stock or assets,
change in control or any other transaction(s) by the Company.
3.4 Authorization; Binding Obligations. All corporate action on
the part of the Company, its officers, directors and shareholders necessary for
the authorization of this Agreement and the Related Agreements, the performance
of all obligations of the Company hereunder and thereunder at the Closing and
the authorization, sale, issuance and delivery of the Shares and Warrants
pursuant hereto, and the issuance of the Conversion Shares pursuant to the
Certificate of Incorporation and the Warrants has been taken or will be taken
prior to the Closing. The Agreement and the Related Agreements, when executed
and delivered, will be valid and binding obligations of the Company enforceable
in accordance with their terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights, (b) general principles of equity
that restrict the availability of equitable remedies, and (c) to the extent that
the enforceability of the indemnification provisions in Section 2.9 of the
Investor Rights Agreement may be limited by applicable laws. The sale and
issuance of the Shares and Warrants, and the subsequent conversion of the Shares
and exercise of Warrants into Conversion Shares are not and will not be subject
to any preemptive rights or rights of first refusal that have not been properly
waived or complied with.
3.5 Financial Statements. The Company has made available to each
Purchaser (a) its audited balance sheet at December 31, 2001 (the "Statement
Date") and its audited consolidated statement of income and cash flows for the
twelve month period ending on the Statement Date (the "Year End Financial
Statements") and (b) its unaudited balance sheet, and unaudited consolidated
statement of income and cash flows for the three (3) month period ending on
March 31, 2002 (the "Interim Financial Statements" and together with the Year
End Financial Statements, the "Financial Statements"). The Year End Financial
Statements, together with the notes thereto, are complete and correct in all
material respects, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, except as disclosed therein, and present fairly the financial
condition of the Company as of the Statement Date and the operating results of
the Company during the period indicated therein. The Interim Financial
Statements are complete
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and correct in all material respects, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated, except as disclosed therein and except that
they do not contain all footnotes required under generally accepted accounting
principles, and present fairly the financial condition of the Company as of the
date of the balance sheet and the operating results of the Company during the
period indicated therein, subject to normal recurring year end audit
adjustments.
3.6 Liabilities. The Company has no material liabilities and, to the
best of its knowledge, knows of no material contingent liabilities not disclosed
in the Financial Statements, except current liabilities incurred in the ordinary
course of business subsequent to the Statement Date which have not been, either
in any individual case or in the aggregate, materially adverse.
3.7 Agreements; Action.
(a) There are no material agreements, understandings or proposed
transactions between the Company and any of its officers, directors,
shareholders or employees, or any "affiliate" or "associate" of such (as such
terms are defined in the rules and regulations promulgated under the Securities
Act affiliates or any affiliate thereof.
(b) There are no material agreements, understandings or proposed
transactions between the Company, it affiliates, or to the Company's knowledge,
any directors or any affiliate thereof and any company or other entity doing
business with the Company or is in the same or similar business of the Company.
(c) There are no agreements (other than partnership contracts),
understandings, instruments, contracts, proposed transactions, judgments,
orders, writs or decrees to which the Company is a party or to its knowledge by
which it is bound which may involve (i) obligations (contingent or otherwise)
of, or payments to, the Company in excess of $50,000 (other than obligations of,
or payments to, the Company arising from agreements entered into in the ordinary
course of business), or (ii) the transfer or license of any patent, copyright,
trade secret or other proprietary right to or from the Company (other than
licenses arising from the purchase of "off the shelf" or other standard products
or in connection with agreements entered into in the ordinary course of
business), or (iii) provisions restricting the development, manufacture or
distribution of the Company's products or services (other than provisions
contained within agreements entered into in the ordinary course of business), or
(iv) indemnification by the Company with respect to infringements of proprietary
rights (other than indemnification obligations arising from agreements entered
into in the ordinary course of business).
(d) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or any
other liabilities (other than with respect to dividend obligations,
distributions, indebtedness and other obligations incurred in the ordinary
course of business or as disclosed in the Financial Statements) individually in
excess of $50,000 or, in the case of indebtedness and/or liabilities
individually less than $50,000 or in excess of $125,000 in the aggregate, (iii)
made any loans or advances to any person, other than ordinary advances for
travel expenses, (iv) sold, exchanged or otherwise disposed of any of its
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assets or rights, other than the sale of its inventory in the ordinary course of
business, (v) acquired the business or shares of another party, or (vi) entered
into any distributor, sales representative or similar agreements.
