1
EXHIBIT 10.4
-----------------------------------------------
@PLAN. INC
Series C Convertible Preferred Stock
SECURITIES PURCHASE AGREEMENT
-----------------------------------------------
2
@PLAN. INC
SECURITIES PURCHASE AGREEMENT
Ladies and Gentlemen:
@Plan. Inc, a Tennessee corporation (the "Company"), hereby agrees with
the Purchasers named in the Schedule of Purchasers attached hereto as Schedule 1
and who executed a counterpart of this agreement (individually the "Purchaser"
and collectively the "Purchasers") as set forth below:
1. Description of Securities.
The Board of Directors of the Company has authorized the issuance and
sale of an aggregate of 1,725,667 shares (the "Shares") of the Company's Series
C Convertible Preferred Stock (the "Series C Preferred Stock") to the
Purchasers, at a purchase price of $3.00 per Share for an aggregate purchase
price of $5,177,001. The rights and preferences of the Series C Preferred Stock
are set forth in the form of the Second Amended and Restated Charter of the
Company, attached hereto as Exhibit A (the "Amended Charter"), to be filed with
the Tennessee Secretary of State prior to Closing, as defined below. The Shares
will be sold in two tranches. One Million Two Hundred Thirty-Five Thousand Four
Hundred (1,235,400) of the Shares (the "Tranche 1 Shares") will be sold in the
first tranche, and Four Hundred Ninety Thousand Two Hundred Sixty-Seven
(490,267) of the Shares (the "Tranche 2 Shares") will be sold in the second
tranche.
2. Purchase and Sale of Securities.
The Company hereby agrees to sell to each Purchaser and each Purchaser
hereby severally agrees to purchase from the Company, in both cases subject to
the terms and conditions set forth herein and in reliance on the representations
and warranties of the parties contained herein, the number of Shares set forth
opposite the name of the Purchaser on Schedule 1, free and clear of all liens or
encumbrances imposed by or as a result of action by the Company.
3. Subscription and Closing.
3.1 Each Purchaser shall execute and deliver to the Company at its
address set forth in Section 10 hereof, two counterparts of this Agreement. This
Agreement shall become the binding obligation of the parties upon acceptance by
the Company, and the date of this Agreement shall be the date the Company
executes this Agreement, as indicated on the signature page hereof.
3.2 The closing with respect to the purchase and sale of the
Tranche 1 Shares (the "Tranche 1 Closing") shall take place at the offices of
Sherrard & Roe, PLC, at 424 Church Street, Suite 2000, Nashville, Tennessee, at
10:00 a.m. on December 31, 1997 (the "Tranche 1 Closing Date") or such other
date as shall be mutually determined by the Company and the Purchasers.
1
3
3.3 The closing with respect to the purchase and sale of the
Tranche 2 Shares (the "Tranche 2 Closing") shall take place at the offices of
Sherrard & Roe, PLC, at 424 Church Street, Suite 2000, Nashville, Tennessee, at
10:00 a.m. within ten (10) business days of the first to occur of (i) the
Company receiving a written demand for the Tranche 2 Closing from Purchasers
representing at least ten percent (10%) of the Tranche 2 Shares, (ii) the
Purchasers receiving a written demand for the Tranche 2 Closing from a duly
authorized officer of the Company; provided, in either case, such demand has
been received on or before December 31, 2000 (the "Tranche 2 Closing Date").
3.4 At each Closing, the Company will deliver to each Purchaser
certificates evidencing the Shares to be purchased by such Purchaser, registered
in such Purchaser's or its nominee's name, upon payment of the purchase price
therefor, by a cashier's check, or by wire transfer of immediately available
funds to State Street Bank and Trust Co., Boston, MA 02110, ABA Routing No.
0110-0002-8, for credit to EB Sales Group Account, DDA# 9904-130-3, Fund
Name/Class 695, Account No. 1007577515, Name on Account: @Plan, in the aggregate
amount for the respective Closing set forth opposite such Purchaser's name on
Schedule 1 to this Agreement.
4. Representations and Warranties of the Company.
Recognizing that the Purchasers will be relying on the information and
on the representations and warranties set forth herein, the Company hereby
represents and warrants to the Purchasers that:
4.1 Organization, Standing, Capitalization, Etc.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Tennessee. The Company has
all requisite corporate power and authority and holds all licenses, permits and
other required authorizations from governmental authorities necessary to own its
properties and assets and to conduct its business as it is now being conducted
and will obtain as expeditiously as possible all required authorizations of
governmental authorities necessitated by the operation of the Company in the
future. The Company is qualified to do business as a foreign corporation in
jurisdictions set forth in Schedule 4.1(a) and is not currently required to be
qualified or licensed to do business as a foreign corporation in any other
jurisdiction.
(b) The copies of the Amended and Restated Charter (the "Charter")
and Bylaws, as amended, of the Company that have been included herewith
collectively as Exhibit B are true and correct copies of such documents as
amended to date. There will not be any changes or amendments to the Charter,
except the Amended Charter in the form of Exhibit A, or Bylaws between the date
hereof and the Closing Date.
(c) At the date hereof the Company's authorized capital stock
consists of 20,000,000 shares of common stock, no par value per share ("Common
Stock"), of which 500,000 shares are issued and outstanding and held of record
by the persons and in the amounts set forth in Schedule 4.1(c), and 10,000,000
shares of undesignated preferred stock, with rights and preferences to be fixed
by the Board of Directors in accordance with the laws of the State of Tennessee
and the Charter, of which (a) 500,000 shares have been designated Series A
Convertible Preferred Stock ("Series A Preferred Stock"), of which 448,000 are
outstanding, and (b) 2,250,000 shares have been
2
4
designated Series B Convertible Preferred Stock (the "Series B Preferred
Stock"), of which 2,016,000 are outstanding, such outstanding shares of Series A
and Series B Preferred Stock are held of record by the persons and in the
amounts set forth in Schedule 4.1(c). As of the Closing Date, the Company's
authorized capital stock will consist of 20,000,000 shares of Common Stock and
10,000,000 shares of preferred stock, of which (i) 500,000 shares will be
designated as Series A Preferred Stock, of which 448,000 shares will be
outstanding, (ii) 2,250,000 shares will be designated as Series B Preferred
Stock, of which 2,016,000 shares will be outstanding, and (iii) 1,725,667 shares
will be designated as Series C Preferred Stock, none of which will be
outstanding. All shares of Common Stock and all shares of preferred stock
outstanding are duly and validly authorized and issued, fully paid and
nonassessable, and issued in compliance with all applicable state and federal
laws concerning the issuance of securities. No shareholder of the Company has
any statutory or other preemptive rights with respect to the issuance of the
Shares which have not been validly exercised in conjunction herewith or waived
in writing.
