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EXHIBIT 10.07
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PORTABLE SOFTWARE CORPORATION
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
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1. PURCHASE AND SALE OF SERIES D PREFERRED STOCK...................... 1
1.1 Sale and Issuance of Series D Preferred Stock................ 1
1.2 Closing...................................................... 1
2. DEFINITIONS........................................................ 2
2.1 Material Adverse Event....................................... 2
2.2 Subsidiary................................................... 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO INVESTORS......... 2
3.1 Corporate Organization and Authority......................... 2
3.2 Capitalization............................................... 2
3.3 Subsidiaries................................................. 3
3.4 Authorization................................................ 4
3.5 Corporate Power.............................................. 4
3.6 Validity of Shares........................................... 4
3.7 No Conflict with Other Instruments........................... 5
3.8 Litigation................................................... 5
3.9 Title to Properties; Liens and Encumbrances.................. 5
3.10 Patents and Other Proprietary Rights......................... 5
3.11 Taxes........................................................ 6
3.12 Financial Statements......................................... 7
3.13 Changes...................................................... 7
3.14 Company's Contracts.......................................... 8
3.15 No Defaults, Violations, or Conflicts........................ 9
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TABLE OF CONTENTS (continued)
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3.16 Insurance.................................................. 9
3.17 Private Offering........................................... 9
3.18 Prior Registration Rights.................................. 9
3.19 Disclosure................................................. 9
3.20 Distributions.............................................. 9
3.21 Employee Compensation Plans................................ 9
3.22 Employee Relations......................................... 10
3.23 Employee Proprietary Information and Inventions Agreement.. 10
3.24 Brokers and Finders........................................ 10
3.25 Corporate Documents........................................ 10
3.26 Governmental Consents...................................... 10
3.27 Permits.................................................... 10
3.28 Environmental and Safety Laws.............................. 11
3.29 Returns and Complaints..................................... 11
3.30 Manufacturing and Marketing Rights......................... 11
3.31 Section 83(b) Elections.................................... 11
3.32 Stock Restriction Agreements............................... 11
3.33 Real Property Holding Company.............................. 11
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS;
RESTRICTIONS ON TRANSFERABILITY.................................. 11
4.1 Authorization.............................................. 11
4.2 Brokers and Finders........................................ 12
4.3 Investment................................................. 12
4.4 No Public Market........................................... 12
4.5 Limitations on Transferability............................. 12
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TABLE OF CONTENTS (Continued)
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4.6 Experience................................................... 13
4.7 Legends...................................................... 13
4.8 Accredited Investor.......................................... 14
5. CONDITIONS OF INVESTORS' OBLIGATIONS AT CLOSING................... 14
5.1 Representations and Warrants................................. 14
5.2 Performance.................................................. 14
5.3 Qualifications............................................... 14
5.4 Opinion of Company's Counsel................................. 14
5.5 Board of Directors........................................... 14
5.6 Proceedings Satisfactory, Compliance Certificate............. 14
5.7 Information and Registration Rights Agreement................ 15
5.8 Restated Articles............................................ 15
5.9 Stock Restriction and Co-Sale Agreement...................... 15
5.10 Certificate of Existence/Authority........................... 15
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING................ 15
6.1 Representations and Warranties............................... 15
6.2 Blue Sky Compliance.......................................... 15
6.3 Restated Articles............................................ 15
6.4 Legal Matters................................................ 15
6.5 Information and Registration Rights Agreement................ 16
6.6 Stock Restriction and Co-Sale Agreement...................... 16
6.7 Comdisco Credit Facilities................................... 16
7. POST CLOSING COVENANTS OF THE COMPANY............................. 16
7.1 Securities Laws Compliance................................... 16
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TABLE OF CONTENTS (Continued)
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7.2 Employee Proprietary Information and Inventions Agreement.... 16
7.3 Stock Purchase and Restriction Agreements.................... 16
7.4 Stock Plans.................................................. 17
7.5 Key Person Insurance......................................... 17
8. MISCELLANEOUS..................................................... 17
8.1 Entire Agreement; Successors and Assigns..................... 17
8.2 Governing Law................................................ 17
8.3 Counterparts................................................. 18
8.4 Headings..................................................... 18
8.5 Notices...................................................... 18
8.6 Survival of Warranties....................................... 18
8.7 Amendment of Agreement....................................... 18
8.8 California Securities Laws................................... 18
8.9 Finders Fees................................................. 18
8.10 Expenses..................................................... 19
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SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of July 22, 1997, by and among Portable Software Corporation, a
Washington corporation (the "Company"), and the Investors listed in Schedule
1.1 attached hereto (the "Investors").
RECITALS
A. The Board of Directors of the Company has adopted the Amended and
Restated Articles of Incorporation ("Restated Articles") in the form attached
hereto as Exhibit A which, among other matters, establish the rights,
preferences and privileges of the Company's no par value Series D Preferred
Stock (the "Series D Preferred Stock") and Series D1 Preferred Stock") and
Series D1 Preferred Stock (the "Series D1 Preferred Stock").
B. The Company desires to sell shares of Series D Preferred Stock to
the Investors, and the Investors desire to purchase that number of shares of
Series D Preferred Stock set forth on Schedule 1.1, on the terms and subject to
the conditions set forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of Series D Preferred Stock.
1.1 Sale and Issuance of Series D Preferred Stock. The Company
shall sell to the investors and the Investors shall purchase from the Company,
at a purchase price of $1.46 per share, a total of 3,188,357 shares of Series D
Preferred Stock (the "Shares").