(e) For the purposes of subsections (c) and (d) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(f) The Company has not engaged in the past three (3) months in
any discussion (i) with any representative of any corporation or corporations
regarding the consolidation or merger of the Company with or into any such
corporation or corporations, (ii) with any corporation, partnership, association
or other business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company, or a
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, or (iii) regarding any
other form of acquisition, liquidation, dissolution or winding up, of the
Company.
3.8 Obligations to Related Parties. There are no obligations of the
Company to officers, directors, shareholders, or employees of the Company other
than (a) for payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Company and (c) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company). None of the officers, directors or shareholders of
the Company, or any members of their immediate families, are indebted to the
Company or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship, or any firm or corporation which competes with the
Company, except that officers, directors and/or shareholders of the Company may
own stock in publicly traded companies which may compete with the Company. No
officer, director or shareholder, or any member of their immediate families, is,
directly or indirectly, interested in any material contract with the Company
(other than such contracts as relate to any such person's ownership of capital
stock or other securities of the Company). Except as may be disclosed in the
Financial Statements, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
3.9 Changes. Since the Statement Date, there has not been:
(a) Any change in the assets, liabilities, financial condition
or operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is expected to have a Material
Adverse Effect on such assets, liabilities, financial condition, operations or
prospects of the Company;
(b) Any resignation or termination of any officer or key
employee of the Company; and the Company, to the best of its knowledge, does not
know of the impending resignation or termination of employment of any such
officer or key employee;
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(c) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, that has had or would reasonably be expected to have a Material
Adverse Effect;
(e) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by the Company to any
shareholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or shareholder;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the Company;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except those for immaterial amounts and for current
liabilities incurred in the ordinary course of business;
(k) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(l) Any change in any material agreement to which the Company is
a party or by which it is bound which has had or would reasonably be expected to
have a Material Adverse Effect;
(m) Any other event or condition of any character that, either
individually or cumulatively, has had or would reasonably be expected to have a
Material Adverse Effect; or
(n) Any arrangement or commitment by the Company to do any of
the acts described in subsection (a) through (m) above.
3.10 Title to Properties and Assets; Liens, Etc. The Company has good
and marketable title to its properties and assets, including the properties and
assets reflected in the most recent balance sheet included in the Financial
Statements, and good title to its leasehold estates, in each case subject to no
mortgage, pledge, lien, lease, encumbrance or charge, other than (a) those
resulting from taxes which have not yet become delinquent, (b) minor liens and
encumbrances which do not materially detract from the value of the property
subject thereto or materially impair the operations of the Company, and (c)
those that have otherwise arisen in the ordinary course of business. All
facilities, machinery, equipment, fixtures, vehicles and other
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properties owned, leased or used by the Company are in good operating condition
and repair and are reasonably fit and usable for the purposes for which they are
being used. The Company is in compliance with all material terms of each lease
to which it is a party or is otherwise bound.
3.11 Patents and Trademarks.
(a) The Company owns or possesses sufficient legal rights to all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and other proprietary rights and processes necessary for
its business as now conducted and as presently proposed to be conducted, without
any known infringement of the rights of others. There are no outstanding
options, licenses or agreements of any kind relating to the foregoing, nor is
the Company bound by or a party to any options, licenses or agreements of any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes of any other person or entity other than such licenses or
agreements arising from the purchase of "off the shelf" or standard products,
and those arising in the ordinary course of business.
(b) The Company is not aware of any allegations that the Company
has violated or, by conducting its business as presently proposed, would violate
any of the patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity.
(c) The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with their duties to
the Company or that would conflict with the Company's business as presently
proposed to be conducted. Neither the execution nor delivery of this Agreement
or the Related Agreements, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as presently
proposed, will, to the Company's knowledge, conflict with or result in a breach
of the terms, conditions or provisions of, or constitute a default under, any
contract, covenant or instrument under which any employee is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions,
trade secrets or proprietary information of any of its employees made prior to
their employment by the Company, except for inventions, trade secrets or
proprietary information that have been assigned to the Company.
