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EXHIBIT 10.18
FINDMAIL COMMUNICATIONS, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
This Series A Preferred Stock Purchase Agreement (the "Agreement") is made as of
the 22nd day of June, 1998, by and between FindMail Communications, Inc., a
Delaware corporation (the "Company"), and the investors listed on Exhibit A
attached hereto (each a "Purchaser" and together, if more than one, the
"Purchasers").
The parties hereby agree as follows:
1. Purchase and Sale of Preferred Stock.
1.1 Sale and Issuance of Series A Preferred Stock.
(a) The Company shall adopt and file with the Secretary of State of the State of
Delaware on or before the Closing (as defined below) the First Amended and
Restated Certificate of Incorporation, in the form attached hereto as Exhibit B
(the "Restated Certificate").
(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 A Preferred Stock set
forth opposite each such Purchaser's name on Exhibit A attached hereto at a
purchase price of $1.00 per share. The shares of Series A 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
Venture Law Group, 2800 Sand Hill Road, Menlo Park, California, at 10:00 a.m.,
on June 22, 1998, 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 check or by wire transfer to the Company's bank account.
2. Representations, Warranties and Covenants of the Company. The Company hereby
represents, warrants and covenants to each Purchaser that, except as set forth
on a Schedule of Exceptions attached hereto as Exhibit C, 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, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to carry
on its business as now conducted and
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a proposed to be conducted. 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) Eight Hundred Fifty Thousand (850,000) shares of Preferred Stock, all of
which have been designated Series A Preferred Stock, none of which are issued
and outstanding immediately prior to the Closing. The rights, privileges and
preferences of the Preferred Stock are as stated in the Restated Certificate.
(b) Four Million Five Hundred Forty Thousand (4,540,000) shares of Common Stock,
Two Million Seven Hundred Ninety Thousand (2,790,000) shares of which are issued
and outstanding immediately prior to the 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. The
Company has reserved (i) Eight Hundred Fifty Thousand (850,000) shares of Common
Stock for issuance upon conversion of the Preferred Stock and (ii) Nine Hundred
Thousand (900,000) shares of Common Stock for issuance to officers, directors,
employees and consultants of the Company under the Company's 1998 Stock Option
Plan.
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. The Company is not a participant in any joint venture,
partnership or similar arrangement.
2.4 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the Investors Rights Agreement, in the form
attached hereto as Exhibit D (the "Investors Rights Agreement"), the Co-Sale
Agreement in the form attached hereto as Exhibit E (the "Co-Sale Agreement"),
and the Voting Agreement in the form attached hereto as Exhibit F (the "Voting
Agreement" and collectively with this Agreement, the Investors Rights Agreement
and the Co-Sale 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
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applicable federal or state securities laws. The issuance of the Stock is not
subject to any pre-emptive rights or rights of first refusal.
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, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption. 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 Certificate, 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 Section 25102(f) of the
California Corporate Securities Law of 1968, as amended, and the rules
thereunder, other applicable state securities laws and Regulation D of the
Securities Act of 1933, as amended (the "Securities Act").
2.7 Litigation. There is no action, suit, proceeding or investigation pending
or, to the Company's knowledge, currently threatened against the Company 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. The foregoing
includes, without limitation, actions, suits, proceedings or investigations
pending or threatened involving the prior employment of any of the Company's
employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
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2.8 Patents and Trademarks. The Company owns or possesses sufficient legal
rights to all patents, trademarks, service marks, trade names, domain names,
copyrights, trade secrets, licenses, information and proprietary rights and
processes necessary for its business as now conducted and as proposed to be
conducted without any conflict with, or infringement of, the rights of others,
which conflict or infringement would have a material adverse effect on the
assets, condition or affairs of the Company, financially or otherwise. There are
no outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information, proprietary
rights and processes of any other person or entity. The Company has not received
any communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, 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 the Company's business as proposed to be conducted.