(d) The Shares being sold and purchased hereunder have been duly and
validly authorized, will be validly issued, fully paid and nonassessable after
issuance and sale to the Purchasers pursuant to this Agreement and will be free
of any liens or encumbrances created by or as the result of action by the
Company. The shares of Common Stock issuable upon conversion of the Series A,
Series B, and Series C Preferred Stock have been duly and validly authorized
and, upon conversion of the Preferred Stock, will be validly issued, fully paid,
nonassessable and free of any liens or encumbrances created by or as a result of
action by the Company. No further approval or authorization of the shareholders
of the Company is required for the issuance and sale of the Shares as
contemplated herein or the issuance of the shares of Common Stock upon the
conversion of the Series A, Series B, and Series C Preferred Stock.
(e) The Company has not granted or issued, or agreed to grant or
issue, any option, warrant or other rights, commitments or arrangements to
issue, purchase or acquire any shares of its capital stock or any securities
giving any right to acquire from the Company or sell to the Company, any shares
of its capital stock, except for (i) options for the purchase of an aggregate of
837,000 shares of the Company's Common Stock pursuant to the Company's Second
Amended and Restated 1996 Stock Option Plan (the "1996 Option Plan"); (ii) up to
263,000 additional shares of Common Stock reserved for issuance pursuant to the
1996 Option Plan; (iii) 448,000 shares of Common Stock reserved for issuance
upon conversion of the Series A Preferred Stock; (iv) 2,016,000 shares of Common
Stock reserved for issuance upon conversion of the Series B Preferred Stock; (v)
1,725,667 shares of the Series C Preferred Stock which may be sold to the
Purchasers pursuant to this Agreement; and (vi) 1,725,667 shares of Common Stock
reserved for issuance upon conversion of the Shares.
(f) The Company does not own or control any subsidiaries. The
Company does not hold, directly or indirectly, 5% or more of the outstanding
shares of any class or capital stock of any other corporation nor does it hold,
directly or indirectly, a 5% or more equity interest in any partnership, limited
liability company, joint venture, or other entity.
3
5
4.2 Authorization, Validity and Enforceability of this Agreement.
The Company has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. The execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized and approved
by all necessary corporate action. The execution and delivery of this Agreement
and the issuance of the Shares hereunder will not violate any provision of law
and will not conflict with, or result in a breach of any of the terms of, or
constitute a default under, the Company's Charter, its Bylaws, or any agreement,
instrument, or other restriction to which the Company is a party or by which it
is bound. This Agreement, when executed, will constitute the legal, valid, and
binding obligation of the Company, enforceable against it in accordance with its
terms.
4.3 Information Available Respecting the Company.
The Company has provided each Purchaser with the opportunity to (a) ask
questions of and receive answers from the Company and its representatives
concerning the Company and the terms and conditions of the sale of the Shares,
and (b) obtain any additional information that the Company possesses or can
reasonably obtain that is necessary to verify the accuracy of the information
furnished by the Company in connection herewith.
4.4 Governmental Consents, Etc.
No consent, approval, or authorization of, or declaration, registration
or filing with, any person, entity, or governmental authority on the part of the
Company is required for the valid execution, delivery, and performance of this
Agreement or the valid consummation of the transactions contemplated hereby,
except as may be required under the Securities Act of 1933, as amended (the
"Securities Act"), or under applicable state "Blue Sky" laws.
4.5 Securities Laws.
Subject to the Purchaser's representations set forth in Section 6
hereof, the offer, sale and issuance of the Shares, as provided in this
Agreement, are and are intended to be exempt from: (a) the registration
requirements of the Securities Act pursuant to one or more of Sections 3(b),
4(2) and 4(6) thereof and Regulation D promulgated thereunder; and (b) the
registration or qualification requirements of certain state Blue Sky laws.
Neither the Company nor anyone acting on its behalf has directly or indirectly
offered the Shares or any part thereof for sale to, or solicited any offer to
buy the Shares from, any person other than the Purchasers, or other persons
believed by the Company to meet the qualifications set forth in Section 6 below,
nor will the Company or anyone authorized to act on its behalf take any action
hereafter that would cause the loss of such exemption.
4.6 Financial Statements.
The audited financial statements for the Company for the year ended
December 31, 1996 and the unaudited financial statements for the ten (10) months
ended October 31, 1997 (the "Financial Statements"), copies of which are
included herewith as Exhibit C, are accurate, true, and complete in
4
6
all material respects and present fairly in all material respects the financial
position of the Company and results of operations as, at, and for the dates and
periods indicated, and have been prepared in conformity with generally-accepted
accounting principles applied on a consistent basis (except for the absence of
footnotes in the statements for the 10 months ended October 31, 1997).
4.7 No Defaults in Agreements.
Except as set forth on Schedule 4.7 hereto, the Company is not in
violation of its Charter or Bylaws, or in default in the performance or
observance of any obligation, agreement, covenant, or condition contained in any
contract, indenture, mortgage, loan agreement, lease, note, or other instrument
to which it is a party or by which it may be bound, which default would be
reasonably likely to result in a Material Adverse Effect (as hereinafter defined
in Section 4.10).
4.8 Material Transactions.
Except as disclosed in Schedule 4.8 hereto, as reflected on the
Financial Statements, or as contemplated hereby, the Company has not, to the
extent material: (a) borrowed any funds or incurred or become subject to any
obligations or liabilities (absolute or contingent); (b) discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute or
contingent); (c) declared or paid any dividends or distributions to its
shareholders of any assets of any kind whatsoever; (d) entered into any
agreements or arrangements granting any preferential rights to purchase any of
the assets, properties, or rights of the Company (including management and
control thereof), or requiring the consent of any party to a transfer or
assignment of such assets, properties or rights (or change in the management or
control thereof), or providing for the merger or consolidation of the Company
into or with another corporation; (e) suffered any losses (including but not
limited to loss of customers, physical plant, property, equipment, personnel
considered by management to be a "key" employee, or the termination of any
material contracts), waived any rights or canceled any debts or claims; (f)
changed any accounting method or practice, including, without limitation, any
change in depreciation or amortization policies or rates; (g) made any loan to
any person or entity, including but not limited to any officer, director, or
employee of the Company; or (h) entered into an agreement to do any of the
things described in clauses (a) through (g) above.
