EXHIBIT 10.11
INFOSPACE, INC.
COMMON STOCK
PURCHASE AGREEMENT
AUGUST 6, 1998
TABLE OF CONTENTS
1.1 Purchase and Sale of Stock........................ 1
1.1 Authorization..................................... 1
1.2 Sale and Issuance of Securities................... 1
1.3 Closing
2. Representations and Warranties of the Company.......... 1
2.1 Organization and Existence........................ 2
2.2 Capitalization.................................... 2
2.3 Subsidiaries...................................... 2
2.4 Authorization..................................... 3
2.5 Valid Issuance of Common Stock.................... 3
2.6 Governmental Consents............................. 3
2.7 Litigation........................................ 4
2.8 Employees......................................... 4
2.9 Patents and Trademarks............................ 5
2.10 Compliance With Other Instruments................. 5
2.11 Permits........................................... 6
2.12 Environmental and Safety Laws..................... 6
2.13 Disclosure........................................ 6
2.14 Registration Rights............................... 6
2.15 Title to Property and Assets...................... 6
2.16 Financial Statements.............................. 7
2.17 Certain Agreements................................ 7
2.18 Tax Returns and Audits............................ 8
2.19 No Conflict of Interest........................... 8
2.20 Changes........................................... 9
2.21 Insurance......................................... 10
2.22 Qualified Small Business Stock.................... 10
3. Representations and Warranties of the Investor......... 10
3.1 Experience........................................ 10
3.2 Investment........................................ 10
3.3 Rule 144.......................................... 11
3.4 No Public Market.................................. 11
3.5 Access to Information............................. 11
3.6 Authorization..................................... 12
3.7 Accredited Investor............................... 12
4. Conditions of Investor's Obligations at Closing........ 12
4.1 Representations and Warranties.................... 12
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4.2 Performance...................................... 12
4.3 Compliance Certificate........................... 12
4.4 Stockholder Rights Agreement..................... 13
4.5 Proceedings and Documents........................ 13
5. Conditions of the Company's Obligations at Closing.... 13
5.1 Representations and Warranties................... 13
5.2 Performance...................................... 13
5.3 Securities Laws.................................. 13
5.4 Stockholder Rights Agreement..................... 14
6. Miscellaneous......................................... 14
6.1 Governing Law.................................... 14
6.2 Survival......................................... 14
6.3 Successors and Assigns........................... 14
6.4 Entire Agreement; Amendment...................... 14
6.5 Notices, Etc..................................... 15
6.6 Delays or Omissions.............................. 15
6.7 Expenses......................................... 15
6.8 Finder's Fees.................................... 16
6.9 Counterparts..................................... 16
6.10 Severability..................................... 16
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EXHIBITS
Exhibit A Schedule of Investors
Exhibit B Schedule of Exceptions
Exhibit C Stockholder Rights Agreement
INFOSPACE, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement is entered into as of August 6, 1998,
by and among InfoSpace, Inc., a Delaware corporation (the "Company"), and the
investors listed on Exhibit A hereto (the "Investors").
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1. PURCHASE AND SALE OF STOCK
1.1 AUTHORIZATION
The Company has authorized the issuance and sale pursuant to this Agreement
of up to an aggregate of 985,000 shares of its Common Stock, par value $.0001
per share (the "Common Stock").
1.2 SALE AND ISSUANCE OF SECURITIES
Subject to the terms and conditions of this Agreement, each Investor
agrees, severally and not jointly, to purchase from the Company at the Closing
(as defined below), and the Company agrees to sell and issue to each Investor at
the Closing, the number of shares of Common Stock set forth opposite such
Investor's name on Exhibit A hereto for the purchase price as set forth thereon.
