BIRTHDAYEXPRESS.COM, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
JULY 21, 1999
BIRTHDAYEXPRESS.COM, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF PREFERRED STOCK...........................................................1
1.1 Sale and Issuance of Series B Preferred Stock.........................................1
1.2 Closing; Delivery.....................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................................................2
2.1 Organization, Good Standing and Qualification.........................................2
2.2 Capitalization........................................................................2
2.3 Subsidiaries..........................................................................2
2.4 Authorization.........................................................................3
2.5 Valid Issuance of Securities..........................................................3
2.6 Governmental Consents.................................................................3
2.7 Litigation............................................................................3
2.8 Intellectual Property.................................................................4
2.9 Compliance with Other Instruments.....................................................4
2.10 Agreements; Action....................................................................4
2.11 Disclosure............................................................................4
2.13 No Conflict of Interest...............................................................5
2.14 Rights of Registration and Voting Rights..............................................5
2.15 Title to Property and Assets..........................................................6
2.16 Labor Agreements and Actions..........................................................6
2.17 Permits...............................................................................6
2.18 Qualified Small Business..............................................................6
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...............................................6
3.1 Authorization.........................................................................6
3.2 Purchase Entirely for Own Account.....................................................6
3.3 Disclosure of Information.............................................................7
3.4 Restricted Securities.................................................................7
3.5 No Public Market......................................................................7
3.6 Legends...............................................................................7
i.
3.7 Accredited Investor...................................................................8
3.8 Foreign Investors.....................................................................8
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING...........................................8
4.1 Representations and Warranties........................................................8
4.2 Performance...........................................................................8
4.3 Compliance Certificate................................................................8
4.4 Qualifications........................................................................8
4.5 Opinion of Counsel....................................................................8
4.6 Secretary's Certificate...............................................................9
4.7 Minimum Subscription..................................................................9
4.8 Board of Directors....................................................................9
4.9 Investors' Rights Agreement...........................................................9
4.10 Voting Agreement......................................................................9
4.11 Restated Articles.....................................................................9
4.12 Right of First Refusal Agreement......................................................9
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.............................................9
5.1 Representations and Warranties........................................................9
5.2 Performance...........................................................................9
5.3 Qualifications........................................................................9
5.4 Investors' Rights Agreement..........................................................10
5.5 Voting Agreement.....................................................................10
5.6 Right of First Refusal Agreement.....................................................10
5.7 Minimum Subscription.................................................................10
6. MISCELLANEOUS.................................................................................10
6.1 Survival of Warranties...............................................................10
6.2 Transfer; Successors and Assigns.....................................................10
6.3 Governing Law........................................................................10
6.4 Counterparts.........................................................................10
6.5 Titles and Subtitles.................................................................10
6.6 Notices..............................................................................10
ii.
6.7 Finder's Fee.........................................................................11
6.8 Attorney's Fees......................................................................11
6.9 Amendments and Waivers...............................................................11
6.10 Severability.........................................................................11
6.11 Delays or Omissions..................................................................11
6.12 Entire Agreement.....................................................................11
6.13 Confidentiality......................................................................12
6.14 Exculpation Among Purchasers.........................................................12
6.15 Waiver of Conflicts..................................................................12
6.16 Expenses.............................................................................12
iii.
EXHIBITS INDEX
EXHIBIT A - Schedule of Purchasers
EXHIBIT B - Form of Amended and Restated Articles of Incorporation
EXHIBIT C - Schedule of Exceptions to Representations and Warranties
EXHIBIT D - Form of Amended and Restated Investors' Rights Agreement
EXHIBIT E - Form of Amended and Restated Right of First Refusal Agreement
EXHIBIT F - Form of Amended and Restated Voting Agreement
EXHIBIT G - Form of Addendum Agreement
EXHIBIT H - Form of Legal Opinion
BIRTHDAYEXPRESS.COM, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES B PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement")
is made as of the 21st day of July, 1999 by and between BIRTHDAYEXPRESS.COM,
INC., a Washington corporation (the "Company") and the investors listed on
EXHIBIT A attached hereto (each a "Purchaser" and together the "Purchasers").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 SALE AND ISSUANCE OF SERIES B PREFERRED STOCK
(a) The Company shall adopt and file with the
Secretary of State of the State of Washington on or before the Closing (as
defined below) the Amended and Restated Articles of Incorporation in the form
attached hereto as EXHIBIT B (the "Restated Articles").