4.9 Material Agreements.
Except as disclosed in Schedule 4.9 hereto, the Company is not a party
to any written or oral (a) contract for employment that may not be terminated by
the Company on not more than thirty (30) days notice without liability to the
Company, (b) pension or profit sharing plan, retirement plan, bonus plan, stock
purchase or stock option plan, or any similar plan, formal or informal, whether
covering one or more employees or former employees, (c) contract involving
payment by or to the Company of more than $40,000, or the performance of which
may extend more than ninety (90) days from the date hereof, (d) contract or
other agreement or understanding relating to the registration of any securities
of the Company, or (e) other material contract, agreement or understanding,
whether formal or informal. All contracts, agreements, and understandings
disclosed in Schedule 4.9 are in full force and effect, and neither the Company
nor, to the Company's knowledge, any other party thereto has received any notice
of default, nor is in default, nor does any condition now exist which, with
notice or the lapse of time or both, would render the Company or, to
5
7
the Company's knowledge, any other party in default under any contract,
understanding, or agreement in which the Company is a party, which default would
be reasonably likely to have a Material Adverse Effect. There are no disputes or
proceedings relating to any such contract, understanding, or agreement, and the
Company has not received any notice, written or oral, indicating that any party
to any such contract, understanding, or agreement intends to cancel or terminate
such contract, understanding or agreement or to exercise or not exercise any
options or rights under such contract, understanding, or agreement.
4.10 No Adverse Changes.
Since October 31, 1997, there have been no changes in the condition or
prospects (financial or otherwise except as may relate to economic or business
conditions generally) of the Company that, in the aggregate, would materially
adversely affect the organization, business, properties, operations, financial
condition, or prospects of the Company (a "Material Adverse Effect").
4.11 No Litigation.
There is no action or proceeding at law or in equity pending or, to the
knowledge of the Company, threatened against the Company or any of its property
before any court or governmental commission, and there is no such proceeding
pending or, to the knowledge of the Company, threatened, in arbitration or
before any administrative agency, and, to the knowledge of the Company, there
are no facts, events or occurrences by reason of which any such action or
proceeding may be brought. There is no judgment, consent, decree, injunction,
rule, or other judicial or administrative order outstanding against the Company.
4.12 Disclosure.
No representation or warranty by the Company contained in this
Agreement or any schedule or exhibit hereto, or any certificate or other
instrument referred to herein or otherwise furnished or to be furnished to the
Purchasers by the Company with respect to the transactions contemplated hereby
contains any untrue statement of a material fact, or omits or will omit to state
any material fact that is necessary in order to make the statements contained
herein or therein, not misleading. The Company is not aware of any fact relating
to the business, affairs, operations, condition or prospects of the Company that
materially adversely affects the same and that has not been set forth in this
agreement or otherwise disclosed in writing to the Purchasers by the Company in
connection with this transaction.
4.13 Certain Transactions.
Except as disclosed in Schedule 4.13 hereto, 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; none of said
officers or directors or any members of their immediate families are indebted to
the Company or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship, or any firm or corporation that competes with the
Company, except that officers and/or directors of the Company may own no more
than 5% of the outstanding stock in publicly traded companies that may
6
8
compete with the Company. No officer or director or any member of their
immediate families is interested, directly or indirectly, 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.
4.14 Absence of Liabilities; Taxes.
Except as disclosed in Schedule 4.14 hereto, the Company has no
material liabilities that are not reflected on the Financial Statements; since
the date of the Financial Statements, except as disclosed in the Schedules, the
Company has not incurred or otherwise become subject to any such liabilities or
obligations except in the ordinary course of business and except expenses
incurred directly in connection with this offering. The amounts shown on the
Financial Statements as provision for taxes are sufficient in all respects for
payment of all accrued and unpaid federal, state, county, and local taxes for
the period then ended and for all prior periods. The Company has filed all
federal, state, county and local tax returns that are required to be filed by
it, and such returns are true and correct and all taxes shown thereon to be due
have been timely paid with exceptions not material to the Company. The Company
has not been notified by the Internal Revenue Service that its federal income
tax returns have or are being examined, and no controversy with respect to taxes
of any type is pending or, to the knowledge of the Company, threatened.
4.15 Property and Assets.
Except as set forth in Schedule 4.15, Schedule 4.20 or on the Financial
Statements, the Company has good and marketable title to all of its real and
personal property, free and clear of any and all claims, liens, encumbrances,
equities, and restrictions of every kind and nature whatsoever. The Company owns
no other significant personal property (i.e., having a value in the case of any
single item of $25,000.00 or more), except as set forth on Schedule 4.15.
4.16 Leases.
Except as set forth in Schedule 4.16 hereto, the Company is not a party
to any lease under which the aggregate annual rental payments exceed $1,000.00.
As of the date hereof, all leases are in full force and effect without any
default or material breach thereof by the Company or, to the knowledge of the
Company, any other party thereto which default or breach would be reasonably
likely to have a Material Adverse Effect. The Company enjoys peaceful and
undisturbed possession under all leases under which it is operating as lessee
and all such leases are valid and subsisting and in full force and effect. No
consent of any lessor is required under any such lease in order to keep such
lease in full force and effect after the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
4.17 Regulatory Compliance.
The Company has complied in all material respects with all laws,
regulations, and orders applicable to its business, and the present uses by the
Company of its properties and conduct by the Company of its business do not in
any material respect violate any laws, regulations, or orders. The Company has
obtained or will obtain as expeditiously as possible all certificates and other
regulatory approvals necessary for the operation of its business.
7
9
4.18 Registration Rights.
Except as set forth on Schedule 4.18, the Company is not under any
obligation to register under the Securities Act any of the Company's presently
outstanding securities or any of its securities that subsequently may be issued.