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 Certificate 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 of any
provision of federal or state statute, rule or regulation applicable to the
Company which would have a material adverse effect on the assets, condition or
affairs of the Company, financially or otherwise. 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 or the suspension,
revocation, impairment, forfeiture or nonrenewal of any material permit,
license, authorization or approval applicable to the Company, its business or
operations or of its assets or properties.
(b) 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
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license, distribution agreement or other agreement which would have a material
adverse effect on the assets, condition or affairs of the Company, financially
or otherwise.
2.10 Agreements; Action.
(a) Except for the Agreements, there are no agreements, understandings
or proposed transactions between the Company and any of its officers, directors,
affiliates, or any affiliate thereof.
(b) Except for agreements explicitly contemplated by the Agreements,
there are no agreements, understandings, instruments, contracts or proposed
transactions to which the Company is a party or by which it is bound that
involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of, $10,000, (ii) the license of any patent, copyright, trade
secret or other proprietary right to or from the Company, or (iii) the grant of
rights to manufacture, produce, assemble, license, market, or sell its products
to any other person or affect the Company's exclusive fight to develop,
manufacture, assemble, distribute, market or sell its products.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or
incurred any other liabilities individually in excess of $10,000 or in excess of
$25,000 in the aggregate, (iii) made any loans or advances to any person, or
(iv) sold, exchanged or otherwise disposed of any of its assets or rights, other
than the sale of its inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all indebtedness,
liabilities, agreements, understandings, instruments, contracts and proposed
transactions involving the same person or entity (including persons or entities
the Company has reason to believe are affiliated therewith) shall be aggregated
for the purpose of meeting the individual minimum dollar amounts of such
subsections.
(e) The Company is not a party to and is not bound by any contract
agreement or instrument, or subject to any restriction under its Restated
Certificate or Bylaws, that materially and adversely affects its business as now
conducted or as proposed to be conducted, its properties or its financial
condition.
2.11 Disclosure. The Company has provided the Purchasers with all the
information which the Purchasers have requested for deciding whether to acquire
the Stock and all information which the Company believes is reasonably necessary
to enable the Purchasers to make such a decision, including certain of the
Company's projections describing its proposed business (collectively, the
"Business Plan"). The representations and warranties of the Company contained in
this Agreement and the exhibits attached hereto and in any certificate furnished
or to be furnished to Purchasers at the Closing do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements
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contained herein or therein not misleading in light of the circumstances under
which they were made. To the extent the Business Plan was prepared by management
of the Company, the Business Plan and the financial and other projections
contained in the Business Plan were prepared in good faith and the Company
reasonably believes there is a reasonable basis for such projections.
2.12 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. None of the
Company's officers; or directors, or any members of their immediate families,
are, directly or indirectly, indebted to the Company or have any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation which competes with the Company, except that officers, directors
and/or stockholders of the Company may own stock in (but not exceeding two
percent of the outstanding capital stock of) any publicly traded companies 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.
2.13 Rights of Registration and Voting. 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. Except
as contemplated in the Voting Agreement, no stockholders of the Company have
entered into any agreements with respect to the voting of capital shares of the
Company.
2.14 Title to Program 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.
2.15 Manufacturing and Marketing Rights. The Company has not granted rights to
manufacture, produce, assemble, license, market, or sell its products to any
other person and is not bound by any agreement that affects the Company's
exclusive right to develop, manufacture, assemble, distribute, market or sell
its products.
2.16 No Financial Statements. The Company has not prepared any historical
balance sheet, income statement, statement of cash flows or stockholders' equity
or other financial statement. The Company has no material liability or
obligation, absolute or contingent (individually or in the aggregate), except
(a) obligations and liabilities incurred after the date of incorporation in the
ordinary course of business that are not material, individually or in the
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aggregate, and (b) obligations under contracts made in the ordinary course of
business that would not be required to be reflected in financial statements
prepared in accordance with generally accepted accounting principles.
2.17 Employee Benefit Plans. The Company does not have any Employee Benefit Plan
as defined in the Employee Retirement Income Security Act of 1974.
2.18 Tax Returns and Payments. The Company has filed all tax returns and reports
as required by law. These returns and reports are true and correct in all
material respects. The Company has paid all taxes and other assessments due.