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1.3 CLOSING
The purchase and sale of the Common Stock pursuant to this Agreement (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇▇ Coie, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 10:00 a.m., on August 6, , 1998, or at such other time
and place as may be mutually agreed orally or in writing by the Company and the
Investors acquiring in the aggregate at least a majority of the shares of Common
Stock being issued at the Closing (such shares issued at the Closing, the
"Shares", and the date of the Closing, the "Closing Date"). At the Closing, the
Company shall deliver to each Investor a certificate or certificates
representing the Shares that such Investor is purchasing against payment of the
purchase price therefor by check or wire transfer.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Schedule of Exceptions attached hereto as
Exhibit B, which exceptions also shall constitute representations and warranties
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under this Agreement, the Company hereby represents and warrants to the
Investors as follows:
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2.1 ORGANIZATION AND EXISTENCE
The Company is a corporation duly organized and validly existing under the
laws of the state of Delaware and has all requisite corporate power and
authority to carry on its business as currently conducted. The Company is duly
qualified to transact business and is in good standing in the State of
Washington and each jurisdiction in which the failure to so qualify would have a
material adverse effect on its business or properties.
2.2 CAPITALIZATION
The authorized capital stock of the Company consists of Fifteen Million
(15,000,000) shares of Preferred Stock, par value $.0001 per share, of which no
shares are issued and outstanding as of the Closing, and Forty Million
(40,000,000) shares of Common Stock, of which 30,234,292 shares are issued and
outstanding as of the Closing (including those shares to be issued pursuant to
this Agreement). All such issued and outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. The Company
has reserved Five Million (5,000,000) shares of Common Stock for issuance to
officers, directors, employees, consultants, agents, advisors and independent
contractors of the Company pursuant to the Company's 1996 Flexible Stock
Incentive Plan (the "Option Plan"), no shares of which have been issued and are
outstanding as of the Closing and 3,491,250 of which shares are subject to
issuance upon exercise of options that have been granted and are outstanding as
of the Closing. The Company has reserved 553,495 shares of Common Stock for
issuance to officers, directors and employees of the Company pursuant to the
Company's 1998 Stock Purchase Right Plan (the "Purchase Right Plan") and
5,083,588 shares of Common Stock for issuance upon exercise of outstanding
warrants. Other than the shares reserved for issuance described in this
paragraph, the rights set forth in the agreements described on Schedule 2.2 to
the Schedule of Exceptions, there are no outstanding rights, options, warrants,
preemptive rights, rights of first refusal or similar rights for the purchase or
acquisition from the Company of any securities of the Company.
2.3 SUBSIDIARIES
The Company does not presently own or control, directly or indirectly, any
interest in any other corporation, association, or other business entity. The
Company is not a participant in any joint venture, partnership, or similar
arrangement other than those joint ventures, partnerships and arrangements in
which the Company participates in the ordinary course of business.
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2.4 AUTHORIZATION
All corporate action on the part of the Company, its officers, directors
and stockholders necessary for the authorization, execution and delivery of this
Agreement and Stockholder Rights Agreement by and among the Company and the
Investors in the form attached hereto as Exhibit C (the "Stockholder Rights
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Agreement") the performance of all obligations of the Company hereunder and
thereunder, and the authorization, issuance, sale and delivery of the Shares
being sold hereunder has been taken or will be taken prior to the Closing, and
this Agreement constitutes, and upon execution and delivery thereof by the
Company and the other parties thereto the Stockholder Rights Agreement (the
"Agreements") will constitute, valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, subject to: (i) judicial principles limiting the availability of
specific performance, injunctive relief, and other equitable remedies; (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights; and
(iii) limitations on the enforceability of the indemnification provisions of the
Stockholder Rights Agreement.
2.5 VALID ISSUANCE OF COMMON STOCK
The shares of Common Stock that are being purchased by the Investors
hereunder, when issued, sold and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be validly issued, fully
paid, and nonassessable, and will be free of restrictions on transfer directly
or indirectly created by the Company, other than restrictions on transfer
contained in the Agreements and under applicable state and federal securities
laws.
