Series B Preferred Stock Purchase Agreement - BroadVision Inc.
BROADVISION, INC.
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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
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NOVEMBER 7, 1994
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TABLE OF CONTENTS
Page
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SECTION 1 AUTHORIZATION AND SALE OF THE SERIES B PREFERRED STOCK........ 1
1.1 Authorization................................................. 1
1.2 Sale of Preferred............................................. 1
1.3 Closing Date.................................................. 1
1.4 Delivery...................................................... 1
SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY................. 1
2.1 Organization and Standing. .................................. 1
2.2 Authorization................................................. 1
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS............... 2
3.1 Authorization................................................. 2
3.2 Experience.................................................... 2
3.3 Investment.................................................... 2
3.4 Rule 144...................................................... 2
3.5 Accredited Investors.......................................... 3
3.6 No Public Market.............................................. 3
3.7 Access to Data................................................ 3
SECTION 4 CONDITIONS TO CLOSING OF INVESTORS............................ 3
4.1 Representations and Warranties................................ 3
4.2 Covenants..................................................... 3
4.3 Blue Sky...................................................... 3
SECTION 5 CONDITIONS TO CLOSING OF COMPANY.............................. 4
5.1 Representations and Warranties................................ 4
5.2 Covenants. ................................................... 4
5.3 Blue Sky...................................................... 4
SECTION 6 MISCELLANEOUS................................................. 4
6.1 Governing Law................................................. 4
6.2 Survival...................................................... 4
6.3 Successors and Assigns........................................ 4
6.4 Entire Agreement.............................................. 4
6.5 Rights of Investors........................................... 4
6.6 Notices, etc.................................................. 5
6.7 Expenses...................................................... 5
6.8 Counterparts.................................................. 5
6.9 Severability.................................................. 5
6.10 California Corporate Securities Law........................... 5
6.11 Approval of Amendments and Waivers............................ 5
i.
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EXHIBITS
A - Schedule of Investors
B - Certificate of Designation of Preferences of Series B Preferred
ii.
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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of November 7, 1994 between BROADVISION, INC., a
Delaware corporation (the "Company") and the investors as set forth in Exhibit A
hereto ("Investors").
SECTION 1
AUTHORIZATION AND SALE OF THE SERIES B PREFERRED STOCK
1.1 AUTHORIZATION. The Company has authorized the issuance and sale
of 533,333 shares of its Series B Preferred Stock (the "Preferred") having the
rights, preferences, privileges and restrictions set forth in the Certificate of
Designation of Preferences of Series B Preferred Stock in the form attached to
this Agreement as Exhibit B (the "Certificate").
1.2 SALE OF PREFERRED. Subject to the terms and conditions hereof,
each Investor severally agrees to purchase and the Company agrees to sell and
issue to each Investor the number of shares of Preferred set forth opposite such
Investor's name on Exhibit A at a price of $1.25 per share.
1.3 CLOSING DATE. The closing of the purchase and sale of the
Preferred hereunder (the "Closing") shall be held at the principal office of
BroadVision Inc., 3 Lagoon Drive, Suite 350, Redwood City, California
4065-1561, on the date of this Agreement or at such other time and place upon
which the Company and the Investors shall agree (the date of the Closing is
hereinafter referred to as the "Closing Date").
1.4 DELIVERY. At the Closing the Company will deliver to each
Investor a certificate representing the shares of Preferred that such Investor
is purchasing against payment of the purchase price therefor by wire transfer or
by check payable to the order of the Company.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Investor as follows:
2.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has all requisite
corporate power to own and operate its properties and assets and to carry on its
business as presently conducted and as proposed to be conducted. The Company is
qualified to do business as a foreign corporation in each jurisdiction in which
such qualification is presently required.
