Exhibit 10.14
BLAZE SOFTWARE, INC.
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
December 31, 1999
TABLE OF CONTENTS
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Page
1. Purchase and Sale of Stock.................................. 1
1.1 Sale and Issuance of Series BB Preferred Stock........ 1
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1.2 Closing............................................... 1
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1.3 Subsequent Sale of Series BB Preferred Stock.......... 2
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2. Representations and Warranties of the Company............... 2
2.1 Organization, Good Standing and Qualification......... 2
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2.2 Capitalization and Voting Rights...................... 2
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2.3 Subsidiaries.......................................... 3
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2.4 Authorization......................................... 3
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2.5 Valid Issuance of Preferred and Common Stock.......... 3
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2.6 Governmental Consents................................. 3
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2.7 Offering.............................................. 4
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2.8 Litigation............................................ 4
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2.9 Proprietary Rights.................................... 4
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2.10 Compliance with Other Instruments..................... 4
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2.11 Agreements............................................ 5
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2.12 Related-Party Transactions............................ 5
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2.13 Permits............................................... 5
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2.14 Environmental and Safety Laws......................... 6
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2.15 Disclosure............................................ 6
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2.16 Investors' Rights..................................... 6
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2.17 Corporate Documents................................... 6
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2.18 Title to Property and Assets.......................... 6
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2.19 Financial Statements.................................. 6
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2.20 Changes............................................... 6
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2.21 Employee Benefit Plans................................ 7
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2.22 Tax Returns, Payments and Elections................... 7
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2.23 Insurance............................................. 8
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2.24 Minute Books.......................................... 8
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2.25 Labor Agreements and Actions.......................... 8
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2.26 U.S. Real Property Holding Corporation................ 8
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3. Representations and Warranties of the Investors............. 9
3.1 Authorization......................................... 9
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3.2 Purchase Entirely for Own Account..................... 9
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3.3 Disclosure of Information............................. 9
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3.4 Investment Experience................................. 9
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3.5 Accredited Investor................................... 9
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3.6 Restricted Securities................................. 9
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3.7 Further Limitations on Disposition.................... 10
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3.8 Legends............................................... 10
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3.9 Further Representations by Foreign Investors.......... 10
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Page
4. California Commissioner of Corporations..................... 11
4.1 Corporate Securities Law.............................. 11
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5. Conditions of Investor's Obligations at Closing............. 11
5.1 Representations and Warranties........................ 11
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5.2 Performance........................................... 11
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5.3 Compliance Certificate................................ 11
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5.4 Qualifications........................................ 11
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5.5 Proceedings and Documents............................. 11
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5.6 Opinion of Company Counsel............................ 12
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5.7 Amended and Restated Investors' Rights Agreement...... 12
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5.8 Restated Articles..................................... 12
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6. Conditions of the Company's Obligations at Closing.......... 12
6.1 Representations and Warranties........................ 12
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6.2 Amended and Restated Investors' Rights Agreement...... 12
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6.3 Payment of Purchase Price............................. 12
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6.4 Qualifications........................................ 12
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7. Miscellaneous............................................... 12
7.1 Survival of Warranties................................ 14
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7.2 Successors and Assigns................................ 14
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7.3 Governing Law......................................... 14
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7.4 Counterparts.......................................... 14
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7.5 Titles and Subtitles.................................. 14
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7.6 Notices............................................... 14
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7.7 Finder's Fee.......................................... 14
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7.8 Expenses.............................................. 15
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7.9 Amendments and Waivers................................ 15
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7.10 Severability.......................................... 15
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7.11 Aggregation of Stock.................................. 15
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7.12 Entire Agreement...................................... 15
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SCHEDULE OF EXCEPTIONS
SCHEDULE A - Schedule of Investors
EXHIBIT A - Seventh Amended and Restated Articles of Incorporation
EXHIBIT B - Third Amended and Restated Investors' Rights Agreement
EXHIBIT C - Opinion of Counsel for the Company
EXHIBIT D - Form of Company's Proprietary Rights Agreement
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SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
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THIS SERIES BB PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of the 31st day of December, 1999, by and among Blaze Software, Inc., a
California corporation (the "Company"), and the investors listed on Schedule A
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hereto (each an "Investor," and collectively the "Investors").