1.2 Closing. The purchase and sale of the Shares shall take
places at the offices of Heller, Ehrman, White & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on July 23, 1997, at 9:30 a.m. (the
"Closing") or at such other place and time as the Company and the Investors
mutually agrees either orally or in writing (or in the case of Investors Cor
disco, Inc., such date not later than July 31, 1997, as each of the conditions
in Section ___ have been fulfilled); the date of the Closing is hereinafter
referred to as the "Closing Date". At the Closing, the Company will deliver to
each Investor purchasing shares a certificate representing the number of Shares
which such Investor is purchasing against delivery to the Company by such
Investor at the Closing of (a) an executed counterpart of this Agreement, and
(b) the purchase price of such Shares by wire transfer, cancellation of
indebtedness, or by a check payable to the Company, all as set forth in
Schedule 1.1
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2. Definitions. For purposes of this Agreement.
2.1 "Material Adverse Event" shall mean an occurrence having a
consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or materially
changes the equity ownership of the Company, or (b) is reasonably foreseeable,
and if it were to occur might materially adversely affect the business,
properties, prospects, or financial condition of the Company.
2.2 "Subsidiary" means any corporation more than 50% of whose
stock (measured by virtue of voting rights) in the aggregate is owned by the
Company.
3. Representations and Warranties of the Company to Investors. Except
as set forth in the Schedule of Exceptions attached as Exhibit 3, the Company
hereby represents and warrants to the Investors that:
3.1 Corporate Organization and Authority. The Company:
(a) is a corporation duly organized, validly existing,
authorized to exercise all its corporate powers, rights and privileges, and in
good standing in the State of Washington;
(b) has the corporate power and corporate authority to own
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted; and
(c) is qualifies as a foreign corporation in all
jurisdictions in which such qualification is required; provided, however, that
the Company need not be qualified in a jurisdiction in which its failure to
qualify would not have a material adverse effect on the business, properties,
prospects or financial condition of the Company.
3.2 Capitalization. Immediately prior to the Closing, the
authorized capital of the Company shall consist of (i) Sixty Million
(60,000,000) shares of Common Stock, of which Five Million Seven Hundred
Twenty-One Thousand One Hundred Twenty-Seven (5,721,127) are issued and
outstanding as of the Closing Date and held by the persons and in the amounts
set forth in Exhibit 3, and (ii) Forty-Three Million (43,000,000) shares of
Preferred Stock (the "Preferred") of which (a) Three Million Eight Hundred
Twenty-Four Thousand and Ninety Two (3,824,092) shares have been designated
Series A Preferred Stock all of which is issued or outstanding, (b) Three
Million Eight Hundred Twenty-Four Thousand Ninety-Two (3,824,092) have been
designated Series A1 Preferred Stock, none of which is issued and outstanding,
(c) Four Million Six Hundred Eighty-Seven Thousand Five Hundred (4,687,500)
shares have been designated Series B Preferred Stock, all of which are issued
and outstanding, (d) Four Million Six Hundred Eighty-Seven Thousand Five Hundred
(4,687,500) shares have been
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designated Series B1 Preferred Stock, none of which is issued or outstanding,
(e) Nine Million Seven Hundred Seventy-Four Thousand Eight Hundred and One
(9,774,801) shares have been designated Series C Preferred Stock, 9,712,301 of
which are issued and outstanding, (f) Nine Million Seven Hundred Seventy-Four
Thousand Eight Hundred and One (9,774,801) shares have been designated Series
C1 Preferred Stock, none of which is issued or outstanding, (g) Three Million
Three Hundred Fifty-Seven Thousand Eight Hundred Ninety-Seven (3,357,897)
shares have been designated Series D Preferred Stock, none of which is issued
or outstanding, and (h) Three Million Three Hundred Fifty-Seven Thousand Eight
Hundred Ninety-Seven (3,357,897) shares have been designated Series D1 Preferred
Stock, none of which is issued or outstanding. The Series D Preferred, the
Series D1 Preferred, the Series C Preferred Stock, the Series C1 Preferred
Stock, the Series B Preferred Stock, the Series B1 Preferred Stock, the Series
A Preferred Stock, and the Series A1 Preferred Stock have the respective
rights, preferences, privileges, and restrictions set forth in the Restated
Articles. The outstanding shares of Common Stock, Series A Preferred Stock,
Series B Preferred Stock, and Series C Preferred have been duly authorized and
validly issued (including, without limitation, issued in compliance with
applicable federal and state securities laws), fully paid, and non-assessable.
The Company has reserved 3,824,092 shares of Common Stock for issuance upon
conversion of Series A Preferred Stock and Series A1 Preferred Stock, 4,687,500
shares of Common Stock for issuance upon conversion of Series B Preferred Stock
and Series B1 Preferred Stock, 9,774,801 shares of Common Stock for issuance
upon conversion of Series C Preferred Stock and Series C1 Preferred Stock, and
an additional 3,188,357 shares of Common Stock for issuance upon conversion of
the Shares (or the Series D1 Preferred Stock into which the Shares may be
converted). The Company has options outstanding to its employees for the
purchase of 1,925,950 shares of Common Stock and has reserved an additional
1,500,327 shares of Common Stock for issuance to officers, directors,
employees, or consultants of the Company. Except as set forth above, in the
Restated Articles and on Exhibit 3, there are no outstanding warrants, options,
conversion privileges, preemptive rights, or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of the Company,
nor has the issuance of any of the aforesaid rights to acquire securities of
the Company been authorized. The Company is not a party or subject to any
agreement or understanding, and, to 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 other than as set forth in Section 5.5
and in Exhibit ____.