2.2 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Preferred (and the Common
Stock issuable upon conversion of the Preferred) and the performance of the
Company's obligations under this Agreement has been taken or will be taken
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prior to the Closing. This Agreement constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency, the relief of debtors,
general equity principles, and limitations upon rights to indemnity. The
Preferred, when issued in compliance with the provisions of this Agreement, will
be duly and validly issued, fully paid and nonassessable. The Common Stock
issuable upon conversion of the Preferred has been duly and validly reserved
and, when issued in compliance with the provisions of this Agreement, will be
duly and validly issued, fully paid and nonassessable. The Preferred is not
subject to any preemptive rights or rights of first refusal.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor hereby severally, for itself, and not jointly represents and
warrants to the Company as follows:
3.1 AUTHORIZATION. The Agreements constitute valid and legally
binding obligations of such Investor, enforceable in accordance with their terms
except as the enforceability thereof may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). Such Investor is authorized and has full right and power to
purchase the Preferred, and the person signing the Agreements and any other
instrument executed and delivered hereby on behalf of such entity has been duly
authorized by such entity and has full power and authority to do so.
3.2 EXPERIENCE. The Investor has, from time to time, evaluated
investments in new, high technology companies and has, either individually or
through the personal experience of one or more of its current officers or
partners, experience in evaluating and investing in new, high technology
companies. The Investor has such knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of
its investment in the Preferred and it is able to protect its own interests in
connection with this transaction.
3.3 INVESTMENT. The Investor is acquiring the Preferred (and any
Common Stock issuable upon conversion of the Preferred) for investment for its
own account and not with the view to, or for resale in connection with, any
distribution thereof. The Investor understands that the Preferred (and any
Common Stock issuable upon conversion of the Preferred) to be purchased has not
been registered under the Securities Act by reason of a specific exemption from
the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent as expressed herein.
3.4 RULE 144. The Investor acknowledges that the Preferred must be
held indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. The Investor is aware of the
provisions of Rule 144 promulgated under the Securities Act which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public
2.
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market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than two years after a party
has purchased and paid for the securities to be sold, the sale being through a
"broker's transaction" or in transactions directly with a "market maker" (as
provided by Rule 144(f)) and the number of shares being sold during any
three-month period not exceeding specified limitations. The Investor is aware
that the conditions for resale set forth in Rule 144 have not been satisfied and
that the Company has no plan to satisfy these conditions in the foreseeable
future.
3.5 ACCREDITED INVESTORS. The Investor is an "accredited investor"
pursuant to Rule 501, Regulation D, promulgated by the Securities Exchange on
March 8, 1982.
3.6 NO PUBLIC MARKET. The Investor understands that no public market
now exists for any of the securities issued by the Company and that it is
unlikely that a public market will ever exist for the Preferred.
3.7 ACCESS TO DATA. The Investor has had an opportunity to discuss
the Company's business, management and financial affairs with its management.
The Investor understands that such discussions, as well as any written
information issued by the Company, were intended to describe the aspects of the
Company's business and prospects which the Company believes to be material.
SECTION 4
CONDITIONS TO CLOSING OF INVESTORS
Each Investor's obligation to purchase the Preferred at the Closing is
subject to the fulfillment to its satisfaction on or prior to the Closing Date
of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company 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 date of the Closing.
4.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all respects.
4.3 BLUE SKY. The Company shall have obtained all necessary Blue Sky
law permits and qualifications, or secured exemptions therefrom, required by any
state for the offer and sale of the Preferred and Common Stock issuable upon
conversion of the Preferred.
SECTION 5
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to issue and sell the Preferred at the Closing is
subject to the fulfillment of the following conditions:
3.
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5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investors contained in Section 3 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.
5.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by Investors on or prior to the Closing Date
shall have been performed or complied with in all respects.
5.3 BLUE SKY. The Company shall have obtained all necessary Blue Sky
law permits and qualifications, or secured exemptions therefrom, required by any
state for the offer and sale of the Preferred and Common Stock issuable upon
conversion of the Preferred.