(b) Subject to the terms and conditions of this
Agreement, each Purchaser agrees to purchase at the Closing and the Company
agrees to sell and issue to each Purchaser at the Closing that number of
shares of Series B Preferred Stock set forth opposite each such Purchaser's
name on EXHIBIT A attached hereto at a purchase price of $8.32 per share. The
shares of Series B Preferred Stock issued to the Purchaser pursuant to this
Agreement shall be hereinafter referred to as the "Stock."
1.2 CLOSING; DELIVERY
(a) The purchase and sale of the Stock shall take
place at the offices of Cooley Godward LLP, 5200 Carillon Point, Kirkland
Washington 98033-7356, at 10:00 a.m., on July 21, 1999 or at such other time
and place as the Company and the Purchasers mutually agree upon, orally or in
writing (which time and place are designated as the "Closing").
(b) At the Closing, the Company shall deliver to
each Purchaser a certificate representing the Stock being purchased thereby
against payment of the purchase price therefor by cancellation of
indebtedness owed by the Company, check payable to the Company or by wire
transfer to the Company's bank account.
(c) If 1,580,000 shares of Series B Preferred
Stock of the Company are not sold at the Closing, the Company shall have the
right, at any time prior to October 30, 1999, to sell that number of shares
of Series B Preferred Stock equal to the difference between 1,580,000 minus
the number of shares of Series B Preferred Stock issued and sold at the
Closing to one or more additional purchasers as determined by the Company, or
to any Purchaser hereunder who wishes to acquire additional shares of Series
B Preferred Stock at the price and on the terms set forth herein, provided
that any such additional purchaser shall be required to execute an Addendum
Agreement substantially in the form attached hereto as EXHIBIT G. Any
additional purchaser so acquiring shares of Series B Preferred Stock shall be
considered a
1.
"Purchaser" for purposes of this Agreement, and any Series B Preferred Stock
so acquired by such additional purchaser shall be considered "Stock" for
purposes of this Agreement and all other agreements contemplated hereby.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions attached hereto as EXHIBIT C, specifically identifying
the relevant subsection hereof, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized and validly existing under the laws
of the State of Washington and has all requisite corporate power and
authority to carry, on its business. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on its business or
properties.
2.2 CAPITALIZATION. The authorized capital of the Company
consists, or will consist immediately prior to the Closing, of:
(a) 3,150,005 shares of Preferred Stock, (i) of
which 1,500,005 shares have been designated Series A Preferred Stock, all of
which are issued and outstanding at Closing and (ii) 1,650,000 shares have
been designated Series B Preferred Stock, none of which are issued and
outstanding prior to Closing. The rights, privileges and preferences of the
Preferred Stock are as stated in the Restated Articles.
(b) 8,349,995 shares of Common Stock, 2,015,300
shares of which are issued and outstanding at Closing. All of the outstanding
shares of Common Stock have been duly authorized, fully paid and are
nonassessable and issued in compliance with all applicable federal and state
securities laws.
(c) The Company has reserved 1,340,000 shares of
Common Stock for issuance to officers, directors, employees and consultants
of the Company pursuant to its 1994 Incentive Stock Option Plan duly adopted
by the Board of Directors and approved by the Company's shareholders (the
"Stock Plan"). Of such reserved shares of Common Stock, no shares have been
issued pursuant to restricted stock purchase agreements, options to purchase
65,300 shares have been granted and exercised and are accounted for in
paragraph (b) immediately above, options to purchase 234,700 shares have been
granted and are currently outstanding, and there are 1,040,000 shares of
Common Stock available for issuance to officers, directors, employees and
consultants pursuant to the Stock Plan.
(d) Except (i) as provided in the Investors'
Rights Agreement and the Right of First Refusal Agreement (each as herein
defined) and (ii) for outstanding options issued pursuant to the Stock Plan,
there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal or similar rights) or
agreements, orally or in writing, for the purchase or acquisition from the
Company of any shares of its capital stock.
2.3 SUBSIDIARIES. The Company does not currently own or
control, directly or indirectly, any interest in any other corporation,
association or other business entity.
2.