(d) The Company is not aware of any claims by any other person
or entity contesting the validity, enforceability, use or ownership of any of
the patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and other proprietary rights and processes necessary for
its business as now conducted and as presently proposed to be conducted. The
Company is not aware of any infringement or misappropriation by any other person
or entity with respect to any of the patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information and other proprietary
rights and processes necessary for its business as now conducted and as
presently proposed to be conducted.
3.12 Compliance with Other Instruments.
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(a) The Company is not in violation or default of any term of
its Certificate of Incorporation or Bylaws, or of any material term of any
mortgage, indenture, contract, agreement, instrument or contract to which it is
party or by which it is bound or of any judgment, decree, order, or writ. The
execution, delivery, and performance of and compliance with this Agreement, and
the Related Agreements, and the issuance and sale of the Shares and Warrants
pursuant hereto and the Conversion Shares pursuant to the Certificate of
Incorporation, will not, with or without the passage of time or giving of
notice, result in any such material violation, or be in conflict with or
constitute a default under any such material term, or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of the Company or the suspension, revocation, impairment, forfeiture or
nonrenewal of any permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or properties.
(b) The Company has avoided every condition, and has not
performed any act, the occurrence of which would result in the Company's loss of
any right granted under any license, distribution agreement or other agreement
to which the Company is a party if such loss would have a Material Adverse
Effect.
3.13 Litigation. There is no action, suit, proceeding or investigation
pending or to the Company's knowledge currently threatened against the Company
or its officers that questions the validity of this Agreement, or the Related
Agreements or the right of the Company to enter into any of such agreements, or
to consummate the transactions contemplated hereby or thereby, or which might
have, either individually or in the aggregate, Material Adverse Effect or result
in a change in the current equity ownership of the Company, nor is the Company
aware that there is any basis for any of the foregoing. The foregoing includes,
without limitation, actions pending or threatened (or any basis therefor known
to the Company) involving the prior employment of any of the Company's
employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
3.14 Tax Returns and Payments. The Company has paid all federal,
state, local and foreign taxes (including, without limitation, income, profit,
franchise, sales, use, real property, personal property, ad valorem, excise,
employment, social security and wage withholding taxes) and installments of
estimated taxes, assessments, deficiencies, levies, imports, duties, license
fees, registration fees, withholdings, or other similar charges of every kind,
character or description imposed by any governmental or quasi-governmental
authorities, and any interest, penalties or additions to tax imposed thereon or
in connection therewith (collectively, "Taxes") due as of the Closing Date. The
Company has timely filed or has obtained presently effective extensions with
respect to all Federal, state, county, local and foreign tax returns
(collectively, "Tax Returns") that the Company is required to file. The Tax
Returns are true and correct and all taxes shown thereon to be due have been
timely paid. No penalties or other charges are or will become due with respect
to any such Tax Returns as the result of the late filing thereof. The Company
has either paid or established in the Financial Statements adequate reserves for
the payment of all such Taxes due or claimed to be due by any
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taxing authority in connection with any such Tax Returns. None of the Company's
federal income tax returns have been audited by the Internal Revenue Service,
and no controversy with respect to taxes of any type is pending or, to the
knowledge of the Company, threatened. The Company has withheld or collected from
each payment made to its employees the amount of all taxes required to be
withheld or collected therefrom (including, but not limited to, federal income
taxes and Federal Insurance Contribution Act taxes) and has paid all such
amounts to the appropriate taxing authorities when due. The Company's net
operating losses for federal income tax purposes, as set forth in the Financial
Statements, are not subject to any limitations imposed by Section 382 of the
Internal Revenue Code of 1986 as amended (the "Code"), and consummation of the
transactions contemplated by this Agreement of by any other agreement,
understanding or commitment, contingent or otherwise, to which the Company is a
party or by which it is otherwise bound will not have the effect of limiting the
Company's ability to use such net operating losses in full to offset such
taxable income.