3.3 Subsidiaries. The Company does not presently own, have any
investment in, or control, directly or indirectly, any Subsidiaries,
associations, or other business entities. The Company is not a participant in
any joint venture or partnership.
3.4 Authorization. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution, delivery,
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and performance of all obligations under this Agreement, the Restated
Information and Registration Rights Agreement, including Amendment No. 1
thereto (the "Rights Agreement") attached hereto as Exhibit 5.7, and the
Amended and Restated Stock Restriction and Co-Sale Agreement, including
Amendment No. 1 thereto, (the "Co-Sale Agreement") attached hereto as Exhibit
5.9, and for the authorization, issuance and delivery of the Shares and the
Series D1 Preferred Stock and of the Common Stock issuable upon conversion of
the Shares and the Series D1 Preferred Stock has been taken, and this
Agreement, the Rights Agreement, and the Co-Sale Agreement (collectively, the
"Transactional Agreements") constitute legally binding and valid obligations of
the Company enforceable in accordance with their terms.
3.5 Corporate Power. The Company will have at the Closing Date all
requisite legal and corporate power and authority to execute and deliver the
Transactional Agreements, to sell and issue the Shares hereunder, to issue the
Series D1 Preferred Stock and the Common Stock issuable upon conversion of the
Shares and the Series D1 Preferred Stock, and to carry out and perform its
obligations under the terms of the Transactional Agreements.
3.6 Validity of Shares. The Shares, when issued, sold, and delivered in
accordance with the terms and for the consideration expressed in this
Agreement, will be duly and validly issued (including, without limitation,
issue in compliance with applicable federal and state securities laws), fully
paid and non-assessable and will be owned free and clear of any adverse claims
(within the meaning of Section 8 102(1)(a) of Article 8 of the Washington
Uniform Commercial Code), assuming that the Investors are "protected
purchasers" within the meaning of Section 8-303 of Article 8 of the Washington
Uniform Commercial Code. The Common Stock and the Series D1 Preferred Stock
issuable upon conversion of the Shares have been duly and validly reserved and,
assuming such shares are issued to the Investors, upon issuance in accordance
with the Restated Articles will be duly and validly issued (including, without
limitation, issued in compliance with all applicable federal and state
securities laws), fully-paid, and non-assessable and will be free of any liens
or encumbrances other than any liens or encumbrances created by or imposed
thereon by the holders; provided, however, that the Shares (and the Series D1
Preferred Stock and Common Stock issuable upon conversion thereof) shall be
subject to restrictions on transfer under state and/or federal securities laws.
The Shares and the Series D1 Preferred Stock, and the Common Stock issuable
upon conversion of the Shares and the Series D1 Preferred Stock, are not subject
to any preemptive rights or rights of first refusal except as specified in
Exhibit A.
3.7 No Conflict with Other Instruments. The execution, delivery and
performance of the Transactional Agreements will not: (a) result in any
violation of, be in conflict with, or constitute a default under, with or
without the passage of time or the giving of notice: (i) any provision of the
Company's Restated Articles or Bylaws; (ii) any provision of any judgment,
decree, or order to which the Company is a party or by which
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it is bound; (iii) any material contract, obligation, or commitment to which the
Company is a party or by which it is bound; or (iv) any material statute, rule,
or governmental regulation applicable to the Company, or (b) result in the
creation or acceleration of any lien, charge or encumbrance upon any 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.
3.8 Litigation. There is no action, proceeding, or investigation
pending or threatened, or any basis therefor known to the Company, that
questions the validity of the Transactional Agreements or the right of the
Company to enter into the Transactional Agreements or to consummate the
transactions contemplated hereby and thereby, or that would result, either
individually or in the aggregate, in any Material Adverse Event, including,
without limitation, any action, proceeding, or investigation involving the prior
employment or consultancy of any of the Company's employees or consultants or
their use of any information or techniques alleged to be proprietary to any
former employer of any such employee or consultant or their obligations under
any agreements with prior employers. There is no judgment, decree, or order of
any court in effect against the Company and the Company is not in default with
respect to any order of any governmental authority to which the Company is a
party or by which it is bound. There is no action, suit, proceeding, or
investigation by the Company currently pending or which the Company presently
intends to initiate.
3.9 Title to Properties; Liens and Encumbrances. The Company has
good and marketable title to all of its properties and assets, both real and
personal, and has good title to all its leasehold interests, in each case
subject to no mortgage, pledge, lien, security interest, conditional sale
agreement, encumbrance, or charge, other than (i) the lien of current taxes not
yet due and payable, and (ii) liens and encumbrances which do not materially
detract from the value of the property subject thereto or materially impair the
operations of the Company. With respect to the property and assets it leases,
the Company is not in default under such leases in any material respect.