2.4 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the Amended and
Restated Investors' Rights Agreement in the form attached hereto as EXHIBIT D
(the "Investors' Rights Agreement"), the Amended and Restated Right of First
Refusal Agreement in the form attached hereto as EXHIBIT E (the "Right of
First Refusal Agreement"), and the Amended and Restated Voting Agreement in
the form attached hereto as EXHIBIT F (the "Voting Agreement" and
collectively with this Agreement, the Investors' Rights Agreement and the
Right of First Refusal Agreement, the "Agreements"), the performance of all
obligations of the Company hereunder and thereunder and the authorization,
issuance and delivery of the Stock and the Common Stock issuable upon
conversion of the Stock (together, the "Securities") has been taken or will
be taken prior to the Closing, and the Agreements, when executed and
delivered by the Company, shall constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, as limited
by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, or (b) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 VALID ISSUANCE OF SECURITIES. The Stock that is being
issued to the Purchasers hereunder, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed herein, will
be duly and validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under this
Agreement, the Investors' Rights Agreement and applicable state and federal
securities laws. Based in part upon the representations of the Purchasers in
this Agreement and subject to the provisions of Section 2.6 below, the Stock
will be issued in compliance with all applicable federal and state securities
laws. The Common Stock issuable upon conversion of the Stock has been duly
and validly reserved for issuance, and upon issuance in accordance with the
terms of the Restated Articles, shall be duly and validly issued, fully paid
and nonassessable and free of restrictions on transfer other than
restrictions on transfer under this Agreement, the Investors' Rights
Agreement and applicable federal and state securities laws and will be issued
in compliance with all applicable federal and state 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 consummation of the
transactions contemplated by this Agreement, except for filings pursuant to
applicable state securities laws and Regulation D of the Securities Act of
1933, as amended (the "Securities Act").
2.7 LITIGATION. To the Company's knowledge, there is no
action, suit, proceeding or investigation pending or currently threatened
against the Company or any of its subsidiaries that questions the validity of
the Agreements or the right of the Company to enter into them, or to
consummate the transactions contemplated hereby or thereby, or that might
result, either individually or in the aggregate, in any material adverse
changes in the assets, condition or affairs of the Company, financially or
otherwise, or any change in the current equity ownership of the Company, nor
is the Company aware that there is any basis for the foregoing.
3.
Neither the Company nor any of its subsidiaries is a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company or any of its subsidiaries currently pending or
which the Company or any of its subsidiaries intends to initiate.
2.8 INTELLECTUAL PROPERTY. To its knowledge, the Company
owns or possesses sufficient legal rights to all patents, trademarks, service
marks, tradenames, copyrights, trade secrets, licenses, information and
proprietary rights and processes necessary for its business without any
conflict with, or infringement of the rights of others. The Company has not
received any communications alleging that the Company has violated or, by
conducting its business, would violate any of the patents, trademarks,
service marks, tradenames, copyrights, trade secrets or other proprietary
rights or processes of any other person or entity. The Company is not aware
that any of its employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or
subject to any judgment, decree or order of any court or administrative
agency, that would interfere with the use of such employee's best efforts to
promote the interest of the Company or that would conflict with tile
Company's business. Neither the execution or delivery of this Agreement, 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 such employee is now obligated. The Company does
not believe it is or 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.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS
(a) The Company is not in violation or default of
any provisions of its Restated Articles or Bylaws or of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which
it is bound or, to its knowledge, of any provision of federal or state
statute, rule or regulation applicable to the Company. The execution,
delivery and performance of the Agreements and the consummation of the
transactions contemplated hereby or thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage
of time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which
results in the creation of any lien, charge or encumbrance upon any assets of
the Company.
(b) To its knowledge, the Company has avoided
every condition, and has not performed any act, the occurrence of which would
result in the Company's loss of any right granted under any license,
distribution agreement or other agreement.
2.10 AGREEMENTS; ACTION. There are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, affiliates, or any affiliate thereof.
2.11 DISCLOSURE. The Company has provided each Purchaser
with all the information reasonably available to it without undue expense
that such Purchaser has requested for deciding whether to purchase the Stock
and all information that the Company believes is
4.
reasonably necessary to enable such Purchaser to make such decision. To the
best of the Company's knowledge, neither this Agreement nor any other
agreements, written statements or certificates made or delivered in
connection herewith contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein or therein
not misleading.
2.12 FINANCIAL STATEMENTS. The Company has delivered to
each Purchaser its unaudited financial statements (balance sheet and profit
and loss statement) as at, and for the twelve-month period ended May 31, 1999
(the "Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated and with each other, except
that the Financial Statements may not contain all footnotes required by
generally accepted accounting principles. The Financial Statements fairly
present the financial condition and operating results of the Company as of
the dates, and for the periods, indicated therein, subject to normal year-end
audit 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,
1999 and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted
accounting principles to be reflected in the Financial Statements, which, in
both cases, individually or in the aggregate, are not material to the
financial condition or operating results of the Company. Except as disclosed
in the Financial Statements, the Company is not a guarantor or indemnitor of
any indebtedness of any other person, firm, or corporation. The Company
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with generally accepted accounting
principles.