3.15 Employees. The Company has no collective bargaining agreements
with any of its employees. There is no labor union organizing activity pending
or, to the Company's knowledge, threatened with respect to the Company. The
Company is not delinquent in payments to any of its employees for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed by them to date or amounts required to be reimbursed to such employees
and upon any termination of the employment of any such employees. Schedule 3.15
sets forth a true, correct and complete list of all employment, severance,
non-competition, deferred compensation and similar arrangements between the
Company and all officers, employees and consultants of the Company and all such
arrangements with former officers, employees and consultants of the Company
pursuant to which the Company is obligated to make any payments or provide any
benefits. To the Company's knowledge, no employee of the Company, nor any
consultant with whom the Company has contracted, is in violation of any term of
any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company because of the nature of the business to be conducted
by the Company; and to the Company's knowledge the continued employment by the
Company of its present employees, and the performance of the Company's contracts
with its independent contractors, will not result in any such violation. The
Company has not received any notice alleging that any such violation has
occurred. No employee of the Company has been granted the right to continued
employment by the Company or to any material compensation following termination
of employment with the Company. The Company is not aware that any officer or key
employee, or that any group of key employees, intends to terminate his, her or
their employment with the Company, nor does the Company have a present intention
to terminate the employment of any officer, key employee or group of key
employees.
3.16 Assignment of Inventions, Non-Disclosure and Non-Competition
Agreements and Market Stand-off Agreements.
(a) Each former and current employee, officer and consultant of
the Company has executed an Assignment of Inventions, Non-Disclosure and
Non-Competition Agreement in the form of Exhibit H attached hereto. No current
employee, officer or consultant of the Company has excluded works or inventions
made prior to his or her employment with the
-10-
Company from his or her assignment of inventions pursuant to such employee,
officer or consultant's Assignment of Inventions, Non-Disclosure and
Non-Competition Agreement.
(b) Each key employee of the Company and each holder of
options to purchase equity and debt convertible into equity has executed a
market stand-off agreement.
3.17 Obligations of Management. Each officer of the Company is
currently devoting one hundred percent (100%) of his or her business time to the
conduct of the business of the Company. The Company is not aware that any
officer or key employee of the Company is planning to work less than full time
at the Company in the future. To the Company's knowledge, no officer or key
employee plans to work for a competing enterprise, whether or not such officer
or key employee is or will be compensated by such enterprise.
3.18 Registration Rights and Voting Rights.
(a) Except as required pursuant to the Investor Rights
Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register (as defined in Section 1.1 of the Investor
Rights Agreement) any of the Company's presently outstanding securities or any
of its securities that may hereafter be issued.
(b) To the Company's knowledge, except as contemplated in the
Voting Agreement, no shareholder of the Company has entered into any agreement
with respect to the voting of equity securities of the Company.
3.19 Compliance with Laws; Permits. The Company is not in
violation of any applicable statute, rule, regulation, order or restriction of
any domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties which
violation would have a Material Adverse Effect. No governmental orders,
permissions, consents, approvals or authorizations are required to be obtained
and no registrations or declarations are required to be filed in connection with
the execution and delivery of this Agreement and the issuance of the Shares and
the Conversion Shares, except such as has been duly and validly obtained or
filed, or with respect to any filings that must be made after the Closing as
will be filed in a timely manner. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects or financial condition of the Company
and believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted.
3.20 Environmental and Safety Laws. To the Company's knowledge,
the Company is not in violation of any applicable statute, law or regulation
relating to the environment or occupational health and safety, and to its
knowledge, no material expenditures are or will be required in order to comply
with any such existing statute, law or regulation. No Hazardous Materials (as
defined below) are used or have been used, stored, or disposed of by the Company
or, to the Company's knowledge, after reasonable investigation, by any other
person or entity on any property owned, leased or used by the Company. For the
purposes of the preceding sentence, "Hazardous Materials" shall mean (a)
materials which are listed or otherwise defined
-11-
as "hazardous" or "toxic" under any applicable local, state, federal and/or
foreign laws and regulations that govern the existence and/or remedy of
contamination on property, the protection of the environment from contamination,
the control of hazardous wastes, or other activities involving hazardous
substances, including building materials, or (b) any petroleum products or
nuclear materials.