RECITALS
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A. The Company wishes to sell and issue Series BB Preferred Stock to
the Investors; and
B. The Company wishes to induce the Investors to purchase the Series
BB Preferred Stock; and
C. The Company, the Investors, and the Existing Investors have
entered into a Third Amended and Restated Investors' Rights Agreement (the
"Investors' Rights Agreement) attached hereto as Exhibit B.
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AGREEMENT
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NOW, THEREFORE, in consideration of the mutual premises set forth in
this Agreement and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties intending to be legally bound hereby,
agree as follows:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series BB Preferred Stock.
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(a) The Company shall adopt and file with the Secretary of State
of California, on or before the Closing (as defined below), the Seventh Amended
and Restated Articles of Incorporation in the form attached hereto as Exhibit A
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(the "Restated Articles").
(b) Subject to the terms and conditions of this Agreement, each
Investor shall, severally, purchase at the Closing, and the Company shall sell
and issue to each Investor at the Closing, that number of shares of the
Company's Series BB Preferred Stock set forth opposite each Investor's name on
Schedule A hereto for the purchase price set forth thereon.
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(c) Subject to the terms and conditions of this Agreement, each
Investor listed on Schedule A hereto shall, severally, purchase at the Closing,
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and the Company shall sell and issue to such Investor that additional number of
shares of the Company's Series BB Preferred Stock set forth opposite each
Investor's name on Schedule A hereto for the purchase price set forth thereon.
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1.2 Closing. The purchase and sale of the Series BB Preferred Stock
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(the "Closing") shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 9:00 A.M. Pacific Time, on
December 31, 1999, or at such other
time and place as the Company and the Investors mutually agree upon orally or in
writing (which time and place are designated as the "Closing"). At the Closing,
the Company shall deliver to each Investor a certificate representing the Series
BB Preferred Stock that such Investor is purchasing against payment of the
purchase price therefor by check, wire transfer, cancellation of indebtedness or
any combination thereof.
1.3 Subsequent Sale of Series BB Preferred Stock. The Company may
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sell up to the balance of the authorized number of shares of Series BB Preferred
Stock not sold at the Closing prior to March 31, 2000 to such purchasers as it
shall select, at a price of $3.57 per share. Any such Investor shall become a
party to this Agreement and the Investors' Rights Agreement and shall have the
rights and obligations hereunder and thereunder. The Company intends to use the
proceeds from the sale for general corporate purposes, including working
capital.
2. Representations and Warranties of the Company. Except as set forth on
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a Schedule of Exceptions (the "Schedule of Exceptions") furnished to each
Investor and counsel for the Investors, which exceptions shall be deemed to be
representations and warranties as if made hereunder, the Company hereby
represents and warrants that:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business or properties.
2.2 Capitalization and Voting Rights. Upon the consummation of the
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transactions contemplated hereby and effective as of the Closing, the authorized
capital of the Company will consist of:
(i) Preferred Stock. 20,950,059 shares of Preferred Stock
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(the "Preferred Stock"), 16,832,412 of which have been designated as Series AA
Preferred Stock and all of which is issued and outstanding, and 4,117,647 of
which have been designated as Series BB Preferred Stock and up to all of which
will be sold pursuant to this Agreement. The rights, privileges and preferences
of the Series BB Preferred Stock will be as stated in the Company's Restated
Articles.
(ii) Common Stock. 54,000,000 shares of common stock
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("Common Stock"), of which 12,525,390 shares are issued and outstanding.
(iii) Except for (A) the conversion privileges of the Series
AA Preferred Stock and the Series BB Preferred Stock, (B) the rights provided in
Section 2.4 of the Investors' Rights Agreement, (C) that certain warrant to
purchase up to 214,286 shares of Common Stock issued to Solmex Systems Limited
(D) that certain warrant to purchase up to 2,009 shares of Common Stock issued
to Indigo Partners, (E) that certain warrant to purchase up to 10,000 shares of
Common Stock issued to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (F) currently outstanding options to
purchase 9,710,567 shares of Common Stock granted to employees pursuant to the
Company's 1996 Stock Option Plan (the "1996 Option Plan"), (G) further options
to purchase
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96,290 shares of Common Stock reserved under the 1996 Option Plan, (H) 2,200,000
shares of Common Stock reserved under the 2000 Option Plan, and (I) the sale of
the Series BB Preferred Stock under this Agreement, there are no options,
warrants or other rights to purchase any of the Company's authorized and
unissued capital stock and the Company has no obligation (contingent or
otherwise) to issue any shares of capital stock or any subscription, warrant,
option, convertible or exchangeable security or other such right, or to issue or
distribute any evidence of indebtedness or assets of the Company, and the
Company has no obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any shares of capital stock or any interest therein or to pay
any dividend or make any other distribution in respect thereof. The Company is
not a party or subject to any agreement or understanding, and, to the best of
the Company's knowledge, there is no agreement or understanding between any
persons and/or entities, which affects or relates to the voting or giving of
written consents with respect to any security or by a director of the Company.