2.13 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 (other than in connection with purchases of the Company's stock) or
have any direct or indirect ownership interest in any firm or corporation
with which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation which competes with the Company
except that officers, directors and/or shareholders of the Company may own
stock in (but not exceeding two percent of the outstanding capital stock of)
any publicly traded company that may compete with the Company. To 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. The Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.14 RIGHTS OF REGISTRATION AND VOTING RIGHTS. Except as
contemplated in the Investors' Rights Agreement, the Company has not granted
or agreed to grant any registration rights, including piggyback rights, to
any person or entity. To the Company's knowledge, except as contemplated in
the Voting Agreement, no shareholder of the Company has entered into any
agreements with respect to the voting of capital shares of the Company.
5.
2.15 TITLE TO PROPERTY AND ASSETS. The Company owns its
property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens which arise in the ordinary
course of business and do not materially impair the Company's ownership or
use of such property or assets. With respect to the property and assets it
leases, the Company is in compliance with such leases and, to its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances.
2.16 LABOR AGREEMENTS AND ACTIONS. The Company is not bound
by or subject to (and none of its assets or properties is bound by or subject
to) any written or oral, express or implied, contract, commitment or
arrangement with any labor union, and no labor union has requested or, to the
knowledge of the Company, has sought to represent any of the employees,
representatives or agents of the Company. There is no strike or other labor
dispute involving the Company pending, or to the knowledge of the Company
threatened, which could have a material adverse effect on the assets,
properties, financial condition, operating results, or business of the
Company, nor is the Company aware of any labor organization activity
involving its employees. The employment of each officer and employee of the
Company is terminable at the will of the Company. To its knowledge, the
Company has complied in all material respects with all applicable state and
federal equal employment opportunity laws and with other laws related to
employment.
2.17 PERMITS. The Company and each of its subsidiaries has
all franchises, permits, licenses and any similar authority necessary for the
conduct of its business, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company. The Company is not in default in any material respect under any of
such franchises, permits, licenses or other similar authority.
2.18 QUALIFIED SMALL BUSINESS The Company represents and
warrants to the Purchasers that, to the best of its knowledge, the Company is
a "QUALIFIED SMALL BUSINESS" within the meaning of Section 1202(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), as of the date hereof
and the Shares should qualify as "QUALIFIED SMALL BUSINESS STOCK" as defined
in Section 1202(c) of the Code as of the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company that:
3.1 AUTHORIZATION. Such Purchaser has full power and
authority to enter into this Agreement. The Agreements, when executed and
delivered by the Purchaser, will constitute valid and legally binding
obligations of the Purchaser, enforceable in accordance with their terms,
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors' rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, or
other equitable remedies, or (b) to the extent the indemnification provisions
contained in the Investors' Rights Agreement may be limited by applicable
federal or state securities laws.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with the Purchaser in reliance upon the Purchaser's representation to
the Company, which by the
6.
Purchaser's execution of this Agreement, the Purchaser hereby confirms, that
the Securities to be acquired by the Purchaser will be acquired for
investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that
the Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, the
Purchaser further represents that the Purchaser does not presently have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities. The Purchaser has not been formed for the
specific purpose of acquiring the Securities.
3.3 DISCLOSURE OF INFORMATION. The Purchaser has had an
opportunity to discuss the Company's business, management, financial affairs
and the terms and conditions of the offering of the Stock with the Company's
management and has had an opportunity to review the Company's facilities. The
Purchaser understands that such discussions, as well as the Business Plan and
any other written information delivered by the Company to the Purchaser, were
intended to describe the aspects of the Company's business which it believes
to be material.
3.4 RESTRICTED SECURITIES. The Purchaser understands that
the Securities have not been, and will not be 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 and the accuracy of the Purchaser's
representations as expressed herein. The Purchaser understands that the
Securities are "restricted securities" under applicable U.S. federal and
state securities laws and that, pursuant to these laws, the Purchaser must
hold the Securities indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Purchaser acknowledges that the Company has no obligation to register or
qualify the Securities for resale except as set forth in the Investors'
Rights Agreement. The Purchaser further acknowledges that if an exemption
from registration or qualification is available, it may be conditioned on
various requirements including, but not limited to, the time and manner of
sale, the holding period for the Securities, and on requirements relating to
the Company which are outside of the Purchaser's control, and which the
Company is under no obligation and may not be able to satisfy.