3.21 Offering Valid. Assuming the accuracy of the representations
and warranties of the Purchasers contained in Section 4.2 hereof, the offer,
sale and issuance of the Shares, the Warrants and the Conversion Shares will be
exempt from the registration requirements of the Securities Act, and will have
been registered or qualified (or are 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 or Warrants to any person or persons
so as to bring the sale of such Shares or Warrants by the Company within the
registration provisions of the Securities Act or any state securities laws.
3.22 Full Disclosure. The Company has provided the Purchasers with
all information requested by the Purchasers in connection with their decision to
purchase the Shares and Warrants and to the Company's knowledge, including all
information the Company believes is reasonably necessary to make such investment
decision. Neither this Agreement, the Exhibits hereto, the Related Agreements
nor any other document delivered by the Company to Purchasers or their attorneys
or agents in connection herewith or therewith or with the transactions
contemplated hereby or thereby, contain any untrue statement of a material fact
nor, omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading. To the Company's knowledge, there
are no facts which (individually or in the aggregate) will have a Material
Adverse Effect that have not been set forth in the Agreement, the Exhibits
hereto, the Related Agreements or in other documents delivered to Purchasers or
their attorneys or agents in connection herewith.
3.23 Minute Books. The minute books of the Company made available
to the Purchasers contain a complete summary of all formal meetings of the
directors and the shareholders of the Company since the time of incorporation.
3.24 Real Property Holding Corporation. The Company is not a real
property holding corporation within the meaning of Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended (the "Code") and any regulations
promulgated thereunder.
3.25 Insurance. The Company has general business liability, fire
and casualty insurance policies with coverage customary for companies similarly
situated to the Company.
3.26 Tax Elections. The Company has not elected to be treated as
an "S" corporation or a collapsible corporation pursuant to Section 341(f) or
Section 1362(a) of the Code, nor has it made any other elections pursuant to the
Code (other than elections which relate solely to matters of accounting,
depreciation or amortization) which would have a material adverse effect on the
Company, its financial condition, its business as presently conducted or its
present properties or material assets.
-12-
3.27 Business Plan. The Company is engaged primarily in the
business of providing wireless, voice and data communications solutions to
enterprises, on-line businesses, national retailers and their respective
end-users.
3.28 Criminal History. To the Company's knowledge, during the past
ten (10) years, no Company director, officer or management member has been
arrested or convicted of any material crime, nor have any of them been bankrupt
or an officer or director of a bankrupt Company.
3.29 Small Business Concern. The Company (together with its
"affiliates" as that term is defined in Title 13 of the Code of Federal
Regulations ("C.F.R."), (S) 121.103) is a "small business concern" within the
meaning of the Small Business Investment Act of 1958, and the regulations
thereunder, including (S) 121.802(a) of Title 13 of the C.F.R. The Company
acknowledges that Core Capital Partners, L.P. is a small business investment
company licensed by the Small Business Administration ("SBA") and that it is
relying upon this representation.
4. Representations And Warranties Of The Purchasers. Each Purchaser
hereby represents and warrants to the Company, severally and not jointly, as
follows (such representations and warranties do not lessen or obviate the
representations and warranties of the Company set forth in this Agreement):
4.1 Requisite Power and Authority. Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and the Related Agreements and to carry out their
provisions. All action on Purchaser's part required for the lawful execution and
delivery of this Agreement and the Related Agreements have been or will be
effectively taken prior to the Closing. Upon their execution and delivery, this
Agreement and the Related Agreements will be valid and binding obligations of
Purchaser, enforceable in accordance with their terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights, (b) general
principles of equity that restrict the availability of equitable remedies, and
(c) to the extent that the enforceability of the indemnification provisions of
Section 2.9 of the Investor Rights Agreement may be limited by applicable laws.
4.2 Investment Representations. Purchaser understands that
neither the Shares, the Warrants nor the Conversion Shares have been registered
under the Securities Act. Purchaser also understands that the Shares and
Warrants are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Purchaser's representations
contained in the Agreement. Purchaser hereby represents and warrants as follows:
(a) Purchaser Bears Economic Risk. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares, the Warrants or the Conversion
Shares are registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that the Company has no present
intention of
-13-
registering the Shares, the Warrants or the Conversion Shares or any shares of
its Common Stock. Purchaser also understands that there is no assurance that any
exemption from registration under the Securities Act will be available and that,
even if available, such exemption may not allow Purchaser to transfer all or any
portion of the Shares, the Warrants or the Conversion Shares under the
circumstances, in the amounts or at the times Purchaser might propose.