2.6 GOVERNMENTAL CONSENTS
No consent, approval, order or 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 offer, sale or issuance of the Shares or the consummation of
any other transaction contemplated hereby, except for the following: (i) the
filing of such notices as may be required under the Securities Act of 1933, as
amended (the "Securities Act"), and (ii) the filing of appropriate notices or
other documents as may be required under state securities laws. Based in part
on the representations of the Investors set forth in Section 3 below, the offer,
sale and issuance of the Shares in conformity with the terms of this Agreement
are exempt from the registration requirements of Section 5 of the Securities Act
and from the registration or qualification requirements of applicable
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state securities laws, and neither the Company nor any authorized agent acting
on its behalf will take any action hereafter that would cause the loss of such
exemption.
2.7 LITIGATION
Except as set forth in the Schedule of Exceptions, there is no action,
suit, proceeding or investigation pending or, to the Company's knowledge,
currently threatened before any court, administrative agency or other
governmental body against the Company which questions the validity of the
Agreements or the right of the Company to enter into any of them, or to
consummate the transactions contemplated thereby, or which could reasonably
result, either individually or in the aggregate, in any material adverse change
in the condition (financial or otherwise), business, property, assets or
liabilities of the Company, or any change in the current equity ownership of the
Company, nor is the Company aware of any basis for the foregoing. The foregoing
includes, without limitation, actions, suits, proceedings or investigations
pending or, to the Company's knowledge, currently threatened involving the prior
employment of any of the Company's employees, their use in connection with the
Company's business of any information or techniques allegedly proprietary to any
of their former employers, or their obligations under any agreements with prior
employers. The Company is not a party or subject to, and none of its assets is
bound by, the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality which could reasonably have a
material adverse effect on the Company. There is no action, suit, proceeding or
investigation by the Company currently pending or which the Company currently
intends to initiate.
2.8 EMPLOYEES
Each employee of the Company has executed a proprietary information
agreement. To the knowledge of the Company, no officer or employee is in
violation of any prior or current employee contract or proprietary information
agreement. The Company is not a party to or bound by any currently effective
employment contract, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement, qualified or unqualified
employee benefit plan or other employee compensation agreement or arrangement
(other than the Option Plan and the Purchase Right Plan). No employees of the
Company are represented by any labor union or covered by any collective
bargaining agreement. There is no pending or, to the Company's knowledge,
currently threatened labor dispute involving the Company and any group of its
employees. The employment of each officer and employee of the Company is
terminable at the will of the Company.
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2.9 PATENTS AND TRADEMARKS
The Company has sufficient title to and ownership of all trade secrets,
and, to its knowledge, copyrights, information, proprietary rights and
processes, patents, trademarks, service marks and trade names necessary for its
business as now conducted and as proposed to be conducted, without any material
conflict with or infringement of the rights of others. There are no material
outstanding options, licenses, or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any material options,
licenses or agreements of any kind with respect to the patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes of any other person or entity. The Company has
not received any written communications alleging that the Company has violated
any of the patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity. To the
Company's knowledge, none of the Company's employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of the Company or that would conflict with the
Company's business as conducted and as proposed to be conducted. To the
Company's knowledge, neither the execution and delivery of the Agreements nor
the current or proposed conduct of the Company's business will 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 the
Company's employees is now obligated. The Company does not believe it will be
necessary to use any inventions of any of its employees (or persons it currently
intends to hire) made prior to their employment by the Company, other than
inventions that have been validly assigned or contributed to the Company.
2.10 COMPLIANCE WITH OTHER INSTRUMENTS
The Company is not in violation or default of any provision of its
Certificate of Incorporation or Bylaws, each as amended and in effect on and as
of the Closing. The Company is not in violation or default in any material
respect of any instrument, mortgage, deed of trust, loan, contract, commitment,
judgment, decree, order or obligation to which it is a party or by which it or
any of its properties or assets are bound or, to its knowledge, of any provision
of any federal, state or local statute, rule or governmental regulation. The
execution, delivery and performance of and compliance with the Agreements and
the issuance and sale of the Shares will not result in any such violation, be in
conflict with or constitute, with or without the passage of time or giving of
notice, a default under any such provision, require any consent or waiver under
any such provision (other than any consents or waivers that have been obtained),
or result in the creation of any mortgage, pledge, lien,
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encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such provision.