2.3 Subsidiaries. The Company does not presently own or control,
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directly or indirectly, any interest in any other corporation, association, or
other business entity.
2.4 Authorization. All action on the part of the Company, its
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officers, directors and shareholders has been taken or will be taken prior to
the Closing that is necessary for: (1) the authorization, execution and delivery
of this Agreement and the Investors' Rights Agreement, respectively; (2) the
performance of all obligations of the Company under this Agreement and the
Investors' Rights Agreement; and (3) the authorization, issuance (or reservation
for issuance), sale and delivery of the Series BB Preferred Stock being sold
hereunder and the Common Stock issuable upon conversion of the Series BB
Preferred Stock. This Agreement and the Investors' Rights Agreement each
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 Valid Issuance of Preferred and Common Stock. The Series BB
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Preferred Stock that is being purchased by each of the Investors hereunder, when
issued, sold and delivered in accordance with the terms of this Agreement for
the consideration expressed herein, will be duly and validly issued, fully paid
and nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Investors' Rights
Agreement and under applicable state and federal securities laws. The Common
Stock issuable upon conversion of the Series BB Preferred Stock purchased under
this Agreement has been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of the Restated Articles, will be duly and
validly issued, fully paid, and nonassessable and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement and the
Investors' Rights Agreement and under applicable state and federal securities
laws.
2.6 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for (i) the filing of the
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Restated Articles with the Secretary of State of the State of California and
(ii) the filing pursuant to Section 25102(f) of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder, which filing will
be effected within fifteen (15) days of the sale of the Series BB Preferred
Stock.
2.7 Offering. Subject in part to the truth and accuracy of each
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Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Series BB Preferred Stock as contemplated by this
Agreement are exempt from the registration requirements of the Securities Act of
1933, as amended (the "Act").
2.8 Litigation. There is no action, suit, proceeding or
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investigation pending against the Company that questions the validity of this
Agreement or the Investors' Rights Agreement, or the right of the Company to
enter into such agreements, or to consummate the transactions contemplated
hereby or thereby, or that might result, either individually or in the
aggregate, in any material adverse changes in the assets, condition or affairs
of the Company. To its knowledge, 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.
2.9 Proprietary Rights. The Company has sufficient title and
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ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights, know-how, technology and
processes necessary to conduct its business as now conducted and as currently
proposed to be conducted (collectively, "Proprietary Rights"). The Company has
sufficient title and ownership of all software programs and databases necessary
to conduct its business as now conducted and as currently proposed to be
conducted. The Company is not aware that the use, reproduction, modification,
distribution, licensing, sublicensing, sale or any other exercise of the
Proprietary Rights as used, provided or offered by the Company infringes upon
any copyright, trade secret, trademark, service ▇▇▇▇, trade name or trade dress,
or any patent, moral right or other intellectual property right, right of
privacy or right in personal data of any person. The Company is not aware that
any of its employees is bound by or a party to any options, licenses or
agreements of any kind with respect to the Proprietary Rights of any other
person or entity. The Company has not received any communications alleging that
the Company has violated any of the Proprietary Rights of any other person or
entity. The Company is not aware that any of its Proprietary Rights is not valid
and enforceable, or that any claim is pending or threatened to the effect that
any Proprietary Right owned or licensed by the Company, or which the Company
otherwise has the right to use, is invalid or unenforceable by the Company, or
that there is a basis for such claim. The Company is not aware that any of its
employees is obligated under any contract or other agreement or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of such employee's commercially reasonable efforts to
promote the interests of the Company or that would conflict with the Company's
business. The Company has caused its current employees to enter into a
proprietary information and invention agreement in the form attached hereto as
Exhibit D.