4.19 Insurance.
The Company will following the Closing maintain, with respect to its
properties and business, and with financially sound and reputable insurers,
life, fire, liability and other forms of insurance, as the Board of Directors of
the Company reasonably deems to be sufficient to provide adequate protection to
the Company and its business from the risks associated with its business and as
is customary for companies similarly situated in reasonably comparable
industries.
4.20 Intellectual Property.
(a) The Company owns or possesses, or will acquire prior to use,
adequate licenses or other rights to use all patents, trademarks, service marks,
trade names or other intangible property rights and know-how (hereinafter
referred to as "Intellectual Property") necessary to entitle the Company to
conduct the business now or subsequently operated by it. Schedule 4.20 sets
forth all licenses and other arrangements (other than standard licenses for the
use of typical "off-the-shelf" commercial software applications) pursuant to
which the Company has a right to use any Intellectual Property not owned by the
Company. Except as set forth in Schedule 4.20, the Company is the lawful owner,
free and clear, to the knowledge of the Company, of any claim, right, trademark,
patent or copyright protection of any third party, of all Intellectual Property
used or planned to be used by the Company in the conduct of its business.
(b) The Company has not received any notice of infringement or
conflict with (and knows of no infringement with or conflict with) asserted
rights of others with respect to any Intellectual Property which could result in
a material adverse effect upon the Company. To the knowledge of the Company, no
products or processes of the Company infringe or conflict with any trade secret
or patent or any patent application.
(c) The Company has taken adequate steps, and has in place and
enforces appropriate policies and procedures, to protect its proprietary
information. The Company has not disclosed any of its proprietary information to
third parties without appropriate restrictions on use or disclosure thereof. As
used herein, "proprietary information" means any information that the Company
considers confidential or secret material information of the Company, including
without limitation, whether verbal, written or embodied in any other medium,
confidential technical data and information of the Company (including but not
limited to systems, practices, plans, processes, procedures, drawings,
databases, computer hardware, firmware, and software whether in the form of
object codes, source codes, or otherwise, inventions, improvements,
manufacturing techniques or systems, formulas, development or experimental work,
work in process, research data used by the Company); all passwords, entry codes,
access sequences, and the like; and all other items of trade secret, trade
knowledge, and trade know-how of Company.
8
10
(d) The Company has taken adequate steps, and has in place and
enforces appropriate policies and procedures, to protect any confidential
information disclosed to or obtained by the Company through confidential
relationships with any third parties.
4.21 Sensitive Payments.
Neither the Company nor, to the knowledge of the Company, any of its
officers or directors nor anyone acting on behalf of any of them has made or
received any "sensitive" payments, and no such person has or will maintain any
unrecorded cash or noncash assets out of which any "sensitive" payments might be
made. "Sensitive" payments means, whether legal or illegal, (a) payments to or
from government officials or employees, (b) commercial bribes or kickbacks, (c)
amounts paid with an understanding that rebates or refunds will be made in
contravention of the laws of any jurisdiction, either directly or through a
third party, and (d) payments or commitments (whether made in the form of
commission, payments of fees for goods or services received, or otherwise) made
with the understanding or under circumstances that would indicate that all or
part thereof is to be paid by the recipient to government officials or employees
or as a commercial bribe, influence payment or kick-back, provided, however,
that "sensitive" payments shall not include contributions to political campaigns
or organizations that are permissible under federal and state election laws.
4.22 Books and Records.
The books and records of the Company, including but not limited to, its
stock and minute books, are complete and correct and have been maintained in
accordance with good business practices and contain a true and complete record
of all meetings or proceedings of its Board of Directors and shareholders. No
action has been taken that requires the approval of the Board of Directors or
the shareholders of the Company that is not reflected accurately in the minute
book.
4.23 Environmental Matters.
Neither the real property or the buildings, improvements, fixtures or
equipment, forming a part of the real property owned or operated by the Company
(the "Facilities"), nor the Company is, to the Company's knowledge, in violation
of or the subject of any investigation or inquiry or enforcement action by any
governmental authority for the recovery or environmental response costs or for
compliance with remedial obligations under any applicable law pertaining to
"Hazardous Substances" as the term is defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1990, as amended, as codified at 42
U.S.C. ss. 9601 et seq. ("CERCLA"), the Hazardous Materials Transportation Act,
49 U.S.C. ss. 1801 et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. ss. 6901 et seq.; and any applicable state or local governmental
statutes, ordinances or regulations (referred to hereafter collectively as
"Environmental Laws"). As of the date of this Agreement, the Company has
obtained and is in compliance in all material respects with all environmental
permits required by the applicable Environmental Laws to construct, occupy,
operate and use the Facilities; the Company has taken reasonable steps to
determine that no Hazardous Substances have been disposed of or otherwise
released on or from the Facilities during the period of the Company's ownership
or operation thereof; and the uses that the Company has
9
11
made, makes, or intends to make of the Facilities has not and will not result in
the generation, storage, disposal or release of any Hazardous Substances in
violation of the Environmental Laws.
4.24 Indebtedness.
As of the date hereof, the Company is not indebted, directly or
indirectly, to any person or entity except as indicated on the Financial
Statements (other than as to accrued but unpaid interest on indebtedness
indicated on the Financial Statements from the date of the Financial Statements
through the date hereof) or as set forth on Schedule 4.24 or indebtedness
incurred in the ordinary course of business since the date of the Financial
Statements. Schedule 4.24 sets forth all persons to whom the Company is indebted
for moneys borrowed, reflecting the principal amount of such indebtedness and
interest accrued to the date hereof. All indebtedness reflected on Schedule 4.24
or on the Financial Statements was incurred pursuant to loans or advances to the
Company by such persons of cash equal to the original principal amounts of such
indebtedness.
4.25 ERISA Plan.
Schedule 4.25 sets forth each pension plan (a "Plan") that the Company
has in effect which is subject to the requirements of Title IV of the Employee
Retirement Income Security Act of 1974, Pub. L. No. 93-406, September 2, 1974,
88 stat. 829, 29 USCA ss.1001 et seq. (1975), as amended from time to time
("ERISA"), and with respect to each Plan, the Company warrants that no fact that
might constitute grounds for the involuntary termination of the Plan, or for the
appointment by the appropriate United States District Court of a trustee to
administer the Plan, exists at the time of execution of this Agreement.