2.11 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 could reasonably be expected to materially and adversely
affect the business, properties or financial condition of the Company. The
Company is not in default under any of such franchises, permits, licenses or
other similar authority.
2.12 ENVIRONMENTAL AND SAFETY LAWS
The Company is not in violation of any applicable statute, law or
regulation relating to the environment or occupational health and safety, and to
its knowledge, no material expenditures are or will be required in order to
comply with any such existing statute, law or regulation.
2.13 DISCLOSURE
The Company has fully provided the Investors with all the information which
the Investors have requested in writing for deciding whether to purchase the
Shares No representation, warranty or statement by the Company in this
Agreement, or in any written statement or certificate furnished to the Investors
pursuant to this Agreement, contains any untrue statement of a material fact or,
omits to state a material fact necessary to make the statements made herein or
therein, in light of the circumstances under which they were made, not
misleading. However, as to any projections furnished to the Investors, such
projections were prepared in good faith by the Company, but the Company makes no
representation or warranty that it will be able to achieve such projections.
2.14 REGISTRATION RIGHTS
Except as provided in the Stockholder Rights Agreement and in Schedule 2.14
of the Schedule of Exceptions, the Company has not granted or agreed to grant
any registration rights, including piggyback rights, to any person or entity.
2.15 TITLE TO PROPERTY AND ASSETS
The Company has good and marketable title to all of its properties and
assets free and clear of all mortgages, liens and encumbrances, except liens for
current taxes and assessments not yet due and except such liens and encumbrances
which arise in the ordinary course of business and do not materially detract
from the value of the
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property subject thereto or materially impair the operations of the Company.
With respect to the properties and assets it leases, the Company is in
compliance with such leases and, to its knowledge, holds a valid leasehold
interest free of all liens, claims or encumbrances. The Company's properties and
assets are in good condition and repair in all material respects.
2.16 FINANCIAL STATEMENTS
The Company will deliver to the Investors its audited balance sheet, and
its audited statements of income, cash flows and stockholders' equity as of and
for the fiscal year ended December 31, 1997 as soon as the foregoing financial
statements (the "Financial Statements") become available. The Financial
Statements shall fairly present, in all material respects, the financial
position and results of operations of the Company as of the dates and for the
periods indicated and have been prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP"). Except as and to the
extent reflected or reserved against in the December 31, 1997 balance sheet, the
Company has no material liabilities or obligations, contingent or otherwise,
other than (a) liabilities or obligations incurred in the ordinary course of
business subsequent to the cut-off date for the preparation of the December 31,
1997 balance sheet and (b) liabilities or obligations, including liabilities or
obligations under contracts and similar commitments, that are not required by
GAAP to be reflected in a balance sheet that is prepared in accordance with
GAAP. Except as disclosed in the Financial Statements, the Company is not a
guarantor or indemnitor of any indebtedness of any other person, firm or
organization. The Company maintains and will continue to maintain a standard
system of accounting administered in accordance with GAAP.
2.17 CERTAIN AGREEMENTS
(a) Except for agreements described herein and in the Stockholder
Rights Agreement, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors or
affiliates.
(b) There are no agreements, understandings, instruments, contracts,
proposed transactions, judgments, orders, writs or decrees outside of the
ordinary course of business to which the Company is a party or by which it is
bound that may involve (i) obligations (contingent or otherwise) of or payments
by the Company in excess of, $100,000, or (ii) the license of any patent,
copyright, trade secret or other proprietary right to or from the Company, or
(iii) provisions restricting or adversely affecting the development, manufacture
or distribution of the Company's products or services or (iv) indemnification by
the Company with respect to infringements of proprietary rights.