2.10 Compliance with Other Instruments. The Company is not in
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violation or default of any provision of its Restated Articles or Bylaws, or in
any material respect of any instrument, judgment, order, writ, decree or
material contract to which it is a party or by which it is bound, or of any
material provision of any federal or state statute, rule or regulation
applicable
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to the Company. The execution, delivery and performance of this Agreement and
the Investors' Rights Agreement, and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation or be in
conflict with or constitute or require a consent or waiver (other than as
contemplated in the Investors' Rights Agreement or its predecessor), either a
default in any material respect under any such provision, instrument, judgment,
order, writ, decree or contract or an event that results in the creation of any
lien, charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture or nonrenewal of any material permit,
license, authorization or approval applicable to the Company.
2.11 Agreements.
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(a) Except for agreements explicitly contemplated hereby and by
the Investors' Rights Agreement, there are no agreements between the Company and
any of its officers, directors, affiliates or any affiliate thereof.
(b) There are no agreements, instruments, contracts, judgments,
orders, writs or decrees to which the Company is a party or by which it is bound
that involve the license of any Proprietary Right to or from the Company other
than those in the Company's normal course of business as a software licensor.
(c) The Company has not (i) declared or paid any dividends or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any outstanding indebtedness for money
borrowed or any other liabilities individually in excess of $50,000 or, in the
case of indebtedness and/or liabilities individually less than $50,000, in
excess of $300,000 in the aggregate, or (iii) made any loans or advances to any
person, other than ordinary advances for travel and other customary employee
business expenses.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, instruments and contracts involving the
same person or entity (including persons or entities the Company has reason to
believe are affiliated therewith) shall be aggregated for the purpose of meeting
the individual minimum dollar amounts of such subsections.
(e) There are no agreements limiting the freedom of the Company
to compete in any line of business or in any geographic area or with any
person.
2.12 Related-Party Transactions. No officer or director of the
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Company or shareholder holding more than 100,000 shares of the Company's capital
stock or member of his or her immediate family is indebted to the Company, nor
is the Company indebted (or committed to make loans or extend or guarantee
credit) to any of them. To the Company's knowledge, no member of the immediate
family of any officer or director of the Company or shareholder holding more
than 100,000 shares of the Company's capital stock is directly or indirectly
interested in any contract with the Company (other than as holders of less than
1% of any class of securities of a publicly-traded company).
2.13 Permits. The Company has all permits and licenses necessary for
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the conduct of its business as now being conducted by it, the lack of which
could materially and
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adversely affect the business, properties or financial condition of the Company.
The Company is not in default in any material respect under any of such permits
and licenses.
2.14 Environmental and Safety Laws. To its knowledge, the Company is
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not in violation in any material respect 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.
2.15 Disclosure. The Company has fully provided each Investor with
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all material information that such Investor would require in deciding whether to
purchase the Series BB Preferred Stock. Neither this Agreement, the Investors'
Rights Agreement nor any other statements or certificates made or delivered in
connection herewith or therewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
or therein not misleading.
2.16 Investors' Rights. Except as provided in the Investors' Rights
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Agreement, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person or entity.
2.17 Corporate Documents. Except for amendments necessary to satisfy
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representations and warranties or conditions contained herein (the form of which
amendments has been approved by the Investors), the Restated Articles and Bylaws
of the Company are in the form previously provided to counsel for the Investors.
2.18 Title to Property and Assets. The Company owns its property and
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assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens that arise in the ordinary course of business and do
not materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases in all material respects.
2.19 Financial Statements. The Company has delivered to each
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Investor certain Company financial information, including audited financial
statements for the fiscal year ended March 31, 1999, (the "Financial
Statements"). The Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and with each other, except that unaudited
Financial Statements may not contain all footnotes required by generally
accepted accounting principles. The Financial Statements fairly present the
financial condition and operating results of the Company as of the dates, and
for the periods, indicated therein, subject in the case of unaudited Financial
Statements to normal year-end audit adjustments.
2.20 Changes. Since March 31, 1999, and except with respect to this
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Agreement and the Investors' Rights Agreement and the transactions contemplated
hereby and thereby, there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
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(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results or business of the Company;
(c) any express waiver by the Company of a valuable right or of
a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company;
(e) any change or amendment to a material contract or
arrangement by which the Company or any of its assets or properties is bound or
subject;
(f) any material change in any compensation arrangement or
agreement with any executive officer and no key employees or group of key
employees has been terminated or has otherwise been removed from the Company;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets other than in
the ordinary course of business;
(h) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company;
(i) any loans or guarantees made by the Company to or for the
benefit of its officers or directors, or any members of their immediate
families, other than travel advances and other advances made in the ordinary
course of its business; or
(j) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company (other than repurchases from employees or consultants of the Company in
connection with their termination of employment).