4.26 Management.
During the past ten years, neither the Chief Executive Officer or Vice
President of Finance of the Company have been (i) arrested or convicted of any
material crime, including any felony or crime of moral turpitude (whether
material or not), (ii) indicted, (iii) adjudged bankrupt. During the past ten
years, neither has served as an officer or director of a bankrupt entity and
none has been restricted in any way from bidding on contracts with the
government of the United States.
4.27 Labor Relations.
There are no controversies pending or, to the knowledge of Company,
threatened between Company and any of its employees, or any labor union or other
organization representing or claiming to represent their interests. To the
knowledge of Company, no union organizing or election activities involving any
non-union employees of Company are in progress or threatened.
4.28 Survival of Representations and Warranties.
The representations and warranties of the Company contained herein
shall survive the execution and delivery of this Agreement and the purchase of
the Shares for the period of the applicable statute of limitation.
10
12
5. Covenants of the Company.
The Company covenants and agrees with the Purchasers as follows:
5.1 Use of Proceeds.
The Company will apply the net cash proceeds from the sale of the
Shares received by it to implement its business plan as modified from time to
time by the Board of Directors.
5.2 ERISA Plan.
At all such times that the Company has in effect, or hereafter
institutes a Plan that is subject to the requirements of ERISA, the Company
hereby covenants that (i) throughout the existence of the Plan, the Company's
contributions under the Plan will meet the minimum funding standards required by
ERISA and the Company will not institute a distress termination of the Plan, and
(ii) the Company will send to each Purchaser a copy of any notice of a
reportable event (as defined in ERISA) required PBGC Reg. Section P2615.1 et
seq., 29 CFR Part P 2615.1 et seq., to be filed with the Pension Benefit
Guaranty Corporation, at the time that such notice is so filed.
5.3 Survival of Covenants of the Company.
The obligations of the Company set forth in Sections 5.1 and 5.2 above
are continuing covenants of the Company and shall survive until terminated as
provided in such provisions.
6. Representations, Warranties and Covenants of the Purchasers.
Recognizing that the Company will be relying on the information and on
the representations and warranties set forth herein, each Purchaser hereby
severally represents and warrants to the Company as follows:
6.1 Accredited Investor.
The Purchaser currently is, and at each Closing Date will be:
(a) An accredited investor who meets the requirements of at least
one of the categories set forth on Exhibit D attached hereto and incorporated
herein by reference as indicated by the Purchaser's initials thereon;
(b) A person, either alone or with his purchaser representative,
who has such knowledge and experience in financial and business matters that he
or it, is capable of evaluating the merits and risks of the purchase of the
Shares, who is able to bear the economic risk of the investment, and who can
afford the complete loss of the investment; and
(c) If an individual residing at the address specified on the
signature page hereof, or if a corporation, partnership or other form of entity,
has its principal office at the address set forth on the signature page hereof.
11
13
6.2 Purchase for Investment.
The Purchaser represents that it is purchasing the Shares for its own
account for investment and not with a view to the resale or distribution in
whole or in part thereof in violation of the Securities Act or applicable state
law. The Purchaser represents that it will not transfer the Shares without
registration under the federal and any applicable state securities laws unless
it submits an opinion of counsel acceptable to the Company to the effect that
the intended transfer complies with one or more exemptions under such laws. The
Purchaser, if it is an entity, represents that it was not formed for the purpose
of acquiring an interest in the Company. Nothing herein contained, however,
shall prevent a Purchaser from requesting the Company to register the Shares so
issued in the name of the Purchaser's nominee, and if a Purchaser submits such a
request, the Company will not withhold its consent unreasonably.
6.3 No General Solicitation.
The Purchaser acknowledges that it has not received nor is it aware of
any general solicitation or general advertising of the Shares, including without
limitation, (a) any communication published in any newspaper or magazine or
broadcast over television or radio, or (b) any seminar or meeting to which
people were invited by means of a general solicitation or general advertising.
6.4 Authority.
If the Purchaser is an individual, he is over the age of majority in
the applicable jurisdiction. If the Purchaser is a corporation, partnership, or
other form of entity, such Purchaser is properly organized and existing under
the laws of its respective jurisdiction, with the requisite power, and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby, and has taken all necessary corporate or organizational action execute
this agreement, the Shareholders Agreement and to acquire and pay for the
Shares, and this Agreement, when executed and delivered, will constitute a valid
and legally binding obligation of such Purchaser, enforceable against it in
accordance with its terms.
6.5 Access to Information.
The Purchaser has had access during the course of the transaction and
prior to its purchase of the Shares to such information relating to the Company
as it has desired, and has been given the opportunity to (a) ask questions of,
and receive answers from, the Company and its representatives concerning the
Company and the terms and conditions of the sale of the Shares, and (b) obtain
any additional information that the Company possesses or can reasonably obtain
that is necessary to verify the accuracy of the information furnished by the
Company in connection herewith.
6.6 Restrictions on Transfer of the Shares.
The Purchaser understands that the Shares have not been registered
under the Securities Act or any applicable state securities law, the Shares have
the status of "Restricted Securities" as defined under Commission Rule 144(a)(3)
and may be required to be held indefinitely unless they are
12
14
subsequently registered under the Securities Act or an exemption from such
registration is available and that the Company is under no obligation to
register the Shares other than as set forth in the Shareholders Agreement. The
Purchaser also understands that Rule 144 (or any successor rule) promulgated
under the Act, which provides for certain limited routine sales of unregistered
securities, is not available with respect to the Shares, that except as set
forth in Section 1.2 of the Shareholders Agreement, the Company has not
covenanted to satisfy the conditions for resale pursuant to Rule 144 (or any
successor rule), and that compliance with Regulation A (or any successor rule)
promulgated under the Act or some other disclosure exemption may be required for
a sale or other disposition of Shares that are not registered under the Act. The
Purchaser further acknowledges that presently there is no market for the
purchase and sale of the Shares.
6.7 Legends on Certificates.
The Purchaser understands that the certificates representing the Shares
(or the Common Stock issued upon conversion of the Shares) shall bear the
following or similar legend and that appropriate stop transfer instructions will
be entered in the stock records of the Company:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY APPLICABLE STATE SECURITIES LAW. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSITION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR (ii) AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
DISPOSITION WITHOUT REGISTRATION IS IN COMPLIANCE WITH THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAW.
