EXHIBIT 10.9
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT ("Agreement") is made
as of April 7, 1995 by and between Agile Software Corporation, a California
corporation (the "Company"), and the investors listed on Schedule A hereto, each
of which is herein referred to individually as an "Investor" and collectively
the "Investors".
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Series A Preferred Stock. The Investors
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agree to purchase at the Closing and the Company agrees to sell and issue to the
Investors at the Closing, up to 1,500,000 shares of Series A Preferred Stock
(collectively, the "Series A Shares").
1.1 Closing: Subsequent Closings. The purchase and sale of the Series
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A Shares shall take place at the offices of Brobeck, Phleger & Harrison, 2200
Geng Road, Palo Alto, California, at 2:00 p.m., on April 7, 1995, or at such
other time and place as the Company and the Investors hereto mutually agree upon
orally or in writing (which time and place are designated as the "Closing"). At
the Closing, the Company shall deliver to the Investors shares of Series A
Preferred Stock against delivery to the Company by the Investors of a check or
wire transfer, payable to the Company's order, in the amount set forth beside
such Investor's name on Schedule A. The Company may sell additional Series A
Shares to such purchasers as it shall select.
2. Representations and Warranties of the Investors. Each Investor
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hereby severally, but not jointly, represents and warrants that:
2.1 Authorization. All action on the part of such Investor necessary
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for the authorization, execution, delivery and performance of this Agreement and
purchase of the Series A Shares has been taken or will be taken prior to the
Closing.
2.2 Purchase Entirely for Own Account. This Agreement is made with
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such Investor in reliance upon such Investor's representation to the Company,
which, by such Investor's execution of this Agreement, such Investor hereby
confirms that the Series A Shares purchased by such Investor and any stock into
which such Series A Shares may be converted (collectively, the "Securities")
will be acquired for investment for such Investor's own account, and not with a
view to the resale or distribution of any part thereof unless such resale or
distribution is in compliance with the Securities Act of 1933, as amended (the
"Act"), and any rules or regulations promulgated thereunder, and, except as
provided above, that such Investor has no present intention of selling, granting
any participation in, or otherwise distributing the same. By executing this
Agreement, each Investor further represents that such Investor does not have any
contract,
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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. Each Investor represents that it has full power and authority to
enter into this Agreement.
2.3 Disclosure of Information. Such Investor believes it has received
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all the information it considers necessary or appropriate for deciding whether
to purchase the Series A Shares. Such Investor further represents that such
Investor has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Series A
Shares. Such Investor is aware that investment in the Company is speculative and
involves a high degree of risk. Such Investor, in evaluating the merits of an
investment in the Company, has relied on the advice of its own personal tax and
legal counsel, and is not relying on the Company or its counsel for an
evaluation of the tax, legal or other consequences of an investment in the
Company.
2.4 Investment Experience. Such Investor is an experienced investor
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in securities of emerging growth high technology companies and acknowledges that
it is able to fend for itself, can bear the economic risk of its investment and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Series A
Shares.
2.5 Restricted Securities. Such Investor understands that the
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Securities are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may not be resold without registration
under the Act, except in certain limited circumstances. In this connection, such
Investor represents that such Investor is familiar with SEC Rule 144 promulgated
by the Securities and Exchange Commission, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
2.6 Further Limitations on Disposition. Without in any way limiting
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the representations set forth above, such Investor further agrees that such
Investor will not make any disposition of all or any portion of the Securities
unless and until the transferee and any subsequent transferee has agreed in
writing for the benefit of the Company to be bound by the terms of this
Agreement, as amended, provided and to the extent such instruments are then
applicable and:
(a) There is then in effect a Registration Statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
(b) Such Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the
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circumstances surrounding the proposed disposition, and if reasonably requested
by the Company, such Investor shall have furnished the Company with an opinion
of counsel, reasonably satisfactory to the Company, that such disposition will
not require registration of such Securities under the Act. It is agreed that the
Company will not require opinions of counsel for transactions made pursuant to
Rule 144 except in unusual circumstances.
2.7 Legends. It is understood that the certificates evidencing the
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Securities may bear one or all of the following legends:
(a) "THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY THAT
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE
ACT OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE 144 UNDER THE ACT."
(b) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations and
Sections 417 and 418 of the Code or any other legends required by applicable
state securities or blue sky laws.
3. Commissioner of Corporations.
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3.1 California Corporate Securities Law. THE SALE OF THE SECURITIES
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WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
4. Conditions of the Company's Obligations at Closing. The
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obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor:
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4.1 Representations and Warranties. The representations and
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warranties of each Investor contained in Section 2 shall be true 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.
4.2 Payment of Purchase Price. The Investors shall have delivered the
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purchase price for the Series A Shares specified in Section 1.2, as applicable.
4.3 State Qualifications. The Commissioner of Corporations of the
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State of California shall have issued a permit qualifying the offer and sale to
the Investors of the Securities or such offer and sale shall be exempt from such
qualification under the California Corporate Securities Law of 1968, as amended.
4.4 Amended and Restated Articles of Incorporation. The Secretary of
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State of the State of California shall have filed and cleared the Amended and
Restated Articles of Incorporation in substantially the form attached hereto as
Exhibit A.
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4.5 Investors' Rights Agreement. Each of the Investors shall have
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executed a copy of the Investors' Rights Agreement in substantially the form
attached hereto as Exhibit B.
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5. Miscellaneous.
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5.1 Survival of Warranties. The warranties, representations and
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covenants of the Company and the Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement 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 Investors or the Company.
5.2 Successors and Assigns. Except as otherwise provided herein, the
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terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of the Securities). 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.
5.3 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
5.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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5.5 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.6 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties. If to the Company, a copy of any notice shall be sent in the same
manner to (a) Agile Software Corporation, 1816 Marlyn Way, San Jose, CA 95125
Attention: President and (b) Brobeck, Phleger & Harrison, 2200 Geng Road, Palo
Alto, California 94303, Attention: Margaret E. Nibbi, Esq.
5.7 Finder's Fee. Each party represents that it neither is nor will
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be obligated for any finders' fee or commission in connection with this
transaction.
5.8 Expenses. Each party shall pay all costs and expenses that it
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incurs with respect to the negotiation, execution, delivery and performance of
this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, 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.
5.9 Amendments and Waivers. Any term of this Agreement may be amended
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and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of a majority of the
Series A Shares. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon all the Investors and the Company.
5.10 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AGILE SOFTWARE CORPORATION
By: /s/ Bryan D. Stolle
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Bryan D. Stolle
President and
Chief Executive Officer
Signature Page to Agile Software Corporation
Series A Preferred Stock Purchase Agreement