2.21 Employee Benefit Plans. The Company does not have any Employee
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Benefit Plan as defined in the Employee Retirement Income Security Act of 1974.
2.22 Tax Returns, Payments and Elections. The Company has filed all
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tax returns and reports as required by law. These returns and reports are true
and correct in all material respects. The Company has paid all taxes and other
assessments due. The provision for taxes of the Company as shown in the
Financial Statements is adequate for taxes due or accrued as of the date
thereof. The Company has not elected pursuant to the Internal Revenue Code of
1986, as amended (the "Code"), to be treated as a Subchapter S corporation or a
collapsible corporation pursuant to Section 1362(a) or Section 341(f) of the
Code, nor has it made any other elections pursuant to the Code (other than
elections that relate solely to methods of accounting, depreciation or
amortization) that would have a material effect on the Company, its financial
condition, its business as presently conducted or proposed to be conducted or
any of its properties or material assets.
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2.23 Insurance. The Company has valid fire and casualty insurance
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policies, with extended coverage, sufficient in amount (subject to reasonable
deductibles) to allow it to replace any of its properties that might be damaged
or destroyed.
2.24 Minute Books. The minute books of the Company made available to
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the Investors contain a complete summary of all meetings of directors and
shareholders since the time of incorporation.
2.25 Labor Agreements and Actions. The Company is not bound by or
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subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the Company's
knowledge, has sought to represent any of the employees, representatives or
agents of the Company. There is no strike or other labor dispute involving the
Company pending, or to the Company's knowledge, threatened, that could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company (as such business is presently
conducted and as it is proposed to be conducted), nor is the Company aware of
any labor organization activity involving its employees. The Company is not
aware that any officer or key employee, or that any group of key employees,
intends to terminate their employment with the Company, nor does the Company
have a present intention to terminate the employment of any of the foregoing.
The employment of each officer and employee of the Company is terminable at the
will of the Company.
2.26 U.S. Real Property Holding Corporation. The Company is not now
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and has never been a "United States Real Property Holding Corporation" as
defined in Section 897(c)(2) of the Internal Revenue Code of 1986, as amended
and Section 1.897-2(b) of the regulations promulgated by the Internal Revenue
Service.
2.27 Merger Discussions. The Company has not engaged in the past
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three (3) months in any discussion (i) with any representative of any
corporation or corporations regarding the merger of the Company with or into any
such corporation or corporations, (ii) with any representative of 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 would be
disposed of, or (iii) regarding any other form of liquidation, dissolution or
winding up of the Company.
2.28 Investment Company. The Company is not an "investment company"
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or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
2.29 Year 2000. All of the Company's software products, devices and
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programs will operate prior to, during and after the calendar year 2000 A.D.
without material error relating to the date data that represents or references
different centuries or more than one century other than such errors which have
not had nor would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the Company's business as presently
conducted or as proposed to be conducted.
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3. Representations and Warranties of the Investors. Each Investor hereby
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represents and warrants that:
3.1 Authorization. Such Investor has full power and authority to
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enter into each of this Agreement and the Investors' Rights Agreement, and each
such Agreement constitutes its valid and legally binding obligation, enforceable
in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made with
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each Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Series BB Preferred Stock to be received by such Investor and
the Common Stock issuable upon conversion, or exercise and conversion, thereof
(collectively, the "Securities") will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, such Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement that gives any person the right to cause such Investor to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities.
3.3 Disclosure of Information. Such Investor has received all the
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information it considers necessary, desirable or appropriate for deciding
whether to purchase the Series BB Preferred Stock. Such Investor further
represents that it has asked all the questions that it desired to ask of the
Company, that it has received complete answers from the Company in response to
those questions, that such answers were to the satisfaction of the Investor for
the purpose of deciding whether to invest in the Company, and that as a result
of its due diligence regarding the terms and conditions of the offering of the
Series BB Preferred Stock and the business, properties, prospects and financial
condition of the Company it has an informed understanding of the Company for
investment purposes.
3.4 Investment Experience. Such Investor is an investor in
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securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Series BB
Preferred Stock. If other than an individual, the Investor also represents it
has not been organized for the purpose of acquiring the Series BB Preferred
Stock.