6.8 Survival.
The representations, warranties and covenants of the Purchasers
contained herein shall survive the execution and delivery of this Agreement and
the purchase of the Shares.
7. Conditions to the Closing.
7.1 Conditions of the Purchasers' Obligations.
The obligations of the Purchasers to purchase and pay for the Shares to
be delivered at the Tranche 1 Closing are subject to the satisfaction of the
following conditions:
(a) Representations and Warranties Correct. The representations
and warranties of the Company set forth in Article 4 hereof shall be true and
correct as of the date hereof and as of the Tranche 1 Closing Date, and the
Company shall have complied with all agreements and satisfied all conditions on
its part to be performed or satisfied prior to the Tranche 1 Closing Date.
13
15
(b) No Adverse Change. Except as disclosed in this Agreement, and
in any schedule hereto, there shall have been no material adverse change in the
business or financial condition or results of operations or prospects of the
Company since October 31, 1997, and no material litigation or other proceeding
shall have been commenced by any person, including, without limitation, any
governmental agency, relating to any of the proposed transactions, or against
the Company or any of its properties that is material to its business or
operations, actual or proposed.
(c) Compliance Certificate. The Company shall have delivered a
certificate executed by the Chairman or President, dated the Closing Date,
certifying that the conditions specified in Subsections 7.1(a) and 7.1(b), have
been satisfied and as to such other matters reasonably requested by the
Purchasers.
(d) Amended Charter. The Company shall have filed the Amended
Charter with the Tennessee Secretary of State.
(e) Shareholders' Agreement. The Company, Purchasers, Mark K.
Wright, Gary R. Haynes, Roger J. Thomson, Janice Wendell, Susan Russo and Karl
Spangenberg shall have executed the Amended and Restated Shareholders' Agreement
in the form of Exhibit E hereto.
(f) Legal Opinion. The Purchasers, at the Closing, shall have
received the opinion of Bass, Berry & Sims, PLC, issued pursuant to the Legal
Opinion Accord of the ABA Section of Business Law (1991), counsel to the
Company, in form and substance satisfactory to Sherrard & Roe, PLC, special
counsel to the Purchasers, dated the Closing Date, to the effect that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Tennessee, and is qualified to do business in every jurisdiction
in which the business presently conducted by it makes such
qualification necessary.
(ii) The authorized capital stock of the Company consists of
20,000,000 shares of Common Stock, no par value, of which 500,000
shares are currently outstanding, and 10,000,000 shares of
undesignated preferred stock, with rights and preferences to be
fixed by the Board of Directors as provided by law and the
Amended Charter, of which (i) 500,000 shares have been designated
Series A Convertible Preferred Stock, of which 448,000 shares are
outstanding; (ii) 2,250,000 shares have been designated Series B
Convertible Preferred Stock, of which 2,016,000 shares are
outstanding; and (iii) 1,725,667 shares have been designated
Series C Convertible Preferred Stock, of which 1,235,400 shares
are outstanding. All shares of Common Stock, Series A Preferred
Stock and Series B Preferred Stock outstanding were duly and
validly authorized and issued, fully paid and nonassessable, and
issued in compliance with all applicable state and federal laws
concerning the issuance of securities. The Series A Preferred
Stock, Series B Preferred Stock, and Series C Preferred Stock
have the rights and preferences set forth in the Amended Charter.
Except for (i) 1,100,000 shares of common stock reserved for
issuance pursuant to the 1996 Option Plan, (ii) 448,000 shares of
Common Stock reserved for issuance upon conversion of the Series
A Preferred
14
16
Stock, (iii) 2,016,000 shares of Common Stock reserved for
issuance upon conversion of the Series B Preferred Stock, and
(iv) 1,725,667 shares of Common Stock reserved for issuance upon
conversion of the Shares, to such counsel's knowledge there are
no outstanding rights or agreements for the purchase or
acquisition from the Company of any shares of its capital stock
and no stockholder of the Company has any statutory or, to the
knowledge of such counsel, other preemptive rights with respect
to the issuance of the Shares, which have not been validly
exercised in conjunction herewith or waived in writing.
(iii) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby or
thereby will result in violation of, or be in conflict with, the
Charter or Bylaws of the Company, and will not (i) constitute a
default under any agreement, lease, mortgage, note, bond,
indenture, license, or other document or agreement known to such
counsel to which the Company is a party or by which it is bound
or (ii) violate any order, rule, regulation, writ, injunction or
decree of any court, administrative agency, or governmental body
known to such counsel to which the Company is subject or by which
it is bound.
(iv) Each of this Agreement and the Amended and Restated
Shareholders' Agreement has been duly authorized, executed and
delivered by or on behalf of the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(v) The issuance and delivery at the Closing of the Shares
that are the subject of this Agreement constitute an exempt
transaction under the Securities Act or regulations thereunder as
now in effect and do not require registration under the
Securities Act.
(vi) The issuance and sale at the Closing of the Shares that
are the subject of this Agreement do not require registration,
qualification, or any other action under the securities or "Blue
Sky" laws of any state, or such registration or other action as
is required has been duly effected or taken, or will be effected
or taken in a timely manner so as to comply with such securities
or "Blue Sky" laws.
(vii) The Shares to be issued to the Purchasers by the
Company pursuant to this Agreement have been duly authorized and,
upon payment by the Purchasers of the purchase price for such
Shares, will be validly issued and outstanding, fully paid and
nonassessable. The Common Stock issuable upon conversion of the
Shares has been duly and validly authorized and reserved for
issuance upon conversion of the Shares, the issuance of those
shares has been duly and validly authorized and those shares,
when delivered upon the conversion of the Shares, will be duly
and validly authorized, validly issued and outstanding, fully
paid and nonassessable.
15
17
(viii) Except with regard to the matter of federal and state
securities law compliance, which matter is addressed in
paragraphs (v) and (vi) above, no consent, approval, authority,
or other order of any governmental agency or to the knowledge of
such counsel any other person or organization is legally required
for the issuance and sale of the Shares pursuant to this
Agreement.
(ix) There is no litigation or proceeding pending, or, to the
knowledge of such counsel, threatened against the Company.