3.5 NO PUBLIC MARKET. The Purchaser 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 Securities.
3.6 LEGENDS. The Purchaser understands that the Securities,
and any securities issued in respect of or exchange for the Securities, may
bear one or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF
7.
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT."
(b) Any legend set forth in the other Agreements.
(c) Any legend required by the Blue Sky laws of
any state to the extent such laws are applicable to the shares represented by
the certificate so legended.
3.7 ACCREDITED INVESTOR. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
3.8 FOREIGN INVESTORS. If the Purchaser is not a United
States person (as defined by Section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended), such Purchaser hereby represents that it has satisfied
itself as to the full observance of the laws of its jurisdiction in
connection with any invitation to subscribe for the Stock or any use of this
Agreement, including (a) the legal requirements within its jurisdiction for
the purchase of the Stock, (b) any foreign exchange restrictions applicable
to such purchase, (c) any governmental or other consents that may need to be
obtained, and (d) the income tax and other tax consequences, if any, that may
be relevant to the purchase, holding, redemption, sale, or transfer of the
Stock. Such Purchaser's subscription and payment for and continued beneficial
ownership of the Stock, will not violate any applicable securities or other
laws of the Purchaser's jurisdiction.
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The
obligations of each Purchaser to the Company under this Agreement are subject
to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived:
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 with all covenants, 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 the Purchasers at the Closing a certificate certifying that
the conditions specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 QUALIFICATIONS. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection with the lawful
issuance and sale of the Stock pursuant to this Agreement shall be obtained
and effective as of the Closing.
4.5 OPINION OF COUNSEL. Such Purchaser shall have received
an opinion of counsel from Cooley Godward LLP, counsel to the Company, in
substantially the form attached as EXHIBIT H hereto.
8.
4.6 SECRETARY'S CERTIFICATE. The Company shall deliver a
certificate, executed by the Secretary of the Company, certifying as to: (a)
resolutions adopted by the Company's Board of Directors and shareholders
relating to the transactions contemplated by this Agreement; (b) Restated
Articles of the Company; and (c) Bylaws of the Company.
4.7 MINIMUM SUBSCRIPTION. The Company shall have received
payment for, and the Purchasers shall have purchased, at least 841,346 shares
of Series B Preferred Stock.
4.8 BOARD OF DIRECTORS. As of the Closing, the Board shall
be comprised of Michael Jewell, Jan Jewell, Ron Weinstein, Robert Nelsen and a
vacancy for one member elected by a majority of the holders of the Company's
Common Stock.
4.9 INVESTORS' RIGHTS AGREEMENT. The Company, each
Purchaser, Michael Jewell, Jan Jewell and holders representing the requisite
number of outstanding shares of Series A Preferred Stock of the Company (the
"Requisite Holders") shall have executed and delivered the Investors' Rights
Agreement in substantially the form attached as EXHIBIT D.
4.10 VOTING AGREEMENT. The Company, each Purchaser, Michael
Jewell and Jan Jewell and the Requisite Holders shall have executed and
delivered the Voting Agreement in substantially the form attached as EXHIBIT F.
4.11 RESTATED ARTICLES. The Company shall have filed the
Restated Articles with the Secretary of State of Washington on or prior to the
Closing Date, which shall continue to be in full force and effect as of the
Closing Date.
4.12 RIGHT OF FIRST REFUSAL AGREEMENT. The Company and the
Requisite Holders shall have executed and delivered the Right of First Refusal
Agreement in substantially the form attached as EXHIBIT E.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to each Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Section 3 shall be true and correct
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. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to
the Closing shall have been performed or complied with in all material respects.
5.3 QUALIFICATIONS. All authorizations, approvals or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Stock pursuant to this Agreement shall be obtained and
effective as of the Closing.
9.
5.4 INVESTORS' RIGHTS AGREEMENT. The Company, each
Purchaser, Michael Jewell and Jan Jewell and the Requisite Holders shall have
executed and delivered the Investors' Rights Agreement in substantially the
form attached as EXHIBIT D.
5.5 VOTING AGREEMENT. The Company, each Purchaser, Michael
Jewell and Jan Jewell and the Requisite Holders shall have executed and
delivered the Voting Agreement in substantially the form attached as EXHIBIT F.