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(c) The Company has not (i) declared or paid any dividends or
authorized or made any distribution (other than distributions of capital stock
of the Company) upon or with respect to any class or series of its capital
stock, (ii) incurred any indebtedness for money borrowed or any other
liabilities individually in excess of $100,000 or in excess of $250,000 in the
aggregate, (iii) made any loans or advances to any person, other than ordinary
advances for travel expenses, or (iv) 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.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) The Company is not party to and is not bound by any contract,
agreement or instrument, or subject to any restriction under its Articles or
Bylaws, that adversely affects its business as now conducted or as proposed to
be conducted, its properties or its financial condition.
2.18 TAX RETURNS AND AUDITS
The Company has accurately prepared all United States income tax returns
and all state and municipal tax returns required to be filed by it, if any, has
paid all taxes, assessments, fees and charges when and as due under such returns
and has made adequate provision for the payment of all other taxes, assessments,
fees and charges shown on such returns or on assessments received by the
Company, where, if not paid or filed or prepared correctly, would not have a
material adverse effect on the Company. To the Company's knowledge, no
deficiency assessment or proposed adjustment of the Company's United States
income tax or state or municipal taxes is pending.
2.19 NO CONFLICT OF INTEREST
The Company is not indebted, directly or indirectly, to any of its officers
or directors or to their respective spouses or children, in any amount
whatsoever other than in connection with expenses or advances of expenses
incurred in the ordinary course of business or relocation expenses of employees.
To the Company's knowledge, none of the Company's officers or directors, or any
members of their immediate families, are, directly or indirectly, indebted to
the Company or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship, or any
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firm or corporation which competes with the Company. To the best of the
Company's knowledge, none of the Company's officers or directors or any members
of their immediate families, are, directly or indirectly, interested in any
material contract with the Company.
2.20 CHANGES
Since December 31, 1997, 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;
(b) any waiver or compromise by the Company of a valuable right or of
a material debt owed to it;
(c) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(d) any resignation or termination of employment of any officer or key
employee of the Company or material change in compensation payable or benefits
accruable to any officer or key employee; and the Company has no knowledge of
any impending resignation or termination of employment of any such officer or
key employee;
(e) any loans or guarantees made by the Company to or for the benefit
of its employees, officers or directors, or any members of their immediate
families, other than travel advances and other advances made in the ordinary
course of business;
(f) to the Company's knowledge, any other event or condition of any
character that could reasonably materially and adversely affect the business,
properties, prospects or financial condition of the Company (as such business is
currently conducted and as it is proposed to be conducted); or
(g) any arrangement or commitment by the Company to do any of the
things described in this Section 2.20.
2.21 INSURANCE
The Company has in full force and effect fire and casualty insurance
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.
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2.22 QUALIFIED SMALL BUSINESS STOCK
As of and immediately following the Closing, the shares of Common Stock to
be issued will meet each of the following requirements for qualification as
"qualified small business stock" as set forth in Section 1202(c) of the Internal
Revenue Code of 1986, as amended (the "Code"): (i) the Company is a domestic C
corporation; (ii) the Company has not made any purchases of its own stock
described in Code Section 1202(c)(3)(B) during the one year period preceding the
Closing; and (iii) the Company's and any predecessor's aggregate gross assets,
as defined by Code Section 1202(d)(2), at no time from the date of incorporation
of the Company through and including the Closing have exceeded $50,000,000,
taking into account the assets of any corporation required to be aggregated with
the Company in accordance with Code Section 1202(d)(3).
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Each Investor hereby represents and warrants to the Company, severally and
not jointly, that:
3.1 EXPERIENCE
Such Investor is experienced in evaluating start-up companies such as the
Company, is able to fend for itself in transactions such as the one contemplated
by this Agreement, has such knowledge and experience in financial and business
matters that the Investor is capable of evaluating the merits and risks of such
Investor's prospective investment in the Company, and has the ability to bear
the economic risks of the investment.