3.10 Patents and Other Proprietary Rights.
(a) The Company has sufficient title and ownership of all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights, and processes (collectively, "Intellectual
Property") necessary for its business as now conducted, and believes it can
obtain, on commercially reasonable terms, any additional rights necessary for
its business as proposed to be conducted, and the Company's Intellectual
Property does not, and, to the knowledge of the Company, would not, conflict
with or constitute an infringement of the rights of others;
(b) There are no outstanding options, licenses, or
agreements of any kind relating to the matters listed in subsection 3.10(a) or
that grants rights to any
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other person to manufacture, license, produce, assemble, market, or sell the
Company's products, nor is the Company bound by or a party to any options,
licenses, or agreements of any kind with respect to the Intellectual Property
rights of any other person or entity;
(c) The Company has not received any communications alleging that
the Company or its employees has violated or infringed or, by conducting its
business as proposed, would violate or infringe any of the Intellectual Property
rights of any other person or entity;
(d) 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 cause the Company to infringe
upon the Intellectual Property rights of any other person or entity, that would
interfere with the use of such employee's best efforts to promote the interests
of the Company or that would conflict with the Company's business as proposed to
be conducted; and
(e) Neither the execution nor delivery of the Transactional
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 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 of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company.
3.11 Taxes. All federal, state, local, and foreign tax returns
required to be filed by the Company have been filed and are true in all material
respects, and all taxes, assessments, fees, and other governmental charges upon
the Company, or upon any of its properties, income, or franchises, shown in such
returns to be due and payable have been paid except those contested by the
Company in good faith as described in Exhibit 3 and for which adequate reserves
have been set up; or if any of such tax returns have not been filed or if any
such taxes have not been paid or so reserved for, the failure so to file or to
pay would not in the aggregate constitute a Material Adverse Event. The Company
has not elected to be treated as a "consenting corporation" pursuant to Section
341(f) of the Internal Revenue Code of 1986, as amended (the "Code").
3.12 Financial Statements. The Company has delivered to each Investor
its audited financial statements (balance sheet and statements of operations,
stockholders' equity, and cash flows) for the fiscal year ended September 30,
1996, and, has provided each Investor with a statement of cash flow in addition
to a balance sheet and income statement for each month thereafter through May
31, 1997, (together, the "Financial Statements"). The Financial Statements are
complete and correct in all material respects. The Financial Statements
accurately set out and describe the financial
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condition of the Company as of the dates, and for the periods, indicated
therein, subject to normal year-end adjustments. Except as set forth in the
Financial Statements, the Company has no material liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to May 31, 1997 which, individually or in the aggregate, do
not constitute a Materially Adverse Event and (ii) obligations under contracts
and commitments incurred in the ordinary course of business not in excess of
$25,000 individually.
3.13 Changes. Since May 31, 1997, there has not been, except as
contemplated herein:
(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 which have not
constituted, in the aggregate, a Material Adverse Event;
(b) any damage, destruction or loss, whether or not covered by
insurance, constituting a Material Adverse Event;
(c) any waiver by the Company of a valuable right or of a material
debt owed to it;
(d) any satisfaction or discharge or any lien, claim or encumbrance
or payment of any obligation by the Company, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results of the Company (as such business is presently
conducted and as it is proposed to be conducted);
(e) any change or amendment to any 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 employee; or
(g) to the Company's knowledge, any other event or condition of any
character which constitutes a Material Adverse Event.
3.14 Company's Contracts.
(a) All of the contracts and agreements (i) with expected receipts or
expenditures in excess of $100,000, (ii) involving a license or grant of rights
to or from the Company involving patents, trademarks, copyrights, or other
proprietary information applicable to the business of the Company, (iii) with
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services, or (iv) that provide indemnification by
the Company with respect to
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infringements of proprietary rights to which the Company is a party as of the
date of the Closing are listed on Exhibit 3. All such contracts and agreements
are legally binding, valid, and in full force and effect in all material
respects, and there is no indication of reduced activity relating to such
contract or agreement (other than in the ordinary course of business) by any of
the parties to any such contract or agreement.
(b) The Company has not (i) incurred any indebtedness for money
borrowed in excess of $50,000 in the aggregate, (ii) made any loans or advances
to any person, other than ordinary advances for travel expenses, or (iii) sold,
exchanged, or otherwise disposed of any of its assets or rights, other than the
sale of its inventory in the ordinary course of business.
(c) The Company is not party to and is not bound by any contract,
agreement or instrument, or subject to any restriction under its Restated
Articles or Bylaws, which adversely affects its business as now conducted or as
proposed to be conducted, its properties, or its financial condition.
(d) Except for (i) transactions relating to the purchase of shares of
the Company's Common Stock, or options therefor, as listed on Exhibit 3, and
(ii) regular salary payments and fringe benefits under an individual's
compensation package with the Company, no officer, director, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, or spouse, parent, sibling or child of any such person, or any
other employee has any agreement, understanding, proposed transaction or 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 best of the Company's
knowledge, no officer, director, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, or spouse, parent,
sibling or child of any such person has 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 that
competes with the Company, except that any such person may own stock in publicly
traded companies that may compete with the Company. No spouse, parent, sibling
or child or any officer or director of the Company is directly or indirectly
interested in any material contract with the Company.
3.15 No Defaults, Violations, or Conflicts. The Company is not in violation
of any term or provision of any charter provision, bylaw, or any term or
provision of any indebtedness, mortgage, indenture, contract, agreement,
judgment, or to the Company's knowledge, any decree, order, statute, rule, or
regulation applicable to the Company where such violation, or violations in the
aggregate, is a Material Adverse Event.
3.16 Insurance. The Company has in effect insurance covering risks
associated with its business in such amounts as are customary in its industry.
The Company is not aware of any pending or threatened claims against the Company
for personal injuries or property damages.