(b) Acquisition for Own Account. Purchaser is acquiring the
Shares, the Warrants and the Conversion Shares for Purchaser's own account for
investment only, and not with a view towards their distribution.
(c) Purchaser Can Protect Its Interest. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement, and the Related Agreements.
Further, Purchaser is aware of no publication of any advertisement in connection
with the transactions contemplated in the Agreement.
(d) Accredited Investor. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) Company Information. Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs with directors,
officers and management of the Company and has had the opportunity to review the
Company's operations and facilities. Purchaser has also had the opportunity to
ask questions of and receive answers from, the Company and its management
regarding the terms and conditions of this investment.
(f) Rule 144. Purchaser acknowledges and agrees that the
Shares, the Warrants and, if issued, the Conversion Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. Purchaser has been advised or
is aware of the provisions of Rule 144 promulgated under the Securities Act as
in effect from time to time, which permits limited resale of shares purchased in
a private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current public
information about the Company, the resale occurring following the required
holding period under Rule 144 and the number of shares being sold during any
three-month period not exceeding specified limitations.
(g) Residence. If the Purchaser is an individual, then the
Purchaser resides in the state or province identified in the address of the
Purchaser set forth on Exhibit A; if the Purchaser is a partnership,
corporation, limited liability company or other entity, then the office or
offices of the Purchaser in which its investment decision was made is located at
the address or addresses of the Purchaser set forth on Exhibit A.
4.3 Transfer Restrictions. Each Purchaser acknowledges and agrees
that the Shares and, if issued, the Conversion Shares are subject to
restrictions on transfer as set forth in the Investor Rights Agreement.
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5. Conditions To Closing.
5.1 Conditions to Purchasers' Obligations at the Closing.
Each of the Purchasers' obligations to purchase the Shares and Warrants at the
Closing are subject to the satisfaction, at or prior to such date, of the
following conditions:
(a) Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in Section 3
hereof shall be true and correct as of the Closing Date with the same force and
effect as if they had been made as of such date and the Company shall have
performed all obligations and conditions herein required to be performed or
observed by it on or prior to such date.
(b) Consents, Permits, and Waivers. The Company shall
have obtained any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by the Agreement and the
Related Agreements.
(c) Filing of Certificate of Incorporation. The
Certificate of Incorporation shall have been filed with the Secretary of State
of the State of Delaware and shall be in full force and effect as of the
Closing.
(d) Corporate Documents. The Company shall have
delivered to Purchasers or their counsel, copies of all corporate documents of
the Company as Purchasers shall reasonably request.
(e) Reservation of Conversion Shares. The Conversion
Shares shall have been duly authorized and reserved for issuance upon such
conversion or exercise, as the case may be.
(f) Compliance Certificate. The Company shall have
delivered to the Purchasers a Compliance Certificate, executed by the Chief
Executive Officer of the Company, dated the Closing Date, to the effect that the
conditions specified in subsections (a), (b), (c) and (e) of this Section 5.1
have been satisfied.
(g) Investor Rights Agreement. The Investor Rights
Agreement shall have been executed and delivered by the parties thereto. The
stock certificates representing the shares subject to the Investor Rights
Agreement shall have been delivered to the Secretary of the Company and shall
have had appropriate legends placed upon them to reflect the restrictions on
transfer set forth in the Investor Rights Agreement.
(h) Right of First Refusal and Co-Sale Agreement. The
Co-Sale Agreement shall have been executed and delivered by the parties thereto.
The stock certificates representing the shares subject to the Co-Sale Agreement
shall have been delivered to the Secretary of the Company and shall have had
appropriate legends placed upon them to reflect the restrictions on transfer set
forth in the Co-Sale Agreement.