3.2 INVESTMENT
Such Investor is acquiring the Shares for investment for such Investor's
own account and not with the view to, or for resale in connection with, any
distribution thereof. Such Investor understands that the Shares have not been
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent as expressed herein. Such
Investor does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to any third person with
respect to any of the Shares. Such Investor understands and acknowledges that
the offering of the Shares pursuant to this Agreement will not be registered
under the Securities Act on the ground that the sale provided for in this
Agreement and the issuance of securities hereunder is exempt from the
registration requirements of the Securities Act.
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3.3 RULE 144
Such Investor acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. Such Investor is aware of Rule 144 promulgated under
the Securities Act which permits limited resale of securities purchased in a
private placement subject to the satisfaction of certain conditions. In the
absence of an effective registration statement covering the securities in
question, such Investor will sell, transfer, or otherwise dispose of the Shares
only in a manner consistent with such Investor's representations and covenants
set forth in this Section 3. In connection therewith, such Investor
acknowledges that the Company will make a notation on its stock books regarding
the restrictions on transfer set forth in this Section 3 and will transfer
securities on the books of the Company only to the extent not inconsistent
therewith.
3.4 NO PUBLIC MARKET
Such Investor 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 Shares.
3.5 ACCESS TO INFORMATION
Such Investor has received and reviewed information about the Company and
has had an opportunity to discuss the Company's business, management and
financial affairs with its management and to review the Company's facilities.
Such Investor understands that such discussions, as well as any written
information issued by the Company, were intended to describe the aspects of the
Company's business and prospects which the Company believes to be material, but
were not necessarily a thorough or exhaustive description. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in Section 2 of this Agreement or the right of the Investors to rely
thereon.
3.6 AUTHORIZATION
This Agreement, when executed and delivered by such Investor, will
constitute a valid and legally binding obligation of such Investor, enforceable
in accordance with its terms, subject to: (i) judicial principles respecting
election of remedies or limiting the availability of specific performance,
injunctive relief, and other equitable remedies; (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
generally relating to or affecting creditors' rights; and (iii) limitations on
the enforceability of the indemnification provisions of the Stockholder Rights
Agreement.
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3.7 ACCREDITED INVESTOR
Such Investor acknowledges that it is an "accredited investor" as defined
in Rule 501 of Regulation D as promulgated by the Securities and Exchange
Commission under the Securities Act and shall submit to the Company such further
assurances of such status as may be reasonably requested by the Company. For
state securities law purposes, the state of residence of such Investor is that
set forth on Exhibit A.
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4. CONDITIONS OF INVESTOR'S OBLIGATIONS AT CLOSING
The obligations of each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in Section 2
shall be true and correct in all material respects 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 the Closing.
4.2 PERFORMANCE
The Company shall have performed and complied in all material respects 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.
4.3 COMPLIANCE CERTIFICATE
The President of the Company shall deliver to each Investor at the Closing
a certificate stating that the conditions specified in Sections 4.1 and 4.2
above have been fulfilled and that there has been no material adverse change in
the business, affairs, operations, properties, assets or condition of the
Company since the date of this Agreement.
4.4 STOCKHOLDER RIGHTS AGREEMENT
Each party thereto shall have executed and delivered the Stockholder Rights
Agreement.
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4.5 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated hereby, and all documents and instruments incident to these
transactions, shall be reasonably satisfactory in substance to the Investor.
5. 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:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of such Investor contained in Section 3
shall be true and correct in all material respects 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.
5.2 PERFORMANCE
Such Investor shall have performed and complied in all material respects
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 SECURITIES LAWS
The Company shall be reasonably satisfied that the offer and sale of the
Shares hereunder is exempt from the registration and qualification requirements
of federal and applicable state securities laws.
5.4 STOCKHOLDER RIGHTS AGREEMENT
Each party thereto shall have executed and delivered the Stockholder Rights
Agreement.
6. MISCELLANEOUS
6.1 GOVERNING LAW
This Agreement shall be governed in all respects by the internal laws of
the state of Washington, without regard to any provisions thereof relating to
conflicts of laws among different jurisdictions.