3.5 Accredited Investor. Unless indicated to the contrary on the
-------------------
signature page hereof, such Investor is an "accredited investor" within the
meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation D,
as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
---------------------
Securities it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, such
Investor represents that it is familiar with SEC Rule 144, as presently in
effect ("Rule 144"), and understands the resale limitations imposed thereby and
by the Act.
9
3.7 Further Limitations on Disposition. Without in any way limiting
----------------------------------
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Securities unless and until:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) Such transfer is made pursuant to Rule 144; or
(c) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act, and
(iii) the transferee has agreed in writing for the benefit of the Company to be
bound by this Section 3, and the Investors' Rights Agreement.
(d) Notwithstanding the provisions of paragraphs (a), (b) and
(c) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor that is a partnership or a corporation
to a partner of such partnership or shareholder of such corporation or a retired
partner of such partnership or retired shareholder of such corporation who
retires after the date hereof, or to the estate of any such partner or
shareholder or retired partner or retired shareholder or the transfer by gift,
will or intestate succession of any partner or shareholder to his or her spouse
or to the siblings, lineal descendants or ancestors of such partner or
shareholder or his or her spouse, if the transferee agrees in writing to be
subject to the terms hereof and of the Investors' Rights Agreement, to the same
extent as if he or she were an original Investor hereunder and thereunder.
3.8 Legends. It is understood that the certificates evidencing the
--------
Securities may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(b) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations and
Sections 417 and 418 of the California Corporations Code.
3.9 Further Representations by Foreign Investors. If an Investor is
--------------------------------------------
not a United States person, such Investor 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
10
obtained, and (iv) the income tax and other tax consequences, if any, that may
be relevant to the purchase, holding, redemption, sale, or transfer of the
Securities. Such Investor'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.
4. California Commissioner of Corporations.
---------------------------------------
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT
------------------------
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
5. Conditions of Investor's Obligations at Closing. The obligations of
-----------------------------------------------
each Investor under subsection 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
in writing thereto:
5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
5.2 Performance. The Company shall have performed and complied
-----------
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. The President of the Company shall
----------------------
deliver to each Investor at the Closing a certificate stating that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no material adverse change in the business, affairs,
operations, properties, assets or condition of the Company since the date of the
latest Financial Statements provided to the Investors.
5.4 Qualifications. All authorizations, approvals, or permits, if
--------------
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing.
5.5 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
11
5.6 Opinion of Company Counsel. Each Investor shall have received
--------------------------
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Company, an opinion,
dated as of the Closing, in the form attached hereto as Exhibit C.
---------
5.7 Amended and Restated Investors' Rights Agreement. The Company
------------------------------------------------
and each Investor shall have entered into the Investors' Rights Agreement in the
form attached as Exhibit B.
---------
5.8 Restated Articles. The Company's Restated Articles shall have
-----------------
been accepted for filing by the office of the California Secretary of State and
the Company shall have properly authorized enough shares to issue the Series BB
Preferred Stock.
6. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company to each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of the Investor contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
6.2 Amended and Restated Investors' Rights Agreement. The Company
------------------------------------------------
and each Investor shall have entered into the Investors' Rights Agreement in the
form attached as Exhibit B.
---------
6.3 Payment of Purchase Price. The Investor shall have delivered the
-------------------------
purchase price specified in Section 1.2.
6.4 Qualifications. All authorizations, approvals, or permits, if
--------------
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing.
7. Additional Underwriters Agreement.
-----------------------------------
7.1 Certain Repurchase Option. If any Shares purchased by Bayview 99
-------------------------
I ▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California, H&Q Employee Venture Fund
2000, L.P., Access Technology Partners, L.P., Access Technology Partners Brokers
Fund, L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors L.L.C., or their affiliates, (each
an "Investor/Underwriter" and collectively the "Investors/Underwriters") are
considered "underwriters compensation" under Section 2710 of the National
Association of Securities Dealers, Inc. ("NASD") Rules of Fair Practice and the
value of such Shares plus any other consideration considered "underwriters
compensation" in connection with any public offering of Company's securities in
which an "affiliate" of the Investors/Underwriters" participates exceeds the
amount considered by the NASD to be fair and reasonable, then at the Company's
option, (i) the Company, or its designee, shall have the right to repurchase a
number of Shares of the Series BB Preferred Stock held by such
Investor/Underwriter at a price of $3.57 per share (the "Company's Underwriter
Repurchase Option") such that the total amount of "underwriters compensation" in
connection with such public offering is considered fair and reasonable by the
NASD, and/or (ii) the
12
Investor/Underwriter shall enter into a lockup agreement for a period of up to 3
years such that the total amount of "underwriters compensation" in connection
with such public offering is considered fair and reasonable by the NASD.