(i) Voting Agreement. The Voting Agreement shall have
been executed and delivered by the parties thereto. The stock certificates
representing the shares subject to the Voting Agreement shall have been
delivered to the Secretary of the Company and
-15-
shall have had appropriate legends placed upon them to reflect the restrictions
on transfer set forth in the Voting Agreement.
(j) Employment Agreement. The Employment Agreement by and between the
Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be in full force and effect.
(k) Legal Opinion. The Purchasers shall have received from legal
counsel to the Company an opinion addressed to them, dated as of the Closing
Date, in substantially the form attached hereto as Exhibit I.
(l) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Purchasers and their counsel, and the Purchasers and
their counsel shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request. Such documents
shall include (but not be limited to) the following:
(1) Certified Charter Documents. A copy of the Company's
Certificate of Incorporation (certified by the Delaware Secretary of State) and
Bylaws, certified by the Secretary of the Company as true and correct as of the
Closing.
(2) Secretary's Incumbency Certificate. A certificate of
the Secretary or an Assistant Secretary or other officer of the Company
certifying the names of the officers of the Company authorized to sign this
Agreement and the other documents, instruments or certificates to be delivered
pursuant to this Agreement by the Company or any of its officers, together with
the true signatures of such officers.
(3) Corporate Actions. A copy of the resolutions of the
Board of Directors and, if required, the stockholders of the Company evidencing
the approval of this Agreement and the Related Agreements, the election of the
Board of Directors and the other matters contemplated hereby, certified by the
Secretary of the Company to be true, complete and correct.
(4) Good Standing Certificate. A good standing certificate
issued by the Delaware Secretary of State and any other state where the Company
is qualified to do business dated within fifteen (15) days prior to the Closing.
(m) Assignment of Inventions, Non-Disclosure and Non-Competition
Agreement. The Company and each of its former senior management and current
employees, senior management, officers and consultants, shall have entered into
the Assignment of Inventions, Non-Disclosure and Non-Competition Agreement.
(n) Due Diligence. The Purchasers shall have completed, to their sole
satisfaction, their due diligence review of the Company.
(o) SBIC Documentation. The Company shall have completed and
delivered to Core Capital Partners, L.P. the following forms concerning the
status of the Company as a small business concern: (a) SBA Form 480, Size Status
Declaration; (b) SBA
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Form 652-D, Assurance of Compliance for Non-Discrimination; and (c) SBA Form
1031, Portfolio Financing Report.
(p) Blue Sky Approvals. The Company shall have obtained all
necessary Blue Sky Law permits and qualifications, or secured an exemption
therefrom, required by any state for the offer and sale of the Shares to be sold
at the Closing or at such time thereafter as may be required by applicable
statute.
5.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares and Warrants at Closing to each
Purchaser purchasing Shares at such Closing (a "Participating Purchaser") is
subject to the satisfaction, on or prior to such Closing, of the following
conditions:
(a) Payment. Each Participating Purchaser shall have delivered
to the Company payment in accordance with Section 2.
(b) Representations and Warranties True. The representations and
warranties in Section 4 made by each Participating Purchaser shall be true and
correct at the date of such Closing with the same force and effect as if they
had been made on and as of said date.
(c) Performance of Obligations. Such Participating Purchaser
shall have performed and complied with all agreements and conditions herein
required to be performed or complied with by such Participating Purchaser on or
before such Closing.
(d) Related Agreements. Each of the Related Agreements shall
have been executed and delivered by such Participating Purchaser.
(e) Consents, Permits, and Waivers. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement and the Related
Agreements (except for such as may be properly obtained subsequent to such
Closing).
6. Miscellaneous.
6.1 Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware (without regard to
the choice of law or conflicts of law provisions thereof.
6.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
6.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns,
-17-
heirs, executors and administrators of the parties hereto and shall inure to the
benefit of and be enforceable by each person who shall be a holder of the Shares
from time to time.
6.4 Entire Agreement. This Agreement, the Exhibits and Schedules
hereto, the Related Agreements, the Bridge Loan Warrants and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and no
party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein and therein.
6.5 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
6.6 Amendment and Waiver.
(a) This Agreement may be amended or modified only by the written
consent of the Company and holders of more than sixty-six and two-thirds percent
(66 2/3%) of the Shares (treated as if converted and including any Conversion
Shares into which the Shares have been converted that have not been sold to the
public).