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6.2 SURVIVAL
The representations, warranties, covenants and agreements made herein shall
survive the Closing until the later of (a) two (2) years after the Closing or
(b) the closing of an initial underwritten public offering of Common Stock,
whereupon such representations, warranties, covenants and agreements shall cease
and be of no further force and effect. All statements as to factual matters
contained in any certificate or exhibit delivered by or on behalf of the Company
pursuant hereto shall be deemed to be the representations and warranties of the
Company hereunder as of the Closing Date.
6.3 SUCCESSORS AND ASSIGNS
Except as otherwise provided herein, the provisions hereof shall inure to
the benefit of, and be binding upon, the successors, assigns, heirs, executors
and administrators of the parties hereto; provided, however, that the rights of
an Investor to purchase Securities shall not be assignable without the consent
of the Company.
6.4 ENTIRE AGREEMENT; AMENDMENT
This Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement among the parties with regard to
the subjects hereof and thereof and supersede all prior or contemporaneous oral
or written understandings or agreements relating to such subjects. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought.
6.5 NOTICES, ETC.
All notices and other communications required or permitted hereunder shall
be in writing and shall be mailed by first class mail, postage prepaid, or
otherwise delivered by hand or by messenger, facsimile or courier, addressed (a)
if to an Investor other than Acorn Ventures-IS, LLC, at such Investor's address
set forth on Exhibit A, or at such other address as such Investor shall have
---------
furnished to the Company in writing, (b) if to Acorn Ventures-IS, LLC, at such
address set forth on Exhibit A, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or (c) if
to any other holder of any Shares, at such address as such holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
Shares who has so furnished an address to the Company, or (d) if to the Company,
at its principal executive office, attention President, or at such other address
as the Company shall have furnished to the
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Investors, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ Coie, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. If notice is provided by mail, it shall be deemed
to be given three (3) business days after proper deposit in the U.S. Mail, and
if notice is given by hand or by messenger, facsimile or courier, it shall be
deemed to be given upon receipt.
6.6 DELAYS OR OMISSIONS
No delay or omission to exercise any right, power or remedy accruing to any
holder of any Shares upon any breach or default of the Company under this
Agreement shall impair any such right, power or remedy of such holder, nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing or as
provided in this Agreement. All remedies, either under this Agreement or by law
or otherwise afforded to any holder, shall be cumulative and not alternative.
6.7 EXPENSES
The Company and each Investor shall bear their own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
6.8 FINDER'S FEES
The Company and the Investors shall each indemnify and hold the other
harmless from any liability for any commission or compensation in the nature of
a finder's fee (including the costs, expenses and legal fees of defending
against such liability) for which the Company or the Investors, or any of their
respective partners, employees, or representatives, as the case may be, is
responsible.
6.9 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which together shall constitute one
instrument.
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6.10 SEVERABILITY
In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision;
provided, however, that no such severability shall be effective if it materially
changes the economic benefit of this Agreement to any party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INFOSPACE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, President and Chief Executive
Officer
THE INVESTORS:
ACORN VENTURES-IS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: President
▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SIGNATURE PAGE FOR COMMON STOCK PURCHASE AGREEMENT]
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H & Q INFOSPACE INVESTORS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
---------------------------
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
---------------------------
INFOSPACE INVESTORS GENERAL
PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:
-------------------------
▇▇▇▇▇▇▇ PARTNERS, L.L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: General Partner
[SIGNATURE PAGE FOR COMMON STOCK PURCHASE AGREEMENT]
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EXHIBIT A
INVESTOR Amount Invested No. of Shares
-------- --------------- -------------
Acorn Ventures-IS, LLC $500,000 125,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $125,000 31,250
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kellettt Partners, LLP $1,125,000 281,250
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
H&Q InfoSpace Investors, LP $1,400,000 350,000
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California $600,000 150,000
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
InfoSpace Investors General $190,000 47,500
Partners
c/o NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTALS $3,940,000.00 985,000
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