SECTION 6
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California as applicable to contracts entered into and performed
entirely within the State of California.
6.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by Investors and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in this Agreement or in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed to be made as of the date of this Agreement, and not necessarily as of
some later date.
6.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided, however, that the rights of Investors to purchase the Preferred shall
not be assignable without the consent of the Company.
6.4 ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
6.5 RIGHTS OF INVESTORS. Each holder of the Preferred (and Common
Stock issued upon conversion of the Preferred) shall have the absolute right to
exercise or refrain from exercising any right or rights that such holder may
have by reason of this Agreement or ownership of any Preferred, including
without limitation the right to consent to the waiver of any obligation of the
Company under this Agreement and to enter into an agreement with the Company for
the purpose of modifying this Agreement or any agreement affecting any such
modification, and such holder shall not incur any liability to any other holder
or holders of Preferred with respect to exercising or refraining from exercising
any such right or rights.
4.
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6.6 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to the Investors, to Investors' addresses set forth on the
signature page hereof or at such other address as shall have been furnished to
the Company in writing by such Investors or (b) if to the Company, to the
address of its principal executive office and addressed to the attention of the
Corporate Secretary, or at such other address or addresses as the Company shall
have furnished in writing to the Investors. All notices and other
communications mailed pursuant to the provisions of this Section 6.6 shall be
deemed delivered when mailed.
6.7 EXPENSES. Each party to this Agreement shall bear its own
expenses and legal fees incurred by it with respect to this Agreement and all
related transactions and agreements.
6.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be enforceable against the party actually executing such
counterpart, and which together shall constitute one instrument.
6.9 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
6.10 CALIFORNIA CORPORATE 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
such securities or the payment or receipt of any part of the consideration
therefor prior to such qualification, if required by law, is unlawful. The
rights of all parties to this agreement are expressly conditioned upon such
qualification being obtained, if required by law.
6.11 APPROVAL OF AMENDMENTS AND WAIVERS. Any term of this agreement
may be amended or terminated and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with the written consent of the Company and the
holders of a majority of the outstanding Preferred Stock sold under this
Agreement, and Common Stock issued upon conversion thereof (calculated on an
as-converted basis), excluding from the determination of such a majority (both
in determining the total number of such shares outstanding and the number of
such shares consenting or not consenting) all shares previously disposed of by
the Investors or transferees pursuant to one or more registration statements
under the Securities Act or pursuant to Rule 144 thereunder. Any amendment,
termination or waiver effected in accordance with this section shall be binding
upon each holder of any securities issued pursuant to this Agreement (including
securities into which such securities have been converted or exchanged), each
future holder of any or all such securities and the Company.
5.
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The foregoing Agreement is hereby executed as of the date first above
written.
BROADVISION, INC.
By: /s/ Pehong Chen
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PEHONG CHEN
President
Address: 3 Lagoon Drive, Suite 350
Redwood City, CA 94065-1561
INVESTORS
STANFORD UNIVERSITY
By: /s/ Carol Gilmer
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CAROL GILMER
Address: Stanford Management Company
2770 Sand Hill Road
Menlo Park, CA 94025
GC&H INVESTMENTS,
A CALIFORNIA GENERAL PARTNERSHIP
By: /s/ John L. Cardoza
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JOHN L. CARDOZA,
EXECUTIVE PARTNER
Address: One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
6.
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/s/ Koh Boon Hwee
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KOH BOON HWEE
Address: c/o Wuthlem Holdings, Ltd.
177 River Valley Road, #05-01
Liang Court Complex
Singapore 0617
/s/ Ikuo Minakata
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IKUO MINAKATA
Address: Info Systems Lab.
1006, Kadoma, Kadoma-Shi
Osaka, 571 Japan
/s/ Andy Chase
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ANDY CHASE
Address: 3000 San Hill Road, 3-190
Menlo Park, CA 94025
THE SIEBEL TRUST
By: /s/ Tom Siebel
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Tom Siebel
Address: 2909 Woodside Road
Woodside, CA 94062
7.