(b) The obligations of the Company and the rights of the holders
of the Shares and the Conversion Shares under the Agreement may be waived only
with the written consent of the holders of more than sixty-six and two-thirds
percent (66 2/3%) of the Shares (treated as if converted and including any
Conversion Shares into which the Shares have been converted that have not been
sold to the public).
6.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Related
Agreements or the Certificate of Incorporation, shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of or in any similar
breach, default or noncompliance thereafter occurring. It is further agreed that
any waiver, permit, consent or approval of any kind or character on any
Purchaser's part of any breach, default or noncompliance under this Agreement,
the Related Agreements or under the Certificate of Incorporation or any waiver
on such party's part of any provisions or conditions of the Agreement, the
Related Agreements, or the Certificate of Incorporation must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement, the Related Agreements, the
Certificate of Incorporation, the Bylaws, or otherwise afforded to any party,
shall be cumulative and not alternative.
6.8 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after deposit with
a nationally recognized overnight courier, specifying next day delivery, with
written verification of
-18-
receipt. All communications shall be sent to the Company at the address as set
forth on the signature page hereof and to a Purchaser at the address set forth
on Exhibit A attached hereto or at such other address as the Company or such
Purchaser may designate by ten (10) days advance written notice to the other
parties hereto.
6.9 Expenses. The Company shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement. The Company shall reimburse Core Capital Partners, L.P. for up to
$10,000 of fees and expenses, including reasonable attorneys' fees, in
connection with the transactions contemplated by this Agreement.
6.10 Attorneys' Fees. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
6.11 Titles and Subtitles. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.13 Broker's Fees. Except as set forth in the Schedule of Exceptions,
each party hereto represents and warrants that no agent, broker, investment
banker, person or firm acting on behalf of or under the authority of such party
hereto is or will be entitled to any broker's or finder's fee or any other
commission directly or indirectly in connection with the transactions
contemplated herein. The Company shall be responsible for any broker's or
finder's fees or other commissions disclosed on the Schedule of Exceptions. Each
party hereto further agrees to indemnify each other party for any claims, losses
or expenses incurred by such other party as a result of the representation in
this Section 6.13 being untrue.
6.14 Exculpation Among Purchasers. Each Purchaser acknowledges that it
is not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
Shares and Conversion Shares.
6.15 Confidentiality. Each party hereto agrees that, except with the
prior written consent of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or
-19-
shall become privy by reason of this Agreement or the Related Agreements,
discussions or negotiations relating to this Agreement or the Related
Agreements, the performance of its obligations hereunder or the ownership of the
Shares purchased hereunder. The provisions of this Section 6.15 shall be in
addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto.
6.16 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
6.17 Mutual Drafting. This Agreement is the result of the joint
efforts of the Company and each of the Purchasers, and each provision hereof has
been subject to the mutual consultation, negotiation and agreement of the
parties and there shall be no construction against any party based on any
presumption of that party's involvement in the drafting thereof.
6.18 Additional Investors. The addition of counterpart signature pages
to this Agreement, or the revision of Exhibit A to this Agreement in accordance
with Section 2 shall not be deemed an amendment to this Agreement requiring the
consent of the parties pursuant to Section 6.6.
[SIGNATURE PAGES FOLLOW]
-20-
IN WITNESS WHEREOF, the parties hereto have executed this Series D-4
Convertible Preferred Stock and Warrant Purchase Agreement as of the date set
forth in the first paragraph hereof.
Company:
InPhonic, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
Core Capital Partners, L. P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
23.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
Minotaur, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
24.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANBT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
CMS Tech Co-Investment Subpartnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Officer
25.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
CMS PEP XIV Co-Investment Subpartnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Officer
26.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
Brind Investment Partners II
By: /s/ ▇▇▇ ▇▇▇▇▇
____________________________
Name: ▇▇▇ ▇▇▇▇▇
Title: Partner
27.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
Riverside Partnership, LP
By: Riverside LLC, its General Partner
By: First Analysis Management Company III, LLC,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
28.
INPHONIC, INC.
SERIES D-4 CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year first above written.
Venture Investment Partners I LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Partner
29.