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3.17 Private Offering. The Company agrees that neither the Company nor
anyone acting on its behalf will offer any of the Shares or any similar
securities for issuance or sale to, or solicit any offer to acquire any of the
same from, anyone or take any other action so as to make the issuance and sale
of the Shares subject to the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act").
3.18 Prior Registration Rights. Except as provided in the Rights Agreement,
the Company is under no obligation to register under the Securities Act any of
its presently outstanding securities or any of its securities that may
subsequently be issued.
3.19 Disclosure. The Transactional Agreements and any other documentation
or written information furnished to the Investors by the Company in connection
with their decision to purchase the Shares, together with any exhibits or
appendices hereto do not contain any untrue statement of a material fact or omit
any material fact necessary to make the statements contained therein or herein
in view of the circumstances under which they were made not misleading, except
that, with respect to any projections that have been furnished, the Company
represents only that such projections were prepared in good faith and that the
Company reasonably believes that there is a reasonable basis for such
projections. The Company has provided each Investor with all the information
that Investor or Investor's legal counsel has requested for deciding whether to
purchase the Shares.
3.20 Distributions. There has been no declaration or payment by the Company
of any dividend, nor any distribution by the Company of any assets of any kind
to any of its shareholders in redemption or as the purchase price of any of the
Company's securities.
3.21 Employee Compensation Plans. The Company is not party to or bound by
any currently effective employment contracts, deferred compensation agreements,
bonus plans, incentive plans, profit sharing plans, retirement agreements, or
other employee compensation agreements.
3.22 Employee Relations. The Company believes its relations with its
employees are satisfactory. The Company's employees are not represented by any
labor unions nor, to the Company's knowledge, is any union organization campaign
in progress. The Company is not aware that any of its officers or employees
intends to terminate employment nor does the Company have any present intention
to terminate the employment of any of the foregoing. Subject to general
principles related to wrongful termination of any employees, the employment of
each officer and employee of the Company is terminable at the will of the
Company.
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3.23 Employee Proprietary Information and Inventions Agreement. Each
officer, employee and consultant of the Company has executed and delivered to
the Company an Employee Proprietary Information and Inventions Agreement
substantially in the form of Exhibit 7.2. The Company, after reasonable
investigation, is not aware that any of its employees, officers or consultants
are in violation thereof, and the Company will use its best efforts to prevent
any such violation.
3.24 Brokers and Finders. The Company has not retained any investment
banker, broker, or finder in connection with the transactions contemplated by
this Agreement.
3.25 Corporate Documents. The Company has furnished the Investors with
copies of the Articles of Incorporation and Bylaws as currently in effect and
the minute books. Said copies are true, correct, and complete and contain all
amendments and all minutes through the Closing Date.
3.26 Governmental Consents. Subject to the accuracy of Investors'
representationS in Section 4 of this Agreement, no consent, approval, order, or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local, or provincial governmental authority
on the part of the Company is required in connection with the consummation of
the transactions contemplated by this Agreement, except for filings pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as
amended, rule 460-44A of the Washington Administrative Code, and other
applicable state securities laws, which filings and qualifications, if
required, will be effected in a timely manner.
3.27 Permits. 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 would constitute a Material Adverse Event,
and believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. The
Company is not in default in any material respect under any of such franchises,
permits, license, or other similar authority.
3.28 Environmental and Safety Laws. To the best of its knowledge, the
Company is not in violation of any applicable statute, law, or regulation
relating to the environment or occupational health and safety as the Company's
business is conducted and is proposed to be conducted, and to the best of its
knowledge, no material expenditures are or will be required in order to comply
with any such existing statute, law, or regulation where such violation would
constitute a Material Adverse Event.
3.29 Returns and Complaints. The Company has received no customer
complaints concerning its products and/or services, nor has it had any of its
products returned by a purchaser thereof, other than minor, non-recurring
warranty problems.
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3.30 Manufacturing and Marketing Rights. The Company is not bound
by any agreement that affects the Company's exclusive right to develop,
manufacture, assemble, distribute, market, or sell its products.
3.31 Section 83(b) Elections. All individuals who have purchased
shares of the Company's Common Stock have, if applicable, filed timely elections
under Section 83(b) of the code and any analogous provisions of applicable state
tax laws.
3.32 Stock Restriction Agreements. Holders of all of the shares of
the Common Stock of the Company and of all of the outstanding options to
purchase Common Stock of the Company have executed and delivered to the Company
Stock Purchase and Restriction Agreements substantially in the form of Exhibit
7.3 attached hereto.
3.33 Real Property Holding Company. The Company is not a "U.S. real
property holding corporation" within the meaning of Section 897 of the Code.
4. Representations and Warranties of the Investors; Restrictions on
Transferability. Each Investor represents and warrants to the Company as
follows:
4.1 Authorization. When executed and delivered by the Investor,
and assuming execution and delivery by the Company, the Transactional Agreements
will each constitute a valid obligation of the Investor, enforceable in
accordance with their respective terms.
4.2 Brokers and Finders. Investor has not retained any investment
banker, broker, or finder in connection with the transactions contemplated by
this Agreement.
4.3 Investment. This Agreement is made with Investor in reliance
upon its representation to the Company, which by Investor's execution of this
Agreement Investor hereby confirms, that the Shares to be received by Investor
will be acquired for investment for Investor's own account, not as a nominee or
agent, and not with a view to the sale or distribution of any part thereof, and
that Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, Investor
further represents that it has no contract, undertaking, agreement, or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any of the Shares.