In rendering such opinion, such counsel may (i) rely as to factual matters on
certificates of executive officers of the Company, governmental officials, and
information furnished by the Purchasers, (ii) make assumptions (which
assumptions shall be specifically set forth) as to matters not reasonably
independently verifiable by such counsel, and (iii) rely on opinions of other
counsel to the extent it reasonably deems appropriate, provided that reliance
upon all such documents, certificates, and opinions shall be specified in such
opinion.
(g) Size of Sale. The Company shall have executed counterparts of
this Agreement providing for (a) the purchase and sale of the Tranche 1 Shares,
an aggregate of One Million Two Hundred Thirty-Five Thousand Four Hundred
(1,235,400) shares of the Series C Preferred Stock and (b) subject to the
satisfaction of the conditions set forth in Section 7.3, the purchase and sale
of the Tranche 2 Shares, an aggregate of Four Hundred Ninety Thousand Two
Hundred Sixty-Seven (490,267) shares of the Series C Preferred Stock.
7.2 Conditions of the Company's Obligations.
The Company's obligation to sell and deliver the Shares to be purchased
by the Purchasers at the respective Closing is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties Correct. The representations
and warranties of the Purchasers set forth in Section 6 hereof shall be true and
correct on and as of the date hereof and as of each Closing Date, and the
Purchasers shall have performed and complied with all agreements and conditions
on their part to be performed or complied with prior to the Closing.
(b) This Agreement. The Purchasers shall have entered into this
Agreement and shall have performed and complied with all agreements and
conditions contained herein required to be performed or complied with by the
Purchasers, including without limitation executing the Amended and Restated
Shareholders' Agreement and tendering to the Company (i) on the Tranche 1
Closing Date, the aggregate purchase price of $3,634,200 for the Tranche 1
Shares and (ii) on the Tranche 2 Closing Date, the aggregate purchase price of
$1,422,801 for the Tranche 2 Shares.
7.3 Conditions to Tranche 2 Closing. The obligations of
Purchasers to purchase and pay for the Tranche 2 Shares to be delivered at the
Tranche 2 Closing are subject to the first to occur of (i) the Company receiving
a written demand for the Tranche 2 Closing from Purchasers representing at least
ten percent (10%) of the Tranche 2 Shares, (ii) the Purchasers receiving a
16
18
written demand for the Tranche 2 Closing from a duly authorized officer of the
Company; provided, in either case, such demand is received on or before December
31, 2000.
8. Expenses.
Regardless of whether the transactions contemplated herein shall be
consummated, the Company will: (a) pay all the costs and expenses of the
reproduction of this Agreement, of all agreements referred to herein, and of the
certificates for the Shares to be purchased by the Purchaser hereunder; (b) pay
the reasonable fees and out-of-pocket expenses of Sherrard & Roe, PLC,
Nashville, Tennessee, as special counsel for the Purchasers, and of Taft,
Stettinius & Hollister, special counsel for Blue Chip Capital Fund II Limited
Partnership and Miami Valley Venture Fund, L.P., including the reasonable fees
and expenses incurred in connection with any subsequent proposed modification of
this Agreement or consent hereunder; (c) pay all original issue taxes (including
any interest and penalties in respect thereof); (d) pay all reasonable costs and
expenses of counsel for the Company; (e) pay the cost of complying with the
securities or Blue Sky laws of any jurisdiction with respect to the offering or
sale of the Shares; and (f) pay all reasonable fees for any consultants or
advisors retained by the Purchasers in connection with its due diligence
investigation.
9. Finder's Fees.
9.1 The Company (i) represents and warrants that it has retained
no finder, agent or broker in connection with the transactions contemplated by
this Agreement, and (ii) hereby agrees to indemnify and hold harmless the
Purchasers of and from any liability for commission or compensation in the
nature of a finder's fee to any broker or other person or firm (and the costs
and expenses of defending against such liability or asserted liability) for
which the Company or any of its employees or representatives is responsible.
9.2 Each Purchaser (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold harmless the
Company and the other Purchasers of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or asserted
liability) for which such Purchaser, or any of such Purchaser's employees or
representatives, is responsible.
10. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be personally delivered or mailed by first-class
registered or certified mail, postage prepaid (return receipt requested):
if to the Purchaser, at his address as set forth at the end of
this Agreement, marked for attention as there indicated, or at
such other address as may have been furnished to the Company by
him in writing.
17
19
with a copy to: Sherrard & Roe, PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
Attention: Donald I.N. McKenzie, Esq.
Taft, Stettinius & Hollister
425 Walnut Street
Cincinnati, Ohio 45202
Attention: Gerald S. Greenberg, Esq.
if to the Company: @Plan. Inc
Three Landmark Square
Suite 400
Stamford, Connecticut 06901
Attention: Mark Wright
with a copy to: Bass, Berry & Sims, PLC
2700 First American Center
Nashville, Tennessee 37238
Attn: J. Page Davidson, Esq.
11. Integration; Amendment and Waiver.
This Agreement embodies the entire agreement and understanding between
the Purchasers and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged, or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) with (but only with) the
written consent of the Company and Purchasers purchasing in the aggregate, at
least 66 2/3% of the Shares then outstanding.
12. Reorganization, Reclassification, Merger, and Consolidation.
The Company will not effect any consolidation, merger, exchange of
shares of capital stock, or sale of its assets, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation, merger, or exchange, or the company purchasing such assets
shall assume, by written instrument executed and mailed or delivered to the
Purchasers, an express assumption of the terms, conditions and obligations of
this Agreement as if it has been a party hereto.
13. Severability.
Should any one or more of the provisions of this Agreement or any
agreement entered into pursuant hereto be determined to be illegal or
unenforceable, all other provisions of this Agreement and such other agreements
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
18
20
14. Miscellaneous.
14.1 This Agreement shall be constructed and enforced in accordance
with the laws of the State of Tennessee without regard to its principles of
conflicts of laws.
14.2 All of the terms of this Agreement, whether so expressed or
not, shall be binding upon the respective personal representatives, successors
and assigns of the parties hereto and shall inure to the benefit of and be
enforceable by the respective personal representative, successors and assigns of
the parties hereto; provided, however, that this Agreement may not be assigned
by either party hereto without the prior written consent of the other.