5.6 RIGHT OF FIRST REFUSAL AGREEMENT. The Company, each
Purchaser and the Requisite Holders shall have executed and delivered the Right
of First Refusal Agreement in substantially the form attached as EXHIBIT E.
5.7 MINIMUM SUBSCRIPTION. The Company shall have received
payment for, and the Purchasers shall have purchased, at least 841,346 shares
of Series B Preferred Stock.
6. MISCELLANEOUS
6.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in
this Agreement, the warranties, representations and covenants of the Company
and the Purchasers contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing.
6.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.3 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Washington, without giving effect to principles of conflicts of
law.
6.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon delivery,
when delivered personally or by overnight courier or sent by telegram or fax,
or forty-eight (48) hours after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, addressed to the party to be notified
at such party's address as set forth on the signature page or EXHIBIT A hereto,
or as subsequently modified by written notice, and (a) if to the Company, with
a copy to Christopher W. Wright,
10.
Cooley Godward LLP, 5200 Carillon Point, Kirkland, Washington 98033-7356 or (b)
if to the Purchasers, with a copy to such party's address as set forth on the
signature page or EXHIBIT A hereto.
6.7 FINDER'S FEE. Each party represents that it neither is
nor will be obligated for any finder's fee or commission in connection with
this transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such liability
or asserted liability) for which each Purchaser or any of its officers,
employees, or representatives is responsible.
6.8 ATTORNEY'S FEES. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of any
of the Agreements, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended or waived only with the written consent of the Company and the
holders of at least a majority of the Common Stock issued or issuable upon
conversion of the Stock. Any amendment or waiver effected in accordance with
this Section 6.9 shall be binding upon the Purchasers and each transferee of
the Stock (or the Common Stock issuable upon conversion thereof), each future
holder of all such securities, and the Company.
6.10 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (a) such provision shall be excluded from this Agreement, (b)
the balance of the Agreement shall be interpreted as if such provision were so
excluded and (c) the balance of the Agreement shall be enforceable in
accordance with its terms.
6.11 DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any
such right, power or remedy of such non-breaching or non-defaulting party 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
party of any breach or default under this Agreement, or any waiver on the part
of any party 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. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
6.12 ENTIRE AGREEMENT. This Agreement, and the documents
referred to herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and any and all other written or oral
agreements relating to the subject matter hereof existing between the parties
hereto are expressly canceled.
11.
6.13 CONFIDENTIALITY. Each party hereto agrees that, except
with the prior written permission of the other party, it shall at all times
keep confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock purchased hereunder. The provisions of this Section 6.13
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby.
6.14 EXCULPATION AMONG PURCHASERS. Each Purchaser
acknowledges that it is not relying upon any person, firm or corporation, other
than the Company and its officers and directors, in making its investment or
decision to invest in the Company. Each Purchaser agrees that no Purchaser nor
the respective controlling persons, officers, directors, partners, agents, or
employees of any Purchaser shall be liable to any other Purchaser for any
action heretofore or hereafter taken or omitted to be taken by any of them in
connection with the purchase of the Stock.
6.15 WAIVER OF CONFLICTS. Each party to this Agreement
acknowledges that Cooley Godward LLP, counsel for the Company, has in the past
performed and may continue to perform legal services for certain of the
Purchasers in matters unrelated to the transactions described in this
Agreement, including the representation of such Purchasers in venture capital
financings and other matters. Accordingly, each party to this Agreement hereby
(a) acknowledges that they have had an opportunity to ask for information
relevant to this disclosure; and (b) gives its informed consent to Cooley
Godward LLP's representation of certain of the Purchasers in such unrelated
matters and to Cooley Godward LLP's representation of the Company in connection
with this Agreement and the transactions contemplated hereby.
6.16 EXPENSES. Irrespective of whether the Closing is
effected, each party shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement. In the event that the Closing is effected, the Company shall
reimburse the reasonable fees and expenses of Testa, Hurwitz & Thibeault, LLP,
special counsel for the Purchasers, not to exceed $10,000.
[SIGNATURE PAGES FOLLOW]
12.
The parties have executed this Series B Preferred Stock Purchase
Agreement as of the date first written above.
COMPANY:
BIRTHDAYEXPRESS.COM, INC.
By:
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Name:
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(Print)
Title:
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Address: 11220 - 120th Avenue N.E.
Kirkland, Washington 98033
PURCHASERS:
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(Print Name of Purchaser)
By:
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Name:
--------------------------------
(Print)
Title:
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Address:
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SIGNATURE PAGE TO SERIES B STOCK PURCHASE AGREEMENT