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/s/ Elserino Piol
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ELSERINO PIOL
Address: c/o Ms. Alexandra Giurgiu
Managing Director
Olivetti Management Inc.
70 E. 55th Street
New York, NY 10022
MAYFIELD VII
By /s/ Yogen K. Dalal
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Address: 2800 Sand Hill Road
Menlo Park, CA 94025
SUTTER HILL VENTURES,
A CALIFORNIA LIMITED PARTNERSHIP
By /s/ David L. Anderson
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Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
TOW PARTNERS,
A CALIFORNIA LIMITED PARTNERSHIP
By /s/ Paul M. Wythes
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Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
8.
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ANVEST, L.P.
By /s/ David L. Anderson
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Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
SAUNDERS HOLDINGS, L.P.
By /s/ G. Leonard Baker
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Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
/s/ William H. Younger, Jr.
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WILLIAM H. YOUNGER, JR.
Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
/s/ Tench Coxe
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TENCH COXE
Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
/s/ Ronald L. Perkins
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RONALD L. PERKINS
Address: 755 Page Mill Road
Suite A-200
Palo Alto, CA 94304
9.
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GENSTAR INVESTMENT CORPORATION
By /s/ Richard D. Paterson
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Address: Metro Tower, Suite 1170
Foster City, CA 94404
Attn: R.D. Paterson
WELLS FARGO BANK, TRUSTEE
SHV M/P/T FBO G. LEONARD BAKER, JR.
By /s/ Christopher M. Peterson
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Address: P.O. Box 63050 MAC 0188-161
San Francisco, CA 94163
Attn: Vicki Bandel
WELLS FARGO BANK, TRUSTEE
SHV M/P/T FBO DAVID L. ANDERSON
By /s/ Christopher M. Peterson
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Address: P.O. Box 63050 MAC 0188-161
San Francisco, CA 94163
Attn: Vicki Bandel
WELLS FARGO BANK, TRUSTEE
SHV M/P/T FBO TENCH COXE
By /s/ Christopher M. Peterson
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Address: P.O. Box 63050 MAC 0188-161
San Francisco, CA 94163
Attn: Vicki Bandel
10.
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MAYFIELD ASSOCIATES FUND II
By /s/ Yogen K. Dalal
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Address: 2800 Sand Hill Road
Suite 250
Menlo Park, CA 94025
Attn: Deborah Kranz
11.
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EXHIBIT A
SCHEDULE OF INVESTORS
Series B
Preferred
Shares Price
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Stanford University 11,564 $14,455.00
GC&H Investments, a California general partnership 6,075 7,593.75
Koh Boon Hwee 6,608 8,260.00
Ikuo Minakata 826 1,032.00
Andy Chase 3,304 4,130.00
The Siebel Trust 3,304 4,130.00
Elserino Piol 1,652 2,065.00
Mayfield VII 237,500 296,875.00
Mayfield Associates Fund II 12,500 15,625.00
Sutter Hill Ventures, a California limited partnership 183,823 229,778.75
Tow Partners, a California limited partnership 15,702 19,627.50
Anvest, L.P. 1,653 2,066.25
Saunders Holdings, L.P. 8,265 10,331.25
William H. Younger, Jr. 8,265 10,331.25
Tench Coxe 2,066 2,582.50
Ronald L. Perkins 1,770 2,212.50
Genstar Investment Corporation 4,902 6,127.50
Wells Fargo Bank, Trustee SHV M/P/T FBO G.
Leonard Baker, Jr. 7,438 9,297.50
Wells Fargo Bank, Trustee SHV M/P/T FBO
David L. Anderson 14,050 17,562.50
Wells Fargo Bank, Trustee SHV M/P/T FBO 2,066 2,582.50
Tench Coxe
533,333 666,666.25