7.2 Expiration; Exercise of Repurchase Option. The Company's
-----------------------------------------
Underwriter Repurchase Option shall expire on December 31, 2000. The option may
be exercised by delivery of a written notification to the Investor/Underwriter's
address as indicated on the Signature Page to this Agreement with a check or
wire transfer for the Repurchase Price, as applicable.
7.3 "Market Stand-Off" Agreement. Each Investor/Underwriter hereby
---------------------------
agrees that for a period of 365 days following the effective date of a
registration statement of the Company filed under the Act, it shall not,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
common stock included in such registration; provided, however, that such
agreement shall be applicable only to the first such registration statement of
the Company which covers common stock (or other securities) to be sold on its
behalf to the public in an underwritten offering.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor/Underwriter (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 7.3 shall not apply to a registration relating solely to employee
benefit plans on Form S-l or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be promulgated
in the future.
7.4 Waiver of Certain Rights. Each Investor/Underwriter hereby
------------------------
waives:
(a) its right of first offer contained in Section 2.4 of the
Investors' Rights Agreement with respect to any offering that occurs after the
date which is 3 years from the effective date of the Company's first
underwritten public offering;
(b) its "demand" registration rights contained in Section 1.2 or 1.12
of the Investors' Rights Agreement with respect to any registration that occurs
after the first such registration pursuant to either Section 1.2 or 1.12 or with
respect to any registration that occurs after the date which is 5 years from the
effective date of the Company's first underwritten public offering; and
(c) its "piggyback" registration rights contained in Section 1.3 of
the Investors' Rights Agreement with respect to any registration that occurs
after the date which is 7 years from the effective date of the Company's first
underwritten public offering.
7.5 Further Agreement. Each Investor/Underwriter agrees to take any
-----------------
reasonable action necessary to prevent the sale of the Shares of the Series BB
Preferred Stock under this
13
Agreement from being deemed by the NASD as compensation exceeding fair and
reasonable compensation in the company's first public registration.
8. Miscellaneous.
-------------
8.1 Survival of Warranties. The warranties, representations and
----------------------
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
8.2 Successors and Assigns. Except as otherwise provided herein, the
----------------------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Securities). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given, or received, upon personal delivery to the party to be
notified or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate in writing, provided that such other address
is received at least ten (10) days prior to the giving of any notice required or
permitted under this Agreement.
8.7 Finder's Fee. Each party represents that it neither is nor will
------------
be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless each Investor from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
14
8.8 Expenses. If and only if the issuance and sale of the Series BB
--------
Preferred Stock is consummated, the Company shall pay up to an aggregate of
$15,000 for the reasonable fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP incurred with
respect to the negotiation, execution, delivery and performance of this
Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the Investors' Rights Agreement or the
Restated Articles, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.9 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Common Stock issued or issuable upon conversion of the Series
BB Preferred Stock purchased hereby. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
8.10 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.11 Aggregation of Stock. All shares of the Preferred Stock held or
--------------------
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
8.12 Entire Agreement. This Agreement and the documents referred to
----------------
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
8.13 Specific Performance. Without limiting or waiving in any
--------------------
respect any rights or remedies of the Investors or the Company under this
Agreement, the Investors' Rights Agreement, or now or hereinafter existing at
law or in equity or by statute, the Company and the Investors agree that each of
the Company and the Investors shall be entitled to seek specific performance of
the obligations to be performed by the Investors or the Company respectively in
accordance with the provisions of this Agreement or the Investors' Rights
Agreement, as the case may be.
15
IN WITNESS WHEREOF, the parties have executed this Series BB Preferred
Stock Purchase Agreement as of the date first above written.
BLAZE SOFTWARE, INC.
By: _____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
INVESTOR:
By: __________________________________
Name: ________________________________
Address: ___________________
___________________
Accredited Status: (Please Check)
[_] Accredited Investor
[_] Non-Accredited Investor
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ CALIFORNIA
By: _______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
H&Q EMPLOYEE VENTURE FUND 2000, L.P.
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: _________________________
Its:_________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
ACCESS TECHNOLOGY PARTNERS,
L.P.
By: ACCESS TECHNOLOGY
MANAGEMENT, L.L.C.