2.19 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 would have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company (as such business is presently
conducted and as it is proposed to be conducted), nor is the Company aware of
any labor organization activity involving its employees. The 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.
2.20 Proprietary Information and Inventions Agreements. Each employee,
consultant and officer of the Company has executed an agreement with the Company
regarding confidentiality and proprietary information substantially in the form
or forms delivered to the counsel for the Purchasers. The Company, after
reasonable investigation, is not aware that any of its employees or consultants
is in violation thereof, and the Company will use its best efforts to prevent
any such violation. All consultants to or vendors of the Company with access to
confidential information of the Company are parties to a written agreement
substantially in the form or forms provided to counsel for the Purchasers under
which, among other things, each such consultant or vendor is obligated to
maintain the confidentiality of confidential information of the Company. The
Company, after reasonable investigation, is not aware that any of its
consultants or vendors are in violation thereof, and the Company will use its
best efforts to prevent any such violation.
2.21 Permits. The Company has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which would materially and adversely affect the business,
properties, prospects, or financial condition of the Company, and believes that
it can obtain, without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. The
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Company is not in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
2.22 Corporate Documents. The Restated Certificate and Bylaws of the Company are
in the form provided to counsel for the Purchasers. The copy of the minute books
of the Company provided to the Purchasers' counsel contains minutes of all
meetings of directors and stockholders and all actions by written consent
without a meeting by the directors and stockholders since the date of
incorporation and reflects all actions by the directors (and any committee of
directors) and stockholders with respect to all transactions referred to in such
minutes accurately in all material respects.
2.23 Real Property Holding Corporation. The Company is not a United States real
property holding corporation within the meaning of Internal Revenue Code Section
897(c)(2) and any regulations promulgated thereunder.
2.24 Qualified Small Business Stock. The Company represents and warrants to the
Purchasers that, to the Company's knowledge, the Stock should qualify as
"Qualified Small Business Stock" as defined in Section 1202(c) of the Internal
Revenue Code of 1986, as amended 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. 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
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
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser represents that it has full power and authority to
enter into this Agreement. The Purchaser has not been formed for the specific
purpose of acquiring the Securities.
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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 written information issued by the Company,
were intended to describe the aspects of the Company's business which it
believes to be material. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of the Purchaser to rely thereon.
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, 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 DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933.
(b) 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.
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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' oblations 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 Company Counsel. The Purchasers shall have received from Venture
Law Group, counsel for the Company, an opinion, dated as of the Closing, in
substantially the form of Exhibit G.
4.6 Board of Directors. The Bylaws of the Company shall provide that the Board
of Directors of the Company shall consist of five (5) persons. As of the
Closing, the Board shall be comprised of Eric Archambeau, Scott Hassan, Carl
Page, and Martin Roscheisen, with one
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vacancy to be filled by an independent industry executive approved by the
Purchasers and a majority of Scott Hassan, Carl Page and Martin Roscheisen
(collectively, the "Founders").
4.7. Proceedings and Documents. All corporate and other proceedings in
connection with the transactions, contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to
Purchasers' counsel, and they shall have received all such counterpart original
and certified or other copies of such documents as they may reasonably request.
This may include, without limitation, good standing certificates and
certification by the Company's Secretary regarding the Restated Certificate and
Bylaws and Board of Director and stockholder resolutions approving the
transactions contemplated by this Agreement.
4.8 Proprietary Information and Employee Stock Purchase Agreements. Each
employee of and consultant to the Company shall have entered into a Proprietary
Information and Inventions Agreement in the form previously provided to counsel
for the Purchasers. Each holder of Common Stock of the Company shall have
entered into a Common Stock Purchase Agreement in the form previously provided
to counsel for the Purchasers.
4.9 Investors Rights Agreement. The Company, each Purchaser and the Founders
shall have executed and delivered the Investors Rights Agreement.
4.10 Co-Sale Agreement. The Company, each Purchaser and the Founders shall have
executed and delivered the Co-Sale Agreement.