4.4 No Public Market. Investor understands and acknowledges that
the offering of the Shares pursuant to this Agreement will not be registered
under the Securities Act on the grounds that the offering and sale of securities
contemplated by this Agreement are exempt from registration pursuant to Section
4(2) of the Securities Act, and that the Company's reliance upon such exemption
is predicated upon Investor's
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representations set forth in this Agreement. Investor further understands that
no public market now exists for any of the securities issued by the Company, and
that the Company has made no assurances that a public market will ever exist for
the Company's securities.
4.5 Limitations on Transferability. Investor covenants that in
no event will it dispose of any of the Shares (other than pursuant to Rule 144
promulgated by the Securities and Exchange Commission ("Commission") under the
Securities Act ("Rule 144") or any similar or analogous rule) unless and until
(i) Investor shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and (ii), if requested by the Company,
Investor shall have furnished the Company with an opinion of counsel
satisfactory in form and substance to the Company and the Company's counsel to
the effect that (x) such disposition will not require registration under the
Securities Act and (y) appropriate action necessary for compliance with the
Securities Act and any applicable state, local, or foreign law has been taken.
It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
Notwithstanding the limitations set forth in the foregoing sentence, if Investor
is a partnership it may transfer Shares to its constituent partners or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner or transfer by gift, will, or intestate
succession to any such partner's spouse or lineal descendants or ancestors
without the necessity of registration or opinion of counsel if the transferee
agrees in writing to be subject to the terms of this Agreement to the same
extent if such transferee were an Investor; provided, however, that Investor
hereby covenants not to effect such transfer if such transfer either would
invalidate the securities laws exemptions pursuant to which the Shares were
originally offered and sold or would itself require registration under the
Securities Act or applicable state securities laws. Each certificate evidencing
the Shares transferred as above provided shall bear the appropriate restrictive
legend set forth in Section 4.7 below, except that such certificate shall not
bear such legend if the transfer was made in compliance with Rule 144 or if the
opinion of counsel referred to above is to the further effect that such legend
is not required in order to establish compliance with any provisions of the
Securities Act.
4.6 Experience. Investor represents that: (i) it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its prospective investment in the Shares;
(ii) it believes it has received all the information it has requested from the
Company and considers necessary or appropriate for deciding whether to purchase
the Shares; (iii) it has had the opportunity to discuss the Company's business
management, and financial affairs with its management, (iv) it has the ability
to bear the economic risks of its prospective investment; and (v) it is able,
without materially impairing its financial condition, to hold the Shares for an
indefinite period of time and to suffer a complete loss on its investment. The
foregoing, however,
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does not modify the representations and warranties of the Company in Section 3
of this Agreement or the right of the Investors to rely thereon.
4.7 Legends.
(a) All certificates for the Shares shall bear the following
legend:
"The securities represented hereby have not been registered
under the Securities Act of 1933, as amended ("Act"). Such
securities may not be transferred unless a Registration
Statement under the Act is in effect as to transfer or, in
the opinion of counsel for the Company registration under
the Act is unnecessary in order for such transfer to comply
with the Act or unless sold pursuant to Rule 144 of the
Act."
(b) The certificates evidencing the Shares shall also bear
any legend required by the Commissioner of Corporations of the State of
California or the Washington State Administrator of Securities or required
pursuant to any state, local, or foreign law governing such securities.
4.8 Accredited Investor. Investor presently qualifies, and
will as of the Closing Date qualify, as an "accredited investor" within the
meaning of Regulation D of the rules and regulations promulgated under the
Securities Act of 1933.
5. Conditions of Investors' Obligations at Closing. The obligations of
each Investor under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by such Investor:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 3 shall be true on and as of the
Closing with the same effect as if made on and as of the Closing.
5.2 Performance. The Company shall have performed or fulfilled
all agreements, obligations and conditions contained herein required to be
performed or fulfilled by the Company before the Closing.
5.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained effective as of the
Closing.
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5.4 Opinion of Company's Counsel. The Investors shall have
received from Heller, Ehrman, White & ▇▇▇▇▇▇▇▇▇, counsel to the Company, an
opinion addressed to them, dated the Closing Date, in substantially the form of
Exhibit 5.4.
5.5 Board of Directors. All requisite proceedings shall have been
taken so that immediately following the Closing, ▇▇▇▇▇ ▇. ▇▇▇▇▇ will have been
elected to the Board of Directors which will consist of the persons listed on
Schedule 5.5.
5.6 Proceedings Satisfactory; Compliance Certificate. All
corporate and legal Proceedings taken by the Company in connection with the
transactions contemplated by this Agreement and all documents and papers
relating to such transactions shall be satisfactory in all material respects to
the Investors, in the reasonable exercise of its judgment. The Company shall
have delivered to the Investors a certificate dated as of such Closing, signed
by the Company's President, certifying that the conditions set forth in Sections
5.1, 5.2, 5.3 and 5.5 have been satisfied.
5.7 Information and Registration Rights Agreement. The Company
and the Investors shall have entered into the Amendment Agreement to the
Company's Rights Agreement attached as Exhibit 5.7.
5.8 Restated Articles. The Company shall have filed its Restated
Articles with the Secretary of State of the State of Washington, which Restated
Articles shall be in full force and effect on the Closing Date.
5.9 Stock Restriction and Co-Sale Agreement. The Company and the
Investors who are holders of its Series C Preferred Stock shall have entered
into the Amendment Agreement attached as Exhibit 5.9.