14.3 Each Exhibit and Schedule to this Agreement is made a part of
this Agreement as though set forth in full herein. The headings in this
Agreement are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
14.4 Whenever the masculine gender is used herein, it shall be
deemed to include the feminine and the neuter.
14.5 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.
(Remainder of Page Intentionally Left Blank)
19
21
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
RICHLAND VENTURES II, L.P., a limited @PLAN, INC
partnership organized under the laws
of the State of ______________
By: By:
----------------------------------- ----------------------------
Mark K. Wright, Chairman
Title:
--------------------------------
- --------------------------------------
- --------------------------------------
- --------------------------------------
Address
- --------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------
22
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
BLUE CHIP CAPITAL FUND II LIMITED @PLAN, INC
PARTNERSHIP, a limited partnership
organized under the laws of the
State of ______________________
By: Blue Chip Venture Company, Ltd., By:
Its General Partner ----------------------------
Mark K. Wright, Chairman
By:
-------------------------------
Title:
----------------------------
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
Address
- -----------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------------
23
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
MIAMI VALLEY VENTURE FUND, L.P., @PLAN, INC
a limited partnership organized under
the laws of the State of ____________
By: Blue Chip Venture Company of Dayton, By:
Ltd., Special Limited Partner -----------------------------
Mark K. Wright, Chairman
By:
---------------------------------
Title:
------------------------------
- ------------------------------------------
- ------------------------------------------
- ------------------------------------------
Address
- ------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
---------------------
24
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
SOUTHERN VENTURE FUND II, L.P., @PLAN, INC
a limited partnership organized under
the laws of the State of ______________
By: SV Partners II, L.P., By:
Its General Partner ----------------------------
Mark K. Wright, Chairman
By:
-------------------------------
Title:
----------------------------
- ----------------------------------------
- ----------------------------------------
- ----------------------------------------
Address
- ----------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
----------------------
25
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- -------------------------------------------- -----------------------------
Roger J. Thomson, a resident of the State of Mark K. Wright, Chairman
- ---------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- --------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------------
26
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- --------------------------------------------- ---------------------------
Karl Spangenberg, a resident of the State of Mark K. Wright, Chairman
- ---------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- --------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
--------------------------
27
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- ---------------------------------------- -----------------------------
Mark Wright, a resident of the State of Mark K. Wright, Chairman
Connecticut
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- --------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------------
28
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- ---------------------------------------- ------------------------------
Gary Haynes, a resident of the State of Mark K. Wright, Chairman
- -------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- ---------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-------------------------
29
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- ------------------------------------------- ----------------------------
Janice Wendell, a resident of the State of Mark K. Wright, Chairman
- ---------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- --------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------------
30
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
@PLAN, INC
By:
- ---------------------------------------- -------------------------------
Susan Russo, a resident of the State of Mark K. Wright, Chairman
- --------------------
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Address
- --------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
-----------------------
31
If you are in agreement with the foregoing, please sign this Agreement
and return the same to the Company whereupon this letter, upon acceptance and
execution by the Company, shall become a binding obligation between you and the
Company in accordance with the provisions of Section 3.1 hereof.
CONFIRMED AND AGREED: ACCEPTED:
[to be completed by Purchaser]
GARY R. HAYNES 1994 CHARITABLE @PLAN, INC
REMAINDER UNITRUST
By: By:
---------------------------------- -------------------------------
Trustee Mark K. Wright, Chairman
- -------------------------------------
- -------------------------------------
- -------------------------------------
Address
- -------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser
Dated:
--------------------
32
INDEX OF EXHIBITS AND SCHEDULES
Exhibit A Form of Second Amended and Restated Charter
Exhibit B Amended and Restated Charter and Bylaws of the Company
Exhibit C Financial Statements
Exhibit D Accredited Investor Exhibit
Exhibit E Amended and Restated Shareholders' Agreement
Schedule 1.0 Schedule of Purchasers
Schedule 4.1(a) Foreign Qualification
Schedule 4.1(c) Issued and Outstanding Capital Stock
Schedule 4.7 Defaults
Schedule 4.8 Material Transactions
Schedule 4.9 Material Agreements
Schedule 4.13 Certain Transactions
Schedule 4.14 Absence of Liabilities
Schedule 4.15 Property and Assets
Schedule 4.16 Leases
Schedule 4.18 Registration Rights
Schedule 4.20 Intellectual Property
Schedule 4.24 Indebtedness
Schedule 4.25 ERISA Plans
33
SCHEDULE 1
SCHEDULE OF PURCHASERS
- ---------------------------------------------------------------------------------------------
Total Tranche 1 Tranche 2
Name Commitment (No. of Shares) (No. of Shares)
- ----------------------------------------------------------------------------------------------
Richland Ventures II, L.P. $3,000,000 $1,800,000 $1,200,000
(600,000 Shares) (400,000 Shares)
- ----------------------------------------------------------------------------------------------
Blue Chip Capital Fund II $1,275,000 $1,275,000 $-0-
Limited Partnership (425,000 Shares) (0 Shares)
- ----------------------------------------------------------------------------------------------
Miami Valley Venture Fund, L.P. $225,000 $225,000 $-0-
(75,000 Shares) (0 Shares)
- ----------------------------------------------------------------------------------------------
Southern Venture Fund, II, L.P. $500,001 $300,000 $200,001
(100,000 Shares) (66,667 Shares)
- ----------------------------------------------------------------------------------------------
Gary R. Haynes $90,000 $54,000 $36,000
(18,000 Shares) (12,000 Shares)
- ----------------------------------------------------------------------------------------------
Roger J. Thomson $42,000 $25,200 $16,800
(8,400 Shares) (5,600 Shares)
- ----------------------------------------------------------------------------------------------
Janice W. Wendell $30,000 $18,000 $12,000
(6,000 Shares) (4,000 Shares)
- ----------------------------------------------------------------------------------------------
Mark Wright $9,000 $5,400 $3,600
(1,800 Shares) (1,200 Shares)
- ----------------------------------------------------------------------------------------------
Karl Spangenberg $6,000 $3,600 $2,400
(1,200 Shares) (800 Shares)
- ----------------------------------------------------------------------------------------------
Total: $5,177,001 $3,706,200 $1,470,801
(1,725,667 Shares) (1,235,400 Shares) (490,267 Shares)
- ----------------------------------------------------------------------------------------------