4.11 Voting Agreement. The Company, each Purchaser and the Founders shall have
executed and delivered the Voting Agreement.
4.12 Restated Certificate. The Company shall have filed the Restated Certificate
with the Secretary of State of Delaware on or prior to the Closing Date, which
shall continue to be in full force and effect as of the Closing Date.
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 in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 Performance. 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 compiled with in all material respects.
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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.
5.4 Investors Rights Agreement. Each Purchaser shall have executed the Investors
Rights Agreement.
5.5 Co-Sale Agreement. Each Purchaser shall have executed the Co-Sale Agreement.
5.6 Voting Agreement. Each Purchaser shall have executed the Voting Agreement.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and covenants of the
Company and Purchasers contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement for a period of one (1)
year, and the Closing and shall in no way be affected by any investigation of
the subject matter thereof made by or on behalf of the Purchasers or the
Company.
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
California, 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, confirmed fax or email, 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 below or on Exhibit A hereto, or as
subsequently modified by written notice, and (a) if to the Company, with a copy
to Venture
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Law Group, 2800 Sand Hill Road, Menlo Park, CA 94025, fax (650) 233-8386, Attn:
Robert V. W. Zipp or (b) if to the Purchasers, with a copy to Wilson, Sonsini,
Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304, fax (650) 493-6811,
Attn: Anton Commissaris.
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. The Company agrees to indemnify and hold
harmless each Purchaser 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 the Company or any of its
officers, employees or representatives is responsible.
6.8 Fees and Expenses. The Company shall pay the reasonable fees and expenses of
counsel for the Purchasers, incurred with respect to this Agreement, the
documents referred to herein and the transactions contemplated hereby and
thereby (such fees and expenses not to exceed $10,000.00).
6.9 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.
6.10 Amendments and Waivers. Any term of this Agreement may be amended 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 6.10 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.
6.11 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.
6.12 Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any holder of any of the Stock, upon any breach or default of
the Company under this Agreement, shall impair any such right, power or remedy
of such holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
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occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
6.13 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 existing
between the parties hereto are expressly canceled.
6.14 Cooperate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT
OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS
UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY
SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHT'S
OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE
QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
6.15 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 6.15 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.
6.16 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 for any action heretofore or hereafter taken or omitted to be
taken by any of them in connection with the Securities.
[Signature Pages Follow]
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The parties have executed this Series A Preferred Stock Purchase Agreement as of
the date first written above.
COMPANY:
FINDMAIL COMMUNICATIONS, INC.
By:
------------------------------------
Name:
----------------------------------
(print)
Title:
---------------------------------
Address: 961 Duncan Street
San Francisco, CA 94131
PURCHASERS:
ATLAS VENTURE FUND III, L.P.
By: Atlas Venture Associates III, LLC
Its: General Partner
By:
------------------------------------
Member Manager
Name:
----------------------------------
(print)
Address: 222 Berkeley Street
Boston, MA 02116
ATLAS VENTURE ENTREPRENEURS' FUND
III, L.P.
By: Atlas Venture Associates III, LLC
Its: General Partner
By:
------------------------------------
Member Manager
Name:
----------------------------------
(print)
Address: 222 Berkeley Street
Boston, MA 02116
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The parties have executed this Series A Preferred Stock Purchase Agreement as of
the date first written above.
FINDMAIL COMMUNICATIONS, INC.
By:
------------------------------------
Name:
----------------------------------
(print)
Title:
---------------------------------
Address: 961 Duncan Street
San Francisco, CA 94131
PURCHASERS:
ATLAS VENTURE FUND III, L.P.
By: Atlas Venture Associates III, LLC
Its: General Partner
By:
------------------------------------
Member Manager
Name:
----------------------------------
(print)
Address: 222 Berkeley Street
Boston, MA 02116
ATLAS VENTURE ENTREPRENEURS' FUND
III, L.P.
By: Atlas Venture Associates III, LLC
Its: General Partner
By:
------------------------------------
Member Manager
Name:
----------------------------------
(print)
Address: 222 Berkeley Street
Boston, MA 02116
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