5.10 Certificate of Existence/Authority. The Company shall have
delivered to the Investors a Certificate of Existence/Authority relating to the
Company issued by the Washington Secretary of State dated no earlier than five
(5) days prior to the Closing.
6. Conditions of the Company's Obligations at Closing The obligations
of the Company under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by the Company:
6.1 Representations and Warranties. The representations and
warranties of the Investors contained in Section 4 shall be true on and as of
the Closing with the same effect as though said representations and warranties
had been made on and as of the Closing.
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6.2 Blue Sky Compliance. The Company shall have complied with and
be effective under the securities laws of the State of California, the State of
Washington, and any other applicable states as necessary to offer and sell the
Shares to the Investors.
6.3 Restated Articles. The Restated Articles shall have been
filed with the Secretary of State of the State of Washington and shall be in
full force and effect on the Closing Date.
6.4 Legal Matters. All material matters of a legal nature which
pertain to this Agreement, the Co-Sale Agreement, and the Rights Agreement, and
the transactions contemplated hereby, shall have been reasonably approved by
counsel to the Company.
6.5 Information and Registration Rights Agreement. The Company
and the Investors shall have entered into the Amendment Agreement to the
Company's Rights Agreement attached as Exhibit 5.7.
6.6 Stock Restriction and Co-Sale Agreement. The Company and the
Investors who are holders of its Series C Preferred Stock shall have entered
into the Amendment Agreement attached as Exhibit 5.9.
6.7 Comdisco Credit Facilities. The obligations of the Company
under Section 1 of this Agreement with respect to the sale of Shares to
Comdisco, Inc., but not to the other Investors, are also subject to the Company
having received from Comdisco, Inc. (i) $1,800,000 as the proceeds of the
sale-leaseback of the Company's equipment pursuant to the Master Lease Agreement
dated July _, 1997, between the Company and Comdisco, Inc., and (ii) $1,500,000
as the proceeds of the loans made by Comdisco, Inc. to the Company pursuant to
the Subordinated Loan and Security Agreement dated July __, 1997, between the
Company and Comdisco, Inc.
7. Post Closing Covenants of the Company.
7.1 Securities Laws Compliance. The Company shall within 15 days
of the Closing file a notice of the sale of the Shares to the Investors pursuant
to Section 25102(f) of the California Corporations Code, and shall make any
other filings required by Rule 460-44A of the Washington Administrative Code and
the securities or Blue Sky laws of any other application jurisdiction.
7.2 Employee Proprietary Information and Inventions Agreement.
Unless otherwise determined by the Board of Directors, the Company shall require
all future officers, directors, and employees of, and consultants to, the
Company and its Subsidiaries to execute and deliver an Employee Proprietary
Information and Inventions Agreement in substantially the form of Exhibit 7.2.
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7.3 Stock Purchase and Restriction Agreements. The Company shall
cause all future purchasers of, and all future holders of options to purchase,
shares of the Company's Common Stock to execute and deliver Stock Purchase and
Restriction Agreements (or Stock Option Agreements) substantially in the form
set forth in Exhibit 7.3, but with vesting over four (4) years.
7.4 Stock Plans. The Company may sell shares of stock and grant
options to employees, advisors, officers, and directors of, and consultants to,
the Company and its Subsidiaries only pursuant to such arrangements, contracts,
or plans as are recommended by management and approved by the Board of
Directors, which arrangements, contracts or plans shall provide for vesting of
options, or lapsing of repurchase rights in the case of shares, over a four (4)
year period, 25% after the first year and ratably thereafter on a monthly basis,
subject to acceleration under certain circumstances in the event of an
acquisition or merger.
7.5 Key Person Insurance. The Company shall continue to maintain
on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the life of S. ▇▇▇▇▇▇ ▇▇▇▇▇ key person life
insurance, each in the amount of $1,000,000, with proceeds payable to the
Company, until the Board of Directors of the Company determines otherwise, which
determination shall include the consent of at least two directors representing
the Investors.
8. Miscellaneous.
8.1 Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract between the Company and the Investors relative
to the subject matter hereof. Any previous agreement between the Company and the
Investors is superseded by this Agreement. Subject to the exceptions
specifically set forth in this Agreement, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors, and assigns of the parties. By
their execution of this Agreement, each of Brentwood Associates VI, L.P., U.S.
Venture Partners IV, L.P., Second Ventures II, L.P., USVP Entrepreneur Partners
II, L.P., Institutional Venture Partners VII, IVP Founders Fund I, Institutional
Venture Management VII, ▇▇▇▇▇▇▇▇ VIII, and ▇▇▇▇▇▇▇▇ Associates Fund III waive,
with respect to the issuance of the Shares (including for this purpose the
shares issuable upon exercise of those warrants issued to ComDisco, Inc. in
connection with the establishment and/or extension of certain credit
facilities), the Right of First Refusal granted to them under Section 5 of that
Restated Information and Registration Rights Agreement dated as of July 12,
1996. By its execution of this Agreement, the Company acknowledges and confirms
that it has requested that such Investors waive their Right of First Offer for
purposes of Section 6 of Article 5 of the Company's Restated Articles of
Incorporation.
8.2 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Washington, excluding
those laws that direct the application of another jurisdiction's laws.
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8.3 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.
8.4 Headings. The headings of the Sections of this Agreement
are for convenience and shall not by themselves determine the interpretation of
this Agreement.