Its: General Partner
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: Managing Member
By: _________________________
Its: _________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
ACCESS TECHNOLOGY PARTNERS BROKERS
FUND, L.P.
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: _________________________
Its: _________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTORS L.L.C.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
Its: Managing Member
By: ______________________________
Its: ______________________________
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
its investment adviser
By: ______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
SELIGMAN NEW TECHNOLOGIES FUND, INC.
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
Its investment adviser
By: ______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SELIGMAN INVESTMENT
OPPORTUNITIES (MASTER)
FUND-NTV PORTFOLIO
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
Its investment adviser
By: ______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SELIGMAN INVESTMENT
OPPORTUNITIES (MASTER)
FUND-NTV PORTFOLIO
By: J. & ▇. ▇▇▇▇▇▇▇▇ & Co. Incorporated,
Its investment adviser
By: ______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
SOFINNOVA PARTNERS
By: ______________________________
Its: ______________________________
Address: 140 ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
DAMAC INVESTORS INC
By: ______________________________
Its: ______________________________
Address: Craiguir ▇▇▇▇▇▇▇▇,
▇.▇.▇▇▇ 71
Road Town, Tortola
British Virginia Island
DAMAC TECHNOLOGY PARTNERS LP
By: ______________________________
Its: ______________________________
Address: ▇.▇.▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
Grand Cayman, Cayman Island
WS INVESTMENT COMPANY 99B
By: ______________________________
Its: ______________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
LAGUN-ARO, E.P.S.V.
By: ______________________________
Its: ______________________________
Address: LAGUN-ARO, E.P.S.V.
▇/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇)
▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNATURE PAGE TO THE
SERIES BB PREFERRED STOCK PURCHASE AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
Investor Number of Shares of Series BB Amount Paid
Preferred Stock Purchased
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Communications and Information Fund, Inc. 280,112 $ 999,999.84
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ New Technologies Fund, Inc. 885,154 $ 3,159,999.78
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Investment Opportunities (Master) Fund - NTV 235,294 $ 839,999.58
Portfolio
---------------------------------------------------------------------------------------------------------------------------
Sofinnova Venture Partners IV, L.P,. 544,818 $ 1,945,000.26
---------------------------------------------------------------------------------------------------------------------------
Sofinnova Venture Affiliates IV, L.P. 15,406 $ 54,999.42
---------------------------------------------------------------------------------------------------------------------------
Sofinnova Capital III FCPR 560,224 $ 1,999,999.68
---------------------------------------------------------------------------------------------------------------------------
Lagun-Aro, E.P.S.V. 560,224 $ 1,999,999.68
---------------------------------------------------------------------------------------------------------------------------
Damac Investors Incorporated 140,056 $ 499,999.92
---------------------------------------------------------------------------------------------------------------------------
Damac Technology Partners L.P. 140,056 $ 499,999.92
---------------------------------------------------------------------------------------------------------------------------
WS Investments 99B 53,925 $ 192,512.25
---------------------------------------------------------------------------------------------------------------------------
Bayview 99 I, LP 30,344 $ 108,328.08
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇ 25,678 $ 91,670.46
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California 23,529 $ 83,998.53
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California 14,006 $ 50,001.42
---------------------------------------------------------------------------------------------------------------------------
H&Q Employee Venture Fund 2000, L.P. 14,006 $ 50,001.42
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors L.L.C. 56,023 $ 200,002.11
---------------------------------------------------------------------------------------------------------------------------
Access Technology Partners, L.P. 224,089 $ 799,997.73
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Access Technologies Partners Brokers Fund, L.P. 4,482 $ 16,000.74
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L. ▇▇▇▇▇▇ ▇▇▇▇▇ Trust 42,016 $ 149,997.12
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▇▇▇▇▇ ▇▇▇▇▇ Klaus 14,005 $ 49,997.85
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 28,011 $ 99,999.27
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▇▇▇ ▇▇▇▇▇▇▇ 14,006 $ 50,001.42
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Total 3,905,464 $13,942,506.48
Up to 4,117,647 shares have been
authorized.
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EXHIBIT A
SEVENTH AMENDED AND RESTATED
ARTICLES OF INCORPORATION
EXHIBIT B
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
EXHIBIT C
OPINION OF COUNSEL FOR THE COMPANY
EXHIBIT D
FORM OF COMPANY'S PROPRIETARY INFORMATION AGREEMENT