8.5 Notices. Any notice required or permitted hereunder
shall be given in writing and shall be conclusively deemed effectively given
upon personal delivery or delivery by courier, or five days after deposit in the
United States mail, by registered or certified mail, postage prepaid, addressed
to the Company or an Investor, as the case may be, as set forth below its name
on the signature page of this Agreement, or at such other address as the Company
or such Investor may designate by ten (10) days' advance written notice to the
other.
8.6 Survival of Warranties. The warranties and
representations of the parties contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing;
provided, however, that such representations and warranties need only be
accurate as of the date of such execution and delivery and as of the Closing.
8.7 Amendment of Agreement. Any provision of this Agreement
may be amended by a written instrument signed by the Company and by persons
holding at least a majority of the aggregate of (a) the then outstanding Shares
and (b) the then outstanding shares of Common Stock into which the Shares have
been converted, other than shares of Common Stock which have been sold to the
public.
8.8 California Securities Laws. THE SALE OF THE SECURITIES
WHICH 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 THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT AND EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
8.9 Finders Fees. Each of the Company and the Investors will
indemnify the other against all liabilities incurred by the indemnifying party
with respect to claims related to investment banking or finders fees in
connection with the transactions contemplated by this Agreement, arising out of
arrangements between the party, asserting such claims and the indemnifying
party, and all costs and expenses (including reasonable fees of counsel) of
investigating and defending such claims.
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8.10 Expenses. The Company and the Investors will each bear
their respective legal and other fees and expenses with respect to this
Agreement and the transactions contemplated hereby, provided, however, that the
Company will pay at the Closing upon submission of an appropriate invoice the
reasonable legal fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the
Investors, provided that such fees do not exceed Twelve Thousand Five Hundred
Dollars ($12,500).
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION,
a Washington corporation
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: S. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Investor: ▇▇▇▇▇▇▇▇ ASSOCIATES FUND III
A California Limited Partnership
By: ▇▇▇▇▇▇▇▇ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Its General Partner
By:
------------------------------------
Title: Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: ▇▇▇▇▇▇▇▇ VIII
A California Limited Partnership
By: ▇▇▇▇▇▇▇▇ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Its General Partner
By:
-------------------------------------
Title: Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
25
IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION,
A Washington corporation
By:
-----------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures, L.P.
Its General Partner
By: [SIG]
---------------------------------
General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION,
a Washington Corporation
By:
-------------------------------------
Name: S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Investor: COMDISCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
Title: COMDISCO VENTURES DIVISION
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION
A Washington corporation
By:
-------------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: U.S. VENTURE PARTNERS IV, L.P.
By: Presidio Management Group IV, L.P.
Its General Partner
By:
-------------------------------------
Title:
----------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: SECOND VENTURES II, L.P.
By: Presidio Management Group IV, L.P.
Its General Partner
By:
-------------------------------------
Title:
----------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION
A Washington corporation
By:
---------------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: U.S.V.P. ENTREPRENEUR PARTNERS II, L.P.
A Delaware Limited Partnership
By: Presidio Management Group IV, L.P.
Its General Partner
By:
---------------------------------------
Title:
------------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: INSTITUTIONAL VENTURE PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By:
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION
A Washington corporation
By:
-------------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: INSTITUTIONAL VENTURE MANAGEMENT VII, L.P.
By:
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION
A Washington corporation
By:
-------------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures, L.P.
Its General Partner
By:
-------------------------------------
General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Preferred Stock Purchase Agreement as of the day and year first above written.
Company: PORTABLE SOFTWARE CORPORATION
A Washington corporation
By:
-------------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: ▇▇▇▇▇▇▇▇ ASSOCIATES FUND III,
A California Limited Partnership
By: ▇▇▇▇▇▇▇▇ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Its General Partner
By:
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Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Investor: ▇▇▇▇▇▇▇▇ VIII
A California Limited Partnership
By: ▇▇▇▇▇▇▇▇ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Its General Partner
By:
------------------------------------
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
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EXHIBITS AND SCHEDULES
Section
Exhibit A Amended and Restated Articles of Incorporation
Exhibit 3 Schedule of Exceptions to Representations and Warranties
Exhibit 5.4 Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
Exhibit 5.7 Restated Information and Registration Rights Agreement; Amendment Agreement
Exhibit 5.9 Amended and Restated Stock Restriction and Co-Sale Agreement; Amendment Agreement
Exhibit 7.2 Employee Proprietary Information and Invention Agreement
Exhibit 7.3 Stock Restriction Agreement
Schedule 1.1 Investors
Schedule 5.5 Board of Directors
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SCHEDULE 1.1
Investors
Number of
Name of Investor Shares of Stock Purchase Price
---------------- --------------- --------------
Institutional Venture Partners VII, L.P. 307,584 $449,072.64
IVP Founders Fund I, L.P. 11,392 $16,632.32
Institutional Venture Management VII, L.P. 6,510 $9,504.60
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Brentwood Associates VI, L.P. 338,447 $494,132.62
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Associates Fund III 100,914 $147,334.44
▇▇▇▇▇▇▇▇ VIII 1,917,359 $2,799,344.14
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Comdisco, Inc. 106,165 $155,000.90
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Second Ventures II, L.P. 41,999 $61,318.54
USVP Entrepreneur Partners II, L.P. 12,000 $17,520.00
U.S. Venture Partners IV, L.P. 345,987 $505,141.02
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------- -------------
3,188,357 $4,655,001.22
1